IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.3.2006 Coram:- The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice J.A.K.SAMPATHKUMAR Criminal Appeal No.964 of 2003 S.Rajesh @ Anantharaman ... Appellant/Accused Vs State Rep.by The Station House Officer, Coonoor Police Station, The Nilgiris District (Crime No. 290/1995) ... Respondent/Complainant Criminal Appeal is filed under Section 374 (2) of Cr.P.C. against the judgment passed by the District and Sessions Judge, Udhagamandalam in Sessions Case No.4 of 1997 dated 06.12.2000 . For appellant : Mr. V.K. Muthusamy, S.C. for Mr.G.Karthikeyan For Respondent : Mr.V.M.R. Rajendran Addl. Public Prosecutor JUDGMENT J.A.K.SAMPATHKUMAR, J. The above appeal is filed against the Judgment of District and Sessions Judge, Udhagamandalam in Sessions Case No. 04 of 1997 dated 06.12.2000, convicting the appellant/accused under Section 302 and 324 I.P.C. and sentenced him to undergo life Imprisonment and 3 years imprisonment respectively. 2.Originally, the accused along with 11 other accused were charge sheeted for various offences under IPC. The said case was numbered as S.C.No. 27 of 1996 on the file of the Nilgiris District Court, Udhagamandalam. Since the appellant/accused was absconding for a long time, his case was split up from the original case and numbered as S.C No.4 of 1997 and decided subsequently. https://hcservices.ecourts.gov.in/hcservices/ 3. In the meantime, the case against other 11 accused was tried and disposed of on 16.7.1997 in S.C.No. 27 of 1996, convicting the accused namely K.Balan and Varadarajan under Section 324 I.P.C. and sentenced them to suffer Rigorous Imprisonment for three years, after acquitting for the remaining charges levelled against them. At the same time, the accused namely S.K.Krishnamoorthy, Srinivasan, Manoj @ Manojkumar, Jawahar, Siva @ Sivaraj, Sathyanarayanan, Siva @ Sivakumar, Sudhakar and M. Ganesh who were also concerned in same case were acquitted in respect of all charges levelled against them in the same judgment. 4. The brief facts of the case are as follows: 4.1. The case on hand is with reference to communal clash between Hindus and Muslims at Coonoor. In pursuance of that, while there was a public meeting organised by V.H.P. at Krishnagiri, the people belongs to Muslims intervened and there was a clash between Hindus and Muslims and in that some persons sustained injuries. P.Ws. 6, 8, 9, 10 and 13 have narrated the incident about the communal clash between Hindus and Muslims. There is no dispute regarding this aspect. Thereafter only the present occurrence took place at the shop/house of the deceased Anwar on the same day at about 9.30 p.m i.e. on 14.4.1995. 4.2.The deceased Anwar is a muslim residing at No.1, Moors Garden, Coonoor and he is also running a bakery shop in his house. One Khadhar Sha was working in the shop of the deceased Anwar. He also sustained injury at the time of occurrence. He died during the time of trial and as such he could not be examined in this case. P.W.1, Maimoon Begam is the wife of the deceased. P.W.2, Azaruddin is the brother's son of the deceased. P.W.3, Saleem is the brother of the deceased. P.W.4, Banalal is the neighbour of the deceased who took the deceased to hospital in his jeep. P.W.5 Sundar, is the neighbour of the deceased who also sustained injury at the time of occurrence on the fateful day i.e. on 14.4.1995 at Coonoor. There was a communal clash between muslim and people belonging to Vishwa Hindu Parishat (V.H.P) group. Infused by the communal motive, on the same day at about 9.30 hours, the appellant/accused came to the sho pof the deceased Anwar in the motorcycle bearing registration No.TN-38- 1443 belonging to P.W.11, Ramanathan, and parked the motorcycle nearby. The appellant/accused was working under P.W.11 on the date of occurrence and used the said motorcycle at the time of occurrence. M.O.23 is the motorcycle bearing registration No. TN.38-1443. M.O.24 is the key bunch. 