IMPORTANT POINTS
High Court is bound to deal with the evidence as it is. No improvement or rewriting of evidence is permissible. It is not open to High Court to weave out a different and new prosecution version
If trial court has acquitted the accused by taking a plausible or possible view, it cannot be set aside by the High Court by merely substituting its reasons.

Judgment :-

Dalveer Bhandari, J.

1. This appeal has been filed under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 against the judgment and order dated 11.6.2002 passed by the High Court of Judicature at Madras in Criminal Appeal No. 217 of 1993.

2. Brief facts which are necessary to dispose of this appeal are recapitulated as under:

The appellant herein along with the other accused were acquitted by the Sessions Judge, Thanjavur in Sessions Case No. 36 of 1989 of offences punishable under sections 307 and 302 read with section 34 of the Indian Penal Code (for short `IPC).

3. The High Court in the impugned judgment set aside the acquittal recorded by the Sessions Judge and allowed the appeal filed by the State. The High Court held accused nos.1, 2 and 4 guilty for an offence punishable under section 302 read with section 34 IPC and imposed sentence of life imprisonment and held accused no.3 guilty for the offence punishable under section 307 IPC and imposed sentence of five years. It may be pertinent to mention that accused respondent Nos.2 to 4 died during the pendency of appeal before the High Court. The only surviving appellant herein (who was accused no.1 before the High Court) has filed the present appeal against the impugned judgment and order of the High Court.

4. The motive for the occurrence as per the prosecution is that P.W.1s sister was living with the appellant and subsequently died six months prior to the occurrence. The other women folk of the house abused the appellant and his relatives. The appellant told the same to Sebastiraj P.W.1. P.W.1 consoled him stating that they were abusing him only because of frustration and everything would be alright after a lapse of time.

5. The appellant and other accused and the deceased belonged to the Burma colony, Thanjavur. Sebastiraj P.W.1 and Karunanidhi P.W.2 were friends of deceased Jambu. On 8.5.1988 at about 12.00 noon when P.W.2 was talking to Jambu near the railway gate, Sebastiraj P.W.1 invited Jambu to go to Sebastiar temple. Jambu requested Karunanidhi P.W.2 to accompany him. All of them went to the temple and came out at 2.00 p.m. after worshipping and taking food from the temple. Outside the gate, they saw the appellant Dhanapal and other accused. Dhanapal shouted, Sebastiraj has come, cut (kill) him. The crowd before the temple dispersed and people started running. Accused no.3 Loganathan threw an aruval on Sebastiraj P.W.1 After receiving the injury, Sebastiraj P.W.1 managed to run. Then accused no.2 Sekar gave cut injury to Jambu on his head and back. Dhanapal stabbed Jambu on his chest. Accused no.4 Somu stabbed Jambu on his back. Thereafter, all the accused ran away with their weapons. The deceased was attacked near the house of one Subramania Thevar by the side of a light post in 19th Street, Burma Colony. Selvaraj P.W.3 at about 2.00 pm on 8.5.1988 saw the deceased lying dead at the scene of crime.

6. Sebastiraj P.W.1 who ran away after receiving injury at the hands of accused no.3 went to Thanjavur South Police Station and gave Ex.P2 report at about 4.00 p.m. on 8.5.1988 and the same was received by P.W.4 the then Sub Inspector of Police who registered a case in Cr. No.311/88 for the offences punishable under sections 302 and 307 IPC and prepared Ex.P3 printed First Information Report and sent the same to the Court.

7. Inspector of Police P.W.10 took up investigation, went to the scene of crime at about 1.6.30 p.m. and on account of lack of sufficient light, he did not hold the inquest, but went and searched for the accused after posting two constables to protect the body of the deceased. He also stayed there and on 9.5.1988 at about 6.00 a.m., in the presence of panchayatdars, he started inquest and completed by 8.00 a.m. and prepared Ex.P.16 inquest report. He examined P.Ws. 1 to 3 and others. He also prepared Ex.P4 Observation Mahazar and drew a rough sketch Ex.P17. He seized material objects (for short `