JUDGMENT : P.N. PRAKASH, J. 1. This criminal appeal has been filed against the judgment and order dated 24.10.2016 passed in S.C. No. 238 of 2015 on the file of the I Additional District and Sessions Court, (Sessions Courts for Trial of Bomb Blast Cases), Bomb Blast Cases (FAC), Coimbatore. 2. The prosecution story runs thus: 2.1 The deceased Murugan and his wife Selvi (PW-1) were construction workers at a construction site in Sivanandhapuram, Coimbatore, during the relevant period. On 15.02.2013, they received information that Murugan's brother was sick and therefore, they decided to visit him. After completing their day's work, the couple went to Sivanandhapuram bus stand to board a bus to Gandhipuram Central Bus Stand for the purpose of taking a bus to Salem. At Sivanandhapuram bus stand, Murugan felt hungry, but, Selvi (PW-1) told him that she was not hungry and therefore, Murugan went to a nearby Muniyandi Vilas hotel. Selvi (PW-1) was waiting outside the hotel and at that time, two persons viz. Kalidas (A1) and Kaliappan (A2) made snide remarks at her and courted her, but, she did not bother to respond to them. After Murugan returned, the couple boarded a bus to Gandhipuram Central Bus Stand and on reaching there, they went to platform no. 4 for boarding a bus to Salem. The time then was around 10.30 p.m. Murugan made Selvi (PW-1) sit in a bus that was bound for Salem and went to a nearby shop to buy chips and water bottle. While Murugan was away, Kalidas (A1) and Kaliappan (A2) entered the bus and Kalidas (A1) openly made sexual advances to Selvi (PW-1), but, she did not respond. However, on seeing Murugan, the duo climbed down from the bus, but, picked up a quarrel with Murugan. Kalidas (A1) asked Murugan as to whose wife he has picked up and come, at which, Murugan got infuriated and a quarrel ensued, in which, Selvi (PW-1) also joined. Selvi (PW-1) told Murugan that it was these two persons, who had teased her near Muniyandi Vilas in Sivanandhapuram. Murugan slapped Kalidas (A1) and at that time, it is alleged that Kaliappan (A2) pushed Murugan and when Murugan fell, Kalidas (A1) whipped out a knife and stabbed in his abdomen and thereafter, Kalidas (A1) and Kaliappan (A2) fled. Selvi (PW-1) told Murugan that it was these two persons, who had teased her near Muniyandi Vilas in Sivanandhapuram. Murugan slapped Kalidas (A1) and at that time, it is alleged that Kaliappan (A2) pushed Murugan and when Murugan fell, Kalidas (A1) whipped out a knife and stabbed in his abdomen and thereafter, Kalidas (A1) and Kaliappan (A2) fled. Selvi (PW-1) made a hue and cry, which attracted several people and one of them was Prakash (PW-2), who is an auto driver. 2.2 Murugan was taken in the auto-rickshaw of Prakash (PW-2) to the Government Hospital, Coimbatore, by Selvi (PW-1), where, Dr.Prasannakumar (PW-11) examined Murugan at 11.05 p.m. on 15.02.2013 and noted a stab injury in his abdomen in the accident register copy (Ex-P13). 2.3 Thereafter, Dr.Prasannakumar (PW-11) sent an intimation (Ex-P14) to the police and on receipt of the same, Mohanajothi (PW-12), Sub-Inspector of Police, came to the Government Hospital, Coimbatore and recorded the statement (Ex-P1) of Selvi (PW-1), based on which, he (PW-12) registered a case in B-3, Kattur Police Station Crime No. 358 of 2013 on 16.02.2013 at 5.00 a.m. for the offence under Section 307 IPC against two unknown accused and prepared the printed FIR (Ex-P15), which reached the jurisdictional Magistrate at 5.00 p.m. on the same day. 2.4 Murugan succumbed to the injuries at 5.30 a.m. on 16.02.2013 and on receipt of the death intimation (Ex-P25), the case was altered from one under Section 307 IPC to one under Section 302 IPC vide alteration report (Ex-P26). 2.5 Investigation of the case was taken over by Ravikumar (PW-16), Inspector of Police, who went to the place of occurrence and prepared an observation mahazar (Ex-P9) and rough sketch (Ex-P24). He (PW-16) also conducted inquest over the body of Murugan in the Government Hospital, Coimbatore and the inquest report was marked as Ex-P27. 2.6 Autopsy on the body of Murugan was performed by Dr. Kuzhandhaivel (PW-4), who issued postmortem certificate (Ex-P4), wherein, he has opined as under: “Opinion: The deceased would appear to have died of stab injury abdomen and its corresponding internal injuries and its complications.” 