JUDGMENT Ms. R. BANUMATHI, J. These Referred Trial and Appeals arise out of the judgment of the Principal Sessions Judge, Tirunelveli in S.C. No. 62 of 2006 dated 16.4.2008 convicting Accused No. 2 and 3 under Sections 302 and 302 read with 34 IPC and sentencing them to death. Accused No. 1 was convicted under Section 25(1B)(a) of Arms Act and sentencing him to undergo 3 years RI and also imposing fine. Accused No. 4 to 9 were acquitted of the respective charges. C.A. No. 270 of 2008 is preferred by the State challenging acquittal of Accused No. 4 to 9. 2. Conviction/Acquittal of the Accused No. 4 to 9 is as under: 3. Confirmation of death sentence as contemplated under Section 366(1) Cr.P.C. is the subject matter in R.T. No. 2 of 2008. Challenging the conviction of death sentence, Accused No. 2 and 3 have filed C.A. Nos. 209 of 2008 and 237 of 2008. State has preferred appeal against acquittal of Accused No. 1, 4 to 9 in C.A. No. 270 of 2008. Challenging acquittal of Accused No. 1,4 to 9, P.W.8-Amudhavanan, son of deceased Aladi Aruna has preferred Crl. R.C. No. 648 of 2008. 4. Since R.T. No. 2 of 2008 and C.A. Nos. 209 of 2008, 237 of 2008 and 270 of 2008 arising out of the same judgment (S.C. No. 62 of 2006), the Referred Trial, all three Criminal Appeals and Criminal R.C .648 of 2008 were taken up together and common judgment pronounced. 5. Case of prosecution in nutshell is as follows: Deceased No. 1-Aladi Aruna was an Ex- Minister of Government of Tamil Nadu from 1996-2001 and prior to that he was a Member of Parliament. Deceased No. 2-Ponraj of Alangulam was the close friend of Aladi Aruna. 6. Accused No. 7-S.A. Raja was running several Educational Institutions in the Districts of Tirunelveli and Kanyakumari and started an Engineering College with the help of Aladi Aruna/Exhibit Law Minister of Government of Tamil Nadu at Athiyuthu near Alangulam in the year 2000. Deceased Aladi Aruna helped Accused No. 7 to get affiliation to the said College. Aladi Aruna was invited as Chief Guest for opening ceremony of the College. 7. Deceased Aladi Aruna helped Accused No. 7 to get affiliation to the said College. Aladi Aruna was invited as Chief Guest for opening ceremony of the College. 7. Subsequently, in 2002, Aladi Aruna himself started constructing Engineering College under the name and style of Einstein's Engineering College near Alangulam at a place called Seethaparpanallur near the College of Accused No. 7 at Athiyuthu. On coming to know this, Accused No. 7 went to the house of Aladi Aruna and questioned him he is a novice in running educational institutions and as to why he should start College which resulted in wordy altercation between deceased Aladi Aruna and Accused No. 7-S.A. Raja. Accused No. 7 nurtured grudge and animosity against Aladi Aruna and the animosity further deepened with the inauguration of Einstein's Engineering College by Aladi Aruna. Even though, Accused No. 7 was invited for the inauguration of Einstein's Engineering College, he did not attend the function and he deputed his College Principal. During August 2004, Aladi Aruna obtained affiliation for his college from Anna University and started admitting the students in their College. 8. Anna University granted affiliation to Einstein's Engineering College on 4.8.2004 (Exhibit P-35). On 23.8.2004, Anna University cancelled the affiliation already accorded to Raja Engineering College (Exhibit P-36). After cancellation of affiliation to the College of Accused No. 7, number of students started deserted Accused No. 7's College and joined in the new College started by Aladi Aruna. One day, Accused No. 7 spoke to P.W.8-Amuthavanan over phone and asked as to how they could admit the students from his College. P.W.8 replied that they are admitting the students as per the Rules. Accused No. 7 retorted saying that they would face the consequences for their misdeeds. 9. Due to animosity, Accused No. 7 decided to eliminate Aladi Aruna and he engaged deceased accused Benny and Accused No. 1-Veldurai by offering them Rs. 5,00,000/- for killing of Aladi Aruna. Accused No. 7 entered into a criminal conspiracy in his College premises on 14.9.2004 and again on 24.12.2004. 9. Due to animosity, Accused No. 7 decided to eliminate Aladi Aruna and he engaged deceased accused Benny and Accused No. 1-Veldurai by offering them Rs. 5,00,000/- for killing of Aladi Aruna. Accused No. 7 entered into a criminal conspiracy in his College premises on 14.9.2004 and again on 24.12.2004. Accused No. 1 and deceased accused Benny engaged their men viz., Accused No. 2-Bala @ Balamurugan, Accused No. 3-Alagar @ Valarntha Alagar, Accused No. 4-Arumugam and Accused No. 5-Paramasivan to execute the murder of Aladi Aruna and all of them met at Courtallam on 28.12.2004 in Sundara Nilayam and worked out the plan to eliminate Aladi Aruna when he used to go for morning walk. 10. In pursuance of the conspiracy, on 31.12.2004 when Aladi Aruna, deceased No. 2-Ponraj and P.W.6-Socrates were on the morning walk on Nallur Vilakku-Puthupatti road at about 7.15 a.m., accused formed themselves into two groups. One group consisting of deceased accused Auto Baskar, Accused No. 2-Bala @ Balamurugan and Accused No. 3-Alagar @ Valarntha Alagar waiting on the north of Dharmar Thottam and Another group consisting Accused No. 1-Veldurai, Accused No. 4-Arumugam and deceased accused Benny waiting at the place south of Dharmar Thottam. 11. P.W.23-Aladi Sankaraiah's son marriage was solemnized on 29.12.2004 and the marriage reception was held in his house at Aladipatti on 30.12.2004 and on his invitation, Aladi Aruna attended the marriage reception function on 30.12.2004 and he left the place at 12.30 noon. 12. Whenever, Aladi Aruna visited Alangulam, he used to go for morning walk with his friend Ponraj (deceased) and Socrates (P.W.6). On 31.12.2004, P.W.6-Socrates, Aladi Aruna and Ponraj were on their morning walk on Nallur Vilakku-Puthupatti road. At about 7.15 a.m., when they were proceeding near the land of Dharmar, Accused No. 2 and 3 and deceased accused Auto Baskar waylaid them. Auto Baskar took out a revolver and aimed at Aladi Aruna. At that time, Aladi Aruna walked towards him and told him that anything could be resolved by negotiation. Auto Baskar holding the revolver did not heed to the advice of Aladi Aruna and fired at him and the shot was misdirected. At the same time, Accused No. 2 and 3 armed with Aruvals attempted to cut Aladi Aruna and teacher Ponraj tried to ward off the cuts. Auto Baskar holding the revolver did not heed to the advice of Aladi Aruna and fired at him and the shot was misdirected. At the same time, Accused No. 2 and 3 armed with Aruvals attempted to cut Aladi Aruna and teacher Ponraj tried to ward off the cuts. At that time, Accused No. 2 repeatedly inflicted cut injuries on the back side of the head and neck of Aladi Aruna. Accused No. 3 repeatedly cut on the neck and backside of Ponraj. Both the injured Aladi Aruna and Ponraj fell down. Accused No. 2 and 3 armed with Aruvals attempted to attack P.W.6-Socrates and deceased accused Auto Baskar also ran towards P.W.6. But P.W.6 had providentially escaped. 13. On 31.12.2004 at about 7.15 a.m., P.W.11-Lakshmanan @ Jeyaraj who was collecting the grass in coconut-cashew grove of one Chandrasekaran heard whistle sound from the road. When P.W.11 looked towards west from where the sound came, P.W.11 saw Accused No. 1-Veldurai and Accused No. 4-Arumugam and Another person (Benny) then not known to P.W.11 were wielding Aruvals. Struck with fear, P.W.11 squatted on the ground and saw all the three persons fleeing the place in a motorcycle. 14. On 31.12.2004 at about 7.20 a.m., when P.W.10-Raghupathy was waiting to board a bus at Nallur Vilakku bus stop, he saw deceased accused Auto Baskar, Accused No. 2-Bala @ Balamurugan and one tall man all riding on a motorcycle and he saw them coming from Puthupatti. 15. P.W.6-Socrates who escaped from the place returned to the scene of occurrence and saw Aladi Aruna and Ponraj without any movements. P.W.6 ran shouting to one Mathivanan's Petrol Bunk owned by Aladi Aruna which was situated at about one kilo metre away from the scene of occurrence and told about the occurrence to P.W.7-Vaithialingam, Manager of the Petrol Bunk. P.Ws.7 and 6 went to the scene of occurrence in P.W.7's TVS-50 vehicle and both of them went to the house of Aladi Aruna and informed P.W.8-Amuthavanan who is the son of Aladi Aruna at about 8.00 a.m. P.W.8 asked P.Ws.6 and 7 to inform the matter to the relatives of deceased Ponraj and thereafter, to lodge a complaint with the Police. 16. P.W.6-Socrates and P.W.7- Vaithialingam went to Alangulam Police Station at about 8.30 a.m. and statement of P.W.6 was reduced into writing (Exhibit P-1) by P.W.51-S.I. of Police. 16. P.W.6-Socrates and P.W.7- Vaithialingam went to Alangulam Police Station at about 8.30 a.m. and statement of P.W.6 was reduced into writing (Exhibit P-1) by P.W.51-S.I. of Police. In Exhibit P-1-Complaint, P.W.7-Vaithialingam also signed as witness. Based on Exhibit P-1-Complaint, case was registered in Alangulam Police Station Crime No. 847 of 2004 under Section 341, 302, 307 IPC and 25(1) of Arms Act and Exhibit P-69 is the FIR. 17. On receipt of Exhibit P-69-FIR, P.W.52-Inspector of Police, Alangulam Police Station had taken up investigation. Between 9.30 a.m. and 10.00 a.m., P.W.52 inspected the scene of occurrence and prepared Exhibit P-2-Observation Mahazar and Exhibit P-71-Rough Plan. P.W.52-IO seized M.O.15-Nokia Cellphone under Exhibit P-3-Seizure Mahazar. Based on the requisition given by P.W.52-IO, P.W.45-Police Photographer went to the scene of occurrence and had taken photographs (M.O.33-series). 18. On the same day between 10.30 a.m. and 12.00 noon and 12.00 noon to 1.30 p.m., in the presence of panchayatdars witnesses were examined and inquest was held on the body of Aladi Aruna and Ponraj. Exhibits P72 and P73 are the inquest reports of Aladi Aruna and Ponraj respectively. After inquest, bodies were sent for autopsy through Head Constable 1020. From near the place where the dead body of Aladi Aruna was lying, P.W.52-IO recovered M.O.16-bloodstained mud, M.O.17- sample mud, M.O.8-One pair of rubber slippers and some hair stained with blood, M.O.1- bloodstained Aruval and M.O.18-handle of the Aruval under Exhibit P-4-Mahazar. Like wise, from near the place where dead body of Ponraj was lying, P.W.52-IO recovered M.O.19-bloodstained mud, M.O.20-sample mud, M.O.12-One pair of rubber slippers under Exhibit P-5-Mahazar. 19. Based on the requisition from P.W.52-IO, P.W.33-Dr. Ramasubbu, Civil Assistant Surgeon and Dr.Abdul Aziz attached to District Head Quarters Hospital, Tenkasi conducted autopsy on the body of Aladi Aruna and noted the following injuries: Clear cut injury 8 x 4 x 2 inches on the back of the neck over the hump cutting through the muscles and blood vessels. Blood clots were seen over the injury. Clear cut injury 2 x 1 x 1 inches over the back of neck on the right side 2 inches below the injury No. 1 cutting the neck muscles. Clear cut injury over the back of scalp(occipital region) on the right side cutting through occipital muscles and outer aspect of occipital bone measuring 3 inches x bone depth. Clear cut injury 2 x 1 x 1 inches over the back of neck on the right side 2 inches below the injury No. 1 cutting the neck muscles. Clear cut injury over the back of scalp(occipital region) on the right side cutting through occipital muscles and outer aspect of occipital bone measuring 3 inches x bone depth. Clear cut injury over the centre of scalp cutting the parietal bone exposing the brain measuring 6 inches x bone deep. Haemorrhage seen over the brain. Cut injury 1 x 1 cm. over the base of front side of neck with clean margin. After obtaining chemical report, P.W.33 opined that the death was due to shock and haemorrhage due to multiple injuries sustained by the deceased. Exhibit P-26 is the postmortem certificate and Exhibit P-27 is the final opinion. 20. P.W.34-Dr.Syed Sulaiman,attached to District Head Quarters Hospital, Tenkasi and his colleague Dr.Ramakrishnan conducted autopsy on the body of Ponraj and noted the following injuries: An oblique cut injury 26 x 5cm. extending from 2.5cm below and behind the left ear lobe upto back of right ear lobe. A cut injury 5cm behind the left ear lobe and 1cm below the 1st injury extending and joining with the 1st injury. Depth of both injuries was along the base of skull cutting across C.1 and C.2 Vertebra through inter vertebral space and severing the spinal cord. A cut injury of 15 x 2cm x skull deep with injury to occipital bone extending 6cm behind upper end of both ear lobes. A cut injury of 2.5cm x 1cm x skin deep below the right margin of injury No. 1. After obtaining chemical report, P.W.34 opined that the death was due to shock and haemorrhage due to multiple injuries sustained by the deceased. Exhibit P-30 is the postmortem certificate and Exhibit P-31 is the final opinion. 21. After post-mortem, M.O.7-Gold ring, M.O.4-Dhoti, M.O.5-Half Sleeve Shirt, M.O.6-Sweater and M.O.39-Banian were recovered from the body of deceased Aladi Aruna and M.O.9-Pant, M.O.10-Half Sleeve Shirt, M.O.11-Watch, M.O.40-Banian, M.O.41-Jatti and M.O.42-Waist cord were recovered from the body of deceased Ponraj under Exhibit 77-Form 95. 22. P.W.52-IO continued with his investigation. On 3.1.2005, A2-Bala @ Balamurugan surrendered himself before the Judicial Magistrate, Thiruvotriyur and on 10.1.2005, he was produced before the Judicial Magistrate, Tenkasi. 22. P.W.52-IO continued with his investigation. On 3.1.2005, A2-Bala @ Balamurugan surrendered himself before the Judicial Magistrate, Thiruvotriyur and on 10.1.2005, he was produced before the Judicial Magistrate, Tenkasi. On the same day, P.W.52-IO gave requisition to the Judicial Magistrate, Tenkasi for police custody and accordingly, police custody of Accused No. 2 was given for three days. Accused No. 2 was interrogated on 11.1.2005 at about 10.00 a.m. and he had voluntarily given confession statement in the presence of P.W.13-Robinson and Another witness Mariappan. The admissible portion of the said confession statement (Exhibit P-10) led to recovery of M.O.2-Aruval from a thorny bush near Karumbuliyuthu village under Exhibit P-8-Mahazar. 23. On the same day at about 5.30 p.m., Accused No. 2 took P.W.52-IO to the two wheeler parking shed situated at the basement of one Nainar Complex in Tirunelveli and Accused No. 2 identified M.O.13-Bajaj Pulsar motorcycle and the same was recovered under Exhibit P-9-Mahazar. On 13.1.2005, Accused No. 2 took P.W.52-IO and his partymen to Courtallam and identified the Bungalow by name Sundara Nilayam near Five Falls road. In the said Bungalow, P.W.52-IO prepared Exhibit P-12-Observation Mahazar and Exhibit P-79-Rough Plan. On 14.1.2005, P.W.52-IO sent the Accused No. 2 to judicial custody. On 17.1.2005, P.W.52-IO gave requisition to the Judicial Magistrate, Tenkasi to conduct Test identification parade for Accused No. 2. 24. From the confession statement of Accused No. 2 and from the statement of other witnesses, P.W.52-IO came to know the involvement of Accused No. 1 to 5 and deceased accused Auto Baskar and Benny were also involved in the double murder. 25. The Superintendent of Police, Tirunelveli formed eleven special team each headed by Inspector of Police for investigation. On 20.1.2005 at about 4.00 p.m., P.W.52-IO arrested Accused No. 4-Arumugam and Accused No. 5-Paramasivan at Seethaparpanallur who were proceeding on a motorcycle and interrogated them. Accused No. 4 gave a confession statement which was recorded in the presence of P.W.20-Iyappan and one Murugan. Admissible portion of confession statement of Accused No. 4 is Exhibit P-17. Accused No. 4 handed over M.O.14-motorcycle (TN-74X 6617) and M.O.24-Samsung Cellphone which were recovered by the IO under Exhibit P-19-Mahazar. Thereafter, Accused No. 4 took the IO and witnesses to a place called Ramar Koil on Alangulam-Tenkasi road and at his instance M.O.25-Aruval was seized under Exhibit P-18-Mahazar. 26. Accused No. 4 handed over M.O.14-motorcycle (TN-74X 6617) and M.O.24-Samsung Cellphone which were recovered by the IO under Exhibit P-19-Mahazar. Thereafter, Accused No. 4 took the IO and witnesses to a place called Ramar Koil on Alangulam-Tenkasi road and at his instance M.O.25-Aruval was seized under Exhibit P-18-Mahazar. 26. P.W.49-Chandra Senan, who was working as Inspector of Police, Tenkasi Police Station was also assisting P.W.52-IO in the investigation of the case. P.W.49-Inspector of Police came to know that the split up accused Ravikumar @ Dog Ravi was harbouring the accused Auto Baskar. Further, P.W.49-Inspector of Police came to know that Accused No. 6-Kannan was habouring Accused No. 3-Alagar @ Valarntha Alagar. On the receipt of information at about 3.00 p.m. on 19.1.2005, P.W.49-Inspector of Police went to Saravana Lodge in Dindigul and found the accused Ravikumar @ Dog Ravi and deceased accused Auto Baskar in Room No. 204 and he asked them to accompany him in connection with the double murder case and they also followed him. On the way to Tirunelveli from Dindigul, P.W.49-Inspector of Police met another Inspector of Police Ravi who was proceeding from Palani to Tirunelveli along with the arrested Accused No. 3-Alagar @ Valarntha Alagar and Accused No. 6-Kannan. 27. P.W.49-Inspector of Police, and Another Inspector of Police Ravi along with arrested accused Auto Baskar, Ravikumar @ Dog Ravi, Accused No. 3-Alagar @ Valarntha Alagar and Accused No. 6-Kannan proceeded to Tirunelveli in one vehicle. On the way, they came to know that from the arrested accused that the other accused viz., Accused No. 1-Veldurai and Benny might be possibly available in a village called Sattupathu within the limits of Cheranmadevi Police Station. When P.W.49-Inspector of Police proceeded to Cheranmadevi along with accused Auto Baskar near Cheranmadevi, deceased accused Auto Baskar told P.W.49 that he wanted to answer nature's call. Hence, P.W.49 took Auto Baskar to Cheranmadevi Police Station and took him to the Toilet in the first floor. Auto Baskar went to the Toilet and on return from the Toilet fell down fainting. Immediately, P.W.49 admitted Auto Baskar in Government Hospital, Cheranmadevi at 1.50 a.m. on 20.1.2005. Hence, P.W.49 took Auto Baskar to Cheranmadevi Police Station and took him to the Toilet in the first floor. Auto Baskar went to the Toilet and on return from the Toilet fell down fainting. Immediately, P.W.49 admitted Auto Baskar in Government Hospital, Cheranmadevi at 1.50 a.m. on 20.1.2005. The Doctor who examined Auto Baskar declared him dead at 1.55 a.m. P.W.49-Inspector of Police lodged a complaint regarding the suicide committed by Auto Baskar and on the strength of the same, case was registered under Section 174 Cr.P.C. in Cheranmadevi Police Station Crime No. 7 of 2005. Thereafter, P.W.49 took Accused No. 3, 6 and Ravikumar @ Dog Ravi and handed them over to P.W.52-IO who came to Cheranmadevi Police Station at 3.00 p.m. 28. On being interrogated, Accused No. 3-Alagar @ Valarntha Alagar gave a confession statement which was recorded in the presence of P.W.18-Asirvatham and witness Maragathavel. Admissible portion of confession statement of Accused No. 3 (Exhibit P-13) led to recovery of M.O.21-Shirt from the bush by the side of a pond in Karumbuliyuthu under Exhibit P-14-Mahazar. On 20.1.2005, P.W.52-IO altered the case into under Section 147, 148, 120(B), 341, 302, 307, 212 IPC and under Section 25(1)(a) of Arms Act under Exhibit P-82-Express report. 29. On 24.1.2005, P.W.52-IO gave requisition to the Judicial Magistrate, Tenkasi seeking police custody for Accused No. 3 and 4. Pursuant to the order of the Court, P.W.52-IO took Accused No. 3 and 4 one day for police custody. Exhibit P-15 is the admissible portion of confession statement of Accused No. 4. On the strength of confession statement of Accused No. 4, Accused No. 3 took M.O.22-Samsung Cellphone and M.O.23-Nokia Cellphone from the almirah in his house and the same were seized under Exhibit P-16-Mahazar. 30. P.W.47-(Suresh Kumar), Inspector of Police, Valliyoor was included in the special team constituted by the Superintendent of Police. On 13.1.2005, P.W.47 came to know the complicity of Accused No. 1 and deceased accused Benny in the commission of crime and they got information that Accused No. 1 and deceased accused Benny were in Ahamedabad city in Gujarat. P.W.47 and his team members went to Ahamedabad on 25.1.2005 and requested Ahamedabad City Crime Branch Assistant Commissioner - Narendra Amin to render assistance to arrest the accused. P.W.47 and his team members went to Ahamedabad on 25.1.2005 and requested Ahamedabad City Crime Branch Assistant Commissioner - Narendra Amin to render assistance to arrest the accused. P.W.47 received intelligence information that Accused No. 1 and other deceased accused Benny were staying in Flat No. 44 44/B/9 in Vaikunth Apartment at Mani Nagar in Ahamedabad City and the said Flat belonged to one Maya Thevar. 31. On the night of 25.1.2005, Gujarat Police party under the leadership of Assistant Commissioner of Police Narendra Amin went to the said Apartment at the fourth floor along with them, P.W.41-Baroot who was the Inspector of Police, City Crime Branch, Ahamedabad also accompanied. P.W.41 knocked the door of the said Apartment and the door was opened by Maya Thevar. After introducing themselves to the said Maya Thevar, P.W.41 rushed into the said house and at that time Accused No. 1 and deceased accused Benny came to the hall from the room and Accused No. 1 attempted to give a slip, but was apprehended by the Police. P.W.41 arrested Accused No. 1 at about 1.00 a.m. on the early morning on 26.1.2005. On search Accused No. 1 was found in possession of M.O.29-Country made revolver and three cartridges (M.Os.32 and 31). Accused No. 1 was also having cash of Rs. 10,200/- (M.O.36-series). While P.W.47 seized the case properties, the deceased accused Benny went into the bath room in the said floor and he was chased by the Assistant Commissioner of Police Narendra Amin and P.W.41-Inspector of Police. Deceased accused Benny put something in his mouth (cyanide poison). On search Benny was found in possession of M.O.3-revolver and M.O.30-Cartridges numbering in two, M.O.37-Samsung Cellphone and M.O.38-currency notes of Rs. 500/- denominations was also recovered from the possession of Benny. 32. As accused Benny consumed cyanide poison, P.Ws.41 and 47-Inspector of Police and their party immediately shifted accused Benny and Accused No. 1 to a nearby hospital viz., L.G. Hospital and they were admitted in the said hospital at 1.30 a.m. Despite treatment, at about 2.15 a.m. on 26.1.2005, accused Benny died. P.W.47-Inspector of Police informed the same to P.W.52-IO. P.W.47-Inspector of Police went to Ahamedabad City Crime Branch and from there he went to Vatwa Police Station at about 6.00 a.m. and gave complaint regarding death of accused Benny. P.W.47-Inspector of Police informed the same to P.W.52-IO. P.W.47-Inspector of Police went to Ahamedabad City Crime Branch and from there he went to Vatwa Police Station at about 6.00 a.m. and gave complaint regarding death of accused Benny. On the basis of complaint, Inspector of Police, Vatwa Police station registered a case in A.D. No. 11 of 2005. 33. P.W.29-Gaurav Prajapati was working as Revenue Divisional Officer/Sub-Divisional Magistrate in the City of Ahamedabad. P.W.46-Solanki was working as Deputy Tahsildar/Executive Magistrate in Ahamedabad City. On 26.1.2005 at about 7.15 a.m., P.W.46-Deputy Tahsildar/Executive Magistrate received written requisition from L.G. Hospital requesting him to record dying declaration from Accused No. 1-Veldurai. P.W.46 went to L.G. Hospital at 8.20 a.m. and saw Accused No. 1 in I.C.U. Ward. At about 9.45 a.m., he informed P.W.29-Gaurav Prajapati regarding inquest to be held on the body of Benny. P.W.29 arrived in the hospital at about 10.15 a.m. As Accused No. 1 did not know either Gujarati or Hindi or English, P.W.46 advised the Hospital authorities and the Police officials present there to arrange for a Translator and accordingly arranged P.W.30-Venkateswaran as a Translator. P.W.30 came to the hospital at about 10.15 a.m. P.W.46 recorded dying declaration given by Accused No. 1 with the help of P.W.30 who translated the statement. Exhibit P-22 is the dying declaration given by Accused No. 1 recorded by P.W.46. Accused No. 1 was discharged from the hospital and he was produced before the Magistrate, Ahamedabad at 7.30 p.m. on the same day 26.1.2005 and the said Magistrate issued Exhibit P-67-transit warrant for Accused No. 1 till 30.1.2005 at 11.00 a.m. After obtaining transit warrant for Accused No. 1, P.W.47-Inspector of Police took Accused No. 1 to Tenkasi and produced him before the Judicial Magistrate, Tenkasi on 28.1.2005 along with his special report Exhibit P-68. P.W.47 handed over the case properties recovered from the possession of Accused No. 1 and deceased accused Benny to P.W.52-IO. 34. On 28.1.2005, P.W.52-IO gave requisition to the Judicial Magistrate, Tenkasi seeking police custody for Accused No. 1 and accordingly police custody was ordered by the Judicial Magistrate, Tenkasi. P.W.52-IO took Accused No. 1 into police custody on 28.1.2005. P.W.47 handed over the case properties recovered from the possession of Accused No. 1 and deceased accused Benny to P.W.52-IO. 34. On 28.1.2005, P.W.52-IO gave requisition to the Judicial Magistrate, Tenkasi seeking police custody for Accused No. 1 and accordingly police custody was ordered by the Judicial Magistrate, Tenkasi. P.W.52-IO took Accused No. 1 into police custody on 28.1.2005. Confession statement of Accused No. 1 recorded in the presence of Athimoolam, Tahsildar, Alangulam and P.W.12-VAO led to recovery of M.Os.26 and 27-Aruvals hidden in a bush behind PVT Mill on Shencottah-Puliyarai road which were recovered under Exhibit P-7-Mahazar. 