4.3.The accused namely, Balan and Varadarajan concerned in S.C. No.27 of 1996, following, the accused Rajesh @ Anantharaman (appellant herein) concerned in this case, came in the motorcycle bearing registration No.TN37 F 2855 and parked the same on the roadside. M.O.20 is the motorcycle. M.O.21 is the key bunch. M.O.22 is the registration Certificate of the motorcycle. The other accused namely S.K.Krishnamoorthy, Srinivasan, Manoj @ Monoj Kumar, Jawahar, Siva @ sivaraj, Sathyanarayanan, Siva @ Sivakumar, Sudhakar and M.Ganesh (A.3 to A.11) came in the van bearing registration No. TN.43-0919 and parked near the scene of occurrence. M.O.19 is the car TN.43-0919 belonging to Devaraj. M.O. 33 is the registration certificate of the car. https://hcservices.ecourts.gov.in/hcservices/ 4.4. In the meantime, the accused Rajesh @ Anantharaman (appellant herein) who came in the motorcycle M.O.23, entered in to the shop of the deceased Anwar and demanded chocolate. Before the deceased Anwar could give chocolate the accused Rajesh @ Anantharaman (appellant herein) took a bottle containing chocolates and broken the same. When questioned, the accused Rajesh @ Anantharaman (appellant herein) took M.O.1 and stabbed the deceased on his chest. In the meantime, the accused Balan and Varadarajan who came in the motorcycle TN.37-F-2855 took the weapon of offence kept in the motorcycle of the accused Rajesh @ Anantharaman (appellant herein) came to the shop of the deceased Anwar and assaulted him mercilessly. The accused Varadarajan assaulted Anwar by using Aruval M.O.5 and Iron Rod M.O.4 and caused grievous injuries. At the same time, the accused Balan assaulted Anwar with M.O.6 and caused grievous injuries. The shop boy who was working with the deceased Anwar in the said shop namely Khadhar Sha and the wife of the deceased Maimoon Bagum tried to intervene to prevent further assault. In that process, the appellant/accused assaulted Khadhar Sha with M.O.1 and caused simple injury. The brother's son of the deceased Anwar namely, Azaruddin was playing infront of the shop, witnessed the occurrence. On hearing the noise, neighbours came to the scene of occurrence. P.W.5 Sundar, is the neighbour came there to help, was assaulted by second accused with the weapon of offence and caused grievous injury. Thereafter, all the accused left the scene of occurrence. On hearing the incident, brother of the deceased namely, Salim (P.W.3) and neighbour namely Banalal P.W.4 came to the scene of occurrence took the deceased in the jeep of Banalal to Lali hospital at coonoor and admitted him and he was declared dead. 4.5. At about 10.20 hours, in pursuance of the incident, the shop keeper namely Khadhar Sha gave a complaint Ex.P.1, to the Head Constable P.W.2O and the same was registered as F.I.R. Ex.P.1 is the complaint given by the shop keeper and Ex.P.15 is the F.I.R. On receipt of information, P.W.21 Inspector of Police, came to the scene of occurrence on 14.4.1995 at 00.10 hours and prepared a sketch Ex.P.30 in the presence of P.W.6, Anbazhagan and another witness Shajahan. Then, he took photographs of the place of occurrence through Kannan, P.W.18. He also seized the right leg chappal of the deceased M.O.10, Chocolates M.O.17, glass pieces of the broken jar M.O.13, Steel cap of the broken jar M.0.14, blood stained earth M.O.15, sample earth M.O.16 and banana stem M.O.18 under mahazar Ex.P.3. He also prepared observation mahazar of the scene of occurrence. 