RAJA ALIAS MUGAPPAIR RAJA Vs. STATE

JUDGEMENT

(1.) (Prayer: These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Thiruvallur District made in S.C.No.2 of 2007, dated 14.11.2007.) Common Judgment M.CHOCKALINGAM, J. This judgment shall govern the following criminal appeals namely C.A.Nos.70/2008 by A-1 and A-12, 35/2008 by A-2, 747/2008 by A-4 to A-7, 214/2008 by A-9, 297/2008 by A-8 and A-10, 1041/2007 by A-11, 252/2008 by A-14, 160/2008 by A-15, 327/2008 by A-16 and A-17 and 213/2008 by A-18. 2.All these appeals challenge a judgment of the Principal Sessions Division, Thiruvallur, made in S.C.No.2 of 2007 whereby the appellants in these ten appeals along with A-3 and A-13 who were absconding, stood charged, tried and found guilty as follows: Table The sentences imposed on the respective accused were ordered to run concurrently. 3. Though 18 accused were originally arrayed at the time of the framing of the charge before the trial Court, since A-3 and A-13 were absconding, in their regard the case was split up, and the trial was proceeded against 16 accused who are the appellants herein. 4. The necessary facts for the disposal of these appeals can be stated thus: (a) P.W.6 is the wife of the deceased Ravi. He was carrying on the real estate business in Yadaval Street, Padi, where the occurrence has taken place. During the relevant time, he was the Town Secretary of AIADMK party of Ambattur. A-1 and A-11 also belonged to the same political party. A-12, A-13 and A-14 were close associates of A-1 and were also assisting A-1 in his activities. The deceased, an active member of the said political party, was functioning as a separate group and was opposing A-1 and A-11 and thereby curtailed the development in the party, and thus they developed enmity towards the deceased. A-1 was arrested in a case registered by Korattur Police Station in Crime No.568 of 2006 under Sec.8(c) r/w 20(b) of the NDPS Act in connection with the alleged possession of ganja. He strongly believed that he was arrested only on the instigation of the deceased, and hence he decided to do away with his life. A-11 also felt that he was also arrested in a case registered by JJ Nagar Police Station in Crime No.661 of 2004 under Sections 341, 352, 307 and 506(ii) of IPC on a false complaint of the deceased, and thus he developed grudge against the deceased. Pursuant to the same, on or before 2.6.2006 in Padi within the police limits of Korattur, A-1 to A-14 hatched up a conspiracy along with one Naoor Meeran, who subsequently died pending investigation of this case in an encounter, and A-2 to A-7 were hired for the purpose of murdering the deceased. A-1 advanced Rs.3000/- for the purchase of weapons. A-11 on his part agreed to finance A-1 for causing the murder of Ravi and to save him from the criminal proceedings after the completion of the transaction. (b) On 1.6.2006, A-1 booked a taxi which was driven by P.W.9. A-1 and six others travelled in the above vehicle and waited before the office of the deceased from 9.00 A.M. till Noon. But the deceased did not come back to his office. Thereafter, they went to Ambattur and again returned to the office of the deceased. Even then, he was not found, and hence they returned. (c) On 2.6.2006 at about 8.00 A.M., A-1 hired an auto driven by P.W.7 and went to Padi lake area. He took A-8 from there, and both of them met A-9. Thereafter, all of them went to Yadaval Street, where the real estate business office of the deceased was situated. A-1 got down and brought one Gokul. Thereafter, A-1 went to the ATM Centre to draw money. Then, he went to the wine shop. At about 9.30 A.M., after meeting one Nalliappan at Anna Nagar, the deceased along with P.W.1 the driver of the deceased, and one Parthasarathy went to his office. At about 10.30 A.M., the deceased was actually inside his cabin when P.Ws.1 to 3 were outside. At that time, six persons came there and enquired P.W.2, the office boy, and P.W.3, an employee of the deceased, about the deceased telling that they want to meet him. P.Ws.2 and 3 replied that he was doing pooja inside, and hence they were to wait outside. Despite the same, out of six, four persons immediately entered into the office of the deceased and stabbed him with knives indiscriminately. P.W.1 on seeing this through the glass door, tried to enter into the office room. But, he was prevented by the other two standing outside. The accused Nagoor Meeran, since deceased, who was standing outside with the other accused, attempted to stab P.W.1. Immediately, P.W.1 in order to save his life, ran away from there. Then the accused pelted stones on him, and the same was hit on his mouth as a result of which a tooth got broken. The other two namely P.Ws.2 and 3, on seeing the occurrence also ran away from the place of occurrence. The accused fled away from the scene of occurrence along with the weapons. (d) P.Ws.1 to 3 after 5 to 10 minutes, returned to the office of the deceased and found the deceased lying in a pool of blood; but, he was alive. Immediately, P.Ws.1 to 3 took him in his