IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26/03/2004 Coram The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.R. SINGHARAVLELU Referred Trial No. 1 of 2004 and Criminal Appeal No. 311 of 2004. R.T.No.1/2004 Principal Sessions Judge, Virudhunagar District at Srivilliputhur. ..Referring Officer. Marimuthu, Son of Balaswamy, Thiruvannamalai, Srivilliputhur, Virudhunagar District. (Now lodged at Central Prison, Madurai). ..Respondent. Crl.Appeal No.311 of 2004 Marimuthu, Son of Balaswamy, Thiruvannamalai, Srivilliputhur, Virudhunagar District. .. Appellant -Vs- State by Inspector of Police, Srivilliputhur Town Police Station, Srivilliputhur, Crime No. 434/99. ..Respondent. Referred Trial for confirmation of death sentence passed by judgment dated 06-02-2004 in S.C.No. 227/2000 on the file of Principal Sessions Judge, Virudhunagar District at Srivilliputhur and Criminal Appeal by the accused in S.C.No.227/2000 against the same judgment. !Mr. P. Venkatasubramanian:- For Appellant in C.A & Respondent in RT. ^Mr. I. Subramanian, Public Prosecutor:- For Respondent in C.A. :JUDGEMENT (Judgement of the Court was delivered by P. Sathasivam, J.,) Marimuthu, Single accused in Sessions Case No. 227 of 2000 on the file of Principal Sessions Judge, Virudhunagar District at Srivilliputhur is the appellant before us. He was charged for murdering three people, and for attempting to murder three more people on 1-5-1999. He faced trial on the said charges and convicted and sentenced to death for offence under Sections 302 I.P.C., (3 counts); seven years R.I. for each count for offence under section 307 I.P.C.(3 counts); and three years R.I. for offence under Section 449 I.P.C. on 06-02-2004 by the Principal Sessions Judge, Virudhunagar District at Srivilliputhur. On the reference made by the learned District Judge, both the Reference and Appeal were heard together. 2. For convenience, the parties are referred herein as described in the trial Court. The case of the prosecution is briefly stated hereunder: (a) The accused is a native of Thiruvannamalai village, Srivilliputhur Taluk, Virudhuangar District. He was married to one Perumal Ammal (third deceased-in short "D3"), Ramalakshmi (P.W.31) and Murugeswari (P.W.1). He wanted to marry another lady by name Lakshmi (P.W.13), who happened to be none other than the sister of D3, fourth time. The accused considered the presence of P.W.1 i.e., his third wife as a stumbling block to his wishes and therefore he decided to finish her off. In the course of events, the accused ended up murdering three people and severely injuring three more. b) On 01-05-1999, around 3 P.M., the accused picked up quarrel with P.W.1 stating that she is the stumbling block in his not being able to marry P.W.13. In the course of arguments, the accused attacked P.W.1 with Aruval (M.O.4). When one Vellayammal (1st deceased-in short "D1"), who is the mother of P.W.1 intervened, she was brutally injured and she succumbed to the injuries on the spot. c) Thereafter, the accused went to the house of Thangaia Pillai (Deceased No.2-in short "D2") who is the father of D3 and P.W.13-Lakshmi. There he picked up a quarrel, in the course of which he attacked D2, P.W.12,Muthuveerammal and P.W.13-Lakshmi. D3, who intervened at that time, was brutally attacked by the accused. D3 also succumbed to the injuries on the spot. P.w.19 arranged for a van to transport the injured to the Hospital at the request of P.W.13. P.W.12, P.W.13, D2 and P.W.1 were transported in the van to the Srivilliputhur Government Hospital. On the basis of information received through telephone, P.W,.50-Sub Inspector of Police, Srivilliputhur Town Police Station, rushed to the hospital and recorded the statement of P.W.1. First Information Report was recorded at the hospital itself. Thereafter, around 7 P.M. P.W.50 returned to Police Station and registered a case in Crime No. 434/1999. A copy of First Information Report was sent to Judicial Magistrate No.2 through P.W.48, Head Constable and it reached the Judicial Magistrate No.2 at 23.30 hours on 01-05-1999. P.W.49 is the investigation officer. P.W.50 conducted inquest on D1 and D3 on the night of 01-05-1999 and thereafter in the early hours on 02-05-1999 he conducted inquest on D2 whose body was in the Srivilliputhur Government Hospital. d) The accused was arrested on 19-5-99. He gave a voluntary confession statement, pursuant to which M.O.4-Aruval and other Material Objects were recovered. Blood-stained objects were sent for Serologist report. 3. The prosecution has examined as many as 50 witnesses as P.Ws.1 to 50, marked documents-Exs. P-1 to P-39 and produced M.Os.1 to 43. On the side of the accused, no one was examined and no documentar was marked. 4. When the accused was questioned under Section 313 Cr. P.C., with regard to the incriminating circumstances appearing against him, he denied the offences and pleaded not guilty. 