- (1.)THE appellants are A-1 to A-3. They were tried along with A-1 to A-8 for the offences under Sections 147, 148, 149 and 302 IPC for having committed the murder of one Palanisamy @ Kannan. The appellants (A-1 to A-3) alone were convicted for the offences under Sections 148 and 302 IPC. Other accused were acquitted of the charges. Challenging the said conviction, this appeal has been filed by the appellants, namely A-1 to A-3.
(2.)SHORT facts leading to the conviction are as follows:
(a) Deceased Palanisamy @ Kannan was a lottery vendor. He belonged to Bharathiya Janatha Party (BJP ). He used to canvass for the party during election period.

(b) P. W. 1 Muralidharan is a cut-piece cloth vendor. He used to take cut-piece cloths and sell the same by going to various places in Coimbatore. The deceased is his friend. P. W. 2 Raja, another friend of the deceased, is running a 'pani Poori' Stall at Oppanakkar Street.

(c) All the accused persons are the members of a Muslim organization. On 2. 9. 1997, the appellants / A-1 to A-3 and three other accused gathered near Masjid colony and talked among themselves about the attack made on some of the Muslims by some Hindus. As a retaliation, they decided to teach a lesson to Hindus by attacking some of the Hindu persons who belong to BJP. They ultimately designed to murder the deceased Palanisamy alias Kannan as a revenge.

(d) On 2. 9. 1997 at about 7. 00 p. m. , the deceased Palanisamy @ Kannan, P. W. 1 Muralidharan, P. W. 2 Raja and one Rajan, gathered and had a chit-chat among themselves in P. W. 2's shop at Oppanakkara Street. At about 7. 30 p. m. , the deceased Kannan left the place to a near-by sewerage channel to answer the first call of nature. At that point of time, all the accused persons, who are Muslims, surrounded the deceased when he came near the lamp-post.

(e) A-5 Mustafa @ Mohammed Mustafa opened a bottle and threw acid on the deceased. A-6 Jinnah @ 'ondrakilo' Jinnah @ Sikander Batcha and one Saleem, caught hold of the deceased. At this stage, A-1 Yasuddin armed with knife, stabbed the deceased on his left buttock and also stabbed twice on the left chest; A-2 'nettai' Ibrahim @ Ibrahim, armed with knife, stabbed the deceased twice on his left chest; A-3 "koolai" Ibrahim @ Ibrahim, armed with knife, stabbed the deceased two or three times on his right hand and right arm pit and A-4 Mustafa @ Moosa, armed with knife, stabbed the deceased on his right hand, left and right flanks two or three times. Deceased cried aloud and fell down on receipt of injuries.

(f) P. W. 1 Muralidharan and P. W. 2 Raja, on hearing the alarm raised by the deceased, rushed to the scene and saw six to seven persons running from the place of occurrence and found the deceased falling down with stab injuries in the scene. Immediately, P. W. 1 Muralidharan, P. W. 2 Raja, one Ramesh and one Rajan, took the deceased in an auto to Coimbatore Government Medical College Hospital.

(g) At about 7. 45 p. m. , deceased was admitted in the hospital. P. W. 7 Dr. Paramasivam attended the deceased and noted the injuries sustained by him and issued Ex. P-3 accident register.

(h) Thereupon, P. W. 1 Muralidharan went to B-1 Bazaar Police Station and gave Ex. P-1 complaint to P. W. 19 Sub-Inspector of Police on the same day. P. W. 19 registered the case for the offences under Sections 147, 148 and 307 IPC. F. I. R. copies and the complaint were sent to Court and higher officials.

(i) On receipt of message, P. W. 21 Inspector of Police took up investigation. He came to the scene of occurrence at about 8. 30 p. m. and prepared Ex. P-9 observation mahazar and drew Ex. P-27 rough sketch. Then, P. W. 21 Inspector of Police rushed to the hospital, examined the deceased and other witnesses and recorded their statements.

(j) Next day, i. e. on 3. 9. 1997 at about 9. 20 a. m. , the deceased died at the hospital. On receipt of Ex. P-4 death intimation issued by P. W. 8 Dr. Shanmugavelusami, P. W. 21 Inspector of Police altered the F. I. R. into one under Section 302 IPC. He went to the hospital and conducted inquest on 3. 9. 1997 between 11. 45 a. m. and 1. 45 p. m. During the course of inquest, P. W. 1 Muralidharan and P. W. 2 Raja were examined. Ex. P-29 is the inquest report. Then, the body was sent for post-mortem.

(k) P. W. 21 Inspector of Police, thereupon, examined P. Ws. 3 to 6, the eye-witnesses and recorded their statements. P. Ws. 3 and 4 implicated the culprits in their statements as 'unknown identifiable persons'. P. Ws. 5 and 6, in their statements, gave the names of the accused persons involved in the occurrence.

(l) P. W. 10 Dr. Natarajan, on receipt of the requisition, conducted autopsy on 3. 9. 1997 at about 2. 00 p. m. and found 13 stab injuries on the body of the deceased. He issued Ex. P-7 post-mortem certificate and gave an opinion that the deceased would appear to have died of multiple stab injuries.

