JUDGMENT V. PERIYA KARUPPIAH, J. The reference in R.T. No. 3 of 2007 is by the learned Principal Sessions Judge, Thiruvannamalai seeking confirmation of the death sentence imposed on A1 in S.C.No. 1 of 1993 dated 25.6.2007. 2. Crl. A. Nos. 607 of 2007, 613 of 2007 and 653 of 2007 are field by Accused Nos. 5, 4 and 1 in S.C.No. 1 of 1993 respectively challenging the conviction and sentence passed against them. 3. A criminal miscellaneous petition in M.P.No. 2 of 2007 is file by A1/Appellant in C.A.No. 653 of 2007 seeking permission to raise additional grounds. 4. In the Sessions Case, totally 12 accused were charge sheeted and the case against A2, A and A8 was split up in S.C.No. 58 of 1997. Similarly, the case against A9 to A11 was split up even at the preliminary case stage and assigned with P.R.C.No. 8 of 1989. The case against A7 and A12 stand abated, since they died during the pendency of the case before the trial Court. The remaining accused A1, A4, A% and A6 were tried by the learned Principal Sessions Judge, Thiruvannamalai in S.C.No. 1 of 1993 after framing charges against A1 under Sections 120-B, 395, 353, 506 (ii) and under Section 302 (3 counts) and 307 (4 counts) I.P.C. and under Section 3 read with Section 25(1-A) and 27(2)(3) and 28 of the Arms Act; against A4 under Sections 120-B, 419, 450, 395, 353, 506(ii), 302 read with Section 149 and Section 307 read with Section 149 I.P.C. against A5 and A6 under Section 120-B I.P.C. 5. The trial Court convicted A1, A4, A5 and acquitted A6, after holding a full-fledged trial by examining P.Ws. 1 to 52 and admitted documentary evidence Exs.P.1 to P.81 and materials objects 1 to 57. The defence side also examined D.Ws. 1 and 2. After trial, the learned Sessions Judge, Thiruvannamalai had convicted the accused as under : Accused Convicted under Sections Sentence A1 395 I.P.C. R.I. for 7 years 302 I.P.C. (3 counts) A combined capital sentence of hanging till death. 307 I.P.C. (4 counts) Life imprisonment on each count. 3 r/w 25(1-A) of the Arms Act Five years R.I. 27 (3) of the Arms Act Capital sentence of hanging till death 395 I.P.C. Seven years R.I. each and to pay a fine of Rs.10, 000/- each, in default to undergo one year R.I. each. 307 I.P.C. (4 counts) Life imprisonment on each count. 3 r/w 25(1-A) of the Arms Act Five years R.I. 27 (3) of the Arms Act Capital sentence of hanging till death 395 I.P.C. Seven years R.I. each and to pay a fine of Rs.10, 000/- each, in default to undergo one year R.I. each. A4 and A5 419 I.P.C. 302 r/w 149 I.P.C. (3 counts) One year R.I. each Life imprisonment and to pay a fine of Rs.50, 000/- each on each count, in default to undergo five years R.I. each. Section 307 r/w 149 I.P.C. (4 counts) Life imprisonment and to pay a sum of Rs.25, 000/- each on each count, in default to undergo three years R.I. each. A6 was not found guilty under Section 120-B I.P.C. and was acquitted. 6. The accused were put on trial on the following allegations: (a) The appellants herein viz. A1, A4, A5 along with nine other accused totalling 12 of them, on 27.7.1998, with an intention to commit the offence of dacoity, had hatched a criminal conspiracy and in pursuance of the said conspiracy, A5 -Sekar arranged a Maruti Omni Van bearing Regn No. TSI-4550 form one Srinivasan at Chennai and handed over the same to A3viz., Joseph Sebastian, who took the van, collected A4-Mohan, A8-Daniel, A12-Moorthi at Chennai and proceeded to Echanpatti, Salem District, they collected A9-Chinnanathan and A11-Bavan form the house of one Periyasami, proceeded to Malliyakarai, Salem District to the house of A6-Shanmugam and had then went to the hose of A7-Ponnusamy at Panchalai Nagar and thereafter, they collected A1-Rajan, A2-Judu and A10-Periyananthan. On 27.7.1988 at round 20:30 hours, all these accused went to Reddiyarpalam and had earmarked the house of the complainant for committing robbery and accordingly, they reached the house of the complainant, posed themselves as Income Tax Officers and looted money by committing robbery to the tune of Rs.21, 900/- from the complainant and escaped. On 27.7.1988 at round 20:30 hours, all these accused went to Reddiyarpalam and had earmarked the house of the complainant for committing robbery and accordingly, they reached the house of the complainant, posed themselves as Income Tax Officers and looted money by committing robbery to the tune of Rs.21, 900/- from the complainant and escaped. (b) In the escaping bid, they proceeded in the Maruti Van to Thandrampet and on hearing the message that the accused persons were fleeing from the scene of crime, Thandrampet Police and public had organised a hurdle on the road by putting benches across the road and at that time, A1 who had the gun with him had fired at the crowd and in the said firing three persons viz., Ramasamy, Ravanan and Panchalai died of bullet injuries and other four persons Jayaraman (P.W.9) Subburayan (P.W.10) Kuppammal (P.W.11) and Anbazhagan (P.W.26) were seriously injured and in the said melee all the accused escaped in the same Maruthi Van and it was later abandoned in a nearby place and the accused had escaped from the scene of crime. 7. The case as spoken by the prosecution witnesses are as follows: (a) P.W.1 is the victim in the offence of robbery committed by the accused On 27.7.1988 at 7.00 p.m. the husband of P.W.1viz. Pitchaikara Gounder (since deceased) returned home from his Rice Mill, Thereafter, both P.W.1 and her husband had their food and went for sleep after locking the iron gate. At that time, P.W.1 hearing that someone was calling from outside came and woke up her husband who was sleeping outside the room of P.W.1 when Pitchaikara Gounder opened the door, a person came saying that he is the Income Tax Officer and asked him to sit in a chair, enquired him. One another person stood near the iron gate with a bag, one person stood near the room of P.W.1 with a bag and two other persons was inside the room. Two other persons searched the house and took the cash bag brought by Pitchaikara Gounder from the Rice Mill and then all of them left the place. Thereafter, P.W.1 and her husband came out and shouted. P.W.2 brother of P.W.1, enquired one of the accused inside the Blue Colour Maruti Van as to who are they. Two other persons searched the house and took the cash bag brought by Pitchaikara Gounder from the Rice Mill and then all of them left the place. Thereafter, P.W.1 and her husband came out and shouted. P.W.2 brother of P.W.1, enquired one of the accused inside the Blue Colour Maruti Van as to who are they. For that he replied that the Income Tax Officers are checking the house of Pitchaikara Gounder and he told P.W.2 to ask the person who stood near the iron gate with a gun. He also replied the same. When he was talking with that person, five persons came out of the house of Pitchaikara Gounder and among them one of the person was having a black bag and they boarded the Maruti Van and left. Thereafter, P.W.1 and her husband came out shouting that the accused were taking away their money. Immediately, P.W.2 requested P.W.6 the Messenger of Indian Bank to inform the police, who in turn informed to Thanipadi Police Station. (b) Prior to the above occurrence, the accused enquired P.W.7 at 5.00 p.m. who was on the way to his house as to who is the rich main Reddiyarpalayam, who could donate. For that P.W.5 pointed Pitchaikara Gounder. Thereafter at 8.15 p.m. when P.Ws.3 and 30 were talking in the road while proceeding to Aroor, the accused asked whether Pitchaikara Gounder was available in the house. For that they replied that he has just arrived from the Rice Mill. P.Ws.3 and 30 were talking there for some time. After some time, they came to know that somebody looted the house of Pitchaikara Gounder and left in a van. (c) P.W.39 - Sub Inspector of Police on receipt of the information from P.W.6, alerted the police and made arrangement to block the road in order to stop the Maruti Van. A Constable (2151) placed his bike across the road to stop the Van. In spite of that, the Van escaped. P.W.39 then directed the Head Constable and Police Constable - 2151 to chase the Van after handing them over a gun and bullets. He also gave information to Thandarampet Police Station that a van was coming towards Thandarampet after looting money at the house of Pitchaikara Gounder at Reddiarpalayam. Thereafter, P.W.39 came to the scene of occurrence viz. the house of P.W.1 and enquired. He also gave information to