Ayyappan vs State Rep. By Inspector Of Police on 22 December, 2015

[Cites 26, Cited by 0]

Madras High Court

Ayyappan vs State Rep. By Inspector Of Police on 22 December, 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.12.2015 Judgement Reserved on : 27..10..2015 Judgement Pronounced on : 22..12..2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE V.S.RAVI Criminal Appeal (MD) No.109 of 2011 and Criminal Appeal (MD) No.110 of 2011

1.Ayyappan

2.Mani @ Nellikai Mani @ Manikandan

3.Murugan

4.Mari @ Mariappan ... Appellants in Crl.A.(MD) No.109 of 2011 Mani @ Subramani ... Appellant in Crl.A.(MD) No.110 of 2011

-Versus-

State Rep. by Inspector of Police, Tirunelveli Police Station, Tirunelveli District.

[Crime No.954 of 2008] ... Respondent in both Criminal Appeals PRAYER Crl.A.(MD) No.109 of 2011: Appeal filed under Section 374 of the Code of Criminal Procedure against the conviction and sentence passed by the Additional Sessions Judge, Fast Track Court No.II, Tirunelveli, in S.C.No.109 of 2009 dated 14.02.2011.

Crl.A.(MD) No.110 of 2011: Appeal filed under Section 374 of the Code of Criminal Procedure against the conviction and sentence passed by the Additional Sessions Judge, Fast Track Court No.II, Tirunelveli, in S.C.No.109 (A) of 2009 dated 14.02.2011.

For 1st Appellant in Crl.A.(MD)No.109 of 2011 :Mr. S.Hameed Ismail For Appellants 2 to 4 in Crl.A.(MD) No.109 of 2011 :Mr.M.Subash Babu For Appellant in Crl.A.(MD) No.110 of 2011 :Mr.M.Subash Babu Assisted by Mr.G.Karuppasamy Pandian For Respondent in both Criminal Appeals :Mr.C.Ramesh, Additional Public Prosecutor :COMMON JUDGEMENT S.NAGAMUTHU.J, The appellants in Crl.A.(MD) No.109 of 2011 are accused in S.C.No.109 of 2009 and the appellants in Crl.A.(MD) No.110 of 2011 is the accused in S.C.No.109(A) of 2009 on the file of the learned Additional Sessions Judge, Fast Track Court No.II, Tirunelveli. The trial court conducted joint trial in both the cases and delivered a common judgment. The appellants in Crl.A.(MD) No.109 of 2009 were arrayed as A1, A2, A4 and A5 and the appellant in Crl.A. (MD) No.110 of 2011 was arrayed as A3. [In this judgement, for the sake of convenience, we refer to the appellants in the order of array before the trial court]. They stood charged for offences under Sections 148, 302 and 506(ii) of IPC. By judgement dated 14.02.2011, the trial court acquitted all the five accused from the charge under Section 506(ii) of IPC, but convicted them for the offences under Sections 148 and 302 of IPC and sentenced all of them to undergo imprisonment for life and to pay a fine of Rs.20,000/- each in default to undergo rigorous imprisonment for one year for the offence under section 302 of IPC and to undergo rigorous imprisonment for one year for offence under Section 148 of IPC. Challenging the said conviction and sentence, the appellants are before this court with these criminal appeals.

2. The prosecution case in brief is as follows:- The deceased in this case was one Mr.Chellappa. He was residing at No.153, Bharathiar Street, Tirunelveli Town, along with his wife and family members. PW.1 is his wife. P.W.5 & P.W.6 and one Durai are the friends of the deceased. The mother of the deceased was owning a land near Arungiri Theatre in Tirunelveli Town. The father of A1 was enjoying the said property as a tenant. After the demise of his father, A1 and the other legal heirs of his father did not take care of the land. The land remained barren. The deceased, his brother and his mother, therefore, decided to sell the property. The deceased was authorized by his mother and brother to negotiate for selling the land. A1 was opposing the said move. A1 claimed that he would sell the land and pay the sale consideration to the deceased and his mother. This was not agreeable to the deceased. This resulted in frequent quarrels between the two families and the same developed into a strong enmity. One of the relatives of the deceased intervened and tried to settle the issue. On 10.09.2008, he had brought A1 and the others to the house of the deceased for a mediation in which everyone, except A1, agreed for the settlement. A1 boycotted the mediation. Except A1, all other persons entered into a compromise (vide Ex.P1) and, pursuant to the same, the deceased made arrangement to sell the property to one Mr.Ganesh. This came to the knowledge of A1. A2 and A3 also joined hands with A1. The said proposal for sale further infuriated A1 to A3.

3. Ten days prior to the alleged occurrence, A1 to A3 came to the house of the deceased and quarreled with him as the deceased did not agree for A1 to sell the property. A1, challenged the deceased and went away along with A2 and A3. This is stated to be the immediate motive for the occurrence.

4. On 12.10.2008, at about 08.00 p.m., the deceased had returned to his house. He was watching television in his house. At around 09.30 p.m., his friends P.Ws. 2, 5 and 6 and one Durai had come to his house. On seeing them, the deceased came out of the house and sat on the motor cycle of PW.2 which was parked just in front of his house and was engaged in a chat with his friends. P.W.1 was sitting on the steps in the main entrance of the house. At that time, it is alleged that five persons namely, A1 to A3 and two other persons [later on identified as A4 and A5] came in front of the house of the deceased. A2 was having sword in his hand and the others had each one aruval. On reaching the deceased, A1 shouted at the others to kill the deceased. So saying, A1 cut the deceased on the back of his head with aruval. On sustaining injury, the deceased fell down from the motor cycle. Then, A2 cut him with sword on his neck; A3 cut him with aruval on the chest; A4 cut him with aruval on the face while A5 cut him with aruval on his chest. On seeing the said occurrence, P.W.1 fainted. Immediately, all the five accused fled away from the scene of occurrence. The deceased died instantaneously. The occurrence was around 10.15 p.m. on 12.08.2008.