35. Accused No. 1 was interrogated by P.W.52-IO in Alangulam Police Station. P.W.52 came to know through investigation that the murder occurrence was due to the instigation of A7-S.A. Raja. Accordingly, P.W.50-Inspector of Police, Thisaiyanvilai to arrest Accused No. 7. Accordingly, P.W.50-Inspector of Police arrested Accused No. 7 in the premises of Jeyamatha Engineering College in Aralvoimozhi and handed over him to P.W.52-IO on 30.1.2005. P.W.52-IO sent Accused No. 1-Veldurai and Accused No. 7-S.A. Raja to judicial custody. 36. P.W.44-District Munsif-cum-Judicial Magistrate, Shencottah conducted Test Identification Parade in respect of Accused No. 2 on 20.1.2005. During Test Identification Parade, P.W.6-Socrates identified Accused No. 2-Bala @ Balamurugan and Exhibit P-54 is the Test Identification Parade report held in respect of Accused No. 2. Again on 1.2.2005 as per the requisition from P.W.52-IO, P.W.44- DM-cum-JM held Test Identification Parade in respect of Accused No. 3 in which P.W.6-Socrates and P.W.10-Raghupathi separately identified Accused No. 3-Alagar @ Valarntha Alagar and Exhibit P-56 is the Test Identification Parade Report in respect of Accused No. 3. 37. P.W.52-IO continued with the investigation and examined the other witnesses. P.W.52 noticed that due to language problem, some mistakes have been crept in Section 161 Cr.P.C. Statements recorded from the witnesses from Gujarat. By mistake, P.W.52-IO has stated that statement to the effect that as if P.W.29 has recorded dying declaration of Accused No. 1 instead of saying that P.W.46 recorded dying declaration of Accused No. 1. 38. On 5.3.2005, P.W.52-IO arrested Accused No. 8-Arjunan at Enthanallur bus stop and Accused No. 8 was remanded to judicial custody. On 8.3.2005, Accused No. 9-Dhanasingh @ Seenivasan was arrested and his confession statement led to recovery of M.O.28-Reliance Cellphone under Exhibit P-21-Mahazar. Accused No. 9 was also sent to judicial custody. 39. Seized material objects were sent for chemical analysis. On 5.3.2005, P.W.52-IO arrested Accused No. 8-Arjunan at Enthanallur bus stop and Accused No. 8 was remanded to judicial custody. On 8.3.2005, Accused No. 9-Dhanasingh @ Seenivasan was arrested and his confession statement led to recovery of M.O.28-Reliance Cellphone under Exhibit P-21-Mahazar. Accused No. 9 was also sent to judicial custody. 39. Seized material objects were sent for chemical analysis. Exhibit P-44 is the Biology report and Exhibits P-45 and 46 are the Serology reports. Country made revolver and cartridges were sent for examination by Ballistic Expert. Exhibit P-39 is the Ballistic Expert Report. 40. P.W.48-then District Collector, Tirunelveli District has accorded sanction (Exhibit P-50) for prosecution of Accused No. 1, deceased accused-Auto Baskar, Benny and Dhanasingh @ Seenivasan(A9) under Section 39 of Arms Act for prosecuting them for the offence punishable under Section 25(1)(b) (a) read with Section 3 of Arms Act. After receipt of chemical analysis report and after completion of due investigation and upon receipt of sanction order, P.W.52-IO filed final report against the accused under Section 147, 148, 341, 212, 302, 307, 120(B) read with 149 IPC and Section 25(1)(a), 25(1)(B)(a), 25(1) (1-A) of Arms Act on 31.3.2005. 41. To prove the Charges against the accused, in the trial Court prosecution examined P.Ws.1 to 52. Exhibits P-1 to P-97 and M.Os.1 to 42 were marked. Exhibit C-1 was marked during cross examination of prosecution witness. Accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstance. Denying all of them during Section 313 Cr.P.C. questioning - Accused No. 1-Veldurai has stated that he was arrested by the Inspector of Police, Ahamedabad even 10 days prior to the alleged date of arrest and that signatures were obtained from him on blank papers; Accused No. 2-Bala @ Balamurugan has stated that since Police searching him, he surrendered himself before the Court and false case has been foisted against him; Accused No. 3-Alagar @ Valarntha Alagar has stated that he has no connection with the offence and false case has been foisted against him; Accused No. 4-Arumugam has stated that he has no connection with the offence and false case has been foisted against him. Accused No. 7-S.A. Raja has stated that immediately after the orders of cancellation of affiliation of his college, they filed Writ Petition before the High Court and obtained Stay order. Accused No. 7-S.A. Raja has stated that immediately after the orders of cancellation of affiliation of his college, they filed Writ Petition before the High Court and obtained Stay order. Accused No. 7 further stated that he was suffering from heart ailment and he was undergoing treatment and therefore, he could not attend the inaugural function of Einstein's Engineering College and therefore, he deputed his College Principal to attend the function. Accused No. 7 has further stated that he underwent heart surgery even in October 2002 and thereafter, he has handed over the administration of his colleges to his son and accordingly, Engineering college at Athiyuthu was managed by his own son and that he has nothing to do with the administration of Sardar Raja Engineering college and that a false case has been foisted against him. 42. Upon consideration of evidence and observing that the so called irregularities and omissions on the part of Investigating Officer do not cause any dent in the case of prosecution, learned Sessions Judge inter alia held as follows: Accused No. 7-S.A. Raja nurturing enmity against deceased No. 1-Aladi Aruna and that prosecution has proved the enmity. Even though, prosecution has proved enmity, prosecution has not established that Accused No. 7 conspired with Accused No. 1 and other accused to eliminate Aladi Aruna and the conspiracy theory propounded by the prosecution has not been established. Exhibit P-22-statement of Accused No. 1 recorded by P.W.46 is not admissible in evidence and is hit by Section 26 of Indian Evidence Act and that the same cannot be taken as against Accused No. 7. Prosecution has proved that Accused No. 1 was found to be in possession of country made revolver (M.O.29) and M.Os.31 and 32-cartridges without licence and found Accused No. 1 guilty under Section 25(1)(b)(a) of Arms Act. So far as the occurrence, trial Court held that P.W.6 is a reliable witness and that his evidence draws support from the testimony of P.W.10 who is waiting at Nallur Villaku bus stop and on those findings held that Accused No. 2 and 3 guilty of causing death of deceased Aladi Aruna and Ponraj. Murder was committed in an extremely brutal, grotesque, diabolical and dastardly manner and that both deceased were unarmed, defenceless and hapless. Murder was committed in an extremely brutal, grotesque, diabolical and dastardly manner and that both deceased were unarmed, defenceless and hapless. Observing that the Aggravating circumstances overwhelmingly supersede the mitigating circumstance, the learned Sessions Judge imposed death sentence upon Accused No. 2 and 3. 43. Mr. N. Mohideen Basha, learned counsel for the Accused No. 2 (Appellant in C.A. No. 237 of 2008) raised the following contentions: Evidence of P.Ws.6 and 10 are unreliable and while so, it would be unsafe to base the conviction upon the evidence. Evidence of P.W.6 is beset with inconsistencies and contradictions. P.W.6 has not stated about the gun shot injuries caused to Aladi Aruna and hence P.W.6 could not have been an eye-witness to the occurrence. No reliance could be placed on Test Identification Parade. In Exhibit P-1-Statement, there was no indication as to identification of the assailants while so, identification of Accused No. 2 is not reliable. Recovery of Cellphone (M.O.15), Aruval (M.O.13) and Aruval Handle (M.O.18) from Accused No. 2 are doubtful. Exhibit P-22 does not speak about P.W.6-Socrates. Name and identification of assailants not stated in Exhibit P-1-Statement. 44. Mr. Shanmuganathan, learned counsel for the Accused No. 3 (Appellant in C.A. No. 209 of 2008) inter alia raised the following contentions: P.W.6-Socrates could not have been present in the scene of occurrence and P.W.6 was an implanted witness. Exhibit P-1-Statement does not contain any details as to the identification of the assailants and while so, identification during Test Identification Parade is not reliable. Unlike, a normal man, Accused No. 3 being 6½ feet and was of unusual height, he is called Valarntha Alagar and even though, statement of P.W.6 under Section 161 Cr.P.C. was recorded four times, he has not given the identity of any of the accused especially Accused No. 3-Alagar @ Valarntha Alagar. Test Identification Parade is illegal and not conducted in accordance with the well laid down principles and the same is unacceptable. P.Ws.10 and 11 are not reliable witnesses. Exhibit P-22 allegedly recorded from Accused No. 1 is hit by Section 26 of Indian Evidence Act and is inadmissible in evidence. Test Identification Parade is illegal and not conducted in accordance with the well laid down principles and the same is unacceptable. P.Ws.10 and 11 are not reliable witnesses. Exhibit P-22 allegedly recorded from Accused No. 1 is hit by Section 26 of Indian Evidence Act and is inadmissible in evidence. In support of his contention, learned counsel for Accused No. 3 placed reliance upon AIR 1999 SC 1086 : 1999 SCC (Cr) 378 : (1999) 3 SCC 54 ; (2007) 2 SCC 310 : (2007) 2 MLJ (Crl) 216; (2006) 11 SCC 323 : (2007) 1 MLJ (Crl) 245; AIR 1987 SC 1572 : (1987) 3 SCC 227 : 1987 SCC (Cr) 473; AIR 1990 SC 2140 : 1991 SCC (Cr) 172 : (1991) 1 SCC 286 and AIR 2001 SC 1512 : (2001) SCC (Cr) 652. 45. Challenging the acquittal of Accused No. 4 to 9, State has preferred C.A. No. 270 of 2008. 46. Challenging the findings of the trial Court, Mr. N. Natarajan, learned senior counsel, Special Public Prosecutor for the State contended that even though P.Ws.1 and 2 and P.Ws.4 and 5 have turned hostile, by the evidence of P.W.3-Thenraj and from Exhibit P-22-dying declaration and other evidences, prosecution has established the essence of criminal conspiracy which is a meeting of minds. It was further argued that conspiracy is hatched in secrecy and it may be difficult for the prosecution to adduce direct evidence and the learned Sessions Judge ought to have held that the evidence and materials on record would clearly show that Accused No. 1, 4 and 7 and other accused have come together in the pursuit of the criminal conspiracy to eliminate Aladi Aruna. Insofar as, Exhibit P-22, it was further contended that merely because Police were present at the time when Exhibit P-22 was recorded from Accused No. 1 by P.W.46-Deputy Tahsildar/Executive Magistrate, Accused No. 1 cannot be said to be in police custody. Learned senior counsel further argued that merely because Accused No. 1 survived, evidentiary value of Exhibit P-22 cannot be belittled and while so, trial Court was not right in throwing away Exhibit P-22 as hit under Section 26 of Indian Evidence Act. Learned senior counsel further argued that merely because Accused No. 1 survived, evidentiary value of Exhibit P-22 cannot be belittled and while so, trial Court was not right in throwing away Exhibit P-22 as hit under Section 26 of Indian Evidence Act. In support of his contention, learned senior counsel placed reliance upon Ramilaben AIR 2002 SC 2996 : (2002) SCC (Cr) 1575 : (2002) 7 SCC 56 and AIR 2001 SC 3488 : (2001) SCC (Cr) 1341 : (2001) 7 SCC 596 : (2002) 1 MLJ (Crl) 1. 47. Even though, Accused No. 1 was convicted under Section 25(1)(B)(a) of Arms Act, he has not preferred any appeal against the verdict of conviction. Accused No. 1 was shown as first respondent in C.A. No. 270 of 2008 preferred by the State (appeal against acquittal). Since, Accused No. 1 did not engaged a counsel and he was stated in prison in connection with other case, we have issued notice to Accused No. 1 to ascertain whether he has engaged the counsel or whether any Legal Services is required for him. Notice to Accused No. 1 was served in Prison and Mrs. V. Jeyarani, learned counsel entered appearance for Accused No. 1. 48. Learned counsel for Accused No. 1 submitted that Exhibit P-22 was rightly discarded by the trial Court on the ground that it was hit by Section 26 of Indian Evidence Act and that the finding cannot be said to be perverse. Commenting upon the prosecution for non-production of the original proceedings of Exhibit P-22, learned counsel for the Accused No. 1 further submitted that Exhibit P-22 cannot be looked into for any purpose. 49. On behalf of Accused No. 7, Mr. K. Doraisamy, learned senior counsel inter alia submitted the following: Under Section 32 of Indian Evidence Act, dying declaration could be received only when it relates to cause of his death. While so, Exhibit P-22 is in the nature of confession statement of Accused No. 1 and therefore, Exhibit P-22 cannot be looked into against Accused No. 1 much less against the alleged conspirator - Accused No. 7. Even though, prosecution has seized number of Cellphones, absolutely no investigation on that aspect to connect as to whether there was any contact/call made from one phone to another. Absolutely, no material was produced to connect Accused No. 7-S.A. Raja with the commission of offence. Even though, prosecution has seized number of Cellphones, absolutely no investigation on that aspect to connect as to whether there was any contact/call made from one phone to another. Absolutely, no material was produced to connect Accused No. 7-S.A. Raja with the commission of offence. Accused No. 7 was arrested nearly one month after the occurrence i.e. on 30.1.2005 and only after the arrest of Accused No. 7 witnesses came forward to speak about Accused No. 7 and in such circumstances, no reliance could be placed upon the evidence of those witnesses who have spoken against Accused No. 7. 50. Since Accused No. 6-Kannan has not informed the name of his counsel, we have directed Accused No. 6 who was in Jail tin Coimbatore to be produced before us. Accused No. 6 was produced before us. Mr. P.Vijaya Raghavan has entered appearance for Accused No. 6. We have heard the arguments of Accused No. 6. 51. We have also heard Mr. S.Jeyakumar, learned counsel for the Accused No. 4 and 5 and Mr. R.Ramasamy, learned counsel for the Accused No. 8. 52. Since Accused No. 9-Dhanasingh @ Seenivasan has not appeared nor engaged counsel. Based on the memo filed by the prosecution, case against Accused No. 9 was split up. 53. Learned Sessions Judge discussed the case of prosecution on three aspects: (i) motive; (ii) conspiracy; and (iii) commission of the crime. We deem it fit to analyse the evidence and consider the arguments both in the appeal against conviction and the appeal against acquittal on the following aspects: Motive. Conspiracy. 14. 14.12.2004; 24.12.2004 and 28.12.2004. Evidence of P.W.23-Murugan (Hardware Seller). Evidence of P.W.11-Lakshmanan @ Jeyaraj as to the presence of Accused No. 1, 4 and deceased accused- Benny in the scene of occurrence. Exhibit P-22 recorded from Accused No. 1. Occurrence Evidence of eye-witness - P.W.6 (Socrates). Overt act of Accused No. 2 and 3 and deceased accused-Auto Baskar. Evidence of P.W.10-Raghupathy. Subsequent conduct of Accused No. 2 and 3 and arrest, confession and recovery. Evidence of P.W.11-Lakshmanan @ Jeyaraj as to the presence of Accused No. 1, 4, 7 and deceased accused-Benny close by to the scene of occurrence. Subsequent conduct of Accused No. 1,4 and deceased accused-Benny and arrest, confession and recovery. 54. Motive: Hardly any action without motive. Every criminal act is done with motive. Evidence of P.W.11-Lakshmanan @ Jeyaraj as to the presence of Accused No. 1, 4, 7 and deceased accused-Benny close by to the scene of occurrence. Subsequent conduct of Accused No. 1,4 and deceased accused-Benny and arrest, confession and recovery. 54. Motive: Hardly any action without motive. Every criminal act is done with motive. Case of prosecution is that Accused No. 7-S.A. Raja had deep-seated enmity with deceased No. 1-Aladi Aruna in running Engineering College and that students of Accused No. 7's college left his Institution and joined the college started by Aladi Aruna who was Exhibit Law Minister. 55. Accused No. 7 was running several Educational Institutions in the Districts - Tirunelveli and Kanyakumari. Accused No. 7 started Sardar Raja Engineering College at Athiyuthu, Alangulam. Deceased No. 1-Aladi Aruna helped Accused No. 7 to get affiliation for the said Engineering College. Subsequently, during the year 2002, Aladi Aruna himself has started constructing a college in Seethaparpanallur and Accused No. 7 asked Aladi Aruna to stop construction of the college which then resulted in wordy altercation. 56. P.Ws.1 and 2 were examined to show that Accused No. 7 went to the house of Aladi Aruna in 2002 and questioned him regarding his intention to start a college. Later, in 2004 there was a wordy altercation between them and that there was students' demonstration in front of Accused No. 7's college on 13.9.2004. Both P.Ws.1 and 2 have not supported the case of prosecution and they have turned hostile. Earlier, statements of P.Ws.1 and 2 under Section 164 (5) Cr.P.C. was recorded by the Judicial Magistrate, Shencottah (Exhibit P-59 and 60). As rightly held by the trial Court even though, statements of P.Ws.1 and 2 were recorded under Section 164 (5) Cr.P.C., those statements (Exhibits P59& 60) cannot be used as substantive evidence. 57. Though, P.Ws.1 and 2 have turned hostile, prosecution has adduced other evidence proving that there was hatred and enmity between the deceased Aladi Aruna and Accused No. 7 in running Educational Institutions. P.W.7-Vaithialingam who is an employee under Aladi Aruna has spoken about starting of new college by Aladi Aruna near the college of Accused No. 7 and number of complaints were sent against Accused No. 7's college and Accused No. 7 felt that it might be the handy work of Aladi Aruna and that Accused No. 7 was nurturing animosity against deceased Aladi Aruna. 58. 58. P.W.8-Amuthavanan, who is none other than the son of Aladi Aruna and Principal/Correspondent of Einstein's Engineering College started by Aladi Aruna. In his evidence, P.W.8 has deposed that in the year 2002, his father started constructing a college and at that time, Accused No. 7 came to their house in Alangulam and spoke to his father and asked his father to stop constructing a new college as it would affect Accused No. 7's college. P.W.8 had also stated that Accused No. 7 told his father Aladi Aruna that he is novice in running Educational Institutions and that Aladi Aruna retorted saying that "if an outsider like Accused No. 7 would start an Engineering College, why not he in his native place....." P.W.8 had also spoken about the grant of affiliation to their college and cancellation of affiliation to Accused No. 7's college in or about the same time and students from Accused No. 7's college left the college and joined Einstein's Engineering College started by Aladi Aruna. P.W.8 would further depose that Accused No. 7 spoke over phone to P.W.8 and angrily asked P.W.8 as to how they could admit his college students and Accused No. 7 told P.W.8 that for their action, they would have to face dire consequences. 59. Evidence of P.W.8 was assailed contending that he is the son of the deceased Aladi Aruna and that he is inimical towards Accused No. 7 and is interested in securing conviction of Accused No. 7 and therefore, no reliance could be placed upon the evidence of P.W.8. A close relation who is a natural witness cannot merely be disbelieved on the ground that he is related to the deceased. Evidence of related witness will have to be analysed carefully. After careful assessment of evidence, P.W.8's evidence was found acceptable by the trial Court. Being the son of deceased Aladi Aruna, P.W.8 would be competent to speak of the wordy altercation between his father and Accused No. 7 and also as to how Accused No. 7 called him over phone questioning P.W.8 regarding admission of students. P.W.8 being a natural witness cannot be regarded as an interested witness. 60. P.W.9-Joseph Thangam had deposed that construction of Engineering College by Aladi Aruna was not to the liking of Accused No. 7-S.A. Raja. P.W.6-Socrates, friend of Aladi Aruna used to accompany Aladi Aruna on his morning walk. P.W.8 being a natural witness cannot be regarded as an interested witness. 60. P.W.9-Joseph Thangam had deposed that construction of Engineering College by Aladi Aruna was not to the liking of Accused No. 7-S.A. Raja. P.W.6-Socrates, friend of Aladi Aruna used to accompany Aladi Aruna on his morning walk. In his evidence, P.W.6-Socrates also deposed that Aladi Aruna used to tell him as to how Accused No. 7 developed jealousy against starting of college by Aladi Aruna. 61. P.W.9 has referred to the students demonstration in front of Accused No. 7's college on 13.9.2004. P.W.9 has stated that on 13.9.2004, he along with one Popular Chelladurai was proceeding to Pavoorchatram in a motorcycle and at that time, students of Accused No. 7's college were staging demonstration in front of the college and that Accused No. 7 and other Professors were talking with the protesting students. P.W.9 has further stated that he enquired Accused No. 7 as to what was the problem and that Accused No. 7 told him that Aladi Aruna is responsible for cancellation of affiliation to his college and that he would not leave Aladi Aruna. The relevant portion of evidence of P.W.9 reads as under: 62. P.W.38-Balakrishnan, Assistant Registrar who was the Chief Superintendent in Anna University has spoken about the grant of temporary recognition and also cancellation of affiliation to four Engineering Colleges viz., (1)Sardar Raja Engineering College; (2)The Rajas Engineering College; (3)Josh Kiresh Engineering College and (4)Jeya Madha Engineering College. On 4.8.2004, Anna University granted affiliation to Einstein's Engineering College (Exhibit P-35). In or about the same time, as per Exhibit P-36 dated 23.8.2004, the provisional affiliation granted to Accused No. 7's college was cancelled by Anna University. In Exhibit P-36, it is stated that number of irregularities had been noticed in the admission of students by Sardar Raja Engineering College and that show cause notice was issued to withdraw "affiliation and why admission should not be stopped for the academic year 2004-2005, 2005-2006, 2006-2007 to all the courses." The Principal of Sardar Raja Engineering College and Chairman have submitted their explanation. Thereafter, based on the recommendation of the Committee, University has decided to suspend the affiliation of all courses and stop admission including lateral entry for the courses at Accused No. 7's college for the academic year 2004-2005, 2005-2006, 2006-2007. Thereafter, based on the recommendation of the Committee, University has decided to suspend the affiliation of all courses and stop admission including lateral entry for the courses at Accused No. 7's college for the academic year 2004-2005, 2005-2006, 2006-2007. By Exhibit P-36 (dated 23.8.2004), the College Management of Sardar Raja Engineering College was informed not to admit the students including lateral entry to the courses etc. 63. P.W.21-Murugan, a student of Einstein's Engineering College has stated that after completing his plus two, he applied admission in S.A. Raja Engineering College in the year 2004-2005 and that he was admitted in B.E. Mechanical Engineering and he paid Rs. 10,000/- towards fees and classes did not commence in that college whereas classes commenced in other colleges. P.W.21 further deposed that he came to know through Internet that the recognition granted to Accused No. 7's college was cancelled by the University and that he got back the documents and the amount from the said college and joined in Einstein's Engineering College and like him 30 other students left S.A. Raja's Engineering College and joined in Einstein's Engineering College. Evidence of P.W.21 would clearly show that P.W.21 and other students came out of Accused No. 7's college and joined in Einstein's Engineering College started by Aladi Aruna. 64. During questioning under Section 313 Cr.P.C., Accused No. 7 has stated that Writ Petition was filed before the High Court and they had obtained stay of Exhibit P-36-cancellation of affiliation. Obtaining of stay was also elicited during cross examination of P.W.38-Chief Superintendent of Anna University. 65. Accepting the evidence of P.Ws.6, 7, 8 and 9, learned Sessions Judge held that prosecution has proved that Accused No. 7 was nurturing hatred and animosity towards Aladi Aruna. Learned Sessions Judge, also observed that Accused No. 7 once friend of Aladi Aruna turned as foe and nurtured animosity. But the learned Sessions Judge held that animosity of Accused No. 7 could not have led to the conspiracy to eliminate Aladi Aruna. To arrive at such a finding, learned Sessions Judge referred to the answers of Accused No. 7 during 313 Cr.P.C. questioning and the evidence of P.W.38 regarding obtaining of stay from the High Court and that stay was made absolute and admission to Accused No. 7's college went on as usual without any interruption. 66. To arrive at such a finding, learned Sessions Judge referred to the answers of Accused No. 7 during 313 Cr.P.C. questioning and the evidence of P.W.38 regarding obtaining of stay from the High Court and that stay was made absolute and admission to Accused No. 7's college went on as usual without any interruption. 