JUDGMENT :

V. Sivagnanam, J.

(Common Prayer: Criminal Appeals filed under Section 374 Cr.P.C. to set aside the judgment dated 19.02.2015 made in Special S.C.No.154 of 2011 on the file of the III Additional District and Sessions Court, Salem by allowing these present Criminal Appeals.)

1. Challenge in these criminal appeals is the judgment dated 19.02.2015 passed in S.C.No.154 of 2011 on the file of the III Additional District and Sessions Court, Salem.

2. Crl.A.No.117 of 2015 is filed by Mathi @ Mathiazhagan/(A1) and Crl.A.No.187 of 2015 is filed by Selvam/(A2). The appellants, who were accused in S.C.No.154 of 2011 before the III Additional District and Sessions Court, Salem, was convicted and sentenced as under:

The aforesaid sentences were ordered to run concurrently. Challenging the said conviction and sentences, Mathi @ Mathiazhagan (A1) has preferred Crl.A.No.117 of 2015 and Selvam (A2) has preferred Crl.A.No.187 of 2015.

3. The facts leading to the filing of these cases, are as under:

3.1. The case of the prosecution is that, A1 namely Mathi @ Mathiazhagan was working as staff in the fair Price Shop (Ration Shop) and A2 namely Selvam is a friend of A1. It is alleged that A2 had prior enmity with the deceased, namely Raji @ Govindaraj, as both were members of two groups of the same political party. It is further alleged that, on 26.06.2006 evening, when the deceased came to Ration Shop, started quarrel with A1, questioning the irregularities in supply of rice and other items. It is further alleged that A1 instigated to kill the deceased/Govindaraj and A2, with an intention to cause the death of deceased/Govindaraj, fisted him forcibly on his left neck with his hand, which caused subarachnoid hemorrhage due to the blunt force injury on the neck and chest, and as a result, the said Govindaraj died immediately. It is further alleged by the prosecution that A2 had committed an offence punishable under Section 302 IPC and A1 had committed murder an offence punishable under Section 302 IPC r/w 109 IPC.

3.2. During trial, the prosecution examined 19 witnesses viz., P.W.1 to P.W.9 and marked 24 documents Ex.P1 to Ex.P24, with material object (M.O.1) and on the side defendce/ accused, they examined one witness Dr.Vallinayagam as defence witness D.W.1 and also filed 5 documents (Ex.D.1 to Ex.D.5).

3.3. The learned Sessions Judge, based on the oral and documentary evidence, relied upon the evidence of Raja (P.W.1), Kandasamy (P.W.2) and the evidence of Dr.Selvakumar (P.W.15) and found that the accused persons committed culpable homicide not amounting to murder and found them guilty under Sections 304 (ii) r/w 109 IPC and 304 (ii) IPC respectively and convicted the accused persons and imposed the sentence and fine as stated above.

3.4. In these appeals, the learned counsel for the appellants contented that the trial Court committed grave error in convicting the appellants for the alleged offences under Section 302 (ii) IPC and 302 (ii) IPC r/w 109 IPC. The learned counsel further contended that there was a contradiction between the complaint (Ex.P.1) and the oral evidence of Raja (P.W.1) and in the complaint (Ex.P.1), the complainant stated that Selvam (A2) used weighing stone and assaulted the deceased in his chest, but in his evidence, Raja (P.W.1) deposed that A2 fisted with hand on the chest of the accused and his neck. The vital contradiction has not been considered by the trial Court. Further, P.W.1 himself