important point
When all accused are charged of same offence and some of them are acquitted, it would be proper to punish the rest under section 304 Part I instead of section 302.

judgment

C.K. Thakker, J. —

1.Leave granted.

2.The present appeal is filed against judgment and order passed by the High Court of Madras (Madurai Bench) on August 21, 2006 in Criminal Appeal Nos.33 and 36 of 1998 by which it partly confirmed the order of conviction and sentence recorded by I Addl. District Judge-cum-Chief Judicial Magistrate, Tiruchirapalli on December 8, 1997 in Sessions Case No. 8 of 1997.

3.The facts of the case are as under:

4.Seven accused were prosecuted for various offences punishable under Sections 302, 307, 326 and 341 read with Sections 148 and 149 of the Indian Penal Code (IPC). The case of the prosecution was that all the accused and deceased Peiyakaruppan @ Chinnadurai belonged to the same village Santhapuram. Two years prior to the occurrence, deceased Chinnadurai had given evidence in a Court of Law against Veerabathran-accused No.2 and in favour of Maruthairaj-PW2 in a criminal case. In connection with a water dispute, there was a civil case and in that civil dispute also, the deceased had given evidence against the accused party. The parties were also on inimical terms in connection with irrigation of agricultural lands. On May 27, 1995, at about 3.30 p.m., PW2-Maruthairaj-complainant was standing in front of his house and at that time, Marimuthu-accused No.1 went near the complainant and abused him in filthy language. Deceased Chinnadurai, father of PW2-Maruthairaj, along with other family members, proceeded to Somarasampet Police Station and lodged a complaint relating to the said incident. At about 4.30 p.m. on the same day at Tiruchy-Vayalur Road, near Ambedkar Colony Junction, according to the prosecution story, all the seven accused persons with common object of committing murder of deceased Chinnadurai, attacked him with aruval, bichuva, knife and other lethal weapons. In that attack, Chinnadurai died instantaneously due to multiple injuries. The accused also caused injuries to complainant Maruthairaj-PW2. FIR was lodged, being Crime No. 229 of 1995 on May 27, 1995. After usual investigation, charge was framed against the accused persons and the matter was committed to a Court of Sessions.

5.The trial Court, by a judgment and order dated December 8, 1997, convicted the accused persons and ordered them to undergo different sentences as mentioned in the operative part of the judgment. Being aggrieved by the said order, all the accused preferred appeals. The appeals were partly allowed by the High Court. Accused Nos. 4, 6 and 7 came to be acquitted by the High Court extending benefit of doubt, while accused Nos. 1, 2, 3 and 5 (appellants herein) were convicted for offences punishable under Section 302, IPC for causing death of Chinnadurai. Accused No.1 was also convicted for an offence punishable under Section 326, IPC for causing grievous hurt to PW2-Maruthairaj. Being aggrieved by the said order, the appellants have approached this Court.

6.Notice was issued on January 25, 2007. The office was directed to place the matter for final disposal and accordingly, the matter has been placed before us.

7.We have heard learned counsel for the parties.

8.The learned counsel for the appellants submitted that when three accused (accused Nos. 4, 6 and 7) were acquitted by the High Court, it committed an error of law in convicting the remaining accused. The High Court, ought to have appreciated that when the Court observed that the prosecution had not come forward with true and complete facts and a part of the story had not been believed, it adversely affected the genesis of the incident and it ought to have acquitted all the accused. It was submitted that so-called dying declaration of PW2-Maruthairaj was rightly not treated as dying declaration as he survived. In view of the said fact, First Information Report (FIR) should have been totally discarded as certain names were sought to be added therein. The High Court, on that basis, granted benefit of doubt to three accused, but it went wrong in convicting the