4.6. Thereafter, P.W.21 having come to know about the death of Anwar, conducted inquest on 15.4.1995 between 8.30 to 11.15 in the presence of Panchayatar at the mortuary of the Coonoor Government Hospital and prepared inquest report Ex.P.31 and sent the dead body for postmortem. P.W.21, gave a requisition Ex.P.18 to conduct autopsy on the body of the deceased Anwar. On 15.4.1995 at about 12.30 hours, P.W.16 postmortem doctor conducted autopsy on the body of the deceased Anwar and found 21 injuries and opined that the deceased would appear to have died due to hemorrhage shock and injury sustained on the chest. Ex.P.19 is the postmortem report. https://hcservices.ecourts.gov.in/hcservices/ 4.7. In the meantime, the injured Sundar P.W.5 and injured Khadhar Sha were admitted in the Coonoor Government Lali hospital on 14.4.1995 at about 10.05 hours and subjected for treatment. P.W.15 examined both the injured and noted injuries on them and opined that the injuries sustained by P.W.5 were grievous. Ex.P.16 is the wound certificate given to Sundar P.W.5. He was examined by P.W.15, Assistant Medical Officer at about 10.05 hours. Ex.P.17 is the wound certificate given to injured Khadhar Sha. He was examined by P.W.15 at 12.30hours. 4.8. On 18.4.1989 at about 11.00 hours, on information, P.W.21 Inspector arrested the accused Balan and Varadharajan in the presence of P.W.7, Gani and one Sulaiman and recorded their confession statement. In fact, they were apprehended by P.W.21 Inspector, while they were riding motorcycle TN.37-F-2855 M.O.20. The said motorcycle was seized under mahazar Ex.P.9. P.W.21 Inspector further seized key bunch, M.O.21. and R.C. book, M.0.22 under mahazar Ex.P.9. Ex.P.8 is the admissible portion of the confession statement of the accused Varadarajan. Ex.P.7 is the admissible portion of the confession statement of the accused Balan. 4.9. Thereafter, accused Balan and Varadharajan took P.W.21 along with P.W.7 Gani and witness Salim to No.2, Coimbatore Goundapalayam Shoba nagar cross lay out and identified the house of the accused Rajesh @ Anantharaman (appellant herein). Therefore, P.W.21 Inspector of Police arrested the accused Rajesh @ Anantharaman (appellant herein) in presence of the said witness. At that time, the accused Rajesh @ Anantharaman (appellant herein) was in possession of the motorcycle M.O.23 and also R.C.book of the motorcycle. Therefore, he seized the same under Mahazar Ex.P.10 and also recorded the confession statement of the accused Rajesh @ Anantharaman (appellant herein). Ex.P.11 is the admissible portion of the confession statement of the accused Rajesh @ Anantharaman (appellant herein). P.W.11 is the owner of M.O.23. 4.10. Thereafter, P.W.21, the accused Rajesh @ Anantharaman, (appellant herein ) along with other accused P.W.7 Gani and other witnesses went to stone quarry near Brindhavan School Road, Junction at Coonoor – Ooty Road. From there, the accused varadarajan took out the blood stained cement colour red striped full shirt M.O.25, blood stained wooden handle Aruval M.0.5, and Iron Rod M.O.4 and handed over the same to P.W.21, who inturn seized the same under Mahazar Ex.P12. At the same time, the accused Balan also took out blood stained sandal colour white striped full shirt M.O.26, blood stained wooden handle Aruval M.O.6 and blood stained white colour bordered Dhoti M.O.27 and handed over the same to P.W.21 who inturn seized the same under mahazar Ex.P.13. Moreso, the accused Rajesh @ Anantharaman (appellant herein) also took out white polyester full shirt M.O.28, blood stained green colour bordered Dhoti M.O.29 and blood stained Pitchva knife M.O.1 and handed over the same to P.W.21 who inturn seized the same under mahazar Ex.P.14. Everything was done in the presence of P.W.7, Gani and witnesses Sulaiman. https://hcservices.ecourts.gov.in/hcservices/ 4.11. In the meantime, after postmortem, blood stained cloth of the deceased was also sized under Special report by P.W.19 Head Constable and he handed over the same to P.W.21 Inspector. M.O.7 is the white Shirt, M.O.8 is the Lunghi. Ex.P.27 is the special report. Similarly, the blood stained cloth of the injured Khadhar Sha was also seized by P.W.21 under form 95. 