car to Sundaram Medical Foundation Hospital and admitted him at about 11.30 A.M. in the intensive care unit. Dr.Sorubavathi, attached to the said hospital, admitted the deceased who was then alive, and then P.W.1 Kumar, the injured witness also. Ex.P48 is the copy of the accident register relating to Ravi. P.W.22, the Doctor, who was on duty, treated Ravi in the Casualty Ward. Despite treatment, he died at about 2.45 P.M., and the death report is marked as Ex.P49. The accident register copy for P.W.1 is marked as Ex.P50. (e) At about 10.40 A.M., when P.W.23, the Sub Inspector of Police, Korattur, was on duty, he got an information over phone and rushed to the scene of occurrence. On his way, he found a Qualis Car carrying the injured Ravi and sent him for treatment to the hospital. He posted the other Sub Inspector of Police and Constable for security. Then, he recorded the statement from P.W.1 at about 1.00 P.M., returned to the Police Station, registered a case in Crime No.779 of 2006 under Sections 147, 148, 336, 324 and 307 of IPC and prepared Ex.P51, the printed FIR. (f) On receipt of the information over cell phone, P.W.25, the Inspector of Police, reached the scene of occurrence and got a copy of the FIR. Then he took up investigation, proceeded to the scene of occurrence and in the presence of P.W.1 and other witness prepared an observation mahazar, Ex.P11, and a rough sketch, Ex.P58. He also recovered M.O.1, broken pieces of wrist watch, M.O.2, pistol, and M.O.3 (series), broken glass pieces, from the place of occurrence under a cover of mahazar. On receipt of the intimation as to the death of Ravi, the case was altered to Sec.302 of IPC. The altered report, Ex.P60, was despatched to the Court. Then, he conducted inquest on the dead body of Ravi in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P61. On 3.6.2006 at about 9.00 A.M., he summoned P.Ws.1 to 3 and recorded their statements. Then, the dead body was sent to the hospital for the purpose of postmortem along with a requisition. (g) On receipt of the said requisition, P.W.20, the Tutor, Forensic Medicine, Kilpauk Medical College Hospital, conducted autopsy on the dead body of Ravi and found 13 injuries. He gave a postmortem certificate, Ex.P45, wherein he opined that the deceased would appear to have died of shock and haemorrhage due to multiple cut wounds. (h) On 4.6.2006 at about 6.00 A.M., the Investigating Officer arrested A-8 in the presence of P.W.2 and other witness. He came forward to give a confessional statement voluntarily. The same was recorded, and the admissible part is marked as Ex.P13. Following the same, he produced M.O.4, billhook, which was recovered under a cover of mahazar, Ex.P14. (i) On 6.6.2006, the Investigator took steps to arrest Nagoor Meeran. At the time when he tried to arrest him, he assaulted the police officials aiming at their lives, and thus, as a defensive measure, the police opened fire and in that encounter, Nagoor Meeran died. P.W.25, the Inspector of Police, the Sub Inspector of Police and another sustained injuries, and they were all admitted in the hospital. P.W.25 was under treatment from 7.6.2006 to 19.6.2006. (j) In the meanwhile, pursuant to the orders passed by the higher authority, P.W.24, the Inspector of Police, took up investigation. On coming to know that A-1, A-9 and A-15 to A-18 surrendered before the Judicial Magistrate, Ambur, he placed a requisition for police custody, and the same was ordered. They were taken to police custody. On 13.6.2006, he recorded the confessional statement voluntarily given by A-1. The admissible part is marked as Ex.P17. He produced M.Os.5 and 6 knives, which were recovered under a cover of mahazar, Ex.P18. At the instance of A-1, the Investigating Officer recovered M.O.8, knife, and M.O.17, knife, under a cover of mahazar, Ex.P19. Following the confession, P.W.24 recovered Ex.P53, bill, relating to the purchase of SIM Card by A-1 in order to have talks with the other accused, under a cover of mahazar. P.W.24 also recovered Ex.P55, inward register log sheet, from Royal Inn Lodge where the accused stayed. He examined the owner of the lodge house. On the same day, he has also recovered Ex.P58, Inward Register-Log Book Sheet, of SVS Lodge, Kudiyatham. Ex.P57 was the bill for the payment made by the accused under Ex.P56 mahazar. (k) On 17.6.2006, P.W.24 arrested A-13 and A-14 and recorded the confessional statement. On 20.6.2006, P.W.25 reported to his normal duty. Then, he took up further investigation. He took A-2, A-3 and A-10 to police custody for three days. They came forward to give confessional statements. The admissible part of the confessional statement of A-2 is marked as Ex.P20. Pursuant to the same, M.O.9, motor bike, was recovered under a mahazar, Ex.P21. M.O.12, banian, M.O.10, bloodstained billhook, M.O.13, bloodstained shirt, and M.O.25, billhook, were also recovered under a cover of mahazar, Ex.P22. (l) On 26.6.2006, the Investigating Officer arrested A-4, A-5, A-6 and A-7. A-4 gave a confessional statement, which was recorded. The