- (1.)The appellants, being accused nos. 1 and 2, alongwith one Selvaraj, who happened to be a driver of the deceased, were charged under section 302 I. P. C. read with section 34 IPC on the allegation that they had stabbed Raja and killed him on the night of 26th October, 1988. The learned sessions judge admittedly, on the basis of the circumstantial evidence convicted them under section 302 I. P. C. and sentenced to life imprisonment. Accused nos. 1 and 2 were also convicted under section 364 I. P. C. read with sections 120-B and 109 of the I. P. C. Selvaraj, the third accused was sentenced to imprisonment for life under section 302 I. P. C. read with section 109 I. P. C. Aggrieved by the order of the learned sessions judge, the matter was placed before the High Court in appeal by the accused persons. The High court, upon consideration of the matter, acquitted accused no. 3 of all charges but while passing an order of acquittal against accused nos. 1 and 2 of all the charges, but as regards charge no. 4, the conviction of accused nos. 1 and 2 stood confirmed. Charge no. 4 spoken of earlier happened to be the one under section 302 i. P. C. read with section 34 IPC. Incidentally, at the conclusion of the order impugned, the High Court was pleased to observe in paragraph 20 the following:
"The extra-judicial confession relied on by the prosecution through the evidence of pws 4 and 5 in our view, is artificial and mutually contradictory and we do not place any reliance for arriving at a conclusion. Similarly, we have also not placed any reliance on the evidence of PW8 from whom accused 1 and 2 have allegedly purchased the knife MO 6 since in our view, it would be difficult for PW8 to identify accused 1 and 2 as the persons who were examined and whose statement was recorded on 3.11.1988. As we have stated earlier, even if we reject the evidence of PWs 4, 5 and 8, we have the evidence of PWs 1, 2, 6 and 16 to clearly establish the complicity of accused 1 and 2 in. the crime. Merely, because the prosecution was not able to establish the motive, the prosecution case against accused 1 and 2 cannot be thrown out. "

(2.)The principal reliance for such conviction thus was on the evidence of PWs 1, 2, 6 and 16. The learned senior advocate appearing in support of the appeal made a detailed submission as to why the evidence of the above noted four prosecution witnesses cannot be relied upon. For convenience sake, relevant extracts from the examination-in-chief being the gist of the PW1's evidence are set out hereinbelow;
"On 26.10. 88 at about 9 or 9.30 p. m. , : was in the auto stand at the Erode bus stand. Along with me Raja and one Selvaraj were there. Raja was lying down in his auto. At that time A1 Paramasivam @ parameswaran woke up Raja, behind the said auto stand, Raja and A1 were talking for sometime. Raja came and took his auto. In the auto A1 Paramasivam sat in the back seat. Both Raja and Paramasivam after talking for 5 minutes went away in the auto, thereafter the deceased Raja and A1 paramasivam never came back to the auto stand. "pw2 in his examination-in-chief stated as below:

"On 26.10. 1988 at about 9.30 p. m. , A1 paramasivam came to the auto stand woke raja who was in his auto and both of them were talking for a while. Then both Raja and paramasivam went in the auto of Raja. Since A1 worked as auto driver for sometime I know him. On that thereafter both Raja and Paramasivam did not return. "

(3.)The evidence of Thiru Jagdeesan PW 6 needs to be dealt with in slightly greater detail since the principal reason for the impugned order has been the evidence of the said witness - PW 6 as such we shall deal with the same immediately hereafter, but before so doing, the evidence of pw16, Thiru Felix Stephen however ought to be noticed at this juncture. PW 16 though a formal witness but happened to be finger print expert. In his examination- in-chief, PW16 stated thus:
"The finger prints in F4 is found identical with the left thumb impression of Parameswaran s/o Perumal Gounder the said impression is S1 in exhibit P. 15, the chance print relating to S1 is MO 18, the enlargement of F4 is MO 19, the enlargement of S1 is MO 20, (objected to by the counsel, since the negative of MO 20 was not produced) the impression f4 and S1 is left thumb impression of same person that is left thumb impression of Parameswaran s/o Perumal gounder. "