4.12. P.W.21 Inspector was in search of other accused concerned with the offence of murder of Anwar. On 08.5.1995, at about 17.00 hours at Coonoor Home Wood, he arrested the accused Krishnamoorthy, concerned in S.C.No.27 of 1996 and he was examined in the presence of P.W.6 Anbazhagan and John. In their presence, he seized TN.43-0919 under mahazar along with R.c.book. M.o.19 is the van. M.O. 33 is the R.C.book. 4.13. On 14.7.1995, the connected accused in the said crime surrendered before the Court and came out on bail. On 20.7.1995, P.W.21 Inspector summoned the accused, who were surrendered before the Court, to the police station examined them and obtained statement. 4.14. On 07.8.1995, P.W.21 Inspector examined P.W.9, Varadarajan, who sustained injury by the attack of Muslim and recorded his statement. 4.15. On 17.8.1995, P.W.21 Inspector examined P.W.10, Ramesh, who sustained injury by the attack of Muslim and recorded his statement. 4.16. P.W.10, Ramesh gave a complaint to the police station regarding this occurrence. Ex.P.4 is the copy of the complaint given by P.W.10, Ramesh. 4.17. On 28.8.2005, P.W.21 Inspector recorded statement of P.W.12 Ravi, who was also assaulted by muslims. 4.18. In the meantime, P.W.21 gave a requisition to the Court to conduct identification parade in respect of the accused 1 to 3 namely Rajesh @ Anantharaman, Balan and Varadarajan by witnesses P.W.2 Azaruddin, P.W.5 Sundar, Khadhar Sha and P.W.1 Maimoon Bagum. On receipt of requisition Ex.P.24 from P.W.21 Inspector, P.W.14, Judicial Magistrate sent a letter to the jail authorities requesting them to make arrangements to conduct identification parade on 05.05.1995 at coonoor sub jail at 3.00 p.m. in respect of the detained accused by the said witnesses. Ex.P.25 is the letter of the Magistrate to jail authorities. After following all the formalities, P.W.14 Judicial Magistrate conducted identification parade in respect of the said accused by the said witnesses. Except witness Sundar, other witnesses have identified all the accused at the time of identification parade. Ex.P.26 is the identification parade. 4.19. On 19.5.1995, P.W.21 Inspector of Police, sent a requisition to Court to send the blood stained cloth and other material objects for chemical and serological test. Ex.P.33 is the requisition of P.W.21. Ex.P.20 is the letter of the Court. On receipt of requisition Ex.P.20, P.W.17 examined blood stained cloths and Material Objects and submitted https://hcservices.ecourts.gov.in/hcservices/ chemical and serological report. Exs. P.21, 22 and 23 are the report about the identification of blood groups of human origin. He identified 'A' group blood from the Material Objects in column No. 4, 7,12 and 13 referred in Ex.22. After obtaining all the reports concerned to this case, P.W.21 completed the investigation and filed a final report on 07.11.1995 against the accused namely,S.Rajesh @ Anantharaman, K.Balan, Varadharajan, S.K.krishnamurthy, Srinivasan, Manoj, Jawahar, Siva @ Sivaraj, Sathiyanarayanan, Siva @ Sivakumar, Sudhakar and M. Ganesh, under Section 120 B, 324, 426 and 302 IPC. 4.20. The injured Khadhar Sha, shop keeper of the deceased died after deposing evidence in respect of the case on hand in S.C.No.27 of 1996. His deposition is marked in this case as Ex.P.36. 5. Prosecution has examined 21 witnesses, marked 36 Exhibits and 33 Material objects to prove the guilty act of the accused. 6. The trial court, after considering the evidence on record found the accused Rajesh @ Anantharaman guilty for the offence under Sections 302 IPC & 324 IPC and convicted him accordingly. Challenging the said judgment, this appeal has been filed. 7. Heard both sides. 