66. In his cross examination, P.W.21 has stated that he joined in Einstein's Engineering College in 2005. Laying emphasis upon the answer elicited from P.W.21, learned Sessions Judge held that P.W.21 has completed his plus two in 2004-2005 and he must have joined in S.A. Raja's Engineering College only after June 2005 and thereafter, only during 2005-2006, P.W.21 might have joined in Einstein's Engineering College (Vide a Para 70 of trial Court judgment). 67. The reasonings of the learned Sessions Judge in Para 70 is perverse and misreading of evidence of P.W.21 and P.W.38. As seen from the evidence of P.W.21, he applied to S.A. Raja's Engineering College for the academic year 2004-2005 as is from the following: The above evidence of P.W.21 was sought to be mis-interpreted saying that P.W.21 must have completed plus two in the academic year ending 2005 and only during the month of June 2005 or thereafter, P.W.21 might have joined in the said college. Evidence of P.W.21 was sought to be diluted by the learned Sessions Judge observing as under: "70...... He would say in his examination in chief that he completed his 12th standard in the academic year 2004-2005 and joined in S.A. Raja Engineering College in B.E. Mechanical Engineering. If so, only during the month of June or thereafter only during the academic year 2005-2006 P.W.21 might have joined in the said College. Whereas the occurrence itself in this case was on 31.12.2004...." 68. Learned Sessions Judge proceeded under misconception that P.W.21-Murugan has completed plus two only in 2005 and that he must have applied for joining Accused No. 7's college either during the month of June 2005 or thereafter. In his evidence, P.W.21 has categorically stated that even though, the other colleges were opened, Accused No. 7's college was not opened. After June 2005, there would have been no impediment for opening the college because of stay was obtained. Even, P.W.38 would say that for the academic year 2005-2006, the admission continued as usual. In his evidence, P.W.21 has categorically stated that even though, the other colleges were opened, Accused No. 7's college was not opened. After June 2005, there would have been no impediment for opening the college because of stay was obtained. Even, P.W.38 would say that for the academic year 2005-2006, the admission continued as usual. We find that there is misreading of evidence of P.W.21 in saying that he must have joined Accused No. 7's college only in June 2005 or thereafter. 69. Referring to the evidence of P.W.38, learned Sessions Judge sought to dilute the animosity and the evidence adduced by the prosecution to prove the motive. Ofcourse, in his evidence, P.W.38 has stated that Accused No. 7's College Management obtained stay of Exhibit P-36 and after obtaining stay, admission continued as usual. Referring to the evidence of P.W.38, learned Sessions Judge held that because admission continued as usual, Accused No. 7 could not have possibly entered into conspiracy in December 2004 to eliminate Aladi Aruna. Learned Sessions Judge has not kept in view the time of obtaining stay and the steps taken by Anna University to vacate the stay order and only thereafter the stay was made absolute. 70. Learned Sessions Judge was swayed by the statement of Accused No. 7 during 313 Cr.P.C. questioning that the College Management was obtained stay of order of cancellation of affiliation. From the evidence of P.W.38, several aspects are made clear which in our considered view, the learned Sessions Judge did not keep in view and erred in brushing aside the various aspects emerge: 71. From the evidence of P.W.38, the following important aspects emerged: Only after three months after Exhibit P-36 dated 23.8.2004 stay was obtained (Vide evidence of P.W.38 ). Probably stay was obtained in the month of November 2004. After stay was obtained by Accused No. 7's college, Anna University had taken steps by filing Petition to vacate the stay. Though, there is no evidence as to the date of moving of application to vacate stay, probably it must have been around in November - December 2004. Vacate stay application was dismissed and stay was made absolute. No evidence as to exact on which stay was made absolute. Must be around and after December 2004. 72. Though, there is no evidence as to the date of moving of application to vacate stay, probably it must have been around in November - December 2004. Vacate stay application was dismissed and stay was made absolute. No evidence as to exact on which stay was made absolute. Must be around and after December 2004. 72. In his evidence, P.W.38 has made it clear that only in the academic year 2005-2006, the admission continued as usual and that Government also allotted its quota of candidates. The relevant portion of evidence of P.W.38 reads as under: Learned Sessions Judge misunderstood the evidence of P.W.38 and erred in saying that Accused No. 7's college has obtained stay and that admission went on as usual. 73. Stay was obtained three months after Exhibit P-36 - probably in or about November 2004. In his evidence, P.W.38 has categorically stated that the said three months is an important period for admission of students. Stay was obtained only in November 2004 and there was suspension of affiliation during the important period of three months of admission of students and that Anna University had taken steps to vacate the stay are vital piece of evidence. In our considered view, it would convincingly prove the deepening animosity of Accused No. 7 and probabilising the conspiracy in December 2004. Quite possibly, Accused No. 7 was nurturing hatred against deceased No. 1-Aladi Aruna that Anna University must have taken steps for cancellation of affiliation and also for vacating stay at the instance of deceased Aladi Aruna. In our considered view, learned Sessions Judge erred in brushing aside the various vital aspects which are emerging from the evidence of P.W.38. Cancellation of affiliation and that Anna University had taken steps to vacate stay are all in close proximity to the occurrence in December 2004. 74. We may recapitulate the evidence of P.W.9-Joseph Thangam that he saw the student staging demonstration in front of Accused No. 7's college on 13.9.2004 during which period the affiliation was cancelled. Admittedly, Accused No. 7 was running chain of Educational Institutions in Tirunelveli and Kanyakumari Districts. Suspension of affiliation to his Engineering College must have angered Accused No. 7. Prosecution has succeeded in proving animosity of Accused No. 7 towards deceased Aladi Aruna. Admittedly, Accused No. 7 was running chain of Educational Institutions in Tirunelveli and Kanyakumari Districts. Suspension of affiliation to his Engineering College must have angered Accused No. 7. Prosecution has succeeded in proving animosity of Accused No. 7 towards deceased Aladi Aruna. In our considered view, motive plays a vital role and provides vital link probabilising that Accused No. 7 entering into a conspiracy to eliminate deceased Aladi Aruna. 75. In their evidence, P.Ws.8 and 9 have stated that the other persons were also having grudge against Aladi Aruna. One Kattathurai of Thevar Community was murdered. It is alleged that deceased Aladi Aruna harboured the accused persons therein and it has caused grudge among the Thevar community people. One Karuppusamy Thevar had given a cheating complaint against the deceased Aladi Aruna that he has grabbed his lands for the construction of college and he had grudge against deceased Aladi Aruna. During the assassination of former Prime Minister Rajiv Gandhi, the petrol bunk belonging to deceased Aladi Aruna was looted by local congress people. Later the assailants were convicted in the criminal case in that regard and those accused also had grudge over the deceased Aladi Aruna. 76. During evidence, though other motives against deceased Aladi Aruna was elicited, in our considered view the other motives suggested/elicited have no proximity to the occurrence in December 2004. Sofar as, the murder of Kattathurai, it was in the year 2001 and has no nexus to the occurrence in 2004. Prosecution has produced Exhibit P-91-FIR in Cr. No. 262 of 2001 of F2-Egmore Police Station regarding murder of Kattadurai on 19.2.2001 in Egmore. Likewise, construction of college by the deceased Aladi Aruna was in the year 2002 and therefore, any complaint by Karuppusamy Thevar must have been in or about 2002 which again has no proximity to the occurrence in 2004. Likewise, the assassination of Rajiv Gandhi was in the year 1991 and any grudge of local congress people must have in and around that period. Any such grudge of local congress people about one decade ago cannot be connected to the occurrence in the year 2004. 77. Though, the other motives were suggested/elicited, we are of the view that the other motives absolutely have no proximity to the occurrence in December 2004. Any such grudge of local congress people about one decade ago cannot be connected to the occurrence in the year 2004. 77. Though, the other motives were suggested/elicited, we are of the view that the other motives absolutely have no proximity to the occurrence in December 2004. By the evidence of P.Ws.6,7,8 and 9 and by the words uttered by Accused No. 7-S.A. Raja, prosecution has succeeded in showing that Accused No. 7 was having deep-seated animosity towards deceased Aladi Aruna to the extent of eliminating him. The learned Sessions Judge himself held that "the prosecution proved enmity between Accused No. 7-S.A. Raja and Aladi Aruna over running educational college around Alangulam. Such motive provides vital link in the criminal conspiracy." 78. Conspiracy: To prove conspiracy, prosecution adduced evidence that there was meeting of minds on the following three dates: (i) On 14.9.2004, when Accused No. 7-S.A. Raja met Accused No. 1-Veldurai and deceased accused-Benny at his college and hatched a conspiracy to eliminate Aladi Aruna; (ii) On 24.12.2004, again in the college of Accused No. 7 in Athiyuthu in which there was conspiracy between Accused No. 7, Accused No. 1 and deceased accused-Benny; (iii) On 28.12.2004, at Courtallam in which Accused No. 1 to 5 and deceased accused-Auto Baskar and Benny met together and hatched a conspiracy and prepared a plan for murdering Aladi Aruna. 79. To show that on 14.9.2004, Accused No. 7-S.A. Raja, deceased accused-Benny and his associate-Accused No. 1-Veldurai hatched a conspiracy to kill Aladi Aruna, prosecution has examined P.W.1-Athiappan and P.W.2-Paulraj. P.Ws.1 and 2 did not support the prosecution case and they turned hostile. Earlier on 10.2.2005, statements of P.Ws.1 and 2 under Section 164(5) Cr.P.C. was recorded by the Judicial Magistrate, Shenkottah. 80. On 7.4.2006, when P.Ws.1 and 2 were examined in the Court, they did not support the prosecution case. While they were treated hostile, they were not confronted with their earlier statements recorded under Section 164(5) Cr.P.C. Later, they were recalled by the prosecution and recalling of P.Ws.1 and 2 went up to the High Court. In Crl. R.C. (MD) No. 816 of 2007, on 7.1.2008 High Court has permitted the prosecution to recall P.Ws.1 and 2 for the specific purpose of eliciting certain contradictions from P.Ws.1 and 2 in respect of their earlier statements recorded under Section 161(3) and 164(5) Cr.P.C. as they have turned hostile. In Crl. R.C. (MD) No. 816 of 2007, on 7.1.2008 High Court has permitted the prosecution to recall P.Ws.1 and 2 for the specific purpose of eliciting certain contradictions from P.Ws.1 and 2 in respect of their earlier statements recorded under Section 161(3) and 164(5) Cr.P.C. as they have turned hostile. Thereafter, P.Ws.1 and 2 were recalled and confronted with Exhibits P59 and P60 statements recorded under Section 164 (5) Cr.P.C. Evidence of P.Ws.1 and 2 as it now stands is to the effect that they did not say anything about meeting of Accused No. 7-S.A. Raja, Accused No. 1-Veldurai and deceased accused-Benny on 14.9.2004. When P.Ws.1 and 2 were recalled, they have stated that earlier they were threatened by the Police not to depose as to what they have seen and hence, they did not depose supporting the prosecution. Hence, we are of the view that first phase of conspiracy on 14.9.2004 could not be established since (i) P.Ws.1 and 2 have turned hostile; (ii) Statement of P.Ws.1 and 2 recorded under Section 164(5) Cr.P.C. cannot be a substantive piece of evidence. 81. The second limb of conspiracy was on 24.12.2004 in the Chambers of Accused No. 7 in the Engineering College. For proving the second phase of conspiracy on 24.12.2004, prosecution examined P.W.3-Thenraja, P.W.4-Shanmugam and P.W.5-Antony. P.W.4-Shanmugam and P.W.5-Antony who were examined for the purpose of proving that on 24.12.2004 they heard Accused No. 7-S.A. Raja conversing with Accused No. 1-Veldurai and Another person regarding murder of Aladi Aruna and both of them are said to have been over heard the conversation. P.Ws.4 and 5 have not supported the case of prosecution and turned hostile. 82. Insofar as, proving the second limb of conspiracy on 24.12.2004, prosecution relies upon evidence of P.W.3-Thenraj. In his evidence, P.W.3 has stated that on 24.12.2004, he and his friend Karuppasamy were proceeding to Poolangulam village and at about 11.00 a.m. when they were nearing S.A. Raja's college, they felt thirsty and they stopped the vehicle in front of weighing bridge (vilBkil) and were taking tender coconut. At that time, P.W.3 saw Accused No. 1-Veldurai and Another person (deceased accused-Benny) came in a motorcycle from east to west and both entered into the Engineering college of S.A. Raja and returned from the college some 15 minutes thereafter. At that time, P.W.3 saw Accused No. 1-Veldurai and Another person (deceased accused-Benny) came in a motorcycle from east to west and both entered into the Engineering college of S.A. Raja and returned from the college some 15 minutes thereafter. In his evidence, P.W.3 has stated that he was able to identify Accused No. 1 and at that time he could not identify the pillion rider. P.W.3 later identified the pillion rider who had gone with Accused No. 1 as deceased accused-Benny. P.W.3 has identified the deceased accused-Benny as one who accompanied Accused No. 1 on 24.12.2004 to Accused No. 7's college and he so identified from the photographs. 83. Evidence of P.W.3 that he saw Accused No. 1 and deceased accused-Benny going inside Accused No. 7's college and that they came out after 15 minutes is a vital piece of evidence. While so, learned Sessions Judge brushed aside the evidence of P.W.3 on the grounds: College is a place used to be frequented by the public and mere visit of Accused No. 1 and Another person into the college cannot lead to any inference that there was meeting between Accused No. 1 and other accused. There is no evidence to show that Accused No. 7 was in the said college on that date. On the above reasonings, learned Sessions Judge held that based on the evidence of P.W.3, the second limb of conspiracy on 24.12.2004 cannot be said to have been proved by the prosecution. 84. In our considered view, the trial Court did not make a correct approach in analysing the evidence of P.W.3 which resulted in the improper rejection of evidence of P.W.3. The learned Sessions Judge did not at all refer to the evidence of P.W.3 insofar as identification of deceased accused-Benny from the photographs. The reasoning of the trial Court that evidence of P.W.3 cannot lead to inference of meeting of minds of Accused No. 7 with Accused No. 1 and deceased accused-Benny is perverse. Learned Sessions Judge has not at all referred to the answers of Accused No. 1 during 313 Cr.P.C. questioning. When confronted with the evidence of P.W.3, Accused No. 1 has simply denied having gone into Accused No. 7's college. It is not the case of Accused No. 1 that he had gone there along with deceased accused-Benny to meet some other persons. But it was a blunt denial. When confronted with the evidence of P.W.3, Accused No. 1 has simply denied having gone into Accused No. 7's college. It is not the case of Accused No. 1 that he had gone there along with deceased accused-Benny to meet some other persons. But it was a blunt denial. Absence of any explanation strengthens evidence of P.W.3. 85. Likewise, during 313 Cr.P.C. questioning for Question No. 156, Accused No. 7 has stated that he has already handed over the college administration to his son Jesus Raja and Accused No. 7 denied the evidence of P.W.3. The plea of Accused No. 7 that he has already handed over the college administration to his son cannot be countenanced. When the students have left from Accused No. 7's college, Accused No. 7 called P.W.8-Amudhavanan over phone and raised protest as to how P.W.8 could admit their students in their college. As seen from the evidence of P.W.9, on 13.9.2004 when the students were staging protest and demonstration, Accused No. 7-S.A. Raja was trying to pacify them. Learned Sessions Judge has not adopted a correct approach in analysing the evidence of P.W.3. As we have pointed out earlier, Accused No. 1-Veldurai and deceased accused-Benny going inside the college of Accused No. 7-S.A. Raja is a vital piece of evidence. It is not as if the evidence of P.W.3-Thenraja that he saw Accused No. 1 and deceased accused-Benny going inside the college of Accused No. 7 stands in isolation. It is coupled with the evidence and circumstances that Accused No. 1-Veldurai, Accused No. 4-Arumugam and deceased accused-Benny were found to be present very close by to the scene of occurrence on 31.12.2004. The fact remains that after the occurrence, Accused No. 1 and deceased accused-Benny jointly fleed to Ahamedabad to hide themselves. Learned Sessions Judge has adopted an erroneous approach in analysing the evidence of P.W.3 in isolation without keeping in view the subsequent conduct of Accused No. 1 and deceased accused-Benny. 86. The learned Sessions Judge brushed aside the evidence of P.W.3 observing that Accused No. 1 and deceased accused-Benny going inside Accused No. 7's college cannot lead to an inference of conspiracy. 87. The offence of criminal conspiracy has been defined in Section 120-A IPC. The ingredients of this offfence are: (i) two or more persons; (ii) agreeing (iii) to do an offence. 87. The offence of criminal conspiracy has been defined in Section 120-A IPC. The ingredients of this offfence are: (i) two or more persons; (ii) agreeing (iii) to do an offence. To properly appreciate the conspiracy in this case and the guilt of the persons involved in it, it is necessary that the object of the conspiracy has to be ascertained from the facts of this case. It is vital according to the Supreme Court, that a Court trying the offence of conspiracy should decide conclusively the object of the conspiracy from the charges made against the accused on the facts of the case. The object of the conspiracy is the ultimate aim of the conspiracy. 88. Primacy and secrecy are more characteristics of conspiracy than a loud discussion in a place open to a public view. Ofcourse, prosecution has examined P.Ws.4 and 5 who are said to have over-heard the conversation between Accused No. 7, Accused No. 1 and deceased accused-Benny who have turned hostile. Even P.Ws.4 and 5 have spoken about the conspiracy which they have over-heard, it would have been only a piece of evidence. In our considered view, evidence of P.W.3 that on 24.12.2004 Accused No. 1, deceased accused-Benny had gone inside Accused No. 7's college coupled with the evidence that Accused No. 1, 4 and deceased accused-Benny were very close by to the scene of occurrence coupled with the motive of Accused No. 7 added together would bring out the conspiracy. 89. Conspiracy at Courtrallam on 28.12.2004: Case of prosecution is that on 28.12.2004, Accused No. 1 to 5 and deceased accused-Auto Baskar assembled in Sundara Nilayam, Courtrallam and worked out a detailed plan as to how to murder Aladi Aruna and any other coming in the way. For proving this part of conspiracy, prosecution has examined P.W.15-Kasipandian who was a watchman in the said Sundara Nilayam. He has stated that he did not know any of the accused or the conspiracy hatched by them and P.W.15 was treated hostile. Likewise, P.W.14- Chelliah who saw the deceased accused- Benny in a public telephone booth phoning up to the residence of Aladi Aruna on 29.12.2004 to ascertain presence of Aladi Aruna also turned hostile. He has stated that he did not know any of the accused or the conspiracy hatched by them and P.W.15 was treated hostile. Likewise, P.W.14- Chelliah who saw the deceased accused- Benny in a public telephone booth phoning up to the residence of Aladi Aruna on 29.12.2004 to ascertain presence of Aladi Aruna also turned hostile. Another witness, P.W.17- Vellaisamy who was examined for the purpose of proving that some accused came to Courtallam on 29.12.2004 and 30.12.2004 and that they met Accused No. 5-Paramasivan also not supported the case of prosecution and P.W.17 was also treated hostile. Because of hostility of P.Ws.14, 15 and 17, prosecution could not bring home the third phase of conspiracy on 28.12.2004 and that accused stayed at Courtallam from 28.12.2004 to 30.12.2004 chalking out the plan as to how to carry out the illegal act of committing murder of Aladi Aruna. In our considered view, the hostility of P.Ws.14, 15 and 17 would not affect the substratum of conspiracy brought home by other evidence and circumstances. 90. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy. In a case of conspiracy, the question for consideration is whether all the accused had the intention and did they agree that the crime be committed. 91. Observing that conspiracy can be proved by such evidence direct or circumstantial and that evidence of conspiracy requires some kind of physical manifestation of the crime in AIR 1988 SC 1883 : (1988) SCC (Cr) 711 : (1988) 3 SCC 609 : (1989) 1 MLJ (Crl) 21, the Supreme Court held as under at p. 88 of MLJ (Crl): "275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient….." 92. Observing that it is rarely possible to establish a conspiracy by direct evidence, in AIR 1999 SC 2640 : (1999) SCC (Crl) 691 : (1999) 5 SCC 253 , the Supreme Court held as follows: "583. Some of the broad principles governing the law of conspiracy may be summarised though, as the name implies, a summary cannot be exhaustive of the principles. 1. Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed. 2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder. 3. Conspiracy is hatched in private or in secrecy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder. 3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused." 93. For the purpose of proving the existence of conspiracy, it is sufficient if there is reasonable ground to believe that two or more persons have conspired together to do an illegal act or legal act by illegal means. 94. There is no doubt, conspiracy is hatched in secrecy for which direct evidence would rarely be available. Express agreement need not be proved; Nor actual meeting of two persons is necessary. 95. The operation of Section 10 of Indian Evidence Act is strictly conditional upon there being a reasonable ground to believe that two or more persons have conspired together. Though, to establish the charge of conspiracy, there must be an agreement, there need not be proved a direct meeting or combination nor need the parties to be brought into each other personally or face to face. Agreement may be inferred from circumstance raising presumption of common concerted plan to carryout the unlawful design. In our considered view, from the evidence of P.W.3 and other circumstances, the following aspects are reasonable grounds to believe that Accused No. 1, deceased accused-Benny have conspired with Accused No. 7 to eliminate Aladi Aruna. On 24.12.2004, Accused No. 1 and deceased accused-Benny had gone into the college of Accused No. 7 and returned after 15 minutes. Presence of Accused No. 1, Accused No. 4 and deceased accused-Benny on the southern side of place of occurrence on 31.12.2004. Accused No. 1 and deceased accused-Benny flew to Gujarat and were apprehended together. Accused Benny consumed cyanide poison immediately after the arrest and accused-Auto Baskar consumed cyanide poison after arrest while in transit. On the touchstone of well recognised principles for judging the case of criminal conspiracy, in our considered view by the above evidence and circumstances, prosecution was able to unfold the case relating to criminal conspiracy between A1-Veldurai and A7-S.A. Raja to eliminate deceased Aladi Aruna. 96. On the touchstone of well recognised principles for judging the case of criminal conspiracy, in our considered view by the above evidence and circumstances, prosecution was able to unfold the case relating to criminal conspiracy between A1-Veldurai and A7-S.A. Raja to eliminate deceased Aladi Aruna. 96. Exhibit P-22-Statement of Accused No. 1-Veldurai recorded by P.W.46-Solangi and its evidentiary value: For the purpose of proving conspiracy by Accused No. 7, prosecution also relies upon Exhibit P-22-dying declaration recorded from Accused No. 1 by P.W.46-Solangi. P.W.47-Inspector of Police who head one of the special team formed by the District Superintendent of Police in assisting the investigation. On the tips of information, team headed by P.W.47-Inspector of Police went to Ahamedabad City in Gujarat and requested for assistance from Gujarat Police - Assistant Commissioner of Police Narendra Amin on the night of 25.1.2005 i.e. on 26.1.2005 at 1.00 a.m., P.W.47 and P.W.41-Inspector of Police headed by Assistant Commissioner Narendra Amin went to 4th Floor, Vaigunth Apartment and found Accused No. 1 and deceased accused-Benny in the house of Maya Thevar, wife of Rajubhai (P.W.24). Accused No. 1 was arrested by P.W.47 and M.Os.29, 30, 31, 32, 35 and 36 were recovered from his possession. At that time, other accused-Benny went into the bath room and consumed cyanide poison. Police team took both Accused No. 1 and accused-Benny to L.G. Hospital and admitted both of them in the hospital in I.C.U. Despite treatment, accused-Benny died at about 2.15 a.m. on 26.1.2005. On the strength of the complaint lodged by P.W.47-Inspector of Police, a case in A.D. No. 11 of 2005 was registered in Vatwa Police Station. 