The case of the prosecution in brief is as follows: The deceased in this case was one Mr.Selvam.P.W.1 is his wife andP.W.2 is his mother.They were all residing at Varalotti Village inVirudhunagar District.The wife of the first accused is one Mrs.Rajathi.The deceased had developed illicit intimacy with Mrs.Rajaji.Therefore, thefirst accused had developed grudges against the deceased.This is stated tobe the motive for the occurrence.On 19.07.2009, at about 11.00 p.m., the deceased had returned fromVirudhunagar and after taking food, he was sleeping on the pial of the house.P.Ws.1 and 2 were also sleeping on the same pial by the side of the deceased.At about, 11.30 p.m., all the three accused emerged there.The first accusedhad aruval in his hands and the accused 2 and 3 were unarmed.The accused 2 and 3 held the deceased and the first accused mounted repeated attacks witharuval on his body.The deceased cried for help.P.Ws.1 and 2 also raisedalarm.The first accused intimidated P.W.1 by brandishing aruval.Then, allthe three accused fled away from the scene of occurrence.The deceased was lying in a pool of blood.He made arrangement for 108 ambulance.They shifted the deceased to the hospital.Accordingly, the deceased was taken to the Government Hospitalat Virudhunagar.P9 is the accident Register.After first aid treatment, the Doctor referred him to theGovernment Rajaji Hospital at Madurai for further treatment.At about 4.00a.m., he was admitted as in-patient.Intimation was sent by the hospitalauthorities both to the police as well as to the learned Magistrate inrespect of the same.P.W.10 the then Judicial Magistrate No.3, Madurai, rushed to theGovernment Rajaji Hospital, at 4.30 a.m., and recorded the dying declarationof the deceased.P.W.10 reduced the same into writing.At 1.00 p.m., on 20.07.2009, he prepared an observationmahazar and a rough sketch showing the place of occurrence, in the presenceof P.W.6 and another witness.He examined P.Ws.1 and 2 and few more witnesses on the spot.He also recovered the bloodstained earth and sample earth fromthe place of occurrence.On the same day, he arrested the 2nd accused in thepresence of P.W.7 and another witness.Then, on the same day at 4.00 p.m., he arrested the accused 1 and 3 in the presence of P.W.9 and another witness.Onsuch arrest, the first accused gave a voluntary confession, in which, hedisclosed the place, where he had hidden the aruval.(Judgment of the Court was delivered byS.NAGAMUTHU, J.) The appellants are the accused 1 to 3 in S.C.No.3 of 2010 on the fileof the learned Additional District Judge, Fast Track Court, Virudhunagar.The first accused stood charged for the offences under Section 302 IPC andthe accused 2 and 3 stood charged for offences under Sections 342, 302 readwith 34 IPC.By judgment dated 17.06.2010, the trial Court convicted thefirst accused under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorousimprisonment for six months and convicted the accused 2 and 3 under Section 342, 302 r/w 34 IPC and sentenced them to undergo simple imprisonment for three months for the offence under Section 342 IPC and sentenced them toundergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, toundergo rigorous imprisonment for six months for the offence under Section302 r/w 34 IPC.To the Doctor (P.W.11), at the Government Hospital, Virudhunagar,the deceased told that he was attacked by three known persons.P.W.11, noticed the following injuries:A large cut injury over the left side of cheek extend from leftborder of sternum upto the top the left shoulder.Another cut injury over the left arm 10 cm x 8 cm x 5 cm.Cut injury over the nose (the projection part of nose bringseparate) Elevation part of the nose absent.Another cut injury over the right side of upper lip with missing oflittle muscle.Another cut injury over the cheek curve shape size 5 cm x 2 cm x 1cm.Another cut injury over the forehead on the scalp 8 cm x 2 cm x 2cm.A lacerated cut injury over the right side of back near center ofback internal organ seen (nc) the injury exposing of lung seen through theinjury.Another cut injury over right palm size 5 x 2 x 1 cm.Another cut injury over little, index, finger with ?fracture ofmiddle phalanx.Another cut injury over the right thumb near the middle of thefinger with bleeding 2 cm x 1 cm x 0.5 cm.One Dr.Thirumalaimurugan, who was attending on thedeceased, gave opinion that the deceased was in a fit state of mind to makedying declaration.On his part, P.W.10 also satisfied about the mentalfitness of the deceased.Then, he recorded the dying declaration.P8 isthe said dying declaration.P.W.16 the then Head Constable attached to the Mallanginaru policestation rushed to the hospital at 11.30 a.m., on 20.07.2009 and recorded thestatement of P.W.1, as the deceased was taken to the operation theatre.Onreturning to the police station, he registered a case in Crime No.127 of 2009under Sections 342, 324 and 307 IPC at 11.30 a.m. Ex.P14 is the