CHINNA KAALAI ALIAS VELLAISAMY Vs. STATE REP

JUDGEMENT

(1.) CHALLENGE is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.1, Coimbatore made in S.C.No.124 of 2007, whereby the first accused/first appellant stood charged under Sections 302 and 201 IPC and the second accused/the second appellant stood charged under Sections 341, 302 r/w S.34 and 201 IPC and tried and A-1 was found guilty under Sections 302 and 201 IPC and the second accused was found guilty under Sections 341, 302 r/w S.34 and 201 IPC and A-1 and A-2 were sentenced to undergo life imprisonment each and to pay a fine of Rs.2000/-, in default to undergo 3 months S.I. under Section 302 and 302 r/w S.34 IPC respectively and 3 years R.I. each and to pay a fine of Rs.500/-, in default to undergo 3 months S.I. under Section 201 IPC and A-2 was also sentenced to undergo 1 month R.I. under Section 341 IPC and the sentences were ordered to run concurrently.

(2.) THE short facts necessary for the disposal of this appeal can be stated as follows:

(3.) ADVANCING arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the prosecution rested its entire case on the evidence of P.W.5; that according to the prosecution, the occurrence has taken place on the night hours of 12.8.2005; that according to P.W.5, he has actually witnessed the entire occurrence, but he ran away from the place of occurrence; that he has not even whispered about the occurrence to his family members, but he has come forward to give statement to the police after 4 months, namely only on 08.12.2005; that in the instant case, statement of P.W.5 under Section 164 Cr.P.C. was recorded by P.W.2, the Judicial Magistrate, which was marked as Ex.P.4; that when Ex.P.4 was looked into, P.W.5 has given a statement to the effect that A-1 attacked the deceased with the bottle and not with the cricket bat; that he has developed his evidence before the court as if A-1 attacked the deceased with the cricket bat and thus, there was a thorough inconsistent in his statements and that, for these two reasons, the evidence of P.W.5 should have been rejected by the trial court.