S KUMAR Vs. STATE

JUDGEMENT

(1.) THESE appeals are preferred under Section 374 Cr.P.C against the order of the learned Principal Sessions Judge, Perambalur, made in S.C.No,29 of 2007 dated 22.10.2008.) Crl.A.No,860 of 2008 was filed by the first accused, Crl.A.No,841 of 2008 was filed by the second accused and Crl.A.No,778 of 2008 was filed by the third, fourth and fifth accused. This judgment shall govern these three appeals.

(2.) THESE appellants along with two other accused who were shown as A5 and A6 stood charged, tried and found guilty as follows: TABLE

(3.) THE case of the prosecution was due to previous enmity all the accused/appellants along with A6 and A7 in furtherance of common object went inside the theatre when the deceased along with P.Ws. 3 and 4 were witnessing a film and attacked the deceased indiscriminately by deadly weapons and caused his death instantaneously and fled away from the place of occurrence. In this regard, two eye witnesses were examined viz., P.Ws. 3 and 4 but they have turned hostile and did not support the prosecution case at all. THE other witnesses examined were the owner of the theatre, operator and the person who used to check and issue tickets. It is pertinent to point out that the occurrence has taken place at 10.30 p.m. inside the theatre and it could have been seen by number of persons. Apart from that, according to the prosecution, the deceased accompanied by P.Ws. 3 and 4 went to watch a film but no independent witness was examined. THE two eye witnesses, viz., P.Ws. 3 and 4 have turned hostile. As such, the prosecution has miserably failed to prove the overt act attributed to the accused. Added further learned counsel, in the instant case, so far as the recovery was concerned, though the prosecution examined P.Ws.17 and 19 as witnesses for recovery, confession, they have turned hostile and even the Village Administrative Officer Ex.P18 who was examined by the prosecution in this regard has spoken that after the accused were taken to the police station, his signature was obtained in the confession statement and in the recovery mahazars. Thus, it is quite clear that the prosecution could not bring home the fact of arrest, recovery and confessional statement. THErefore, that part of the evidence did not support the case of the prosecution.