Janarthanam, J.
1. This appeal is directed against the judgment dated 27-8-1984 of the Court of Session, Madurai North Division at Dindigul in Sessions Case No. 64 of 1984.
2. It arises from these facts :
(a) The scene village D. Kamakkapatti is within the limits of Devadanapatti Police Station. The occurrence took place on 28-9-1983 at about 9-30 a.m. One Muthiah (since deceased) is the son of one Karupa Thevar (who died on 4-8-1984 before commencement of the trial). P.Ws. 1, 2 and 9 are his brothers. One Raju Thevar is their maternal uncle. Accused 1, 2 and 4 are his children. Accused 3 is their maternal uncle.
(b) Raju Thevar borrowed a sum of Rs. 1,500/- from P.W. 2 one year prior to the occurrence. Six months thereafter, P.W. 2 advanced a further sum of Rs. 650/- to him for the purchase of five cents of house site in Arasamarathukadu. Raju Thevar neither returned the amount borrowed not sold the house site to P.W. 2, in spite of his persistent demand in this regard. A day prior to the occurrence, P.W. 2 went and demanded from Raju Thevar either for the return of the amount advanced or for the sale of the house site. But Raju Thevar took a defiant attitude and refused to comply with his request.
(c) At about 8 a.m. on the day of occurrence, P.W. 2 made arrangements for erecting a hut on the proposed site. At about 9-30 a.m. accused 1 to 3 came to the site, accused 1 and 3 arming with velsticks and accused 2 with soori knife. Accused 3 questioned the propriety of P.W. 2 in putting up a hut on the site. A wordy altercation ensued between P.W. 2 and accused 3, leading to a scuffle between P.W. 2 on the one hand and accused 1 to 3 on the other. P.W. 9, the deceased and their father Karuppa Thear emerged to the (sic) (scene) on hearing the hue and cry, from them. Accused 3 stabbed P.W. 2 on his back with M.O. 2 velstick. When accused 1 aimed a stab on him with M.O. 1 velstick, P.W. 2 went aside, pushed him down and bit his lower lip. Accused 2 stabbed P.W. 2 with soori knife on his right forearm. Accused 1 stabbed P.W. 9 with M.O. 1 on the left side of his chest. P.Ws. 2 and 9 took to their heels. At that time, accused 4 hurled a stone which hit on the left leg of P.W. 9. Accused 1 stabbed Karuppa Thevar on his right upper arm. He also stabbed the deceased on his left chest and flank with M.O. 1, besides the deceased being stabbed by accused 3 twice on his right flank with M.O. 2. P.W. 1 came to the rescue of the deceased. Accused 2 aimed a stab at P.W. 1 and he went aside the stab, in that process, landed on his middle, ring and little finger, besides causing an injury on the left forearm, on the deceased. The deceased fell down. Accused 4 attempted to throw a stone on the deceased. P.W. 1 prevented accused 4 from doing so. At that time, accused 2 aimed a stab on P.W. 1, which fell on the left thumb of accused 4 on his going aside. The deceased succumbed to the injuries on the spot and thereafter, the accused ran away from there.
(d) P.W. 1 gave Exhibit P.1 report to P.W. 16 Sub-Inspector of Police at 10.45 a.m. who in turn registered the case in Crime No. 149/83 under Sections 326, 307 and 302 I.P.C. He prepared express reports and sent and the same to the concerned officials. Exhibit P. 24 is the express F.I.R. sent to Court.
(e) P.W. 18, Inspector of Police, took up further investigation in the case. He made arrangements for the injured on both sides to be examined and treated in the Government Hospital. He sent the body of the deceased for purpose of autopsy.
(f) The doctor P.W. 8 attached to the Government Hospital, Periyakulam conducted autopsy over the body of the deceased. Exhibit P. 9 is the post-mortem certificate. He opined that the deceased would appear to have died of shock and haemorrhage due to injuries to the vital organs, heart and lung. He would further opine that injury No. 1 with the corresponding internal injuries is necessarily fatal.
(g) After completing the necessary formalities of investigation, P.W. 18 laid a report under S. 173 Cr.P.C. before the Judicial Second Class Magistrate, Periyakulam on 21-12-1983 for offences under Sections 323, 324, 326 and 302 read with S. 34 I.P.C. appeared to have been committed by accused 1 to 4.
3. The learned Sessions Judge, upon committal, framed charges as detailed below against accused 1 to 4. Firstly against accused 3 under S. 326 I.P.C.; Secondly against accused 2 under S. 324 I.P.C.; Thirdly against accused 1 under S. 326 I.P.C.; Forthly against accused 1 under S. 326 I.P.C.; Fifthly against accused 2 under S. 324, I.P.C.; and Lastly against accused 1 to 4 under S. 302 read with S. 34, I.P.C.
The accused when examined as respects the same, pleaded not guilty and claimed to be tried.
4. In proof of the charges, the prosecution examined P.Ws. 1 to 18, filed Exhibits P.1 to P.30 and marked M.Os. 1 to 42.
5. The accused, when questioned under S. 313, Cr.P.C. as regards the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. They did not choose to examine any witness on their side.
