Rajan, Selvaraj, Muthumanickam and Arumugham vs State

A.S. Venkatachalamoorthy, J.—The appellants herein as Accused-1 to 4 were convicted by the I Additional Sessions Judge, Coimbatore,

in Sessions Case No. 130 of 1992 for the offences detailed hereunder :

as against A-1 : found guilty u/s 449; 307 read with 34 and 302 IPC, and sentenced to 10 years R.I. & fine, 7 years R.I. and fine, AND life

imprisonment respectively.

as against A-2 : found guilty u/s 448; 307 IPC and 25 (1) (a) of the Arms Act and sentenced to one year R.I. & fine, 7 years R.I. and fine, AND

one year R.I. respectively.

as against A-3 : found guilty u/s 448; 307 IPC and sentenced to one year R.I. with fine AND seven years R.I. with fine respectively.

as against A-4 : found guilty u/s 448; 307 IPC and sentenced to one year R.I. with fine AND 7 years R.I. with fine respectively.

and being aggrieved by the said Judgment, preferred the above appeal.

The prosecution, in its endeavour to bring home the guilt of the accused, examined PWs-1 to 20, marked Exs. P-1 to P-31 and produced MOs

1 to 14.

The case of the prosecution can be set out briefly as under :-

PWs-1 and 2 are the employees in the beef stall/mutton stall of PW-4. PW-4 is the uncle of the deceased. PW-5 is the brother of PW-4.

A-1 and A-4 are brother while A-2 and A-3 are their friends.

Sometime prior to the occurrence, 3rd accused/3rd appellant''s brother by name Annadurai were murdered and in regard, PW-4 and his brothers

were prosecuted. However, the Court found them not guilty and they were acquitted. Ever since then, there has been enmity between PW-4 on

the one hand and A-3 on the other hand. In the pork, mutton stall of PW-4, apart from PWs-1 and 2, the brother of Mariappan (PW-4) viz.,

PW-5 and one Allimuthu were also working and they used to stay in the house -shed of PW-4. On the day in question, that was on 10-5-1990

night, PW-5 and Allimuthu went to see a movie while PWs-1,2 and 4 as usual, slept in the house-shed of PW-4 and closed the shed, where the

pigs are being kept and to have a watch during night time they used to keep an electric bulb burning with a capacity of 100 watts. At about 4.30

a.m. on 11-5-1990 A-l to A-4, removing the patti, entered the house of PW-4. But that time, PW-3 and one Murugan, who also came there after

witnessing a movie in the cinema theatre, by standing near a thorny bush, were watching as to what was going on in the house of PW-4

Mariappan. PW-4 on hearing gunshot, woke up and realised that there was bleeding in his left hand (axillary portion). PWs-1 and 2 also woke up

and all of them viz., PWs-1, 2 and 4 saw A-2 having a country gun in his hand and smoke was emanating from it. A-3 told PW-4 that he had

escaped after murdering his brother Annadurai and that he would not go without finishing him off and saying so, stabbed PW-4 with bichuva knife

on the left chest, right chest and right side of the stomach. A-4 also stabbed PW 4 with a bichuva knife on the left side of the right hand and on the

upper side so also on the right flank. Seeing PW-4 being stabbed like that, the deceased came to prevent. The first accused, at that time, stabbed

the deceased with a spear (Eiti) and the intestine of the deceased came out. PWs-1 and 2 raised an alarm and on hearing this, neighbours came

there and immediately thereafter, A-1 to A-4 ran away toward west. Very shortly thereafter, PW-5 came there and in an auto, the deceased and

PW-4 were taken to the Government Hospital, Pollachi. PW-1 thereafter went to the Pollachi Town Police Station and gave a complaint to the

Sub Inspector of Police PW-18. To the dictation of PW-1, the Sub Inspector wrote down the complaint and the same was read over to him and

thereafter, PW-1 affixed his left hand thumb impression. The said complaint is Ex.P1 and on the basis of the same, the Sub Inspector registered

Cr. No. 305 of 1990 under Session 448, [324 and 307 IPC and Section 25(1 a) of the Indian Arms Act. Ex. P-24 is the F.I.R. and the Sub

inspector thereafter, sent the same to the Judicial Magistrate No. 1 at Pollachi and copies to his superiors.