5. Immediately P.W.1, with the help of others, went to the Tirunelveli Town Police Station and presented a written complaint. P.W.18, the then Sub Inspector of Police, Tirunelveli Town Police Station registered a case on the said complaint in Crime No.954 of 2008 under Sections 147, 148, 302 and 506(ii) of IPC. Ex.P.2 is the complaint and Ex.P.27 is the printed FIR.

6. P.W.19 took up the case for investigation. At 12.45 a.m. on 13.10.2008, he proceeded to the place of occurrence and prepared an observation mahazar [Ex.P.15] and rough sketch [Ex.P.28] in the presence of P.W.8 and another witness. Then, he recovered the blood stained earth [M.O.8] and sample earth [M.O.9] and a pair of chappals [M.O.10] from the place of occurrence under a Mahazar [Ex.P.16] in the presence of the very same witnesses. Police sniffer dog was brought to the place of occurrence. But, it did not give any clue. Then, he conducted inquest on the body of the deceased between 01.45 a.m. and 3.15 a.m. and prepared an inquest report [Ex.P.29]. Then, he forwarded the body for autopsy. P.W.11 Dr.Selvamurugan conducted autopsy on the body of the deceased on 13.10.2008 at 11.10 a.m. . He found the following ante mortem injuries:-

"1. Abrasions 7 x 1 cm over left side of abdomen , 12 x 1 cm over right side of chest, 7 x 1 cm over outer aspect of left side of chest, 4 x 1 cm over right upper arm.

2.An oblique gapping heavy cut injury of size 15 x 2 x 2 cm over left side of face. It cuts the left eye brow , left eye and left cheek.

3. An oblique gapping heavy cut injury of size 8 x 2 x 2 cm over back of neck it cuts the underlying muscles.

4. A horizontal gapping heavy cut injury of size 17 x 3 x 5 cm over back of upper part of neck, extending from right ear to injury No.3, it cuts the underlying muscles, arteries, nerves, 3rd cervical vertebrae and spinal cord.

5. An oblique gapping heavy cut injury of size 3 x 2 x 1 cm over right side of chin.

6. An oblique gapping heavy cut injury of size 16 x 3 x 7 cm over front of upper part of neck, it cuts the underlying muscles, arteries, nerves and thyroid cartilage.

7. An oblique gapping heavy cut injury of size 3 x 2 x 2 cm over left shoulder, it cuts the underlying muscles.

8. A horizontal gapping heavy cut injury of size 10 x 3 x 5 cm over lower part of neck, it cuts the underlying muscles arteries, nerves and trachea.

9. An oblique gapping heavy cut injury of size 9 x 4 x 6 cm over left side of upper chest , it cuts the underlying left clavicle, muscles, ribs (2 and 3) and left lung.

10. An oblique gapping heavy cut injury of size 6 x 2 x 3 cm over left side of chest, it lies outer to injury No.9 ot cuts the underlying left clavicle and muscles.

11. An oblique gapping heavy cut injury of size 16 x 3 x 7 cm over middle and left side of chest. It cuts the underlying muscles left 3rd rib, sternum, arteries and left lung.

12. An oblique gapping heavy cut injury of size 14 x 3 x 6 cm over middle and left side of chest , it lies 2 cm below injury No.2. It cuts the underlying muscles , left 4th rib, sternum, arteries and left lung."

Ex.P.20 is the Post-mortem Certificate. He gave opinion that the injuries found on the deceased would have been caused by weapons like M.O.1 to M.O.5 and he gave further opinion that the deceased would appear to have died of shock and hemorrhage due to heavy cut injuries to neck and chest. The injuries 4, 6, 8, 9, 11 and 12 were fatal injuries.

7. On 14.10.2008, A1 to A4 surrendered before the learned XXIII Metropolitan Magistrate, Saidapet, Chennai. On the orders of the learned Judicial Magistrate No.IV, Tirunelveli, at his request, he took custody of A1 to A4 on 22.10.2008 at 07.00 p.m. While in the custody, A1 gave a voluntary confession in which he disclosed the place where he had hidden the aruval. In pursuance of the same, in the presence of P.W.3 and another witness, he took P.W.19 and the witnesses to Durgai Amman Temple and produced an aruval from the nearby bush. At 10.30 p.m. on 23.10.2008, A2 gave a voluntary confession in the presence of the same witness in which he disclosed the place where he had hidden the sword. In pursuance of the same, he took P.W.19 and witnesses to Pillaiyar Temple and produced a sword from a bush. P.W.19 recovered the same under a mahazar. At 01.00 a.m. on 23.10.2008, A3 gave a voluntary confession in the presence of the same witness in which he had disclosed the place where he had hidden the aruval. In pursuance of the same, he took P.W.19 and the witnesses to Durgai Amman Temple and produced an aruval from a nearby bush. P.W.19 recovered the same in the presence of the very same witnesses under a mahazar. On 24.10.2008 at 4.30 a.m. A4 gave a voluntary confession in the presence of the same witnesses in which he had disclosed the place where he had hidden an aruval. In pursuance of the same, he took P.W.19 and the witnesses to Pillaiyar Temple and produced an aruval from a nearby push P.W.19 recovered the same under a mahazar. Thereafter, he returned to the police station along with the accused and the recovered material objects and forwarded the accused to the court for judicial custody. He also forwarded the materials objects to the court. On 26.10.2008, at about 5.00 a.m. P.W.19 arrested A5 at Kurukkuthurai Murugan Temple in the presence of P.W.4 and another witnesses. On such arrest , he gave a voluntary confession in the presence of the same witnesses in which he had disclosed the place where he had hidden an aruval. In pursuance of the same, he took P.W.19 and the witnesses to Durgai Amman Temple and produced an aruval from the hideout. P.W.19 recovered the same under a mahazar. On returning to the police station, he forwarded the accused to court for judicial remand and handed over the material objection to the court. Then he made a request to the court for forwarding the materials objects for chemical examination. The report revealed that there were human blood stains found on all the material objects except the sample earth. According to the serology report, it was of 'B' Group.