5. On appreciation of oral and documentary evidence, after accepting the prosecution case, the learned Principal Sessions Judge convicted the accused on all the charges and sentenced to death for offence under Section 302 IPC (3 counts); R.I. for 7 years for each count under Section 307 IPC (3 counts); and R.I. for 3 years for the offence under Section 449 IPC and all the sentences were ordered to run concurrently. Hence the Reference at the instance of the learned trial Judge and Appeal by the accused. 6. Heard Mr.P. Venkatasubramanian, learned counsel for the appellant/accused and Mr. I. Subramanian, State Public Prosecutor for Respondent/Complianant. 7. (a) Mr. P. Venkatasubramanian, learned counsel for the accused after taking us through the entire materials placed before the trial Court, would contend that the Court below failed to note that the accused had no motive to commit the offences. He also contended that the Court below failed to appreciate the material contradictions found in the evidence of prosecution witnesses. He also contended that inasmuch as most of the prosecution witnesses turned hostile, particularly for second occurrence, the conviction and sentence cannot be sustained. In any event, according to him, the capital punishment of death sentence is not warranted. b) On the other hand, Mr. I. Subramanian, learned State Public Prosecutor, would contend that inasmuch as the prosecution has established motive for the occurrence, no reason to disbelieve the three injured eye witnesses to the occurrence. He further contended that the prosecution has proved the first and second occurrences by placing acceptable evidence and in the absence of any mitigating circumstance, considering the gravity of the offences, namely, murdering 3 persons and attempting to murder 3 more persons, the learned trial Judge has rightly convicted and sentenced him by awarding appropriate punishment and no interference is called for. 8. We have carefully considered the rival submissions. 9. The first charge against the accused is under Section 302 IPC (3 counts); second charge is under Section 449 IPC; and the third charge is under Section 307 IPC (3 counts). The occurrence took place on 01-05-1999. The motive for the occurrence as seen from the prosecution evidence is that though the accused married to D3, P.W.31 and P.W.1, he wanted to marry P.W.13 fourth time. P.W.13 is none other than the sister of D3. The accused considered the presence of P.W.1 as an obstacle to his wishes and, therefore, decided to finish her off. P.W.1-Murugeswari, third wife of the accused, has stated that though initially she did not give her consent for marrying the accused, on persuasion by her parents, the marriage was performed in Perumal Koil at Thiruvannamalai. After the marriage, she lived with him three years. Only when she came to the accused's house, she came to know that the accused married her as his third wife. On the date of the occurrence i.e.,on 1-5-99, her mother-D1 came to her house. P.W.1 told to her mother-D1 that the accused pledged her stud ( kammal), for which she (D1) shouted her and also informed this fact to the paternal uncle of the accused, who was residing in the neighbouring house. In the evening around 3 P.M., his paternal uncle came to his house and shouted at the accused. At that time, P.W.1 and D1 were sitting under a tree near her house. Having infuriated with the shouting of his uncle, the accused came out from the house with an Aruval and cut on her neck with the said Aruval. The cut fell on her left shoulder. When she attempted to run, he inflicted several cut injuries of her left arm, left chest, hip, stomach etc. When her mother D1 questioned the conduct of the accused in cutting her daughter/he ( accused) cut her mother on the left wrist with the same Aruval and again inflicted injuries on the chest, neck, due to which D1 fell down and succumbed to the injuries on the spot. It is also the evidence of P.W.1 that when she questioned the conduct of the accused, namely in attempting to marry Lakshmi-P.W.13, the accused shouted that "you are the stumbling block" and inflicted several injuries on her. After causing injuries to P.W.1 and murdering D1, the accused left the first scene of occurrence and rushed towards west with Aruval. The same was witnessed by the neighbours, namely, Ramesh-P.W.27, Mariappan-P.W.28, and Mariammal-P.W.4. The first occurrence took place at 3 P.M. and after causing grievous injuries to P.W.1 and fatal injuries to D1, the accused went to the second place of occurrence at 3.15 P.M. 10. With reference to the second occurrence, P.W.12Muthuveerammal, another injured eye witness, narrated the same. The accused is her nephew (brother's son) and she is the mother of P.W.13 and D3, who is the first wife