6. The learned Sessions Judge on perusal of the materials placed before him and after hearing the arguments of the learned counsel for the defence and the learned Public Prosecutor gave a finding that there was no prior concert or design among the accused to commit the murder of the deceased and that accused 1 to 4 are liable to be punished for their individual proved overt acts. Therefore, he found accused 3 and 4 not guilty and acquitted them of all the charges framed against them. He however found accused 1 guilty under S. 326, I.P.C. (two Counts) and under S. 302, I.P.C. and convicted and sentenced him to undergo rigorous imprisonment for eighteen months on each count for the offence under S. 326, I.P.C. and to imprisonment for life for the offence under S. 302, I.P.C. besides finding accused 2 guilty under S. 324, I.P.C. (three counts) and convicted and sentenced him to undergo rigorous imprisonment for one year on each count. He directed the sentences to run concurrently. Aggrieved by the conviction and sentence, accused 1 and 2 alone came forward with this appeal.
7. Learned Counsel for the appellants would make two submissions. They are;
(1) Even assuming for argument's sake that accused 1 was responsible for causing the injuries on the person of the deceased, as projected by the ocular witnesses, it cannot be stated that in the circumstances of the case, his act would squarely fall under anyone of the Clauses under S. 300, I.P.C. punishable under S. 302, I.P.C. and if at all his act would fall under Clause 8 of S. 320 I.P.C. for causing grievous hurt with dangerous weapon endangering the life of the deceased punishable under S. 326, I.P.C.
(2) Even though the conviction and sentence of accused 1 and 2 in respect of other offences are not challenged, leniency may be shown in the award of sentence on them in respect of those charges.
8. The testimony of ocular witnesses P.Ws. 1, 2 and 9 would reveal that accused 1 and 3 were responsible for inflicting certain stabs on the person of the deceased. Accused 1 stabbed the deceased on his left chest and flank with M.O. 1 while accused 3 stabbed him on his right flank twice M.O. 2 The deceased succumbed to the injuries sustained at the hands of accused 1 and 3. As adverted to earlier, learned Sessions Judge gave a definite finding that there was no prior meeting of minds between accused in causing the death of the deceased so as to attract the penal consequence in invoking the aid of S. 34 I.P.C. and the accused are individually liable for the overt acts caused. Learned Counsel for the appellants, on the face of such a finding and in the absence of medical testimony as to which of the overt acts of accused 1 and 3 resulted in the death of the deceased, would submit that the conviction and sentence of accused 1 for the offence under S. 302, I.P.C. is not sustainable in law, when especially accused 3 had been acquitted on the ground that he could not have shared the common intention of accused 1 in committing the murder of the deceased.
9. In support of such an argument, learned Counsel would draw the attention of the Court to the medical testimony available on record in the shape of the doctor P.W. 8 coupled with Exhibit P. 9 Post-mortem certificate. P.W. 8 found seven external injuries on the person of the deceased. Out of those seven injuries injuries Nos. 1 and 2 are correlatable to the overt acts of accused 1 while injuries Nos. 3 and 4 are correlatable to the overt acts of accused 3. The doctor on internal examination, found a fracture of the sixth rib 3' from the body of the sternum left side coinciding with injury No. 1, attributable to the overt act of accused 1. He did not at all state which act of accused 1 and 3 caused injuries to the vital organs heart and lungs. According to him, the deceased would appear to have died of shock and haemorrhage due to injury to vital organs, heart and lungs. In such a circumstance, it cannot be stated that the overt acts of accused 1 in causing the external injuries Nos. 1 and 2 could have caused injuries to vital organs, heart and lungs, resulting in the death of the deceased, as rightly contended by learned counsel for the appellants. Faced with such a situation, learned Public Prosecutor was unable to repel such an argument and there was no other go for him except to concede the same.
9A. The moot question that arises for consideration in such an eventuality is as to what is the offence that has been committed by accused 1 in inflicting external injuries 1 and 2 on the person of the deceased. The causation of injuries by means of a lethal and dangerous weapon like M.O. velstick on the left chest and flank of the deceased could be construed, in the circumstances of the case as injuries endangering the life of the deceased, fall in within Clause 8 of S. 320, I.P.C. The conviction under S. 302, I.P.C. and sentence of imprisonment for life imposed on accused 1 by the Court below are therefore not sustainable and instead, he is found guilty under S. 326, I.P.C. and convicted thereunder.
10. Once this position is reached, he has to be visited with penal consequences for the offences under S. 326, I.P.C. (three counts).
11. Coming to the question of sentence, learned Counsel would contend that since accused 1 had been in prison for more than four years and seven months on and from the date of his conviction and sentence by the Court below, ends of justice would be squarely met with by sentencing him to the period of imprisonment already undergone on each count under S. 326, I.P.C. Learned Public Prosecutor left the question of sentence to the discretion of the Court. We also feel that the said period of sentence already undergone would be sufficient and adequate in the circumstances of the case.
12. It is to be noted here that accused 2 had already undergone sentence of rigorous imprisonment for a period of 33 days on and from the date of his conviction by the Court below till up to the date of his release on bail. Sentencing him to the period of imprisonment already undergone by him, in addition to imposing a fine of Rs. 300/- (Rupees three hundred only) on each of the counts under S. 342, I.P.C. (three counts) would not be besides justice.
13. In the result, the conviction under S. 302, I.P.C. and sentence of imprisonment for life imposed on accused 1 by the Court below are set aside. Accused is found guilty under S. 326, I.P.C. (three counts) convicted thereunder and sentenced to the period of imprisonment already undergone on each count. The conviction of accused 2 under S. 324, I.P.C. (three counts) is confirmed. However, he is sentenced to the period of imprisonment already undergone, besides imposing a fine of Rs. 300/- (Rupees Three hundred only) on each count and in default to undergo rigorous imprisonment for one month. Time for payment of fine is one month from the date of receipt of the records by the Court below.
14. Subject to the above modification, this appeal is dismissed.
15. Order accordingly.