Thandarampet Police Station that a van was coming towards Thandarampet after looting money at the house of Pitchaikara Gounder at Reddiarpalayam. Thereafter, P.W.39 came to the scene of occurrence viz. the house of P.W.1 and enquired. At that time, Pitchaikara Gounder preferred a complaint Ex.P.1 stating that a sum of Rs.22, 000/- was robbed off. P.W.39 on the basis of the complaint, registered a case in Cr.No. 104 of 1988 for the offence under Section 395 I.P.C. and the F.I.R. is Ex.P.47. He sent the complaint and the FIR to the higher officials and to the Court. (d) In the meantime, P.W. 40, Head Constable of Thandaram Police Station with the help of Grade-I Constable - 2874 and the public gathered near Palaniappan Juice shop viz. P.Ws. 9, 10, 11, 14, 15 and 26 and others blocked the road by putting Pitchaikara Gounder benches and chairs across the road. At that time, the van which was coming at a high speed stopped there. When P.W.40 and others attempted to catch them, a person sitting behind the driver opened fire at the crowd. In the firing, one Ramasamy died on the spot. Ravanan, Panchalai, Anbazhagan (P.W.26) Jayaraman (P.W.9) Subbarayan (P.W.10) and Kuppammal (P.W.11) also sustained bullet injuries. Among them, Ravanan died on way to the hospital and Panchalai was initially taken to Thiruvannamalai Government Hospital and there she was treated by P.W.34. There, P.W.47 recorded dying declaration Ex.P.68 from Panchalai. Later she was taken to Vellore Government Hospital for further treatment where once again, P.W.48 recorded the dying declaration of Panchalai and the same is marked as Ex.P.69. (e) Dr. Sundari, P.W.34 attended on P.W.26, P.W.9, P.W.10 and P.W.11 and issued wound certificates Exs. P.31, 33, 32 and 34 respectively. The bullet injuries sustained by the injured persons are mentioned in their respective wound certificates. She referred P.W.26 and P.W.9 to Stanley Hospital Chennai P.W. 45 recovered the blood stained shirt M.O.11 form P.W.26 under Form 95 Ex. P. 12. (f) P.W.40 posting some constables at the scene of occurrence came to Thandarampet Police Station and gave his Special Report - Ex.P.48 to the S.I. of Police (P.W.41), who in turn registered a case in Cr. No. 131 of 1988 for the offence under Section 302 I.P.C. The F.I.R. is marked as Ex.P.49. P. 12. (f) P.W.40 posting some constables at the scene of occurrence came to Thandarampet Police Station and gave his Special Report - Ex.P.48 to the S.I. of Police (P.W.41), who in turn registered a case in Cr. No. 131 of 1988 for the offence under Section 302 I.P.C. The F.I.R. is marked as Ex.P.49. Thereafter, P.W.41 gave intimation to Sankarapuram Police Station through VHF that some accused are coming in a blue colour Maruti Van No. TSI 4550 after committing robbery. On receipt of the information, P.W.44 started checking the vehicles coming towards Thiruvannamalai by halting a tractor across the road. Then the Van bearing Regn. No. 4550 came and stopped 100 ft away and immediately it took backwards. On seeing that the said Van bore the number TSI-4550, P.W.44 Inspector and the S.T. chased the van. But they did not catch it. Thereafter P.W.45, Circle Inspector of Thiruvannamalai, on intimation went to vanapuram. The people available there also confirmed that the said van was going towards Vanapuram. So P.W.45 went upto Ilayankanni along with party with rifles, but the could not find the van. Therefore, P.W.45 returned to Thanipadi Police Station and took up the casein Cr.No. 104 of 1988 for investigation went to the house of P.W.1 at Reddiyarpalayam, prepared observation mahazar-2 rough sketches Exs. P.50 and 51 in the presence of P.W.3 and P.W.30. he examined the witnesses viz. P.Ws. 1 to 3, 5, 6, 7 and 30 and other and recorded their statements. (g) At 1.00 a.m. on 28.7.1988, P.W. 45 went to the place of firing at Thandarampet - Thanipaid Junction Road, held inquest over the body of Ramasamy. The inquest report of Ramasamy in Ex.P.52. he recovered blood stained earth M.O.3. sample earth M.O.4 empty bullet catridge -M.O.5 in the presence of P.W.11 and one Pachaiappan under the cover of mahazar Ex.P.8 In the presence of same witnesses, he prepared observation mahazar Ex.P7 and rough sketches Exs. P.53 and 54. He sent the body of Ramasamy for postmortem along with requisition Ex.P.37 through P.W.43. (h) On receipt of the requisition P.W.35 Dr. Govindaraju conducted autopsy on 27.7.1988 at 10.40 p.m. and the postmortem certificate of Ramasamy was marked as Ex.P.38, in which the injuries sustained by the deceased ramasamy and cause of death were incorporated P.W.43 handed over the personal apparels (M.Os.18 and 19) of the deceased ramasamy, after the postmortem to P.W.45. (h) On receipt of the requisition P.W.35 Dr. Govindaraju conducted autopsy on 27.7.1988 at 10.40 p.m. and the postmortem certificate of Ramasamy was marked as Ex.P.38, in which the injuries sustained by the deceased ramasamy and cause of death were incorporated P.W.43 handed over the personal apparels (M.Os.18 and 19) of the deceased ramasamy, after the postmortem to P.W.45. (i) On 28.7.1988 at 4.15 a.m. P.M. 45 went to Ilayankanni, where the Van involved in the case was stationed. He prepared observation mahazar Ex.p.3 and recovered driving licence of A3-M.O.5 and the road tax receipt M.O.6 paid for the said vehicle in the presence of P.W.4 and Mariappan under the Mahazar Ex.P.4 At 4.45 a.m. he recovered empty bullet - M.O.12 shot at the type to stop the Maruti Van under Ex.P.55. He examined and other witnesses and recorded their statements. (j) On the same day at 6.00 a.m. P.W.45 went to Thiruvannamalai Government Hospital and held inquest over the body of Ravanan in the presence of panchayatdars and witnesses. The inquest report of Ravanan is marked as Ex.P.21. He examined the witnesses and recorded their statements then and there. he gave requisition - Ex.P.39 to conduct postmortem on the body of Ravanan through P.W.42 and accordingly P.W.35, Dr. Govindarajulu conducted postmortem on the body of Ravanan and issued postmortem certificate Ex.P.21. in which the bullet injuries sustained by the deceased Ravanan and the cause of death are incorporated. The personal apparels (M.O.s. 16 and 17) of the deceased ravanan produced by P.W.42 after the post mortem were recovered by P.W.45 under Form 95 (Ex.P. 59). (k) P.W.45 examined the injured witnesses and recorded their statements. On 29.7.1988, he examined P.W.44 and other official witnesses and recorded their statements. On 30.7.1988 on receipt of information at 8.00 a.m. that injured Panchalai died in the Vellore Government Hospital, he went there and held inquest over the body of Panchlai in the presence of panchayatdars and witnesses and the inquest report is Ex.P.21. he gave requisition Ex.P.41 to conduct postmortem on the body of Panchalai and accordingly, Dr. Kalaiselvi P.W.36 conducted autopsy on the body of the deceased Panchalai and issued Ex.P.42 in which the bullet injuries sustained by the deceased Panchalai and the cause of death are mentioned. (l) P.W.45 examined P.W.21 and other witnesses. He also recovered M.Os. he gave requisition Ex.P.41 to conduct postmortem on the body of Panchalai and accordingly, Dr. Kalaiselvi P.W.36 conducted autopsy on the body of the deceased Panchalai and issued Ex.P.42 in which the bullet injuries sustained by the deceased Panchalai and the cause of death are mentioned. (l) P.W.45 examined P.W.21 and other witnesses. He also recovered M.Os. 6 to 8viz., blood stained dresses of P.W.10 produced by his wife, P.W.19 under Ex.P9, M.O.