BAIL SLIP 1. That the appellants 1 to 7/Accused Nos.23 to 27, 29 & 30 Viz., 1. Suresh 2. Chandran 3.Arul 4.Sundaram 5.Raja 6.Mahendran and 7.Jalendran on the file of this High Court were enlarged on bail as per order dated 22.1.2004 in Crl.MP.No.10/2004 in Crl.A. 3 of 2004. 2. That the appellant/Accused No.7 Viz., Rajamani, on the file of this High Court was enlarged on bail as per order dated 21.1.2004 in Crl.MP.No.37/2004 in Crl.A. 11 of 2004. 3. That the appellant/Accused No.13 Viz., Venkat in Crl.A.No.13/2004 on the file of this High Court was enlarged on bail as per order dated 21.1.2004 in Crl.MP.No.46/2004 in Crl.A. 13 of 2004. 4. That the appellant/Accused No.14 Viz., Munusamy on the file of this High Court was enlarged on bail as per order dated 21.1.2004 in Crl.MP.No.60/2004 in Crl.A. 17 of 2004. 5. That the appellant/Accused No.6, 11 and 22 Viz., 1.Devanesan @ Mahadevan, 2.Palani, 3.Peter, on the file of this High Court were enlarged on bail as per order of Court dated 8.4.2004 in Crl.MP.No.4204/2004 (A6) and dated 3.2.2004 in Crl.MP.No.94/04 (A11 & A22). 6. That the appellant/Accused No.19 Viz., Venkatesan in Crl.A.No.24/2004 on the file of this High Court was enlarged on bail as per order of court dated 3.2.2004 in Crl.MP.No.99/2004 in Crl.A. 24 of 2004. 7. That the appellants/Accused Nos.3 & 4 Viz., Meganathan and Purushothaman were enlarged on bail as per order of court dated 29.3.04 in Crl.MP.No.2805/2004 in Crl.A. 51 of 2004. 8. That the appellants/Accused Nos.2, 8, 9, 10, 12, 16, 17 & 18, Viz., 1.Rajendran, 2.Mohan, 3.Shankar, 4.Murugan, 5.James, 6.Vadivelu, 7.Ponnuvelu, 8.Ganesan in Crl.A.No.134/2004 on the file of this High Court were enlarged on bail as per order dated 26.2.04 in Crl.MP.No.907/2004 in Crl.A. 134 of 2004. 9. That the appellant/Accused Nos.5, 15, 20 & 21 Viz., 1.Pandian, 2.Guna, 3.Manoharan, 4.Raja in Crl.A.No.147/2004 on the file of this High Court were enlarged on bail as per order dated 16.2.2004 in Crl.MP.No.1092/2004 (A20 & 21) and dated 29.3.2004 in CrlMP.2680/2004 in Crl.A. 147 of 2004 respectively. 10. That the appellant/Accused No.1 Viz., Sarangan in Crl.A.No.152/2004 on the file of this High Court was enlarged on bail as per order of this court dated 27.1.2006 in Crl.MP.No.124/2006 in Crl.A. 152 of 2004. https://hcservices.ecourts.gov.in/hcservices/ IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-9-2006 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN AND THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.A.Nos.3, 11, 13, 17, 21, 24, 51, 134, 147, 152 and 468 of 2004 1.Suresh 2.Chandran 3.Arul 4.Sundaram 5.Raja 6.Mahendran 7.Jalendran .. Appellants in CA 3/2004 Accused Nos.23 to 27, 29 & 30 Rajamani .. Appellant in CA 11/2004 Accused No. 7 Venkat .. Appellant in CA 13/2004 Accused No. 1 Munusamy .. Appellant in CA 17/2004 Accused No. 14 1.Devanesan @ Mahadevan 2.Palani 3.Peter .. Appellants in CA 21/2004 Accused Nos. 6, 11, 22 Venkatesan .. Appellant in CA 24/2004 Accused No. 19 1.Meganathan 2.Purushothaman .. Appellants in CA 51/2004 A3 & 4 1.Rajendran 2.Mohan 3.Shankar 4.Murugan 5.James 6.Vadivelu 7.Ponnuvelu 8.Ganesan .. Appellants in CA 134/2004 Accused Nos.2, 8, 9, 10, 12, 16, 17 & 18 https://hcservices.ecourts.gov.in/hcservices/ 1.Pandian 2.Guna 3.Manoharan 4.Raja .. Appellants in CA 147/2004 Accused 5, 15, 20 & 21 Sarangan .. Appellant in CA 152/2004 A1, vs State rep. by Inspector of Police Vellavedu Police Station (Crime No.2448/1993) .. Respondent in all appeals State by: Inspector of Police Vellavedu Police Station Vellavedu Cr.No.2448/1993 .. Appellant in CA 468/2004 vs 1.Sarangan 2.Rajendran 3.Meganathan 4.Purushothaman 5.Pandian 6.Devanesan @ Mahadevan 7.Rajamani 8.Mohan 9.Sankar 10.Murugan 11.Palani 12.James 13.Venkat 14.Munusamy 15.Guna 16.Vadivelu 17.Ponnuvelu 18.Ganesan 19.Venkatesan 20.Manoharan 21.Raja 22.Peter 23.Suresh 24.Chandran 25.Arul 26.Sundaram 27.Raja 28.Elumalai 29.Mahendran https://hcservices.ecourts.gov.in/hcservices/ 