Judgment :- Common Judgment M. Chockalingam, J. This judgment shall govern these three appeals in C.A.Nos.1300, 1311 and 1421 of 2003. 2. Out of the seven accused, who faced trial in S.C.No.137 of 2002 on the file of the Sessions Division, Kanyakumari, A-3, A-7 and A-2 have brought forth these three appeals respectively. These accused along with four others stood charged, found guilty and awarded punishments as follows: CHARGES AND CONVICTION: I – Against A-6 and A-7 under Sec.147 I.P.C. - Convicted and imposed a fine of Rs.500/- with default sentence on A-6. Convicted and sentenced A-7 to 6 months Rigorous Imprisonment. II – Against A-1 to A-5 under Sec.148 I.P.C. - Convicted and sentenced to 6 months Rigorous Imprisonment. III – Against A-1 to A-4 and A-7 under Sec.364 of I.P.C. - Convicted and sentenced to 5 years Rigorous Imprisonment and imposed a fine of Rs.1,000/- with default sentence. IV – Against A-1 under Sec.324 I.P.C. - Convicted and sentenced to 6 months Rigorous Imprisonment. V – Against A-6 under Sec.324 I.P.C. (3 counts) - Convicted and imposed a fine of Rs.1,000/- for each count with default sentence. V – Against A-1 to A-7 under Sec.302 read with 149 I.P.C. - Convicted A-1 under Sec.302 I.P.C. Convicted A-2 to A-5 and A-7 under Sec.302 read with 149 I.P.C. Sentenced them to life. A-6 acquitted. 3. The short facts necessary for the disposal of these appeals can be stated thus: (a) P.W.1 was the wife of the deceased Pazhanivel. They were residing at Malaianinthankudiyiruppu. The accused also belonged to the same place. They were on inimical terms in the past. On 17. 2001 at about 4.30 P.M., when P.W.1 was in the house, A-1 to A-4 came in two motorbikes, and A-1 and A-2 entered into the house, while A-3 and A-4 were standing outside. A-1 and A-2 took the deceased outside the house, and they took him in the motorbike which was driven by A-1. A-3 and A-4 also went in another motorbike. All of them proceeded and reached the road junction where the petty shop of Natarajan the father of the deceased was situated. P.W.2 was also standing at the spot. There was an Ambassador Car bearing Registration No.TN-72-B-7272 in which the driver was A-7. Leaving the motorbike, the deceased was forcibly taken by A-1 and A-2 and pushed inside the Car, which was driven by A-7. P.W.2 was also standing at the spot. There was an Ambassador Car bearing Registration No.TN-72-B-7272 in which the driver was A-7. Leaving the motorbike, the deceased was forcibly taken by A-1 and A-2 and pushed inside the Car, which was driven by A-7. When Natarajan, the father of the deceased, went to the rescue, A-1 attacked him with a knife and he sustained injuries. Immediately, A-1 and A-2 took the deceased in the Car, and A-3 and A-4 also followed them. Natarajan, who sustained injuries at the hands of A-1, proceeded to the Police Station and gave a complaint to P.W.15, the Head Constable. The said complaint is marked as Ex.P22, on the strength of which a case came to be registered by the respondent Police in Crime No.356/2001 under Sec.364 of I.P.C. for kidnapping the deceased. Ex.P23 is the First Information Report. On receipt of the copy of the F.I.R., P.W.16, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared Ex.P2, the observation mahazar, and Ex.P24, the rough sketch. P.W.11, the Doctor, treated the said Natarajan for the injuries sustained by him, and Ex.P12 is the copy of the accident register in his regard. (b) A-1 and the other accused, who took the deceased in the Car, took him to the place of occurrence which is a temple near the seashore. A-3 and A-4 followed them in the motorbike. After reaching the place of occurrence, he was pulled out. At that time, A-1 to A-3 and A-5 were armed with aruvals, and A-4 was armed with a knife, while A-6 had a stick in hand. A-1 to A-3 and A-5 cut him with aruvals indiscriminately. A-4 stabbed him with the knife, and A-6 attacked him with the stick. The entire occurrence was actually witnessed by P.W.3. P.W.3 due to fear, went away without informing to anybody. In the next morning, he proceeded to the house of P.W.1 and informed to her about the occurrence. P.W.1 and the mother-in-law went over to the place of occurrence and saw the dead body. The matter was immediately brought to the notice of the police, and the case originally registered under Sec.364 of I.P.C., was altered to Sec.302 of I.P.C. The express report is marked as Ex.P25. P.W.1 and the mother-in-law went over to the place of occurrence and saw the dead body. The matter was immediately brought to the notice of the police, and the case originally registered under Sec.364 of I.P.C., was altered to Sec.302 of I.P.C. The express report is marked as Ex.P25. Then, the Investigator conducted inquest on the dead body of Pazhanivel in the presence of witnesses and panchayatdars and prepared Ex.P27, the inquest report. The dead body was caused to be photographed through P.W.14. Ex.P20 series are the photos, and Ex.P21,series are the negatives. Following the same, a requisition Ex.P13, was forwarded to the Government Hospital along with the dead body for the purpose of autopsy. Then, the Investigator recovered bloodstained earth, M.O.2, and sample earth, M.O.3, and a pair of slippers, M.O.4, under a cover of mahazar. (c) P.W.12, the Assistant Surgeon, attached to the Government Hospital, Nagercoil, on receipt of the said requisition, conducted autopsy on the dead body of Pazhanivel and found 10 external injuries. He gave Ex.P14, the postmortem certificate, with his opinion that the deceased would appear to have died due to shock and haemorrhage due to injury No.1. (d) Pending the investigation, the Investigator arrested A-2 on 27. 