-9-dhoti, of P.W.9 produced by P.W.20 under Ex.P.10 and M.O.10 - saree of P.W.11 produced by P.W.29 under Ex.P.11. He recovered the pellets (M.Os. 13 to 15) removed from the injured witnesses as produced by the doctor under Form 95 - Ex.P.58. Thereafter, he sent all the recovered objects to Court and gave requisition Exs.P.20 to P.22 to send the same for chemical examination which was carried out by the Judicial Magistrate, Chengam under Exs. 23 to 25. The reports required from P.W.33 are marked as Exs.P.28 to P.30, P.W.43 also produced the dresses of the deceased Ravanan which were recovered by P.W.45 under Form 95 Ex.P.60. On 30.7.1988, he recovered the dresses (M.Os. 29 and 21) of the deceased Panchalai under Ex.P.1 Thereafter p.W.45 handed over the files to P.W. 46, the Inspector of Police, Thiruvannamalai. (m) On 3.8.1988, P.W.46 took up the case for further investigation. He arrested A3 in a bus stand in the presence of P.W.25 and one Manimaran, At that time, A3 gave a confession statement and also produced Rs. 150/- the remaining amount from his share of looted money. The said money M.O.22 is recovered under Ex.P.62. Form 95 prepared to send the recovered money M.O-22 to Court is Ex.P.63. He examined the doctors and recorded their statements. On 4.8.1998, he examined Srinivasan P., W.22 the owner of the vehicle and recorded his statement. On 5.8.1988, he arrested A4 to A6 at Anusuya Mandapam near Saidapet Bridge. They gave their voluntary confession statements, which were recorded by P.W.46 separately in the presence of P.W.31 and one Balakrishnan. The admissible portion of the confession statement of A4 is marked as Ex.P.66. Pursuant to the said statement A4 took P.W.46 to P.W.23's house and form him, he handed over his share of looted money Rs.5, 000/- (M.O.23) and the same was recovered under Ex.P.65. he examined P.W.23 and other witnesses and recorded their statements. The admissible portion of the confession statement of A4 is marked as Ex.P.66. Pursuant to the said statement A4 took P.W.46 to P.W.23's house and form him, he handed over his share of looted money Rs.5, 000/- (M.O.23) and the same was recovered under Ex.P.65. he examined P.W.23 and other witnesses and recorded their statements. Then he took the arrested accused to A10's house at Echampatti. There he prepared observation mahazar Ex.P.67 and searched the house and recovered nine letters Ex.P.70 series, a red colour book Ex.P.71, an identity card showing A.10 as a Srilankan Refugee, a Rexin bag M.O.4, a cloth bag M.O.25, shirt-M.O.26 and a dairy of the year 1988 - M.O.27, an identity card of Tamil Elam Liberation Front given to one Kumar - M.O.28 half-sleeve shirt - M.O.29 Pant-M.O.30 under Ex.P.73. Then he handed over the material objects to the Judicial Magistrate, Chengam. On 5.8.1988, he searched the house of A6 at Malliakarai, Salem and recovered a rope used for cleaning the gun with metal balls-M.O.31, Indian Passport - M.O.32, white shirt-M.O.33, Air bag - M.O.3 and Identity card of one P. Jagan, N. Shankar and Anandan given by Tamil Eelam Liberation From (M.O.s. 35 to 37), black shirt - M.O.38 and an underwear and bed sheet - Ex.P.39 series in the presence of P.W.31 and Balakrishnan under Ex.P.75. he then produced A10 and A4 and the recovered material objects before the Court and also examined P.W.31, Balakrishnan and other witnesses and recorded their statements. On 7.8.1988, he examined some of the witnesses at Echampatti and recorded their statements. On 8.8.1988, he examined P.W.24 and other witnesses and recorded their statements at Athur. he gave requisition - Ex.P.43 to the Judicial Magistrate Vellore to conduct identification parade of A3 and A4. (n) Accordingly on 17.8.1988 at 3.00 p.m. P.W.37 conducted identification parade of A3 and A4. The proceedings of the identification parade is marked as Ex.P.44. On 10.8.1988, on information, he took P.Ws. 27 and 28 to arrest A1 and A2 to Salem. He arrested A1 and A2 who were standing in front of Sundar Lodge in the presence of the above witnesses at 10.30 a.m. At that time both the accused gave their confessional statements, which were recorded by P.W.46. The admissible portion of the confession statement of A1 is Ex.P.21. 27 and 28 to arrest A1 and A2 to Salem. He arrested A1 and A2 who were standing in front of Sundar Lodge in the presence of the above witnesses at 10.30 a.m. At that time both the accused gave their confessional statements, which were recorded by P.W.46. The admissible portion of the confession statement of A1 is Ex.P.21. pursuant to which, he produced a sum of Rs.170/- (M.O.40 series) the remaining amount from his share of the looted amount, which was recovered under Ex.P.13. A1 had then taken P.W.46 and witnesses to Palaniappa Nagar where he was residing and produced Rs.1, 465/-(M.O.41 series) which he had concealed and the same was recovered under Ex.P.14. Then at 2.00 p.m. P.W.46 searched the house of the accused and recovered the empty catridge (M.O.42) concealed under a wooden box. The search list in Ex.P.77. On information at 4.00 p.m. he came to Arur and arrested A7 who was standing in front of passengers waiting hall in the presence of P.Ws. 27 and 28. A7 also gave his confession statement and the admissable portion of which is marked as Ex.P.78. Pursuant to the said statement, he took P.W.46 and the witnesses to Panjali Nagar, where he produced an empty catridge - M.O.43 concealed under a hay stack and some letters viz. Exs.P. 16 to 19, which were recovered under Mahazar Ex.15. P.W.46 searched the house of A7 from 6.00 p.m. 7 p.m. in the presence of the witnesses and recovered a pair of canvas shoes of Chinnanathan (M.O.44) and the rexin shoes of A2 (M.O.45) Brown Colour Rexin Bag (M.O.47) a pant of Chinnanathan (M.O.47) Dark Blue Pant (M.O.48), white half - sleeves shirt (M.O.49), light blue shirt (M.O.50) checked Nylon shirt (M.O.51), Full -sleeve shirt (M.O.52) Sandal colour Nylon shirt (M.O.53) a wood (M.O.54) weight lifts six Nos. (M.O.55 series) and 2 Nos weight lights with cements balls (546 series). The search list is Ex.P.79. Thereafter P.W.46 examined some of the witnesses and recorded their statements. At 10.00 p.m. on the same day, P.W.46 brought the accused and the recovered properties to Thandaram Police Station. From 13.8.1988 to 16.8.1988, he examined some of the witnesses and recorded their statements. Then he gave requisition to conduct identification parade of A1 and A2 to the Judicial Magistrate, Vellore. At 10.00 p.m. on the same day, P.W.46 brought the accused and the recovered properties to Thandaram Police Station. From 13.8.1988 to 16.8.1988, he examined some of the witnesses and recorded their statements. Then he gave requisition to conduct identification parade of A1 and A2 to the Judicial Magistrate, Vellore. Accordingly, P.W.37 conducted identification parade at 3.00 p.m. on 25.8.1988 and the proceedings are marked as Ex.P.46. (o) On 26.8.1988 also he examined some of the witnesses viz. the complainant P.Ws. 1 to 3, 30 and other witnesses and recorded their statements. On 19.10.1988, P.W.46 remanded A8, who was arrested by the Deputy Superintendent of Police (P.W.49). The confession statement of A8 was recorded by P.W.49 in the presence of P.W.30 and one Ponnusamy. The admissible portion of the confession statement is Ex.P.80. Pursuant to the said statement, A8 took P.W.49 and the witnesses to the house of P.W.12 from whom he recovered 2 Nos. Rs.50/- currency notes (M.O.57) under Mahazar Ex.P.81 P.W.49 examined the mahazar witnesses and recorded their statements P.W.46 gave requisition to take A8 under police custody for enquiry and he was granted a day i. e. on 22.10.1988 for enquiry of A8 and accordingly, P.W.46 took A8 to his house at Ramanayakkanpatti and searched his house in the presence of one Balan and Thangavel. But he did not recover anything. On the same day, he produced A8 before the Judicial magistrate, Chengam. He examined the witnesses and recorded their statements. On 7.2.1989 he sought permission form the Collector to register the case under the Arms Act. Since P.W.46 was transferred he handed over the files to P.W.49. (p) On 13.4.1989, P.W.50 Inspector of Police perused the files and filed final report against A1 to A12 for the offences under Sections 410, 457, 392, 394, 396, 397 read with 392, 302 (3 counts) 307 (4 counts) 353 of I.P.C. and Sections 3, 25(1) (A) 27(2) and (3) of the Arms Act. 8. When he accused were questioned under Sections 313 Cr.P.C. with regard to the incriminating materials available in evidence, they denied the same as false. 9. Heard Mr. V. Gopinath, learned senior counsel appearing for M.O. A1, R. Sankarasubbu, learned counsel appearing for A4, Mr. G. Pugazhendi, learned counsel appearing for A5 and the learned Additional Public Prosecutor, Mr. P. Kumaresan. 10. 9. Heard Mr. V. Gopinath, learned senior counsel appearing for M.O. A1, R. Sankarasubbu, learned counsel appearing for A4, Mr. G. Pugazhendi, learned counsel appearing for A5 and the learned Additional Public Prosecutor, Mr. P. Kumaresan. 