30.Jalendran .. Respondents in CA 468/2004 Criminal appeals 3, 11, 13, 17, 21, 24, 51, 134, 147 and 152 of 2004 preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge (Fast Track Court No.3), Chilgleput District at Poonamallee in S.C.No.286 of 2002 dated 29.12.2003. C.A.No.468 of 2004 preferred under Sec.378 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge (Fast Track Court No.3), Chilgleput District at Poonamallee in S.C.No.286 of 2002 dated 29.12.2003 seeking to set aside the order of acquittal. For Appellants : Mr.T.Sudanthiram for A-23 to A-27, A-29, A-30, A-14, A-2, A-12, A-5, A-15, A-20, A-21 Mr.R.S.Jeevaratnam for A-7 Mr.T.Munirathina Naidu for A-13 Mr.A.Padmanabhan for A-6, A-11, A-22 Mr.A.M.Rahmath Ali for A-19 Mr.K.Veeraragavan for A-3, A-4, A-1 Mr.R.Gothandaraman for A-8 to A-10, A-16, A-17 A-18 died For Respondent/ State : Mr.P.Kumaresan, A.P.P. For Appellant in CA 468/2004 : Mr.P.Kumaresan, A.P.P. For Respondents in CA 468/2004 : Mr.T.Sudanthiram for A-5, A-14, A-15, A-20, A-21, A-23, A-24, A-26, A-27, A-29 & A-30 Mr.K.P.Chandrasekaran for A-22 Mr.E.Rajaram for A-23, A-24, A-27 and A-29 Mr.K.Veeraraghavan Amicus Curiae for A-28 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (Judgment of this Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern all these appeals in C.A.Nos.3, 11, 13, 17, 21, 24, 51, 134, 147 and 152 of 2004 preferred by A-23 to A-27, A-29, A-30; A-7; A-13; A-14; A-6, A-11, A-22; A-19; A-3, A-4; A-2, A-8 to A-10, A-12, A-16 to A-18; A-5, A-15, A-20, A-21; and A-1 respectively, who stood charged, tried and found guilty by the Court below namely the Additional Sessions Court, Fast Track Court No.3, Poonamallee, in S.C.No.286 of 2002, as follows: CHARGES: A-1 to A-30 under Sec.148 of I.P.C. A-1 to A-5 and A-8 to A-19 under Sec.302 of I.P.C. A-6 under Sec.302 (2 counts) I.P.C. A-1 to A-5 and A-8 to A-19 under Sec.302 read with 149 IPC. A-20 to A-30 under Sec.302 read with 149 (2 counts) I.P.C. A-2, A-3, A-6 and A-20 to A-23 under Sec.307 of I.P.C. A-1, A-4, A-5, A-7 to A-19 and A-24 to A-30 under Sec.307 read with 149 of I.P.C. A-25 under Sec.324 (2 counts) IPC. A-1 to A-24 and A-26 to A-30 under Sec.324 read with 149 (2 counts) IPC. A-17 and A-26 under Sec.326 of IPC. A-1 to A-16, A-18 to A-25 and A-27 to A-30 under Sec.326 read with 149 of IPC. CONVICTION AND SENTENCE: A-1 – Guilty under Sec.302 IPC – life imprisonment and a fine of Rs.10,000/- with default sentence. Guilty under Sec.148 IPC – two years Rigorous Imprisonment. A-6 – Guilty under Sec.304(ii) (2 counts) IPC – 10 years Rigorous Imprisonment for each count and a fine of Rs.2,500/- with default sentence. Guilty under Sec.148 IPC – 2 years Rigorous Imprisonment. A-2 to A-5 and A-8 to A-16 – Guilty under Sec.304(ii) IPC – 7 years Rigorous Imprisonment. A-7, A-17 and A-18 – Guilty under Sec.304 (ii) of IPC – 4 years Rigorous Imprisonment. A-2 to A-5 and A-7 to A-18 – Guilty under Sec.148 of IPC – 1 year Rigorous Imprisonment. A-3, A-19, A-20, A-21 and A-22 – Guilty under Sec.307 of IPC – 4 years Rigorous Imprisonment. Guilty under Sec.148 of IPC – 1 year Rigorous Imprisonment. A-23 – Guilty under Sec.324 of IPC – 1 year Rigorous Imprisonment. Guilty under Sec.148 of IPC – 6 months Rigorous Imprisonment. https://hcservices.ecourts.gov.in/hcservices/ A-24 – Guilty under Sec.324 of IPC – 1 year Rigorous Imprisonment. Guilty under Sec.148 of IPC – 6 months Rigorous Imprisonment. A-25 to A-27, A-29 and A-30 – Guilty under Sec.148 of IPC – 6 months Rigorous Imprisonment. 2.Aggrieved over the order of acquittal made in the same judgment in respect of the first accused with regard to certain charges and in respect of the other accused with regard to all the charges as found in the judgment, the State has brought forth an appeal in C.A.No.468/2004. 