- (1.)This appeal has been preferred against the impugned judgment and order dated 6.10.2009, passed by the High Court of Tamil Nadu (Madurai Bench) in Criminal Appeal (MD) No.540 of 2008 affirming the judgment and order dated 18.11.2008, passed in Sessions Case No.18 of 2001 by the Addl. District & Sessions Judge (Fast Track Court), Ramanathapuram by which and whereunder the appellants had been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and awarded life imprisonment and a fine of Rs.2,000/- each, and in default to undergo further RI for six months.
(2.)The prosecution case is as under:
A. That about 20 years ago, one Vellaimmal (PW.17, blind and deaf), daughter of Paulmelie Thevar, got married to one Arumugam and a daughter was born out of the said wedlock. The said Arumugam deserted his wife Vellaimmal and married another lady which resulted in enmity between the two families. Arumugam assaulted Vellaimmal and her family. As a consequence, Ramasamy, the uncle of Vellaimmal, with whom she had started living after being deserted by her husband allegedly murdered Arumugam, Ramu Thevar and Laxmana Thevar in the year 1981.

B. After a gap of about 20 years of the said incident happened in the year 1981, it was alleged that on 30.7.1999, 17 persons including the two appellants unlawfully assembled together with a common object to murder Ramasamy and they came at his house at about 9 P.M. when he was sleeping on a cot outside his house. The accused encircled him and caused indiscriminate cuts over his body using an Aruval which caused instantaneous death. In order to save Ramasamy, his two sons, namely Paulmeli and Vijayasamy intervened and they also got injuries. After committing the offence, accused persons ran away. The matter was reported to the police by one Mr. Setu Raman to Mr. Gandhi (PW.16), the Head Constable of Viracholan Police Station. However, as the incident occurred outside the territorial jurisdiction of the said police station, the said Setu Raman informed the Inspector of Parthi Banoor Police Station at about 11 P.M. who went to the place of occurrence and recorded the statement of Malliga (PW.1), wife of deceased. On the basis of the same, an FIR was registered under Sections 147, 148, 324, 326, 307 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') in the morning of next day at 7.30 A.M., wherein 17 accused persons including two appellants had been named. The dead body was sent for post-mortem and the two sons of the deceased were medically examined. The accused were taken into custody on different dates and on their disclosure statement, recoveries were made. After completing the investigation, chargesheet was filed against 17 accused persons and the case was committed to the Sessions Court. The Trial Court vide judgment and order dated 27.11.2001 acquitted all the accused.

C. Aggrieved, the complainant Vijayasamy, son of deceased challenged the said order of acquittal by filing Criminal Revision No.274 of 2004 before the Madras High Court (MD) which was allowed and the Sessions Court was directed to have the trial afresh.

D. In a fresh trial, prosecution led the evidence wherein Malliga (PW.1) supported the case of the prosecution. Paulmeli (PW.2), the injured did not support the case and thus was declared hostile. Another injured Vijayasamy, son of deceased was not examined by the prosecution. Thus, relying upon the evidence of Mallinga (PW.1), the Trial Court vide judgment and order dated 18.11.2008 acquitted all the accused except the appellants Paulmeli (A.5) and Chockaiah (A.7) who were found guilty for the offences punishable under Section 302 IPC and sentenced them as referred to hereinabove.

E. Aggrieved, the appellants preferred the appeal before the High Court which has been dismissed vide impugned judgment and order dated 6.10.2009.

Hence, this appeal.

(3.)Ms. Shirin Khajuria, learned counsel for the appellants has submitted that the courts below have committed an error convicting the appellants on the evidence which has been totally disbelieved on the basis of which the other remaining 15 accused stood acquitted. More so, Paulmeli (PW.2), son of deceased did not support the case of the prosecution and another injured son of deceased, Vijayasamy was not examined by the prosecution. There was a complete darkness in the night thus, the question of identifying the appellants does not arise even while Malliga (PW.1) could not identify the appellants in darkness. More so, there had been material discrepancies in respect of the manner and number of injuries caused by the appellants to the deceased. Thus, the appeal deserves to be allowed.