10. The learned Senior Counsel V. Gopinath appearing for A1, who was punished with death sentence by the learned Principle Sessions Judge, Thiruvannamali, who made reference to this Court, would submit in his argument that the first incident was at 8.30 p.m. on 27.7.1988 relating to the robbery at the house of Pitchaikara Gounder, the husband of P.W.1 and thereafter, the second incident was at 9.00 p.m. on the same day in which the death of Ramasamy, Ravanan and Panchalai had occurred and serious injuries had been caused to four witnesses viz. Anbazhagan, Jayaraman, Subbarayan and Kuppammal. The complaint was given by Pitchaikara Gounder at 9.30 p.m. in respect of the first incident to the S.I. of Police (P.W.39) of Thanipadi Police Station and on that day itself a case was registered in Cr.No. 104 of 1988 under Section 395 I.P.C. and the printed F.I.R. is Ex.P.47. He would further submit in has argument that the prosecution witnesses, who spoke the first incident viz. Robbery are P.Ws. 1, 2, 3, 7 and 30 and he evidence so produced are contradictory in nature. Further, P.W.1 did not implicate A1. However, she had spoken about A4 and A5 and though P.W.2 identified A1 and A4, he had wrongly identified M.O.2 weapon available with P.W.38 as that of be longing to A1. P.W.3 who is said to have identified A1 and A4 is related to the compliant Pitchaikara Gounder. Even though the evidence of P.W.7 shows that he saw A1 and talked with him already, when he came to Reddiyarapalayam for collecting donation and enquired about Pitchaikara Gounder, yet he did not identify A1 in the Court, in spite of his identification of A1 in T.I. Parade. He would further submit in his argument that the witnesses examined by the prosecution in respect of the 1st incident had identified the accused before the magistrate because they had seen the news papers in which the photographs and news items were published and therefore, the identification of A1, A4 an A5 made by the prosecution witness before T.I. parade cannot be relied upon. 11. 11. In respect of the 2nd incident, in which the murder of three persons and serious injuries for four persons were caused due to bullet injuries, the learned senior counsel appearing for A1 would submit at the witnesses examined on the side of the prosecution viz. the injured witnesses -P.Ws. 9 to 11 and P.W.26, do not implicate any of the accused and P.W.8 who was present at the time of occurrence does not also implicate any of the accused in the second incident the evidence of P.W.8 would at best go to show that the persons inside the van had indiscriminately shot at the crowd as a result of which he also sustained injuries. Similarly, he would submit that evidence of P.W.13 does not implicate any of the accused in the said commission of murders. Despite P.W.14 identified A1 as the person, who was in possession of the machine gun inside the Van, he could not provide identification marks of A1 and the evidence of P.W.15 is also to the effect that A1 was also one of the persons inside the van and fire was opened from the Van aiming at the crowd. He does not say that A1 was in possession of the rifle at that time. He would further submit in his argument that there is no other evidence to show the presence of the accused in the place of occurrence and the evidence produced by the prosecution as to the involvement of the accused in both the incidents are not sufficient and A1 is convicted only on the bleak evidence, which is against law and cannot be sustained. 12. V. Gopinath, learned Senior Counsel appearing for the appellant/A1 has further submitted that the appellant has filed a petition in M.P.No.2 of 2007 seeking permission to raise additional grounds in the appeal. According to the learned Senior Counsel, the death sentence has also been imposed on the appellant for the offence under Section 27 (3) of the Arms Act. By that Section, who ever uses any prohibited arms or prohibited ammunition or does any Act in contravention of Section and such use or act results in the death on any other person, shall be punishable with death. 13. By that Section, who ever uses any prohibited arms or prohibited ammunition or does any Act in contravention of Section and such use or act results in the death on any other person, shall be punishable with death. 13. The learned Senior Counsel would further submit that the description of the death sentence, without there being any alternative sentences for the Court to consider and impose depending upon the circumstances of each case would be unconstitutional. In support of the said submission, the learned Senior Counsel would rely upon the judgment of the Supreme Court in, AIR 1983 SC 473 : (1983) 2 SCC 277 : (1983) 1 MLJ (Crl) 485etc. wherein the Constitution Bench of the Apex Court had declared Section 303 or I.P.C. is unconstitutional being violative of Articles 14 and 21 of the Constitution of India. 14. The learned counsel for the appellant in Crl.A.No. 613 of 2007 (A-4) R. Sankarasubbu would submit in his argument that the prosecution witnesses viz. P.Ws. 1 to 3 are strangers to A4 and in the test identification parade attended by P.Ws.1 and 3, A4 was shown and the test identification parade is a farce and unacceptable one. The identity of A4 was shown to the witness in the police station and A4 also objected the same when he was in the police custody and therefore, the identification of A4 by the witnesses cannot be relied upon. It is further argued by the learned counsel that the serious doubts clouded against the fairness of test identification parade have not been cleared by the prosecution and therefore the legality of the identification parade is under question and it vitiates the prosecution case. The identification of A4 during the trial without any corroboration is not sufficient to fasten criminal liability on A4. The identification of A4 during the trial without any corroboration is not sufficient to fasten criminal liability on A4. Mere presence of A4 with others in an unlawful assembly cannot render the said person liable and it could be possible when common intention of unlawful assembly is performed and therefore, there is no question of implicating A4 for the commission of offence under Section 149 I.P.C. The inaction of a person in an unlawful assembly cannot warrant convicting of a person who was docile at the time of unlawful assembly and it cannot be proved with the alleged crime nor could be convicted with the help of 149 I.P.C. He had further submitted in his argument that A4 was working as a Draftsman in a reputed company and was drawing a salary of more than Rs.10, 000/- per month and therefore, no criminal intention would have been hatched in the mind of A4 to commit such an offence. 15. The learned counsel appearing for A5 G. Pugazhendi would submit in has argument that A5 was convicted under Sections 395, 419, 302 read with Section 149 I.P.C. (3 counts), Section 307 read with Section 149 (4 counts) and was acquitted from Sections 120-B, 450, 353 and 506(ii) I.P.C. despite the charge framed against A5 was only under Section 120-B I.P.C. and even the trial Court had acquitted A5 from the charge framed under Section 120-B I.P.C. and therefore, conviction could not be imposed upon him under any other Sections, since there was no charge framed against A5. He would further submit in his argument that the presence of A5 was not spoken in either of the occurrence and therefore, the conviction passed against him under Section 149 I.P.C. is illegal. He would further submit in his argument that P.W.1 had not identified A5 in the test identification parade and no T.I. Parade was conducted in the first occurrence to which A5 was not already known to P.W.1 and therefore, her identification before Court cannot be sustained. Apart from the evidence of P.W.1 there is no other evidence produced by the prosecution against A5 and therefore, the conviction passed against A5 is not sustainable in law. 16. Apart from the evidence of P.W.1 there is no other evidence produced by the prosecution against A5 and therefore, the conviction passed against A5 is not sustainable in law. 16. The learned Additional Public Prosecutor, P. Kumaresan appearing on behalf of the State would submit in his argument that, that the first incident was in respect of looting the house of Pitchaikara Gounder with an active conspiracy in between the accused and the 2nd occurrence was in respect of the shooting incident which took place subsequent to the 1st incident on the way of fleeing from the 1st incident in which three persons died and four persons were seriously injured on the shooting out with the machine gun at the crowd by A1. He would further submit in his argument that three accused viz. A1, A4 and A5 were clearly identified by the prosecution witnesses viz. P.Ws. 1 to 3 