3.Since all the appeals have come from the same judgment, the Court feels that it would be fit and proper to narrate the prosecution case in brief which runs as follows: (a) P.W.1 is the son of the first deceased Nathanvel. The first deceased along with his family members was residing at Udaiyar Koil. The second deceased Petharu was also one of his sons. The first son of the said Nathanvel namely Moses, raised certain objections and also gave a complaint alleging that the first accused and his men made encroachment over the temple properties and also the poramboke lands belonging to the Government. On that ground, they were on inimical terms. On 26.6.1993, there was a band music programme in connection with the marriage function of one Palani. The second deceased Petharu, the said Palani and others danced to the tunes of the band music. There arose a quarrel, in which one Sundar and Ekambaram were attacked by the dancing persons. The son of the first deceased, Moses, and Devanesan who is examined as P.W.1, pacified the situation, and this was also immediate motive for the occurrence. (b) On 27.6.1993, at about 9.00 A.M., all the accused including two accused Sekar and Arumugam, who died subsequently, came to the place of occurrence, all having weapons like wooden logs, iron pipes, cycle chains, etc. When they came, the first accused was questioning whether Moses was available. When an answer was given in the negative, he asked all other accused to attack. A-1 attacked the first deceased with a patta knife on the right eyebrow. A-3 attacked him with a patta knife on the left arm. A-4 attacked on his head with a patta knife. A-5 with a patta knife attacked on his head. A-6 also attacked him on the shoulder. When the second deceased Petharu, who is the son of the first deceased, questioned, A-6 immediately attacked him with a patta knife on the left cheek. A-8 attacked on his head with a patta knife, and A-9 cut him on the flank with a patta knife. A- 10 also attacked him on the back with a knife. A-11 cut him on the back with an iron pipe. A-12, A-13, A-15 and A-16 attacked him with the wooden logs. When these two persons were attacked, they fell down. At that time, the other persons who were all eyewitnesses namely P.Ws.2, 3 and 4, intervened. P.W.2 was attacked by A-3, A-6 and A-19 to A-22 with cycle chain, knife, and also wooden log respectively. When P.W.3 intervened, he was https://hcservices.ecourts.gov.in/hcservices/ attacked by A-23 with a knife and also by A-24 with an iron pipe. When the deceased persons began to run from the place of occurrence, A-7 and the deceased accused Arumugam, chased them and attacked the first deceased with the wooden logs. A-17 and A-18 attacked the second deceased with the wooden logs. As a result of the attacks, both of them sustained severe and grievous injuries. All the accused, on hearing the distressing cry and seeing the crowd gathered, ran away from the place of occurrence. (c) P.W.13, the Inspector of Police, attached to Poonamallee Police Station, who got an intimation by telephone, immediately proceeded to the spot along with P.W.12, the Sub Inspector of Police, after making an entry in the General Diary. When they went to the spot P.W.1 gave a statement, which was recorded by P.W.12. The said statement stands marked as Ex.P1. Then, P.W.12 went to the Police Station and on the basis of Ex.P1, the complaint, registered a case in Crime No.2448/93 under Sections 147, 148, 323, 324 and 307 of I.P.C. The printed First Information Report, Ex.P12, was despatched to the Court. (d) P.W.13, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, made an inspection of the spot and prepared Ex.P2, the observation mahazar, and Ex.P23, the rough sketch. He recovered the material objects from the place of occurrence. Following the same, the two persons who sustained severe injuries, were taken to the hospital. The first deceased was taken to the Government General Hospital, while the second deceased was taken to Ramachandra Medical College Hospital. Both of them were declared dead. Following the same, the Investigator altered