Chellan, Mosai, Chinniah and Rathinamani, Appellants in C.A. 809/89) Raju (Juvenile Accused), Appellant in C.A. 805/89 vs State

M. Karpagavinayam, J.—Challenging the conviction and sentence imposed upon the appellants in C.A.No.809 of 1989 for the offences,

under Sections 147. 148. 324, 302. 326. 323 and 341 I.P.C. and upon the appellant in C. A.No.805 of 1989 for the offences under Sections

147 and 324 I.P.C, these appeals have been filed.

The case of the prosecution is as follows-

(a)P.W. 1 Dasan is the resident of Poovankodu Perum Pallathu Vilai village. The deceased Silvans is his son. P.W.4 Thomas is the elder brother

of P.W. 1. P.W.3 is closely related to P.W.1. The first accused Chellan. second accused Mosai and juvenile accused Raju are the sons of

Chinnaiyan, the third accused. The fourth accused Rathinamani is the cousin of the first accused. The fifth accused Asaiyan is closely related to the

first accused.

(b)On 29.12.1984 at about 8.00 p.m., P.W.1 Dasan and his son Silvans after attending the work in their coconut thope at Surulodu came back

home. While they were walking along the channel near the house, all the appellants/accused armed with dangerous weapons waylaid them. The

first accused Chellan attacked P. W. 1 with vettu kadu on the left side of the neck which fell on his shoulder. On seeing this, the deceased Silvans

attempted to prevent the attack by shouting not to cut any more But. the first accused attacked him also by inflicting injuries on his head. The

juvenile accused Raju, who is the appellant in C.A.825 of 1989. also attacked the deceased with vettu katlu and inflicted injuries on the left wrist

of the deceased. As a result of these injuries, the deceased fell down with bleeding injuries. The third accused with vettu kathi assaulted on the

forehead of P.W.1 and caused injury. At that point of time, in order to see that he should not escape, the first accused Asiayan caught hold of

P.W.1''s hip by standing behind. At this stage, Gnanampal, P.W. 14, wife of the third accused Chinnayan. came with a stick. The fifth accused

Asiayan snatched the said stick from her and attempted to attack the prosecution witnesses. In the meantime, the said attack fell on the accused

also, with the result, the accused sustained injuries. This occurrence was witnessed by P.W.1, who is the injured witness and P W.2 Kanakaraj.

P.W.3 Albert John and Muthunayagain, brother of P.W 1 Immediately, they arranged for a taxi and the victim/deceased was taken to the

Thiruvattar Police Station at 9.00 p.m. P.W.21 Sub Inspector of Police recorded the complaint and obtained a signature. Ex.P1 is the complaint.

The victim/deceased was, thereafter, sent to Nagercoil Government Hospital for treatment.

(c)P.W.7 Dr. Karunakaran attached to Nagercoil Government Hospital examined the victim/deceased Silvans and found injuries on the right arm,

head and left wrist. He issued Ex.P8 wound certificate. He also examined P.W. 1 and found injuries on the left shoulder, forehead and left hand

finger. He issued Ex.P-9 wound certificate. Since the condition of the victim/deceased was so sensuous, he was referred to the Palayamkottai

Hospital. P.W.8 Dr. Alagesan, in the meantime, took X-ray of the skull of the deceased and gave Ex.P10 X-ray and Ex.P 11 report. P.W.9 Dr.

Arunachalam gave treatment to the victim/deceased and he also conducted operation on him. Despite the best treatment, the deceased died at

9.00 a.m. on 31.12.1984.

(d)In the meantime, P.W. 18 Head Constable received complaint from the accused on 29.12.1984 at about 11.00 p.m. Since the accused

Chellan. Mosai, Chinnaiyan, Rathinamani and Asaiyan and P.W. 14 Gnanambal were found with injuries, they were sent for the treatment. The

complaint given by the accused was registered in Crime No.287/84. The First information Report is Ex.P24 and the complaint is Ex.P25. P W.12

Dr. Kumarasamy attached to Kulasekaran Government Hospital, examined all the accused and P.W.14 Gnanambal and gave treatment. He issued

wound certificates, Ex.P 15 for the second accused, Ex.P 10 for the juvenile accused Raju. Ex.P 17 for the third accused Chinnaiyan. Ex.P18 for

the first accused Chellan and Ex.P19 for P.W. 14 Gnanambal. According to him, injuries sustained by them are only simple

(e)P.W.21, the Sub Inspector of police went to the Nagercoil Government Hospital at about 11.30p.m. on 29.12.1984 and recorded the

statement Ex.P27 from the victim/deceased. He also took up investigation in Crime No.287/84. which was registered on the complaint of the

accused. But, P.W.21, on going through the statements of the witnesses, found that the case of the complaint given by the accused was false.