97. As per the requisition from the hospital authorities, P.W.46-Solangi went to the hospital at 8.20 a.m. and saw Accused No. 1-Veldurai admitted in I.C.U. Ward. After securing assistance of P.W.30-Venkatesawaran, translator, P.W.46 recorded dying declaration given by Accused No. 1. Exhibit P-22 is the original dying declaration in Gujarat language and Exhibit P-24 is the English translated version of Exhibit P-22 notarised by P.W.31-Daxa I.Vias. 98. Scathing attack was made on Exhibit P-22 as to the mode of recording, its admissibility and its evidentiary value as under: Number of contradictions as to who recorded Exhibit P-22-dying declaration. Exhibit P-22-dying declaration is not a true and voluntary statement of Accused No. 1 and he was forced to give the statement. 98. Scathing attack was made on Exhibit P-22 as to the mode of recording, its admissibility and its evidentiary value as under: Number of contradictions as to who recorded Exhibit P-22-dying declaration. Exhibit P-22-dying declaration is not a true and voluntary statement of Accused No. 1 and he was forced to give the statement. Accused No. 1 was hale and healthy and he did not make any attempt to commit suicide and there was no necessity to record his dying declaration. In any event, since Accused No. 1 survived, Exhibit P-22 could only be taken as a statement recorded in the realm of investigation and is hit by Section 26 of Indian Evidence Act. Contents of Exhibit P-22, contradicts the case of prosecution. 99. Countering the arguments, Mr. N. Natarajan, learned senior counsel for State submitted that merely because police were present at the time of recording Exhibit P-22, Accused No. 1 cannot be said to be in police custody. Insofar as the point as to the value to be attached to Exhibit P-22-dying declaration, learned senior counsel would submit that Court cannot be too technical in appreciating Exhibit P-22. It was further argued that merely because Accused No. 1 survived, evidentiary value to be attached to Exhibit P-22 cannot be belittled. It was further argued that the trial Court was not right in throwing away the valuable piece of evidence as Exhibit P-22-dying declaration is hit under Section 26 of Indian Evidence Act. 100. Drawing our attention to the evidence of P.W.29, P.W.46 and P.W.52, Mr. K. Doraisamy, learned senior counsel for Accused No. 7 argued at length pointing out the contradictions as to who recorded Exhibit P-22-dying declaration of Accused No. 1 whether it was P.W.29 or P.W.46. During investigation, while P.W.52-IO interrogated P.W.29 and P.W.46, as if P.W.29-Revenue Divisional Officer/Sub Divisional Magistrate has recorded dying declaration of Accused No. 1. But during evidence, it emerged that only P.W.46-Solangi recorded the dying declaration. As per the instruction of P.W.29- Revenue Divisional Officer, P.W.46-Executive Magistrate has recorded Exhibit P-22-dying declaration. P.W.52-IO has explained because of language and communication problem, the discrepancy has crept in. The same was also accepted by the trial Court. Considering the consistent evidence that P.W.46 has recorded Exhibit P-22-dying declaration, there is no substance in the argument advanced as to the discrepancy pointed out as to who recorded Exhibit P-22-dying declaration of Accused No. 1. P.W.52-IO has explained because of language and communication problem, the discrepancy has crept in. The same was also accepted by the trial Court. Considering the consistent evidence that P.W.46 has recorded Exhibit P-22-dying declaration, there is no substance in the argument advanced as to the discrepancy pointed out as to who recorded Exhibit P-22-dying declaration of Accused No. 1. 101. Recording of Exhibit P-22-Dying Declaration: Much arguments were advanced attacking the arrest of A1-Veldurai and deceased accused-Benny and that Exhibit P-22 is a stage managed one. It is pertinent to note that the alleged arrest of A1-Veldurai and deceased accused-Benny was not merely by Tamil Nadu Police. On reaching Ahamedabad, P.W.47-Inspector of Police approached Narendra Amin, Assistant Commissioner of Police, Ahamedabad. P.W.41-Barot, Inspector of Police, Gujarat team of Police and P.W.47 formed a team and the team went to 4th floor in Vaikunth Apartment. Assistant Commission of Police, Narendra Amin also accompanied them to Vaikunth Apartment. On being apprehended, A1-Veldurai attempted to give a slip and a brief while, special team arrested A1-Veldurai. Accused-Benny went into the bath room and Assistant Commissioner of Police, Narendra Amin had gone near the bath room, Benny put something (cyanide poison) in his mouth. 101.1 Arguments advanced attacking the arrest is untenable. As we have pointed out earlier, arresting A1-Veldurai and Benny not merely Tamil Nadu Police was involved but also Gujarat Police. A1-Veldurai and deceased accused-Benny were admitted in L.G. Hospital. After informing P.W.52-IO, P.W.47-Inspector of Police went to Vatwa Police Station and lodged a complaint regarding the occurrence on the night of 25/26.1.2005. Case registered in A.D. No. 11/205 of Vatwa Police Station was at the behest of the Tamil Nadu Police. P.W.47 went to Vatwa Police Station and thereafter was with them till the case was transferred to Ahamedabad Crime Branch. 101.2 On 26.1.2005 at 7.15 a.m., from the hospital, P.W.46-Solangi, Executive Magistrate received requisition for recording dying declaration of A1-Veldurai who was admitted as inpatient in ICU as MLC 4787. P.W.46 went to L.G. Hospital at 8.20 a.m. After securing the assistance of P.W.30-translator who was conversant both in Tamil and Gujarati, P.W.46 recorded the dying declaration at 10.15 a.m. and concluded the same at 11.00 a.m. Doctor has also signed in Exhibit P-22 that A1-Veldurai was in a 'fit mental condition' to give dying declaration. P.W.46 went to L.G. Hospital at 8.20 a.m. After securing the assistance of P.W.30-translator who was conversant both in Tamil and Gujarati, P.W.46 recorded the dying declaration at 10.15 a.m. and concluded the same at 11.00 a.m. Doctor has also signed in Exhibit P-22 that A1-Veldurai was in a 'fit mental condition' to give dying declaration. Learned Sessions Judge discarded Exhibit P-22 on the sole ground that A1-Veldurai was in Police custody i.e. in the custody of P.W.47-Inspector of Police and as such, it is inadmissible and hit by Section 26 of Indian Evidence Act. 101.3 Challenging Exhibit P-22, it was mainly argued that Section 32 (1) of Indian Evidence Act contemplates that the dying declaration is made by a person dying as to the cause of his death or circumstances of the transaction which resulted in his death and A1-Veldurai was not dying and that he has not spoken about the cause of his death and therefore, it cannot be a dying declaration. It was further argued that Exhibit P-22 said to have been obtained from A1-Veldurai at the hospital is not proved by the prosecution by oral or documentary evidence. It was further argued that even though, prosecution claims since accused-Benny and A1-Veldurai consumed poison and therefore, there was necessity to record Exhibit P-22, but no records produced to that effect that A1-Veldurai also consumed poison. 101.4 It was further argued that neither FIR in A.D. No. 11 of 2005 nor other documents were produced to prove that A1-Veldurai consumed poison as that of deceased accused-Benny. The main thrust of arguments of the learned counsel for the accused was that Exhibits P-22 to P-24 were created by Tamil Nadu Police in connivance with Ahamedabad Police and that Exhibit P-22 is a stage managed one merely to bring into existence to record a confession statement under the colour of dying declaration. 101.5 As rightly submitted by the learned senior counsel Mr. N. Natarajan, Special Public Prosecutor that statement of A1-Veldurai was not recorded in a proceeding connected with the case, it was recorded in the course of investigation and enquiry conducted on the death of accused-Benny and the suspected consuming poison of A1-Veldurai in A.D. No. 11 of 2005. As rightly submitted by the prosecution, investigating agency of this case (Tamil Nadu Police) could not have wielded control over either on the accused or on the Gujarat Police. As rightly submitted by the prosecution, investigating agency of this case (Tamil Nadu Police) could not have wielded control over either on the accused or on the Gujarat Police. From Tamil Nadu, P.W.47-Inspector of Police and two Sub-Inspectors of Police have gone to Gujarat to arrest A1-Veldurai and accused-Benny. P.W.29-Gaurav Prajapati is the RDO and P.W.46-Solangi is the Executive Magistrate/Dy. Tahsildar. We find it too difficult to accept the contention that Tamil Nadu Police influenced the officials at Gujarat and created Exhibit P-22. 101.6 As rightly submitted by the prosecution, it is quite improbable that P.W.47-Inspector of Police quite within a short time influenced the higher officials in Ahamedabad like Assistant Commissioner of Police Narendra Amin as well as the revenue officials in the rank of Revenue Divisional Officer (P.W.29) and Executive Magistrate (P.W.46). The Police Officers in Gujarat were only performing their official act. Gujarat Police had nothing to foist false case against the accused. The arguments advanced by the defence that P.W.47-Inspector of Police and two Sub-Inspectors of Police who went to Gujarat to arrest A1-Veldurai and accused-Benny could have influenced the revenue officials as well as Gujarat Police and stage managed Exhibit P-22 is highly improbable and unacceptable. 101.7 In his evidence, P.W.46 has stated that the entire proceeding of recording dying declaration was videographed. On behalf of the accused, it was argued that while recording Exhibit P-22-dying declaration, Tamil Nadu Police were present in the hospital and when there was change of language, production of original videograph would have been the best evidence to show recording of dying declaration and adverse inference is to be drawn against the prosecution case for non-production of videograph. Since, P.W.29-RDO, P.W.46-Executive Magistrate and P.W.30-translator have given consistent version as to recording of dying declaration, in our considered view, production of videograph showing recording of Exhibit P-22 may not be of much relevance. We find force in the contention of the learned Special Public Prosecutor that videograph was not in the possession of Tamil Nadu Police and the same was a piece of evidence only in A.D. No. 11 of 2005 of Vatwa Police Station. 101.8 Doctor who endorsed Exhibit P-22 as to the mental condition of A1-Veludurai was summoned from Gujarat and Doctor also attended the Court at Tirunelveli on 20.9.2007 and the said Doctor has also signed in the witness register. 101.8 Doctor who endorsed Exhibit P-22 as to the mental condition of A1-Veludurai was summoned from Gujarat and Doctor also attended the Court at Tirunelveli on 20.9.2007 and the said Doctor has also signed in the witness register. Later, because of the signature in Exhibit P-22 was found to be different, the Doctor who attended the Court could not be examined. On behalf of the accused, it was contended that there was slip-shodness in the investigation and that prosecution was not even aware of the Doctor who endorsed in Exhibit P-22 and it would only show that Exhibit P-22 was recorded in a hurried manner. The above contention cannot be countenanced. Ofcourse, the Doctor summoned from Gujarat and attended Court was a different Doctor who endorsed in Exhibit P-22. In our considered view, the mistake occurred only because of language and communication problem which would not in any way affect Exhibit P-22. 101.9 Arguments were advanced raising objection as to recording of dying declaration by P.W.46-Executive Magistrate. In his evidence, P.W.46 has stated that the prevailing practice in Gujarat State is that dying declaration would be recorded by the Executive Magistrate. Unlike, in other States like Tamil Nadu where dying declarations are recorded by the Judicial Magistrates, in the State of Gujarat the prevailing practice is said to be that dying declaration would be recorded by the Executive Magistrate. As per the prevailing practice, P.W.46-Solangi has recorded the dying declaration of A1-Veldurai who was admitted in ICU at L.G. Hospital. 101.10 In his cross-examination, P.W.46 has clearly stated that when he went to the hospital, I.V. fluid was being given to A1-Veldurai and that he was in the ICU. Absolutely, we do not find any reason to doubt the version of responsible officer like P.W.46-Executive Magistrate. 101.11 P.W.46 has categorically denied the suggestion that he has obliged the Tamil Nadu Police. P.W.46 has also categorically denied the suggestion that at the behest of Tamil Nadu Police purported dying declaration (Exhibit P-22) was prepared by him in which signature of A1-Veldurai was later obtained. As we have pointed out earlier, it would have been quite improbable for the Police Inspector like P.W.47 to influence the higher officials like P.W.29-RDO and P.W.46-Executive Magistrate as well as the Gujarat Police. As we have pointed out earlier, it would have been quite improbable for the Police Inspector like P.W.47 to influence the higher officials like P.W.29-RDO and P.W.46-Executive Magistrate as well as the Gujarat Police. 101.12 On behalf of the accused, it was mainly argued, if really A1-Veldurai was so admitted in the hospital, the admission, treatment and discharge records ought to have been produced. It was further argued that no records were produced to that effect and that A1-Veldurai attempted to commit suicide by consuming poison and FIR in A.D. No. 11 of 2005 on the file of Vatwa Police Station was not produced to show the same. 101.13 On behalf of the prosecution, it was contended that A.D. No. 11 of 2005 pertains to suicide of accused-Benny and no relevancy in this case and therefore, the same was not filed. It was further contended that A.D. No. 11 of 2005 is part of the record of Gujarat Police and Tamil Nadu Police had no role in the investigation of suicide of accused-Benny and therefore, the prosecution was not required to produce the proceedings in A.D. No. 11 of 2005 in the trial for the murder of deceased Aladi Aruna. Prosecution is not right in contending that FIR in A.D. No. 11 of 2005 and other records are not relevant in the present case. We do feel that it would have been better if the prosecution has produced the complaint given by P.W.47-Inspector of Police and FIR in A.D. No. 11 of 2005 of Vatwa Police Station and the related proceedings which would have been the contemporaneous documents to substantiate the evidence of P.W.41-Barot, Inspector of Police, P.W.46-Solangi, Executive Magistrate and P.W.47-Suresh Kumar, Inspector of Police. 101.14 It may be the omission on the part of investigation in not filing the FIR and other records in A.D. No. 11 of 2005. However, non-filing of FIR and other records in A.D. No. 11 of 2005 would not in any way dilute the consistent version of P.W.46-Executive Magistrate and P.W.29-Revenue Divisional Officer in the circumstances leading to recording of Exhibit P-22. 101.15 It would be unreasonable to accept the contention that there was confabulation between the Tamil Nadu Police and Gujarat Police and that they have stage managed the whole thing to bring about Exhibit P-22. The fact remains that accused-Benny died of consuming cyanide poison simulating that of Auto Baskar. 101.15 It would be unreasonable to accept the contention that there was confabulation between the Tamil Nadu Police and Gujarat Police and that they have stage managed the whole thing to bring about Exhibit P-22. The fact remains that accused-Benny died of consuming cyanide poison simulating that of Auto Baskar. The contention that Gujarat Police have joined with Tamil Nadu Police to bring about Exhibit P-22 is a far fetched one. 101.16 There is no rule of law that evidence of Police officials has to be disbelieved on the ground that they are interested in the out come of the result of the case. Of course, evidence of Police Officials needs to be carefully scrutinized and independently appreciated. Trust only begets trust. 101.17 We cannot overlook the reality that P.W.47-Inspector of Police along with two S.I. of Police travelled to Gujarat to apprehend A1-Veldurai and accused-Benny. Both A1-Veldurai and accused-Benny were arrested on the mid-night of 25/26.1.2005. P.W.47-Inspector of Police and two other S.I. of Police would not have expected that accused-Benny would consume cyanide, a deadly poison. Immediately, thereafter, A1- Veldurai and accused-Benny were taken to L.G. Hospital and admitted in ICU. It is the doctor from L.G. Hospital who sent the intimation to P.W.46 to record dying declaration of A1-Veldurai. The flow of events would clearly suggest that Tamil Nadu Police was not instrumental in getting the dying declaration. In the course of events, Exhibit P-22 was suo-generated and the document on its own came about. 101.18 It is also pertinent to note that P.W.47-Inspector of Police was not the Investigating Officer. After accused-Benny consumed poison, they were taken to the hospital in the same vehicle. While so, it would be unreasonable to contend that Gujarat Police colluded with Tamil Nadu Police in bringing about Exhibit P-22. As rightly submitted by the prosecution, Exhibit P-22 was recorded in the natural course of events. 101.19 Evidentiary value of Exhibit P-22: A1-Veldurai from whom Exhibit P-22-dying declaration was recorded now survived. Onbehalf of the accused it was contended that as long as the maker of the statement is alive, it would only remain in the realm of a statement recorded during investigation and therefore, no evidentiary value could be attached to Exhibit P-22 terming it as dying declaration. Onbehalf of the accused it was contended that as long as the maker of the statement is alive, it would only remain in the realm of a statement recorded during investigation and therefore, no evidentiary value could be attached to Exhibit P-22 terming it as dying declaration. 101.20 It was nextly contended that Exhibit P-22 does not relate to the death of A1-Veldurai or as to any circumstances leading to the death which resulted in his death. Mr. K. Doraisamy, learned senior counsel for Accused No. 7 contended that the statement which do not relate to cause of death of maker or to any of the circumstances of the transaction which resulted in his evidence, cannot be termed as dying declaration and no evidentiary value could be attached to Exhibit P-22. 101.21 Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditions : Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death. The collocation of the words in Section 32(1) "circumstances of the transaction which resulted in his death" is apparently of wider amplitude than saying "circumstances which caused his death." There need not necessarily be a direct nexus between "circumstances" and "death." It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even, distant circumstance can also become admissible under the sub-Section, provided it has nexus with the transaction which resulted in the death. (See AIR 1997 SC 768 : (1997) SCC (Cr) 525. 101.22 Applying the ratio of the above decision, Exhibit P-22-statement of A1-Veldurai relates to the circumstances of the transaction which resulted in his attempted suicide or suspected consumption of poison and therefore, Exhibit P-22 is admissible in evidence like any other dying declaration. Since, A1-Veldurai survived, no more we need to take Exhibit P-22 as dying declaration and no further deliberation is required on this score. Since, A1-Veldurai survived, no more we need to take Exhibit P-22 as dying declaration and no further deliberation is required on this score. 101.23 Since A1-Veldurai survived, question arises as to how to take Exhibit P-22 - whether it can be taken as extra-judicial confession made before the Executive Magistrate or can it be said to be hit under Section 26 of Indian Evidence Act as held by the learned Sessions Judge. 101.24 Onbehalf of the accused, it was contended that A1-Veldurai was in the police custody and investigation in Cr. No. 847 of 2004 was already commenced and therefore, the statement made by A1-Veldurai is hit under Section 26 of Indian Evidence Act. Reliance was also placed upon AIR 1954 SC 15 and AIR 2007 SC 1218 : (2007) 2 MLJ (Crl) 965. 101.25 As per Section 26 of Indian Evidence Act, no confession made while in custody of Police Officer is admissible in evidence, unless it is made "in the immediate presence of a Magistrate." Section 26 of Indian Evidence Act reads as follows: "26. Confession by accused while in custody of police not to be proved against him - No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation- In this Section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1898 (5 of 1898)." 101.26 After referring to number of cases which are not so relevant to the point, learned Sessions Judge simply rejected Exhibit P-22 on the sole ground that A1-Veldurai was already arrested and that he was in the custody of Police Officer and hence, statement of A1-Veldurai recorded as dying declaration is not admissible in evidence. Learned Sessions Judge failed to take note that the statement was given to P.W.46-Executive Magistrate as a dying declaration and consequently "in the immediate presence of a Magistrate" and the same is admissible in evidence. 101.27 Since A1-Veldurai survived, Exhibit P-22 can be construed as extra-judicial confession made to P.W.46-Executive Magistrate. Learned Sessions Judge failed to take note that the statement was given to P.W.46-Executive Magistrate as a dying declaration and consequently "in the immediate presence of a Magistrate" and the same is admissible in evidence. 101.27 Since A1-Veldurai survived, Exhibit P-22 can be construed as extra-judicial confession made to P.W.46-Executive Magistrate. It is pertinent to point out that Police Officer particularly P.W.47-Inspector of Police was not in the hospital at the time of recoArding dying declaration as he had gone to Vatwa Police Station to lodge a complaint and thereafter with the Vatwa Police Station in transferring the case to Gujarat Crime Branch. Even though, A1-Veldurai was arrested and in the the custody of Police Officer, since Exhibit P-22 was recorded by the Executive Magistrate, bar under Section 26 of Indian Evidence Act is not attracted. 101.28 In this connection, prosecution has relied upon an unreported decision of Madras High Court in Viji @ Vijayaraja v. State Criminal Appeal No. 662 of 2007, wherein it has been held as follows: "13. As far as the contention regarding Exhibit P-6 was concerned, according to the prosecution, P.W.18, the judicial magistrate, recorded the dying declaration of the accused since his condition was found to be serious. Since he was alive, the document cannot be termed as a dying declaration. Ordinarily, it can be taken only as a statement recorded under Section 161 of the Cr.P.C. But the trial Court has given treatment to the said document as one of dying declaration. As rightly pointed out by the learned counsel for the appellant, if it has got to be treated as a judicial confession under Section 164 of Cr.P.C., not only procedural formalities to be adopted, but also a certificate to be appended by the Magistrate. Both have not been done in the case on hand, and hence Exhibit P-6, cannot be considered as a judicial confession. It is true that it is neither a dying declaration nor a judicial confession under Section 164. But, in the considered opinion of the Court, there cannot be any impediment in law to treat the document as an extra judicial confession. In the instant case, the fact that the accused has given a statement to P.W.18, the judicial magistrate cannot be disputed. Now, the magistrate has spoken to the fact that it was the accused who gave the statement. The statement has also been recorded. In the instant case, the fact that the accused has given a statement to P.W.18, the judicial magistrate cannot be disputed. Now, the magistrate has spoken to the fact that it was the accused who gave the statement. The statement has also been recorded. Merely because of the reason, P.W.18 happened to be a judicial magistrate, it cannot be stated that the document Exhibit P-6 cannot be treated even as an extra judicial confession. Before accepting the extra judicial confession, the Court has to apply two tests. Firstly, the Court has to look into the circumstances under which the statement was given. Secondly, whether the evidence of the person to whom such a statement was given, has inspired the confidence of the Court. In the instant case, both the tests if applied, would satisfy the circumstances. In the instant case, both the tests if applied, would satisfy the circumstances. Under the circumstances, Exhibit P-6 can be considered as an extra judicial confession made by the accused to P.W.18 and hence that has got to be accepted." The above observation squarely applies to the present case and we are of the considered view that Exhibits P-22 to P-24 are admissible in evidence. 