Judgment :- M.Karpagavinayagam, J. The appellants are A-1 and A-2. The first appellant (A-1) Chinnasamy @ Chinnan was convicted for the offence under Section 302 IPC simpliciter and sentenced to undergo life imprisonment. The second appellant (A-2) Guna was convicted for the offence under Section 302 read with 109 IPC and sentenced to undergo life imprisonment. Challenging the said conviction and sentence, this appeal has been filed. 2. Short facts relevant for the disposal of the appeal are as follows: (a) The deceased Palani was working as a Tea-Master in the tea shop belonging to P.W.3 Selvaraj (meesaikarar). The first appellant/A-1 Chinnasamy @ Chinnan and the second appellant/A-2 Guna are friends. (b) On 12.2.1995, A-2 Guna was carrying a hen from a Temple to his house. At that point of time, the deceased Palani snatched the said hen from the hands of A-2 Guna. Therefore, quarrel ensued between them and in the said quarrel, A-2 assaulted the deceased with hands. A Panchayat was convened over this quarrel and the Panchayatdars directed A-2 to pay Rs.400/- for having beaten up the deceased. Accordingly, Rs.400/- was given on the compulsion of the Panchayatdars. Subsequently, A-2 made a demand for repayment of Rs.400/- from the deceased. Since the deceased refused to make repayment, there was misunderstanding between A-2 and the deceased. (c) On 24.2.1995 at about 4.00 p.m., A-1 and A-2 approached the deceased, who was standing near the tea shop, and demanded the said amount of Rs.400/-. The deceased told them that he would pay the amount at 6.00 p.m. Suddenly, A-1 took out a knife which was kept in his underwear and stabbed on the left side face and left side ear of the deceased. At that time, the deceased tried to escape. Then A-2 caught hold of him so as to prevent him from running away and at that time, A-1 stabbed on the left side of the chest of the deceased. The deceased fell down and died on the spot. (d) P.W.1 Packiam is the mother-in-law of the deceased. She came to the spot for the purpose of taking him for lunch, when the wordy quarrel was going on between the accused persons and the deceased. In that process, she happened to witness the occurrence. On seeing the deceased falling down, P.W.1 Packiam raised alarm and both the accused ran away. She came to the spot for the purpose of taking him for lunch, when the wordy quarrel was going on between the accused persons and the deceased. In that process, she happened to witness the occurrence. On seeing the deceased falling down, P.W.1 Packiam raised alarm and both the accused ran away. (e) On receipt of the telephonic message, P.W.10 Sub-Inspector of Police rushed to the spot and obtained a statement from P.W.1, which is Ex.P-1. A case was registered for the offence under Section 302 IPC. Then, he sent a report to the Magistrate as well as to his superior officials. (f) P.W.11 Inspector of Police took up investigation. He came to the scene of occurrence and observed all the formalities by preparing observation mahazar and drawing rough sketch. He also conducted inquest over the body of the deceased and examined P.Ws.1 and 2 and others. After the inquest, the body of the deceased was sent for post-mortem. (g) P.W.7 Doctor conducted post-mortem on 25.2.1995. He found three injuries on the body of the deceased. He gave an opinion in Ex.P-7 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to the injury to the vital organs like heart and carotid artery left and that the death would have occurred about 15 to 20 hours prior to autopsy. (h) P.W.11 Inspector of Police continued the investigation and took efforts to arrest both the accused. Then, he came to know that both the accused have surrendered before the Judicial Magistrate, Sankari on 27.2.1995. (i) P.W.11 Inspector of Police filed a petition seeking police custody for both the accused. A-1 was refused police custody, since he was not inclined to go for police custody. However, police custody was granted to A-2. A-2 was brought to Police Station and on his confession, M.O.1 knife was recovered. (j) Thereafter, P.W.11 Inspector of Police continued the investigation. The material objects were sent for chemical analysis. After completion of the investigation, he filed the charge sheet against the accused for the offences under Sections 302 IPC and 302 read with 34 IPC. 3. The trial Court framed charge against A-1 under Section 302 IPC and A-2 under Section 302 read with 109 IPC. 4. On the side of prosecution, P.Ws.1 to 11 were examined, Exs.P-1 to P-16 were filed and M.Os.1 to 10 were marked. 5. 3. The trial Court framed charge against A-1 under Section 302 IPC and A-2 under Section 302 read with 109 IPC. 4. On the side of prosecution, P.Ws.1 to 11 were examined, Exs.P-1 to P-16 were filed and M.Os.1 to 10 were marked. 5. When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. However, no evidence was adduced on their side. 6. The trial Court, on analysing the materials available on record, found both the accused guilty. A-1 was convicted for the offence under Section 302 IPC and A-2 was convicted for the offence under Section 302 read with 109 IPC and they were sentenced as stated above. This judgment of conviction is the subject matter of challenge in this appeal. 7. Mr.N.Manokaran, learned counsel appearing for the appellants/A-1 and A-2, while taking us through the entire evidence, would contend that though there are two eye-witnesses, one of them turned hostile and the other, namely one Arul, who was examined during the course of inquest as a witness, was not examined before the Court; that the evidence of P.W.1 Packiam is full of contradictions and therefore, the conviction and sentence imposed on the appellants are liable to be set aside. At the end, learned counsel would submit that even assuming that the evidence of P.W.1 is acceptable, it cannot be said that the conviction imposed on A-2 for the offence under Section 302 read with 109 IPC, is correct, in view of insufficient materials to prove the offence of abetment as against A-2. Learned counsel would also cite two decisions of the Supreme Court reported in (i) AIR 1975 SUPREME COURT 175 (Shri Ram vs. State of U.P.) and (ii) AIR 1989 SC 1661 (Brij Lal vs. Prem Chand), in support of his submissions. 