The first deceased was one Selvaraj andthe second deceased was one Irulayee.The first deceased was the son of thesecond deceased.One Gnanasekar who is the brother of the first deceased and theson of the second deceased had developed illicit intimacy with the wife of thefirst accused Antony.One month prior to the occurrence, the wife of the firstappellant had eloped with Gnanasekar.But both the deceased expressed no knowledge.But the accused 1 to4 believed that both the deceased were wantonly refusing to disclose about thewhereabouts of Jaya and Gnanasekar.Therefore, there arose a quarrel between theaccused 1 to 4 on one side and the deceased 1 and 2 on the other side.On 25.2.2003, at about 5.00 a.m., when the deceased Selvaraj wasproceeding from his village in his cycle to Poolangal village with a milk canfor the purpose of selling milk, near Poolangal kanmai, all the appellants waylaid him and attacked him with sickles and velsticks.The occurrence waswitnessed by P.W.2 and one Asaithambi.Then P.W.2 and Asaithambi rushed to thehouse of P.W.1 and the deceased Irulayee and informed them about the fate of thedeceased Selvaraj.At once, P.W.1 and the deceased Irulayee rushed towards theplace of occurrence from their house.But when they were nearing the house ofone Ravi, all the five appellants way laid them and attacked the deceasedIrulayee with lethal weapons like velstick and sickles.P.W.1 intervened with aview to rescue the deceased Irulayee.But the first appellant stabbed her on herright chest.The second appellant stabbed the deceased Irulayee with velkambu.The fourth appellant stabbed the second deceased Irulayee on her left hand.Thethird appellant and the fifth appellant cut the deceased Irulayee with aruval.The second deceased Irulayee succumbed to injuries instantaneously.P.W.8, was then an Assistant Surgeon inthe said hospital and he examined P.W.1 at 7.40 a.m. and found the followinginjury:Puncture wound 1 cm in diameter on the 4th intercostal space alonginterior axillary line, air coming through the wound.He has opined thatthe injury found on P.W.8 would have been caused by a weapon like M.O.1velstick.P.W.8, sent due intimation to the police.In the meantime, the deceasedSelvaraj died in the hospital at 8.30 a.m. itself.On returning to the policestation at 11.30 a.m., P.W.16 registered a case in Crime No.11 of 2003 underSections 147, 148, 307 and 302 IPC.P16 is the First Information Report.Thenhe forwarded Ex.P.W.16 then forwarded the casediary to P.W.17, who was then Inspector of Police at Thiruchuli Police Stationfor investigation.P.W.17, proceeded to the place of occurrence at 1.00 p.m. on 25.2.2003and prepared an observation mahazar Ex.P11 in the presence of witnesses and alsoprepared a rough sketch Ex.Then he conducted inquest on the body of thedeceased Irulayee at the place where the body was found.P20 is the inquestreport relating to the deceased Irulayee.He also recovered blood stained earthand sample earth from the place where the body of the deceased Irulayee wasfound as well as from the place where the deceased Selvaraj was attacked under amahazar Ex.He also recovered a cycle, milk can and other articles from theplace where the deceased Selvaraj was attacked under Ex.P13 mahazar.Duringinquest, he examined P.Ws.1 to 3 and other witnesses.Then he forwarded the deadbody of the deceased Irulayee for postmortem examination.Then he proceeded to the Government Hospital and held inquest on thebody of the deceased Selvaraj and prepared a report under Ex.P6 is the postmortem certificate relating to the deceased Irulayee.He has opined that the injuries found on the deceased Irulayee would have beencaused by a weapon like M.O.s 1 to 5 and has further opined that the death wasdue to the injuries sustained.Continuing the investigation, P.W.17, arrested the first accused on1.3.2003 at 4.00 p.m. at Viswatham village chathram in the presence of P.W.14and other witnesses.On such arrest, the first appellant volunteered aconfession, which was duly reduced into writing.In the said statement, thefirst appellant had disclosed about the place where he had hidden M.Os.1 to 5.Ex.P14 is the admissible portion of the said statement.Pursuant to the saidstatement, the first appellant took the police officials and identified theplace where weapons were hidden and produced the same.P.W.17, recovered thearticles under mahazar Ex.Before parting with the case, we should point out that the Officer,who has investigated the case has not taken pains even to collect the accidentregister in respect of the deceased Selvaraj and to examine the Doctor whotreated him.The way in which he has deposed before the Court also shows that hewas quite indifferent even while deposing.We only express our anguish in thisregard.The Principal District and Sessions Judge, Virudhunagar District Srivilliputhur.The Inspector of Police Paralachi Paralachi Police Station Virudhunagar District.