Non-examination of witnesses may vitiate prosecution.

Per R. BALASUBRAMANIAN, J.

The appellants are the accused in S.C.No.173 of 2003 on the file of Additional Court of Sessions (Fast Track Court No. III), Vridhachalam. A.1 stands convicted under Section 302 I.P.C. for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.3,000/- carrying a default sentence. A.2 stands convicted under Section 323 I.P.C. for causing simple injury on P.W.2, for which he stands sentenced to pay a fine of Rs.500/-. A.2 also stands convicted for the offence under Section 326 I.P.C. for causing grievous injury to P.W.2 for which he stands sentenced to undergo three years rigorous imprisonment together with a fine of Rs.1,000/- carrying a default sentence. A.3 stands convicted under Section 323 I.P.C. for causing a simple injury to P.W.3 for which he stands sentenced to pay a fine of Rs.300/-. A.4 stands convicted under Section 324 I.P.C., for which he stands sentenced to pay a fine of Rs.3,000/-. A.5 and A.6 also stand convicted under Section 324 I.P.C. for which each one of them stands sentenced to pay a fine of Rs.3,000/- each. Hence they are before this Court in this appeal. Heard Mr.A.Padmanabhan, learned counsel appearing for the appellants and Mr.N.R.Elango, learned Additional Public Prosecutor for the State.

2. The charges against the accused are under Section 148 I.P.C. (A.1,2,4 to 6); 147 I.P.C. (A.3); 302 I.P.C. (A.1); 302 read with 149 I.P.C. (A.2 to A.6); 323 I.P.C.(A.2); 307 I.P.C. (A.1); 323 I.P.C.(A.3) and 307 I.P.C.(A.4). The accused are acquitted of offences under Sections 148, 147, 302 read with Sections 149 and 307 I.P.C. but instead as already noted, the conviction is for the offences indicated earlier. The occurrence, according to the prosecution took place at 8.30 p.m. on 23.11.2002 by the accused forming themselves into members of an unlawful assembly attacked Vijayakumar fatally and the witnesses. To support their case, the prosecution examined P.Ws.1 to 12 besides marking Exs.P.1 to P.18 and M.Os.1 to 9. The defence did not let in either oral or documentary evidence.

3. P.W.1 is the elder brother of the deceased and he knows the accused. The prosecution party and the accused are residing in the same Village namely, Kizhseruvai. In the year 1991, rain water from the house of A.1 and one Madhavan were allowed to fall on the house of the prosecution party, resulting in a dispute. On that cause of action, a case is pending before the Assistant Sessions Court, Chidam-baram. A.1, A.2 and the deceased had gone abroad. As a result of which, the sessions case could not proceed further. The deceased after returning to India got the non-bailable warrant issued against him by the Court of Sessions, Chidambaram recalled. A.1 - who is the brother of A.2 returned to India from Singapore. There was a non-bailable warrant pending execution against A.1 and accordingly he was arrested and taken to Court. The deceased during the relevant time was affiliated to a leading political party and he was a panchayat union councillor . Sujatha, wife of A.2 was sarcastically commenting that the arrest of A.1 is only at the instance of the deceased. This was about 8.30 p.m. on 23.11.2002. The deceased’s house is just opposite to A.2’s house. P.W.1 was sitting outside the house. P.W.2 is P.W.1’s mother. As P.W.1’s younger brother by name Kalivanan had gone abroad, P.W.2 was staying in his house. She was also sitting outside. P.W.3 is the second wife of the deceased. She was also sitting outside her house. At that time Vijayakumar, since deceased came from Tittagudi in a Hero Honda motor cycle. On seeing him, A.3 commented that “as a member of the ruling party he is showing his arrogance and coming”. P.W.1 heard this. The deceased asked A.3 as to why she is saying like that. At that time, A.1 took an iron rod from A.3’s house and came out. A.1 questioned the deceased as to why he is talking with A.3 and saying that with that he must be finished, attacked the deceased on his