and 7 and their evidence corroborated the circumstantial and documentary evidence. Undoubtedly, P.W.1 identified A4 and A5. P.W.2 who was standing near by the house of Pitchaikara Gounder identified A1 and A4 and said that A1 was present with the said gun. P.W.3 identified A1 and A4 out of whom A1 was present with the gun and P.W.7 had identified A1 at the first scene of occurrence. He would further submit in has argument that the commission of looting by posing themselves as Income Tax Officers and by threatening the inmates of the house with dire consequences thereby relieving off the complainant Pitchaikara Gounder with Rs.21, 900/- would certainly incriminate the accused A1, A4 and A5 in the first incident and therefore, it is not correct to say that the accused could not have participated in the first occurrence of looting the house of the Pitchaikara Gounder. Therefore, A1, A4 and A5 are proved to be guilty of committing dacoity at the house of Pitchaikara Gounder. He would further submit in his argument that the information regarding the first incident was given to the police by P.W.6 on seeing that the looters viz. A1 A4, A5 along with other accused fleeing away from the scene of occurrence and immediately. Thanipadi Police with the help of the public had put benches as hurdles in the road so as to prevent the accused from escaping in the Maruthi Blue Colour Omni Van. A1 A4, A5 along with other accused fleeing away from the scene of occurrence and immediately. Thanipadi Police with the help of the public had put benches as hurdles in the road so as to prevent the accused from escaping in the Maruthi Blue Colour Omni Van. But the 1st accused who was with gun inside the Van had indiscriminately shot at public assembled there for preventing them from fleeing away and in the said attack made by A1, three persons viz. Ramasamy, Ravanan and Panchalai died and four persons viz., Anbazhagan Jjayaraman, Subbarayan and Kuppamal were seriously injured with the bullets. The said second incident was spoken to by P.Ws. 14 and 15 and they have identified A1 as the person who indiscriminately shot at the public with the machine gun. P.Ws. 8 and 40 had spoken about the occurrence in general and the injured witnesses viz. P.Ws. 9, 10, 11 and 26 had spoken to the effect of sustaining injuries. Apart from that the dying declaration given by Panchalai Ammal in Exs. P.68 and 69 and the medical evidence would go to show that she sustained bullet injuries above her right hip with the blast shot from the Van. He would further submit that all these witnesses would go a long way to show that the 2nd occurrence had taken place at the place of occurrence where Thandramept Police organised for the apprehension of the accused by putting hurdle in the road in which A1 had shot at the public with machine gun with him and the bullet injuries had made three persons dead and four persons seriously injured. He would also submit in his argument that the pellets available at the scene of occurrence and the bullets taken from the bodies of the deceased persons and the injured persons were identical with the bullets seized from the house of A1 and therefore, the said report of the Forensic Department as spoken by P.W.33 would certainly rope A1 with the heinous crime of committing three murders. He would also further submit that the medical evidence adduced by the doctor P.W.34 in respect of the examination of injured persons and the issuance of AR copies and the postmortem doctors viz. P.Ws. 35 and 36 who did autopsy of the deceased persons would also corroborate the overt acts of A1 against the deceased persons and the injured witnesses viz. P.Ws. 35 and 36 who did autopsy of the deceased persons would also corroborate the overt acts of A1 against the deceased persons and the injured witnesses viz. P.W.s 9, 10, 11 and 26. 17. He would further submit in his argument that the combined crime of dacoity at Pitchaikara Gounders house and the shooting with gun at innocent persons and killing of three persons are serious crimes, which would certainly affect the social set up and back ground of the society and therefore, the learned Principal Sessions Judge of Thiruvannamalai had awarded the death sentence under Section 302 I.P.C. to A1 as a rarest of rare case and also awarded death sentence under Section 27 (3) of the Arms Act and sentenced A4 and A5 appropriately and therefore, he prays for the confirmation of conviction and sentence passed against A1, A4, A5 and prayed for the dismissal of the appeals. 18. Insofar as the petition to raise additional grounds, V.T. Gopalan, learned Additional Solicitor General would submit that in the absence of any challenge taken before the trial Court, the appellant/A-1, cannot be permitted to raise the same before this Court in the appeal. Further the petitioner has filed a petition only to raise additional grounds and in that petition the constitutional validity of Section 27(3) of the Arms Act cannot be gone into. In any case, the ratio decided in Mithus case cannot be made applicable to the provisions of Sections 27 (3) of the Arms Act, as the imposition of the mandatory capital punishment is provided under the said section keeping in mind the growing terrorism/terrorist activities by using unauthorised arms and amunitions. Hence, the learned Additional Solicitor General would submit that the challenge to the provisions of Section 27(3) of the Arms Act must be rejected. 19. G. Masilamani, learned Advocate General would submit that the appellant/A1, has not raised this objection before the trial Court. That apart, the appellant is not entitled to question the constitutional validity of the provisions of Section 27(3) of the Arms Act, by invoking the provisions under Article 226 of the Constitution of India and such a power cannot be exercised by the High Court while sitting as Appellant Court to judge the legality of the conviction and sentence imposed by the trial Court on the appellant. Even on merits, the learned Advocate General would submit that contrary to the provisions of Section 303 of I.P.C. relating to a murder committed by a life convict while serving sentence, mens rea shall be read into the provisions of Sec. 27(3) of the Arms Act and even in the absence of any mens rea and by mere fact that a person who uses any prohibited arms and prohibited ammunition or does any act contrary to the Section 7 and such use or act results in death of any other person, shall be punishable with death. 20. We have given our anxious thought and consideration to the arguments advanced by either side and perused the oral and documentary evidence carefully. 21. The case of the prosecution is that the accused 1 to 8 and four other persons have indulged in the offence of dacoity at the house of Pitchaikara Gounder, husband of P.W.1 and from he place of occurrence viz. Pitchaikara Gounder's house, they have decamped with the money of Rs.21, 900/- in a Blue Maruti Omni Van TSI-4550 and on the way they were intercepted by the police putting hurdles in the road near Thandrampet Police Station and the 1st accused who had the machine gun at his hand in order to escape from the place, opened fire indiscriminately and had caused death to three persons and seriously injured four persons and in the melee they escaped from the second scene of occurrence also. It is further stated that conspiracy was hatched between the accused for the commission of such dacoity and the same was executed by them. Among the said 12 accused, accused 9 to 12 were absconding and therefore, the proceedings are pending still at the stage of committal. Among the remaining accused 1 to 8, A7 died and the case against A2, A3, A8 wee split up and a separate number was assigned in S.C.No. 58 of 1997 and is pending before the Sessions Court. The present casein S.C.No.1 of 1993 was tried against A1, A4, A5 and A6 in which the learned Sessions Judge had examined P.Ws. 1 to 52 and had admitted Ex. P.1 to P.81 and M.Os. 1 to 57 and examined D.Ws. 1 and 2 on the side of the defence and had acquitted A6 and convicted A1, A4 and A5 and imposed sentence as stated supra. 22. The first incident viz. 1 to 52 and had admitted Ex. P.1 to P.81 and M.Os. 1 to 57 and examined D.Ws. 1 and 2 on the side of the defence and had acquitted A6 and convicted A1, A4 and A5 and imposed sentence as stated supra. 