8. Now, the point for consideration is whether the finding of the trial Court in Convicting and sentencing the appellant/accused as stated above, is in accordance with law. To find out whether the finding of the trial Court is in order or not, the following points are to be proved. (i) Whether Ex.P.36 has got any legal effect? (ii). Whether communal clash between the muslims on one side and Vishwa Hindu Parishat (V.H.P) on other side is motive for the occurrence? (iii) Whether the deceased Anwar died due to homicide? (iv) Whether the victim Khadhar Sha and Sundar have sustained injuries in the incident. (v) Whether Khadhar Sha was assaulted by the accused Rajesh @ Anantharaman with M.O.1 and caused simple injury? (vi) Whether the accused Rajesh @ Anantharaman, Balan and Varadharajan have assaulted the deceased Anwar,causing bleeding injuries resulting to is death? Point No: I 9. According to prosecution injured Khadhar Sha, shop keeper of the deceased Anwar has sustained injuries in the said incident. Originally, the charge sheet has been filed against twelve persons in S.C.No. 27 of 1996 on the file of District and Sessions Judge, Udhagamandalam. Since the appellants / accused was absconding for a long time, this case has https://hcservices.ecourts.gov.in/hcservices/ been split up from the orginal S.C.No. 27 of 1996 and tried separately in S.C.No. 4 of 1997. Therefore, the case in S.C.No. 27 of 1996 was tried against 11 accused and disposed of on merit. In Sessions Case 27 of 1996, the injured Khadhar Sha was examined as P.W.1. 10. In the meantime, the appellant/accused was apprehended and tried in the present S.C.No.4 of 1997 and disposed of on merit. During the time of trial, the injured Khadhar Sha died. So his evidence in S.C.No. 27 of 1996 has been marked as Ex.P.36. The learned counsel for the appellant submitted that the deposition of the injured Khadhar Sha in S.C.No. 27 of 1996 cannot be relied on in this Sessions Case 04 of 1997 as the same was not subjected to cross examination by the appellant/accused in the light of Section 33 of the Indian Evidence Act. He has also relied on the decisions V.M.MATHEW v.V.S.SHARMA ( 1995 (6) SCC 122) to substantiate this contention. 11. So we have to find out whether there is any substance in the contention of the learned counsel for the appellant / accused. Section 33 of the Indian Evidence Act explains certain situation in which, the deposition of witnesses in the earlier proceedings cannot be relied on in subsequent proceedings if both the proceedings are not one and the same. Section 33 of the Indian Evidence Act reads as follows: " Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. - Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation:- A Criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section." In this context, the principles laid down in the decision reported in V.M. MATHEW v. V.S. SHARMA ( (1995) 6 SCC 122)is relevant to the facts on hand. "witness produced by a party in the previous proceeding should have been examined not only by that party but https://hcservices.ecourts.gov.in/hcservices/ should also have been cross examined the adverse party against whom the evidence had been given – only then statement of the witness would be admissible in the subsequent proceeding - Second proviso protects right and interest of the party against whom the witness is produced in previous proceeding – If that party had no right and opportunity to cross – examine the witness in the previous proceeding, such as in ex parte proceeding, the evidence of such witness cannot be used in the subsequent proceeding." In this case, the appellant/accused was not a party to the proceedings in S.C.No. 27 of 2006. In such circumstances, the appellant has to be considered, as adverse party to the first proceedings. Section 33 of the Indian Evidence Act protects the interests of the appellant/accused. 12. The learned Additional Public Prosecutor has also fairly accepted the contention of the learned counsel for the appellant in the light of the decision cited above and submitted that Ex.P.36 cannot be relied on. In view of the legal submission of both sides, we are satisfied that the Ex.P.36 cannot be relied on against the interest of the appellant and accordingly the same is rejected. Point No: II 13. It is true that on 14.4.1995 at Coonoor, there was a communal clash between the Muslims and Vishwa Hindu Parishat (V.H.P), while Vishwa Hindu Parishat (V.H.P) organised the public meeting and procession