admissible part is marked as Ex.P23, pursuant to which M.O.14, knife, and M.O.15, bloodstained shirt, were recovered under a cover of mahazar. The confessional statement of A-6 was recorded, pursuant to which M.O.7, knife, was recovered. Pursuant to the confession of A-5, M.O.11, knife, and M.O.16, bloodstained shirt, were recovered. (m) P.W.18, the handwriting expert, examined the documents sent along with the letter Ex.P39, and has given his report, Ex.P44. (n) P.W.25 examined one Manikandan and recovered a trip sheet relating to Qualis Car TN 20 R 5553 under Ex.P65, Form 95. (o) The test identification parade was conducted by P.W.4, the Judicial Magistrate No.II, Poonamallee, pursuant to the orders of the Chief Judicial Magistrate, on 30.6.2006, at the Central Prison in respect of A-2 and A-3. P.Ws.1 to 3 who participated in the identification parade, identified A-2 and A-3. The identification parade proceedings are marked as Ex.P4. Again the identification parade in respect of A-4, A-5 and A-6 was conducted by P.W.4, and Ex.P7 is the identification parade report. (p) P.W.5, the Judicial Magistrate No.I, Ponneri, recorded the statement of A-15 to A-18 under Sec.164 of Cr.P.C. All the material objects recovered were sent for chemical analysis. Ex.P68, the Chemical report, and Ex.P69, the serology report, were also received and placed before the Court. (q) Pending the investigation, P.W.25 recovered the cash transaction of A-2 relating to the savings bank account No.28359 of Canara Bank, Anna Nagar, through its Senior Manager. The report is marked as Ex.P70. The CDR report received from the Cyber Crime Branch relating to the cell phone used by A-2 to have contact with A-14, A-1, A-3 and A-4 was marked as Ex.P71. On completion of investigation, the Investigating Officer filed the final report under Sections 148, 302 read with 149, 109, 182, 201, and 203 read with 120(B) of IPC. 5. The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 25 witnesses and also relied on 75 exhibits and 25 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. But, 3 documents were marked as Exs.D1 to D3. The trial Court heard the arguments advanced, found the appellants/accused guilty and awarded the punishment referred to above. Hence these appeals at the instance of the appellants. 6. Advancing arguments on behalf of A-1 and A-12, the learned Senior Counsel Mr.V.Gopinath would submit that the prosecution though rested its case on the direct evidence of P.Ws.1 to 3 as eyewitnesses, it has miserably failed to prove either the conspiracy which, according to the prosecution, was the basis of the crime, or the occurrence; that A-1 to A-14 stood charged for hatching up a conspiracy; that even according to P.W.6, her husband the deceased Ravi was in AIADMK Party, and he was also a functionary, and he was inimical to A-11; that insofar as A-1 or A-12, she has not even whispered that either of them had any grudge or they were inimical to the deceased; that though the prosecution came forward to state that there was a conspiracy hatched up by A-1 to A-14, there was no material or circumstance from which the conspiracy could be inferred; that it is not the case of the prosecution that either A-1 or A-12 was actually at the place of occurrence either at the time or place of occurrence; that they had no role to play in the crime; that according to P.W.7, an auto driver, he was engaged by A-1 at about 8.00 A.M. on 2.6.2006, and thereafter, A-8 and A-9 boarded the vehicle, and they left the place; that though A-1 had boarded the vehicle as alleged by P.W.7, it had taken place at about 8.00 A.M.; but as per the prosecution case, the occurrence has taken place at about 10.30 A.M.; that even assuming that A-1 was available at the place of occurrence at about 8.00 A.M., from the same it could not be inferred that he has got anything to do with the occurrence; that according to P.W.8, another auto driver, at about 10.30 A.M., his auto was hired by two persons; but, he did not identify either of them; that though he has mentioned in the cross-examination the name of one Ramesh, he did not identify that it was A-1 in the case; that under the circumstances, his evidence was also of no avail to the prosecution; that according to P.W.10, two days after the occurrence, A-1 phoned over to him, and he was intimidated by stating that the deceased was already finished off and he should also be given the same treatment, if he did not abstain from doing anything against the accused; and that under the circumstances, the evidence of these witnesses could not in any way speak of the nexus of the crime with the accused. 