M. KARPAGAVINAYAGAM, J.:

1. A-1 Karuppiah is the appellant in C.A.No. 130 of 1990. A-2 Sakthivel is the appellant in C.A.No.793 of 1989. A-3 Raman and A-4 Madasamy are the appellants in C.A.No.648 of 1988. They were tried by the Principal Sessions Judge, Ramanathapuram for the offence under Sec.302 read with 34, I.P.C. and sentenced to under go life imprisonment.

2. As these three appeals arise out of the single impugned judgment, a common judgment is being pronounced.

3. The case of the prosecution is as follows:

(a) P.W.1 Muthusamy is the brother of the deceased Ayyavu, A-l Karuppaiah, A-2 Sakthivel, A-3 Ramar and A-4 Madasamy were residing in Chinnasuraikkaipatti village, Rajapalayam.

(b) Three days prior to the date of occurrence, the first accused picked up quarrel with one Ayyappan (P.W.4) over putting of pots for collecting drinking water in Valaiyakarar Street which is in front of the water pump. When the high handed behaviour of A-l in kicking the water pots put in the line in front of the water pump, was questioned by P.W.4, A-l began to scold him. On seeing this incident, the deceased Ayyavu came in support of P.W.4, and asked the first appellant as to how he could pick up quarrel with P.W.4. The first appellant retaliated by asking as to why unnecessarily interfering in the matter and challenged that he would see that something is done to him within a few days.

(c) The occurrence had taken place on 24.5.1987 at about 8.00 p.m. P.W.I and the deceased Ayyavu went to the tea shop of P. W.2. While they were taking tea inside the tea shop, A-l to A-4 came to the tea shop. A-4 came near the deceased and dragged him outside. Then the first accused Karuppiah shouted at the deceased saying.

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So saying, the took out M.0.1 Suri knife and stabbed him on the left chest. Thereafter, he instigated the other accused to attack the deceased. Then A-2 to A-4 also with their knives inflicted injuries on the back and right flank and on the upper arm. When P.Ws.2 and 3 raised alarm, the accused took to their heels.

(d) Immediately, P.W.1 and P.W.3, who was the tea supplier, took the victim to the Rajapalayam Hospital. P.W.6 at about 8.30 p.m. on 24.5.1987, examined the victim and found four injuries. Ex.P-8 is the accident register. When the victim, who was found in a serious condition was about to be referred to Government Hospital, Madurai, he died. Therefore, P.W.6 sent death intimation Ex.P-7.

(e) P.W.10, on receipt of the intimation, went to the hospital and obtained a statement from P.W.1 and registered a case in Crime No.287 of 1987 under Sec.302, I.P.C. Ex.P-1 is the complaint and Ex.P-16 is the printed F.I.R.

(f) P.W.11 the Inspector of Police, on receipt of the F.I.R. copy, came to the spot on 25.5.1987 and prepared observation mahazar Ex.P-2 and rough sketch Ex.P-17 and seized M.0.2 the blood stained wooden bench, M.0.3, blood stained earth and M.O.4 sample earth under Ex.P-3. Thereafter, he went to hospital and conducted inquest between 3.30 a.m. and 6.30 a.m. The inquest report is Ex.P-18. Then, he sent the dead body for postmortem with requisition Ex.P-10.

(g) On 25.5.1987 at about 7.30 a.m., P.W.6 Doctor on receipt of the requisition conducted post-mortem on the dead body of the deceased and found the following injuries:

(1) Eliptical stab wound vertically placed with slight inclination to the left on the left side 6th intercostal space on the mid clavicular line with clot of blood 5 cm 2 cm 20 cm (On probing) depth going through subcutaneous tissue, inter costal muscles cutting the costo-chonhdrial junction of the 6th rib vertically in the direction of the wound piercing the parietal pleura. Left dome of diapharagm with a opening of 4 cm 2 cm 2 cm cut along the margin of left lobe of liver near the anterior surface of stomach 3 cm 2 cm posterior wall of stomach 2 cm 1 cm. Heart apex cut 2 cm 1 cm not entered the chamber.

(2) Eliptical stab wound right side chest horizontally placed the intercostal space mid auxiliary line 5 cm 2 cm depth 22 cm on probing with blood clots piercing the muscle layer with clots around, right parietal pleura right pleural recess piercing the right dome of diaphragm 4 cm 2 cm going through the upper surface of right lobe of liver coming at the interior surface near Gall Bladder end in inferior venacava.

(3) Stab wound elliptical below the interior angel of scapula right 2 cm 1 cm depth 7 cm directed medially and ending subcutane-ously.

(4) A cut wound middle of back of arm right 2 cm cm.

(h) The post-mortem certificate is Ex.P-11. He opined that the deceased would appear to have died of shock and haemorrhage due to the injury to vital organs,

(i) On 26.5.1987 at about 6.00 a.m., P.W.11. Inspector of Police arrested A-1 near Ayyanar Koil Street and obtained his confession, the admissible portion of which is marked as Ex.P-4 and recovered M.O.I Suri Knife under Ex.P-5.