Therefore, the case was referred as a mistake of fact.

(f)On 30.12.1984 at about 4.00 p.m., P.W.21 arrested the second accused Mosai. the third accused Chinnaiyan and the fourth accused

Rathinamani and recorded their confession. In pursuance of their confession, vettu kathi. three in numbers, were recovered from their house.

Exs.P6 and P7 are the mahazars.

(g)P.W.17, Constable attached to the Palayamkottai Government Hospital, received the death intimation on 31.12.1984 at about 10.15 a.m. She

informed this to Thiruvattar Police. On receipt of the death intimation at about 1.30 p.m. on 31.12.1984. P.W.21 altered the offence into one u/s

302 IPC. in the First Information Report, and sent the Express Report Ex.P28 to the Court as well as to the higher officials

(h)P.W.22. the Inspector of Police on receiving the Express Report took up further investigation and went to the Tirunelveli Hospital and received

the death intimation He conducted inquest at 10.00 p.m. examined the witnesses P.W. 1. 2 and 3 and one Muthunayagam. Ex.P29 is the inquest

report. He handed over the body of the deceased to the Police Constable for taking the same to the Doctor for conducting post-mortem

Thereafter, he came to the scene of occurrence and examined the other person. On 3.1.1985, juvenile accused Raju was arrested.

(i) P.W.11. Dr. Balakrishnan on receipt of requisition Ex.P13 from the Inspector of Police, conducted post-mortem at 10.45 am on 1.1.1985. He

found the following injuries.

1)5.cm. long sutured incised wound on the outer aspect of right upper ami below the shoulder joint. On opening, it was bone deep and had cut

the muscles and bone (humerus) partially.

2)11 cms. long sutured incised wound on the top of the head left side of the scalp. On removing the sutures, it was bone deep and had cut the

muscles at site and had cut the vault of the skull partially.

3) 8 cm. long sutured incised wound on the right parietal region of the scalp.

On dissection: It was found to be bone deep and had cut the vault of the skull. Obliquely to a length of 8 cms. On further examination, extradural

haematoma occupying the whole of parietal and temporal regions on the left side and the dura matter was also found cut. It has also pierced the

brain matter on the right side.

4)1.5 X 1.5 cms incised wound above the left wrist (Defence would).

Other findings

a) Heart: All chambers contained a little blood.

b) Lungs: Pale

c) Liver, spleen and kidney : Pale.

d) Stomach : Empty

e) Bladder: Empty

f) Brain : Pale.

He issued Ex.P14 post-mortem certificate. He opined that the deceased would appear to have died of shock and haemorrhage due to multiple cut

injuries sustained by him.

(j) P.E.22 continued further investigation and arranged MOs to be sent for chemical analysis through Court. P.W. 15, the Court Clerk received the

MOs and sent the same for the chemical analysis along with requisition Ex.P21 and Ex.P-22 is the chemical report and the Serologist''s report is

Ex.P23. P. W.22. the inspector of Police completed the investigation and filed the charge sheet on 20.4.1985 for the offences u/s 302. 147.

148.149.307.326.341 and 323 I.P.C.

On being committed, the case was tried by the trial court. The prosecution examined the prosecution witnesses P Ws.l to 22 and marked

Exs.P1 to P30 and also marked M.Os.1 to 8.

When the accused were questioned with reference to the materials available against them, the accused would state that they have no complicity

in the offences, whereas they were attacked in their house by the prosecution witnesses. However, to prove the said plea no witnesses have been

examined on the side of the defence.

On consideration of the materials placed before the court, the trial Court found the accused 1 to 4 and juvenile accused guilty of the various

offences as referred to above. However, it acquitted the fifth accused, Asaiyan.