7. Added further the learned Senior Counsel that the Investigating Officer has recorded the statement of P.W.7 on 5.6.2006, P.W.8 on 4.6.2006 and P.W.9 on 14.6.2006, and the statement of P.W.10 was recorded on 19.8.2006 after a month; but, they have been sent to Court belatedly; that under the circumstances, no credence could be attached to either the statements or the evidence in Court; that the prosecution would claim that M.Os.5, 6, 8 and 17, knives, were recovered from A-1 in the presence of a witness; that it is pertinent to point out that it was not the case of the prosecution that he was either present or used the weapon; that though the weapons were claimed to have been recovered from A-1, pursuant to the confessional statement, no bloodstain was found at the time of the analysis; that if the case of the prosecution that A-1 was a conspirator was true, no one like A-1 if really involved in such a crime, could have kept the weapons in the same premises; that under the circumstances, the alleged recovery was not only false, but also could not be relied; that the prosecution has miserably failed to prove the conspiracy theory and also could not bring forth any acceptable evidence as to the nexus between the crime and the appellants; that the trial Court has taken an erroneous view, and hence they are entitled for acquittal in the hands of this Court. 8. The learned Senior Counsel Mr.N.Natarajan advancing his arguments on behalf of A-11, would submit that the Investigating Officer, P.W.25, has categorically admitted that no evidence was adduced, and no one was examined in respect of the alleged conspiracy; that even the entire evidence if scrutinized, would clearly indicate that A-11 though belonged to the same political party to which the deceased and A-1 were affiliated to, neither he made any money to A-1 or facilitated the crime, nor had he got any role in the commission of the offence or making any fake surrender of the accused before the Court; that P.W.6 has categorically deposed that there was a complaint given by her husband against A-11 in respect of an incident that took place a month before the occurrence; but, she has nowhere stated that thereafter, there was anything happened between them or in furtherance of the same, A-11 has done anything against him; that even the evidence of P.W.6 does not indicate that A-11 had grudge or motive or acted with A-1 in the commission of the offence; that as far as the conspiracy part was concerned, the Investigator has examined and recorded the statements of two witnesses namely Thanikaivel and Ravichandran; that these witnesses were produced before the Judicial Magistrate for recording the statements under Sec.164 of Cr.P.C.; that for the reasons best known to the prosecution, both were not examined before the trial Court, and thus the prosecution has miserably failed in its attempt to prove the conspiracy; that at the time of investigation, the Investigator has recovered certain xerox copies of the letters alleged to have been written by the deceased to the General Secretary of the AIADMK party; that these documents were relied on by the prosecution and accepted by the trial Court which should not have been done; that the documents were only xerox copies; that Ex.P66 if perused, would clearly indicate that it did not contain the date; that since it was a xerox copy, it could not be taken as a primary evidence, and even to accept it as secondary evidence, it should have been compared with the original document which should have been in the custody of the General Secretary of the party; but, it was not compared with the same; that under the circumstances, it loses its evidentiary value, and hence the document itself should have been rejected outright; that as far as A-11 was concerned, the prosecution has failed to prove conspiracy and did not place any material to accept its case that A-11 had either abetted the offence by financing A-1 or screening evidence, or made fake surrender of the accused, and hence, he was entitled for acquittal. 9. Advancing arguments on behalf of A-2, the learned Senior Counsel Mr.AR.L.Sundaresan would submit that the prosecution rested its case on the direct evidence by marching P.Ws.1 to 3 as eyewitnesses; that these three eyewitnesses could not have been eyewitnesses at all; that according to the prosecution, the occurrence has taken place at about 10.30 A.M. while these six persons got into the office of the deceased, and 4 went inside the room, while 2 were waiting outside, and P.Ws.1 to 3 were actually present at the time of occurrence, and despite the objections made, 4 persons out of 6, went inside and attacked the deceased; that if the evidence of P.W.1 is viewed either from the first information alleged to have been given by him under Ex.P1, or from the evidence of P.Ws.2 and 3, it would be quite clear that he could not have seen the occurrence at all; that according to P.W.2, when he was inside the office along with P.W.3, after hearing the distressing cry, P.W.1 came inside the office which would make it clear that P.W.1 could not have seen the occurrence at all; that according to P.W.1, at the time when he ran from the scene of occurrence since his life was attempted by a stab, one of the accused pelted stones, and he had injury on the lip, and a tooth was also broken; that according to P.Ws.1 to 3, all of them left the place at a time; that if to be so, there was no need for the other witnesses to enquire him how he sustained