(m) P. W. 21 Inspector of Police took steps to arrest the accused, whose names were given by P. Ws. 5 and 6. Fearing arrest, the appellants/a-1 to A-3, on 18. 9. 1997, surrendered before the Judicial Magistrate, Udumalpet. On coming to know of the same, P. W. 21 Inspector of Police filed a petition for Police custody and obtained the same on 24. 9. 1997.

(n) On 26. 9. 1997, on the confession of A-1, M. O. 5 knife was recovered; on the confession of A-2, M. O. 8 knife and M. O. 11 banian were recovered and on the confession of A-3, M. O. 7 knife was recovered. Then, A-1 to A-3 were produced before the Court, which in turn remanded them.

(o) In the meantime, on 27. 9. 1997, A-5 to A-7 were arrested. Since A-5 sustained acid burn injuries on the hand, he was sent for treatment. P. W. 9 Dr. Ravikumar examined A-5 and issued Ex. P-5 accident register. He was treated as an out-patient.

(p) P. W. 21 Inspector of Police filed a requisition before the Court on 30. 9. 1997 for conducting test identification parade with regard to the identity of the appellants/a-1 to A-3 and other accused available then, by P. Ws. 3 and 4. Accordingly, P. W. 29 Judicial Magistrate-I, Coimbatore sent a letter to the Jail Superintendent for making arrangements to conduct the test identification parade.

(q) On 8. 10. 1997, P. Ws. 3 and 4 were summoned for parade. Both of them identified A-1 to A-3 and the other accused. Ex. P-26 series are the proceedings relating to the identification parade conducted by P. W. 20 Judicial Magistrate.

(r) On 9. 10. 1997, A-4 Moosappa @ Moosa surrendered before the Court. Then, Police custody was given. A-4 gave confession during the Police custody, in pursuance of which, M. O. 6 knife was recovered. On 16. 10. 1997, A-8 was arrested and remanded to judicial custody.

(s) In the meantime, P. W. 21 Inspector of Police was transferred. One Murali, another Inspector of Police took up further investigation. He examined the other witnesses. The material objects were sent for chemical examination. On completion of the investigation, the Inspector of Police filed the charge sheet against the accused for the offences under Sections 147, 148, 149 and 302 IPC.

(t) During the course of trial, on the side of prosecution, P. Ws. 1 to 21 were examined, Exs. P-1 to P-29 were filed and M. Os. 1 to 11 were marked. Ex. C-1 remand report, relating to A-5 to A-7, was marked as a Court document.

(u) When the accused were questioned under Section 313 Cr. P. C. , they merely denied their complicity in the crime in question and stated that a false case had been foisted against them.

(v) On analysing the entire materials available on record, the trial Court convicted the appellants/a-1 to A-3 alone for the offences under Sections 148 and 302 IPC and sentenced each of them to undergo one year rigorous imprisonment with a fine of Rs. 1,000/- and life imprisonment respectively. The sentences imposed on the appellants/a-1 to A-3 were ordered to run concurrently. The other accused were acquitted of the charges. Hence, this appeal by A-1 to A-3 alone.

(3.)MR. V. GOPINATH, learned Senior Counsel appearing for the first appellant/a-1, while assailing the impugned judgment, would make the following contentions:
(i) There are four eye-witnesses, namely P. Ws. 3 to 6. The evidence of P. Ws. 5 and 6 was disbelieved by the trial Court on the ground that Ex. C-1 remand report relating to A-5 to A-7 filed by the Inspector of Police shows that P. Ws. 4 and 5 were not examined by Police till Ex. C-1 remand report dated 27. 9. 1997 was filed and as such, their evidence that they gave statements to Police on 3. 9. 1997, implicating the accused, cannot be believed.

(ii) Though in the identification parade, P. Ws. 3 and 4 identified A-1 to A-3, they failed to establish their identity in Court. Identification of the accused in parade alone, is not the substantive evidence. Therefore, the evidence of P. Ws. 3 and 4 cannot be acted upon, in the absence of identification of A-1 to A-3 by them in Court.

(iii) Presence of P. Ws. 3 and 4 in the scene of occurrence at the relevant point of time, is highly doubtful. Both of them would state that they knew the deceased very well. Even then, P. Ws. 3 and 4 did not take care to inform either Police or the relatives of the deceased. There are no details as to how Police came to know that P. Ws. 3 and 4 are the eye-witnesses.

(iv) P. W. 3 Mani admits that he knew the deceased for the past four years. P. W. 4 Dharmaraj would state that he knew the mother of the deceased. Even then, P. Ws. 3 and 4 did not care to inform either the mother or the relatives of the deceased.

(v) According to P. W. 20 Judicial Magistrate, the accused, after identification parade was over, informed P. W. 20, the learned Judicial Magistrate that they were shown to the witnesses at the Police Station when they were in Police custody. Therefore, identification of the accused in parade is valueless.

(vi) A-1 to A-3 surrendered before the Court on 18. 9. 1997. Instead of requesting the Court to conduct identification parade, P. W. 21 Inspector of Police hastened to file an application for custody and also obtained Police custody and produced the accused before the Court on 27. 9. 1997. Only thereafter, he filed the application requesting for conducting identification parade, which was held only on 8. 10. 1997. This delay has not been explained. There is no reason as to why Police custody was obtained, even before conducting the identification parade. Since identification parade was conducted subsequent to Police custody, the statement of the accused that they were shown to the witnesses in Police custody, can be accepted.