The trial Court found the first accused guilty of the offences u/s 148, 324,302 and 341 of IPC, the second accused guilty of the offences u/s

148, 326, 341 of IPC, the third accused guilty of the offences under Sections 148, 324. 341 of I.PC. the fourth accused guilty of the offences u/s

323, 341 of IPC. and the juvenile accused Raju guilty of the offences u/s 147, and 324 of I.P.C. Punishments imposed are rigorous

imprisonment for one year for the offence u/s 148 I.PC. fine of Rs.250/- for the offence u/s 324 I.P.C, six months rigorous imprisonment for the

offence u/s 147 I.P.C, fine of Rs.200/- for the offence u/s 323 I.P.C and life imprisonment for the offence u/s 302 I.P.C However, there is no

separate sentence for the offence u/s 341 I.P.C

Mr. M. Ravindran, learned senior counsel appearing for the appellants in both the appeals would contend that the prosecution has not presented

the true version before the trial court. Admittedly, the five accused persons and P.W. 14, who is none other than the wife of the third accused,

sustained injuries and pursuant to that, they had also given a counter complaint which had been registered in Crime No.287/84 and consequently,

they were sent for treatment to the hospital. Even then, the prosecution failed to offer any explanation for the injuries sustained by the accused.

Even according to some of the witnesses of the prosecution, one Gurudoss, Sub Inspector of Police is the close relative of P.W.1. It was

suggested to P.W. 1 and the Investigating Officer that the complaint in this case, Ex.P1 has been fabricated at the instance of the said Gurudoss.

who accompanied P.W.1 to the police station and as such, the contents of the complaint given by P.W.1 cannot be given any reliance.

Furthermore, P.Ws.2 and 3 are the chance witnesses, who had no reason to come to the place of occurrence so as to witness the instance.

Admittedly, they are staying far away from the house of P.W.1. Though the scene of occurrence is surrounded by several shops and houses, none

of the neighbors had been examined to corroborate the interested testimony of P.Ws 1 to 3. The trial Court, in fact, disbelieved the evidence

relating to the recovery of weapons and also rejected the evidence as against the fifth accused, who got an acquittal. Further more, all the accused

have been acquitted in respect of offence u/s 149 IPC. as it was found that there is no evidence to show mat all the persons came to the scene in

furtherance of common object to commit murder of the deceased and ultimately, the accused were convicted only in respect of their individual

acts. Such being so. it cannot be contended that the first accused alone had intention to cause the death of the deceased.

The learned senior counsel further contended alternatively that even assuming that the prosecution case is true, since there are materials placed

before the court through the prosecution witnesses themselves that there are injuries on both the sides due to the group clash, ultimately the first

accused can never be convicted for the offence u/s 302 IPC. but at the most, he can be convicted for the offence u/s 304 (Part 1) IPC He also

contended that P.W. 1 did not utter am word either during the chief examination or cross examination about the motive though the same was

elicited during the re-examination. In short, the contention of the learned senior counsel appearing for the appellant is that even if the entire

prosecution case is admitted to be true, the conviction that may be imposed on the first appellant could be only for lesser offence, as it has been

established that he inflicted injury on the deceased in a group clash by way of private defence and at the most, he exceeded his right of private

defence and consequently, he could be convicted for the offence u/s 304 (Part l) I.P.C.

Arguing contra, Mr. Elango. learned Government Advocate, would vehemently contend that the prosecution through three eye witnesses had

established the case of the prosecution by giving consistent version with reference to the motive as well as the occurrence. There is no reason for

them to implicate the accused persons. Non-explanation of the injuries sustained by the accused would not affect the case of the prosecution, in

view of the fact that the injuries found on the accused are simple. Furthermore, even according to the defence, the accused sustained injuries not at

the place of occurrence, namely, the place near to the house of P.W. 1. but in some other place. namely, in the house of the third accused and

therefore, the injuries sustained by the accused in some other place need not be taken into consideration by this Court to decide the question as to

whether the injuries on the accused have been properly explained or not. He also cited Ayodhya Ram v. State of Bihar (1999 SCC Cri 584) for

the said proposition

The Supreme Court in the said decision has held that it is well settled that the prosecution is not bound to explain each and even, injury on the

accused persons irrespective of nature of the injury and if in respect of some minor injury'', no explanation was offered by the prosecution, the

prosecution case would not fall on that score.

