JUDGMENT :

S. Vaidyanathan, G. Jayachandran, JJ.

(Prayer: The Criminal Appeal is filed under Section 372 of the Code of Criminal Procedure, to call for the records relating to the judgment in S.C.No.19 of 2009, dated 01.09.2009, passed by the learned Additional Sessions Judge, Fast Track Court No.I, Thoothukudi, and set aside the same and convict the accused persons.)

1. This appeal has been preferred against the judgment of acquittal of all the 12 accused, who stood tried before the learned Additional Sessions Judge, Fast Track Court No.I, Thoothukudi, in S.C.No.19 of 2009, for the offences under Section 120-B of I.P.C. against Accused Nos.1 to 12; Section 148 of I.P.C. against Accused Nos.1 to 6 & 8 to 11; Section 341 of I.P.C. against Accused Nos.3 & 4; Section 302 read with Section 34 of I.P.C. against Accused Nos.1, 2, 4 to 6 and 8 to 11; Section 302 read with Section 149 of I.P.C. against Accused No.3; Section 302 read with Section 109 of I.P.C. against Accused No.7; Section 506(ii) of I.P.C. against Accused Nos.1 to 6 & 8 to 11; Section 302 read with Section 120-B of I.P.C. against Accused No.12.

2. For easy reference, the charges against respective accused is given in the below table:-

Accused Rank Name Sections of Law

A1 Murugesan @ Shanmugasundaram 120-B, 148, 302 r/w 34 IPC and 506(ii) IPC

A2 Patchaiperumal @ Patchikutti 120-B, 148, 341, 302 r/w 34 IPC and 506(ii) IPC

A3 Palavesaraj @ Palavesamuthu 120-B, 148, 341, 302 r/w 149 & 506 (ii) IPC

A4 Kulasekarapandian 120-B, 148, 341, 302 r/w 34 and 506(ii) IPC

A5 Arun 120-B, 148, 302 r/w 34 and 506(ii) IPC

A6 Thangavelu 120-B, 148, 302 r/w 34 and 506(ii) IPC

A7 Sathiyaseelan 120-B, 302 r/w 109 IPC

A8 Prabakaran @ Karathey Pandian 120-B, 148, 302 r/w 34 and 506(ii) IPC

A9 Jeya Pandian 120-B, 148, 302 r/w 34 and 506(ii) IPC

A10 Bileydy Ganesan @ Selvaganesan 120-B, 148, 302 r/w 34 IPC and 506(ii) IPC

A11 Kutti @ Patchi Perumal 120-B, 148, 302 r/w 34 and 506(ii) IPC

A12 Menaka 120-B, 302 r/w 120-B IPC.

3. The averments of the prosecution is that on 10.07.2007 at about 03.00 p.m., at the house of 9th accused, all the accused persons conspired to eliminate one Patchaiperumal, due to previous enmity and in pursuant to the said conspiracy, on 12.07.2007 at about 01.00 p.m., near Nadesan Nadar Plantation south of Kodunkani Junction, intercepted the said Patchaiperumal and inflicted injuries on him indiscriminately causing his death.

4. The complaint was given by one Senthilkumaran P.W.2, in the presence of Ilangovan P.W.1 to the Sub-Inspector of Police, Eral. In the said complaint given by Senthilkumaran four accused were named with their overt act and unnamed few others for causing injuries with weapon. Based on the said complaint, a case was registered in Crime No.181 of 2007 under Sections 147, 148, 341 and 302 of I.P.C. and the investigation was taken up by the said police. Final report was filed against 12 accused. The learned Judicial Magistrate, Srivaikundam, took cognizance of the case and offence being triable by the learned Sessions Judge, committed the case to the Sessions Court. The Principal Court of Sessions assigned S.C.No.19 of 2009 and made over the case to the Additional Sessions Court, Tuticorin.

5. The prosecution, to prove the charges, had examined 36 witnesses, marked 42 exhibits and 13 material objects. On the side of the accused, two exhibits viz., D1 and D2 were marked.

6. The learned Additional Sessions Judge, Fast Track Court No.I, Thoothukudi out rightly rejected conspiracy theory propounded by the prosecution through P.W.7. While considering the other charges, delay in forwarding the F.I.R. to the Court, failure to identify the material objects in the Court and the contradictions between P.W.1 and P.W.2 who were supposed to be the eyewitnesses to the occurrence, held that it is doubtful whether P.W.1 was present at the scene of occurrence and it is improper, to accept the evidence of P.W.1 to record conviction. The contradictions about the overt act of each of the accuse