8. During the course of investigation, P.W.19 made a request on 05.11.2008 for conducting Test Identification Parade. P.W.10, the then Judicial Magistrate No.III, Tirunelveli held Test Identification Parade on 15.11.2008 in the Central Prison at Palayamkottai in which P.W.1, P.W.2, one Durai and Ramasubramanian were asked to identify the culprits. P.W.1 identified A1 to A3 and A5 alone and she did not identify A4. P.W.2 could not identify any of the accused in the test identification parade. Similarly, Durai and Ramasubramanian also could not identify any of the accused. P.W.19, collected the medical records, examined the Doctors, collected photographs, examined the officials from the Tamil Nadu Electricity Board and finally laid final report against all the five accused before the learned Judicial Magistrate No.IV,Tirunelveli.

9. Based on the above materials, the trial court framed charges as detailed in the first paragraph of the judgement. The accused denied the same. In order to prove the same, on the side of the prosecution, as many as 19 witnesses were examined, 30 documents and 11 materials objects were marked.

10. Out of the said witnesses, P.W.1, the wife of the deceased claims to have witnessed the entire occurrence. She has also spoken about the motive for the occurrence and the complaint made by her. The other eye- witnesses namely, P.Ws.2, 5 and 6 have turned hostile and they have not supported the case of the prosecution on the crucial aspects. P.W.3 has spoken about the confessions made by A1 to A4 while in police custody and the consequential recoveries of the material objects. P.W.4 has spoken about the arrest of A5, the disclosure statement made by him and the consequential recovery of aruval. P.W.7 has spoken about the motive. P.W.8 has spoken about the preparation of observation mahazar, rough sketch, recovery of blood stained earth and the sample earth and a pair of chappals from the place of occurrence. P.W.9 has not stated anything incriminating against the accused. P.W.10, the learned Magistrate has spoken about the identification parade held by him. P.W.11 Doctor has spoken about the autopsy conducted by him on the body of the deceased and his final opinion regarding the cause of death. P.W.12 and P.W.13 are the officials from the TNEB who have stated that on the date of occurrence, there was electricity failure at the place of occurrence between 10.30 p.m. to 12.00 midnight. P.W.14 has spoken about the photographs taken on the dead body at the place of occurrence. P.W.15 the Head Clerk of the Court of Judicial Magistrate has stated that he forwarded the material objects for chemical examination on the orders of the learned Judicial Magistrate. P.W.16, the Head Constable attached to Tirunelveli Town Police Station has stated that he carried the Complaint and the FIR from the police station and handed over the same to the learned Judicial Magistrate at 1.30 a.m. on 13.10.2008. P.W.17 has stated that he carried the dead body from the place of occurrence to the hospital for post-mortem. P.W.18, the Sub Inspector of Police has spoken about the presentation of the complaint by P.W.1 and the registration of the FIR. P.W.19 the Investigating Officer has spoken about the entire investigation and the final report filed by him.

11. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, they denied the same. However, they did not choose to examine any witness on their side nor did they mark any document. Their defence was a total denial. According to them, there was electricity failure at the crucial time and in the darkness some unidentifiable assailants had committed murder of the deceased with which the accused have got no connection at all. Further, according to them, because of the settlement of the dispute regarding the land, there was no motive for them to commit murder of the deceased.

12. After the examination of the accused under Section 313 of Cr.P.C. was over, A3 absconded and, therefore, the case against him was split up and numbered as S.C.No.109A of 2009. After some time, A3 was secured. Thereafter, the trial court heard arguments in both the cases jointly. Finally, the trial court convicted the appellants/accused under Sections 148 and 302 of IPC and accordingly punished them. That is how, they are before this court with these criminal appeals.

13. We have heard the learned counsel appearing for the appellants and the learned Additional Pubic Prosecutor for the State and also perused the records carefully.

14. The learned counsel for the appellants would submit that the conviction of the appellants solely based on the evidence of P.W.1 is not sustainable for various inherent weaknesses in the evidence of P.W.1 and in the other circumstances of the case of the prosecution. According to the learned counsel, in so far as A4 is concerned, P.W.1 had not identified him during the test identification parade. His name does not find a place in the FIR also. For the first time, he has been identified by P.W.1 only in court during trial. The learned counsel would submit that such identification made for the first time in court cannot be believed and based on the same, A4 ought not to have been convicted.

15. So far, A5 is concerned, according to the learned counsel, though he was identified during test identification parade by P.W.1, that will not ensure the truth in the allegations made by P.W.1. According to the learned counsel, the identifying features of P.W.5 had not been mentioned either in the complaint or during investigation. In the absence of mentioning of the identifying features of A5 in the complaint and during investigation, the identification of the said accused by P.W.1, both during test identification parade and before the court, cannot be believed. He would further submit that based on the solitary evidence of P.W.1, A5 ought not to have been convicted.

16. So far as A1 to A3 are concerned, the learned counsel would submit that there was no motive for them to commit the murder of the deceased. He would further submit that there was electricity failure at the place of occurrence at the crucial time and in the pitch darkness, some unidentifiable assailants had killed the deceased. He would further submit that though the names of A1 to A3 have been mentioned in the FIR, on that score, P.W.1 cannot be believed because P.W.1 is not a truthful witness. According to the learned counsel, P.W.1 has implicated A4 and A5 at a latter point of time, which shows that P.W.1 is not fully believable in the absence of any corroboration. According to him, the trial court ought not to have acted upon the evidence of P.W.1 alone. He would further submit that according to P.W.19, sniffer dog was brought to the place of occurrence. The service of sniffer dog was had by P.W.19 because the assailants were not known. This, according to the learned counsel , would create a doubt in the case of the prosecution. The learned counsel would thus submit that the prosecution has failed to prove the case against the appellants/accused beyond reasonable doubts and therefore, they are entitled for acquittal.

