APPARU GOUNDER ALIAS CHINNASAMY GOUNDER Vs. STATE

JUDGEMENT

(1.) CHALLENGE is made to a judgment of the Principal Sessions Division, Erode, made in S.C.No.135 of 2005 whereby these appellants four in number along with A-2 stood charged and tried for the offences as follows:

(2.) ON trial, A-1 was found guilty under Sec.120-B read with 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- with default sentence. A-3 to A-5 were found guilty under Sec.364 of IPC and directed to suffer 5 years Rigorous Imprisonment and to pay a fine of Rs.1000/- each with default sentence. A-3 to A-5 were also found guilty under Sec.302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- with default sentence. A-2 was acquitted of the charge levelled against him, while A-1 and A-3 to A-5 were acquitted of the other charge.

(3.) THE learned Senior Counsel Mr.Ashok Kumar arguing for A-1, A-4 and A-5, in his sincere attempt of assailing the judgment of the Court below made the following submissions: (i) In the instant case, the prosecution commenced its case with the theory of conspiracy. According to the prosecution, P.W.8 was the only witness in that regard. According to him, he was just proceeding towards the garden of A-1 at about 8.00 P.M., 10 days prior to the occurrence, and at that time, A-1 was hatching up a conspiracy with other two persons in order to finish off the deceased. It is pertinent to point out that against A-1 to A-3, a charge was framed for conspiracy but, the lower Court has acquitted A-2 and A-3 on the charge of conspiracy and found A-1 alone guilty under Sec.120-B which has got to be set aside on the legal ground for the simple reason that it is not the case of the prosecution that A-1 hatched up conspiracy along with some others, but only with A-2 and A-3. In order to substantiate the same, a charge has been drawn for conspiracy that was hatched up between A-1 and A-2 and A-3. A-2 and A-3 have been acquitted, and hence A-1 should have also been acquitted on that ground. Thus, the conspiracy as regards A-1 fails. If the theory of conspiracy goes, then A-1 could not be roped in for murder. (ii) As far as the evidence of P.W.8 was concerned, it should have been rejected by the trial Court for the reason that according to P.W.8, within 10 days prior to the occurrence, he went to the house of the deceased, and the wife of the deceased informed him that the deceased who went out, did not return, and she made a request for searching him, and then, he went in search of him. On the day when the conspiracy was hatched up, though he was able to hear the entire conspiracy to finish off the deceased, he did not reveal the same to anybody immediately. That apart, he went to the extent of stating that A-1 looked at him, and shouted as to his presence. If to be so, it is quite natural one would expect him to inform to his wife or anybody for the matter but, he has not informed to anybody. Thus, it would be quite clear that P.W.8 was nothing but a planted witness in order to make it convenient for a case of conspiracy but, the prosecution has thoroughly failed. It is not the case of the prosecution that P.W.8 was present at the time of the occurrence. In such circumstances, as far as A-1 was concerned, the evidence was lacking, and in fact, there was no evidence at all. Hence, A-1 was entitled for acquittal.