2.7 While investigation was in progress, Kaliappan (A2) surrendered before the Judicial Magistrate Court No. II, Tiruppur, on 18.02.2013 and Kalidas (A1) surrendered before the Judicial Magistrate Court No. II, Madurai, on 04.03.2013. 2.8 On getting information about their surrender, the Investigating Officer (PW-16) took Kaliappan (A2) into custody on 26.02.2013 and based on his confession statement (Ex-P11), recovered a bloodstained shirt (M.O.5) under the cover of a mahazar (Ex-P12) in the presence of witnesses Vijayababu (PW-10) and Stephen (not examined). 2.9 Kalidas (A1) was taken into custody on 08.03.2013 and based on his confession statement (Ex-P7), a bloodstained knife (M.O.1) and bloodstained shirt (M.O.2) were recovered under the cover of a mahazar (Ex-P8) in the presence of witnesses Muthukumar (PW-5) and Loganathan (not examined). 2.10 The Investigating Officer (PW-16) also had the statements of some of the witnesses recorded under Section 164 Cr.P.C. 2.11 At the request of the Investigating Officer (PW-16), K. Lingam (PW-15), Judicial Magistrate No. IV, Salem, conducted a Test Identification Parade for the witnesses Selvi (PW-1), Prakash (PW-2) and Rajendran (not examined) to identify Kaliappan (A2) on 08.03.2013. In the Test Identification Parade, Selvi (PW-1) was able to identify Kaliappan (A2) only in one round, whereas, Prakash (PW-2) was able to identify Kaliappan (A2) in all the three rounds. 2.12 After completing the investigation, the Investigating Officer (PW-16) filed a final report in P.R.C. No. 21 of 2013 before the Judicial Magistrate Court No. II, Coimbatore, against Kalidas (A1) and Kaliappan (A2) for the offences under Sections 302 and 302 r/w 34 IPC. 2.13 On appearance of Kalidas (A1) and Kaliappan (A2), the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C. No. 238 of 2015 and was made over to the I Additional District and Sessions Court, (Sessions Courts for Trial of Bomb Blast Cases), Bomb Blast Cases (FAC), Coimbatore, for trial. 2.14 The trial Court framed a charge against Kalidas (A1) for the offence under Section 302 IPC and a charge against Kaliappan (A2) for the offence under Section 302 r/w 34 IPC. When questioned, the accused pleaded not guilty. 2.15 To prove the case, the prosecution examined sixteen witnesses and marked twenty seven exhibits and five material objects. 2.16 When Kalidas (A1) and Kaliappan (A2) were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same. No witness was examined nor any document marked on behalf of the accused. 2.15 To prove the case, the prosecution examined sixteen witnesses and marked twenty seven exhibits and five material objects. 2.16 When Kalidas (A1) and Kaliappan (A2) were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same. No witness was examined nor any document marked on behalf of the accused. 2.17 After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 24.10.2016 in S.C. No. 238 of 2015, has convicted and sentenced Kalidas (A1) and Kaliappan (A2) as under: Accused Provision under which convicted Sentence Kalidas (A1) Section 302 IPC Life imprisonment and fine of Rs. 5,000/- in default to undergo three months simple imprisonment. Kaliappan (A2) Section 302 r/w 109 IPC Life imprisonment and fine of Rs. 5,000/- in default to undergo three months simple imprisonment. 2.18 Challenging the above conviction and sentence, Kalidas (A1) filed Crl. Appeal No. 55 of 2017 before this Court, which was heard by a Division Bench of this Court and the same was dismissed on 03.03.2017. Thereafter, Kaliappan (A2) has filed the present appeal with a delay of 83 days, which was condoned by this Court. 3. Heard Mr. Radha Pandian, learned counsel for Kaliappan (A2) and Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent/State. 4. The learned counsel for Kaliappan (A2) submitted that for convicting Kaliappan (A2) for the offence under Section 302 r/w 109 IPC, there should be some evidence to show that he (A2) has abetted the act of Kalidas (A1), as defined under Section 107 IPC. 5. M. Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent/State. 