IMPORTANT POINT
If the prosecution case is the same against all the accused or with regard to some of the accused on the same set of evidence available on record with reference to any of the accused, then the Court would not be committing any mistake in acquitting all the accused and conversely, if it is possible to do so, namely, to remove the chaff from the grain, the Court would not be committing any mistake in sustaining the prosecution case against whom the evidence is shown to be intact.

Judgment :-

P. Sathasivam, CJI.

1) This appeal is directed against the judgment and order dated 15.03.2007 passed by the High Court of Judicature at Madras in Criminal Appeal No. 963 of 2005 whereby the Division Bench of the High Court disposed of the appeal by acquitting A4 to A6 and confirmed the order of conviction and sentence dated 27.10.2005 in respect of A1 to A3 passed by the Additional District Sessions Judge, Salem in Sessions Case No. 254 of 2004.

2) The facts and circumstances giving rise to this appeal are as under:

(a) This case relates to the death of one person by name Babu – resident of Kullaveeranpatti, Mettur, Tamil Nadu. One Arumugam@Arupaiyan, who was working as a car driver at Sadurangadi, Mettur, was having an affair with one Chitra (PW-6), who, at the relevant time, was working at Krishna Medicals. One Palanichami, who was working as a car cleaner, too was in love with her.

(b) When Chitra informed Arumugam@Arupaiyan about Palanichami, he confronted the cleaner and when the driver of the car-Senthil (A-7) asked him as to why he confronted him, Arumugam@Arupaiyan started beating Senthil which resulted in enmity between A-7 and Arumugam@Arupaiyan. A-7 also developed grudge against one Babu – the deceased, friend of Arumugam@Arupaiyan, who also helped him during the abovesaid incident and even at one point of time, when both the groups were fighting, A-7 shouted at him that he (A-7) will not spare him at any cost.

(c) On 18.04.2001, when Babu was trying to start his motorcycle, the accused persons, viz., Saravanan (A-1), Raja@Sasikumar (A-2), Natesan@Natarajan (A-3), Karthik (A-4), Chandran@Chandramohan (A-5) and Sakthivel (A-6), intercepted him and prevented him from going further from that spot and A-1 inflicted a sickle blow on his hand. In order to escape, Babu went inside the shed of one Sengodan (PW-3), but A-1, A-2 and A-3 also went inside that shed and inflicted cuts on him indiscriminately as a result of which he fell down and the accused persons fled away assuming that he was dead.

(d) Babu was immediately taken to the Government Hospital, Mettur for treatment by one Radhakrishnan (PW-2) and Sengodan (PW-3) but he succumbed to his injuries. Radhakrishnan (PW-2) lodged a complaint against the accused persons with the Police Station, Mettur which was registered as FIR No. 402 of 2001 under Section 302 of the Indian Penal Code, 1860 (in short ‘the IPC’).

(e) After investigation, charges were framed against all the above named accused persons including Senthil (A-7) under Section 302 read with Section 34, Section 120-B and Section 342 IPC and the case was committed to the Court of the Additional District Sessions Judge, Salem and was numbered as Sessions Case No. 254 of 2004. The Additional District Sessions Judge, by order dated 27.10.2005, sentenced A-1 to A-6 to suffer rigorous imprisonment (RI) for 6 months for the offence punishable under Section 342 of IPC and imprisonment for life for the offence punishable under Section 302 read with Section 34 IPC along with a fine of Rs. 1,000/- each, in default, to further undergo RI for 3 months. However, A-1 to A-7 were acquitted under Section 120-B IPC and A-7 was acquitted of all the charges.

(f) Being aggrieved of the order dated 27.10.2005, A-1 to A-6 filed Criminal Appeal No. 963 of 2005 before the High Court. The Division Bench of the High Court, by order dated 15.03.2007, disposed of the appeal by acquitting A-4 to A-6 while sustaining the conviction and sentence of A-1 to A-3.

(g) Being aggrieved by the order of the High Court, A-2 and A-3 has preferred this appeal by way of special leave before this Court.

3) Heard Mr. V. Kanagaraj, learned senior counsel for the appellants-accused and Mr. M. Yogesh Kanna, learned counsel for the respondent-State.

Contentions:

4) Mr. V. Kanagaraj, learned senior counsel for the appellants submitted that the evidence of eye-witnesses, viz., PWs 2 & 3, read with the evidence of other prosecution witnesses, creates a doubt abou