He would further submit that the evidence at P. Ws. 1 to 3 has been well corroborated by the medical evidence adduced by P Ws. 7.8.9. and

11 through whom Exs.P8. P9. PR). PI) and P14 respectively have been marked He would also submit that the motive aspect has not been spoken

to by P.W.1 initially. He has given clear details about the motive in re-examination. Furthermore, the particulars about the motive have been clear

mentioned in the complaint Ex.P1

The further contention of the learned Government Advocate is that the reasonings given by the trial Court for acquitting the accused in respect

of offence u/s 149 and acquitting the fifth accused would not apply to the other accused in the appeals before this Court and as such, conviction

imposed upon them has to be confirmed.

We have heard the counsel for the parties and given our thoughtful consideration to the rival contentions.

At the outset, we wish to mention that the prosecution has given clear version in relation to the motive even in the complaint Ex.P1. According

to P.W.1, on 23.8.1984 when he went to the house of P.W.4 Thomas, his brother, he happened to meet the fourth accused Rathinamani. P.W.4

Thomas had leased out a plantain field in favour of Rathinamani for a sum of Rs.5000/-. Out of Rs.5000/-. it is stated that Rs.l5/-. the balance was

yet to be paid When P W 4 demanded Rathinamani the fourth accused to give that balance. Rathinamani gave evasive answer. On noticing this.

P.W.1, in a threatening note, insisted him that at any cost he had to pay Rs.15/- to his brother This provoked the fourth accused Rathinamani to

challenge by stating that ""we will see in our village and I will finish you and your members of the family'''' This part of the evidence has not only

been found in the complaint, but also spoken to by P.W.4. the brother of P.W.1. Therefore, there is nothing to indicate that the statement given by

P W 1 in the re-examination relating to the motive is a belated and unbelievable one In those circumstances, in our view, the prosecution

established the aspect of the motive as projected by the prosecution.

It is well settled that in criminal cases, more particularly when the eye witnesses are available, even if the prosecution has failed to prove the

motive aspect, it would not affect the veracity of the case of the prosecution provided that the eye witnesses are reliable. Therefore, to say that the

motive has not been established or the prosecution witnesses has come with a new story relating to the motive is of no avail. Furthermore, as stated

earlier, in the present case, we have come to the conclusion that the motive part also has been established But. it is to be noticed that even if the

motive is established, if we come to the conclusion that eye witnesses are not reliable, then it goes without saying that the prosecution would fall to

the ground. Therefore, it is our endeavour to make a careful scrutiny of the ocular testimony rendered by P.Ws. 1 to 3.

P.W.1, the injured eye witness, is the father of the deceased. According to him. when they were walking along the road towards their home,

they were way laid by all the accused persons, who were standing with Vettu Kathi. sticks, etc. Immediately, the first accused with Vettu Kathi

began to attack P.W. 1 aiming at his head, but the same fell on his left shoulder. On noticing this, when the deceased intervened asking the accused

not to attack P.W.1, the first accused with Vettu Kathi inflicted very serious injuries on his head by attacking twice On receipt of these injuries, he

fell down with bleeding injuries. Thereafter, the juvenile accused Raju. appellant in C.A. No.825 of 1989, also attacked the deceased. That apart,

the appellants 2 and 3. Mosai and Chinnaiyan also attacked the deceased and caused injury on various parts of the body, while the fifth accused

Asaiyan had caught hold of the deceased by his hip and Rathinamam. the fourth accused attacked with stick and caused injury on the forehead of

P.W.1.

This aspect of the evidence has been clearly spoken to by P.W. 1 in consonance with the contents of the First Information Report, which has

been fully corroborated by the evidence of P.Ws. 2 and 3 Besides this, the medical evidence adduced by P.W.7. who examined P.W. 1 and the

deceased. P.W.9. who operated the deceased before his death and P W.8. who took X-rays of the body of the deceased and P.W.1I. who

conducted post-mortem would corroborate these witnesses When nothing has been elicited during the course of the cross examination of all these

witnesses so as to disbelieve the evidence of the ocular witnesses, which is so natural, it cannot be contended that the prosecution has not given

true version.

