(a) P.W.1 is a resident of Pudukottai Village.All the accused belonged to the same place.His brother Theoplus, the first deceased (D1) and one Jayaprakash, the second deceased (D2) also belonged to the same place.A-1 was carrying on the illicit arrack business in which all the other accused were employed under him.A few days prior to the occurrence, when D1 and D2 along with others went over there for the sale of illicit arrack, there was a quarrel between them, and at that time, they were warned by A-1 and others not to sell so.(b) On 26.5.2002 the date of occurrence, both the D1 and D2 along with one Albert went over there.At that time, when they were about to sell the illicit arrack, it was objected to by the accused party, and when the same was also questioned by both the deceased whether they could alone do.At that time, P.Ws.3 and 4 also came over there to get arrack from the deceased.This was witnessed by P.Ws.1 to 3 and both the persons died at the spot instantaneously.The accused persons along with the aruvals ran away from the place of occurrence.(c) P.W.1 proceeded to the respondent police station where P.W.13 was the Sub Inspector of Police.At about 8.00 P.M., he gave Ex.P1 complaint, on the strength of which a case came to be registered in Crime No.299 of 2002 under Sections 147, 148, 341 and 302 of IPC and the printed FIR Ex.P9 along with the report, Ex.P1, was despatched to the Court.(d) P.W.14, the Inspector of Police, on intimation from the Sub Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P.W.10, the Photographer, was called to take photographs of the place of occurrence and also the dead body which were also photographed, and accordingly they were marked as M.O.6 series.Then he conducted inquest on the dead body of D1 in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.Thereafter on the dead body of D2, he conducted inquest and prepared an inquest report, Ex.Then both the dead bodies were sent to the Government Hospital for the purpose of autopsy.(e) P.W.11, the Doctor, attached to the Government Hospital conducted autopsy on the dead body of Theoplus and has given his opinion in the postmortem certificate, Ex.P7, that he died due to shock and haemorrhage due to injuries sustained.(f) Equally, the dead body of Jayaprakash was subjected to postmortem by P.W.12, the Doctor.The Doctor has also given opinion in the postmortem certificate, Ex.P8, that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.(g) Pending the investigation, the Investigator came to know that A-2, A-4, A-5 and A-6 surrendered before the Judicial Magistrate, Lalgudi, and an application was taken before the Court for police custody.He came forward to give a confessional statement.The same was recorded in the presence of witnesses.The admissible part is marked as Ex.P6 pursuant to which he produced six aruvals which were marked as M.O.1 series.Then A-1 was sent for judicial remand.(i) Pending investigation, A-3 also surrendered before the Court.Then he was taken to police custody.He gave a confessional statement.The same was recorded, and he was sent for judicial remand.(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Perambalur, made in S.C.No.67 of 2007 whereby the appellants ranked as A-1 to A-4 and A-6 respectively, along with another ranked as A-2, stood charged, tried and found guilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-6147 IPCGuilty under Sec.148 IPC1 years Rigorous ImprisonmentA-1 to A-6341 IPCGuilty1 month Simple ImprisonmentA-1, A-3 & A-5302 IPCGuilty under Sec.302 r/w 149 IPCLife imprisonment along with a fine of Rs.5000/- and default sentenceA-2, A-4 & A-6302 r/w 149 IPCGuilty under Sec.302 r/w 149 IPCLife imprisonment along with a fine of Rs.5000/- and default sentenceA-2 & A-4302 IPCGuilty under Sec.302 r/w 149 IPCLife imprisonment along with a fine of Rs.5000/- and default sentenceA-1, A-3, A-5 & A-6302 r/w 149 IPCGuilty under Sec.302 r/w 149 IPCLife imprisonment along with a fine of Rs.5000/- and default sentence2.Short facts necessary for the disposal of this appeal can be stated as follows:Accordingly, police custody was ordered.During the police custody, their statements were recorded, and they were sent for judicial remand.(h) On 15.6.2002, A-1 was arrested by the Investigator.(j) The further investigation, pursuant to the directions given by the Superintendent of Police, was taken up by P.W.15, the Inspector of Police.He enquired the other witnesses and recorded their statements.All the material objects were sent for analysis.The reports were received and placed before the Court.On completion of investigation, the Investigating Officer filed the final report.3.The case was committed to Court of Sessions, and necessary charges were framed.In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 15 exhibits and 12 material objects.On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false.One witness was examined on the side of the defence shown as D.W.1, and also one document was marked on their side.The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded the punishment as referred to above.Hence this appeal at the instance of the appellants.4.Advancing arguments on behalf of A-1, the learned Senior Counsel Mr.P1 is the first information given to the police; and that apart from that, in the instant case, though five witnesses were examined as eyewitnesses, they are all either related or intimated to each other.5.Added further the learned Senior Counsel that the charge framed against the accused is that A-1, A-3 and A-5 attacked D1 and A-2 and A-4 attacked D2; but, the evidence that was adduced before the Court has got all discrepancies possible; that as regards P.W.1, he has turned hostile and hence his evidence was not useful to the prosecution; that as far as P.W.2 was concerned, he has stated that D1 was attacked by A-1, A-3 and A-5, and D2 was attacked by A-2 and A-4; but, he does not implicate A-6 or does not mention any overt act in respect of A-6; that as far as P.W.3 is concerned, he has stated that A-1 has cut D1, and he has not spoken anything about any other accused or the overt acts which are attributed to any one of the accused; that as far as A-2 was concerned, P.W.4 has stated