2001, when he volunteered to give a confessional statement, and the admissible part is marked as Ex.P5, pursuant to which M.O.5, chopper, was recovered under a cover of mahazar. On 27. 2001, the Investigator arrested A-4 and A-5. Both of them volunteered to give confessional statements. The admissible parts are marked as Exs.P28 and P30 respectively. Pursuant to the same, M.O.1, knife, and M.O.9, aruval, were recovered from them under a cover of mahazar. Following the same, on 8. 2001, the Investigator arrested A-7, when he came forward to give a confessional statement. The admissible part is marked as Ex.P32. Pursuant to the same, M.O.10, Ambassador Car, was also recovered under a cover of mahazar. A-6 was arrested on 18. 2001. He informed to the Police that the stick used by him at the time of occurrence, was left at the place of occurrence. All the accused were sent for judicial remand. On 9. 2001, A-1 was taken to police custody. He was interrogated. He gave a confessional statement in the presence of witnesses. The admissible part is Ex.P9, pursuant to which M.O.7, aruval, was recovered under a cover of mahazar. (e) On 29. All the accused were sent for judicial remand. On 9. 2001, A-1 was taken to police custody. He was interrogated. He gave a confessional statement in the presence of witnesses. The admissible part is Ex.P9, pursuant to which M.O.7, aruval, was recovered under a cover of mahazar. (e) On 29. 2001, the Investigator took A-3 who surrendered before the Court, to police custody. He was interrogated, and he volunteered to give a confessional statement. The admissible part is marked as Ex.P7. Pursuant to the same, M.O.6, aruval, was recovered under a cover of mahazar. Following the same, all the material objects recovered from the place of occurrence and from the dead body, and also the material objects recovered from the accused pursuant to their confessional statements, were subjected to chemical analysis by the Forensic Sciences Laboratory. Exs.P17 and P18 are the Chemical Analysts reports, while Ex.P19 is the Serologists report. On completion of investigation, the Investigator filed the final report. 4. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and marked 33 exhibits and also 14 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. On completion of the evidence on both sides, the trial Court heard the arguments advanced, and found A-1 to A-7 guilty and also awarded punishments as referred to above. Under the circumstances, A-2, A-3 and A-7 have brought forth these appeals respectively. 5. No defence witness was examined. On completion of the evidence on both sides, the trial Court heard the arguments advanced, and found A-1 to A-7 guilty and also awarded punishments as referred to above. Under the circumstances, A-2, A-3 and A-7 have brought forth these appeals respectively. 5. Advancing his arguments on behalf of the appellants, the learned Senior Counsel in his sincere attempt of assailing the judgment, would submit that in the instant case, there were three eyewitnesses; that all these three witnesses were only planted witnesses; that apart from that, they are closely related; that P.W.1 is the wife of the deceased; that P.W.2 is the co-brother of the deceased; that P.W.3 is the brother of P.W.1; that in the instant case, one witness, who, according to the prosecution, was also an informant to the Police, namely Natarajan, the father of the deceased, died pending the trial, and hence, he could not be examined; that so far as P.Ws.1 to 3 are concerned, as they were close relatives, their evidence could not be believed for more reasons than one; that as far as P.W.1 was concerned, she was not an eyewitness to any part of the occurrence namely either kidnapping or the occurrence of murder; that she was only informed about the same; that it is pertinent to point out that the house of P.W.1 is situated within 100 feet from the petty shop of her father-in-law Natarajan; that according to her, A-1 to A-4 came in two motorbikes, and her husband was taken from the house; that even according to her evidence, they were on inimical terms in the past; that if to be so, when her husband was taken by A-1 to A-4, she would not have kept quiet; but, curiously she did not come forward to give any complaint or to speek about any fact till the next morning; that as regards P.W.2, he, according to the prosecution, was a witness, who actually saw A-1 attacking Natarajan with a knife and also A-1 and A-2 kidnapping the deceased forcibly in the Ambassador Car driven by A-7, and A-3 and A-4 also