22. The first incident viz. the dacoity at Pitchaikara Gounders house on 27.7.1988 was spoken to by P.W.1 the wife of the complainant Pitchaikara Gounder. The said Pitchaikara Gounder died in the meantime and therefore, he could not be examined. The complaint given by him was produced by P.W.1. In support of her evidence P.W.2, P.W.3 P.W.7 were examined. The evidence, of the said prosecution witnesses would show that on 27.7.1988, five persons had come to the house of Pitchaikara Gounder and one among them was standing in the gate and one of the persons who knocked at the door said that they were Income Tax Officers and he had taken a chair and put it before him and directed Pitchaikara Gounder to sit and was enquiring him about his family and was asking for the key and two of them had made P.W.1 to stand leaning over the wall searched inside the house and taken the money brought by P.W.1 from his Rice Mill, which was hanged in a stand and immediately all of the accused left the house and went away in a Blue Maruti Omni Van. At that time, P.W.3 one Sulaiman and Govindaraj came. The officer at the bank had immediately informed about the incident to Thanipadi Police Station. These witnesses had spoken about the occurrence which took place on 27.7.1988 at 8.30 p.m. at the house of Pitchaikara Gounder. In the complaint, Ex.P.1 the complainant Pitchaikara Gounder had mentioned that a sum of Rs.21, 900/- was kept by him and the same was taken away by the said neighbours, who visited his house. The evidence of P.Ws. 2, 3 and 7 would go a long way to show that those persons who came to the house of Pitchaikara Gounder and decamped with Rs.21, 900/- had come in a Blue Maruti Omni Van TSI 4550 and they also gone away in the same van. 23. Now, we have to see whether the appellants herein viz. 2, 3 and 7 would go a long way to show that those persons who came to the house of Pitchaikara Gounder and decamped with Rs.21, 900/- had come in a Blue Maruti Omni Van TSI 4550 and they also gone away in the same van. 23. Now, we have to see whether the appellants herein viz. A1, A4, A5 along with other accused had indulged in committing robbery at the house of Pitchaikara Gounder on 27.7.1988 by 8.30 p.m. by stealing away Rs.21, 900/- from the said house and while they were returning in the Blue Maruti Omni Van whether they had killed three persons and caused serious injuries to four persons by firing with the machine gun in their hands when they were intercepted near Thandaram Police Station and thereby they are guilty of the said charges framed against them. 24. So far as the 1st occurrence is concerned, the involvement of the accused were spoken by P.Ws. 1 to 3 and 7. The test identification parade was organised and P.W.37 the Judicial Magistrate had conducted the same on two occasions. In the test identification parades conducted by P.W.37 on 17.8.1988, A3 and A4 were shown to 10 witnesses mixed with 14 other persons with similar physical appearance and he said 10 witnesses had almost identified A3 and A4 without any hesitation. Thereafter, on 25.8.1988 another identification parade was conducted in the Central prison, Vellore in respect of A1 and A2 and 10 witnesses were brought for identifying them. The test identification parade was conducted by P.W.37 by mixing 14 other similarly physically appearing person and the witnesses had identified A1 and A2. The said test identification parade reports were produced s Exs. P.44 and 46. The requisitions for conducting such test identification parades were also produced as Exs. P. 43 and P.45 respectively. In the fist test identification parade, P.W.1, P.W.2 and P.W.3 had participated they have identified A3 and A4. In the 2nd identification parade also, P.Ws. 1 to P.W.3 participated and they identified A1 and A2. 25. It is argued that the identification of A1 to A4 in the said two identification parades by the witnesses could at best be a piece of evidence and cannot be conclusively decided on the basis of the identification of the accused in the test identification parade. 1 to P.W.3 participated and they identified A1 and A2. 25. It is argued that the identification of A1 to A4 in the said two identification parades by the witnesses could at best be a piece of evidence and cannot be conclusively decided on the basis of the identification of the accused in the test identification parade. It is also argued that the identification was done by the witnesses after seeing the photographs and tutoring of the police before going to identification parade and the photographs were also published in the news papers which were admitted by the witnesses in the cross examination and therefore, the said identification of the accused A1 to A4 in the two test identification parades held by P.W.37 cannot even be taken as a piece of evidence. They would cite an authority in (1970) SCC (Crl) 343 to the effect that the conviction cannot be based solely upon the identification of witnesses by test identification parade since the identification of the accused in the test identification parade is only a piece of evidence. However, in our view, the judgment of the Apex Court reported in 1998 SCC (Crl) 1276 to the effect that if the suspects were already shown to the witnesses before T.I. parade, their identification in Court becomes valueless. The relevant passage runs as follows: “No doubt the evidence of identification parade is to a substantive evidence, but its utility is for purposes of corroboration. In other words, it is utilised for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witness give statement in the Court, identifying the accuses”. 26. On a careful perusal of the judgment of the Apex Court, we could see that though the identification of the accused in test identification parade is not a substantial piece of evidence, but, it could be accepted when the witness speaks about the identification in Court as well and supported by other incriminating materials. So far as this case in concerned. P.Ws. 1 to 3 had spoken about the identification of A1 to A5 in their evidence also. So far as this case in concerned. P.Ws. 1 to 3 had spoken about the identification of A1 to A5 in their evidence also. On a careful perusal of their evidence, they did not admit that they have seen the photographs of the accused prior to the test identification parade either shown by police or form the news papers and identified the accused. A mere admission of P.W.2 to the effect that the news have come in papers before 10 days and the facts have also come in the papers will not in anyway mean that he had seen the photographs of the accused and got himself refreshing his memory. No specific questions had been put to P.W.2 by the defence that he had seen the photographs published in the paper and refreshed his memory as to the identity of the accused and thereafter, he identified the accused in the identification parade. Therefore, the evidence of P.Ws. 1, 2 and 3 corroborated the identification of the accused 1 to 5 in the two test identification paraded held by P.W. 37. Therefore, A1 to A5 had participated in the first occurrence along with three other persons and had decamped with the money they robbed of form Pitchaikara Gounder to the tune of Rs.21, 900/- 27. As per the prosecution case, the 2nd occurrence had taken place at about 8.50 p.m. on the same day when the accused persons fleeing away from Pitchaikara Gounder's house were intercepted in the road near Thandaram Police Station by putting benches in the road and had also arranged for stopping the fleeing accused in order to apprehend them. When the accused were about to cross the said hurdles placed by the police with the help of public, they have conceived the trap and immediately one of the accused in the Varuti Van opened fire in the meantime from the machine gun he had in has hands and in the said incident, totally seven persons sustained injuries and out of them three persons died and four persons were treated for the serious injuries sustained by them in the hospital. The accused had also escaped from the said second scene of occurrence also and vanished after leaving the Maruti Van in an unknown place. 28. The accused had also escaped from the said second scene of occurrence also and vanished after leaving the Maruti Van in an unknown place. 