17. The learned Additional Public Prosecutor would vehemently oppose these appeals. According to him, on the score that the other eye-witnesses examined by the prosecution to speak about the occurrence have turned hostile, the evidence of P.W.1 cannot be brushed aside. He would submit that the presence of P.W.1 cannot be disbelieved because the occurrence had taken place just in front of the house of the deceased. He would further submit that at the earliest point of time, P.W.1 had mentioned in the complaint that there were five assailants out of whom she named A1 to A3. The FIR was registered within half an hour from the time of occurrence and the same had reached the hands of the learned Judicial Magistrate without any delay. He would further submit that though P.W.1 is the solitary witness her evidence is fully believable and based on the same the trial court was right in convicting all the five accused.

18. So far as A4 is concerned, the learned Additional Public Prosecutor would submit that though A4 was not identified during the test identification parade, on that score, the identification made by P.W.1 in court during trial cannot be disbelieved. A5 was duly identified by P.W.1 both during the test identification parade as well as during trial. He would further submit that the motive has also been spoken to clearly by P.W.1and P.W.7. He would further submit that medical evidence duly corroborates the eye-witness account. The recovery of materials objects at the instance of the accused also further strengthens the case of the prosecution, he contended. Thus, according to the learned Additional Public Prosecutor, the conviction and sentence imposed by the trial court deserves to be confirmed.

19. We have considered the above submissions carefully.

20. Admittedly, P.W.1 is the solitary eye-witness since the other eye witnesses namely, P.W.2, P.W.5 and P.W.6 have turned hostile and they have not supported the case of the prosecution on crucial aspects. The other two persons namely, Mr.Durai and Mr.Ramasubramanian, who participated in the Test Identification Parade, have not been examined. Now, the question is, whether the conviction and sentence imposed on all these five accused could be sustained based solely on the testimony of P.W.1.

21. The presence of P.W.1 at the place of occurrence is disputed by the defence. The occurrence had taken place just in front of the house of P.W.1 and the same is not disputed. P.W.19 has spoken about the observation mahazar which shows that the dead body was found just in front of the house of the deceased. P.W.1 claims that she was sitting in the front entrance of the house when her husband was sitting on the motorcycle and talking to his friends viz., P.W.2 and others. P.W.2, though has turned hostile, has supported the case of the prosecution to some extent. He has stated that at 10.15 p.m., he had gone to the house of the deceased along with his friend one Durai and P.W.5 Mr.Nangaiyar Rajan. He has further stated that when the deceased was talking to them while sitting on the motorcycle, 4 or 5 people rushed to the place of occurrence with weapons shouting at the deceased. He has further stated that out of fear, he started running and after running to some distance he returned and found the deceased in a pool of blood near the motorcycle. He took P.W.1 in an auto to make a complaint. Thus even though this witness has turned hostile, his evidence could be believed in part to corroborate the evidence of P.W.1 in respect of the place of occurrence, time of occurrence and also the presence of P.W.1. P.W.5 is yet another eye witness. He has also stated about the time of occurrence and place of occurrence. To that extent his evidence would also corroborate the evidence of P.W.1. Thus, from out of the evidences of P.W.1 as well as from the evidences of P.W.2, it has been established that P.W.1 was present at the time of occurrence and she witnessed the entire occurrence. Further going by the time of occurrence, it is quite natural for women folk to be in the house during the night hours. For these reasons, we are rejecting the argument of the learned counsel for the appellants that P.W.1 would not have been present at the time of occurrence.

22. The next question is whether she could be believed further in respect of her testimony that the assailants were these five accused. Of course, the FIR has been promptly launched within half an hour from the time of occurrence and the same had reached the hands of the learned Magistrate without any delay at 1.30 a.m. on 13.10.2008 itself. It is true that prompt launching of FIR would, to some extent, guarantee the truth of the allegations made therein. But simply because there had been no delay in making the complaint and forwarding the FIR to the court, invariably, under all circumstances, the court cannot safely conclude that the allegations made therein are true. It all depends upon the facts and circumstances of each case. In the instant case, therefore, it is necessary for this court to analyze the facts and circumstances to find whether the testimony of P.W.1 could be believed as against all the five accused.

23. Admittedly, there are five accused now. In the complaint, P.W.1 had mentioned the names of A1 to A3 alone though she had mentioned that the number of total assailants was five. So far as the other two unnamed assailants are concerned, P.W.1 had not mentioned the identifying features of those two persons. During investigation also she did not mention the identifying features of those two unnamed assailants. The test identification parade was held on 15.11.2008. Though the accused surrendered before the court on 14.10.2008 itself and A5 was arrested on 26.10.2008 itself, absolutely, there is no explanation for the delay in holding the test identification parade. The request for holding test identification parade was made only on 05.11.2008. In a similar circumstance, the Hon'ble Supreme Court has held in Bali Ahir and others v. State of Bihar, AIR 1983 SC 289 that delay of four days in holding test identification parade is fatal. In yet another case in State of A.P. v. Dr.V.Ramana Reddy , (1991 Crl.L.J. 2703), the Hon'ble Supreme Court has held the similar view. In the instant case, absolutely, there is no explanation for the delay of about one month in holding the test identification parade. Therefore, as held by the Hon'ble Supreme Court in the above cases, the test identification parade cannot be given weightage of.

24. During test identification parade, P.W.1 did not identify A4 on all the three occasions when she was asked to identify. She identified A4 only during trial. There is no explanation from P.W.1 as to why she was not at all able to identify A4 during test identification parade and as to how she was able to identify A4 during trial alone. In the absence of any such explanation and in the absence of mentioning of identifying features of the accused in the FIR and during investigation, we find it difficult to believe the identification of A4 made by P.W.1 for the first time in court. As we have already pointed out since there is no other evidence available on record to corroborate the evidence of P.W.1 as against A4, it is too difficult to sustain the conviction of A4 based on the evidence of P.W.1 alone on account of the above infirmities.

