JUDGMENT :

M. NIRMAL KUMAR, J.

1. The appellants/A1 and A2 were charged for the offences under Sections 302 r/w 34 and 506(ii) IPC. The trial Court, by its judgment dated 25.02.2014, though found the appellants not guilty for the offences under Sections 302 r/w 34 and 506(ii) IPC, found the appellants guilty for the offence under 304(1) I.P.C. and sentenced them to undergo 10 years RI each and to pay a fine of Rs. 1,000/- each in default to undergo 6 month SI each. Against the said conviction and sentence, this present appeal has been filed.

2. It is represented by the learned counsel appearing for the appellants that during pendency of the appeal, A2 in this case passed away on 10.02.2015. This fact was not denied by the learned Government Advocate (criminal side) also. In view of the same, this appeal abates in respect of A2.

3. The case of the prosecution briefly stated as follows:

(i) The deceased Kalifullah is the brother of PW-1 Mohammed Meeran. PW-5 Rajitha Begam is the wife of the deceased Kalifullah. Four months prior to the occurrence, the deceased came to the house of PW-1 at Kuthbisha Nagar, Trichy for doing painting works. PW-2 Kalifulla is the brother-in-law of PW-1 and he is also doing painting work. On 10.04.2013 at about 8.00 p.m. when PW-2 was standing near a tea stall, A1 came to the shop to get cigarette, deceased came there and demanded Rs. 100/- the balance of wage payable by A1 to him, for which, A1 replied that he has no money and slapped on his cheek and there was a quarrel. When the deceased abused A1 with filthy language, he punched the deceased with hands on his chest and flak and the deceased fell down and got up and went towards ‘Mandhai’ (a public place in the village). PW-6 Abdul Rahman, Rickshaw driver also saw the quarrel and then he went away. At that time, A2, who is the brother-in-law of A1 came there. A2 contacted PW-5, the wife of the deceased over phone and informed her that her husband was speaking filthy and abusive language and he is going to kill him and asked her to be ready with money and A1 and A2 went to mandhai. A1 kicked the deceased, when deceased fell down, trampled his neck and A2 also kicked him all over the body. On seeing this, PW-6 Abdul Rahman and PW-7 Sheik Mohammed tried to pacify the accused, for which the accused threatened them to do away. Thereafter, PW-2 went to the house of PW-1 to inform the occurrence. But, PW-1 was not in the house. Thereafter, he went to his house and slept away. On 11.04.2013, the next day, at 6.00 a.m. an auto driver informed PW-1 through phone that there was a dead body in Thennur mandhai and it appears that of his brother Kalifullah. PW-1 immediately rushed to Mandhai and on seeing the dead body, he identified that it is his brother Kalifullah. Thereafter, he called PW-2 and he came there and informed about the previous night occurrence. PW-1 and PW-2 went to Thillainagar Police Station and gave Ex.P1 complaint.

(ii) PW-14 Seran, Inspector of Police received the complaint registered a case in crime No. 87 of 2013 under Section 302 IPC and prepared Ex.P13, FIR. Thereafter, he went to the scene of occurrence, prepared Ex.P14 observation mahazer, Ex.P14 rough sketch in the presence of witnesses and recovered M.O.1 blood stained soil and M.O.2 sample soil under Ex.P4 mahazer. He examined the witnesses, recorded their statements. He conducted inquest over the dead body of the deceased Kalifullah. Ex.P15 is the inquest report and sent the dead body to the hospital through PW-12 Head Constable along with Ex.P5 requisition. At 13.00 hours, PW-14 arrested the accused in the presence of witnesses PW-11 Mohammed Asif and Kanikandan and recorded his confession statement and on the basis of the admissible portion of the confession statement Ex.P.11, he recovered M.O.3 mobile phone of A2 under Ex.P10 mahazer. He sent the accused for judicial remand and sent the material objects to the Court along with Form 95. He collected the call details of M.O.3 mobile p