of the accused. She is also the wife of D2. She speaks about the three marriages the accused had and the sequence of events that led to the death of her daughter D3 and husband D2. She speaks about the accused getting furious as he was refused to marry P.W.13 as his fourth wife. P.W.12 explained before the Court that when Thangaiya Pillai, her husband and D2, taking rest outside the house and she and her daughter-Lakshmi-P.W.13 were inside the house. Her another daughter Perumal Ammal (D3) was seeing Television in the next house. On hearing the noise of the accused and her husband-D2, P.W.12 and P.W.13 came out and saw the accused cutting his husband-D2 with Aruval by saying that "without giving his daughter to him, how they arranged her marriage to somebody. Thereafter, the accused pulled P.W.13 with a request to marry him. When she refused to accede to his request and P.W.12 pushed her, the accused cut her (P.W.12) left hand and right hand. He also inflicted injuries on both the hands and legs. When Perumal Ammal-D3 questioned the conduct of the accused, after shouting that "cd;idiaj; jhz;o njondd;/////@ cut injury on her hip and thereafter causing several injuries on her body. D3 fell down and died on the spot. 11. Apart from the injured witnesses P.W.1, and P.W.12, another injured person namely Lakshmi-P.W.13 narrated the second occurrence that took place at 3.15 P.M. P.W.13 is none other than the sister of D-3 and second daughter of P.W.12 and D2. She also explained about the three marriages the accused had and the sequence of events that led to the death of her sister D3 and her father D2. She also speaks about the accused getting furious, as his request to her parents to marry her as his fourth wife was negatived. 12. The prosecution has also examined P.W.6 Meenakshi, who is the wife of P.W.5. She deposed before the Court that she saw P.W.1 pleading to her husband (accused) not to injure her, but still the accused inflicted several injuries on her. She also deposed that after injuring P.W.1 and causing the death of D1, the accused went towards the western side with Aruval-M.O.4. 13. One K. Govindaraj who lives close to the house of D1 and D3 was examined as P.W.14. He implicated the accused with the second occurrence and he saw the accused cutting D2 and D3 and causing injuries to P.Ws.12 and 13. P.W.15 is his wife. He also speaks about the three marriages the accused had. At 3.15 P.M., he saw the accused coming with Aruval-M.O.4 and inflicting several injuries on Thangaiya Pillai-D2. P.W.14 his wife P.W.15 deposed that when they rushed to the scene of occurrence, the accused threatened them. At that time, P.W.14 saw several injuries on Thangaiya Pillai-D2; Muthu Veerammal-P.W.12; Lakshmi-P.W.13. He referred to the various injuries inflicted by the accused on all those persons. Due to the injuries, D3 fell down and succumbed to the injuries on the spot. He saw the accused running towards west with Aruval-M.O.4. 14. P.W.17, who lives 4 or 5 houses away from D2's house, deposed that she knows the accused. She heard a noise from P.W.12's house. She went there and saw P.W.12, P.W.13 and D2 with cut injuries. She was told that the accused attacked them. 15. P.W.19-Pechiammal deposed that at the request of P.W.13, she arranged a van to transport the injured to the hospital. 16. P.W.28-Mariappan, who resides at Thiruvannamalai and runs a provision store, has stated that the accused's house is situated on the western side of his house. He also stated that P.W.1 is the third wife of the accused and that the accused and P.W.1 fought often. He further deposed that around 3 P.M. on the date of occurrence, when he was in his shop, he heard some noise and got down from his shop and saw the accused fighting with D1 and P.W.1-Murugeswari. According to him, when he tried to negotiate the accused, the latter threatened him with dire consequence. He further deposed that the accused cut P.W.1 and D1 with Aruval and left the place. He also deposed that he heard through P.W.4 that the accused caused injuries to D2, D3 and P.Ws.12 and 13. He further deposed that he along with others helped the injured in transporting them in a van to the hospital for treatment. 17. P.W.29, brother of P.W.1 and son of D.1, deposed that the accused and his sister P.W.1 used to fight each other often. He also deposed that the accused promised to live with her without any problem and that the accused signed a compromise deed on 28-3-99. P.W.30, who is the Village President of the village to which P.W.1 belongs, also deposed that a compromise deed dated 28-3-99 was entered into by the accused and his father and he put his signature along with few others as witness. 