(j) The further investigation was taken by P.W.12. After finishing investigation, P.W.12 filed the charge sheet on 1.10.1987.

4. On the case being committed, the trial court examined P.Ws.1 to 12 and filed Exs.P-1 to P-18 and marked M.Os.1 to 8 on the side of the prosecution. When the accused were examined under Sec.313(i)(b), Crl.P.C. with reference to the indiscriminating materials available on record, they would state that a false case had been foisted against them at the instance of the Pillaimar Sangham. However, no evidence was being adduced on the side of the defence.

5. Taking into consideration the entire materials produced by the prosecution, the trial court concluded that the accused 1 to 4 had participated in the commission of the offence and convicted the accused for the offence as referred to above.

6. Challenging their conviction, Mr.Packiaraj, the learned counsel appearing for the appellants, by taking us through the entire evidence, would contend that P.W.1 would not have been present in the place of occurrence, since his name is not mentioned in the Accident Register, in the column where the name of the persons who brought the victim is written, and that P.Ws.2 and 3, having seen the accused for the first time at the place of occurrence, could not be competent witnesses, to identify the accused in the court during the course of trial, in the absence of any valid identification parade and as such, their evidence has to be completely ignored.

7. In brief, Mr.Packiaraj, the learned counsel for the appellant, would submit that the prosecution has not placed its case with clean hands and as such, the identification of the appellants 2 to 4 has not been legally established by the prosecution and therefore, the appellants are liable to be acquitted by giving the benefit of doubt.

8. On the contrary, Mr.Elango, the learned Government Advocate, would contend that P.W.1 was very much present at the place of occurrence and that he only gave the complaint to P.W.10, which was attested by P.W.3, and that P.Ws.2 and 3, who are the independent witnesses, also would speak about the presence of P.W.1 at the time of occurrence and that therefore, there is no reason to reject their evidence. In brief, his submission is that the trial courts conclusion is on the basis of the reasonings and as such, it does not call for any interference.

9. We have carefully considered the rival contentions and gone through the records.

10. There are the three eye-witnesses. The occurrence had taken place at 8.00 p.m. in the tea shop. P.W.2 is the tea shop owner. P.W.3 is the supplier in the tea shop. There are materials to show that both inside and outside the tea shop, the tube lights-were illuminating. This is spoken to by the witnesses, P.Ws.l and 3 and it is also mentioned in the observation mahazer Ex.P-2. P.W.11, the Inspector of Police, would also refer to the same. The victim was immediately taken to the hospital straightaway, even though the police station was on the way. He was admitted at 8.20 p.m. in the hospital and at about 9.00 p.m. the victim died and even before the death, the admission of the victim had been intimated to the police station. But, since he died, the death intimation was also sent to the Inspector of Police. P.W.10, the Head Constable came to the hospital and obtained statement from P.W.I, who was available at the hospital at that time. In the said statement, the presence of P.Ws.2 and 3 is mentioned and P.W.3 had attested the same.

11. According to the prosecution, the F.I.R. which had been registered at 10.30 p.m. by P.W.10, was sent to the Magistrate Court, which in turn received the same only at 8.30 a.m. on the next day morning. No doubt, there is some delay. In order to explain the delay, P.W.9 has been examined. According to P.W.9, he took the F.l.R. copy and went to the Inspector of Police and handed over the same and he then went to the D.S.P., and as he was on camp at that time at Rajapalayam, he handed over the same to another D.S.P. and came back to the Rajapalayalam Police Station and since no bus was available, he left in the morning and handed over the F.I.R. to the Magistrate at 8.30 a.m. Though we are not able to fully accept the explanation given by P.W.9 with reference to the delay of F.I.R. reaching the Magistrate at 8.30 a.m., more particularly when the F.I.R. was registered on the earlier night at 10.30 p.m., we need not go deep into the aspect, since in the earliest document in this case Ex.P-8, the accident register, which was prepared by P.W.6, Doctor, it is specifically stated that the victim was brought by P.W.3 Narayanan. It is also stated that the victim attacked by known persons at about 8.00 p.m. in the Ambalapuli bazaar tea shop. Therefore, according to P.W.6, it is Narayanan, who informed about the incident that took place at 8.00 p.m. at the place of occurrence and in the said incident, the victim was attacked by known persons.

12. Therefore, the evidence of the said Narayanan, who has been examined as P.W.3 assumes very great importance in this case. While we are not inclined to fully believe P.W. 1 for so many reasons, we cannot but believe the evidence of P.W.3, whose name is mentioned in the accident register Ex.P-8 who is the tea supplier and P.W.2, who is the teashop owner. Both of them would say that A-4 came inside the tea stall and took the deceased outside and thereupon A-1 and A-3 attacked the deceased. This aspect of the evidence, as projected by P.Ws.2 and 3 has been amply corroborated by the medical testimony adduced by P.W.6.