followed them; that P.W.2s evidence was thoroughly artificial; that he was none else than the co-brother of the deceased; that if to be so, having seen such an occurrence, the natural conduct would be immediately rushing to the house of P.W.1 to inform about the same or to proceed to the place of occurrence, when his co-brother was being kidnapped from the place, or to go to the Police Station to lodge a complaint in that regard; but, he has not done any one of these acts, and he went away and kept quiet till he was examined by the police on the next day; that the conduct of P.W.2 at that juncture was not only contrary to nature, but also unnatural; that he came forward to speak about the fact of kidnapping only on the next day; and that under the circumstances, P.W.2s evidence could not be given any credence at all. 6. 6. The learned Senior Counsel would further submit that as far as P.W.3 was concerned, there are number of circumstances pointing to the fact that he was only a planted witness; that according to P.W.3, he was a chance witness, and he saw the occurrence in which A-1 to A-3 and A-5 attacked the deceased, who was his brother-in-law, indiscriminately with aruvals, and A-4 attacked him with a knife, while A-6 attacked him with a stick, and it was an instantaneous death; that if really he is an eyewitness, he would have gone to the rescue of his brother-in-law either, or if he has got any fear for such an occurrence, after the occurrence was over, the natural conduct would be to inform to the villagers or the sister P.W.1, who was in the house; but, he did not inform her; that according to P.W.1, he came to the house and informed at about 5.00 A.M., and after the information was given, she went in search of the dead body along with her mother-in-law from 5.00 A.M., and she found the dead body only at 9.00 A.M.; that it is pertinent to point out that even P.W.1 did not say that P.W.3 accompanied her; that all these would go to show that P.W.3 was not an eyewitness, nor had he any occasion to see the occurrence; but, he came forward to give false evidence; that it was only the handwork of the investigating agency to plant a witness as if he is an eyewitness for the prosecution case; that under the circumstances, all put together would go to show that P.W.3 could not have seen the occurrence at all; that the evidence of P.W.1 would further go to show that even after coming to know about the occurrence at 5.00 A.M., she went over and searched for the deceased; that had it been true that P.W.3 informed P.W.1 about the occurrence and place of occurrence also, there was no need for P.W.1 to make a search for about 4 hours; that this would be indicative of the fact that neither P.W.3 would have been an eyewitness, nor he would have informed P.W.1 about the occurrence; that under the circumstances, the evidence of P.W.3 should have been rejected outright; that he could not be called as an eyewitness and could not even be called as a witness to the occurrence; that in such circumstances, the evidence of P.Ws.1 to 3 was thoroughly not available for the prosecution case; that further, in the instant case, the alleged confession and the recovery of the choppers along with the knife pursuant thereto, from the accused were nothing but planted and subsequent introduction to suit the prosecution case. 7. The learned Senior Counsel would further add that it is pertinent to point out that originally, the information was given by one Natarajan who was not examined, on the strength of which a case came to be registered under Sec.364 of I.P.C.; that when he went to the Police Station, he has narrated that he sustained injuries at the hands of A-1; but, no case was registered in that regard; that it was only a case under Sec.364 I.P.C.; that in that case, even the F.I.R. was not available to the prosecution; that the contents could not be proved, since he died pending the trial, and hence, the same cannot be relied; that now, at this juncture, it can be stated that the original F.I.R. in the case under Sec.364 I.P.C., was converted to Sec.302 I.P.C.; that the lower Court has given much weight and placed reliance upon the contents of the original F.I.R., which remained unproved; that under the circumstances, in the absence of any evidence, the trial Court has found the appellants/accused guilty, and hence, they are entitled for acquittal in the hands of this Court. 8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that the husband of P.W.1 Pazhanivel, was done to death in an occurrence that took place on 17. 