Important Point
Merely because the eye-witnesses are family members their evidence cannot per se be discarded. The allegation of interestedness has to be established.

Judgment

Dr. Arijit Pasayat, J. —

1.In this appeal challenge is to the Judgment of a Division Bench of the Madras High Court dismissing the appeal filed by the appellants who were appellant nos. 5 and 6 before it and before the trial Court they were accused Nos. 5 and 6. Before the trial Court there were six accused persons. After finding them guilty of various offences the trial Court recorded the conviction and imposed sentences in the following manner:

“A-1 is found guilty of charges under Section 147 IPC and sentenced to 2 years rigorous imprisonment. A-2 to A-6 are found guilty of charge under Section 148 IPC and each one of them is sentenced to 2 years RI. A1, A-2 and A-4 are found guilty of the charge under Section 302 IPC read with Section 34 and each one of them is sentenced to life imprisonment. A3, A5 and A6 are found guilty of the charge under Section 302 IPC read with Section 149 and each one of them is sentenced to life imprisonment. A3 is found guilty of the charge under Section 307 IPC and sentenced to 5 years RI. A5 is found guilty of the charge under Section 307 IPC and sentenced to 5 years RI. A6 is found guilty of the charge under Section 307 IPC and sentenced to 5 years RI. A3, A5 and A6 are found guilty of the charge under Section 9(b)(1(b) of the Indian Explosives Act and each one of them is sentenced to 2 years RI. The above sentences shall run concurrently.”

2.Background facts as highlighted by the prosecution are as follows:

The Inspector of Police, Usilampatti filed the charge sheet against the accused stating that due to previous enmity A1 to A6 with common motive to commit murder of Sundaram (hereinafter referred to as ‘deceased’) and the witnesses Annakodi (PW-1), Ayyar (PW-2) and Mokkai, assembled unlawfully at about 10.45 a.m. on 11.10.89 in front of the tea shop of Raju @ Raja opposite to Malayandi Theatre Usilampatti on Madurai-Usilampatti main road. A2 to A6 were in possession of the dangerous weapon Aruval and A3, A5 and A6 were in possession of country made bombs and committed commotion along with A1. Charges were framed against A1 under Section 147 IPC and against A2 to A6 under Section 148 IPC and that in continuance of the commission of the said offence, A1 caught hold of the right hand of Sundaram and said “cut and kill him” and A4 inflicted cut on the right hand of Sundaram with the aruval and further A2 to A4 inflicted cuts on neck of Sundaram indiscriminately and hence Sundaram died and charges were framed against A1, A2 and A4 under Section 302 IPC and against A3, A5 and A6 under Section 302 IPC read with Section 149 IPC. When the witnesses Annakodi (PW-1), Ayyar (PW-2) and Mokkai who saw the falling down of Sundaram, A3, A5 and A6 ran away and with the motive of committing the murder, threw the country bombs on them and hence the witnesses Annakodi and Ayyar sustained injuries and charges were framed against A3, A5 and A6 under Section 307 IPC and against A1, A2 and A4 under Section 307 IPC read with Section 149 and during investigation it came to light that A3, A5 and A6 were in possession of country bombs without any valid license and hence charges were framed against A3, A5 and A6 under Section 9(b)1(b) of the Indian Explosives Act,1884 (in short the ‘Explosives Act’).

On perusal of the records and documents in the case and upon hearing the arguments of the Public Prosecutor and defence counsel, trial court came to hold that there was sufficient evidence to hold that the accused had committed the offences and the charges were framed.

3.The accused denied the accusations and were put on trial.

4.The trial Court recorded the conviction and imposed sentences primarily placing reliance on the evidence of PW-1, son of the deceased and PW-2 the brother-in-law of PW-1. The conviction and the consequential sentences were challenged before the High Court which as noted above dismissed the appeal.

5.In support of the appeal, learned counsel for the appellants submitted that the evidence of PWs 1 a