the case into Sec.302 of I.P.C. and sent an express report, Ex.P25, to the concerned Court. Then, the Investigator, who took up investigation, made an inquest on the dead bodies of Nathanvel and Petharu in the presence of witnesses and panchayatdars and prepared two inquest reports, Exs.P26 and P27, respectively. (e) The injured witnesses were also sent to the hospital. P.W.6, the Doctor, admitted P.W.2, and the accident register copy is Ex.P5. P.W.11, the Doctor, examined the first deceased and has given the accident register copy, Ex.P15. He also examined the second deceased, and Ex.P16 is the copy of the accident register. He also examined P.W.2 and has issued the accident register copy, Ex.P19. P.W.4 was examined by the same Doctor, and Ex.P21 is the copy of the accident register. Then, the Investigator gave requisitions to the hospital authorities for the conduct of autopsy. (f) P.W.10, the Medical Person, attached to the Government General Hospital, on receipt of the requisition, conducted autopsy on the dead body of Nathanvel and noticed cut injuries and contusions. The Doctor has issued Ex.P13, the postmotem certificate, with his opinion that the deceased died of head injuries. https://hcservices.ecourts.gov.in/hcservices/ (g) The same Doctor, P.W.10, on receipt of the requisition, conducted autopsy on the dead body of Petharu and found cut injuries and contusions. He gave Ex.P14, the postmortem certificate, with his opinion that the deceased died of multiple injuries. (h) Pending the investigation, the Investigator arrested A-8, A-9, A-10 and A-16 on 4.7.1993. The confessional statements voluntarily given by A-9 and A-16, were recorded. On 10.7.1993, he arrested A-17 and A-24. A-24 gave a confessional statement. The admissible part is marked as Ex.P29, pursuant to which, he produced an iron pipe, which was recovered under a cover of mahazar, Ex.P28. On 14.7.1993, A-23 was arrested. He gave a confessional statement. The admissible part is Ex.P30, pursuant to which, a knife was recovered under a cover of mahazar Ex.P31. The Investigator, pending the investigation, came to know that on 30.7.1993, A-1 and A-5 surrendered before the Court. He applied for police custody. It was also ordered, and police custody was taken. During enquiry, A-5 gave a confessional statement. The admissible part is marked as Ex.P33. A-1 gave a confessional statement. The admissible part is Ex.P31. Following the same, the knives which were used at the time of occurrence, were also recovered under a cover of mahazar Ex.P34. All the material objects recovered from the place of occurrence and also from the dead body, and the weapons of crime recovered pursuant to the confessional statements referred to above, were subjected to chemical analysis by the Forensic Sciences Department on a requisition given by the Investigator through the concerned Court, which resulted in two reports namely Ex.P36, the Chemical Analyst's report, and Exs.P37 and P38, the Serologist's reports. On completion of investigation, P.W.14, the Inspector of Police, who took up further investigation, filed the final report. 4.The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 14 witnesses and also relied on 38 exhibits and 24 material objects. On completion of the evidence on the side of the prosecution, all the accused were questioned under Sec.313 of the Code of Criminal Procedure procedurally as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and also paid its consideration on the materials available. After doing so, the lower Court found the appellants/accused guilty and awarded punishment as referred to above, while acquitted first accused in respect of the other charges and the other accused in respect of all the charges. Aggrieved over the said conviction and sentence, the appellants/accused have brought forth these appeals. Aggrieved over the acquittal part, the State has brought forth the appeal in C.A.No.468 of 