JUDGMENT :

(Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, to set aside the conviction and sentence made in S.C.No.185 of 2008 on the file of the District and Sessions Judge, Nagapattinam, dated 19.03.2012.)

(Heard through Video conferencing)

R.N. Manjula, J.

1. The Appellants have filed this Appeal challenging the conviction and sentence made in S.C.No.185 of 2008 on the file of the learned District and Sessions Judge, Nagapattinam, dated 19.03.2012.

2. There were totally 7 accused in this case. Since two of the accused were absconding, the case against them was split up. In view of that the remaining accused against whom the case was conducted by the Trial Court in S.C.No.185 of 2008 were re-arrayed as A1 to A5.

3. The facts of the case in brief:

3.1. A.1 to A.7 are close associates and they are the residents of Puthu Theru, Mayiladuthurai. On 08.11.2005 at about 10.00 pm, P.W.1 Premkumar, the son of the deceased, was conversing with one Chithra and that was objected by A1 to A5; in view of that there occurred a wordy quarrel between them and the accused assaulted P.W.1. The said incident was conveyed by PW1 to his father Siva, who is the deceased; the deceased Siva was the Secretary of Mayiladuthurai Auto Rickshaw Drivers Association; A.6 was also a leader of another group of Auto Rickshaw Drivers Association and there was a rivalry between them. On hearing that his son PW1 was assaulted by the accused and the deceased Siva warned them.

3.2. On 08.11.2005 at about 10.00 pm A.1 to A.7 entered into a criminal conspiracy between themselves at the house of A.6, in order to murder the deceased Siva. In execution of the said plan, they armed themselves with deadly weapons like aruval and iron pipes and on 09.11.2005 at about 11.00 am when the deceased Siva was standing in front of Sri Andavar Tea Stall at Tharangambadi Road, Mayiladuthurai, the accused formed themselves into an unlawful assembly with a common object of murdering the deceased; A.1 attacked the deceased with aruval on the backside of his head; A.2 attacked the deceased with iron pipe on the centre of his head; A.3 assaulted the deceased with iron pipe on his mouth; A.4 and A.5 attacked the deceased with iron pipe on the centre of his head. Subsequently the deceased was taken to the hospital but he succumbed to the injuries.

3.3. On receiving a complaint from one Babu about the occurrence, a case has been registered in Crime No.1202/05 of Mayiladudurai Police Station under sections 341, 324, 307 IPC. Subsequent to the death of the deceased, the charges have been altered to 302 IPC. After completion of the investigation, charge sheet has been filed against the accused persons under Section 120 (B) IPC, 148 and 302 r/w 149 IPC. Since the two of the accused persons have been absconding, the case against them was spilt up. The trial proceeded against the remaining 5 accused (who were originally in the ranks A.1, A.3, A.4, A.6 and A.7), and their ranks have been re-assigned as A.1 to A.5. The charges have been framed against these accused including A.4 and A.5 under Sections 120 (B) IPC, 148 and 302 r/w 149 IPC.

3.4. During the course of trial, on the side of the prosecution, 20 witnesses have been examined as P.Ws.1 to 20 and Exs.P-1 to P-25 were marked and M.Os. 1 to 6 have been produced. On the side of the accused no witnesses were examined and Ex.D1 has been marked.

3.5. After appreciating the evidence available on record, the trial Court passed the judgment on 19.03.2012 by finding A1 to A3 guilty for the offences under Sections 148 and 304 (Part I) r/w 149 IPC alone and convicted them for the same. The trial Court has acquitted A.4 and A.5 by recording a finding that the charges against them were not proved. The details of the conviction and sentence imposed on A.1 to A.3 are as under: