Judgment

Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court directing acquittal of the respondents. Originally five persons faced trial. The trial Court held the respondents guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC'). It however held that the charge levelled against all the five accused persons under Section 120-B, IPC was not established. It also held that the charge against 5th accused under Section 302 read with Section 120B, IPC was not established. The four accused persons preferred appeal before the High Court which by the impugned judgment directed their acquittal.

2. Prosecution version in a nutshell is as follows:

Veeraganesh (hereinafter referred to as 'deceased') and his friend Ganesh (PW-l) alias Ganeshamoorthy and M. Ganesh (PW2) were having involvement in Hindu Munnani said to be a branch of R.S.S. The three were friends. On 26.8.1989, Ganeshamoorthy (PW-1), M. Ganesh (PW2) met Veeraganesh at Rangakonar Street in Kattoor and spoke to him for about ten minutes. Babu (PW -4) the brother of Veeraganesh was also present at the spot when PW-1 and PW-2 spoke to Veeraganesh at the said place. After a brief discussion among themselves for a while, Veeraganesh went to Ganapathy along With PW-l and PW2 to meet his friend. As his friend was not available at Ganapathy, they returned back to RSS office in Ram Nagar and the three discussed among themselves for about ten minutes. Then all the three came to the over bridge via Kattoor. At about 7:30 in the night, the three were going from the round about of the over- bridge towards the Post office road. On hearing somebody asking them to stop, they looked back. At that time, A-1 to A-4 who were armed with weapons came towards Veeraganesh and PW-1 and PW-2. A-1, A-2 and A-3 were armed with knives and A-4 armed with Aruval (sickle). On approaching towards Veeraganesh. they asked him to stop, and stated that he was caught now and cannot escape and was lost once for all. Saying so. A-1 stabbed Veeraganesh on his abdomen and chest. A-2 who was armed with a knife stabbed Veeraganesh on the left side of his head left shoulder left thigh and on his leg. A-3 armed with knife assaulted Veeraganesh on the back of his chest and on the side of his chest. A-4 armed with arrival assaulted Veeraganesh on his head and face. PW-1 and PW-2 pleaded to leave him. The injured Veeraganesh bled profusely and fell into a pool of blood. A sodium vapour light was glowing at the place of occurrence at the said over-bridge. PW-19, the line man of Electricity Board. Coimbatore Corporation stated that on the day of occurrence he switched on the lights in the over bridge area at 6 PM in the evening and switched them off at 6 AM on the next morning. PW-I and PW-2 who pleaded to the accused to leave Veeraganesh fled when they were threatened by the accused rushing towards them with weapons saying that they would also be done away with. When they returned to the place after some time, they noticed large quantity of blood. They learnt' from the conversation of two or three persons at the spot that the injured had been removed to Hospital. The weapon of offence used by A-4 at the time of occurrence is MO-1. The knives used by A-I to A-3 as weapons of offence are MOs: 2 to 4.

PW-3 Selvaraj drove the Auto TAR-6474 from' Railway station, Coimbatore to flower market via the over bridge. At that time a person was lying with building wounds at the round about of the over bridge. He asked PW-3•to take him to Hospital. PW-3 accordingly took him to Hospital and admitted him.

At about 8.15 PM. the deceased was brought to Emergency Ward by Selvaraj (PW-3), the Auto driver. Dr. Radhakrishnan (PW- 13) was on duty at that time in emergency ward. At that time, the said Veeraganesh told PW-13 that on that night, at about 7.30 p.m., at the over-bridge near the Head Post office, Coimbatore, 4 known persons whose identit