Conviction cannot be affirmed where identity itself is doubtful.

(Criminal Appeals filed against the judgment dated 18.8.2000 made in S.C.Nos. 126 of 2000 and 181 of 2000 on the file of the II Additional Sessions Judge, Coimbatore.)

Common Judgment (M. Karpagavinayagam, J.)

On 29.11.1997, one Selvaraj, a Police Constable, who was on bundobust duty, was murdered by some Muslim fundamentalists in Coimbatore. As a consequence of this murder, there was an utter chaos and confusion prevailed in the City. The accused/Hindus thought that the entire Muslim community was responsible for the murder of the said Selvaraj and as an act of revenge, the accused had the common object of committing murder of Muslim public. Accordingly, on 30.11.1997, A1 to A11 along with A14 at the instigation of A12 and A13 murdered four Muslims, viz., Harris, Habib Rahman, Hariff and Liyagath Ali at C.M.C. Hospital, Coimbatore. On this accusation, A1 to A14 were tried for the offences under Sections 148, 302, 149 read with 302 I.P.C. Ultimately, A4, A12 and A13 were acquitted. The other accused were convicted. Those accused have filed these appeals.

2. The relevant facts for the disposal of these appeals are as follows:

(a) On 29.11.1997 at about 9.00 p.m., one Selvaraj, a Police Constable was murdered by some Muslim fundamentalists. As a consequence of the said murder, 18 Muslims were murdered in a police firing and some of the persons sustained injuries. In the meantime, the body of Selvaraj, Police Constable was brought and kept in the mortuary of Government Hospital, Coimbatore. The accused persons, who are Hindus, assembled at 10.00 a.m. on 30.11.1997 in the Hospital and raised slogans against the Muslim community.

(b) On the date of occurrence, i.e. on 30.11.1997 at about 12.00 noon, on noticing the tense situation in the City, P.W.1 Ayub Khan, who is a Plumber by profession, went to Ukkadam in search of his brother Hariff, the third deceased. Since he was caught in the police firing, he sustained bullet injury on his right side ear. P.W.1 sat on the spot itself with injury on his ear. At that point of time, Hariff, his brother, the third deceased came to the spot in a Scooter and found that his brother PW1 sitting on the floor with injury on his ear. Then, the third deceased took him in the Scooter to Aslam Hospital to give treatment. There, he found that PW2 Sadique, PW8 Syed Mohammed, PW15 Hameed and PW16 Rafique along with Abdul Rahman and Nazir were with injuries sustained in the firing incident standing in front of the hospital awaiting the arrival of the Doctor.

(c) All of them waited for some time. Since the Doctor did not turn up, all of them decided to go to the Government Hospital, Coimbatore. Accordingly, they engaged a tourist van driven by PW3 Mohamed Ali. All the injured persons along with other witnesses boarded the van and asked P.W.3 to proceed to the Government Hospital, Coimbatore. When the van reached the Government Hospital, Coimbatore, P.W1 Ayub Khan quickly got down from the van and ran to the Emergency Ward and informed the staff of the hospital about the condition of the injured persons, who received bullet injuries, sitting in the van and requested the staff to bring stretchers to take them to the hospital. Accordingly, the hospital staff brought two stretchers near to the van for taking the injured persons. One Abdul Rahman, who sustained injuries, was kept laid down in one stretcher. In the very same stretcher, Habib Rahman, the second deceased was seated. In another stretcher, Nazir, the other injured was kept laid down and in the very same stretcher, Harris, the first deceased was sitting.

(d) At that point of time, the accused persons being Hindus got enraged over the death of Selvaraj, Constable, and assembled in the hospital. On noticing that Muslim persons with injuries being taken from the van inside the hospital for giving treatment, they came rushing towards those injured persons and began to attack them. P.W.1 on seeing the attack feared that the accused might attack him