At the Government Hospital, PW-9 Dr. Jothi Arunachalam examined PW-4 at about 5.35 a.m. on 11-5-1990 and to whom PW-4 told that he

was attacked by two known person with knife and gun at his residence at 5. A.M. on 11-5-1990. The Doctor gave first aid emergency treatment

to PW-4 and referred him to the Coimbatore Government Medical College Hospital for further treatment. Ex. P. 10 the wound certificate given by

him. In the said certificate, the Doctor has noted the injuries which he found on PW-1, as under :-

Incised wood 4 cm. x 2 cm, x 2 1/2 cm. over (r) side chest wall.

Incised wound 10 cm. x 4 cm. x 2 cm. over (L) Upper arm exposing the muscles.

Incised wound 3 cm. x 2 cm. x 1/2 cm. over anterior aspect of (L) side of chest.

Incised wound 3 cm. x 1/2 cm. x 1/2 cm. over (r) Hypochodrium

Incised wound 5 cm. x 3 cm. over (r) Upper arm refer to CMCH, after first aid emergency treatment the patient was referred to the C.M.C.

Hospital for further treatment CMCH. Medical Report received on 6-4-19991. The details of the medical report is mentioned in the wound

certificate. Admitted for multiple stab injuries on exploration (L) Upper arm - axilla subscapular vessel bleeding was ligated.

Left Elbow Division of Radial Nerve was tagged X Ray.

4181 X ray AP No Fracture.

4180 X ray skull AP No Fracture.

4179 X ray right arm AP No Fracture.

4178 X ray left elbow No Fracture.

The Doctor had opined in the said certificate that injuries No. 2 is grievous in nature.

On the same day, the deceased was also brought to the Hospital and he was immediately referred to the CMC. Hospital, Coimbatore. PW-10 is

the Doctor at the C.M.C. Hospital, Coimbatore, who admitted both the deceased and PW-4 at about 7.15 A.M. on 11-5-1990. Ex. PW-11 is

the Accident Register copy of the deceased while Ex. PW-12 is the Accident Register copy of PW-4. Both the deceased and PW-4 were

thereafter admitted in the Trauma Ward for treatment. PW-12 is Dr. Premalatha, who examined PW-4 at 1 P.M. on 11-5-1990 and treated him.

When the Doctor examined PW-4. he was couscious and oriented. However, the deceased inspite of the treatment died at about 5.15 A.M. On

13-5-1990. On the basis of the death intimation, the Sub Inspector PW-18, altered the crime as one u/s 302 IPC, and prepared Express Report

Ex. P-25. The Sub Inspector thereafter sent the express report to Judicial Magistrate No. 1, Pollachi and copies to his superiors.

PW-20, the then Inspector of Police, who received the copy of the FIR as originally registered on 11-5-1990 u/s 307 IPC. Etc. took over the

investigation. On the same day, at about 7-15 A.M. he inspected the scene of occurrence and prepared Ex. P-30 sketch and also Ex. P-2

observation mahazar in the presence of PW-6 and another. At about 8.30 A.M., he seized the blood stained mats MO-5. Blood stained lungi

MO-6; a portion of the blood stained cement floor MO-7; a portion of the ordinary cement floor MO-8 under Ex. P-3 mahazar in the presence of

witnesses. At the scene of occurrence, the Inspector examined PWs-1 to 3, PW-6 Allimuthu, Rajendran and Murugan and recorded their

statements. On 12-5-1990, the Inspector went to the Government Hospital, Coimbatore and examined PW-4 and the deceased and recorded

their statements. At about 11.30 A.M., from PW-4, Inspector recovered MO-4 blood stained white dhothi under Ex. P-4 in the presence of PW-

7 and another. At about 12.30 P.M. he recovered MO-9 blood stained shirt and MO-10 blood stained banian and MO-11 blood stained lungi

from the deceased under Ex. P-5 in the presence of PW-7 and another. At about 8 A.M. on 13-5-1990, he received the information about the

altering of the crime into one u/s 302 IPC. And also the copy of the Express Report Ex. P-25. Between 9 A.M. and 11 A.M. on 13-5-1990, he

examined PWs-1 to 3, Murugan, Kuppusamy and Kanjanimal at the Hospital and recorded their statement at the inquest. Ex. P-31 is the inquest

report and after the inquest, the body was handed over with a requisition to the Government Hospital, Coimbatore to conduct post mortem.