FIR.Heforwarded Ex.P1 and Ex.P14 to the Court and handed over the case diary to theInspector of Police for investigation.P.W.20, took up the case for investigation and proceeded to theplace of occurrence.In pursuance of thesaid statement, the first accused took P.W.20 and the witnesses to VaralottiBus Stop and produced an aruval (M.O.1) from the hide out.The same was recovered.The deceased, who had undergone surgery, was shifted from the ICU ward to the regular ward and after 28 days, due to the complications, hedied.P.W.20 conducted inquest on the body of the deceased on 16.08.2009 between 8.00 a.m. and 10.30 a.m. Then, he forwarded the body for postmortem.2.8. P.W.12 ? Dr.Alaudeen conducted autopsy on the body of the deceased on 16.08.2009 at 12.30 p.m. He found the following injuries:-1.Partly healed infected cut wound on left shoulder extending to leftanterior chest wall 20 cms x 1.5 cm x bone deep.2.Partly healed infected cut wound on nose extending to lips & chin 10cms x 2 cms x bone deep.3.Partly healed infected cut wound on left arm 6 cms x 2 cms x bonedeep.On dissection, the proximal humerus is found repaired surginally.4.Partly healed infected cut wound on right postero lateral aspect ofchest wall 15 cms x 2 cms x muscle deep.5.Partly healed laparotomy wound in front of the abdomen.6.Intercostal drainage wound on both lateral chest wall.P10 is the postmortem certificate.He gave opinion that the deceasedwould appear to have died of multiple cut injuries and the complicationsthereof.Continuing the investigation, P.W.20 forwarded the materialobjects to the Court and made a request to the Court for forwarding the samefor chemical examination.P12 is the chemical examination report andEx.P13 is the serology report.According to these reports, there was humanblood of 'A' origin found on the aruval, lungi as well as on the bill hook.On completing the investigation, P.W.20 laid charge sheet against theaccused.Based on the above materials, the trial Court framed charges asdetailed in the first paragraph of this judgment.The accused denied thesame.In order to prove the case, on the side of the prosecution, 20witnesses were examined, 24 documents and 4 material objects were marked.Out of the said witnesses, P.W.1 is the wife of the deceased.P.W.2 is the mother of the deceased, who have vividly spoken about theoccurrence as eye witnesses.P.W.3 is the neighbour of the deceased, who has stated that at the time of occurrence, he heard a hue and cry from the houseof the deceased.When he went there, he found the deceased was in a seriouscondition in a pool of blood.Then, he arranged for ambulance to take thedeceased to the hospital.P.W.4 has turned hostile and he has not supportedthe case of the prosecution.He has statedthat on receiving information about the occurrence, he rushed to the place ofoccurrence, arranged for ambulance and took the deceased to the hospital.P.W.6 has spoken about the preparation of the observation mahazar, the roughsketch and the recovery of the bloodstained earth and sample earth from theplace of occurrence.P.W.7 has turned hostile and he has not supported thecase of the prosecution.P.W.8 has also not stated anything incriminatingagainst the accused.P.W.9 has spoken about the arrest of the accused 1 and3, the confession made by the first accused and the consequential discoveryof the aruval.P.W.10 is the learned Judicial Magistrate recorded the dyingdeclaration.He has vividly spoken about the same.4.1. P.W.11 ? Dr.Samiappan has stated that at Virudhunagar Hospital atabout 12.30 a.m. on 20.07.2009, the deceased was brought in 108 ambulance service by his wife for treatment and after first aid treatment, he referredthe deceased to the Government Rajaji Hospital.P.W.12 is the Doctor, whoconducted autopsy on the body of the deceased.He has spoken about the same and his final opinion regarding the cause of death.P.W.13 is the Head Clerkof the Magistrate Court, who forwarded the material objects for chemicalexamination.P.W.14 the Head Constable attached to Mallanginaru Police station has stated that he gave intimation to the police that the deceasedwas admitted in the hospital.P.W.15 is the Constable, who carried the bodyfor postmortem.P.W.16 is the Head Constable, who registered the case.P.W.17 has stated that he accompany P.Ws.1 and 2 to take the deceased to the hospital.P.Ws.18 and 19 have turned hostile and they have not supported thecase of the prosecution in any manner.P.W.20 is the Inspector of Police hasspoken about the entire investigation done by him and final report filed.When the incriminating materials were put to the accused underSection 313 Cr.P.C., they denied the same as false.However, on their side,they did not choose to examine any witness nor marked any documents.Their defence was a total denial.Having considered all the above, the trial Courtconvicted all the three accused.We have heard the learned counsel for the appellants, the learnedAdditional Public Prosecutor for