101.29 Learned counsel for Accused No. 3 sought to distinguish the above decision contending that in the said case accused was caught red handed and that dying declaration was recorded by the Judicial Magistrate and in such circumstances, the statement of accused was taken as extra-judicial confession. It was further argued that in the said case, accused himself was charged for attempting to commit suicide under Section 309 IPC. It was further argued that P.W.29 and P.W.46 have not stated anything that A1-Veldurai consumed poison and no charge against him for attempting to commit suicide. Even though, we are not impressed with the points of distinction urged by the learned counsel for Accused No. 3, P.W.46-Executive Magistrate has clearly stated that when he saw A1-Veldurai, he was given treatment in I.C.U. In the State of Gujarat as per the prevailing practice, dying declarations are recorded by the Executive Magistrate. As such, we do not find any factual distinction between the statement of A1-Veldurai recorded by P.W.46-Executive Magistrate and the above unreported decision. 101.30 Insofar as confession made to Police Officer, the prohibition must be strictly applied. As such, we do not find any factual distinction between the statement of A1-Veldurai recorded by P.W.46-Executive Magistrate and the above unreported decision. 101.30 Insofar as confession made to Police Officer, the prohibition must be strictly applied. Of course, A1-Veldurai was arrested and suspected of consuming poison and admitted in L.G. Hospital in ICU as MLC No. 4787. Accused-Benny was also admitted in the hospital as MLC No. 4786. Inspite of treatment, accused-Benny died at 2.15 a.m. on 26.1.2005. A1-Veldurai suspected of consuming poison must seen his associate Benny died at 2.15 a.m. Observing all formalities, P.W.46-Executive Magistrate was called to record dying declaration. The main consideration is that presence of Magistrate and emanating confession statement in his presence. Exhibit P-22 was made to Magistrate himself. Obviously, confession made to Magistrate himself is made "in the immediate presence of a Magistrate." 101.31 Learned Sessions Judge has neither adverted to the circumstance under which A1-Veldurai was admitted in the hospital and Another circumstance that A1-Veldurai saw his associate Benny died of consuming cyanide poison. Learned Sessions Judge erred in not keeping in view the observation of formalities in calling P.W.46-Executive Magistrate and P.W.46 recording Exhibit P-22-dying declaration after observing all formalities. Learned Sessions Judge committed serious and substantial error in saying that Exhibit P-22 is hit by Section 26 of Indian Evidence Act. The admissibility of confession statement under Section 26 of Indian Evidence Act is dependent on whether it was made in the presence of a Magistrate. Learned Sessions Judge did not keep in view that Exhibit P-22 was a confession made to a Magistrate himself and that it can be construed as made "in the immediate presence of a Magistrate." The finding of the learned Sessions Judge that Exhibit P-22 is hit under Section 26 of Indian Evidence Act is to be reversed. 101.32 In Exhibit P-22, A1-Veldurai has clearly narrated about the conspiracy to kill Aladi Aruna and that Accused No. 7-S.A. Raja, owner of the College had talked to give Rs. 5 lakhs for doing murder and that he paid Rs. 20,000/- to A1-Veldurai as advance and in that connection, they have killed Ex-Minister. 101.33 The answers to question Nos.14 to 16 in Exhibit P-22 are relevant to be noted: 101.34 The above statement in Exhibit P-22 clearly brings home the conspiracy between Accused No. 1 and Accused No. 7 to commit the murder of Aladi Aruna. 20,000/- to A1-Veldurai as advance and in that connection, they have killed Ex-Minister. 101.33 The answers to question Nos.14 to 16 in Exhibit P-22 are relevant to be noted: 101.34 The above statement in Exhibit P-22 clearly brings home the conspiracy between Accused No. 1 and Accused No. 7 to commit the murder of Aladi Aruna. 101.35 In terms of Section 30 of Indian Evidence Act before confession statement of accused used against a co-accused, it must appear that the confession implicates the confessing person substantially to the same extent as it implicates the person against whom it is to be used in the commission of the offence for which accused are being jointly tried. In Exhibit P-22, A1-Veldurai not only implicated himself but also clearly stated that the murder was committed at the behest of Accused No. 7 in pursuance of conspiracy. 101.36 Contending that confession of co-accused is not a substantive evidence against co-accused, on behalf of Accused No. 7, learned senior counsel placed reliance upon AIR 1987 SC 955 : (1987) SCC (Cr) 322 : (1987) 2 SCC 197 : (1987) 1 MLJ (Crl) 240 : (1987) LW (Crl) 274; AIR 1997 SC 445 : (1996) SCC (Cr) 1343 : (1996) 10 SCC 432 and (2007) 1 MLJ (Crl) 279 (Mad). 101.37 The confession of a co-accused cannot be used as a substantive piece of evidence. In dealing with the confession of a co-accused, the Court must begin with other evidence produced by the prosecution and after it has formed its opinion as to the quality and effect of that evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt. Ofcourse, the confession of a co-accused cannot be taken as substantive evidence against co-accused. 101.38 But in the instant case, we are dealing with conspiracy where loosened standards prevail in admissibility of evidence. Observing that in conspiracy trial, loosened standards would prevail, in Firozuddin Basheeruddin and Others v. State of Kerala (supra) the Supreme Court held as follows: "26 Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. 27. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. 27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres." 101.39 Section 10 of Indian Evidence Act lays down that in prosecutions for conspiracy when concert and connexion between the persons charged have been sufficiently established, the statements, acts or declarations of each conspirator, in reference to their common intention are admissible as evidence against the others. 101.40 In Exhibit P-22, A1-Veldurai has stated that Accused No. 7-S.A. Raja engaged A1-Veldurai and that he had agreed to give Rs. 5 lakhs for committing the murder and he paid Rs. 20,000/- to A1-Veldurai and in that connection A1-Veldurai and Others killed Ex-Minister Aladi Aruna. His statement is not only admissible against A1-Veldurai, but also against Accused No. 7-S.A. Raja. Applying the ratio of the decision in Firozuddin Basheeruddin and Others v. State of Kerala (supra), the contents in Exhibit P-22 is a strong piece of evidence against Accused No. 7-S.A. Raja. 101.41 On behalf of the accused, it was contended that Exhibit P-22 is to be accepted in toto and not in piecemeal. For question No. 17, A1-Veldurai has stated that Benny stabbed Aladi Aruna and that Auto Baskar has killed Ponraj. In Exhibit P-22 - Question No. 17 and the answer of A1-Veldurai reads as under: 101.42 Laying emphasis upon the answer to question No. 17, on behalf of the accused, it was mainly contended that Exhibit P-22 is to be accepted in toto and in question No. 17, A1-Veldurai has stated that 'Auto Baskar" and 'Benny" killed Aladi Aruna and Ponraj whereas case of prosecution is that Accused No. 2 and 3 killed Aladi Aruna and Ponraj respectively and therefore, if Exhibit P-22 is to be accepted, case of prosecution based upon the evidence of P.W.6-Socrates is to be thrown away. There is no force in the arguments of the accused advanced on the inconsistencies between the prosecution case and Exhibit P-22. 101.43 Insofar as, the actual occurrence is concerned, evidence of eye-witnesses will prevail. That apart on 26.1.2005 at 10.15 a.m. when Exhibit P-22-statement was recorded from A1-Veldurai, accused-Benny already died. There is no force in the arguments of the accused advanced on the inconsistencies between the prosecution case and Exhibit P-22. 101.43 Insofar as, the actual occurrence is concerned, evidence of eye-witnesses will prevail. That apart on 26.1.2005 at 10.15 a.m. when Exhibit P-22-statement was recorded from A1-Veldurai, accused-Benny already died. A1-Veldurai was aware that his associate Auto Baskar also died while he was apprehended by the Police. As leader of the gang, A1-Veldurai would have deliberately made such a statement saying that Auto Baskar and Benny killed Aladi Aruna and Ponraj to save his other associates whom he engaged. Such deliberate statement made by a gang leader like A1-Veldurai cannot prevail upon the evidence of P.W.6-Socrates and P.W.11- Lakshmanan @ Jeyaraj. The statement of A1-Veldurai to question No. 17 cannot prevail upon the evidence of P.Ws.6 and 11. 101.44 The opening words in Section 10 Evidence Act are "where there is reasonable ground to believe that two or more persons have conspired together to commit an offence." If prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all. Therefore, there should first be a prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against his co-conspirators. 101.45 Proof of existence of agreement or conspiracy may be given by evidence of any thing done, said or written by any one of the alleged conspirators and other surrounding circumstances. But, as said before, the Section provides that the things of which evidence is to be given must have been (1) said, done or written after the common intention was conceived and (2) in reference to that intention. Evidence satisfying these conditions may be given whenever there is reasonable ground to believe that two or more persons are involved in a conspiracy. Statement of A1-Veldurai as recorded in Exhibit P-22 is yet another strong piece of evidence proving conspiracy between A1-Veldurai and A7-S.A. Raja to eliminate Aladi Aruna. Evidence satisfying these conditions may be given whenever there is reasonable ground to believe that two or more persons are involved in a conspiracy. Statement of A1-Veldurai as recorded in Exhibit P-22 is yet another strong piece of evidence proving conspiracy between A1-Veldurai and A7-S.A. Raja to eliminate Aladi Aruna. 101.46 For the sake of arguments, even if we assume that Exhibit P-22 is not admissible in evidence, even though dehors Exhibit P-22, the prosecution has adduced convincing evidence proving the existence of conspiracy between A1-Veldurai, Accused No. 7-S.A. Raja and accused-Benny from the following: Motive of Accused No. 7-S.A. Raja. Declaration of Accused No. 7 that he would do away with Aladi Aruna on 13.9.2004. Evidence of P.W.3-Thenraja that he saw A1-Veldurai, accused-Benny going in a motorcycle to Accused No. 7's college on 24.12.2004. Accused No. 2 and 3 and deceased accused-Auto Baskar had no direct enmity to commit the gruesome murder while Accused No. 1, 4 and deceased accused-Benny keeping watch by standing close by to the scene of occurrence suggesting that they are lumpen elements. Even de hors Exhibit P-22, by adducing evidence on the above, prosecution has convincingly established the conspiracy between A1-Veldurai and Accused No. 7-S.A. Raja to commit murder of Aladi Aruna and that A1-Veldurai and his associates had agreed to commit the offence for money. 102. Commission of the occurrence: The occurrence was on 31.12.2004. P.W.6-Socrates is the star witness who witnessed the occurrence on 31.12.2004. Whenever, deceased Aladi Aruna visited Alangulam, Aladi Aruna and teacher deceased-Ponraj used to go for morning walk in Nallur Vilakku-Puthupatti road. On 31.12.2004 at about 7.15 a.m., Aladi Aruna and Ponraj were walking on Nallur Vilakku-Puthupatti road, east of the land belonging to Dharmar of Aladipatti. At that time, three persons (Accused No. 2-Bala @ Balamurugan, Accused No. 3-Alagar @ Valarntha Alagar), deceased accused-Auto Baskar) have parked two motorcycles by the sides and were found standing. Deceased accused-Auto Baskar took out a revolver and he told Aladi Aruna and aimed his Revolver at Aladi Aruna. At that time, Aladi Aruna pacified him by saying that any dispute could be settled by talks. At that time, deceased accused-Auto Baskar armed with revolver fired at Aladi Aruna. At the same time, the other two persons attempted to cut Aladi Aruna with Aruvals and deceased-Ponraj attempted to save Aladi Aruna from the attack. At that time, Aladi Aruna pacified him by saying that any dispute could be settled by talks. At that time, deceased accused-Auto Baskar armed with revolver fired at Aladi Aruna. At the same time, the other two persons attempted to cut Aladi Aruna with Aruvals and deceased-Ponraj attempted to save Aladi Aruna from the attack. At that time, Accused No. 2-Bala @ Balamurugan repeatedly cut the neck of Aladi Aruna with Aruval. Simultaneously, Accused No. 3-Alagar @ Valarntha Alagar repeatedly inflicted cut injury on the backside of the neck of teacher Ponraj. Both of them fell down and injured. Both the persons armed with Aruvals attempted to attack P.W.6-Socrates and deceased accused-Auto Baskar wielding revolver also ran towards him and P.W.6 ran away from the scene of occurrence to save his life. Thereafter, all the three accused left the place. Shocked, P.W.6 immediately rushed to the petrol bunk which is about a kilo metre away and owned by deceased Aladi Aruna and told P.W.7-Vaithialingam, Manager of the petrol bunk. Both P.Ws.6 and 7 went to the place of occurrence and saw Aladi Aruna and Ponraj in a pool of blood and both of them went back and informed P.W.8-Amuthavanan and thereafter gone to the Police Station and lodged Exhibit P-1-Complaint. 103. Evidence of P.W.6-Socrates draws support from the testimony of P.W.10- Raghupathy also. P.W.10 is the resident of Aladipatti village was waiting at Nallur Vilakku bus stop for boarding the bus for Tirunelveli has stated that about 7.20 a.m. on 31.12.2004, he saw Auto Baskar, Accused No. 2-Bala @ Balamurugan and P.W.3-Alagar @ Valarntha Alagar riding on a motorcycle (M.O.13) driven by Auto Baskar coming from Nallur Vilakku to Puthupatti road to the main road and when the motorcycle took a turn in the main road, P.W.10 saw the face of Accused No. 2. It emerges from the evidence of P.W.10 that immediately, after the occurrence, all the three accused (Auto Baskar, Accused No. 2 and 3) left the scene of occurrence through the main road and left for Tenkasi. 104. It emerges from the evidence of P.W.10 that immediately, after the occurrence, all the three accused (Auto Baskar, Accused No. 2 and 3) left the scene of occurrence through the main road and left for Tenkasi. 104. Complicity of Accused No. 2, 3 and deceased accused-Auto Baskar: Before, we proceed to analyse the evidence of P.W.11 and complicity of Accused No. 1-Veldurai, Accused No. 4-Arumugam and deceased accused-Benny on the southern side of Puthupatti road, we deem it fit to analyse the evidence of P.W.6-Socrates pertaining to the complicity of Accused No. 2, 3 and deceased accused-Auto Baskar and the points raised attacking the credibility of P.W.6-Socrates. 105. Re. contention - Credibility of P.W.6-Socrates: (i) Number of arguments were advanced by the accused impeaching the evidence of P.W.6-Socrates. P.W.6-Socrates was only a coolie working in TASMAC shop and that he would not have gone for a walk with an important person like Aladi Aruna who was the former Minister and also held high post in the Government. Reading of evidence of P.W.6 would show that P.W.6 and Aladi Aruna were known to each other for quite long time and that father of P.W.6 was also in the politics in DMK together with Aladi Aruna and above all, they were living in the same village and having known to Aladi Aruna for long time, it was nothing unusual for P.W.6 to have accompanied Aladi Aruna in the morning walk. (ii) It was nextly contended that if really P.W.6 was present in the scene of occurrence, when a leader like Aladi Aruna was being attacked, as a normal prudent man the responsibility of P.W.6 would have been to save him and expose himself even to the danger. But absolutely, there was no response from P.W.6. It was further argued that P.W.6 did not sustain even one simple injury would raise serious doubts about his presence. (iii) Every person who witnesses a murder, reacts in his own way. Some are stunned, speechless and shocked whereas others may run away to keep themselves away and removed from the spot to save himself. Everyone reacts in his own special way and there is no natural reaction. Evidence of P.W.6 cannot be doubted on the ground as to why he had not acted in a particular way. Some are stunned, speechless and shocked whereas others may run away to keep themselves away and removed from the spot to save himself. Everyone reacts in his own special way and there is no natural reaction. Evidence of P.W.6 cannot be doubted on the ground as to why he had not acted in a particular way. (iv) In his evidence, P.W.6 has stated that he was in a close proximity with deceased Aladi Aruna during the occurrence and tried to prevent, but Accused No. 3 attacked teacher Ponraj. It was therefore contended that if P.W.6 was so present he would have tried to prevent and P.W.6 also would have met with same fate as one of the accused was having gun and P.W.6 would not have been spared, as it is the case of prosecution that accused hatched conspiracy to eliminate Aladi Aruna and anybody who intervenes. This contention does not merit acceptance. When Accused No. 2 and 3 and deceased accused-Auto Baskar turned towards P.W.6, P.W.6 ran from the scene of occurrence to save himself. Accused No. 2 and 3 and deceased accused-Auto Baskar might have tried to chase him. In the mean time, they might have heard whistle sound and might have left the place. The fact that P.W.6 escaped unhurt cannot be the reason to doubt his presence in the scene of occurrence. (v) As pointed out earlier, immediately after the occurrence, P.W.6 ran towards petrol bunk and told P.W.7 and both of them went to the scene of occurrence. The car driven by Manuel in which deceased Aladi Aruna came to the petrol bunk was standing in the petrol bunk. On behalf of the accused, it was argued that the car in the petrol bunk was not taken either to the scene of occurrence or to the house of P.W.8 or to the Police Station for quick and necessary action and in particular, when P.Ws.6 and 7 went back to the scene of occurrence to ascertain as to whether deceased were alive or not and if alive to take injured/deceased to the hospital for treatment. It was therefore argued that after P.W.6 informed P.W.7, they have gone to the place of occurrence and they could have very well taken the car available in the petrol bunk and could have gone to the place. It was therefore argued that after P.W.6 informed P.W.7, they have gone to the place of occurrence and they could have very well taken the car available in the petrol bunk and could have gone to the place. We do not find unnatural conduct on the part of P.W.6 that he had gone to the petrol bunk and informed P.W.7 and both of them went to the place of occurrence in TVS-50 vehicle. (vi) Of course, the car in which deceased Aladi Aruna came to the petrol bunk was said to be standing in the petrol bunk and the driver Manuel was there. Each person reacts his own way. When P.W.6 told P.W.7 about the occurrence, in a shocked state of mind and in a hurry, it might not have occurred to them to take the car. P.W.6, was an employee of TASMAC and P.W.7 was employed as Manager in the petrol bunk. Both of them were not quite accustomed to the user of the or perhaps it did not strike them to take car to rush to the scene of occurrence. Therefore, there was nothing unnatural of P.W.6 and P.W.7 in not taking the car to the place of occurrence. Non-taking of car to the scene of occurrence by P.Ws.6 and 7 does not throw any doubt about the version of P.Ws.6 and 7. (vii) In Exhibit P-1-Complaint, P.W.6-Socrates has stated that one of the assailant fired the deceased Aladi Aruna with gun and deceased Aladi Aruna got injured on the part between neck and chest. But, there was no injury found in the body of the deceased Aladi Aruna. In his explanation, P.W.6 has stated that out of fear, he has stated that deceased Aladi Aruna got injured on the part between the neck and chest by the gun shot. P.W.6 was examined twice on the date of occurrence (31.12.2004) and again on 2.2.2005 and 23.2.2005. It was contended that even though, he was examined number of times, P.W.6 did not offer an explanation that he spoke about the misfired gunshot injury out of fear and therefore, it is quite unbelievable that P.W.6 would have witnessed the occurrence. (viii) We find force in the contention of Special Public Prosecutor that in a confused state of mind, P.W.6 might have stated that deceased Aladi Aruna sustained gun shot injuries. (viii) We find force in the contention of Special Public Prosecutor that in a confused state of mind, P.W.6 might have stated that deceased Aladi Aruna sustained gun shot injuries. The revolver wielded by deceased accused-Auto Baskar was a country made revolver. The shot might have been misfired and thereby causing no injury. In our considered view, on this ground the accused cannot make a mountain out of mole-hill. (ix) The very fact that P.W.6 mentioned about the gun shot even though there was no such injury would show that P.W.6 is a natural witness. As pointed out earlier, after the occurrence, P.Ws.6 and 7 went to the place of occurrence and saw Aladi Aruna and Ponraj without any movements. P.Ws.6 and 7 also saw injuries on both the deceased. If really, P.W.6 was a planted witness, P.W.6 would have mentioned only the cut injuries actually found on the person of deceased Aladi Aruna and Ponraj. The very fact that P.W.6 refers to misfired gun shot would show that P.W.6 is a natural witness. In fact, reading of contents of Exhibit P-1-Complaint would show that it is natural narration of events. (x) P.W.10-Raghupathy has stated that he saw three accused proceeding from Puthupatti road to main road in one bike. In his evidence, P.W.6 has stated that accused came in two bikes and went back in two bikes in the opposite direction. Initially, P.W.6 has stated that they went in north direction. Later, he has stated that one motorcycle went in northern direction and Another went in southern direction. It was therefore contended that there is variation between the evidence of P.Ws.6 and 10 as to how the assailants fleed from the scene of occurrence. As such, we do not find any discrepancy in the evidence of P.Ws.6 and 10. Evidence of P.W.6 is very clear to the effect that Accused No. 2 and 3 and deceased accused-Auto Baskar went in northern direction and Accused No. 1 and 4 and deceased accused-Benny went in southern direction. (xi) Comparing the evidence of P.W.6-Socrates with P.W.11-Lakshmanan @ Jeyaraj, it was contended that P.W.11 was collecting grass about 100 feet away in Chandrasekaran's Coconut-Cashew grove. On seeing, Accused No. 1, 4 and deceased accused-Benny wielding Aruvals, P.W.11 sat down in the grove and hid himself. (xi) Comparing the evidence of P.W.6-Socrates with P.W.11-Lakshmanan @ Jeyaraj, it was contended that P.W.11 was collecting grass about 100 feet away in Chandrasekaran's Coconut-Cashew grove. On seeing, Accused No. 1, 4 and deceased accused-Benny wielding Aruvals, P.W.11 sat down in the grove and hid himself. Onbehalf of the accused, it was contended that though P.W.11 was at about 100 feet away, P.W.6 has not mentioned about the presence of P.W.11 and vice-versa. P.W.6's evidence cannot be doubted on the ground that he did not mention about the presence of P.W.11. When P.W.11 hid himself in the grove, P.W.6 who witnessed the gruesome murder, trying to escape from the scene of occurrence would not have certainly noticed the presence of P.W.11. Having regard to the distance between the place of occurrence where P.W.6 was there and the place where P.W.11 hid himself, we do not find any merit in the contention advanced. (xii) Nextly, evidence of P.W.6 is sought to be assailed contending that P.W.6 has not mentioned the identification of the assailants in Exhibit P-1-Complaint. Mr. Shanmuganathan, learned counsel for Accused No. 3 contended that Accused No. 3 is stated to be 6½ feet tall and Accused No. 3 itself called as Valarntha Alagar and if really P.W.6 has really witnessed the occurrence, he would have disclosed the identity, physical features of Accused No. 3 in Exhibit P-1-Complaint. It was nextly argued that if P.W.6 had so indicated the identification, it would have provided a vital clue to the prosecution and non-disclosure of identity of any of the accused including Accused No. 3 raises serious doubts about the credibility of P.W.6. (xiii) P.W.6 witnessed the occurrence where two persons were mercilessly hacked to death. Being an eye-witness, P.W.6 must have been terribly shocked and frightened. When P.W.6 was in such a shocked state of mind, while giving Exhibit P-1-Complaint quite possibly, he might not have been in a position to give the identity/physical features/height of the assailants. In fact, the person (P.W.51-S.I. of Police) who recorded the statement (Exhibit P-1) of P.W.6 ought to have questioned about the physical features. In our considered view, non-mention of details of the identification/physical features of the assailants in Exhibit P-1 is of no consequence. In fact, the person (P.W.51-S.I. of Police) who recorded the statement (Exhibit P-1) of P.W.6 ought to have questioned about the physical features. In our considered view, non-mention of details of the identification/physical features of the assailants in Exhibit P-1 is of no consequence. (xiv) First Information Report need not contain all the details and if all the details are not disclosed in the FIR, it cannot be said that the author of the complaint was not aware of the details. It is well settled that FIR is not an encyclopedia which must disclose all the facts and details relating to the offence reported. Omission to mention the identification/physical features of the accused is of no significance. Merely because witness did not state features or special features of the accused is no ground to doubt his version. (xv) The occurrence was at 7.15 a.m. on 31.12.2004 and after the occurrence, P.W.6 went to the petrol bunk and informed P.W.7 and then went to the scene of occurrence in a motorcycle and then to the house of P.W.8 and after informing him, they went to Alangulam Police Station where statement (Exhibit P-1) of P.W.6 was recorded at 8.30 a.m. On the basis of Exhibit P-1-Statement, FIR (Exhibit P-69) in Cr. No. 847 of 2004 was registered and the same reached to Judicial Magistrate Court, Tenkasi at 11.00 a.m. On behalf of the accused, it was contended that the Police Station is situated in between the scene of occurrence and the house of P.W.8 and twice P.W.6 crossed the Police Station and even then, no information was given to the Police. It was further argued that there was phone facilities both in the petrol bunk and house of P.W.8 and no telephonic information was given to the Police either from the house of P.W.8 or from the petrol bunk. It was contended that the prosecution was gaining time only to make deliberations and thereby to plant P.W.6 as a witness to the occurrence. (xvi) The above contention does not merit acceptance. Exhibit Minister (Aladi Aruna) and his friend (Ponraj) were brutally murdered. Having witnessed the occurrence, it might not have occurred to P.W.6 as to how to react. It was contended that the prosecution was gaining time only to make deliberations and thereby to plant P.W.6 as a witness to the occurrence. (xvi) The above contention does not merit acceptance. Exhibit Minister (Aladi Aruna) and his friend (Ponraj) were brutally murdered. Having witnessed the occurrence, it might not have occurred to P.W.6 as to how to react. Having seen the deceased Aladi Aruna and Ponraj with injuries in a pool of blood and P.Ws.6 and 7 have gone to the house of P.W.8 and informed him, who in turn asked them to first inform the house of Ponraj. In our considered view, the conduct of P.Ws.6 and 7 is quite natural. (xvii) So far as the contention as to delay in registration of FIR, as such we do not find any delay in registration of FIR. The occurrence was at 7.15 a.m. Exhibit P-1- Complaint was given by P.W.6-Socrates and FIR in Cr. No. 847 of 2004 was registered at 8.30 a.m. FIR was handed over to P.W.43-then Grade I Police Constable of A1ankulam Police Station at 9.30 a.m. In his evidence, P.W.43 has stated that after receipt of FIR at 9.30 a.m., he has handed over the same in Tenkasi Judicial Magistrate Court at 11.00 a.m. which is also strengthened by the endorsement seen on Exhibit P-69-FIR. Absolutely, we do not find any delay either in registration of FIR or receipt of the same in the Court. 