PW-14, the Doctor at the C.M.C. Hospital Coimbatore, pursuant to the requisition Ex. P-14, conducted autopsy on the body of the at about

11.30 A.M. on 13-5-1990. Ex. P-15 is the post mortem certificate, wherein, the Doctor has noted the following :

An oblique stab injury situated on upper abdomen on the left side which was found to be sutured with black Suits. Margins regular and ends

pointed measuring 6 cm. x 4 cm. x entering abdominal cavity. Underlying structures found to be sutured. On dissection, peritoneum hypermic and

soiled with foul smelling material with 1250 cc blood with clots. The following structures are found to be sutured :-

a. Sutured wound in the mesentery in two places adherent, muddy

b. Anastomotic wound noted in the small intestine close to duodena jujujul flexture.

c. Sutured wound in the small intestine. Mesentery congested blood clots seen in areas.

Sutured surgical upper midline incision seen in the front of abdomen 25 cm. x 2 cm. entering the abdominal cavity.

Sutured drainage wound left flank 3 cm. x 2 cm. entering pelvic cavity surgical.

Intravenous treatment wound both hands seen. Hyoid in tact. Heart: Both chambers empty.

Liver ; Spleen : Cutsection : pale.

Lungs : Congested.

Kidneys : Cutsection pale.

Retroperitoneal blood clots 25 gms. seen.

Stomach and small intestine contains 100 ml brown coloured, nil specific smell. Mucosa pale, Bladder: empty. Brain surface vessels pale. Cut

section pale.

In the said certificate the Doctor had opined that the deceased would have died of shock and hemorrhage due to external stab wound No. 1 with

corresponding internal injuries sustained by him.

The Inspector of Police thereafter proceeded with the investigation and at about 6 A.M. on 19/5/1990, he arrested A-l and A-4 at Unjavelampatti

Bus Stand in the presence of PW-8 and another. Upon arrest, A-1 gave a confession statement and the admissible portion in the said statement is

Ex.P-6. Similarly A-4 also gave a confession statement and the admissible portion in the said statement is Ex.P-7. A-1 then took the police party

and the witnesses to a bridge under Pollachi- Udumalapet Road and from a thorny bush, he took out MO-1 spear and the same was recovered

under Ex.P-8 mahazar signed by PW-8 and another. Thereafter, at about 9.15A.M., A-4, from the same bush took out MO-3 bichuva knife and

the same was recovered under Ex. P-9 mahazar. The Inspector thereafter returned back to the police station and took steps to send the weapons

to the court of Judicial Magistrate. On 20/5/1990, he examined the Doctors both at the Government Hospital, Pollachi as well as Coimbatore. At

6 A.M. on 26/5/1990, he arrested A-2 and A-3 in Thillai Nagar Bus Stand in presence of PW-19 and one Murugan. On arrest, A-3 gave

confession statement and the admissible portion of the same is Ex.P-26. The Police party and the witnesses proceeded to a place led by A-3 and

from a bush near a Margosa tree in the land of one Maui in Makkinamppatti High Road; A-3 took out MO-2 bichuva knife and the same was

recovered under Ex.P-28 mahazar in the presence of witnesses. Then the police party was taken by A-2 to Negamam. From a bush near the

house of one Rangammal, A-2 took out MO-13 country gun, which he had already hidden there and the same was recovered under Ex.P-29

mahazar in the presence of witnesses and a pellet MO-14 in the said country gun was also recovered. The recovered articles were despatched to

the court for sending the same for chemical analysis. Ex.P-20 is the chemical analysis report while P-21 is the report of the Serologist. After

completing the investigation, the Inspector of police filed his report on 02/08/1991.