(The judgment of the Court was made by S.NAGAMUTHU,J) The appellants are accused 1 to 5 in S.C.No.169 of 2004 on the file of thePrincipal District and Sessions Judge, Virudhunagar District at Srivilliputhur.The first appellant has been convicted under Section 302 readwith 149IPC and Section 302 read with 34 IPC and sentenced to undergo imprisonment forlife for each offence.Appellants 2 and 4 have been convicted under Section 302read with 149 IPC and Section 302 read with 34 IPC and sentenced to undergoimprisonment for life for each offence.The appellants 3 and 5 have beenconvicted under Section 302 read with 149 (2 counts) and sentenced to undergoimprisonment for life (2 counts).The appellants 1 to 5 have been convictedunder Section 148 IPC and sentenced to undergo rigorous imprisonment for oneyear and under Section 341 IPC (2 counts) to undergo simple imprisonment for onemonth.The first appellant has been convicted under Section 307 IPC andsentenced to undergo rigorous imprisonment for five years and the appellants 2to 5 have been convicted under Section 307 read with 149 IPC and sentenced toundergo imprisonment for five years.The lower court directed the sentence torun concurrently.Challenging the said conviction and sentence dated 29.6.2006,the appellants have come forward with this appeal.The first accused along with his brothersaccused 2 to 4, made enquiries with the deceased Selvaraj and Irulayee inrespect of the whereabouts of the Gnanasekar and the wife of the first accusedviz.P1, complaint and Ex.P16, First Information Report to thejurisdictional Magistrate through a police constable.He examinedfew more witnesses on the same day.Then he forwarded the body of the deceasedSelvaraj also for postmortem examination.9. P.W.9 who was the Assistant Surgeon attached to the GovernmentHospital, Aruppukottai, on receiving the requisition from the police, conductedautopsy on the body of the deceased Selvaraj at 9.30 a.m. on 26.2.2003 and foundthe following injuries.1) A cut injury over the right side of temporal region of scalp about 8 cmsabove the right ear, size of about 6 cm x 2 cm x bone depth, transverse, edgesare clear cut and regular and tail of the wound towards back.2) A cut injury over the middle of frontal region of scalp about 10 x 5 cm xbone depth causing fracture of underlying skull bone exposing the skull cavityvertical in direction, tail towards front, edges are clear cut and regular.3) A cut injury over middle of scalp just posterior to the injury No.2 about 6 x3 cm x bone depth, edges are clear cut and regular, tail towards front, verticalin direction.4) A cut injury over the middle of occipital region of scalp size about 5 x 1 cmx (muscle) depth, transverse, edges are clear cut and regular tail towardsright.5) A cut injury over the occipital region of scalp just 2 cm below the injuryNo.4 about 3 x 1/2 cm x skin depth, tail towards right, edges are clear cut andregular.6) A cut injury over right side of Mandibular region, about 8 x 3 cm x bonedepth, causing fracture of right Rames of mandible and opening into mountingtail towards right edges are clear cut and regular.7) A cut injury the middle of mandibular region just 1 cms internal to theinjury No.6, size about 2 x 1 cm to bone depth causing fracture of mandible,edges are clear cut and regular, tail towards right.8) Diffuse contusion over front of neck and upper part of chest seen.9) A cut injury over the front of right forearm about 6 cms above the wrist,size about 2 cm x 1 cm x bone depth causing fracture of both bones of forearm,edges are clear cut and regular tail towards right side.10) A diffuse swelling over left upper 1/3 of forearm, causing fracture of bothbones of left forearm.P4 is the postmortem certificate relating to the deceased Selvaraj.He has opined that the injuries found on the deceased would have been caused byweapons like M.Os.1 to 6 and he has