106. P.W.6 is the solitary eye-witness. Though number of contradictions here and there were pointed out, in our considered view, those contradictions would not affect the credibility of P.W.6. Evidence is to be weighed and not to be counted. Learned Session Judge who had the opportunity of observing the demeanour of P.W.6 also held that P.W.6 is trustworthy witness. 107. While appreciating the evidence of witness, where evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is for the Court to evaluate the evidence to find out whether it is against the general tenor of the case. In our considered view, the minor discrepancies pointed out in the evidence of P.W.6 are trivial not touching the core of the prosecution case. 108. Evidence of P.W.6 as to the overt act of Accused No. 2 and 3 is also corroborated by medical evidence. In our considered view, the minor discrepancies pointed out in the evidence of P.W.6 are trivial not touching the core of the prosecution case. 108. Evidence of P.W.6 as to the overt act of Accused No. 2 and 3 is also corroborated by medical evidence. When tested for its inherent consistencies with the other evidence, evidence of P.W.6 is corroborated by the evidence of P.W.10 and other evidence and the objective findings during investigation. Having observed the demeanor of P.W.6, learned Sessions Judge also arrived at a conclusion that P.W.6 is trustworthy witness. In our considered view, evidence of P.W.6 is unimpeachable in character establishing the guilt of Accused No. 2 and 3 and also the involvement of deceased accused-Auto Baskar. 109. Evidence of P.W.6-Socarates draws support from the testimony of P.W.10-Raghupathy also. P.W.10 is the resident of Aladipatti village was waiting at Nallur Vilakku bus stop for boarding the bus for Tirunelveli has stated that about 7.20 a.m. on 31.12.2004, he saw Auto Baskar, Accused No. 2-Bala @ Balamurugan and P.W.3-Alagar @ Valarntha Alagar riding on a motorcycle (M.O.13) driven by Auto Baskar coming from Nallur Vilakku to Puthupatti road to the main road and when the motorcycle took a turn in the main road, P.W.10 saw the face of Accused No. 2. It emerges from the evidence of P.W.10 that immediately, after the occurrence, all the three accused (Auto Baskar, Accused No. 2 and 3) left the scene of occurrence through the main road and left for Tenkasi. 110. Evidence of P.W.10 would clearly bring home that Accused No. 2, 3 and deceased accused-Auto Baskar went in M.O.13-Bajaj Pulsar motorcycle. Accused No. 2-Bala @ Balamurugan was already known to P.W.10-Raghupathy. Accused No. 2's father Paramasivam is the bus driver operating in the main road of Aladipatti. Accused No. 2's father was known to Selvaraj, friend of P.W.10. P.W.10 himself is a driver. Accused No. 2's father gave marriage invitation of his son to Selvaraj as well as to P.W.10. P.W.10 and his friend Selvaraj attended the marriage reception at Megalingapuram on the evening of 24.10.2004. In his evidence, P.W.10 has stated that Accused No. 2's father was expressing his feelings about Accused No. 2 that Accused No. 2 is associated with bad company and his involvement in cases. In the marriage, P.W.10 saw Accused No. 1-Veldurai and enquired him. P.W.10 and his friend Selvaraj attended the marriage reception at Megalingapuram on the evening of 24.10.2004. In his evidence, P.W.10 has stated that Accused No. 2's father was expressing his feelings about Accused No. 2 that Accused No. 2 is associated with bad company and his involvement in cases. In the marriage, P.W.10 saw Accused No. 1-Veldurai and enquired him. Accused No. 1 introduced Benny and Urundai Raja to P.W.10. Accused No. 4-Arumugam also participated in the marriage reception. P.W.10 himself a driver, quite natural that he had attended the marriage reception of Paramasivam's son. P.W.10 having already known Accused No. 2 and deceased accused-Auto Baskar, evidence of P.W.10 that he had seen Accused No. 2, deceased accused-Auto Baskar and Another person at Nallur Vilakku is a strong piece of evidence against Accused No. 2. and deceased accused-Auto Baskar. As P.W.10 had not known Accused No. 3, he has stated only 111. P.W.10's evidence was assailed contending that he did not inform the Police about fleeing of the assailants and that P.W.10 and his friend Selvaraj had gone to Tirunelveli as if nothing happened. It was further argued that P.W.6 had already known Accused No. 2 and while so, non-disclosure of identity of the assailants by P.W.10 at an early date would raise serious doubts about P.W.10's version. It was further urged that P.W.10 is cousin brother of P.W.6-Socrates who is very close to the family of Aladi Aruna and therefore, evidence of P.W.10 cannot be said to be corroboration from independent source. 112. There is no force in the arguments advanced assailing the evidence of P.W.10. P.W.10 was examined and his 161 Cr.P.C. statement was recorded on 1.1.2005 and the same was received in the Court on 1.2.2005. Even though, statement of P.W.10 was received late, the Investigating Officer might have got vital clue from P.W.10. It is pertinent to note that Accused No. 2 surrendered himself before the Judicial Magistrate, Tiruvotriyur even on 3.1.2005. P.W.10 being the resident of Aladipatti, while standing near Nallur Vilakku bus stop along with his friend Selvaraj to take bus to Tirunelveli is a natural and probable witness having seen Accused No. 2 and 3 along with deceased accused-Auto Baskar fleeing in the motorcycle. 113. P.W.10 being the resident of Aladipatti, while standing near Nallur Vilakku bus stop along with his friend Selvaraj to take bus to Tirunelveli is a natural and probable witness having seen Accused No. 2 and 3 along with deceased accused-Auto Baskar fleeing in the motorcycle. 113. Charge under Section 307 IPC against Accused No. 2 and 3 for attempting on the life of P.W.6-Socrates: When P.W.6-Socrates tried to prevent the attack, Accused No. 2 and 3 attempted to attack P.W.6. Deceased accused-Auto Baskar also ran towards P.W.6 and P.W.6 escaped the attack. For the purpose of constituting an attempt under Section 307 IPC, there are two ingredients required, first intention or knowledge, and secondly, an act done. 114. The intention of the assailants is to be gathered from the nature of weapon and that the accused had done something marking the commission of the offence and other circumstances. An attempt in order to be criminal need not be the penultimate act. It is sufficient by law, if there is present an intent coupled with some overt act in execution thereof. For purposes of criminal liability, it is sufficient, if the attempt had gone so far, that the crime would have been completed, but for the extraneous intervention which frustrated. 115. Accused No. 2 and 3 were armed with Aruvals and deceased accused-Auto Baskar armed with country made revolver. When deceased Ponraj intervened, Accused No. 3-Alagar @ Valarntha Alagar inflicted cut injuries on him. P.W.6 has clearly stated that Accused No. 2 and 3 attempted to attack him and deceased accused-Auto Baskar also ran towards him. But for his escape, P.W.6 would also have been attacked. We are of the view that on Charge No. 15, Accused No. 2 and 3 were rightly convicted by the trial Court under Section 307 IPC. 116. Subsequent conduct of Accused No. 2, 3 and deceased accused -Auto Baskar: Accused No. 1-Bala @ Balamurugan voluntarily surrendered on 3.1.2005 at Judicial Magistrate Court, Tiruvotriyur and he was produced before the Judicial Magistrate Court, Tenkasi on 10.1.2005. P.W.52-IO took him to police custody and interrogated on 11.1.2005. Confession statement recorded from Accused No. 2 led to recovery of M.O.2-Aruval from thorny bushes near Karumbuliyuthu village under Exhibit P-8-Mahazar. Identification of M.O.2-Aruval by P.W.23-Murugan being purchased by Accused No. 4 is a strong piece of evidence against Accused No. 2 and that he being part of conspiracy. 117. P.W.52-IO took him to police custody and interrogated on 11.1.2005. Confession statement recorded from Accused No. 2 led to recovery of M.O.2-Aruval from thorny bushes near Karumbuliyuthu village under Exhibit P-8-Mahazar. Identification of M.O.2-Aruval by P.W.23-Murugan being purchased by Accused No. 4 is a strong piece of evidence against Accused No. 2 and that he being part of conspiracy. 117. P.W.27-Vanumamalai was then a Watchman of two-wheeler parking area in Nainar complex in Tirunelveli. In his evidence, P.W.27 has stated that on 31.12.2004 - 8.30 a.m., M.O.13-Bajaj Pulsar motorcycle (TN-09 AD 3151) was parked in the parking area which was entered in the Register as Sl. No. 22 and that the vehicle was not taken back. P.W.27 has identified the person who parked the vehicle as tall person and by so saying P.W.27 has identified Accused No. 3-Alagar @ Valarntha Alagar in the Court. Confession statement of Accused No. 2 led to recovery of M.O.13-Bajaj Pulsar motorcycle under Exhibit P-16-Mahazar. Identification of M.O.13 by P.W.6 used by the assailants is a strong piece of evidence against Accused No. 2 and 3. 118. P.W.49-Chandra Senan, Inspector of Police, came to know that Kannan (acquitted accused-A6) was harbouring Accused No. 3. On such intimation, P.W.49 went to Saravana Lodge in Dindigul and P.W.49 arrested Ravi @ Dog Ravi and deceased accused-Auto Baskar in Room No. 204. On the way to Tirunelveli from Palani, P.W.49 met Inspector Ravi who has arrested Accused No. 3 and also Kannan (acquitted accused-A6) at Vathalagundu by-pass road. P.W.49 and Inspector Ravi along with arrested accused proceeded to Tirunelveli in one vehicle. On the way, they learnt that Accused No. 1-Veldurai and deceased accused-Benny might be possibly available in the village called Sattupathu within the limits of Cheranmadevi Police Station. A1l of them while proceeding to Sattupathu, deceased accused-Auto Baskar wanted to answer the nature's call and the accused were taken to Cheranmadevi Police Station. Auto Baskar went to the toilet and on return from the toilet, he fell down fainting. P.W.49 admitted Auto Baskar in Government Hospital, Cheranmadevi at 1.50 a.m. where the Doctor examined Auto Baskar and declared him dead at 1.50 a.m. on 20.1.2005. Regarding the death of Auto Baskar, prosecution has produced Exhibit P-88-FIR in Cr. No. 7 of 2005 under Section 174 Cr.P.C. Exhibit P-90 is the death certificate of Auto Baskar. P.W.49 admitted Auto Baskar in Government Hospital, Cheranmadevi at 1.50 a.m. where the Doctor examined Auto Baskar and declared him dead at 1.50 a.m. on 20.1.2005. Regarding the death of Auto Baskar, prosecution has produced Exhibit P-88-FIR in Cr. No. 7 of 2005 under Section 174 Cr.P.C. Exhibit P-90 is the death certificate of Auto Baskar. Even though, post-mortem certificate of Auto Baskar was not produced, in his evidence, P.W.49 has asserted that Auto Baskar committed suicide by consuming cyanide poison. That death of Auto Baskar was due to consumption of cyanide poison was not denied. On the other hand, it was only suggested to P.W.49 that cyanide poison was forcibly administered to Auto Baskar. The suggestion that cyanide poison was forcibly administered to arrested accused-Auto Baskar does not address to the reason. 119. After all, P.W.49 was leading one of the special team and they were arresting the accused in the course of such investigation. While so, absolutely there was no necessity for them to forcibly administer cyanide poison to deceased accused-Auto Baskar. It is pertinent to note that after the arrest of the accused or after the death of Auto Baskar, no such contemporaneous complaint was lodged against P.W.49 or the Investigating Agency. 120. Identification parade in respect of Accused No. 2 and 3: Accused No. 3-Alagar @ Valarntha Alagar was arrested on 20.1.2005 and he was taken to police custody on 25.1.2005. Accused No. 2-Bala @ Balamurugan surrendered before the Judicial Magistrate, Tiruvotriyur on 3.1.2005. P.W.44-District Munsif-cum-Judicial Magistrate, Shencottah conducted Test Identification Parade in respect of Accused No. 2 on 20.1.2005 and P.W.6-Socrates identified Accused No. 2. So far as, Accused No. 3-Alagar @ Valarntha Alagar, test identification parade was held on 1.2.2005 and P.W.6-Socarates and P.W.10-Raghupathy identified Accused No. 3. 120.1 Test identification parade and the proceedings thereon is assailed contending that identification parade was not conducted in a legal manner. Placing reliance upon Amitsingh Bhikamsingh Thakur v. State of Maharashtra (supra), learned counsel for Accused No. 3 contended that test identification parade is not a substantive piece of evidence, but could only be used as corroborative piece of evidence. 120.2 Drawing our attention to the evidence of P.Ws.6, 10 and 44, it was contended that there are contradictions as to how many persons of same complexion and different facial appearance were arrayed along with the accused. 120.2 Drawing our attention to the evidence of P.Ws.6, 10 and 44, it was contended that there are contradictions as to how many persons of same complexion and different facial appearance were arrayed along with the accused. Learned counsel for Accused No. 3 submitted that Accused No. 3 being of unusual height, it is not known as to how P.W.44-District Munsif-cum-Judicial Magistrate could have arrayed the other prisoners of the same complexion and age group. It was therefore contended that P.W.10 could have easily identified Accused No. 3 because of his height and no credence could be attacked to the identification of Accused No. 3 by P.W.10. But, inso- far as test identification parade is concerned, P.W.10 has denied the suggestions put to him by the accused. 120.3 Learned counsel for the Accused No. 2 and 3 contended that witnesses had occasion to see newspapers in which photos of Accused No. 2 and 3 were flashed. It is pertinent to note that not even one suggestion was put to any of the witnesses who have identified the accused that Police personnel had taken any steps to show the accused to the witnesses. No material was placed before the Court to show that photos of accused were published in the newspapers. 120.4 In AIR 2005 SC 402 : (2005) SCC (Cri) 1269, the Supreme Court held as follows: "16....... The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime......." 17. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of Evidence Act. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings........" 120.5 Accused No. 2 surrendered before the Judicial Magistrate Court, Tiruvotriyur on 3.1.2005 and he was taken into police custody on 11.1.2005 and test identification parade was conducted on 20.1.2005 within a reasonable time after his surrender. Likewise, Accused No. 3 was arrested on 20.1.2005 and test identification parade was conducted on 1.2.2005 within a reasonable time after his arrest. As such, we do not find any delay in holding test identification parade. 120.6 Along with the evidence and other circumstances placed by the prosecution, test identification parade proceedings in which Accused No. 2 was identified by P.W.6-Socrates and Accused No. 3 was identified by P.Ws.6 and 10 is yet another corroborative piece of evidence. 120.7 Test identification parade and identification of Accused No. 2 and 3 by P.Ws.6 and 10 was mainly attacked contending that photographs of the accused were shown to the witnesses. Learned counsel for Accused No. 3 contended that Accused No. 3 was arrested on 20.1.2005 and he was taken to police custody on 25.1.2005 and police custody of Accused No. 3 was taken mainly for the purpose of showing him to the witness. It was further argued that on the date of test identification parade, Accused No. 3's photo was published in the newspaper and while so, the identification of Accused No. 2 and 3 by the witnesses is of no consequence. It was further argued that on the date of test identification parade, Accused No. 3's photo was published in the newspaper and while so, the identification of Accused No. 2 and 3 by the witnesses is of no consequence. Placing reliance upon Vijayan v. State of Kerala (supra), it was contended that photograph of the accused shown to the witnesses and also local newspapers published the photographs, identification by the witnesses in the test identification parade would loose its weight. 120.8 The idea of conducting a test identification parade is to test the ability of a witness to identify a particular person, then photograph of the suspect should not be shown to him in advance. Otherwise, the parade becomes only a farce. But, that is different from the press publishing photos of the accused in the newspapers. 120.9 In a State where there is proliferation of newspapers, how can a witness be made, responsible if newspapers publish the photographs of the accused. Neither the prosecution nor the witness made responsible for such publication of photographs in the newspapers. No proposition can be laid down that evidence of witnesses is liable to be thrown over board in cases where the newspapers published the photo of the accused. If any such view to be taken evidence of good number of witnesses would be exposed to the peril of being disbelieved. Of course, it is upon to the Court to decide whether evidence of a witness regarding identification was really influenced by publication of photographs in the newspapers. P.W.10 has denied the suggestion that Accused No. 2 and 3 were already shown to him and he has also denied having seen the newspapers. Excepting a bare suggestion to P.W.10, nothing has elicited from P.W.10 that he has actually seen the photographs in the newspapers and was influenced by such publication. 120.10 Identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on the correct lines in addition to furnishing corroboration of the evidence to be given by the witness in Court at the trial. Evidence of identification merely corroborates and strengthens the oral testimony in Court which alone is the primary and substantive evidence as to identity. Evidence of identification merely corroborates and strengthens the oral testimony in Court which alone is the primary and substantive evidence as to identity. That immediately after the arrest of Accused No. 2 and 3, they were identified by P.Ws.6 and 10 lends assurance to their testimony in the Court. 121. Re. contention Latches in Investigation: On behalf of accused, it was contended that cell phones were seized both from scene of occurrence as well as from the accused and while so, investigation agency has not made any efforts to collect the details of the call log from the various cell phones. Since number of cell phones have been seized from the accused as well as from the scene of occurrence, it would have been desirable if the investigating agency have collected the call log to find out any clue regarding the communication between the conspirators. In the era of information technology, it is desirable that the investigating agency attach scientific temper of investigative methods. But, omission to collect the particulars as to call log and other calls would not adversely affect the prosecution case which otherwise is based upon cogent facts. 121.1 On behalf of the accused, it was contended that non-examination of Manuel (car driver of Aladi Aruna) throws serious doubts about the prosecution version. It was further argued that non-examination of Manuel would suggest that P.W.6-Socrates was not present in the place of occurrence and the learned counsel for the accused urged to draw an adverse inference against the prosecution. The above contention does not merit acceptance. By perusal of records, it is seen that car driver Manuel was interrogated by the Investigating Officer and his Section 161 (3) Cr.P.C. statement was recorded. Choice of examination of witness is always with the prosecution. Unless a key witness was withheld by the prosecution, no adverse inference could be drawn against prosecution. 121.2 That apart, car driver Manuel was not an eye-witness. On being informed by P.W.6, P.W.7-Vaidyalingam has gone to the scene of occurrence and saw the dead bodies. Aladi Aruna and Others went in the car and got down, and the driver came back as they left for a morning walk. P.W.6 came back and informed them about the incident. In such circumstances, in our view, non-examination of Manuel would not adversely affect the prosecution case. Aladi Aruna and Others went in the car and got down, and the driver came back as they left for a morning walk. P.W.6 came back and informed them about the incident. In such circumstances, in our view, non-examination of Manuel would not adversely affect the prosecution case. 121.3 Learned senior counsel for the Accused No. 7 contended that though P.W.6 was examined by the Investigating Officer four times i.e on 31.12.2004, 31.12.2004, 23.2.2005 and 2.2.2005, the statement under Section 161(3) Cr.P.C. dated 31.12.2004 reached the Court on 1.1.2005. Likewise, the statement dated 2.2.2005 reached the Court on 8.3.2005 and the statement dated 23.2.2005 reached the Court on 31.3.2005 which would amount to serious infirmity in the prosecution case. 121.4 Learned counsel for the Accused No. 7 would further contend that statement of P.W.10, though recorded by Investigating Officer on 1.1.2005, the same reached the Court on 1.2.2005. Learned counsel for the accused further argued that the statement recorded under Section 161(3) Cr.P.C of the other witnesses also reached the Court with an inordinate delay which would throw serious doubts about the case of prosecution. In support of his contention, learned senior counsel for Accused No. 7 placed reliance upon AIR 1979 SC 135 : (1979) SCC (Cr) 1 : (1978) 4 SCC 371 . 121.5 Countering the arguments, Mr.N.Natarajan, learned senior counsel/Special Public Prosecutor for State submitted that the delay in examining the witness by the police under Section 161(3) Cr.P.C and reaching the Court itself cannot be a ground to discard the testimony of a witness. In support of his contention, learned senior counsel placed reliance upon AIR 1999 SC 3759 : (2000) SCC (Cri) 206 : (2000) 1 SCC 243 . 121.6 Delay in examination of witness would not materially affect the prosecution case and would be material only if it is indicative and suggestive of some unfair practice for the purpose of introducing a got up witness to falsely support the prosecution case. Since identity of the assailants were not known, there would be a delay in examining the witnesses and it cannot be said that there was unjustified delay in recording the statement of witnesses. Identity of the assailants were not known till Police custody of Accused No. 2 was taken on 11.1.2005 and he was interrogated. Since identity of the assailants were not known, there would be a delay in examining the witnesses and it cannot be said that there was unjustified delay in recording the statement of witnesses. Identity of the assailants were not known till Police custody of Accused No. 2 was taken on 11.1.2005 and he was interrogated. Key witnesses like P.W.6-Socrates and P.W.10-Raghupathy were examined by the Investigating Officer immediately after the occurrence i.e. on 31.12.2004 and 1.1.2005 respectively. Statement of P.W.11 was recorded on 23.2.2005. As such, we do not find any unjustified delay in recording the statement of witnesses and receipt of their statements in Court. 