that A-1, A-3 and A-5 cut D1, and as far as D2 is concerned, he has stated only A-4, but not implicated A-2; that as far as P.W.5's evidence is concerned, he has stated that D1 was cut by A-5 and he has not implicated the other two accused; that as far as D2 is concerned, according to him, it was done by A-2, and he has not spoken anything about A-4; that all these would clearly indicate that though these witnesses have been examined in order to speak about the overt acts, and that too when an occurrence has taken place at 4.00 P.M. i.e., day time, naturally one would expect them to narrate the incident properly; but, those discrepancies what are found in the evidence are not only contra to the charges framed, but also the prosecution was unable to substantiate its case, and hence all would go to show that they could not have seen the occurrence at all.6.It is further urged by the learned Senior Counsel that Insofar as A-6, his name does not find place in the FIR; that according to the prosecution, when A-1 was arrested, he gave a confessional statement and produced six aruvals; that had it been true that A-6 was actually present at the place of occurrence, his name should have been mentioned in the FIR; that the non-mention of the name of A-6 in the FIR would clearly indicate that A-6 could not have been present in the place of occurrence; and that all would go to show that the prosecution has miserably failed to prove its case.7.Added further the learned Senior Counsel in the second line of argument that there was a rivalry between the accused on the one side and both the deceased on the other as to the sale of illicit arrack; that even on the date of occurrence, there was a quarrel when D1 and D2 were about to sell arrack to P.Ws.3 and 4, and in that process, the occurrence has taken place; that under the circumstances, it cannot be stated to be intentional or premeditated; and that if the Court comes to the conclusion that the prosecution has proved the case insofar as the overt acts attributed to the accused, the Court has to consider this aspect also before rendering its judgment.Srinivasan, learned Counsel appearing for the other appellants adopted the above arguments.9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.That apart, the appellants did not raise any controversy regarding the fact that both the deceased died out of homicidal violence.Under the circumstances, no impediment was felt by the trial Court and it has recorded the same accordingly, which has got to be affirmed by this Court.11.Insofar as the charges levelled against the appellants, the prosecution has marched five witnesses.Out of these five witnesses, P.W.1 though he was the author of Ex.P1, the report, has deposed that he did not know anything about the overt acts of the accused or incident.Under the circumstances, the evidence of P.W.1 was not useful or available to the prosecution.But, to the extent that the criminal law was set in motion, his evidence could be accepted since according to P.W.13, the Sub Inspector of Police, P.W.1 came to the police station and gave Ex.P1, the complaint, on the strength of which the case came to be registered under the above provisions of law.Apart from that, the signature of P.W.1 in Ex.P1, the report, no question of inferring his presence at the place of occurrence would arise.Hence, as far as A-6 is concerned, this Court is unable to notice any evidence in the case, and hence the presence of A-6 at the time of occurrence is ruled out, and he has got to be acquitted of the charges levelled against him.As far as the overt acts attributed to them, it is not in controversy that D1 Theoplus and D2 Jayaprakash were cut and death was caused instantaneously.At that time, number of persons who are the eyewitnesses before the Court and also the number of accused who were arrayed, were all present at the place of occurrence, and if to be so, at the time of occurrence, it is quite natural when two persons are being attacked by number of persons with deadly weapons like aruvals, one cannot expect them to meticulously note what are all the overt acts attributed to them.In the case on hand, the fact that the five persons namely A-1 to A-5, were armed with aruvals would clearly indicate that they have actually constituted an unlawful assembly with the common intention of killing those persons, and thus they have acted so.In view of their presence with deadly weapons and causing death of two persons, the provisions of Sec.149 of IPC would be attracted.The discrepancies brought to the notice of the Court in no way would affect the prosecution case and did not take away the truth of the case.Hence there is no impediment in recording a finding that A-1 to A-5 have constituted an unlawful assembly having deadly weapons and attacked D1 and D2 and caused their death instantaneously.14.Now, the contention put forth by the learned Senior Counsel for the appellants that there was a delay in despatching the FIR to the Court cannot be a reason to disbelieve the prosecution case for the reasons that P.W.1 has admitted that he went to the police station and gave the report.P.W.13, the Sub Inspector of Police, has deposed that pursuant to Ex.P1, the report, he registered the case.P.W.14, the Investigator, has admitted that he has gone to the spot, and since it was night hours, he did not do investigation.Now, at this juncture, it is pertinent to point out that P.W.14 has stated that only on receipt of the FIR, he went to the spot for investigation.In the instant case, even as per the prosecution case, there was a rivalry as to the sale of illicit arrack between D1 and D2 on the one side and A-1 and his employees namely A-2 to A-5, on the other side.As regards the other charges, the judgment of the trial Court in respect of A-1 to A-5 is confirmed.All the sentences imposed on A-1 to A-5 are ordered to run concurrently.18.As regards A-6, the judgment of the trial Court is set aside, and he is acquitted of all the charges levelled against him.The fine amount if any paid by him will be refunded to him.

Sections cited: Section 147 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 341 in The Indian Penal Code, Section 148 in The Indian Penal Code