MATHI ALIAS MATHIAZHAGAN Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) THE Criminal Appeal arises out of the conviction and sentence, dated 28.1.2003 in S.C.No.244 of 2002 on the file of the Additional Sessions Court, Nagapattinam, whereby, first appellant-A-1, second appellant-A-2, third appellant-A-3 and fifth appellant-A-5 were convicted for the offence under Section 147 IPC and sentenced to undergo three months' rigorous imprisonment, the fourth appellant-A-4 was convicted for the offence under Section 148 IPC and sentenced to undergo six months' rigorous imprisonment, the third appellant-A-3 was also convicted for the offence under Section 323 IPC and the first appellant-A-1, second appellant-A-2, fourth appellant-A-4 and fifth appellant-A-5 were also convicted for the offence under Section 323 read with 149 IPC and each of them were sentenced to undergo two months' rigorous imprisonment, the fourth appellant-A-4 was also convicted for the offence under Section 304 (Part-2) IPC and the first appellant-A-1, second appellant-A-2, third appellant-A-3 and fifth appellant-A-5 were also convicted for the offence under Section 304 (Part-2) read with 149 IPC and each of them were sentenced to undergo five years' rigorous imprisonment. THE sentences imposed on all the accused were directed to run concurrently.

(2.) THE case of the prosecution is as follows: (a) THE respondent-Inspector of Police, Vaduvur, Mannargudi Taluk, filed charge sheet against the accused in Crime No.12 of 2002 for the offences under Sections 147, 148, 323, 302 and 302 read with 149 IPC. (b) On 15.1.2002 at about 8 p.m., when P.W.1 Sathish @ Sathishkumar, P.W.4 Ilayaraja, P.W.10 Sankar and P.W.11 Madhanraj were all at Peraiyur Bride Bus Stand, A-3 Ramesh along with A-1 and one Kamaraj, drove the cycle and dashed against P.W.1. THEre was wordy altercation between both parties. Subsequently, the matter has been mediated. P.W.10 boarded the bus and left the place. P.W.11 left the place. (c) THEn, P.W.1 and P.W.4 proceeded to their house. THEy reached Vinayagar Temple. At that time at about 9.30 p.m., the deceased Nivas came there and they were chatting at the aforesaid Vinayagar Temple. At that time, A-4 Sudhakar alias Selva Sudhakar came with beer bottle. A-1 to A-4 who are none other than the brothers and their cousin brother A-5, came there and they picked up quarrel with them. A-1 and A-3 caught hold of the right hand of the deceased and A-2 and A-5 caught hold of the left hand of the deceased. At that time, A-4 broken the beer bottle and stabbed the deceased on his right side of his chest and he sustained injuries. (d) THE above occurrence was witnessed by P.W.4 Ilayaraja, P.W.5 Anbazhagan, P.W.6 Ayyakannu and P.W.7 Marikannu and P.W.6, the father of the deceased then immediately took the deceased to hospital, where P.W.2 Dr.Senguttuvan declared him dead and issued Ex.A-2 accident register, wherein the following injuries were noted:

(3.) LEARNED counsel further urged that merely because the accused admitted their presence while they were giving their statement under Section 313 Cr.P.C., it is not a substantive piece of evidence and it can be used for appreciating the evidence let in by the prosecution. The statement given by A-5 under Section 313 Cr.P.C. cannot be made the sole basis for conviction. LEARNED counsel for the appellants relied on the decision of the Supreme Court reported in 2003 SCC (Cri) 1514 (Mohan Singh Vs. Prem Singh) and prayed for acquittal of the accused from all the charges.