18. Second wife of the accused, namely, Ramalakshmi, P.W.31, explained about the character of the accused. According to her, only after getting married, she came to know that the accused had already married one Perumal Ammal as 1st wife. He explained about the torture given by the accused and his father. She also explained the divorce between herself and the accused and that the divorce terms were reduced to writing in a stamp paper. Her father Chinnaiya Pillai was examined as P.W.32. He also explained about the character of the accused. He speaks about the getting of marriage of her daughter Ramalakshmi with the accused and about the torture she experienced at the hands of the accused. On the intervention of the village headmen, a divorce between his daughter Ramalakshmi and the accused was proposed and a release deed to that effect was reached. Ex. P-4 is the release deed. P.W.33 Srinivasan, brother of P.W.12, has stated that P.W.12 approached him with a proposal to marry her second daughter Lakshmi with his (P.W.33) son Duraipandi due to the problem created by the accused. Accordingly, a betrothal was done to perform the marriage between P.W.13 and the son of P.W.33 in Vaikasi, 1999. 19. The evidence of the above witnesses, particularly the injured eye witnesses, namely, P.Ws.1,12, and 13 would clearly prove that the accused had married Perumal Ammal (D3) first time; then Ramalakshmi (P.W.31) second time; and then Murugeswari (P.W.1) third time; and finally attempted to marry Lakshmi (P.W.13) fourth time. The evidence would also prove that the accused caused the death of D1, D2, D3, and inflicting injuries on several persons, including P.Ws.1,12 and 13. There is no reason to disbelieve their versions. Apart from the evidence of the injured witnesses, namely, P.Ws.1, 12 and 13, the other witnesses, namely, P.Ws.6, 14, 17, 19, 28, 29, 30, 3 1, 32 and 33 explained about the conduct of the accused, in marrying 3 persons, attempting to marry another person-P.W.13, refusal by the parents of P.W.13, the action of P.W.1 questioning the conduct of the accused, causing fatal injuries on D1, D2 and D3 and inflicting injuries on P.Ws. 1, 12 and 13. There is no reason to disbelieve their version. 20. Now let us consider the medical evidence with reference to the death of D1, D2 and D3 and the injured persons-P.Ws.1, 12 and 13. P.W.41, Dr. Santhanakrishnan, Assistant Medical Officer attached to Government Hospital, Srivilliputhur explained the injuries found on P.Ws.12 and 12 and the treatment given to them. He deposed that there were 9 injuries found on P.W.12, of which injuries 1,3,4 and 6 are grievous in nature. He also found 6 injuries on P.W.13 of which, injuries 1 to 4 are grievous in nature. Exs. P-19 and P-20 are the respective wound certificates issued to P.W.12 and P.W.13 respectively. He also deposed that the said injuries could have been caused by a weapon like M.O.4 Aruval. P.Ws.12 and 13 were sent to Madurai Government Hospital for further treatment. 21. P.W.42, Dr. Veerasekar, Assistant Professor of Surgery in Government Rajaji Hospital, Madurai, has stated that P.Ws.12 and 13 were brought to Madurai Government Hospital from Srivilliputhur Government Hospital for further treatment. After taking treatment, according to him, P.W.12 was discharged on 8-5-99 and P.W.13 on 17-8-99. The medical reports of P.Ws.12 and 13 are Exs. P-21 and P-22 respectively. 22. Dr. Mary, the then Medical Officer of Srivilliputhur Government Hospital was examined as P.W.44. She treated P.W.1. She explained about the treatment given to P.W.1 and the injuries she had sustained. She found as many as 5 injuries on her and according to her, among the injuries, injury Nos. 2 and 3 are grievous in nature and the injuries could have been caused by a weapon like by M.O.4. Ex.P-26 is the wound certificate issued by her. 23. Dr. V. Raviraman, Chief Medical Officer in Orthopaedic Department, Rajaji Government Hospital, Madurai, was examined as P.W.46. He deposed that on 1-5-99 at 9 p.m. P.W.1-Murugeswari was brought to his hospital from Government Hospital, Srivilliputhur for further treatment. He found on her a fracture on her left shoulder, and injuries on her upper arm, left fore-arm, left flank and left abdomen. She was admitted as an in-patient till 14-7-99 and the medical report issued to her is Ex. P-27. 24. P.W.43, Dr. A.S. Ramesh, Assistant Medical Officer, Government Hospital, Srivilliputhur, conducted Post-mortem on the body of D1, D2 and D3. He noted 5 external injuries on the body of D1 and issued Post-mortem certificate Ex.P-23. He also noted 6 external injuries on the body of D2 and issued Post-mortem certificate Ex.P-2 5. He found 4 external injuries on the body of D-3 and issued Ex.P-2 4 Post-mortem certificate. When M.O.43 was questioned as to the possibility of the injuries, he has stated that the injuries on D1, D2 and D3 were possible by means of Aruval like M.O.4. The evidence of P.Ws.41, 42, 43 and 44 and 46 amply prove and speak about the injuries sustained on P.Ws. 1, 12 and 13 and bodily injuries found in D1, D2 and D3. They also opined that those injuries could have been caused by a weapon like M.O.4. We are satisfied that the evidence of P.Ws.41 to 44, and 46, wound certificates-Exs. P-19, P-20, P-21, P-22, P-2 6 and P-27 and Postmortem certificates-Exs. P-23, 24 and 25 clearly prove the case of the prosecution. 