P.S. Kailasam, J.
64. On a difference of opinion between two learned Judges of this Court, the appeal has been placed before a Full Bench on the orders of the learned Chief Justice.
65. At the outset, the learned Counsel for the appellants as well as the Public Prosecutor expressed a doubt as to the-legality of the posting of the appeal before the Full Bench. Mr. Vanamamalai, the learned Counsel for the appellants pointed out that under the amended Section 392 of the Criminal Procedure-Code, proviso to the section enables one of the Judges constituting the Bench to. require the appeal to be re-heard and decided by a larger Bench of Judges. This proviso is applicable to cases that are heard under the new Code. The present appeal was pending at the time when the new Code came into force, and, therefore, according to Section 484 of the Criminal Procedure Code, 1973, the appeal shall be disposed of in accordance with the provisions of the Criminal; Procedure Code, 1898, which was in force immediately before the commencement of the new Code. This would imply that Section 429 of the Criminal Procedure Code, 1898, is applicable. In Section 429 of the Criminal Procedure Code, 1898, there is no proviso, which would enable one of the Judges to require the re-hearing of the appeal before a larger Bench of Judges. Further, the learned Counsel also referred us to the wording of the opinion of the Judge, who desired the posting of the matter before a Full Bench that he agreed with the referring order of Venkataraman, J., wherein he has directed the matter to be placed before the third Judge under Section 392 of the Criminal Procedure Code. This, according to the learned Counsel for the appellants, does not clearly indicate the desire of K. N. Mudaliyar, J., to have the matter placed before a Full Bench. It is unnecessary for us to go into the question raised, for the learned Chief (Justice, after consideration of the entire matter has directed the appeal to be heard by a Full Bench. The validity of the order of the learned Chief Justice cannot be questioned, for, under Rule 6 of the Appellate Side Rules, High Court, Madras, notwithstanding anything contained in the Rules, the Chief Justice may direct that any application, petition, suit, appeal, or reference shall be heard by a Full Bench as defined in these rules. The order of the learned Chief Justice puts an end to the doubts that are expressed at the bar. There could be no valid objection to the Full Bench dealing with the appeal.
(Then the Full Bench heard the appeal on merits).
P.S. Kailasam, J.
66. Three accused, the father and his two sons were tried by the learned Sessions Judge of Tirunelveli for the offence of causing the death of one Arunachalam Pillai on the 29th of July, l972 at about 3 P.M. at Pattalooram village and found guilty of the offences under Sections 302 and 323, Indian Penal Code (against A-l), Sections 302 read with Section 34, and Section 324, Indian Penal Code (against A-2) and Section 302 read with Section 34, Indian Penal Code (against A-3) and sentenced to imprisonment for life. There were four charges framed against the accused. The first charge against the first accused was for an offence under Section 302, the second against A-2 and A-3 for an offence under Section 302 read with Section 34, the third was against A-1 for an offence under Section 323, and the fourth was against A-2 for an offence under Section 324, Indian Penal Code, for causing simple hurt with dangerous Weapon.
67. The case of the prosecution briefly is, that there was enmity between P.Ws. 1 to 3 and the deceased on the one side, and Accused 1 to 3 on the other, due to some trouble over the draining of sullage water.
[His Lordship discussed the evidence and held.]
68. On a careful consideration of the entire evidence, we are not satisfied that A-2 and A-3 shared a common intention to cause the death of the deceased. On the other hand, we agree that they took part in the attack and caused simple injuries with dangerous weapons to the deceased, as well as P.W. 1, and they would be guilty of an offence under Section 324, Indian Penal Code for the, injuries they caused to the deceased. A-1 will be guilty of an offence under Section 324, Indian Penal Code, for causing hurt to P.W. 1, and the sentence of 2 years rigorous imprisonment is confirmed. Regarding the injuries caused to the deceased, A-2 and A-3 will be sentenced under Section 324, Indian Penal Code to rigorous imprisonment for three years. So far as injury caused to P.W. 1 is concerned, the conviction of A-1 and A-2 under Sections 323 and 324 is confirmed.
69. In the result, we confirm the conviction under Section 302, Indian Penal Code, and the sentence of imprisonment for life imposed on A-1 conviction under Section 323, Indian Penal Code, and the sentence of rigorous imprisonment for one year is also confirmed, but the sentences to run concurrently. Regarding A-2 and A-3 they are acquitted of the offence under Section 302, Indian Penal Code, read with Section 34, Indian Penal Code but instead, found guilty under Section 324, Indian Penal Code, and they are sentenced to rigorous imprisonment for a period of three years. The sentences imposed on A-2 will run concurrently.
70. With these modifications the Criminal Appeal is dismissed.