28. The prosecution has examined P.W.38, P.W.40 and the injured witnesses P.W.9 to 11, P.W.26 and the relatives of the deceased persons P.W.17 P.W.21 and the relatives of the injured persons viz. P.W.19 and P.W.20. among them P.W.38 and P.W.40 are the police men who had organised the hurdles and attempted to intercept the accused even in front of the police station at Thanipadi. The evidence of the injured witnesses and P.W.8 would go a long way to show that the 2nd occurrence had happened at the road near Thandaramept Police Station in which the accused had fired from the Blue Maruti Omni Van produced as M.O.1 and the Machine Gun through which the witnesses P.Ws.9 to 11 and P.W.26 sustained bullet injuries and one Ramasamy, Ravanan and Panchalai had also sustained serious injuries and the said Ramasamy died on the spot and Ravanan died on the way to hospital and Panchalai was alive for 10 days and thereafter she succumbed to the injuries sustained by her. The injured witnesses were given treatment by the doctors P.W.34 and wound certificate for the said witnesses were also given by her. The evidence of P.W.34 and the wound certificates - Ex.P.31 to 34 of the injured witnesses and the postmortem certificates Exs.P.38, 40 and 42 of the deceased persons viz. Ramasamy, Ravanan, Panchalai would show that they were fired with machine gun. The evidence of P.W.8 and the injured witnesses would go a long way to show that the firing from the Maruti Omni Van by one of the accused was the cause for the injuries for the injured persons and the deceased persons. The prosecution had collected pellets from the scene of occurrence through observation mahazar in the presence of P.W.1, the said van which was abandoned in an unknown place was also seized by Thandrampet Police in the presence of P.W.12. The said van which was abandoned in an unknown place was also seized by Thandrampet Police in the presence of P.W.12. the said van is produced as M.O.1. The seriously injured person Panchalai had given dying declaration of P.W.47 the Judicial Magistrate at 9.00 a.m. on 28.7.1988 and the said dying declaration was produced as Ex.P.68. The said van which was abandoned in an unknown place was also seized by Thandrampet Police in the presence of P.W.12. the said van is produced as M.O.1. The seriously injured person Panchalai had given dying declaration of P.W.47 the Judicial Magistrate at 9.00 a.m. on 28.7.1988 and the said dying declaration was produced as Ex.P.68. However, yet another dying declaration was recorded by yet another Magistrate P.W.48 on 28.7.1988 at about 3.50 p.m. and recorded the dying declaration which was produced as Ex.P.69. In both the dying declarations, we could see that the said Panchalai was injured by bullet came from the firing from the van. Therefore, we could see that the injuries caused to the witnesses P.Ws. 9 to 11 and 26 and to the deceased persons have been caused by the bullets fired from machine gun from the van M.O.1 by one of the accused. The body of Ramasamy was subjected to autopsy by doctor P.W.35. P.W.36 had one the autopsy on the body of Ravanan and Panchalai. The postmortem certificates are produced as Exs. P.40 and 42. On a careful perusal of the evidence of P.Ws. 35 and 36 and the postmortem certificates, we could see that the death of the deceased persons would have been caused by the bullet injuries received by them. 29. The F.I.R. has been registered in respect of the first incident on the complaint made by Pitchaikara Gounder to P.W.39. So far as the second occurrence is concerned the F.I.R. was registered by P.W.41 and he investigation was done by P.W.45 and P.W.46 respectively and thereafter, both the crime numbers have been clubbed and further investigation was done by P.W.50. During investigation, the pellets found in the 2nd scene of occurrence were collected in the presence of P.W.16 through the observation mahazar and seizure mahazar. The bullets from the injury of a person and a small lead piece and a broken bullet were sent to Ballistic Expert for comparison and for the report. Apart form M.O.1 0.410 inch caliber musket bearing No.W.21681 and a fired 0.410 inch calibre cartridge case were also sent to them for examination and Exs.P.28 and 29 reports were submitted by the Ballistic Expert and he was examined as P.W.33. Apart form M.O.1 0.410 inch caliber musket bearing No.W.21681 and a fired 0.410 inch calibre cartridge case were also sent to them for examination and Exs.P.28 and 29 reports were submitted by the Ballistic Expert and he was examined as P.W.33. Therefore, we could understand that the bullets which caused injuries to the injured persons P.Ws.9 to 11, 26 and the three deceased persons were caused by the fire opened from the same fire arm and they were fired from AK-47 rifle. Therefore, we could understand that the injuries sustained by all these four persons and the three deceased persons were due to the indiscriminate firing from the van M.O.1 by one among the accused and the death of three persons viz. Ramasamy Ravanan and Panchalai were caused and serious injuries of four persons were caused due to the said firing. 30. The prosecution had examined P.W.1, in order to prove the confession given by A-1 the recovery of money in pursuance of his confession. He had also spoken to the effect that A-7 was also arrested and he had given a confessional statement leading to recovery and in pursuance of the said confessional statement, an empty cartridge and other important letters were identified by him. On a careful perusal of he evidence of P.W.28, we could see that A-1 was arrested on the said date at 10.30 a.m. along with A-2 and both of them have given confession in respect of the commission of the offence. Among them, A-1 had given a confession to the effect that he would identify a sum of Rs.170/- being the remaining amount taken from the house of Pitchakara Gounder, Thandrampet. The said admissible portion of the confessional statement was produced and in pursuance of the same, the mahazar prepared for the seizure of Rs. 170/- is marked as Ex.P.13. Apart from that, A-1 had also mentioned in his confession that a sum of Rs.1, 465/- was concealed in the house of one J.E. Palaniappan at Palaniappa Nagar, Soolamangalam and in the said confession also, P.W.28 signed and the seizure in pursuance of the confession was done as identified by A-1 and a sum of Rs.1, 465/- was recovered. The concerned mahazar is produced as Ex.P.14. The concerned mahazar is produced as Ex.P.14. Apart from that, in Aroor, at about 4.00 p.m. the Investigating Officer arrested A-7 and he had also given a confessional statement through which the empty cartridge and important letters were identified and discovered by A-7 and P.W.28 had signed the mahazar, Ex.P.15 and the said seized letters are Exs. P-18 and 19. This evidence of P.W.28 would show that the accused who were involved in the commission of dacoity at Thandrampet village and also the shooting incident in front of the police station at Thandramept had been confirmed by the seizure of the part of the money taken form Pitchaikara Gounder's house and the empty cartridge used for shooting at the second place of occurrence. This would also corroborate the prosecution evidence adduced for proving its case. 31. The other evidence of P.Ws. 1 to 3 and 7 would go a long way to show that they had fled away from the first scene of occurrence in M.O.1 Maruti Van. The evidence of P.W.38, who tried to intercept the said van near Thanipadi Police Station, even prior to the second scene of occurrence would speak to the effect that they had escaped from his trap and vanished in the same van. 32. So far as the 2nd occurrence is concerned, we have already seen it was spoken by P.W.40, P.W.8 and the injured witnesses viz. P.Ws. 9 to 11, 26. they have categorically spoken to the effect that one of the accused had opened fire through machine gun from M.O.1 van and 7 persons injured and out of them three persons died. P.W.8 in has evidence would speak to the effect of van incident. The evidence of P.Ws. 1, 2, 3 would show that the person who was standing at the iron gate of their house was having a bag in which the gun was kept. The said person was identified by them as A1. We have already seen that A1 to A4 who participated in the robbery at the house of Pitchaikara Gounder had fled away from the scene of occurrence in M.O.1 van. At the 2nd scene of occurrence, when they were tried to be intercepted by the police and public, we could see that fire was opened from the said Maruti van indiscriminately from the machine gun. At the 2nd scene of occurrence, when they were tried to be intercepted by the police and public, we could see that fire was opened from the said Maruti van indiscriminately from the machine gun. Therefore, the said fire ought to have been opened by A1 only which caused the injuries to seven persons and out of them three became dead. The other accused who were travelling along with A1 were also seen assisted A1 to commit the said firing indiscriminatingly knowing fully well that it would cause death of the persons when the bullets injure them. Therefore, the evidence adduced by the prosecution would also go a long way to show that he second occurrence was also proved by the prosecution. 