25. One K. Subbaram, the then Sub Inspector of Police, Srivilliputhur Town Police Station and now retired, was examined as P.W.50. He deposed that on 1-5-99 at about 5.45 P.M., he received a phone message around 6 P.M. from the Government Hospital, Srivilliputhur, went there and obtained information memo-Ex.P-39, and recorded statement-Ex.P1 from P.W.1-Murugeswari between 6.15 P.M. and 6.45 P.M. Then he returned to the Police Station at 7 P.M.,, registered a case in Crime No. 434 of 1999 under Sections 307 and 302 IPC and and sent the F.I.R. and other documents to the Court. Ex. P-33 is the printed First Information Report. Then he entrusted the case to the Inspector of Police for further investigation. 26. P.W.49, the then Inspector of Pollice, Srivilliputhur Town Police Station, elaborated about the visiting the scene of occurrence, preparing mahazar, collection of samples for chemical analysis, sending the bodies for Post-mortem, arrest of the accused on 19-5-1999, recording of the confessional statement given by the accused, recovery of M.O.4 pursuant to that, preparation of sketch in the scene of occurrence, recording the statement of witnesses etc. We are satisfied that there is no delay in complaining the incident to the police, sending the First Information Report to the Court and the investigation done by P.W.49 upto the filing of charge sheet on 4-11-99 against the accused under Sections 449, 307 and 302 I.P.C. 27. P.W.38, S.T. Venkatakrishnan, Village Administrative Officer, Venkateshvarapuram, on 1-5-99 at about 8 P.M., attested observation mahazar-Ex.P-6, along with one Murugan, prepared by the Inspector of Police in the scene of occurrence. He speaks about the collection of samples such as blood-stained sand from the scene of occurrence. P.W.39-K. Natarajan deposed that on 19-5-99 at about 10.30 A.M., the Inspector of Police enquired the accused at Madagarvilagam grave yard, Srivilliputhur in his presence. At that time the accused gave a confessional statement, the admissible portion of which is Ex. P-13. Pursuant to Ex.P-13, M.O.35 was recovered from one Koodalingam under Ex. P-14 mahazar at 2.45 P.M., at Sannathi Street, Srivilliputhur; and M.O.4 Aruval, blood-stained shirt-M.O.36 and bloodstained Kaili-M.O.37 were recovered under Ex.P-15 mahzar at about 1.30 P.M. between two rocks at Thiruvannamalai. He attested Exs. P-14 and P-15 . P.W.40-Rajmohan, Assistant Medical Officer and Radiologist, Rajaji Government Hospital, Madurai to whom X-rays taken from P.Ws.1, 12 and 13 had been referred to. He explained about the X-rays-M.Os.38, 39 and 40 and he issued reports Exs. P-16, 17 and 18. 28. The evidence of witnesses, particularly the evidence of P.Ws.1, 12 and 13, coupled with the above materials clearly prove the motive for the occurrence and the manner in which the accused murdered D1, D2 and D3 and caused grievous injuries to P.Ws.1, 12 and 13. The prosecution has also clearly established the fact that all the injuries were caused by using M.O.4 Aruval and accordingly hold that the prosecution has proved all the charges framed against the accused beyond all reasonable doubts. 29. Now let us consider the sentence awarded to the accused, more particularly whether the capital punishment, namely, death sentence awarded to the accused is acceptable or not? As a matter of fact, the argument advanced by the learned counsel appearing for the appellant is with regard to the awarding of sentence. In this aspect, he (learned counsel for the appellant) points out two infirmities in the order of the learned Sessions Judge. According to him, after arriving at a conclusion that the prosecution has proved its case beyond all reasonable doubts in respect of the charges levelled against the accused, the trial Court, while questioning the accused as to the awarding of sentence or proposed punishment, failed to follow the provisions contained in sub-section (2) of Section 235 of the Code of Criminal Procedure. According to him, the learned Sessions Judge without affording an adequate opportunity to the accused to highlight his mitigating circumstance, imposed the sentence of death on the same day i.e., on 05-02-2004. He also points out that the procedure followed and adopted by the learned Sessions Judge is not acceptable and not in consonance with the provisions referred to above. He further contended that affording an opportunity of hearing before passing the order of sentence is mandatory and it is illegal to convict and