2004. https://hcservices.ecourts.gov.in/hcservices/ 5.Advancing their arguments on behalf of the appellants, the learned Counsel would submit that in the instant case, the occurrence has taken place at about 9.00 A.M. on the alleged date i.e., 27.6.1993; that even as per the prosecution case, the occurrence has taken place in a public place; but, no one independent witness was examined; that all the witnesses examined namely P.Ws.1 to 4, were all closely related to both the deceased; that it is true that their evidence can be accepted; but, it must be tested by applying the test of careful scrutiny; that if applied, their evidence should have been rejected; that in the instant case, the evidence of P.Ws.1 to 4 is thoroughly filled with lot of discrepancies on the material particulars; that it is highly unacceptable that the F.I.R. has come into existence as put forth by the prosecution on number of grounds; that the occurrence has taken place at about 9.00 A.M.; that P.W.1 has spoken to the fact that within 5 to 10 minutes, just they got into the house, and immediately, when they came out, they saw the Police Officials; that according to the Investigating Officer, P.W.13, he got the telephone call, and he also made entry in the General Diary; but, the General Diary, though summoned, was not produced before the Court; that according to the Investigator, he was very clear as to the fact that the telephone call was pertaining to the occurrence; that when the said information was entered, the prosecution should have produced the General Diary also; that it seems that there was an answer by the prosecution that the same was destroyed; that the non-production of the General Diary before the Court will lead to the inference that had it been produced before the Court, it would have gone against the prosecution case, since it was the first information; that under the circumstances, what is now available before the Court alleged to have been given by P.W.1 to P.W.12, the Sub Inspector of Police, is only the second information and not the first information; that Ex.P1 is the statement which, according to the prosecution, was given by P.W.1 to P.W.12; but, the Investigator would claim that he was also present at the place; that had it been true, Ex.P1 would clearly reveal that the Investigator was also present either, or he should have recorded it; but, a perusal of Ex.P1 would clearly indicate that the Sub Inspector of Police has recorded the same; that it did not speak about the presence of P.W.13, the Investigator, at that time; that P.W.1 has categorically admitted that P.W.13 was also present at that time; that even P.W.13 has also admitted the same; that according to P.W.13, the statement of P.W.1 was recorded by P.W.12 in his presence, and P.W.12 took it to the Police Station, registered a case and brought a copy of the F.I.R. at about 10.00 A.M., and till the time, he was waiting at the place of occurrence; that it is highly unbelievable that for a period of two hours, he was waiting there; that added circumstance is that when the matter was actually brought to the notice of the police immediately and the case has also been registered, the F.I.R. has reached the Court at about 3.00 P.M.; that this delay was never explained by the prosecution; and that all would go to show that the F.I.R. has not come into existence as put forth by https://hcservices.ecourts.gov.in/hcservices/ the prosecution. 