2001. The fact that he died out of homicidal violence was never questioned by the appellants/accused at any stage of the proceedings. Apart from that, the prosecution has also placed before the lower Court not only the evidence of P.W.12, the Doctor, who conducted autopsy, but also the postmortem certificate issued by him, wherein he opined that the deceased died out of shock and haemorrhage. Hence, it has got to be recorded so. 10. The gist of the case of the prosecution, as could be seen, was that A-1 to A-4 went to the house of P.W.1 in two motorbikes, took the deceased and came near the shop of Natarajan, the father of the deceased, and A-1 and A-2 pushed him in the Ambassador Car driven by A-7, took him to the place of occurrence and done him to death. In order to substantiate the charges, the prosecution marched direct evidence through P.Ws.1 to 3. In order to substantiate the charges, the prosecution marched direct evidence through P.Ws.1 to 3. So far as P.W.1 was concerned, according to her, at about 4.30 P.M. on the day of occurrence, A-1 to A-4 came in two motorbikes, and her husband was taken in one motorbike driven by A-1 and A-2, and A-3 and A-4 followed them in another motorbike. Except to this extent, her evidence was not available for the prosecution case. Thus, the origin of occurrence was from the house of P.W.1 wherefrom the deceased was taken at about 4.30 P.M. on the date of occurrence, which fact is clearly spoken to by P.W.1. Insofar as that part of the evidence is concerned, this Court is unable to see any doubt being thrown over the same. 11. According to the prosecution case, the accused have taken him before the shop of Natarajan, and A-1 and A-2 pushed him in the Ambassador Car driven by A-7. At that juncture, Natarajan, who was the father of the deceased, came to the rescue, and he was attacked by A-1, and he was also an eyewitness to the occurrence. At that time, he went to the Police Station to lodge a complaint, on the strength of which a case came to be registered by the respondent police for kidnapping of the deceased. He could not give evidence, since he was not alive at that time. It is pertinent to point out that the fact that the case came to be registered at the instance of the said Natarajan was a relevant fact. Further the occurrence of kidnapping was actually witnessed by P.W.2. According to P.W.2, he was actually standing near the shop of the said Natarajan, and at that time, A-1 to A-4 came in two motorbikes, and in the motorbike of A-1 and A-2, the deceased was brought, and A-1 and A-2 pushed him in the Ambassador Car marked as M.O.10, which was driven by A-7, and it was also followed by A-3 and A-4. Now, at this juncture, the contentions put forth by the learned Senior Counsel for the appellants require consideration. 12. Now, at this juncture, the contentions put forth by the learned Senior Counsel for the appellants require consideration. 12. According to the learned Senior Counsel, had P.W.2 been an eyewitness for such an occurrence of attacking the said Natarajan by A-1 with a knife and also kidnapping his co-brother, the deceased, he would not have kept silent, and instead, he would have informed to others; but, he has not done so, and in such circumstances, his evidence has got to be rejected. This Court is unable to agree with the learned Senior Counsel for more reasons than one. Even at the time of the cross-examination, P.W.2 has categorically admitted that he was involved in number of theft cases and also found guilty by the criminal Court. Under such circumstances, he could not inform to anybody about such an occurrence, or he could not go to the Police Station to inform about the same. It remains to be stated that Natarajan, who was injured in that occurrence and who was also an eyewitness to the kidnapping, proceeded to the Police Station, and hence, he thought it fit to keep quiet. That apart, he also mentioned the reasons therefor. Now, at this juncture, it is pertinent to point out that he was unarmed at the time of occurrence. He also would say that they are the persons involved namely A-1 to A-4, and they were all inimically disposed with the family. He has also witnessed that Natarajan who came to the rescue of his son, was also attacked and injured. In such circumstances, because of the fear, he has not intervened, and he went away from the place, and he informed the matter on the next day. Now, it has to be further pointed out that what was all seen by him was only kidnapping of his co-brother, which was also witnessed by Natarajan, the father of the deceased, who also went over to the Police Station and reported the same. Therefore, in such a situation, he kept silent, and the fact that he was under the grip of psychic fear would be sufficient reason which was explained by him. Merely because of the reason that he did not come forward to speak about the occurrence till the next day, the same, in the opinion of this Court, cannot be a reason to disbelieve his evidence. Merely because of the reason that he did not come forward to speak about the occurrence till the next day, the same, in the opinion of this Court, cannot be a reason to disbelieve his evidence. Thus, he was the person who has last seen the deceased in the company of A-1 to A-4, in that A-1 and A-2 pushed him in the Ambassador Car and took him from the place, and the Car was driven by A-7, and A-3 and A-4 followed in their motorbike behind them. After that, the deceased was seen only dead. Therefore, the last seen theory by P.W.2 would be pointing to the guilt of the accused. 