121.7 Arguments noted under were advanced on the ground that there was delay and defects in the investigation. Finger prints lifted was not properly examined; Marriage invitation of Paramasiva Konar whose son's marriage reception (brother of A2) P.W.10 is said to have attended; Admittedly, assailants sped away in motor cycle and while so, there was no necessity to call for sniffer dog; There was delay in examination of witnesses and receipt of their statements to Court. 121.8 On behalf of the accused, it was mainly argued that investigation was defective on the above aspects which would raise serious doubts about the prosecution version. Pointing out certain discrepancies in the facts and course of events in the investigation, it was contended that defective investigation would affect the substratum of the prosecution. 121.9 There is no force in the contention that due to lapses/omissions in investigation the prosecution must fail. As such, we do not find any defects in the investigation. Assuming that there are omissions/defects in the investigation, a defective investigation by itself cannot be a ground for acquittal, lest it would amount to giving premium to such lapses in the investigation. 121.10 In the case of alleged defective investigation, the Court has to be circumspect in evaluating the evidence. But, it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See AIR 1995 SC 2472 : (1995) 5 SCC 518 : (1995) SCC (Crl) 977 : (1996) 1 MLJ (Cri) 56). But, it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See AIR 1995 SC 2472 : (1995) 5 SCC 518 : (1995) SCC (Crl) 977 : (1996) 1 MLJ (Cri) 56). 121.11 In AIR 1999 SC 644 : (1999) SCC (Cr) 104 : (1999) 2 SCC 126 : (1999) 1 MLJ (Cri) 289, it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts; otherwise, the designed mischief would be perpetuated and justice would be denied to the complainant party. 121.12 In the case of (2007) 10 SCC 496 , at page 503, the Supreme Court held as follows: "26. A defective investigation by itself cannot be a ground for acquittal. Witnesses examined on behalf of the prosecution have been believed both by the learned trial judge as also by the High Court. So far as the appellant is concerned, we do not find any reason to differ there from." 121.13 In the case of AIR 2003 SC 2471 : (2003) SCC (Cri) 1270, the Supreme Court held as follows: "12......... It is also required to be kept in view that every defective investigation need not necessarily result in acquittal., In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to the rejection of the case of the prosecution when it is otherwise proved." 121.14 In the case of (2006) 12 SCC 64 , the Supreme Court held as follows: 31. The investigation was not foolproof but then defective investigation would not lead to total rejection of the prosecution case. 32. In Visvesaran v. State (supra) this Court held: 12. The investigation was not foolproof but then defective investigation would not lead to total rejection of the prosecution case. 32. In Visvesaran v. State (supra) this Court held: 12. Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that the approach required to be adopted by Courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. 33. In State of M.P. v. Mansingh this Court held: 12. Even if it is accepted that there were deficiencies in the investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent. Non-examination of Hira Lal is also not a factor to cast doubt on the prosecution version. He was not an eyewitness, and according to the version of P.W.8 he arrived after P.W.8. When P.W.8 has been examined, the non-examination of Hira Lal is of no consequence." Applying the ratio of the above decision, even if the investigation is held to be defective, the Court is required to appraise the evidence and material placed before it as to whether the case has been made out or not and a mere defect in the investigation cannot result in the rejection of the prosecution case. 121.15 Investigation is not the solitary area for the judicial scrutiny in criminal trial. 121.15 Investigation is not the solitary area for the judicial scrutiny in criminal trial. The conclusion of the Court cannot be allowed to stand solely on the probity of the investigation. It is well settled that in criminal trials even if the investigation is defective, the rest of the evidence must be scrutinised independently of the impact of the defects otherwise the criminal trial will plummet to the level that Investigating Officer ruling the criminal trials. Criminal justice should not be made causality for any defects/lapses committed by the Investigating Officer. We are convinced that the testimony of P.Ws.6, 10 and 11 to the occurrence is true and the Court is very well to act upon it albeit the defects pointed out in the investigation. 122. Complicity of Accused No. 1,4 and 7 in the occurrence - Power of the appellate Court to re-appreciate the evidence: Accused No. 1, 4 and 7 were acquitted of various charges which is challenged by the State in C.A. No. 270 of 2008. It is settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. (2002) 2 SCC 85 . 123. After considering all the leading decisions on the point in (2007) 4 SCC 415 : (2007) 2 MLJ (Crl) 991, the Supreme Court laid down the following general principles regarding powers of the appellate Court in dealing with the appeal against order of acquittal: "(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 124. Observing that if the appellate Court on re-appreciation of evidence and keeping in view the well established principles, comes to the contrary conclusion, appellate Court can record conviction, in (2008) 9 SCC 484 : (2008) 3 MLJ (Cri) 1202, the Supreme Court held as follows: "32. Now, so far as powers of the appellate Court in an appeal against acquittal are concerned, no restrictions have been imposed by the Code on such powers while dealing with an order against acquittal. In an appeal against acquittal, the High Court has full power to reappreciate, review and reweigh at large the evidence on which the order of acquittal is founded and law reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate Court. 33. It is no doubt true that in a case of acquittal, there is a double presumption in favour of the respondent-accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed innocent unless he is proved guilty by a competent Court of law. 33. It is no doubt true that in a case of acquittal, there is a double presumption in favour of the respondent-accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced by the trial Court (and certainly not weakened). Nonetheless, it is not correct to say that unless the appellate Court in an appeal against acquittal under challenge is convinced that the finding of acquittal recorded by the trial Court is "perverse", it cannot interfere. If the appellate Court on reappreciation of evidence and keeping in view well-established principles, comes to a contrary conclusion and records conviction, such conviction cannot be said to be contrary to law." Applying the above principles to the case on hand, we proceeded to consider the evidence adduced to bring home the guilt of Accused No. 1, 4 and 7. 125. Complicity of Accused No. 1, 4 and deceased Accused-Benny: As held earlier, prosecution has proved the existence of conspiracy. The rationale of conspiracy is that manifestation to crime is provided by an acts. Circumstances to be proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. 125.1 Prior to the occurrence, Accused No. 1, deceased accused-Auto Baskar and Benny were together and on 24.10.2004 all of them had gone to attend the marriage of Accused No. 2's brother. P.W.23-Murugan is running a shop in Alangulam at Ambasamudram road selling Aruval, knife, spade and such other iron articles. In his shop, P.W.23 also having instrument for sharpening of aruvals. On the evening of 27.12.2004 - 6.00 p.m., Accused No. 4-Arumugam had gone to the shop of P.W.23-Murugan and purchased five (gun shaped aruvals). P.W.23 had identified M.Os.1, 2 and 25 to 27-Aruvals having been purchased from his shop. Evidence of P.W.23 that Accused No. 4 had purchased five Aruvals (M.Os.1, 2 and 25 to 27) from his shop on the evening of 27.12.2004 is a strong incriminating circumstance against Accused No. 4. 125.2 Submitting that Accused No. 4 could not have purchased the aruvals, it was contended that it would have not been possible for P.W.23 to identify all five aruvals. 125.2 Submitting that Accused No. 4 could not have purchased the aruvals, it was contended that it would have not been possible for P.W.23 to identify all five aruvals. Even though, P.W.23 has stated that Accused No. 4 has purchased same size of aruvals, P.W.23 has clearly identified all five aruvals in the Court. We find no force in the arguments advanced assailing the evidence of P.W.23. 125.3 Insofar as, Accused No. 1, 4 and deceased accused-Benny, P.W.11-Lakshmanan @ Jeyaraj was collecting grass for his cattle in Coconut-Cashew grove owned by Chandrasekaran which is situated opposite to the place of occurrence. In his evidence, P.W.11 has stated that he was so collecting the grass, he heard whistle sound and when he looked towards west where from the sound came, he saw Accused No. 1-Veldurai, Accused No. 4-Arumugam and Another person (deceased accused-Benny). P.W.11 saw them wielding Aruvals, fear struck him and P.W.11 immediately sat on the ground and within few seconds all three persons left the place in the motorcycle. 125.4 Evidence of P.W.11 was seriously attacked contending that P.W.11 was examined by Investigating Officer only on 23.2.2005 long after the arrest of Accused No. 2 and that his statement was received in Court only on 31.3.2005. It was further argued that if really P.W.11 had seen A1-Veldurai, A4-Arumugam and deceased accused-Benny while crossing the petrol bunk, P.W.11 would have informed about the death of Aladi Aruna either in the petrol bunk or might have informed the police. It was further argued that in view of delay in interrogation of P.W.11 and delay in receipt of statement in the Court, the trial Court has rightly disbelieved his evidence. 125.5 Of course P.W.11 was examined on 23.2.2005 and his statement was received on 31.3.2005. As discussed infra, P.W.11 as a rustic person on seeing two dead bodies lying in a pool of blood, P.W.11 might have been greatly frightened and would not have chosen to involve himself. For the reasons infra, delay in interrogation of P.W.11 cannot be a ground for impeaching his credibility. 125.6 Accused No. 1 and 4 belonging to the same place, Alangulam. They were known to P.W.11 whereas deceased accused-Benny was not known to P.W.11. Trial Court disbelieved the evidence of P.W.11 and dispelled his testimony on the following grounds: P.W.11 is passer-by the bodies of Aladi Aruna and Ponraj. 125.6 Accused No. 1 and 4 belonging to the same place, Alangulam. They were known to P.W.11 whereas deceased accused-Benny was not known to P.W.11. Trial Court disbelieved the evidence of P.W.11 and dispelled his testimony on the following grounds: P.W.11 is passer-by the bodies of Aladi Aruna and Ponraj. But did not bother to go near the bodies or did not stop for a while and look at the bodies; Till 9.00 a.m., P.W.11 sat in the field and that appears to be unbelievable; P.W.11 being neighbour of Aladi Aruna when Investigating Agency finding it difficult to fix the identity of persons, P.W.11 has not chosen to come forward to disclose the identity of the persons whom he had seen with aruvals and the conduct of P.W.11 is unnatural suggesting that he is a planted witness; P.W.6 who is the witness to the occurrence must have seen P.W.11 and non- mention of name of P.W.11 and vice- versa would throw serious doubts about the evidence of P.W.11; The above reasonings of the trial Court for rejecting the evidence of P.W.11 is manifestly perverse and demonstrably unsustainable. We find it difficult to doubt the evidence of P.W.11. Seldom there is any justification for rejection of the evidence of P.W.11. 125.7 To appreciate the evidence of P.W.11, we need to analyse the location of the place of occurrence and the place where P.W.11 was cutting the grass and kept himself hiding. P.W.11 was cutting the grass in the Coconut-cashew nut grove of Chandrasekaran marked as Sl. No. 10 in the rough plan(Exhibit P-7) situated on the eastern side of Nallur Vilakku-Puthupatti road. While cutting the grass, at about 7.00 - 7.15 a.m., south-eastern side of the scene of occurrence, P.W.11 heard whistle sound which must have drawn his attention. On looking at the place, P.W.11 saw Accused No. 1, 4 and Another person (deceased accused Benny) were armed with aruvals. On seeing them armed with aruvals, P.W.11 must have been frightened and quite naturally, he must have sat down in the field itself. 125.8 The very fact that Accused No. 1, 4 and deceased accused-Benny were armed with aruvals and that a signal was given by whistling would clearly show that such signalling was understanding and that there was prior meeting of minds. When being confronted with the evidence of P.W.11, it was a blunt denial. 125.8 The very fact that Accused No. 1, 4 and deceased accused-Benny were armed with aruvals and that a signal was given by whistling would clearly show that such signalling was understanding and that there was prior meeting of minds. When being confronted with the evidence of P.W.11, it was a blunt denial. We are of the view, only in pursuance of conspiracy, signal was sent by whistling and thereafter accused No. 1, 4 and deceased accused-Benny fleeing the place. 125.9 Trial Court repelled the evidence of P.W.11 on the ground that he did not stop for a while to look at the bodies. By perusal of photographs (M.O.33-series), both the bodies were found on the side of the road near cactus in a pool of blood. Seeing the bodies, being rustic P.W.11 would not wish to involve himself. On seeing the bodies in a pool of blood, reaction of anybody would be shock and being frightened; more so, when a VIP like Aladi Aruna was found murdered. No standard set rule of behaviour could be set forth. While so, trial Court erred in disbelieving the evidence of P.W.11 on the ground that he did not go near the body and have a look at the bodies. 125.10 The next ground for disbelieving the evidence of P.W.11 is that P.W.11 sat on the field and he was so sitting in the field till 9.00 a.m. and only after 9.00 a.m., P.W.11 rose up and went. Chandrasekaran's field was a coconut-cashew grove. Early in the morning P.W.11 saw Accused No. 1, 4 and Another person with aruvals and quite probably P.W.11 must have been frightened and sat in the field itself. Only after making sure that the persons armed with weapons have left the place, P.W.11would have mustered the courage to go from the place. There is nothing unusual in the conduct of P.W.11 waiting in coconut grove for some time. 125.11 The next ground for rejecting the evidence of P.W.11 by the trial Court was that he did not tell the Police nor he did come forward to inform the relatives of Aladi Aruna about the identity of the assailants. In our considered view, the approach of trial Court in the appraisement of evidence of P.W.11 is unreasonable and perverse. P.W.11 is a simple rustic. In our considered view, the approach of trial Court in the appraisement of evidence of P.W.11 is unreasonable and perverse. P.W.11 is a simple rustic. He saw Accused No. 1, 4 and Another accused from the southern side armed with aruvals. When he proceeded towards to go to the village, P.W.11 saw Aladi Aruna and Ponraj lying in a pool of blood. Being a simple rustic, quite possibly P.W.11 would have chosen to remain silent without disclosing the identity of the assailants. 126. Only few persons who witness the occurrence and known the assailants come forward to assist the investigation. Others try to keep themselves away from the ordeals of investigation and appearing before the Police and the Court. That apart, it is not uncommon that when the witnesses go to the police to inform what they witnessed, at times they themselves become suspect and made by the Police to sit in the Police Station. That apart, Police summon them for investigation/interrogation for more than once. For the fear of being falsely roped in or being frequently interrogated, P.W.11 might not have gone to the Police Station nor might have come forward to disclose the identity of the assailants either to the Police or to the relatives of Aladi Aruna. On knowing that Accused No. 1 and deceased accused-Benny were arrested in Gujarat and when Benny died by consuming cyanide poison, P.W.11 mustered the courage to come forward to disclose about the assailants - Accused No. 1,4 and deceased accused-Benny. Keeping in view the natural human contact, it would be unreasonable to disbelieve the evidence of P.W.11 on the ground that he did not inform the Police and identity of the assailants at an early point of time. In our considered view, the learned Sessions Judge erred in disbelieving the evidence of P.W.11 and the grounds for rejection of his evidence are demonstrably unsustainable. Where the Court entertains unsustainable doubts and rejects the credible evidence for slender reasons, it is for the duty of High Court to interfere with the findings. 127. Exhibit P-22 - whether retracted confession can form a basis for conviction against Accused No. 1. We have already held that Exhibit P-22 being a confession statement is the piece of evidence against Accused No. 1. During 313 Cr.P.C. questioning Accused No. 1 denied having given Exhibit P-22-statement. 127. Exhibit P-22 - whether retracted confession can form a basis for conviction against Accused No. 1. We have already held that Exhibit P-22 being a confession statement is the piece of evidence against Accused No. 1. During 313 Cr.P.C. questioning Accused No. 1 denied having given Exhibit P-22-statement. We are conscious that it would be unsafe to base conviction on the retracted confession unless corroborated. 128. A retracted confession can form the basis of conviction if the Court is satisfied that it is true and has been voluntarily made. It is neither an inflexible rule of law nor practice nor prudence that in no circumstances the conviction can be made on the basis of the retracted confession without corroboration. 129. Even though, Accused No. 1 retracted Exhibit P-22 confession, confession statement is corroborated by other evidence enumerated under bringing home the acts of Accused No. 1. On 24.12.2004, Accused No. 1 and deceased accused-Benny went to Accused No. 7's college. Evidence of P.W.11 that he saw Accused No. 1, 4 and deceased accused-Benny armed with aruvals on 31.12.2004 - 7.15 a.m. close by to the scene of occurrence. Accused No. 1 and deceased accused-Benny fleed to Gujarat and were apprehended in the house of Maya Thevar. On being apprehended Benny committed suicide by consuming cyanide poison. In our considered view, even though, Accused No. 1 retracted, Exhibit P-22 confession, the same is corroborated by the above. 130. In an appeal against acquittal, when the trial Court has failed to analyse the evidence and when the appreciation of evidence is vitiated by ignoring the evidence, High Court has full power to re-appreciate the evidence. In our considered view, evidence of P.W.11 was misread and not properly considered and findings of the trial Court is opposed to weight of evidence and such an erroneous approach adopted by the trial Court resulted in an unmerited acquittal of Accused No. 1, 4 and Accused No. 7. 131. Subsequent Conduct of the Accused Accused No. 1 and deceased accused- Benny As pointed out earlier, Accused No. 1 and deceased accused-Benny travelled to a far away place Ahamedabad. As discussed earlier, Accused No. 1 and deceased accused- Benny were arrested in the 4th floor, Vaikunth Apartment, Gujarat on the night of 25.1.2005/26.1.2005. M.O.29-revolver, M.Os.32 and 31-cartridges and M.O.36-cash were recovered from Accused No. 1. As discussed earlier, Accused No. 1 and deceased accused- Benny were arrested in the 4th floor, Vaikunth Apartment, Gujarat on the night of 25.1.2005/26.1.2005. M.O.29-revolver, M.Os.32 and 31-cartridges and M.O.36-cash were recovered from Accused No. 1. At that time when he was apprehended deceased accused-Benny consumed cyanide and fallen down. From deceased accused-Benny M.O.30- cover for cartridges, M.O.37- Cellphone and M.O.38-currency note were recovered. 132. The following conduct of the accused are very much relevant: That both Accused No. 1 and deceased accused-Benny went together and that they escaped together to Gujarat to avoid being detected. Immediately on being apprehended, deceased accused-Benny consumed cyanide poison and committed suicide. 133. By the evidence adduced against A1-Veldurai summarised in Para 129 and the above subsequent conduct, we find that prosecution has established the guilt of A1-Veldurai and in our considered view, Acquittal of A1-Veldurai is to be reversed. A1-Veldurai is found guilty under Section 120(B) read with 302 IPC (Charge No. 1), 302 read with 120(B) IPC (2 counts) (Charge No. 11 and 13), 307 read with 120(B) IPC (Charge No. 16). Conviction of A1-Veldurai under Section 25(1B)(a) of Arms Act stands confirmed and the sentences imposed upon him also stands confirmed. 134. Accused No. 4: On 20.1.2005 at 4.00 a.m., Accused No. 4-Arumugam and Paramasivam were arrested at Seethaparpanallur. Confession statement of Accused No. 4 led to recovery of M.O.14-motorcycle and M.O.24-cellphone. Accused No. 4 took the Investigating Officer to Ramar kovil in Alangulam-Tenkasi road and at his instance, M.O.25-Aruval was recovered by P.W.52-IO under Exhibit P-18-Mahazar. Recovery of M.O.25-Aruval and identification of the same by P.W.23 having been purchased by Accused No. 4 on 27.12.2004 is a strong incriminating circumstance against Accused No. 4 establishing his complicity in the occurrence. 135. By the evidence of P.Ws.23 and 11 and recovery of M.O.25-Aruval from A4-Arumugam, we find that the prosecution has established the guilt of A4-Arumugam and in our considered view, acquittal of A4-Arumugam is to be reversed. A4-Arumugam is found guilty under Section 120(B) read with 302 IPC (Charge No. 2), 302 read with 120(B) IPC(2 counts) (Charge No. 11 and 13) and 307 read with 120(B) IPC (Charge No. 16). 136. Accused No. 7: Complicity of Accused No. 7 is established by the following: Motive - deep-seated animosity of Accused No. 7 against Aladi Aruna in running the Engineering College. Proclaiming to do away with Aladi Aruna. 136. Accused No. 7: Complicity of Accused No. 7 is established by the following: Motive - deep-seated animosity of Accused No. 7 against Aladi Aruna in running the Engineering College. Proclaiming to do away with Aladi Aruna. Accused No. 1 and deceased accused-Benny went into Accused No. 7's college on 24.12.2004. Exhibit P-22-Extra judicial confession of Accused No. 1. Till Accused No. 1-Veldurai was arrested in Gujarat on 25.1.2005, involvement of Accused No. 1 did not come to the fore. We have already elaborated first two aspects in Paras 54 to 77. 137. An arranged pattern of disbursement of accused in pairs excepting Accused No. 2. Accused No. 1 and deceased accused-Benny fleed to Gujarat; Accused No. 3 and acquitted accused-A6 (Kannan) in one pair being arrested at Vathalakundu by-pass road and deceased accused-Auto Baskar and accused Ravi @ Dog Ravi in another pair being arrested at Saravana Lodge at Dindigul. On being arrested, deceased accused-Benny and Auto Baskar going to bath room and consuming cyanide poison is something unique and unusual. The subsequent conduct of the accused in disbursing in pairs and two of the accused committing suicide by consumption of cyanide poison strengthens the complicity of Accused No. 2 and 3; Accused No. 1 and 4 and 7; and deceased accused-Benny and Auto Baskar in the commission of offence.. 138. Value of Exhibit P-22 against Accused No. 7 - co-conspirator: In Exhibit P-22, Accused No. 1 has stated that due to enmity in running the college, in the talks Accused No. 7 agreed to give Rs. 5 lakhs and that Accused No. 7 paid Rs. 20,000/- in advance and in that connection they killed Aladi Aruna and Ponraj. 139. Court should not ordinarily act upon retracted confession of co-accused without corroboration. As regards, the other co-accused although corroborative evidence may be necessary, it is not necessary that such corroborative evidence should by itself be sufficient to sustain the conviction. 140. As we have pointed earlier in Para 101.38, in the instant case, we are dealing with a conspiracy trial. As held by the Supreme Court in Firozuddin Basheeruddin and Others v. State of Kerala (supra) any declaration by one conspirator made in furtherance of a conspiracy and during its pendency is admissible against each co-conspirator. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. As held by the Supreme Court in Firozuddin Basheeruddin and Others v. State of Kerala (supra) any declaration by one conspirator made in furtherance of a conspiracy and during its pendency is admissible against each co-conspirator. