M DHARMALINGAM Vs. STATE

JUDGEMENT

(1.) THE appellant, who is the second accused in the case, has come forward with this appeal challenging his conviction and sentence passed by the learned Second Additional District and Sessions Judge, Salem, in S.C.No. 258 of 1995 by the judgment dated 19.2.1999, convicted him for the offences under Section 304 (II) I.P.C. and sentenced him to three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months simple imprisonment.

(2.) THERE are totally 30 accused in this case. A9, A11, A13, A14, A16 to A30 have been charged under Section 147 I.P.C.. A1 to A8, A15 have been charged under Section 148 I.P.C. A1 to A3 have been charged under Section 4 of Explosive Substances Act, 1908, and they have also been charged under Section 324, I.P.C. in respect of causing injury to P.Ws. 3 to 4 and the deceased. A4 has been charged under Section 324 in respect of causing injury to P.W.2. A5 and A6 have been charged under Section 324 read with Section 34 I.P.C. in respect of attacking P.W.3. A2 has been charged under Section 307 I.P.C. in respect of attacking P.W.3. A3 has been charged under Section 324 I.P.C in respect of attacking P.W.4. A7 has been charged under Section 324 I.P.C. attacking one witness Malarkodi (not examined). A9 and A10 have been charged under Section 427 I.P.C. in respect of causing damage to the shop of P.W.2. A9 and A10 have been charged under Section 427 I.P.C. in respect of causing damage to the house of one Koolaian @ Periasamy (not examined). A9 to A11, A13 and A14 have been charged under Section 427 I.P.C. in respect of causing damage to the house of one Anjaliammal (not examined). A1 to A4, A11 and A16 to A18 have been charged under Section 341 I.P.C. for wrongly restraining the deceased. A1 and A2 have been charged under Section 302 read with Section 34 I.P.C. for causing death of the deceased. A3 to A11 and A13 to A30 have been charged under Section 302 read with Section 149 I.P.C.

(3.) MR.T. Sudandiram, learned counsel appearing for the appellant/accused has contended that the prosecution has not proved its case against the appellant by adducing clear, cogent and convincing evidence. The learned counsel further submitted that the learned trial Judge has disbelieved the evidence of the eye-witnesses viz., P.Ws.1, 6 and 17 in respect of the accused viz., A1, A3, A6 and A7 but convicted A2, the appellant herein, by placing reliance on the very same evidence of the eye-witnesses P.Ws.1, 6 and 17. The learned counsel for the appellant also further contended that the learned trial Judge has not placed reliance on the dying declaration, Ex.P.28, in respect of the overt acts alleged against A1, A3, A6 and A7. But having held so when the deceased in his dying declaration, Ex.P.28, has not stated about A2 stabbing him on his back with crowbar, on the ground that P.Ws.1, 6 and 17 have categorically stated that the second accused stabbed the deceased with crowbar on his back, the trial Judge has convicted A2 and thereby committed serious error of law. The learned counsel for the appellant also placed reliance on a decision of the Apex Court in Prem Singh v. State of Punjab AIR 1977 SC 673: 1976 (1) SCC 805 has held that the conviction of the accused, on the basis of the testimony of two eye-witnesses, who were disbelieved with respect to the other four co-accused, is improper.