13. So far as P.W.3 was concerned, this Court is able to see number of circumstances not to believe his evidence. Had it been true that P.W.3 has seen the occurrence, as rightly pointed out by the learned Senior Counsel, when his own brother-in-law was murdered, he would have immediately informed to the sister P.W.1 about the same, or he would have gone to the Police Station, but has not done so. According to him, he came to the house of P.W.1 and informed at about 5.00 A.M. Had it been true that P.W.3 came and informed to P.W.1 at 5.00 A.M., there was no need for P.W.1 to search for the dead body of her husband for a period of four hours till 9.00 A.M. This would be indicative of the fact that P.W.3 never informed to P.W.1 about the occurrence. That apart, the fact that he did not inform to anybody, though claimed to have witnessed such an occurrence in which his brother-in-law was murdered and kept silent till the next morning, would be indicative of the fact that he could not have seen the occurrence at all. Thus, his evidence was to be rejected. 14. Further, in the instant case, originally the case was registered under Sec.364 of I.P.C. on the strength of the complaint given by Natarajan, and on receiving the information of murder, the case was altered to Sec.302 of I.P.C. Thereafter, the investigation was taken up by the Investigator, who proceeded to the spot. Following the procedural formalities, the inquest was done, and the dead body was subjected to postmortem. The Investigator further proceeded with the investigation in the case. Following the procedural formalities, the inquest was done, and the dead body was subjected to postmortem. The Investigator further proceeded with the investigation in the case. Even at the earliest, the information regarding the case, was available in the hands of the police, and it was not a suspicious death, but a case of murder. Pending the investigation, the accused persons were arrested and weapons have been recovered. The evidence in that regard was found to be unshaken despite cross-examination to that extent. A-1 to A-4 have given confessional statements, and from A-1 to A-3, aruvals were recovered, and from A-4, a knife has been recovered pursuant to the confessional statements. All these material objects have been subjected to chemical analysis also. In the instant case, there is no evidence to show that A-5 and A-6 have accompanied others to the place of occurrence; and that they have actually participated in the crime. Thus, who were all available were A-1 to A-4. There is also nothing to indicate that A-7, who drove the Car, had got any common object to share with or at least common intention of A-1 to A-4 to cause the death of the deceased. Apart from that, this Court is of the considered opinion that there is no rioting or the member of unlawful assembly, and thus, the provisions of Sections 147, 148 and 149 of I.P.C. cannot have any application. However, there is clear evidence to show that A-1 and A-2 pushed the deceased in the Ambassador Car driven by A-7, and A-3 and A-4 have followed them, and the occurrence has taken place. Thus, it can be recorded that A-1 to A-4 shared the common intention of causing the death of the deceased. 15. So far as A-7 was concerned, there is nothing to indicate that he shared the common intention. Hence, the conviction and sentence imposed on A-7 under Sec.147 and 302 read with 149 of I.P.C., are liable to be set aside and accordingly, set aside. A7 is acquitted of those charges. But, at the same time, the provisions of Sec.364 of I.P.C. could be applied for the offence of kidnapping, and hence, the conviction and sentence imposed on A-7 under Sec.364 of I.P.C. have got to be sustained. Accordingly, they are sustained. A7 is acquitted of those charges. But, at the same time, the provisions of Sec.364 of I.P.C. could be applied for the offence of kidnapping, and hence, the conviction and sentence imposed on A-7 under Sec.364 of I.P.C. have got to be sustained. Accordingly, they are sustained. 16 .So far as A-1 to A-4 are concerned, they are to be convicted under Sec.302 read with 34 of I.P.C. instead of Sec.302 I.P.C. and Sec.302 read with 149 I.P.C. respectively. Accordingly, they are convicted, and the sentence of life imprisonment awarded by the trial Court, is sustained. The conviction and sentence imposed on A-1 under Sec.324 of I.P.C. and A-1 to A-4 under Sec.364 of I.P.C. have got to be confirmed, and accordingly, they are confirmed. In view of the reasons stated above, the conviction and sentence imposed on A-1 to A-4 under Sec.148 of I.P.C. are liable to be set aside and accordingly, set aside. A-1 to A-4 are acquitted of the charge under Sec.148 of I.P.C. 17. As regards A-5 and A-6, it is stated that they have not challenged the conviction and sentence imposed on them. However, there was no evidence available against them. Under the circumstances, they are acquitted of all the charges levelled against them. They are directed to be set at liberty forthwith unless their presence is required in connection with any other case. The fine amounts paid by A-6 alone, will be refunded to him. 18. In the result, with the above modification, all these criminal appeals are dismissed.