The occurrence had taken place at 8.00 p.m. Immediately. P.W. 1 with the help of other witnesses took the injured and the deceased to

Tiruvattur Police Station where P.W.21. Sub Inspector of Police on receipt of complaint from P.W.1 registered a case in Crime No.286/84 for

the offences u/s 326 IPC. P.W.21 also took immediate steps to refer the injured and the deceased to the Nagercoil Government Hospital, where

immediate treatment was given to both of them. Since the condition of the deceased was precarious, he was, thereafter, shifted to Tirunelveli

Medical College Hospital. In the meantime, in Nagercoil Hospital an operation was conducted on the deceased and two days later i.e. on

31.12.1984, the deceased died. The case which was originally filed u/s 326 IPC. was altered into one u/s 302 IPC. Under these circumstances, it

cannot be contended that there is delay on the part of the witnesses to give complaint to the police.

Both the Investigating agency as well as the Doctors took immediate and effective steps to save the life of the deceased, but unfortunately, two

days later, the deceased died. In such circumstances, the testimony of P.W.1 to 3 can be considered to be clear and unimpeachable. Mere

submission that P,Ws.2 and 3 are chance witnesses and therefore, they could not be believed, would not. in our view, merit acceptance, because

the names of the witnesses P.Ws.2 and 3 have been mentioned in Ex.P1 the complaint itself.

It is true that one of the witnesses is close relative to P.W. 1 It is also suggested to P.W.2 that he is working under P.W. 1 Even assuming that

P.Ws.2 and 3 are interested in P.W.1 or in the deceased, that would not be a ground to reject the evidence of P.Ws.2 and 3 in toto. At the most,

as laid down by the Supreme Court, the evidence of interested witnesses has to be analysed with care and caution and in this case, not only the

evidence of P.Ws.2 and 3, but also the evidence of P.W.1 which is being corroborated by materials referred to above do not suffer from any

infirmity

It is contended that the accused persons had given counter complaint and they also sustained injuries at the hands of P.W.1, the deceased and

others. There is no dispute over the fact that the accused had given counter complaint. It is also submitted that the accused told the Doctor. P.W.

12, that the accused were attacked in their house. But. this would not help the defence in any way for the reason that Exs.P24 and P25. namely,

the First Information Report and the complaint respectively would clearly show that the third accused in his complaint admitted that the occurrence

had taken place opposite to the house of P.W.1 where the accused sustained injuries.

Besides this, it is also pointed out by the learned Government Advocate that when the accused, according to their statement made before the

Doctor, sustained injuries at the hands of the prosecution party at 7.30 opposite to their house at Vallikulam village, it is not necessary for the

prosecution to explain those injuries, as the injuries sustained by the accused would not have been inflicted by the prosecution party during the

course of the same transaction.

In the light of the above aspect, while taking into consideration Exs.P24 and P25 and also the statement given by the accused during the

questioning u/s 313 Cr.P.C. it is quite clear that the accused has not come out with consistent defence plea. But. it is ruled by this Court as well as

by the Apex Court that the prosecution cannot gain strength over the weakness of defence which takes contrary stand and it is for the prosecution

to stand on its own legs and prove its case by the acceptable and creditable materials beyond reasonable doubt. Therefore, mere inconsistent

stand taken by the defence as pointed out by the learned Government Advocate would not be a ground to straight away accept the case of the

prosecution. Hence, we need not give any credence or importance with reference to the contrary plea to the case of the defence.

The trial Court has given a specific finding that there is no material to hold that the accused persons came to the scene in furtherance to the

common object of committing murder of P.W. 1 or the deceased and consequently, the accused have been convicted only for their individual acts.

Though we are not convinced about the reasonings for acquitting the accused for the offence u/s 149. IPC. we are not inclined to disturb the said

finding, since there is no appeal by the State against the same. So in the light of the finding given by the trial Court, with reference to the absence of

the materials and with regard to the common object, we have to see whether the occurrence had taken place as projected by the prosecution and

in the occurrence the deceased and P.W. 1 sustained injuries or both the parties sustained injuries due to the group clash.

Though we do not accept the argument of the learned senior counsel appearing for the appellants that the prosecution has not come forward

with a true version, we are not able to accept the entire version of the prosecution, since the prosecution is not consistent with reference to the

injuries sustained by the accused. It is true that each and every injury on the accused need not be explained by the prosecution, especially when the

injuries are found to be simple. But. it shall be noticed that immediately after the occurrence was over, all the accused went to the police station

along with P.W.14 who is none other than the wife of the third accused with injuries and gave complaint to P.W. 18. the Head Constable. The said

complaint was registered in Crime No.287/84 which was referred as a mistake of fact on the next day itself. The materials available on record as

submitted by some of the witnesses are that the accused sustained injuries only at the place of occurrence in the course of same transaction and not

at the house of the accused as projected by the defence counsel on the strength of 313 Cr.P.C. statement.