PW-14 is the Doctor, who conducted post mortem on the body of the deceased. He noted an oblique stab injury situated on upper abdomen

on the left side which was found to be sutured with Suits. The Doctor also found the margins to be regular and ends pointed measuring 6 cm. x 4

cm. entering abdominal cavity and on dissection, he found peritoneum hypermic and soiled with foul smelling material with 1250 cc blood with

clots and according to him, the said injury is sufficient in the ordinary course of nature to cause death. Though the Doctor has stated that he is not in

a position to give opinion whether that injury could have been caused by a spear like MO-1, the fact remains that the deceased died only of

homicidal violence.

As far as the injury on PW-4 is concerned, Ex.P10, the wound certificate issued by the Doctor PW-9 would clearly show that PW-4 sustained

4 incised wounds. The Doctor has categorically deposed before Court that injuries 3 and 4 are possible by a sharp edged weapon like MO-2

bitchuva knife and the other injury Nos. 1 and 5 are possible by any sharp edged weapon like MO-3 bitchuva knife. There is no suggestion on the

side of the defence that those injuries could have been happened in any other manner except by stabbing with the weapons mentioned supra or that

these injuries are self inflicted. Out of the above injuries, the Doctor has opined that injury No.2 is grievous in nature. From the medical evidence

let in by the prosecution, it is amply clear that PW-4 was attacked by someone with deadly weapons.

The case of the prosecution, as spoken to by PWs-1, 2 and 4 is to the effect that on 10/5/1990, as usual, they were sleeping in the house-shed

of PW-4 and close to that, the pigs were being kept and to have a watch, an electric bulb with 100 watts capacity was made to burn. All the three

witnesses have, in one voice, deposed that at about 5 A.M. on 11/5/1991, hearing a gun shot, all of them woke up and PW-4 realised that he had

sustained an injury on the left armpit (axillary portion) and there was bleeding. They all saw A-2 having a country gun in his hand and from which

smoke was emanating. A-3 at that time told PW-4 that he and others, after murdering his bother Annadurai, escaped and that he would not go

without finishing him off and saying so, stabbed PW-4 with bichuva knife on his left chest, right chest and right side of the stomach. Following that,

A-4 also stabbed PW-4 with a bichuva knife on the right hand and also on the right flank. Seeing this, the deceased came to prevent and then A-1

stabbed the deceased with a spear on the stomach once and the intestine came out from the stomach of the deceased. Thereafter, when PWs-1

and 2 shouted, the neighbors arrived there. Immediately, A-1 to A-4 ran towards west. Thereafter, PW-1 proceeded to the police station and

gave Ex.P-1 complaint to PW-18 and a crime was registered.

Learned counsel appearing for the appellants, in his endeavour to persuade this court to reject the case of the prosecution, made the following

submissions:

I. That the evidence of PWs-1 & 2 cannot be safely accepted since they are interested in PW-4.

II. That there was light in the house-shed of PW-4 has not been mentioned in Ex.P-1 and hence a serious doubt would arise, whether they could

have identified the assailants in that dark hours.

III. PW-4 has number of enemies and only likely that he was attacked by some of them.

IV. When according to PW-4, the neighbours came hearing the noise and they also saw the occurrence, the failure on the part of the prosecution

to examine them when considered in the light of the admitted fact that there has been enmity between PW-4 and A-3, it would not be safe to rely

on the testimonies of PWs-1 and 2.

Let us now proceed to consider the various submissions made by the learned counsel for the appellants/accused, one by one.