on that date, in which several Hindus have sustained injuries. P.W.6, P.W.8, P.W.9, P.W.10 and P.W.13 have stated that on the fateful day, when Hindu Munnani, viz., R.S.S., organised public meeting and procession at Coonoor, residents of Muslims in that area assaulted Hindus resulting to injuries sustained by the Hindus. In fact P.W.13 Harihara Krishnan is the Secretary of Vishwa Hindu Parishat from 1996 onwards. Now, he is only a sympathizer of Hindu Munnani. In fact, P.W.9 Varadharajan gave a complaint regarding that occurrence and the same was registered in Crime No. 287/95 and Ex.P.15 is the copy of the F.I.R. The complaint given by P.W.10 has been registered in Crime No. 288/95. There is no dispute regarding these facts. The learned counsel for the appellant has also not disputed this aspect. From the narration of events, we are of the opinion that the motive for occurrence is proved. Point No.III: 14. It is true that the deceased Anwar, resident of Moors Garden, Coonoor, on 14.4.1995 at about 9.45 a.m. sustained injuries and later succumbed to injuries. Immediately after occurrence, the deceased Anwar was taken to hospital for treatment in the jeep of witness Banalal and admitted in the hospital and later he was, succumbed to injuries. The body of deceased Anwar was examined by the Postmortem Doctor, who opined that the deceased would appear to have died of Haemorrhage, shock and injury to vital organ – Heart. Postmortem Doctor was examined as P.W.16. https://hcservices.ecourts.gov.in/hcservices/ Ex.P.19 is the Postmortem Report. P.W.21 has also conducted inquest on the body of the deceased Anwar on 15.4.1995 between 8.30 and 11.15 a.m in the presence of Panchayatdar and prepared Inquest Report. Ex.P.31 is the Inquest Report in which it is found that the deceased Anwar died due to injuries sustained by him in the incident. There is no dispute regarding this aspect. There was no confrontation regarding this aspect on the defence side. From the narration of events, we have no hesitation to hold that the deceased Anwar died due to homicide. Point No.IV: 15. Both of them have sustained injuries in the occurrence and they were admitted in the Government Hospital for treatment. They were treated by P.W.15, who examined them, and found that they sustained injuries in the manner alleged by them. P.W.15 Doctor opined that the first injury sustained by P.W.5 Sundar is grievous in nature and the second injury is simple in nature. He has further opined that the injuries sustained by Khadhar sha are simple in nature. The injured have specifically informed P.W.15 doctor that they have sustained injury at the relevant point of time, date and place in the manner as alleged by them. P.W.5 Sundar, has specifically stated that he has sustained injury at the relevant point of time in the said assault. He further admitted that he took treatment in the Government Hospital after occurrence. The blood stained clothes of P.W.5 Sundar has been marked as M.Os. 11 and 12. He further stated that the shop of the deceased was damaged in the said incident. The injuries sustained by Khadhar Sha was supported by evidence of witnesses, namely, Maimoon Bagum and Minor Azaruddin. The injuries sustained by the said victims in the manner as alleged by them at the relevant point of time, date and place were not confronted on the side of the appellant/accused. From the narration of events, we have no hesitation to hold that the said persons sustained injuries at the relevant point of time as stated by prosecution. Point No.V 16. It is also the case of the prosecution that the accused Rajesh @ Anantharaman has also caused injury to Khadhar Sha, shop keeper of the deceased Anwar. Though the said witness is not alive , the oral and documentary evidence available on record would prove that the accused Rajesh @ Anantharaman has assaulted Khadhar Sha and caused simple injury. Ex.P.17 is the wound certificate. P.W.15, doctor who examined Khadhar Sha has