As a matter of fact, even in the First Information Report, it has been stated that some of the accused sustained injuries. The injured accused

Chellan, the first accused, juvenile accused Raju and Gnanambal sustained injuries in the course of same transaction. P.W.1 in the chief

examination would admit that Gnanambal, P.W. 14 sustained injuries. It is also noticed that P.W.1 told the Sub Inspector of Police. P.W.21 that

P.W.1''s brother Mr. Muthunayagam beat the accused and also P.W.2 would admit that Gnanambal sustained injuries in the course of the

occurrence. From the evidence of P.W. 1, it is clear that he gave a statement to the P.W.21, who had stated to P.W.22 that Muthunayagam. the

brother of P.W. 1 and Albert John, P.W.3 armed with the thadi went near the accused. P.W.3 also would state that all the accused sustained

injuries at the scene of occurrence and after receipt of those injuries, the accused took to their heels.

So, these things would show that all the accused persons sustained injuries only at the scene of occurrence and after the incident was over, the

accused immediately rushed to the police station and gave a counter complaint. Even the final report given by P W.21 in respect of counter

complaint shows that these injuries were inflicted by the prosecution party at the same time and at the same place. This would show that the entire

occurrence had taken place as a result of group clash. In such circumstances, we have to see whether the first accused can be convicted for the

offence u/s 302 I.P.C., especially when the trial Court found that there are no materials as against all the accused in respect of S.149 I.PC. The

post-mortem certificate and the evidence of P.W. 11 would clearly show that the first accused gave a brutal attack on the head of the deceased.

Subsequent to the attack, the deceased was taken to the police station and from there he was referred to Nagercoil Hospital. There, the treatment

was given and operation was also conducted. He died only two days later at Tirunelveli Hospital. Furthermore, P.W.21 went to the Nagercoil

Government Hospital and recorded the statement of the deceased which has been marked as Ex.P27. Since the deceased died subsequently, the

same was marked as dying declaration. This was rejected rightly by the trial Court, but however, the fact remains that the injuries are such that they

had not caused immediate death. He was hospitalised for about three days.

So in those circumstances, in the light of the peculiar facts and circumstances of the case, when both the parties attacked each other with

weapons, it could be gathered from various materials available on record that the first appellant could be convicted only for the offence u/s 304

(Part 1) I.P.C.. since, in our view. Section 300 Exception (4) of IPC. would get attracted

As we indicated above, there was a mutual free fight between the parties which must be a sudden fight upon a sudden quarrel flowing from the

earlier incident which is mentioned in the counter-complaint and in this occurrence, both sides attacked each other. If it is so. there was no

premeditation. On similar facts, the very same view in respect of the nature of the offence committed by the accused has been expressed by the

Apex Court in State of H.P. v. Wazir Chand(1978 S.C.C. (Cri.)58 and State of Bihar v. Mohammad Khursheed (1971 S.C.C. (Cri)871.

As laid down by the Apex Court in the above decision, once it is a finding that there is a clash between the accused party on the one side and

the deceased party on the other side at the same tune and at the same place of occurrence, then it shall be held that Exception (4) of Section 300

I.P.C. would be attracted Therefore, we have no hesitation to hold that the first appellant cannot be convicted for the offence u/s 302 I.P.C, but he

is liable to be convicted only for the offence u/s 304 (Part ""l) I.P.C Consequently, the conviction and sentence imposed upon him u/s 302 IPC are

set aside. He is liable to be convicted for the offence u/s 304 Part (1) IPC and sentenced to undergo rigorous imprisonment for seven years

With regard to other accused, as the trial Court found them guilty in respect of their individual acts, the conviction and sentence imposed upon

them for various offence are liable to be confirmed. Accordingly, they are confirmed.

Now, it is pointed out by the learned Government Advocate that since the accused 2 to 4 are convicted with maximum punishment of two

years, they are entitled to the remission as provided in various Government Orders. Therefore, the trial Court is directed to take steps to secure the

custody of the first accused alone to undergo the remaining period of sentence.

In the result, both the appeals are dismissed with the above modifications.