Submission Nos. I & IV can be considered together. It is true that PWs-1 and 2 are the employee of PW-4. The case of the prosecution is that

the occurrence took place in the early hours i.e., at about 5 A.M. on 11-5-1990 in the house-shed of PW-4 Murugan. PWs-1 & 2 have claimed

that they have been staying only in the house of PW-4 and this has not been disputed by the defence. Hence, they cannot be termed as chance

witnesses. In such an event, the Court can safely come to the conclusion that at the time of occurrence, PWs-1 & 2 normally should have been in

the house of PW-4. Once we came to such a conclusion, then we can not simply reject the testimonies of PWs-1 & 2, if otherwise their

testimonies infuse confidence in the minds of the court. We have carefully examined the testimonies of PWs-1 & 2, in particular, the cross

examination and we do not find anything which would persuade this court to discredit their testimonies. Much was commented on the failure of

PWs-1 & 2 from going to the rescue of PW-4, Both the witnesses have categorically stated that when they attempted to go near and help PW-4,

they were threatened by the 2nd accused and naturally, PWs-1 and & 2, who were unarmed should have got scared and did not proceed near, to

help PW-4. The complaint to PW-18, the Sub Inspector of Police was given by PW-1 even by 5.30 A.M. and that the said complaint contains all

the relevant details.

With regard to the submission of non examination of independent witnesses is concerned, it has not to be pointed out that from the evidence of

PWs-1 & 2, it is amply clear that only after the attack by A-3 and A-4 on PW-4 and by A-1 on the deceased, PWs-1 and 2 raised alarm and

only subsequently, the neighbour arrived. That being so, the neighbours could not have witnessed the attack on the deceased and PW-4. Of

course, PW-4 stated in his cross examination that the occurrence was witnessed by others. One has to remember that it was PW-4, who received

as many as 5 stab injuries and hence he might not have noted correctly and remembered as to when exactly the neighbours arrived at the scene of

the occurrence. We do not propose to attach any importance to the said deposition of PW-4 once we accept the testimonies of PWs-1 and 2. In

fact, we also point out that PW-4 has deposed that the occurrence went on for one hour which on the face of it, has to be rejected.

PW-4, as already stated, had received as many as 5 incised injuries, who has deposed that before attacking him, the first accused came out

openly saying that PW-4 escaped even after murdering his brother Annadurai and that he would not go without finishing him off. After saying so,

PW-4 was attacked by A-3. That apart, there was also an electric bulb burning with 100 watts capacity nearby and that because of which the

witnesses could identify the assailants. Simply because the availability of the light has not been mentioned in the complaint given by PW-1 to PW-

18, this Court need not disbelieve that part of the prosecution case particularly when the court is satisfied for other material available on record.

Hence, there could not have been any difficulty for PWs-1, 2 and 4 to identify the assailants in those circumstances. PW-4 who had sustained

injuries certainly would not have left the real assailant and implicated the accused falsely. An argument has been advanced to the effect as to how

many person attacked PW-4, there is no consistent version viz., whether two persons or four persons. Inasmuch as now before Court PW-4 has

categorically stated that he was attacked only by two persons viz.. A-3 and A-4, this Court does not find anything serious in the so-called

discrepancy. In the result, this court is inclined to accept the testimonies of PWs-l, 2 & 4.

This Court may say that though a submission is made to the effect that the deceased and PW-4 and could have been attacked by some other

enemics of PW-4, the same has not been substantiated. Only a baid suggestion was put to the witness PW-4 in this regard. As to who are all the

enemies of PW-4 has not even been mentioned before Court by way of putting it to the witnesses.

Learned counsel for the appellant then contended that even assuming the prosecution has proved its case beyond all reasonable doubts, A-1

cannot be found guilty u/s 302 IPC. And at best he can be held guilty only under Section-304 Part II IPC. In support of his contention, the learned

counsel put forth two submissions viz., (a) that A-1 had no motive to attack the deceased and only when the deceased came suddenly in the

quarrel between himself and PW-4, he stabbed him. that too only once, (b) Secondly, he contended that the deceased died only after two days at

the CMC Hospital, Coimbatore and that the nature of treatment given to the deceased during that period has not been made known to the court

by marking the case sheet or by examining the doctor concerned, who treated the deceased.