further opined that the death was due to theinjuries sustained.On the same day at 11.30 a.m, P.W.19 conducted autopsy on the body ofthe deceased Irulayee.He found the following injuries.A stab injury over middle of front of neck below the thyroid cartilage aboutthe size of 4 x 1 cms x depth about 8 cms transverse, direction towardsbackwards, inferior and to right side, causing complete of (torn) trachae andenter into right hemi thorax causing injury to (torn) apea of right lung.A stab injury over back of left side back about 10 cms below left ear, sizeabout 3 x 1 cm x depth about 5 cms oblique, direction towards posterior,inferior and to right, causing injury to left carotid artery.A stab injury over left strna clavicular joint region, size about 5 cm x 2 cmx depth about 6 cms direction towards posterior and towards right side, causingfracture of left clavicle and cut of trachae.A stab injury over the left side of chest 2 cms below the injury No.3, sizeabout 6 cm x 2 cm depth about 6 cms verticle, direction towards posterior and toright side, causing fracture of left II rib and injury to upper lobe of leftlung on anterior aspect,size about 5 cm x 2 cm, depth about 10 cms, vertical,direction towards posteriorly and to right side, causing fracture of IV left riband injury to anterior aspect of upper lobe of left lung and piercing into leftventricle of heart.6) A stab injury over left side of chest, 5 cms below and lateral to injury No.5size about 5 x 2 cms x depth about 6 cms, direction towards posteriorly and toright side, causing fracture of 6th left rib and injury to upper lobe of leftlung.7) A stab injury over lower part of left side of chest about 6 cms medial toinjury NO.6 and 8 cm below the injury NO.5 size about 5 cm x 2 cm x depth about8cms, vertical, direction towards posteriorly and towards right side, piercinginto abdominal cavity and injury to left lobe of liver on upper surface.8) A stab injury over upper part of left side of abdomen size about 4 cm x 2 cmx depth about 8 cms vertical, direction towards posteriorly and to right side,piercing the abdominal cavity and injury to mesentry.9) A cut injury over left supra clavicular over about 5 cm x 2 cm x muscledepth, transverse.10) A cut injury over left shoulder about 5 cm x 2 cm x muscle depth,transverse.11) A stab injury over left palm piercing the whole of left hand size of 6 cm x2 cm on palmar aspect and about 2 cm x 1 cm on posterior aspect of left hand.12) A stab injury over right side of chest on right mid clavicular bone sizeabout 4 cm x 2 cm x depth about 12 cms vertical, causing fracture of 7th & 8thright ribs, injury to lower lobe of right lung, injury to liver, piercing theliver from superior to inferior surface, direction towards posteriorly mediallyand inferiorly.13) A stab injury over right side of chest about 1 cm below the injury No.12,size about 5 cm x 3 cm x depth about 10 cm vertical, directions towardsanteriorly, medially and inferiorly, causing fracture of 9th right rib andinjury to liver from superior surface to inferior surface.14) A stab injury over right side of abdomen, on right hypochondium size about 2x 1 cm depth about 5 cms, piercing the abdomen direction towards posteriorly andmedially.15) A stab injury over right side of abdomen, near injury No.14, about 1 x 1 cmx depth about 1.5 cms.All the above said injuries are elliptical in shape and edges clear cutand regular.P15 in the presence of P.W.14 and another witness.Then he sentthe appellants 1 to 4 to Court for Judicial remand.On 11.3.2003, the fifthappellant surrendered before the Judicial Magistrate, No.5 of Madurai.Then heexamined Doctors and other witnesses.He gave requisition to the learnedMagistrate for forwarding the material objects for chemical examination.P9is the chemical analylist report and Ex.P10 is the serologist report.Oncompleting the investigation, he laid charge sheet against all the appellants.The trial court framed the following charges against the appellants.1) Against appellants 1 to 5 under Section 148 IPC.2) Against appellants 1 to 5 under Section 341 IPC for having restrained thedeceased Selvaraj.3) Against accused 1 to 5 under Section 302 read with 149 IPC in respect ofmurder of the deceased Selvaraj.5) Against accused 1 to 2 and 4 under Section 302 readwith 34 IPC in respect ofthe death of the deceased Irulayee.6) Against appellants 3 and 5 under Section 302 read with 