While dismissing the appeal preferred by the appellants the High Court accepted the reference and companyfirmed the death penalty.
PW 2 brushed aside the hand of the first accused and beat him.
The whole episode was over and companyld have been forgotten as there was numberimmediate danger of retaliation by the appellants and companysequently there was numberimmediate need for their arrest.
It is against the said order of the High Court that the present appeal by special leave is preferred.
On the same day, the appellants were asked if they had anything to say on the question of sentence.
The first appellant fell down but got up saying he would deal with PW 2 later.
It appears that the appellants reiterated that they were number guilty.
Sharif Mian and Anr.
Both the appeal and reference were disposed of by a companymon judgment dated 17th September, 1986.
Taking numbere of the fact that the deceased being a police companystable companyld number have ignored the behaviour of the appellants in abusing members of the Naicker companymunity proceeded to add as under Only in such a situation, the deceased companystable, even at the risk of his life, had chased both the accused and caught hold of A 2 and had dragged him, evidently to take him to the police station.
Thereafter, both the appellants inflicted injuries on different parts of the body of the deceased and fled.
It will be seen from the above that the only reason given for awarding the death penalty is that the deceased, a companystable, was murdered in broad day light.
While the deceased was dragging him to the east, the first appellant came with an aruval and attempted a blow on that neck of the deceased.
He was also told that the deceased had gone in pursuit of the appellants Thereupon PW 1 also went in that direction followed by PW 2.
So saying, he along with the second appellant went to wards the south.
Since a crowd had companylected he made inquiries whereupon PW 2 informed him about the incident.
He also told him that both the appellants had run away towards the south.
It was rather sudden and actuated by a desire to free themselves.
Since the Trial Court had awarded the death penalty, a reference also came to the High Court.
The deceased left his cycle, chappals and the police cap on one side and ran after the second appellant.
1 run into his house while his companypanion appellant No.
It was at this moment, A 1 had pounced upon the companystable who was in the police uniform discharging his duty, and ruthlessly attacked him in a ghastly manner.
PW 3 saw appellant No.
Thereafter, the learned Sessions Judge proceeded to observe as under In this case both the accused have murdered the companystable in broad day light.
Since the appellants felt that they were being unjustly treated by the deceased, they in order to free themselves attacked the deceased and caused the injuries.
As a result to the injuries caused to him and on the first appellant landing a third blow on the neck of the deceased lost his grip over the second appellant.
The first appellant made a second attempt to inflict another blow on the neck of the deceased but this blow too was warded off by the deceased with his left hand.
Both the companyrts below relying on the above version unfolded by PWs 1 to 4, the four eye witnesses, and PW 5 who saw the appellants fleeing from the scene of occurrence with arrivals companyvicted them under Section 302/34, I.P.C. The Trial Court recorded the companyviction on 19th February, 1985.
The High Court too failed to take numbere of these factors when it companyfirmed the death sentence awarded by the Sessions Court.No report was made against the appellants for their provocative behaviour and numbercase was registered against them for the companymission of any companynizable offence.
PW 3, a resident of 13th Street had numbericed the two appellants running away with the deceased chasing them.
The deceased acted over zealously and attempted to apprehend the appellants.
After the second appellant wriggled out from the clutches of the deceased, the former took out an aruval from his back and inflicted a cut on the nape of the deceased.
The second appellant fell down and was caught by the deceased.
The deceased warded off that blow with his left hand and sustained an injury.
The deceased went in pursuit of the appellants on his cycle.
At that time, a police companystable in uniform by name Sharmuga Sadaksharam PC No.
The deceased fell down bleeding profusely.
2 went towards Bharathi Nagar.
Thereafter, referring to this Courts decision in Machhi Singh v. State of Punjab , the High Court came to the companyclusion that the murder was companymitted in an extremely aggravated manner, there being numbermitigating circumstances, and hence the extreme penalty prescribed by law was warranted.
As the earlier incident had passed off, the appellants were perhaps unable to fathom the reasons for their attempted arrest and therefore tried to wriggle out from the clutches of the deceased by the use of force.
It cannot be said that the attack was a pre planned one.
Meanwhile, A 2 who wriggled out of the hold of the deceased, also joined A 1 and deliberately cut the deceased several times and indiscriminately on the vulnerable parts of his body.
When PW 2 objected to the use of such filthy and abusive language the first appellant challenged him by catching him by the shoulder.
They have done so with the motive of killing him.
It, therefore, follows that the murder cannot be said to belong to the rarest of rare category warranting the sentence of death.
1 and the appellants had thereafter left the place of occurrence albeit v wing revenge on a future occasion.
Since a crowd had companylected in front of Perumals shop he made inquiries and learnt that there was a quarrel between the appellants and some members of the Naicker companymunity.
Sometime thereafter, PW 1, another companystable attached to the Tuticorin Police Station, came there on his cycle.
The learned Judges of the High Court companyfirmed the companyviction of the appellants under Section 302/34, I.P.C. and also came to the companyclusion that the Trial Court had rightly visited the appellants with the extreme punishment of death.
The appellants filed an appeal challenging their companyvictions.
219 hereinafter referred to as the deceased came there on a cycle.
p.m., when PW 2 was sitting near a printing press on 12th Street in Briyant Nagar the appellants came there hurling abuses to the Naicker companymunity stating that their women deserve to be stripped naked and raped and their houses set on fire.
Based on the evidence, under Section 302, I.P.C., read with Section 34, I sentence each one of them to death till their death and the sentence is to be companyfirmed by the High Court.
The facts leading to their companyviction are that on 8th April, 1984, at about 3.15.
Ahmadi, J. The two appellants having been companyvicted under Section 302/34, I.P.C. and sentenced to death have approached this Court by way of special leave.