Straight away, we mention that there is considerable force in the above submissions made by the learned counsel for the appellants. The

testimonies of PWs-1, 2 and 4 are to the effect that after the attack by A-3 and A-4 on PW-4, the deceased came to prevent when he was

stabbed by the first accused with the spear on his stomach. It is not the case of the prosecution that these appellants/accused had any motive or

grievance against the deceased. He might have had the knowledge that the injury intended to be inflicted would be sufficient in the ordinary course

of nature to cause death, but certainly, he had no intention even according to the prosecution to inflict such an injury.

The ruling relied on by the learned counsel for the appellants in this regard, is 1999 SCC (Cri) 410 (K. Ramakrishnan Unnithan v. State of

Kerala.) and we are of the view that the same will apply to the factor and circumstances of this case.

That was also a case where the accused stabbed the deceased on his abdomen with knife and in fact, the Doctor noted an incised wound of 4 c.m.

long below the umbilicus, left to the mid line of the body with a part of the intestine protruding out and he had also deposed that the said blow no

doubt was quite severe. The Court took the view that in the absence of motive and intention and particularly when single stab was given, the culprit

can be held guilty only u/s 304 Part II IPC. We deem it necessary to quote the relevant paragraph :

The question that remains for consideration is whether on the materials on record it can be said that the appellant gave the blow on the deceased

with the intention of causing murder of the deceased so as to be convicted u/s 302 IPC. The eyewitness account of the three eyewitnesses is to the

fact that when PW-1, cried aloud, his sister rushed there and at that point of time, his father, the deceased came out, opening the door and asked

as to why his son was being beaten up and then the appellant stabbed the deceased on his abdomen with the knife. The post mortem report of the

deceased indicates existence of a sutured incised wound inverted L-shaped on the left side of the abdomen, the vertical limb was parallel to the

midline, 4 cm. in length and the horizontal limb from its upper end measure 3 cm and was placed 1.3 cm to the left of the midline and the junction

of the two limb were at the level 25 of umbilicus. The wound entered the abdominal cavity. The doctor PW-14, who was working as a Tutor in

Surgery, Medical College, Trivandrum and was in the casualty ward on 17-4-1985, in his evidence stated that the deceased had an incised wound

4 cm. long below the umbilicus, left to the midline of the body with a part of the intestine protruding out and that is the only injury. The Doctor who

conducted the autopsy, PW-9 in his evidence also stated that though there are three injuries on the deceased as per the post mortem report, but

injuries 1 and 3 are surgical injuries and injury 2 is the inflicted injury. Thus it is established beyond reasonable doubt that the appellant had given

one blow but the blow no doubt was quite severe, as a result of which the intestines had protruded out. It is however crystal clear that the

appellant had no animosity against the deceased and he was involved because of the altercations with PW-1. The scenario in which the appellant

has been stated by the eyewitnesses to have given one blow on the deceased, is difficult for us to hold that he gave blow in question either with the

intention of causing murder of the deceased or he can have said to have the requisite knowledge that death would otherwise be the inevitable

result. In such a situation.; even on accepting the prosecution case, we hold that the accused did not commit the offence u/s 302 but under Part II

of Section 304 IPC. We, accordingly, set aside the conviction of the appellant u/s 302 IPC and instead, convict him u/s 304 Part II.

We also find substance in the submission that the non-examination of the Doctor, who treated the deceased at the C.M.C. Hospital.

Coimbatore and failure to produce the case sheet would come to rescue of the accused from being found guilty u/s 302 IPC. As rightly pointed out

by the learned counsel for the appellant, had the case sheet been marked and the Doctor who treated the deceased was examined, the accused

would have been in a position to examine the same and cross examine on the aspects required.

In this regard. Learned counsel placed reliance on the ruling of the Supreme Court reported in Harish Kumar Vs. State (Delhi Administration),

, wherein the Supreme Court pointed out that the Court was not given proper materials to examine the nature of treatment given to the deceased.

We hereunder extract the two relevant para-graphs:-

The facts in brief are that on March 19, 1973 being the Holi Day, the appellant and one Rajan Mani went to the shop of the deceased bearing No.