33. However, the trial Court had come to a conclusion of acquitting accused 1, 4, 5 and 6 under Sections 120-B I.P.C. accused 1 under Sections 353 and 506 (ii) I.P.C. accused 4 under Sections 450, 353, 506(ii) I.P.C. Accused 1, 4 and 5 were convicted by the learned Principal Sessions Judge, Thiruvannamalai as stated supra in para-5. The charges framed against A5 would not show that he was also charged under Sections 395, 302 read with Section 149 (3 counts) and 307 read with Section 149 (4 counts) I.P.C. However, the learned Sessions Judge had convicted A5 under the aforesaid Sections and imposed sentence of imprisonment and also to pay a fine of Rs.50, 000/- for each count and in default to undergo each five years R.I, an also to pay a fine of Rs.25, 000/- for each count and in default to undergo each 3 years R.I. It is not given to understand that subsequently the trial Court has framed charges against A5 under Section 395, 302 read with Section 149 (3 counts) and under Section 307 read with Section 149 (4 counts) I.P.C. When the charges had not been framed and made known to the accused concerned, the conviction and sentence passed by the trial Court against such accused is not sustainable in law. Therefore, on these aspects, the conviction and sentence passed against A5 are liable to be set aside. 34. Therefore, on these aspects, the conviction and sentence passed against A5 are liable to be set aside. 34. So far as the conviction against A1 under Sections 395, 302 (3 counts) 307 (4 counts) I.P.C. and under Sections 3 read with Section 25(1-A) and 27(3) of the Arms Act and against A4 under Sections 395, 419, 302 read with Section 149 (3 counts) 307 read with Section 149 (4 counts) I.P.C. are concerned, they are confirmed. As far as the sentence against A1 for the conviction under Section 302, I.P.C. (3 counts) and under Section 27(3) of the Arms Act, the trial Court had imposed the capital sentence of hanging till death. The said imposing of death sentence has not been explained by the trial Court that it had come under the rarest of rare cases. The 1st accused had possessed with the machine gun along with other accused at the time of commission of robbery in the 1st incident and thereafter they had escaped in Maruti van M.O.1 and when they were intercepted in the 2nd occurrence the fire was opened from the Maruti Van against the police personnel and the public who had intercepted them. The said action of firing from the Maruti Van was only for the purpose of escaping from the said scene of occurrence. The prosecution witnesses did not speak to the effect that A1 has got down from the van and wantonly shot at the police personnel and public in order to commit the death of those persons. In these circumstances, the decision reached by the trial Court that A1 should have been awarded with capital sentence of hanging till death for the offence under Section 302 I.P.C. cannot be considered to be one under rarest of rare cases. 35. So far as the conviction under Section 27(3) of the Arms Act is concerned, it is the caution given by the Apex Court to be exercised by the trial Court under Section 27(3) of the Arms Act that before imposing punishment under the said section, it must be borne in mind as to whether the offence clearly falls under Section 27(3) of the Arms Act as otherwise, it would not be justified for the Courts to invoke the said provision. It has been categorically laid down by the Apex Court in the judgment in (2003) SCC (Cri) 362 and the relevant passage would run as follows:- “Section 27(3) of the Arms Act prescribes a death penalty in the event the arm or weapon concerned stands out to be a prohibited arm, user of which results in a death -a rather stringent provision. On a comparative analysis of Section 302 I.P.C. there is some amount of laxity involved as regards the resultant death of a person by reason of a deliberate act of the accused - it is on this score the legislature prescribes two punishments, namely imprisonment of life or death - thus leaving it to the wisdom of the Court to pass the sentence in accordance with the gravity of the nature of offence and the methodology used to bring an end to the life of the assassin. It is in this perspective that the law is settled enough to record that it is only in the rarest of rare cases that the maximum penalty, namely, the death sentence ought to be levied since that would be a barbarous act as that would run counter to the civilized notion and concept of the justice delivery system. The jurisprudential system has developed in the country on this backdrop and it is in this perspective this possible attraction of Section 27(3) of the Arms Act shall also have to be dealt with. The Court must use the greatest amount of caution in the matter of exercise of jurisdiction under Section 27(3) and unless, that the issue in question is covered in all its perspective and no two opinions can be had thereon, the Court will not be justified to bring home the charge under Section 27(3) of the Arms Act. Liberty is precious but life is more precious than liberty and the latter cannot possibly be taken away, if one does not cross the limits even at the cost of unforensic language unjudicial phraseology at the drop of a hat but one needs to bring home the attributes without any doubt as regards Section 27(3) of the Arms Act”. Liberty is precious but life is more precious than liberty and the latter cannot possibly be taken away, if one does not cross the limits even at the cost of unforensic language unjudicial phraseology at the drop of a hat but one needs to bring home the attributes without any doubt as regards Section 27(3) of the Arms Act”. In the light of the above guidance given by the Apex Court, we could understand that the object of imposing punishment under Section 27(3) of the Arms Act should not carry away the general principle that the death sentence should have been awarded under Section 302 I.P.C. only in rarest of rare cases. 36. Therefore, we are of the considered view that the capital sentence of hanging till death for the offence under Section 302 I.P.C. and for the offence under Section 27(3) of the Arms Act are modified to that of life imprisonment. In other respects, the conviction and sentence imposed against A1 are maintained. Similarly the conviction and sentence of A4 under Sections 395, 419, 302 read with Section 149 (3 counts) and under Section 307 read with Section 149 (4 counts) are also ordered to be maintained. Since the conviction and sentence passed against A5 are without framing of charges, they are necessarily liable to be set aside. 37. In view of our above finding, the only question remains to be considered is the petition field by the appellant/A1 to raise additional grounds challenging the constitutional validity of the provisions of Section 27(3) of the Arms Act. By that section, whoever uses any prohibited arms or prohibited ammunition in or does any action contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death. The mandatory capital punishment of death is questioned by way of additional grounds. In our opinion, on the facts and circumstances of this case, as we have imposed only a sentence of life imprisonment on the appellant/A1 for the offence under Section 27(3) of the Arms Act, the challenge to the constitutional validity of the said section is only academic and need not be gone into in the appeal. Hence we leave the said issue open for a decision in appropriate case. 38. In fine, the reference, in R.T. No. 3 of 2007 is answered and the Crl. Hence we leave the said issue open for a decision in appropriate case. 38. In fine, the reference, in R.T. No. 3 of 2007 is answered and the Crl. A.No. 653 of 2007 filed by the appellant/A1 is dismissed modifying the death sentence to one of life imprisonment on each count for the offence under Section 302 I.P.C. (3 counts) and Section 27(3) of the Arms Act. The conviction and sentence. Appeal dismissed.