injury in the lips; that further from the place of occurrence, P.W.1 along with the deceased was taken to Sundaram Medical Foundation Hospital where he was admitted and given treatment; that the earliest documents in the case were Ex.P48 the copy of the accident register given to the deceased, and also the copy of the accident register, Ex.P50, to P.W.1; that a perusal of Ex.P48 would reveal that P.W.1 has stated to the Doctor that 6 to 8 unknown persons attacked the deceased, and in Ex.P50, it is stated that 4 or 5 persons pelted stones on him; that if the contents of these documents are taken into consideration, the entire evidence of P.Ws.1 to 3, and in particular, P.W.1, becomes highly doubtful and would indicate that he could not have seen the occurrence at all; and that the evidence of P.W.1 and the averments in Ex.P1, the report, are completely discrepant which would cast a doubt whether P.W.1 could have seen the occurrence at all. 10. Added further the learned Senior Counsel that according to the witnesses, immediately an information was given to the police, and if to be so, it would have been recorded in the general diary kept in the police station; but, it was not produced; that when the police received an information as to the cognizable offence, that would suffice to register a case, but they have suppressed the entire information; that even from the evidence of these witnesses, it would be clear that the police officials have reached the spot even before P.W.1 and the deceased were taken to the hospital, and thus, P.W.1 could not have given the first information to the police as alleged by the prosecution; that the claim of the prosecution that Ex.P1 is the earliest document cannot but be false; that P.W.1 has categorically admitted in the chief-examination that he knew A-2, A-4, A-5 and A-6; that if to be so, when he gave the information, he should have mentioned their names, but not done so; that it would be quite clear that he could not have seen the occurrence at all; that as far as the identification parade was concerned, illegalities and infirmities are noticed to reject the entire proceedings; that P.W.4, the Judicial Magistrate, has deposed that at the time of the identification parade, the accused have complained that they were shown to the witnesses, and the photographs were also taken; that apart from that, the witnesses have categorically admitted that the photographs were also shown to them; that the Judicial Magistrate who conducted the identification parade has admitted that when the identification parade was conducted, the position of the accused continued to be the same for all identifying witnesses, and no steps were taken to place the other accused having the same similarity; that all would go to show that the identification proceedings could not be relied; that the lower Court without considering the above aspects of the matter, has taken an erroneous view, and hence they are entitled for acquittal. 11. Advancing arguments for A-4 to A-7, the learned Senior Counsel Mr.Sriramulu would submit that according to P.W.1, the deceased was a license holder of a gun and used to keep it for safety purposes always; that according to P.Ws.1 to 3, he was brutally attacked; that had it been true, he would have immediately opened fire since he was with a gun which he was holding for security purposes; that the discrepancy found in the evidence of P.Ws.1 to 3 would suffice to reject the evidence on the material particulars; that the Investigating Officer has categorically admitted that he took the finger prints from the place of occurrence through the finger print experts, but the finger prints were not taken either from the accused or from the weapons recovered from the accused; that after the arrest of the accused and recovery of weapon pursuant to the confessional statement, there could not have been any impediment for the investigating agency to take the finger prints and compare with the finger prints taken from the place of occurrence, and if done and reports were filed, such scientific evidence would have been the best piece of evidence; but, the Investigating Officer has failed to do so; that the identification parade after showing the photographs of the accused to the witnesses, at no stretch of imagination, could be used as an evidence to find the accused/appellants guilty; that the weapons recovered though subjected to chemical analysis were not found with human blood; that it is highly unnatural that A-1 kept four knives used by the assailants, in the same premises which was being occupied by one Gokul; that though it was admitted that Gokul was residing in the premises wherefrom the material objects were produced, he was not examined; that the non-examination of the said Gokul was fatal to the prosecution; that under the circumstances, the prosecution has miserably failed not only to prove the conspiracy, but also the occurrence, and hence they are entitled for acquittal. 