1259/A/B situated at Balbir Nagar, Shahdra, New Delhi and requested him to close the tea shop which he was vending and asked him to take

part in playing Holi. Thereon the deceased refused to accede to their request. Thereafter, in a huff the appellant and Rajan Mani went away with a

dire threat to the deceased and his father Ved Prakash, PW-1, who remonstrated against the threat. One hour thereafter the appellant came

holding a Gupti (sharp edged weapon) in his right hand to the shop by which time, the deceased was closing the shop. Rajan Mani took the

deceased in his arms and held him back. The appellant inflicted a fatal blow near the neck and also gave other minor injuries. PW-1 and PW-3

have seen the occurrence. The deceased was made to walk for a distance of 25-30 feet and thereafter he fell down at the house of PW-4. Then

he was taken to the hospital. The deceased died two days thereafter, namely, on March 21, 1973. PW-12, the Doctor conducted the autopsy and

found that there were as many as nine injuries and Injury No. 2 was found to be fatal which in the opinion of the doctor was sufficient to cause

death in the ordinary course of nature. PW-1 is the father of the deceased. PW-3 is another independent witness, who happened to come over to

the area to his sister''s house to play holi.

...We have seen the nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days

after the injury was inflicted. We have no sufficient material as to the nature of the treatment given to the deceased during those two days.

We accept the submissions made by the learned counsel for the appellant in this regard and we have no hesitation to hold that A-1 can be held

guilty only u/s 304 part II IPC. and not u/s 302 IPC.

As far as A-1 is concerned, in as much as we found him guilty only for an offence u/s 304 Part II IPC, the conviction and sentence u/s 449

IPC. have to be set aside. But however, he is liable to be convicted u/s 448 IPC. and we deem it proper to award rigorous imprisonment for one

year.

We deem it proper to award a sentence of rigorous imprisonment for seven years in respect of this conviction u/s 304 Part II IPC.

The Inspector of Police has categorically deposed that on arrest, A-2 gave a confession statement and the admissible portion of the same is

Ex.P-27 and pursuant to the said statement, he took the police party and the witnesses to a place near Negamam and produced MO-13 country

gun and the same was recovered under Ex.P-29 mahazar in the presence of witnesses viz., PW-19 and another.

Learned counsel for the appellants contended that the testimony of PW-19 cannot be accepted because he is an auto-rickshaw owner and he used

to park his auto-rickshaw near Pollachi Police station and therefore, he is an obliging witness. We do not see any force in this submission. Simply

because PW-19 is parking his auto-rickshaw near Pollachi Police station, he cannot be termed as a police witness and he has deposed falsely

before Court. We accept the testimonies of PWs-19 and 20 and hold that the country gun MO-12 was recovered only pursuant to the statement

made by A-2.

Once we come to such conclusion, we have to hold that A-2 is guilty of an offence u/s 25 [lb] [a] of the Anns Act.

However, with regard to A-2 and A-4, we have no hesitation to hold that they are guilty u/s 448 IPC. The conviction and sentence in this regard

are hereby confirmed.

As far as the attack on PW-4 is concerned, the materials available on record would only show that only A-3 and A-4 are guilty of the said offence

and not the other accused. The conviction as against A-2 u/s 307 IPC. and conviction as against A-1 u/s 307 read with 34 IPC. are hereby set

aside.

While convicting A-3 and A-4 u/s 307 IPC, we impose a sentence of rigorous imprisonment for five years instead of seven years.

In the result,

A-1 is found guilty u/s -448 IPC. and sentenced one year R.I. and to pay a fine of Rs. 500/-. A-1 is guilty u/s 304 Part II IPC. and sentenced to

undergo rigorous imprisonment for seven years. The conviction and sentence u/s 302 IPC, are set aside.

A-2 is guilty u/s 25 (la) (b) of the Indian Anns Act and sentenced to undergo R.I. for one year.

A-3 and A-4 are guilty u/s 307 IPC. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/-.

A-1 and A-2 are acquitted of the conviction u/s -307 read with 34 AND 307 IPC. respectively.

The Appeal is allowed in part.

It is reported that the appellants/accused are on bail. Hence, the learned I Additional Sessions Judge, Coimbatore, shall take steps to commit

them to jail to undergo the remaining period of sentence.