6.The learned Counsel would further add that in the instant case, P.W.3 was an eyewitness according to the prosecution; but, P.W.3 though claimed to have sustained cut injuries, never went to the Doctor; that she came forward to give a feeble explanation; that this would clearly show that she was neither eyewitness, nor she sustained injuries; that one person by name Maha, according to the prosecution, was very well available, and he also sustained injuries and was examined medically; that a medical certificate has also been produced by the prosecution; but, for the reasons best known to the prosecution, though he was cited as a witness, he was not examined before the Court; that it is a matter of surprise to note that a particular charge was framed in respect of the injuries sustained by him; that it is charge No.12; and that while a charge has been framed in a case like this, the non- examination of the said witness would be fatal to the prosecution case. 7.Added further the learned Counsel that in the instant case, one Jegannathan took all of them to the hospital; but, he was not examined; that according to the witnesses, he was also present; but, he was not examined; that in the instant case, so far as the eyewitnesses are concerned, there are lot of discrepancies in their evidence regarding the overt acts attributed; and that so far as Ex.P1 is concerned, it is highly doubtful whether it was the one given at that time. 8.The learned Counsel would add that as regards the first deceased, A-1 to A-6 have attacked him with the patta knives; that Ex.P1 does not speak about any one else, as if they attacked the first deceased; but at the time of evidence, there were some developments as if it was made by the other accused also namely A- 17, A-18 and the deceased accused, and thus, it was subsequent development after looking to the postmortem certificate; that the Doctor would speak about the fatal injury that was caused on the skull; but, it was not corresponding to any injury caused with the help of the patta knife; that it would be quite clear that the injuries caused by A-1 to A-6, as alleged by the prosecution, were not fatal; that so far as the fatal injury is concerned, the F.I.R. does not speak about the accused, who caused the same; that so far as the corresponding injuries are concerned, there are lot of discrepancies; that so far as P.W.2 was concerned, number of persons have also been found guilty under Sec.307 of I.P.C., and A-3 and A-19 to A-22 were found guilty under Sec.307 of I.P.C. and awarded punishment; that though the witnesses have spoken to the injuries sustained, no corresponding injuries are found in the medical opinion, and thus, they are entitled for an outright acquittal; that so far as P.W.3 was concerned, though she is alleged to have been injured, no medical opinion was canvassed; that the conviction recorded by the lower Court under Sec.324 of I.P.C. in respect of A-23 cannot be sustained; and that in the absence of any evidence, the lower Court has found him guilty under Sec.324 of I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 9.The learned Counsel would further add that in the instant case, it cannot be stated that they have got any common object; that the lower Court has spent a full paragraph in that regard wherein it is clearly found that there was nothing to show that all others had shared the same object of A-1, to call it as common object; that in the absence of common object, the lower Court should not have applied the penal provisions of Sections 148 and 149 of I.P.C.; that in the instant case, the prosecution has miserably failed to prove the case since it has suppressed the first information; that the second information what is before the Court is not believable; that the eyewitnesses have given discrepant evidence; and that if the test of careful scrutiny is applied, their evidence should be rejected. 10.It is further submitted by the learned Counsel for the appellants/accused that originally in the F.I.R., two persons were shown as Mahadevan and Devanesan as A-4 and A-8 respectively; but, at the later point of time, during the course of the evidence of P.W.1, it was found that both the names were pertaining to the same person; that it is only alias name; that at that point of time, it was found to be so; that no explanation was tendered by the prosecution; but, at the time of evidence, they wanted to shape the case in such a way; that it also casts a doubt on the prosecution case; that for