12. Advancing arguments for A-9 and A-18, the learned Counsel Mr.M.Kempraj would submit that the prosecution has miserably failed to prove its case in respect of conspiracy and hence A-9 should be acquitted; that as far as A-18 was concerned, no material was placed before the trial Court in order to indicate that A-15 to A-18 surrendered before a Court of law in connection with the crime in question; that in the absence of any material, it cannot be stated that the said charge against A-15 to A-18 stood proved, and hence they are entitled for acquittal. 13. The learned Counsel for the other appellants adopted the above arguments urged by the learned Senior Counsel. 14. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 15. It is not in controversy that one Ravi, the husband of P.W.6, who was functioning as a Secretary of Anna Nagar AIADMK Party following an incident that took place at about 10.30 A.M., in his office on 2.6.2006, at Yadaval Street, Padi, was taken to Sundaram Medical Foundation Hospital with grievous injuries where he was given treatment by P.W.22, the Doctor. The accident register copy is marked as Ex.P48. Despite treatment, he died on the day at about 2.45 P.M. Then the case originally registered for attempt to murder and other provisions, on the death report, was altered to Sec.302 of IPC. Following the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.20, the Medical Person, who has given his opinion as a witness before Court and also through the contents of the postmortem certificate, Ex.P45, that he died out of shock and haemorrhage due to multiple cut injuries. The fact that he died out of homicidal violence was never disputed by the appellants at any stage of the proceedings. Hence no impediment is felt in recording so. 16. As could be seen above, the gist of the case of the prosecution is that due to the political rivalry between the deceased Ravi on the one part and A-1 and A-11 on the other part, a conspiracy was hatched up among A-1 to A-14 pursuant to which A-2 to A-7 were hired, and they went to the office of the deceased at Yadaval Street at about 10.30 A.M. On 2.6.2006, and out of 6 assailants, 4 attacked him while 2 were standing outside as watch guards, and following the severe injuries sustained, he died. At the outset, this Court is afraid whether it can accept the case of the prosecution in respect of the theory of conspiracy. It is well settled law that in order to prove conspiracy, the prosecution need not place direct evidence. The conspiracy can be inferred from the proved circumstances. But in the instant case, in the considered opinion of the Court, the prosecution has neither placed direct evidence nor shown circumstances from which the conspiracy can be inferred. 17. The prosecution in order to prove the conspiracy relied on certain circumstances. It is well admitted by the Investigator that at the time of investigation, he has examined one Thanikaivel and Ravichandran in order to prove the conspiracy part, and they were also produced before the Judicial Magistrate, and their statements were recorded under Sec.164 of Cr.P.C. But, both the witnesses were not examined before the trial Court. The explanation tendered for non-examination was neither convincing nor acceptable. But, it would be quite clear that they were alive. Further at the time when the statement of Thanikaivel was recorded by the Judicial Magistrate under Sec.164 of Cr.P.C., he has categorically stated that he was tortured by the police to give such a statement, and thus, it would be quite clear that the prosecution had withdrawn those witnesses in order to avoid the situation that if they were examined, it would go against the prosecution. 18. The Investigator has recovered certain documentary evidence from the lodges at Bangalore and Kudiyatham in order to show that the accused were staying over there. The mere stay of the accused in the said places by itself cannot suffice to indicate that they hatched up a conspiracy as put forth by the prosecution. Though the Investigator has recovered certain cell phones which were used by the accused to talk to each other, it would not advance the case of conspiracy theory. A careful scrutiny of the entire evidence would clearly reveal that there was no direct evidence or circumstantial evidence to accept the case of conspiracy. Thus, the prosecution, in the considered opinion of the Court, has miserably failed to prove the conspiracy theory. 