149 IPC in respect ofdeath of the deceased Irulayee.7) Against accused 1 under Section 307 IPC for having made an attempt on thelife of P.W.1, Manimegalai.8) Against Accused 2 to 5 under Section 302 read with 149 IPC in respect ofattempt on the life of P.W.1 Manimegalai.Since the appellants pleaded not guilty, they were put on trial.During trial, on the side of the prosecution, 17 witnesses were examined, 22documents were exhibited and 22 material objects were marked.When the appellants were questioned in respect of the incriminatingevidence against them, they denied the same as false.However, they did notchose to examine any witness on their side or mark any document.Having considered the materials available on record, the trial courtfound the accused guilty under various provisions and accordingly convicted andsentenced them as detailed herein above.Challenging the said conviction andsentence, the appellants have come forward with this appeal.The learned counsel for the appellants would submit that in so far asthe killing of the deceased Selvaraj is concerned, absolutely there is noevidence whatsoever.He would submit that the positive case of the prosecutionis that P.W.2 and one Asaithambi witnessed the occurrence.P.W.2 has turnedhostile and Asaithambi has not been examined for the reason best known to theprosecution.Thus, according to him, there is no evidence at all for linkingthe accused with the murder of the deceased Selvaraj and therefore, in respectof those charges, all the appellants are entitled for acquittal.Buttheir evidence cannot inspire confidence of the Court, the learned counselcontended.He would further submit that though it is stated that P.W.1 and thedeceased Irulayee were attacked with aruval as well as with velstick, theinjuries found on the deceased Irulayee and P.W.1 could not have been caused bya weapon like aruval since all the injuries found on them were stab injuries.Thus according to the learned counsel for the appellants, the medical evidencealso does not support.He would further submit that though it is stated that M.Os.4 and 5were used by the appellants 3 and 5 to cause injuries on the deceased Irulayee,but there was no blood found on these weapons.Therefore, the learned counselwould submit that the evidence of P.Ws.1 to 3 are fully unbelievable and assuch, their evidence are liable to be rejected.Per contra, the learned Additional Public Prosecutor would submit thatthe evidence of P.Ws.1 to 3 cannot be rejected.More particularly, the evidenceof P.W.1, who is an injured person cannot be rejected, since there are noreasons to do so.He would further submit that though P.W.2 has turned hostile,P.Ws.1 and 3 have seen all these appellants together with weapons somewhere nearthe place of occurrence, where the deceased Selvaraj was killed.Therefore,according to the learned Additional Public Prosecutor, the evidence of P.Ws.1and 2 would be sufficient to convict all the appellants in respect of murder ofthe deceased Selvaraj.The learned Additional Public Prosecutor would further submit that themedical evidence, of course, does not tally in so far as Accused Nos.3 and 5 areconcerned in respect of the injuries found on the deceased Irulayee.But thesaid infirmity cannot be a ground to reject the entire case of the prosecution.In conclusion, the learned Additional Public Prosecutor would pray forsustaining the findings rendered by the trial court.We have considered the rival contentions and also perused the recordsvery carefully.But, unfortunately, P.W.2, who was examined bythe prosecution as an eyewitness to speak about the involvement of theseappellants in the murder of the deceased Selvaraj has turned hostile and hence,his evidence is of no use at all for the prosecution.The other witness, by nameAsaithambi, who claimed to have seen the occurrence has not been examined.The contention of the learned Additional Public Prosecutor is that theevidence of P.Ws.1 and 2 would be sufficient to hold that the deceased Selvarajshould have been done to death only by these appellants.To examine the saidcontention, we have carefully gone through the sketch and observation mahazar tosatisfy ourselves as to whether P.Ws.1 to 3 could have seen these appellants anywhere near the place where the deceased Selvaraj was killed.In our consideredopinion, the same is not possible, since the distance between the place wherethe deceased