13. As correctly pointed by Mr.Packiaraj, the evidence of P.W.I does not inspire confidence. According to the F.I.R. which was registered on the complaint of P.W.1, A-4 had only entered into his tea stall and took the deceased outside, but in the deposition, he would improve by saying that along with A-l to A-3, A-4 was also having knife and he had also attacked the deceased indiscriminately. This improved version regarding the overtact attributed to A-4 is not available in the evidence of P.Ws.2 and 3. The evidence of P.Ws.2 and 3 is consistent with the contents of the F.I.R. with reference to the part played by A-4. Moreover, P.W.1 would state that he took the victim to the hospital and met the Doctor and informed his name, whereas, the Doctor would say that the victim was brought by P.W.3 Narayanan.

14. In view of the improved and contradictory stand taken by P.W.I and also due to the fact that his evidence relating to the taking of the deceased to the Doctor has not been corroborated by P.W.6, we are of the view that the evidence of P.W.I cannot be acted upon.

15. Merely because P.W.1s evidence is rejected, it cannot be stated that the entire case of the prosecution has to be thrown out. As already indicated, the evidence of P.Ws.2 and 3, who had no animus and no axe to grind against accused and who has no relationship with P.W.I or the deceased would make it clear that both P.Ws.2 and 3 are the witnesses of truth and their testimony can be taken into consideration.

16. As stated earlier, P.W.3 is the star witness in this case, who had narrated the entire occurrence by stating that A-1 and A-3 attacked the deceased in front of the tea stop, while the lights were burning.

17. Much was said about the failure on the part of the Investigating Agency in not conducting the identification parade inasmuch as the witnesses P.Ws.1 to 3 had stated in the cross examination that they did not know the accused, A-l to A-4, personally. This submission has been repelled by the learned Government Advocate by stating that though P.W.1 would state in the cross-examination that he did not see the accused 2 to 4 prior to the occurrence, P.Ws.2 and 3 did not say so. He would also further point out that P.Ws.2 and 3 though would admit that they had no connection with A-l to A-4 prior to the date of occurrence, they did not say that they had not seen the accused A-l to A-4 prior to the occurrence.

18. As a matter of fact, P.W.I in the chief examination would state that

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But, in the cross examination, it was elicited from him that

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This would clearly show that P.W.1 had not seen the accused 2 to 4 prior to the date of occurrence. But, P.Ws.2 and 3 though they had stated in the cross examination that they did not have any connection with A-1 to A-4 prior to the date of occurrence, they had not stated that they did not see the accused 2 to 4 prior to the date of occurrence.

19. Therefore, in the absence of any material to show that P.Ws.2 and 3 had never earlier seen A-2 and A-4 at all, there is no difficulty in accepting the evidence of P.Ws.2 and 3 with reference to the participation of those accused in the commission of crime.

20. One more significant aspect to be noticed in this context is that it is not the case of hit and run. According to the prosecution, A-1 to A-4 together came to the tea shop and A-4 came inside the tea shop and dragged the deceased outside the shop and A-l took one Suri knife from his waist and stabbed him. Thereafter, A-1 instigated others also to attack him. On the said instigation, A-2 and A-3 also with their weapon attacked the deceased and then ran away. These details of the incident spoken to by P.Ws.2 and 3 would clearly show that it took some time for the entire occurrence.

21. As referred to earlier, the evidence of P.Ws.2 and 3 and the evidence of P.W.11 and Ex.P-2 observation mahazar, would clearly reveal that there was street light and the lights were burning inside and outside the tea shop. In such a situation, sufficient light was available for the witnesses to see the identity of the accused. Therefore, in our conclusion, there are no suspicious features regarding the identity of the accused because there is no evidence to hold that the evidence pf P.Ws.2 and 3 have to be rejected merely because there is a failure on the part of the investigating officer to conduct the identification parade.

22. Though we are concurring with the conclusion of the trial court, as pointed out by the learned Government Advocate with reference to the materials as against A-l to A-3 for basing the conviction under Sec.302 read with 34, I.P.C., we are of the view that there is no sufficient material available as against A-4. According to the F.I.R., which was given by P.W. 1 and the evidence of P.Ws.2 and 3, the only part played by A-4 is that he entered inside the tea shop and took the deceased outside. It is not the case of the prosecution that at that time, all the persons were carrying the weapons. Though P.W. 1 would state in his deposition that A-4 also attacked the deceased this fact has neither been mentioned in the F.I.R. nor available in the deposition of P.Ws.2 and 3. In the absence of specific material as against A-4 that A-4 took the deceased in order to facilitate the other accused to kill the deceased, we cannot fasten the criminal liability of common intention of committing murder on him.

23. Therefore, we are of the view that the conviction and sentence imposed upon A-4 are illegal and the same are liable to be set aside and accordingly, the same are set aside. Madasamy (A-4), the second appellant in C.A.No.648 of 1988 is acquitted and the appeal in C.A.No.648 of 1988 in respect of A-4 alone is allowed and in respect of first appellant in C.A.No.648 of 1988, and other appellants in C.A.No.739 of 1989 and C.A.No.130 of 1990, the appeals are dismissed. The trial court is directed to take steps to secure the judicial custody of the other appellants, viz., A-1, A-2 and A-3 to undergo the remaining period of sentence. The bail bounds, if any, executed by the appellants stand cancelled.