19. In order to prove that Ravi met a homicidal death due to the violent attack made by A-2 to A-7, the prosecution rested its case on P.Ws.1 to 3 as occurrence witnesses. In a given case like this, when one of the eyewitnesses happened to be an injured witness, his evidence should not be discarded unless and until a strong reason is noticed or a circumstance is brought about. Admittedly, P.W.1 was the driver of the deceased, while P.Ws.2 and 3 were working at the office of the deceased. It is also true that P.Ws.1 to 3 have not come forward with the evidence to state that A-1 was available at the time and place of occurrence when Ravi was attacked by the assailants. But insofar as the abetment committed by A-1 for the said crime, this Court is able to notice sufficient circumstances. From the evidence, it would be quite clear that though A-1 and the deceased belonged to the same political party, their relationship was strained. P.W.9, a taxi driver, has categorically deposed that on the previous day that was on 1.6.2006, his taxi was engaged by A-1, and six other persons also boarded the taxi, and they went to the office of the deceased, and they were waiting there for number of hours till evening, and since the deceased did not return, they left the place. The next morning, the occurrence has taken place. According to P.W.1, the deceased came to the office at about 9.30 A.M., with one Parthasarathy, and thereafter, he left the place and came back at about 10.30 A.M. P.W.7, an auto driver, has categorically deposed that his auto was engaged by A-1 that morning nearby the place of occurrence. From the evidence of P.W.7, it would be quite clear that A-1 was very well available just two hours prior to the occurrence nearby the office of the deceased. According to P.W.8, another auto driver, his auto was engaged at about 10.30 A.M., by one Ramesh along with two others, and they went to Red Hills Bus Stand where they terminated by making payment. From this, it would be quite clear that A-1 was very well available nearby the place of occurrence at about 10.30 A.M. The evidence of P.Ws.7 and 8 would clearly indicate that A-1 was very well available at about 8.30 A.M. and thereafter, he left the place, and again he came to the place at about 10.30 A.M. and left the place in the auto of P.W.8. It is true that neither P.W.7 nor P.W.8 had stated that A-1 was at the place of occurrence. But, from the evidence, it would be quite clear that he was nearby the place of occurrence. 20. It is true that P.W.8 has not identified A-1, but has stated the name of A-1 at the chief-examination itself. No cross-examination or suggestion was made suggesting that it was not A-1. Further, the evidence of P.Ws.7 and 8 coupled with the evidence of P.W.9, the taxi driver, would clearly indicate that on the previous day, he was waiting in the taxi along with the hirelings, and he could not execute the act, and then he returned, and the next morning, he came by 8.30 A.M. and verified whether the deceased was available in the office, and thereafter, he left the place and again came back at about 10.30 A.M., and after ascertaining the execution of the act, he fled away from the place of occurrence. At this juncture, it is pertinent to point out that without A-1 identifying the place where the deceased was running his business, the previous day, the assailants could not have executed the act. This circumstance as to the abetment of the offence stood fortified by the recovery of weapons of crime namely four knives from the very same premises where A-1 was carrying on his office pursuant to the confessional statement given by him. A witness has been examined to that effect, and the evidence of that witness remained unshaken. That apart, after the occurrence was over by the hirelings, he has kept the weapons of crime in his custody. Subsequently, following the confessional statement, he has produced them. Thus, it is clear that he has abetted the crime by engaging the assailants. 21. In the case on hand, the prosecution has examined P.Ws.1 to 3. As stated above, P.W.1 was an injured witness. P.Ws.2 and 3 were actually employed under the deceased. P.Ws.1 to 3 have spoken in one voice that at the time of the occurrence six persons came, and out of six, four despite objection, entered into the room where they began to attack the deceased with knives. When P.W.1 attempted to go to the rescue by entering into the room, his life was attempted at by one Nagoor Meeran, an accused, who died pending investigation in an encounter by the investigating agency. From the evidence of P.W.1, it would be quite clear that he witnessed the occurrence. When he was about to escape from the place, stones were pelted, and he sustained injury in the lips. P.Ws.2 and 3 have categorically spoken that four out of six, who were present, have actually attacked the deceased, and two were standing outside as security guards. It would be quite clear that in furtherance of common object of causing the death of Ravi, all six have entered into the premises, and immediately P.Ws.2 and 3 who were under the grip of fear, ran away to the nearby place, and after 10 minutes, they returned within which period, the assailants fled away from the place of occurrence. When the witnesses returned to the spot, they found Ravi struggling for his life in a pool of blood. Immediately P.W.1 and the severely injured Ravi were taken to Sundaram Medical Foundation Hospital where they were medically examined. The accident register copies are marked as Exs.P48 and P50 respectively. The statement made by P.W.1 with the contents of Exs.P48 and P50 was brought to the notice of the Court. In Ex.P48, it is stated as 6 to 8 unknown persons, while in Ex.P50 it is stated that 4 or 5 persons pelted stones by which it leaves no doubt in the mind of the Court. Even in Ex.P1 document, the entire incident has been narrated, and it is also made clear that six assailants were unknown. The contention put forth by the learned Senior Counsel for the appellants is that P.W.1 has categorically admitted that he knew A-2, A-4, A-5 and A-6. It is pertinent to point out that there was neither a question nor a suggestion to the effect that he knew these accused at the time of the occurrence and hence it would in no way affect his evidence. 