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Notwithstanding the retraction confession (Exhibit P-22) by A1-Veludurai, the same is admissible in evidence against Co-conspirator A7-S.A. Raja. 141. As we have discussed earlier, Accused No. 7 had strong enmity towards the deceased Aladi Aruna in grant of affiliation of Eiensten's Engineering College and cancellation of affiliation to Accused No. 7's college on 23.8.2004 and the subsequent events. Evidence has been adduced showing that Accused No. 1 and deceased accused-Benny went into the college of Accused No. 7 and conspired. Even de hors, in our considered view, there is substantial direct and circumstantial evidence to prove the conspiracy between Accused No. 1 and Accused No. 7. 142. Section 10 of Indian Evidence Act lays down that in prosecution for conspiracy when concert and connection between the persons charged have been sufficiently established the statements, acts or declaration of each conspirator are admissible in evidence against the others. 143. We have already held that the prosecution has proved Accused No. 7-S.A. Raja was party to the conspiracy and that only at his instance, the conspiracy has been hatched. Therefore, in our considered view that the acquittal of A7-S.A. Raja is to be reversed. For the commission of murdering Aladi Aruna and Ponraj and for the attempt on the life of P.W.6-Socrates as co-conspirator, Accused No. 7 is found guilty under Section 120(B) read with 302 IPC (Charge No. 1), 302 read with 120(B) IPC (2 counts) (Charges No. 10 and 14) and under Section 307 read with 120(B) IPC. (Charge No. 17). 144. When concerted attack was made on the victims by Accused No. 2 and 3 and Accused No. 1 and 4 and deceased accused-Benny, keeping watch on the southern side would clearly show that Accused No. 1 and 4 and deceased accused-Benny had common object for the commission of offence and acting in furtherance of conspiracy. In our considered view, trial Court was not right in rejecting the evidence of P.Ws.6 and 11 and the subsequent conduct of Accused No. 1 and 4. 145. In our considered view, trial Court was not right in rejecting the evidence of P.Ws.6 and 11 and the subsequent conduct of Accused No. 1 and 4. 145. Trial Court erred in ignoring the material evidence adduced by the prosecution proving the conspiracy between Accused No. 1 and 7 in which Accused No. 2, 3 and 4 and deceased accused-Auto Baskar and Benny were the co-conspirators. In our considered view, trial Court erred in acquitting Accused No. 2 and 3 for the charge of criminal conspiracy. Acquittal of Accused No. 2 and 3 under section 120(B) IPC (Charge No. 2) is reversed and both Accused No. 2 and 3 are convicted under Section 120(B) read with 302 IPC. 146. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. 147. In AIR 1983 SC 484 : (1983) SCC (Cr) 379 : (1983) 2 SCC 174 : (1983) 1 MLJ (Crl) 505, the Supreme Court held as follows: "9...... In exercising that powers of the appellate Court should give proper weight and consideration to the following matters: (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial." 148. Courts have duty to take genuine efforts within the judicial sphere to search out the truth. The general apathy and indifference of the public to go to the Police/Investigating Agency also cannot be said to be unusual. While so, we are of the view that trial Court failed to analyse the evidence of P.W.11 from a realistic angle. Finding of the trial Court rejecting the evidence of P.W.11 is manifestly erroneous. Trial Court committed a serious error in discarding the evidence of P.W.11 which has resulted in unmerited acquittal of Accused No. 1 and 4. 149. While so, we are of the view that trial Court failed to analyse the evidence of P.W.11 from a realistic angle. Finding of the trial Court rejecting the evidence of P.W.11 is manifestly erroneous. Trial Court committed a serious error in discarding the evidence of P.W.11 which has resulted in unmerited acquittal of Accused No. 1 and 4. 149. By a series of decisions, Supreme Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the appellate Court and while dealing with appeal against an order of acquittal, Supreme Court observed in AIR 1987 SC 1083 : (1987) SCC (Cri) 381: (1987) 2 SCC 529 as follows: "6...... The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous." 150. Observing that there is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based, in AIR 2003 SC 3601 : (2003) 8 SCC 180 : 2003 SCC (Cri) 1965, the Supreme Court held as follows: "7. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See (2002) 4 SCC 85 : 2002 SCC (Cri) 736). The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, (1996) 9 SCC 225 : 1996 SCC (Cri) 972 and (2000) 4 SCC 484 : 2000 SCC (Cri) 991." 151. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely, because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. Merely, because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the view arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with. 152. In the light of the aforesaid principles laid down, we have considered the evidence and materials on record. Upon such analysis, in our consider view, trial Court committed a serious error in ignoring the material evidence and the conclusions arrived at by the trial Court insofar as, Accused No. 1, 4 and 7 is wholly untenable calling for interference by us. 153. Observing that not merely when findings of the trial Court is perverse and even when there was an erroneous approach and on appreciation of evidence if the High Court comes to a contrary conclusion, the High Court can record conviction, in State of Maharashtra v. Sujay Mangesh Poyarekar (supra), the Supreme Court held as follows: "32. Now, so far as powers of the appellate Court in an appeal against acquittal are concerned, no restrictions have been imposed by the Code on such powers while dealing with an order against acquittal. In an appeal against acquittal, the High Court has full power to reappreciate, review and reweight at large the evidence on which the order of acquittal is founded and to reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate Court. 33. It is no doubt true that in a case of acquittal, there is a double presumption in favour of the respondent-accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed innocent unless he is proved guilty by a competent Court of law. 33. It is no doubt true that in a case of acquittal, there is a double presumption in favour of the respondent-accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced by the trial Court (and certainly not weakened). Nonetheless, it is not correct to say that unless the appellate Court in an appeal against acquittal under challenge is convinced that the finding of acquittal recorded by the trial Court is "perverse", it cannot interfere. If the appellate Court on reappreciation of evidence and keeping in view well-established principles, comes to a contrary conclusion and records conviction, such conviction cannot be said to be contrary to law." Applying the ratio of the above decisions, in our considered view, acquittal of Accused No. 1,4 and 7 and acquittal of Accused No. 2 and 3 under section 120(B) IPC is perverse. Upon reappreciation of evidence and keeping in view the well established principles, we are of the view, the order of acquittal for the offence of conspiracy is to be reversed. 154. Challenging the order of acquittal P.W.8-Amudhavanan has filed Crl. R.C. No. 648 of 2008 under Section 401 Cr.P.C. praying to set aside the judgment of acquittal. 155. Under Section 401 (3) Cr.P.C., High Court cannot convert the finding of acquittal into one of conviction. Jurisdiction of High Court insofar as revisional jurisdiction is concerned is very limited. High Court in revision can set aside the order of acquittal at the instance of private party though State may not have preferred appeal; but this power could be exercised only in cases when there is a glaring defect in the procedure or error in law. (1997) 1 MLJ (Crl) 339 : 1997 (1) LW (Crl) 49. 156. In the instant case, since State has preferred appeal against acquittal under Section 378 Cr.P.C., we do not propose to elaborate further upon the revision. 157. Upon evaluation of evidence, we are of the considered view that acquittal of Accused No. 1, 4 and 7 is perverse and is leading of facts and evidence. The conclusion insofar as Accused No. 1, 4 and 7 is unreasonable and unsustainable warranting interference by us. 158. 157. Upon evaluation of evidence, we are of the considered view that acquittal of Accused No. 1, 4 and 7 is perverse and is leading of facts and evidence. The conclusion insofar as Accused No. 1, 4 and 7 is unreasonable and unsustainable warranting interference by us. 158. In the light of the well established principles of reappreciation of evidence, in our considered view that the findings of the trial Court acquitting Accused No. 1, 4 and 7 are based on erroneous views resulted in ignoring the legal and admissible evidence and therefore, acquittal of Accused No. 1 and 4 cannot be sustained. As co-conspirator, Accused No. 1 and 4 is found guilty under section 120(B) IPC (Charge No. 1 and 2). Accused No. 1-Veldurai and Accused No. 4-Arumugam are found guilty under Sections 302 read with 120(B) IPC(2 counts) (Charge Nos. 11 and 13); Accused No. 1 and 4 are also held guilty under Section 307 read with 120(B) IPC (Charge No. 16). 159. We have already held that the prosecution has proved Accused No. 7-S.A. Raja was party to the conspiracy and that only at his instance the conspiracy has been hatched. For the commission of murder of Aladi Aruna and Ponraj and for the attempt on the life of P.W.6-Socrates as co-conspirator, Accused No. 7 is found guilty under section 120(B) IPC (Charge No. 1). Accused No. 7 is also found guilty under Sections 302 read with 120(B) IPC (2 counts) and under Section 307 read with 120(B) IPC. (Charge Nos. 10, 14 and 17). 160. Question of sentence: For the conviction under Section 302 IPC and 302 read with 34 IPC: Learned Sessions Judge imposed death sentence upon Accused No. 2 and 3. Referring to (1983) SCC (Cri) 681, trial Court held that the aggravating circumstances overwhelmingly supersede the mitigating circumstances. For imposing death sentence, trial Court referred to the following aggravating circumstances: Deceased Aladi Aruna was a popular personality and former Minister holding sizeable influence in the locality. Murder was committed in an extremely brutal, grotesque, diabolical and dastardy manner and the occurrence has caused arousing of intense and extreme indignation of the people of the locality. There was no other alternative except to impose death sentence. 161. Murder was committed in an extremely brutal, grotesque, diabolical and dastardy manner and the occurrence has caused arousing of intense and extreme indignation of the people of the locality. There was no other alternative except to impose death sentence. 161. In Bachan Singh AIR 1980 SC 898 : (1980) 2 SCC 684 , the Constitution Bench considered the following circumstances as aggravating circumstances which may call for imposition of death penalty: (i) if the murder has been committed after previous planning and involves extreme brutality; or (ii) if the murder involves exceptional depravity; or (iii) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder, he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (iv) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a public officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. 162. On the other hand, the following circumstances were considered as mitigating factors: (i) That the offence was committed under the influence of extreme mental or emotional disturbance; (ii) The age of accused. If the accused is young or old, he shall not be sentenced to death; (iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; (iv) The probability that the accused can be reformed and rehabilitated. If the accused is young or old, he shall not be sentenced to death; (iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; (iv) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (iii) and (iv) above; (v) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence; (vi) That the accused acted under the duress or domination of another person; (vii) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 163. Later in Machhi Singh and Others v. State of Punjab (supra) case capital punishment was held to be justified only in "rarest of rare case." 164. In order to apply the guidelines provided in Bachan Singh's supra , two questions were considered relevant in Machhi Singh and Others v. State of Punjab (supra) case which are as follows: (i) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (ii) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? 165. The following guidelines, which would have to be applied to the facts of each individual case where the question of imposition of death sentence arises: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty, the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. (See (2003) 3 Crimes 285 (SC)). 166. To award death sentence, the Court should always ask itself the following questions and then test it to determine whether it is a rarest of rare case, which warrants death sentence to the accused. They are : (i) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? and (ii) Whether the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? (Chandrasekar @ (2003) 3 Crimes 134 (Mad) (DB)). 167. Referring to various case laws in (2009) 2 MLJ (Crl) 1092, the Supreme Court has summarised the position as under: "188. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by-case basis with death sentence not to be awarded save in the 'rarest of rare' case where reform is not possible...." 168. Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by-case basis with death sentence not to be awarded save in the 'rarest of rare' case where reform is not possible...." 168. Contending that the present case is not 'rarest of rare' case warranting capital punishment, learned counsel for Accused No. 2 and 3 relied upon the decisions in Machhi Singh and Others v. State of Punjab (supra) ; (1984) 1 MLJ (Crl) 623 (Mad); (2001) SCC (Cri) 278 : (2001) 2 SCC 28 ; AIR 2004 SC 21 : (2004) (Cri) 22 : (2004) 1 SCC 113 : (2004) 1 MLJ (Cri) 135; (2007) 2 MLJ (Cri) 1934 (SC) : (2006) 4 Crimes 274; (2007) 1 MLJ (Cri) 634 (SC) : (2007) Crl. LJ 298; Bishnu Prasad Sinha and Another v. State of Assam (2007) 1 Crimes 147 (SC); (2007) 1 Crimes 54 (SC); (2007) 4 Crimes 131 (SC); (2008) 1 Crimes 10 (SC); (2008) 3 MLJ (Cri) 875 : (2008) 3 Crimes 215 (SC); (2008) 3 Crimes 245 (SC) and (2008) 1 MLJ (Crl) 892 (SC). 169. Observing that balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised, in (2007) 2 SCC (Cri) 2, the Supreme Court held as follows: "24. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered, (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?; (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" 170. The above decisions would make it clear that the Court should see the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances. All the mitigating and aggravating circumstances should be considered. The above decisions would make it clear that the Court should see the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances. All the mitigating and aggravating circumstances should be considered. The Court should see whether there is anything uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. The Court must take note of aggravating and mitigating circumstances to prepare a balance sheet for awarding sentence. 171. In the light of the well settled principles, let us now examine the instant case - whether it warrants imposing capital punishment. We do not find that the reasons assigned by the trial Court disclose any special reasons for imposing death sentence. The discretion conferred upon the Court in making choice of the sentence. The discretion granted to the Court must be exercised judiciously. Requirement of law to assign reasons should not therefore be an empty formality. 172. The circumstances in which capital punishment can be imposed is well settled. Capital punishment can be imposed when there are aggravating circumstances such as accused having criminal record in the past, the manner of committing the crime, shocking conscience of the public, the question would be whether case of the accused could be one of 'rarest of rare' cases so that death sentence is required to be imposed. 173. In the instant case, for imposing death sentence the learned Sessions Judge assigned the reasons: (i) deceased Aladi Aruna was a public personality; (ii) murder was cold blooded and diabolical. Mere fact that deceased was a public figure is not a ground for imposing death sentence. Like wise, it was cold blooded and diabolical is also not a ground for imposing death sentence. 174. Number of Supreme Court cases could be enumerated where 'death penalty' was modified as 'life imprisonment'. Some of which are: In (2007) 14 Scale 428 - the accused had been convicted of murder and rape and accordingly sentenced to death by the lower Courts. 174. Number of Supreme Court cases could be enumerated where 'death penalty' was modified as 'life imprisonment'. Some of which are: In (2007) 14 Scale 428 - the accused had been convicted of murder and rape and accordingly sentenced to death by the lower Courts. Supreme Court in appeal, acquitting the accused only of the charge of rape because of the lack of evidence, noted that since the charge of rape formed a substantial portion of reasoning for causing the death, the death sentence on the accused could no longer be sustained, once he was acquitted on that charge. The sentence was accordingly altered to one of life imprisonment. In Amrit Singh v. State of Punjab (supra) - the accused had raped a minor girl. The victim died a painful death because of bleeding from her private parts. The Court, however, noted that the accused might not have had the intention of murdering the victim, but her death was only the unfortunate inevitable consequence of the crime, hence it did not fall within the rarest of rare cases. In Bishnu Prasad Sinha and Another v. State of Assam (supra) - Supreme Court commuted the death penalty of the accused on the ground that the prosecution case was entirely based on circumstantial evidence. In (2009) 1 Scale 713 - the accused had brutally attacked with axes the husband of their sister, who was having an illicit relationship with another woman. The trial Court had found two of the accused guilty and sentenced them to death. In appeal the High Court acquitted the accused because of lack of evidence. This Court in appeal set aside the judgment of acquittal passed by the High Court but noticed that the case before it did not fall in the rarest of rare and deserved only a life imprisonment. 175. Referring to various decisions, in (2009) 2 MLJ (Crl) 1092 (SC), even in a case of diabolical murder committed, death sentence was modified as life imprisonment. 176. Though the murder was planned one and for gain, in our considered view the present case cannot be said to be one of 'rarest of rare' case warranting imposition of capital punishment. Death sentence imposed upon Accused No. 2 and 3 is altered to one of life imprisonment. 177. 176. Though the murder was planned one and for gain, in our considered view the present case cannot be said to be one of 'rarest of rare' case warranting imposition of capital punishment. Death sentence imposed upon Accused No. 2 and 3 is altered to one of life imprisonment. 177. R.T. No. 2 of 2008: In exercise of powers under Section 368(b) Cr.P.C., 'death sentence' imposed upon Accused No. 2 and 3 (Appellants in C.A. Nos. 209 & 237 of 2008 respectively) in S.C. No. 62 of 2006 dated 16.4.2008 on the file of Principal Sessions Judge, Tirunelveli is altered to one of 'life imprisonment' on each of Accused No. 2 and 3 and to pay fine of Rs. 5,000/- each in default to undergo R.I. for six months. 178. C.A. Nos. 237 of 2008 (Accused No. 2-Bala @ Balamurugan): In the result, Conviction of Accused No. 2 under Section 302 IPC (Charge No. 9) is confirmed and conviction under Sections 302 read with 34 IPC (Charge No. 13) is altered into conviction under Sections 302 read with 120(B) IPC. Conviction under Section 307 IPC (Charge No. 15) and under Section 341 IPC (Charge No. 7) are also confirmed. For the conviction under Sections 302 (Charge No. 9)and 302 read with 120(B) IPC (Charge No. 13) death sentence imposed upon Accused No. 2-Bala @ Balamurugan (Appellant in C.A. No. 237 of 2008) is altered into life imprisonment in each count and to pay fine of Rs. 5,000/- each in default to undergo six month R.I. Each of the life imprisonment is ordered to run concurrently. For the conviction under Section 307 IPC (Charge No. 15), ten years R.I. imposed upon Accused No. 2 is modified as three years Rigorous Imprisonment. Conviction of Accused No. 2 under Section 341 IPC (Charge No. 7) and sentence imposed upon Accused No. 2 is confirmed. A1l the sentences in respect of Accused No. 2 are ordered to run concurrently. 179. C.A. Nos. 209 of 2008 (Accused No. 3-Alagar @ Valarntha Alagar): In the result, Conviction of Accused No. 3 under Section 302 IPC (Charge No. 12) is confirmed and conviction under Sections 302 read with 34 IPC (Charge No. 11) is altered into conviction under Sections 302 read with 120(B) IPC. Conviction under Section 307 IPC (Charge No. 15) and under Section 341 IPC (Charge No. 7) are also confirmed. Conviction under Section 307 IPC (Charge No. 15) and under Section 341 IPC (Charge No. 7) are also confirmed. For the conviction under Sections 302 (Charge No. 12) and 302 read with 120(B) IPC (Charge No. 11) death sentence imposed upon Accused No. 3-Alagar @ Valarntha Alagar (Appellant in C.A. No. 209 of 2008) is altered into life imprisonment in each count and to pay fine of Rs. 5,000/- each in default to undergo six month R.I. Each of the life imprisonment is ordered to run concurrently. For the conviction under Section 307 IPC (Charge No. 15), ten years R.I. imposed upon Accused No. 3 is modified as three years Rigorous Imprisonment. Conviction of Accused No. 3 under Section 341 IPC (Charge No. 7) and sentence imposed upon Accused No. 3 is confirmed. A1l the sentences in respect of Accused No. 3 are ordered to run concurrently. 180. C.A. No. 270 of 2008: In the result, Acquittal of A1-Veldurai, A4-Arumugam and A7-S.A. Raja is reversed and the appeal preferred by the State is partly allowed. Accused No. 1-Veldurai: Accused No. 1-Veldurai is convicted under Section 120(B) read with 302 IPC (Charge No. 1), 302 read with 120(B) IPC (2 counts) (Charges No. 11 & 13) and 307 read with 120(B) IPC (Charge No. 16). No separate sentence is imposed for conviction under Section 120(B) read with 302 IPC (Charge No. 1). A1-Veldurai is sentenced to undergo life imprisonment in each count for the conviction under Sections 302 read with 120(B) IPC (Charges No. 11 & 13) and to pay fine of Rs. 5,000/- each in default to undergo six months R.I. Each of the life imprisonment is ordered to run concurrently. For the conviction under Section 307 read with 120(B) IPC (Charge No. 16), A1-Veldurai is sentenced to undergo three years Rigorous Imprisonment. Conviction of Accused No. 1-Veldurai under Section 25(1B) (a) of Arms Act and sentence imposed upon him is confirmed. All the sentences in respect of Accused No. 1 are ordered to run concurrently. Accused No. 4-Arumugam: Accused No. 4-Arumugam is convicted under Section 120(B) read with 302 IPC (Charge No. 2), 302 read with 120(B) IPC (2 counts) (Charges No. 11 & 13) and 307 read with 120(B) IPC (Charge No. 16). No separate sentence is imposed for conviction under Section 120(B) read with 302 IPC (Charge No. 2). Accused No. 4-Arumugam: Accused No. 4-Arumugam is convicted under Section 120(B) read with 302 IPC (Charge No. 2), 302 read with 120(B) IPC (2 counts) (Charges No. 11 & 13) and 307 read with 120(B) IPC (Charge No. 16). No separate sentence is imposed for conviction under Section 120(B) read with 302 IPC (Charge No. 2). A4-Arumugam is sentenced to undergo life imprisonment in each count for the conviction under Sections 302 read with 120(B) IPC (Charges No. 11 and 13) and to pay fine of Rs. 5,000/- each in default to undergo six months R.I. Each of the life imprisonment is ordered to run concurrently. For the conviction under Section 307 read with 120(B) IPC (Charge No. 16), A4-Arumugam is sentenced to undergo three years Rigorous Imprisonment. All the sentences in respect of Accused No. 4 are ordered to run concurrently. Accused No. 7-S.A. Raja: Accused No. 7-S.A. Raja is convicted under Section 120(B) read with 302 IPC (Charge No. 1), 302 read with 120(B) IPC (2 counts) (Charges No. 10 and 14) and 307 read with 120(B) IPC (Charge No. 17). No separate sentence is imposed for conviction under Section 120(B) read with 302 IPC (Charge No. 1). A7-S.A. Raja is sentenced to undergo life imprisonment in each count for the conviction under Sections 302 read with 120(B) IPC (Charges No. 10 and 14) and to pay fine of Rs. 5,000/- each in default to undergo six months R.I. Each of the life imprisonment is ordered to run concurrently. For the conviction under Section 307 read with 120(B) IPC (Charge No. 17), A7-S.A. Raja is sentenced to undergo three years Rigorous Imprisonment. All the sentences in respect of Accused No. 7 are ordered to run concurrently. Accused No. 5, 6 and 8: Acquittal of Accused No. 5-Paramasivan, Accused No. 6-Kannan and Accused No. 8-Arjunan is confirmed. Learned Principal Sessions Judge, Tirunelveli is directed to take steps to secure Accused No. 1, 4 and 7 and commit them to prison to undergo the period of sentence imposed. 181. Crl. R.C. No. 648 of 2008: In view of the conclusions in C.A. No. 270 of 2008, the Crl. R.C. No. 648 of 2008 is disposed. Ordered accordingly.