Selvaraj was attacked and the place where the deceased Irulayee waskilled is about 350 feet.It is not the evidence of P.Ws.1 and 3 that they sawthese accused coming together or standing together with weapons some where nearthe house of Ravi, i.e. about 350 feet away from the place where the deceasedSelvaraj was attacked.They found all these accused suddenly emerged and startedattacking them.Therefore, we cannot uphold the findings of the trial courtthat the deceased Selvaraj was way laid and killed only by these appellants.In respect of the second occurrence, according to the prosecution, ithappened near the house of one Ravi.P.W.1 is an injured witness.So, hispresence at the place of occurrence can not be doubted.Though P.W.3 claims tobe an eyewitness, we are not convinced that he would have been present at theplace of occurrence.The first reason is that his name is not found in the FirstInformation Report as an eyewitness.We are notdisbelieving the presence of P.W.3 not solely on this ground.According to theprosecution, there were five assailants, all armed with weapons.Had it been true that P.W.3 was present, certainly attempt on thelife of P.W.3 would have been made.But it is not the case that any such attemptwas made on him.This in our considered opinion is strange which impel us todoubt the presence of P.W.3 at the place of occurrence.Thus, the case of the prosecution rests only on the evidence of P.W.1,who is an injured witness.According to her evidence, the deceased Irulayee wasattacked by all the accused with lethal weapons like velstick and aruval.Morespecifically, she has stated that Accused 3 and 5 attacked the deceased Irulayeewith Aruvals indiscriminately and others stabbed her with velsticks.As rightlypointed out by the learned counsel for the appellants, we are not able to seeany cut injury on the deceased Irulayee.Thus, the evidence of P.W.1 in respectof Accused Nos.3 and 5 is not supported by medical evidence.But the medicalevidence contradicts the same.The said contradiction in our considered opinionis material which creates doubt about the involvement of Accused Nos.3 and 5 inthe attack on the deceased Irulayee.The trial court in our consideredopinion was right in holding that Accused Nos.1,2 and 4 had committed the murderof the deceased Irulayee.Even accordingto P.W.1, Accused No.1 alone caused the stab injury on her.Therefore, AccusedNo.1 is surely liable for conviction under Section 307 IPC.However, the accused 2 and 4 are liable to be convictedunder Section 307 readwith 34 IPC.In result, all the appellants are acquitted of charge No.1 underSection 148 IPC and the charge No.2 under Section 341 IPC in respect of thealleged restraint made on the deceased Selvaraj.The appellants 1 to 5 areacquitted of charge No.3 under Section 302 read with 149 IPC in respect ofmurder of the deceased Selvaraj.The conviction and sentence under Charge No.4in respect of appellants 1, 2 and 4 is confirmed under Section 341 IPC and thesentence is also confirmed.Under this charge (Charge NO.4), the appellants 3and 4 are acquitted and the conviction and sentence is set aside.Under chargeNo.5, appellants 1,2 and 4 are convicted under Section 302 read with 34 IPC andthe conviction and sentence imposed on them is confirmed.Under charge No.6, theappellants 3 and 5 are acquitted and conviction and sentence imposed under thesaid charge under Section 302 read with 149 IPC in respect of the deceasedIrulayee is set aside.Under charge No.7, the conviction and sentence imposed onthe first appellant under Section 307 IPC in respect of the attempt made on thelife of P.W.1 is confirmed.Under charge No.8, the appellants 3 and 5 areacquitted and the conviction and sentence imposed on them is set aside.Theconviction and sentence in respect of appellants 2 and 4 under Section 307readwith 34 IPC is confirmed.In result, the appellants 3 and 5 are acquitted of all the charges andthe conviction and the sentence imposed on them is set aside.They are directedto be set at liberty forthwith, unless they are required in connection with someother case.The conviction and sentence in respect of other appellants ismodified as indicated above.The appeal is partly allowed.

Cited provisions: Section 302 in The Indian Penal Code; Section 307 in The Indian Penal Code; Section 341 in The Indian Penal Code; Section 148 in The Indian Penal Code; Section 147 in The Indian Penal Code