8. On these aspects, we have heard learned Additional Public Prosecutor. 9. We have considered the submissions made by learned counsel for the parties and also perused the records. 10. At the outset, it shall be stated that the recovery of M.O.1 knife which was used by A-1 for causing injuries on the deceased, cannot be given due consideration for the reason that M.O.1 knife was not recovered on the confession of A-1. As a matter of fact, P.W.11 Inspector of Police filed an application seeking police custody for both A-1 and A-2. As a matter of fact, P.W.11 Inspector of Police filed an application seeking police custody for both A-1 and A-2. Since A-1 was not inclined to go for police custody, the learned Judicial Magistrate refused police custody as far as A-1 is concerned and however, on the basis of A-2's statement that he is prepared to go for police custody, he was given custody to the Police, from whom, after confession, M.O.1 knife was recovered. Therefore, the recovery of weapon which has been used by A-1, has not been recovered from A-1. On the other hand, it had been recovered from A-2. Therefore, the recovery of the weapon could not be made use of as against A-1. As such, we are not able to place any reliance with reference to the recovery of M.O.1 knife on the confession of A-2. 11. However, there are other evidence to show that A-1 caused injury on the deceased and at that time, A-2 was present. According to prosecution, ten days prior to the date of occurrence, there was a quarrel between A-2 and the deceased. When A-2 was carrying a hen and walking along the road near the Temple, the deceased Palani went and snatched the hen from him and in that process of quarrel, A-2 beat the deceased and caused injury on his face. For solving the said dispute, a Panchayat was also convened and the Panchayatdars compelled A-2 to pay Rs.400/- as compensation. So, at the insistence of the Panchayatdars, A-2 paid Rs.400/- to the deceased. Subsequently, A-2 demanded repayment of Rs.400/-. This was refused by the deceased. 12. On 24.2.1995 at about 4.00 p.m., when the deceased was standing near the tea shop in which he was working, A-1 and A-2 came and asked for repayment of Rs.400/-. At that time, the deceased said that he would pay the amount at 6.00 p.m. However, A-2 wanted the repayment of money at that point of time itself. Hence, there was a wordy quarrel. 13. P.W.1 Packiam, the mother-in-law of the deceased, came to that side to take the deceased to her house for providing food. At that time, A-1, who was standing near A-2, after lifting his dhoti, took out a knife which was kept in his underwear, suddenly stabbed on the deceased on the left jaw and left ear. 13. P.W.1 Packiam, the mother-in-law of the deceased, came to that side to take the deceased to her house for providing food. At that time, A-1, who was standing near A-2, after lifting his dhoti, took out a knife which was kept in his underwear, suddenly stabbed on the deceased on the left jaw and left ear. The deceased attempted to run away from the scene and at that time, A-2 caught hold of him so as to prevent him from escaping. Then, A-1 again stabbed on the chest of the deceased. As a result, the deceased fell down and died. P.W.1 cried aloud on seeing this incident. Then, A-1 and A-2 ran away. 14. The above aspect of the evidence has been clearly spoken to by P.W.1. As a matter of fact, the occurrence took place at 4.00 p.m. P.W.10 Sub-Inspector of Police, on receipt of the message over phone, rushed to the spot and obtained Ex.P-1 statement from P.W.1 at 4.30 p.m. The case was registered immediately. The learned Magistrate also received the F.I.R. copy at 9.30 p.m. on the same day itself. In the meantime, P.W.11 Inspector of Police took up the investigation; came to the spot and observed all the formalities by preparing observation mahazar and drawing rough sketch. 15. P.W.7 Doctor, who conducted post-mortem on the body of the deceased, also would corroborate through Ex.P-7 post-mortem certificate that he found three injuries, one on the left jaw, another near the left ear and the third on the chest. According to P.W.7 Doctor, the third injury is fatal. 16. It is true that one of the witnesses, namely P.W.2 Balakrishnan turned hostile. It is also true that one Arul, who was examined as a witness during the course of inquest, was not examined before the Court. The fact that one witness has not been examined and one witness turned hostile, would not make the evidence of the other eye-witness, namely P.W.1 Packiam unbelievable. On the other hand, the evidence of P.W.1 is consistent and Ex.P-1 complaint is also in consonance with the deposition of P.W.1. Nothing has been elicited in the cross-examination of P.W.1 to show that she speaks falsehood against A-1 and A-2. As such, it has to be held that P.W.1's evidence has been corroborated not only by the other materials, but also by the medical evidence. 17. Nothing has been elicited in the cross-examination of P.W.1 to show that she speaks falsehood against A-1 and A-2. As such, it has to be held that P.W.1's evidence has been corroborated not only by the other materials, but also by the medical evidence. 17. Under those circumstances, we are of the view that the prosecution was able to prove that the deceased died due to the injuries caused by A-1 in the presence of A-2. 18. The next question that would arise as pointed out by learned counsel for the appellants is as to whether on the available evidence on record, the offence under Section 302 read with 109 IPC is made out as against A-2. 