25. Let us now turn to A5. Of course, he was identified by P.W.1 during test identification parade. It is the case of the accused that unidentifiable assailants had caused the death of the deceased in darkness. P.W.2 was asked to identify the accused during test identification parade. According to the learned Judicial Magistrate, P.W.2 was not able to identify any of the accused including A5 during test identification parade. Two other persons by name Durai and Ramasubramanian were also asked to identify all the accused during test identification parade. In other words, they are eye witnesses to the occurrence. They also told P.W.10 that the were unable to identify the assailants. P.W.5 and P.W.6 were not taken for identification parade. At any rate, since Durai and Ramasubramanian, the alleged eye-witnesses to the occurrence were not in a position to identify A5 during test identification and since P.W.1 had not mentioned the identifying features of A5, either in the complaint or during investigation and since the inordinate delay in conducting test identification parade has not been explained by the prosecution, in our considered view, it is too difficult to sustain the conviction of A5 based on the solitary testimony of P.W.1 which draws corroboration from no other source as against A5.

26. Now turning to the case against the accused 1 to 3, their names have been mentioned at the earliest point of time in the F.I.R. itself. The distance between the place of occurrence and the police station is hardly one kilo meter and the same has been admitted by P.W.18. P.W.1, has stated that on witnessing the occurrence, she fainted for some time and after recovering, she along with P.W.2 had gone to the police station and made a complaint at 10.45 p.m. P.W.18 has stated that the F.I.R. was registered between 10.45 p.m. to 11.30 p.m. According to the evidence of P.W.16, it was handed over to him at 12.30 a.m. on 13.10.2008. As per the endorsement of the learned Magistrate found on the F.I.R., it is seen that the F.I.R. was received by the learned Magistrate at 01.30 a.m. on 13.10.2008. P.W.16 has also stated that he handed over the F.I.R. at 1.30 a.m. Hence, we wish to reiterate that absolutely there is no delay either in preferring the complaint or in forwarding the same to the learned Magistrate. As we have already pointed out, at the earliest point of time, in the FIR which was promptly launched, the participation of A1 to A3 in the occurrence has been clearly mentioned. This corroborates the evidence of P.W.1 so far as A1 to A3 are concerned.

27. The learned counsel for the appellants would submit that P.Ws.18 and 19 have admitted that the Police sniffer dog was brought to the place of occurrence, which according to the learned counsel, would indicate that the assailants were not known. Though attractive, this argument does not persuade us for the simple reason that P.W.18 has stated during cross examination that even while the F.I.R. was being registered, he sent intimation to the Police Sniffer Dog squad. P.W.19 would explain that it was so done because two of the assailants were not known by their names. Though it is true that the records pertaining to the services of the Police Sniffer Dog have not been produced, more particularly the report of Mr.Kancharammasamy, the head of the Police Sniffer Dog Squad has not been produced, on that score, the prosecution cannot be doubted.

28. The learned counsel for the appellants would next contend that the occurrence would have taken place in darkness and therefore the same would not have been noticed by anybody. This argument deserves only to be rejected because P.W.1 herself has stated in her evidence that at the time of occurrence, the street lights were burning and she was able to identify the assailants under the street lights. P.W.2 has also stated about the availability of light. P.Ws.12 and 13, the officials of TNEB have stated that the electricity supply was stopped only between 10.30 p.m. and 12.00 midnight on the date of occurrence. Earlier, in the morning, between 7.30 a.m. to 10.00 a.m. there was failure of electricity. P.W.12 the line-man in- charge of that area has stated that the streetlights were burning and there was no power failure. From these evidences, it is crystal clear that there was sufficient light at the time of occurrence to witness the occurrence and to identify the assailants.

29. The learned counsel would next contend that the accused 1 to 3 were also put up for test identification parade in which P.W.1 identified them. The learned counsel would point out that P.W.1 had identified A5 also. It is the contention of the learned counsel that, had it been true that A1 to A3 were already known to P.W1 and that they participated in the occurrence, there would have been no occasion or need for these three accused for being put up in the test identification parade. P.W.19 has explained that in order to further strengthen their case, he made a request to conduct test identification parade in respect of accused 1 to 3 also. In our considered view, though the test identification parade conducted in respect of accused 1 to 3 was unnecessary, on that score, we cannot rush to the conclusion that the assailants were not known to P.W.1.

30. The learned counsel for the appellants would next contend that one Mr.Durai and Mr.Ramasubramanian who participated in the test identification parade, as eye-witnesses, were not examined during trial. The learned Additional Public Public Prosecutor would explain that these two witnesses had been won over by the accused party. He would further submit that since these two witnesses had not identified the accused in the test identification parade, they were not examined. We find force in the said argument. These two witnesses belong to the same place and they had acquaintance with A1 to A3. Even then, in the test identification parade itself they did not identify A1 to A3 who were well-known to them. This would only go to show that these two witnesses had been won over even before the conduct of the test identification parade. Therefore, in our considered view, the non- examination of these two witnesses would not in any manner affect the case of the prosecution.

31. The learned counsel would next contend that though the occurrence had taken place in the midst of a busy locality, no independent witness has been examined. A perusal of the records would go to show that a number of persons from that locality were examined during investigation and they were also cited as eye-witnesses in the final report, but, the learned Public Prosecutor who conducted the case before the trial court had dispensed with the examination of these eye-witnesses on the ground that they had also been won over by the accused party. In our considered view, the learned Public Prosecutor, who conducted the case before the trial court, instead of dispensing with the said witnesses, should have examined them in court and elicited some facts at least which would have been useful for the prosecution to corroborate the evidence of P.W.1. Though we do not appreciate the action of the learned Public Prosecutor in dispensing with the examination of these eye-witnesses, on that score we cannot acquit A1 to A3 inasmuch as we are convinced that the evidence of P.W.1 is sufficient to hold A1 to A3 guilty.