22. Above all, the identification parade has been conducted for A-2 to A-6. All have been identified by P.Ws.1 to 3. The identification parade proceedings have also been marked. As could be seen from the submissions made by the learned Senior Counsel, the photographs of the accused were shown to the witnesses, and hence the identification proceedings could not be relied on. Even as per the evidence of the witnesses, the photographs of the old criminals kept in the police station, were shown to them, and nowhere the witnesses have admitted that the accused were photographed. This Court is unable to notice any infirmity in the identification proceedings as urged by the learned Senior Counsel for the appellants, and hence without any impediment, the identification proceedings in which P.Ws.1 to 3 have identified A-2 to A-6 have got to be accepted. It remains to be stated that the evidence pertaining thereto was only corroborative piece of evidence, and it was only to support the substantive piece of evidence namely the evidence of P.Ws.1 to 3 who were eyewitnesses to the occurrence. Apart from that, the ocular testimony projected through P.Ws.1 to 3 stood fully corroborated by the medical evidence. 23. It is pertinent to point out that the witnesses were not taken to identify A-7, and there is no material indicating the involvement of A-7 in the entire case. But the evidence available would be pointing to the involvement of A-2, A-3, A-4, A-5, A-6 and also one Nagoor Meeran who died in the encounter, thus totalling 6. As stated earlier, these six assailants were hired by A-1 in order to do away with the deceased Ravi, and pursuant to the same, the above said accused entered into the room on the day hours, and out of six, four have brutally attacked him with deadly weapons, and as a direct consequence death has ensued. Thus it would be quite indicative of the common object in furtherance of which they have acted so, and hence they are to be found guilty under Sec.302 read with 149 of IPC. As far as A-1 was concerned, without his instigation and abetment, the said accused could not have committed the offence at all, and hence, he has got to be found guilty under Sec.302 read with 109 of IPC. As stated supra, the prosecution has not proved the alleged conspiracy theory. Hence the respective accused who stood charged in that regard, have got to be acquitted. 24. As rightly pointed out by the learned Senior Counsel for the appellants, no material was placed before the trial Court in order to show that there was any fake surrender of A-15 to A-18 before a Court of criminal law in respect of the crime number in question, and under the circumstances, it cannot be stated that the prosecution has proved the said charge. Hence the judgment of the trial Court in that regard cannot be sustained. 25. As regards A-3 and A-13, though charges were framed against them, they were not tried since they were absconding, and the case was split up. Hence they were not dealt with by the trial Court, and they have got nothing to do with the findings rendered by the trial Court. 26. Accordingly, the conviction and sentence imposed on A-1 under Sec.302 read with 109 of IPC by the trial Court are confirmed. A-1 is acquitted of the other charges, and the fine amounts paid by him will be refunded to him. 27. The conviction of A-2, A-4 and A-5 under Sec.302 of IPC is modified and instead, they are convicted under Sec.302 read with 149 of IPC. The life imprisonment along with fine and default sentence imposed by the trial Court is sustained. The conviction and sentence imposed by the trial Court on A-6 under Sec.302 read with 149 of IPC are confirmed. The conviction of A-2, A-4, A-5 and A-6 and the sentence imposed by the trial Court in respect of other charges are set aside, and they are acquitted of the same. The fine amounts paid by them will be refunded to them. 28. Accordingly, the judgment of conviction and sentence passed by the trial Court in respect of A-7 to A-12 and A-14 to A-18 is set aside, and they are acquitted of all the charges levelled against them. The fine amounts paid by them will be refunded to them. 29. In the result, C.A.Nos.1041/2007, 160, 213, 214, 252, 297, and 327/2008 are allowed. C.A.Nos.70 and 747/2008 are partly allowed. C.A.No.35/2008 is dismissed. The bail bonds executed by A-11, A-12 and A-15 to A-18 shall stand terminated. A-7, A-8, A-9, A-10 and A-14 are directed to be released forthwith unless their presence is required in connection with any other case.