the respondent and we have also perused therecords carefully.The learned counsel for the appellants would submit that there arelot of flaws in the case of the prosecution, which would create doubts in thecase and accordingly the appellants are entitled for acquittal.He wouldsubmit that though it is stated that from the Virudhunagar Hospital at about4.30 a.m., the deceased was taken to the Government Rajaji Hospital, theDoctor, who admitted him has not been examined.Thus, according to him, theearliest information passed on to the Doctor had not been produced.He wouldfurther submit that whether the deceased was in a fit state of mind, at thetime, when he was admitted or not has been suppressed, because of the non production of the Accident Register as well as subsequent treatment recordsmaintained in the hospital.The learned counsel would submit that P.Ws.1 and2 would not have been present at all at the time of occurrence.He wouldfurther submit that there was no motive at all for these accused to committhe murder of the deceased.In the alternative, the learned counsel wouldsubmit that at the most, so far as the first accused is concerned, theoffences would fall only under Section 304(i) IPC and the others areconcerned, absolutely, there is no evidence, he has contended.The learned Additional Public Prosecutor would vehemently opposethis appeal.According to him, there are no reasons to reject the evidencesof P.Ws.1 and 2, whose evidences are highly convincing and cogent.He would further submit that the dying declaration recorded by the learned JudicialMagistrate cannot be discorded for any reason, wherein the deceased hadcategorically stated that these three accused attacked him.He would furthersubmit that at the earliest point of time, when the deceased was taken to theGovernment Hospital, Virudhunagar, the deceased told him that he was attacked by three known persons.Thus, the medical evidence also corroborates the eyewitness account.Thus, according to the learned Additional PublicProsecutor, the prosecution has clearly proved the involvement of theseaccused.Thus, the conviction and sentence do not require any interference atthe hands of this Court.We have considered the above submissions.The alleged occurrence had taken place at the house of thedeceased, i.e. on the pial.In our considered view,they can be believed though not fully but partly.P.Ws.1 and 2 have statedthat the accused 2 and 3 held the deceased tightly so as to facilitate thefirst accused to cut the deceased.If we look into the postmortemcertificate, it would go to show that there are number of injuries on thebody of the deceased.In our considered view, when two persons are holdingthe deceased so tightly, it would not have been possible for so many numberof injuries on so many parts on the body of the deceased.After the occurrence, P.Ws.1 and 2, had taken the deceased to thehospital.In Ex.P8, the deceased had stated that three accusedcame, out of whom, one was having a stick and he did not notice as to whatwas the weapon held by the other two persons.He has further stated thatwithin a fraction of time, the occurrence had taken place.He has made avery general statement that out of suspicion he was attacked.He has not atall stated that the accused 2 and 3 held the deceased.He has also notstated that the first accused cut him.The death was also not due to shock and hemorrhage due to theseinjuries.The first accused has got no history of anybad antecedents.Subsequent to the occurrence also, he has not committed any crime.Having regard to these mitigating as well as aggravatingcircumstances, we are of the view that sentencing the first accused toundergo rigorous imprisonment for seven years and to pay a fine ofRs.10,000/- would meet the ends of justice.In the result, the criminal appeal is partly allowed in thefollowing terms:(i) The conviction and sentence imposed on the appellants 2 and3/accused 2 and 3 are set aside and they are acquitted of all the charges.The fine amount, if any paid by them, shall be refunded to them.(ii) The conviction and sentence imposed on the first appellant/firstaccused under Section 302 IPC is set aside and instead, he is convicted underSection 304(i) IPC and sentenced to undergo rigorous imprisonment for sevenyears and to pay a fine of Rs.10,000/- (Rupees ten thousand only), indefault, to undergo rigorous imprisonment for two months.(iii) The trial Court shall take steps to secure the firstaccused/first appellant to commit him in prison to serve out the remainingperiod of sentence.2.The Inspector of Police Aruppukottai Taluk Police Station Mallanginaru, Virudhunagar District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .

Sections cited: Section 302 in The Indian Penal Code, Section 342 in The Indian Penal Code, Section 304 in The Indian Penal Code, Section 299 in The Indian Penal Code, Section 300 in The Indian Penal Code, Section 307 in The Indian Penal Code, Section 324 in The Indian Penal Code