32. The learned counsel would next contend that P.W.18, the Sub Inspector of Police, who registered the FIR, is a neighbour of the deceased and, therefore, there is every possibility that the records would have been fabricated by him so as to appear as though there was no delay in registering the FIR and in forwarding the same to the court and also in the examination of the witnesses. It is true that P.W.18 has admitted that he is a neighbour of the deceased, but, there is no more evidence on record even to remotely infer that P.W.18 is an interested witness in the affairs of the deceased and, therefore, he would have fabricated the records falsely against these accused.

33. The learned counsel would lastly submit that the evidence of P.W.1 alone may not be sufficient to convict these accused in the light of the above improbabilities and inconsistencies. In this regard, we may state that expecting corroboration is only a rule of caution as has been consistently held by the Hon'ble Supreme Court. It is not the quantity, but, it is only the quality of evidence that matters. There is no prohibition in law to act upon the uncorroborated testimony of a solitary witness. The prudence only requires that the evidence of the solitary witnesses needs to be closely scrutinized and if it satisfies the judicial conscience of the court, even in the absence of corroboration from any other source, the evidence of the solitary witness can be acted upon to convict the accused. In Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, the Hon'ble Supreme Court has held that the testimony of a witness who is partly believable and partly unbelievable, requires corroboration from independent source. Thus, the testimony of a witness who is fully believable does not require any corroboration in every case. It all depends upon the quality of the evidence of the solitary witness. Applying the same yardstick to the facts of the present case, as we have already stated, if we analyze the evidence of P.W.1, it is obvious that the evidence of P.W.1 is so cogent and convincing upon which intrinsic reliance can be made by this court without expecting corroboration from any other independent source. Further, it is not as though there is no corroboration to the evidence of P.W.1 from any source at all. As we have already pointed out in the earlier paragraph of this judgement, in respect of date of occurrence, time of occurrence, number of accused, availability of light, the presence of P.W.1 and the fact to the extent that at the time of occurrence the deceased was sitting on the motor cycle, the evidence of P.W.2 and P.W.5 duly corroborate the evidence P.W.1. The recoveries of the material objects namely, the weapons, on the confessions of A1 to A3 also lend corroboration in support of the case of the prosecution.

34. During the course of arguments, the learned Additional Public Prosecutor raised a legal issue questioning the competence of the learned XXIII Metropolitan Magistrate, Saidapet, Chennai, to accept the surrender of A1 to A4 on 14.10.2008 as he had no territorial jurisdiction over the place where the occurrence had taken place. According to the learned Additional Public Prosecutor, the learned XXIII Metropolitan Magistrate, Saidapet, Chennai, ought not to have accepted the surrender of A1 to A4 and remanded them to custody.

35. But, the learned counsel for the appellants submitted that there was nothing illegal on the part of the learned XXIII Metropolitan Magistrate, Saidapet, Chennai, in accepting the surrender of A1 to A4 and in remanding them to custody as according to the learned counsel, the said Magistrate has power under sub-section (2) of Section 167 of the Code of Criminal Procedure to accept the surrender of the accused and to remand them to custody notwithstanding the fact that he has no jurisdiction either to try the case or to commit the same to the court of sessions.

36. The learned Additional Public Prosecutor has brought to the notice of this court an Article under the title ?Kill, Surrender and Get Remand? authored by Thiru.P.N.Prakash, Advocate [presently a Hon'ble Judge of this Court) reported in 2012 (1) CTC 132] wherein the author has made a critical note regarding the practice prevailing in this State. Since this legal issue is often raised before this court at the bar we deem it necessary to examine the same and to settle the position.

37. Article 21 of the Constitution of India, which is considered to be the heart and soul of the Constitution guarantees the protection of life and personal liberty of any person. The deprivation of such liberty could be made only by following the procedure established by law. The procedure enshrined in Article 21 of the Constitution of India must not only be established by law but that must be just, fair and reasonable [vide Maneka Gandhi v. Union of India, AIR 1978 SC 597]. Article 22 of the Constitution of India guarantees protection against arrest and detention in certain cases. As per sub-article (2) of Article 22 of the Constitution, every person, who is arrested and detained in custody, shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. In tune with Articles 21 and 22, law has been made by the Parliament in the shape of Section 57 of the Code of Criminal Procedure, 1973 which states "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances for the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court. Thus, as mandated by sub-article (2) of Article 22 of the Constitution and Section 57 of the Code of Criminal Procedure, an arrested person cannot be detained in the custody of the police beyond the period of twenty-four hours without the authorization of a Magistrate. Sub-section (1) of section 167 of the Code of Criminal Procedure, mandates that if the investigation could not be completed within twenty-four hours from the time of arrest, he shall be produced before the nearest Judicial Magistrate.

38. Sub-section (2) of Section 167 of the Code of Criminal Procedure, is important for our discussion in this case. Let us have a look into the same which reads as follows:-

"167. Procedure when investigation cannot be completed in twenty-four hours. - (1) ? ? ? ? ? ? ? ? ?

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that?

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding?

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-

section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I?For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II?If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:

Provided further that in case of woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognized social institution.

... ... ... ... ... ... ... ..."

39. A conjoint reading of sub-section (1) and sub-section (2) would, at the first blush, make it appear as though sub-section (2) could be invoked by a Magistrate provided the accused was arrested and forwarded to the Magistrate concerned. In other words, the impression is that the condition precedent for the Magistrate to authorise the detention of the accused is the arrest of the accused first. This provision came to be interpreted by the Hon'ble Supreme Court in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 wherein in para 48, the Hon'ble Supreme Court has dispelled the above interpretation by holding as follows:-

"48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalistic interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences."

Similar view was taken earlier by a Full Bench of this Court in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu 1983 MLW (Cri) 289.

40. The question as to when a person gets into the custody of the court came up for consideration before the Hon'ble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 wherein speaking for the Bench, Hon'ble Mr.Justice V.R.Krishna Iyer in para 9 of the judgement has held as follows:-

"9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions."