19. The evidence of P.W.1 in chief and cross and the statement Ex.P-1 would indicate that when the deceased tried to escape from the scene, A-2 ran after him and caught hold of the deceased. Even before he caught hold of the deceased, according to prosecution, A-1 gave two injuries on the deceased, one at the left jaw and another in the portion near left ear. It is not the case of the prosecution that before A-1 attacked the deceased, A-2 asked him to attack. In the same way, there is no evidence to show that when A-1 attacked the deceased, causing injuries on two parts of the body, A-2 facilitated A-1 to attack by catching hold of the deceased at that time. The only material available on record would show that when the deceased tried to escape from the scene, A-2, by running after him, caught hold of him so as to prevent him from proceeding further. The question is as to whether this would be sufficient to hold that there is intentional aid or active complicity so as to attract the offence under Section 109 IPC. 20. In this context, it would be worthwhile to refer to Sections 107 and 109 IPC. The question is as to whether this would be sufficient to hold that there is intentional aid or active complicity so as to attract the offence under Section 109 IPC. 20. In this context, it would be worthwhile to refer to Sections 107 and 109 IPC. (a) Section 107 IPC reads as follows: Abetment of a thing: A person abets the doing of a thing who -- First – Instigates any person to do that thing; or, Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by an act or illegal omission, the doing of that thing. Explanation 1: A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2: Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." (b) Section 109 IPC read as follows: "Punishment of abetment if the act abetted is committed in consequence and where express provision is made for its punishment: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation: An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment." 21. In this connection, it would be relevant to refer to the observation made by the Supreme Court while interpreting Section 107 IPC in paragraph 6 of the decision reported in AIR 1975 SC 175 (supra), which reads as follows: "6. ... In this connection, it would be relevant to refer to the observation made by the Supreme Court while interpreting Section 107 IPC in paragraph 6 of the decision reported in AIR 1975 SC 175 (supra), which reads as follows: "6. ... Section 107 of the Penal Code which defines abetment provides to the extent material that a person abets the doing of a thing whom "Intentionally aids, by any act or illegal omission, the doing of that thing". Explanation 2 to the section says that, "Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." Thus, in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abetter is not enough compliance with the requirements of Section 107. .... ..... .... ...... .... .... It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107." 22(a). If the said interpretation of Section 107 IPC made by the Supreme Court is taken into consideration, then it could be easily concluded that the evidence available on record as against A-2 in this case, would not be sufficient to hold that he actively participated in the act committed by A-1. 22(b). As laid down by the Supreme Court, for the offence under Section 109 IPC, two ingredients are essential, one is intentional aid, and another is active complicity. It is true that A-2, while the deceased was trying to escape, ran after him and prevented him from moving further, and at that time, A-1 stabbed on the chest of the deceased. But, the question is as to whether that would be enough to hold that A-2 actively abetted the act on the deceased causing injury on the chest of the deceased. 22(c). The Supreme Court would specifically observe that, "it is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime." 23. 22(c). The Supreme Court would specifically observe that, "it is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime." 23. Mere assertion that the act committed by one of the accused could not have been committed without the interposition of the alleged abettor, is not the enough compliance with the requirements of Section 107 IPC. But, in the absence of material to show that A-1 was brought to the scene of occurrence by A-2 for the purpose of attacking the deceased and also in the absence of material that only on the instigation through words or by catching hold of the deceased, A-1 began to attack the deceased, it cannot be concluded that the act on the part of the alleged abettor in catching hold of the deceased for preventing the deceased from moving further, would be to facilitate the commission of the crime. 24. In such circumstances, we are unable to hold that the part played by A-2 as deposed by P.W.1 Packiam, who, in our view, is a reliable witness, cannot be said to be a formidable material to connect A-2 with the main offence, namely Section 302 IPC. At the most, it could be said that A-2 prevented the deceased from proceeding further, thereby committed an offence of wrongful restraint. But, he was not charged for the offence of wrongful restraint. Therefore, in our view, A-2 is liable to be acquitted of the charge under Section 302 read with 109 IPC. 25. Thus, the appeal is partly allowed and (i) the conviction and sentence imposed on the first appellant/A-1 for the offence under Section 302 IPC are confirmed and since he is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence and (ii) the conviction and sentence imposed on the second appellant/A-2 for the offence under Section 302 read with 109 IPC are set aside and he is acquitted of that charge. The bail bond, if any, executed by A-2 shall stand cancelled.