4. The learned counsel for Kaliappan (A2) submitted that for convicting Kaliappan (A2) for the offence under Section 302 r/w 109 IPC, there should be some evidence to show that he (A2) has abetted the act of Kalidas (A1), as defined under Section 107 IPC. 5. Selvi (PW-1), in her evidence, has stated that on 15.02.2013, she and her husband came to Sivanandhapuram bus stand for boarding a bus to Gandhipuram Central Bus Stand; at that time, her husband felt hungry and so, he went to Muniyandi Vilas, which was nearby; since, she was not hungry, she waited outside; at that time, Kalidas (A1) and Kaliappan (A2) came near her and made vulgar remarks, but, she did not respond to them; after her husband returned, they both went to Gandhipuram Central Bus Stand, where, her husband made her sit in a bus bound for Salem and went to a shop to buy chips and water bottle; at that time, Kalidas (A1) and Kaliappan (A2) came inside the bus and picked up a lewd conversation with her; she turned her face; on seeing her husband, Kaliappan (A2) stated in Tamil, the free translation of which is that “let us go away, her husband is coming” however, when there were alighting from the bus, Kalidas (A1) asked her husband in Tamil, the free translation of which is that “whose wife you have picked up and come” which infuriated her husband and so, he slapped Kalidas (A1); she also joined the quarrel and told her husband that it was these two persons, who had teased her near Muniyandi Vilas. However, Selvi (PW-1) has stated that Kaliappan (A2) pushed Murugan and thereafter, Kalidas (A1) whipped out a knife and stabbed him. 6. The learned counsel for Kaliappan (A2) submitted that except the solitary statement of Selvi (PW-1) that Kaliappan (A2) pushed her husband Murugan, there is absolutely no other evidence to corroborate the same. However, Selvi (PW-1) has stated that Kaliappan (A2) pushed Murugan and thereafter, Kalidas (A1) whipped out a knife and stabbed him. 6. The learned counsel for Kaliappan (A2) submitted that except the solitary statement of Selvi (PW-1) that Kaliappan (A2) pushed her husband Murugan, there is absolutely no other evidence to corroborate the same. He took us through the evidence of Prakash (PW-2) and Palanivel (PW-6), driver of the bus that was bound for Salem, who have corroborated the evidence of Selvi (PW-1) with regard to the quarrel that happened between Murugan and Kalidas (A1); however, none of them has stated that Kaliappan (A2) had pushed Murugan; even in the complaint (Ex-P1), Selvi (PW-1) had not stated that Kaliappan (A2) had pushed her husband down. He further submitted that even if the entire testimonies of Selvi (PW-1), Prakash (PW-2) and Palanivel (PW-6) are accepted, what stands proved is that, Kalidas (A1) and Kaliappan (A2) had teased Selvi (PW-1) and on seeing Selvi's (PWs) husband, Kaliappan (A2) wanted to flee and it was Kalidas (A1), who had picked up a quarrel with Murugan and received a slap from him and in retaliation, stabbed Murugan. It is his further submission that there is absolutely no shred of evidence to show that Kaliappan (A2) had instigated Kalidas (A1) to stab Murugan. We find sufficient force in the above submission made by the learned counsel for Kaliappan (A2). There is no evidence to show that Kaliappan (A2) instigated Kalidas (A1) to attack Murugan nor is it the case of the prosecution that the attack was pursuant to a conspiracy. 7. We were not able to find any evidence to sustain the charge under Section 34 IPC, as Kaliappan (A2) only shared a common intention to tease Selvi (PW-1) and not to commit the murder of her husband Murugan. Therefore, we find it difficult to sustain the conviction of Kaliappan (A2) either with the aid of Section 109 IPC or with the aid of Section 34 IPC. 8. Therefore, we find it difficult to sustain the conviction of Kaliappan (A2) either with the aid of Section 109 IPC or with the aid of Section 34 IPC. 8. From the proved facts, Kaliappan (A2) could have been convicted of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 (for brevity “the TNPHW Act”) or under Section 354-A IPC, but, the maximum punishment for these penal provisions is imprisonment for a period of three years, whereas, Kaliappan (A2) has been in incarceration since 2016 and has spent almost five years in prison. 9. In view of the foregoing: (i) The judgment and order dated 24.10.2016 passed in S.C. No. 238 of 2015 on the file of the I Additional District and Sessions Court, (Sessions Courts for Trial of Bomb Blast Cases), Bomb Blast Cases (FAC), Coimbatore, is set aside as regards Kaliappan (A2) alone. (ii) Kaliappan (A2) is acquitted of the charge under Section 302 r/w 109 IPC framed against him. (iii) Fine amount, if any, paid by Kaliappan (A2), shall be refunded to him. (iv) Kaliappan (A2) shall be released forthwith, if he is not required in any other case. 10. In the result, this criminal appeal stands allowed.