41. The above judgement of the Full Bench of this court in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu 1983 MLW (Cri) 289 was later considered by the Hon'ble Supreme Court in State of Haryana V. Dinesh Kumar, (2008) 3 SCC 222 wherein in paras 25 & 27 of the judgement, the Hon'ble Supreme Court has held as follows:-

"25. We also agree with Mr.Anoop Chaudhary's submission that unless a person accused of an offence is in custody, he cannot move the court for bail under Section 439 of the Code, which provides for release on bail of any person accused of an offence in custody. The precondition , therefore, to applying the provisions of Section 439 of the Code is that a person who is an accused must be in custody and his movements must have been restricted before he can move for bail. This aspect of the matter was considered in Niranjan Singh's case where, it was held that a person can be stated to be in judicial custody when he surrenders before the court and submits to its directions."

? ? ? ...

"27. The interpretation of arrest and custody rendered by the Full Bench in Roshan Beevi's case may be relevant in the context of Section 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to custody but not to arrest, but such custody could subsequently materialize into arrest. The position is different as far as proceedings in the court are concerned in relation to enquiry into offences under the Indian Penal Code and other criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has to surrender to the custody of the court or the police authorities before he can be granted the benefit thereunder."

42. The above judgements in Roshan Beevi, Niranjan Singh, Dinesh Kumar and Deepak Mahajan cases were again considered by the Hon'ble Supreme Court very recently in Sandeep Kumar Bafna v. State of Maharashtra, [2014] 4 Scale 215, wherein the Hon'ble Supreme Court has approved the view taken in all these judgements.

43. From the above judgements, it is crystal clear that an accused, by surrendering before a Magistrate, gets into the custody of the Magistrate and thereafter, the Magistrate concerned has to deal with him under Section 167(2) of the Code of Criminal Procedure. It is also crystal clear that such Magistrate before whom the accused surrenders need not be the one having territorial jurisdiction either to try or commit the case for trial. Irrespective of the fact whether he has territorial jurisdiction to try the case or to commit it to the court of session for trial, if the accused, in connection with any case under investigation, surrenders before a Magistrate on his own, the Magistrate has no discretion to refuse to accept the surrender of the accused before him for any reason.

44. The immediate next question is, after the surrender of the accused, how he has to be dealt with under Section 167(2) of the Code of Criminal Procedure. Obviously, this provision deals with the power of the Magistrate having jurisdiction to try the case and also a Magistrate who has no jurisdiction either to try the case or to commit it for trial. A close reading of the first part of sub-section (2) of Section 167 would make it clear that the Magistrate before whom the accused surrenders, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days in the whole.

45. The latter part of sub-section (2) of Section 167 states that if the Magistrate who has no jurisdiction to try the case or to commit it for trial considers that his further detention is unnecessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction. Here, the expression "unnecessary" needs to be emphasised. This expression employed in sub-section (2) of Section 167 would make it further clear that after the surrender of the accused, the Magistrate concerned, who has no jurisdiction to try the case or to commit it for trial, has to consider whether his further detention is necessary or unnecessary. If the said Magistrate finds that the detention of the accused is unnecessary, then as per the second part of sub-section (2) of Section 167, the Magistrate shall only order the accused to be forwarded to the Magistrate having jurisdiction without authorizing the further detention of the accused to any custody. But, as per the first part of sub-section (2) of Section 167, if the Magistrate has no jurisdiction to try the case and if he finds that detention of the accused is necessary, then, he has to authorise the further detention of the accused provided the investigation is pending.

46. The next question is, as to how the Magistrate could decide whether the further detention of the accused is necessary or unnecessary. In this regard, we may say that this task does not involve any adjudication. It is only the prima facie satisfaction of the Magistrate concerned that matters. But, such prima facie satisfaction cannot be arrived at in vacuum. In order to arrive at such a satisfaction, the Magistrate needs some materials and from the materials or substances placed before him, he is required to arrive at a satisfaction as to whether the further detention of the accused who has surrendered before him is necessary or unnecessary. It may be argued that at that time the Magistrate may not have any material to authorise such detention. Though there is some force in the said apprehension, it cannot be simply said that it is correct. To illustrate, in the event, the accused, while surrendering before the court, produces a copy of the FIR or any other document relating to the case and the identity of the person concerned is also not in doubt, he may get a prima facie satisfaction that his further detention is necessary. Similarly, as soon as the surrender of the accused, the investigating officer or any other police officer acting on his instructions may inform the Magistrate that the person who has surrendered before the court is the one who was involved in the case and that may be suffice for him to get the satisfaction that his further detention is necessary. These situations are only illustrative and not exhaustive. On the contrary, if no material at all is available for the Magistrate to get the satisfaction that the further detention of the person who has surrendered before him is necessary, then, he has no option but to record that his further detention is unnecessary and so, he has to simply forward him to the jurisdictional Magistrate who has jurisdiction either to try or to commit the case for trial to the court of session.

47. If the further detention of the accused is not authorised by the Magistrate having no jurisdiction to try or to commit the case for trial on the surrender of the accused, then, the period of detention for the purpose of police custody or for the purpose of proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure shall not start running from the date of surrender as the same shall start running from the date of remand order to be passed by the jurisdictional Magistrate.

48. During the course of hearing, a doubt was raised at the bar that the Magistrate who has no jurisdiction over the case may find it practically difficult in forwarding the accused to the jurisdictional Magistrate because he may not know as to who the jurisdictional Magistrate is. The solution to this doubt is very simple. Under Section 12 of the Code of Criminal Procedure, the Chief Judicial Magistrate shall have jurisdiction through out the District and the Chief Metropolitan Magistrate shall have jurisdiction throughout the City. Therefore, the Magistrate before whom the accused has surrendered may forward the accused to the Chief Judicial Magistrate of the District wherein the case is under investigation or the Chief Metropolitan Magistrate, as the case may be, and the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, in turn, will forward him to the jurisdictional Magistrate in the District or Chennai City, as the case may be.

49. It is true that when an accused surrenders before a Magistrate who has no jurisdiction, the investigating officer may not know that the accused had surrendered. As a result, by the time when he seeks police custody, the fifteen days initial period of remand may be over making it difficult for him to get police custody. In order to obviate this practical difficulty, we are of the view that as soon as accepting the surrender of the accused, the learned Magistrate shall forward an intimation to the Superintendent of Police of his District or the Commissioner of Police, as the case may be, and the said Superintendent of Police or Commissioner of Police shall immediately pass the information to the Superintendent of the other District within whose jurisdiction the occurrence had taken place and the said Superintendent of Police shall, in turn, immediately forward this information to the investigating officer of the case. Similarly, the learned Magistrate before whom the accused has surrendered shall send an intimation to the Chief Judicial Magistrate of the District in which the crime had taken place.

50. It was also argued at the bar that when the Magistrate finds that the further detention of the accused is unnecessary and if he simply forwards him to the Magistrate having jurisdiction over the case, it may be difficult for him to get police escort. But, I do not think that the Magistrate may have such a difficulty because on his direction, the Superintendent of Police of the said District shall arrange for police escort to take the accused from the Magistrate's court to the Magistrate to whom the accused is forwarded.

51. In view of the foregoing discussions, we sum up our conclusions as follows:-

(i) When the investigation of a case is pending in the state of Tamil Nadu, the accused may surrender before any Judicial Magistrate in the State of Tamil Nadu irrespective of whether the said Magistrate has or has not jurisdiction to try or to commit the case for trial and the said Magistrate has no option except to accept the surrender.

(ii) When the investigation of a case is pending in the Union Territory of Puducherry, the accused may surrender before any Judicial Magistrate in the Union Territory of Puducherry irrespective of whether the said Magistrate has or has not jurisdiction to try or to commit the case for trial and the said Magistrate has no option except to accept the surrender.

(iii) If the Magistrate before whom the accused so surrenders has jurisdiction either to try or to commit the case for trial, he may remand the accused to such custody as he deems fit as provided in sub-section (2) of section 167 of the Code of Criminal Procedure.

(iv) If the Magistrate before whom the accused so surrenders has no jurisdiction either to try or to commit the case he has to follow the following procedure:

(a) If the learned Magistrate is prima facie satisfied that the further detention of the accused is necessary, he shall remand him to such custody as the Magistrate thinks fit for a term not exceeding fifteen days in the whole with a direction for the production of the accused before the jurisdictional Magistrate before the expiry of the remand period.

(b) If the said Magistrate is of the prima facie opinion that the further detention of the accused is unnecessary, the said Magistrate shall not remand him to custody and instead, he shall forward him to the jurisdictional Magistrate in police escort and he shall also forward information about the surrender of the accused to the Superintendent of Police of his District / Commissioner of Police and such Superintendent of Police / Commissioner of Police shall, in turn, forward the information to the Superintendent of Police of the District/ Commissioner of Police within whose jurisdiction the case is under investigation and that Superintendent of Police / Commissioner of Police shall, in turn, pass the said information to the investigating officer concerned.

(c) If the Magistrate has doubt as to who the jurisdictional Magistrate is, he may forward the accused in police escort to the Chief Judicial Magistrate of the District / Chief Metropolitan Magistrate within whose jurisdiction the investigation is in progress and the said Chief Judicial Magistrate/ Chief Metropolitan Magistrate concerned shall, in turn, forward the accused to the jurisdictional Magistrate.

52. Now, turning to the factual aspects in the instant cases, the learned XXIII Metropolitan Magistrate, Saidapet, Chennai, was well within the jurisdiction to accept the surrender of A1 to A4 and since he was satisfied prima facie that the detention of the accused was necessary, he had remanded them to judicial custody. In this, we do no find any illegality.

53. Thus, from the evidence of P.W.1 and the other evidences including medical evidence, we hold that the prosecution has proved the guilt of A1 to A3 alone.

54. Now, turning to the nature of the offence committed by A1 to A3 , the trial court has convicted A1 to A3 under Sections 148 and 302 of IPC. Though A4 and A5 are acquitted for want of proper identification, there is enough evidence to prove that the number of participants in the occurrence was five. Therefore, though A4 and A5 are acquitted, on that score, it cannot be held that there was no unlawful assembly which involved in rioting. Therefore, the conviction of A1 to A3 under Section 148 of IPC deserves to be confirmed. Similarly, since we have come to the conclusion that A1 to A3 along with two others had attacked the deceased with deadly weapons and caused his death, they are liable to be convicted under Section 302 of IPC. Thus, we hold that A1 to A3 are liable to be convicted under Sections 148 & 302 of IPC.

55. Now, turning to the sentence, the trial court has sentenced A1 to A3 to under go rigorous imprisonment for one year for the offence under section 148 of IPC and to undergo imprisonment for life and to pay a fine of Rs.20,000/- each in default to under go rigorous imprisonment for one year for the offence under section 302 of IPC. In our considered view, there is no scope to interfere with the sentence at all as it is the just sentence.

56. In the result, (i) Crl.A. (MD) No.109 of 2011 is partly allowed insofar as the 3rd Appellant/A4-Murugan & the 4th Appellant/A5-Mari @ Mariappan are concerned. The 3rd Appellant/A4-Murugan and the 4th Appellant/A5-Mari @ Mariappan are acquitted of both the charges and the fine amount, if any, paid by them shall be refunded to them. The bail bonds executed by them shall stand cancelled.

(ii) Crl.A.(MD) No.109 of 2011 is dismissed insofar as it relates to the 1st Appellant/A1-Ayyappan and the 2nd Appellant/A2-Mani @ Nellikai Mani @ Manikandan and the conviction and sentence imposed by the trial court on them is confirmed.

(iii) Crl.A.(MD) No.110 of 2011 is dismissed; the conviction and sentence imposed by the trial court on the Appellant / A3-Mani @ Subramani is confirmed.

1.The Additional Sessions Judge, FTC No.II, Tirunelveli, Tirunelveli District.

2.The Inspector of Police, Tirunelveli Police Station,Tirunelveli District.

3.The Public Prosecutor, High Court, Madras

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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