IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01/09/2003 Coram The Honourable Mr.Justice N.DHINAKAR and The Honourable Mr.Justice M.CHOCKALINGAM Criminal Appeal No.392 of 1995 and Criminal Appeal No.406 of 1995 1. Solaiappa Gounder 2. Paramasivam @ Parameswaran 3. Mohandass @ Murali 4. Velusamy 5. Vinod 6. Ramasamy 7. Shanmugasundaram 8. Ponnuswamy 9. Govinda @ Govindasamy @ Jayaprakash 10.Gobu 11.Muthu @ Kathiresan @ Chinnathambi ..... Appellants in Crl.A.No.392/1995 1. Kannan 2. Rajan alias Mahendran ..... Appellants in Crl.A.No.406/1995 -Vs- State of Tamil Nadu, represented by Inspector of Police, Podanur, Coimbatore District. ..... Respondent in both the appeals Prayer: Appeals against the judgment dated 6.3.1995 in Sessions Case No.193 of 1993 delivered by the First Additional Sessions Judge, Coimbatore. !For Appellants in : V.Gopinath, Sr. Counsel Crl.A.No.382/1995 For M/s.R.John Sathyan and G.Anantha Rangan For Appellants in : Mr.K.Veeraraghavan Crl.A.No.406/1995 ^For Respondent in : Mr.V.M.R.Rajendran both the appeals Addl. Public Prosecutor :J U D G M E N T (Judgment of the court was delivered by N.DHINAKAR, J.) Criminal Appeal No.392 of 1995 is by A1, A2, A4 to A10, A13 and A14 and Criminal Appeal No.406 of 1995 is by A11 and A12 in Sessions Case No.193 of 1993 on the file of the First Additional Sessions Judge, Coimbatore. The appellants in Crl.A.No.392 of 1995 will be referred to as A1, A2, A4 to A10, A13 and A14 and the appellants in Crl.A.No.40 6 of 1995 will be referred to as A11 and A12 for the sake of convenience. They were tried along with Viswanathan, who was arrayed as A3 and who was acquitted by the learned Sessions Judge, and in this judgment, the said Viswanathan will be referred to in the same order as he was arrayed before the learned Sessions Judge, for the sake of convenience. As both the appeals arise out of a single Sessions Case, they are disposed of by the following common judgment. 2. The learned Sessions Judge framed as many as 17 charges against A1 to A14. Under Charge No.1, A1 to A14 were charged under Section 14 8 IPC and under Charge No.2, A1 to A14 were charged under Section 449 IPC. The learned Sessions Judge found A1, A2, A4 to A7, A11 and A12 guilty under Section 148 IPC and sentenced each one of them to undergo rigorous imprisonment for three years and on finding them guilty under Section 449 IPC, the learned Sessions Judge sentenced each one of them to suffer seven years' rigorous imprisonment and to pay a fine of Rs.500/- with a default sentence of rigorous imprisonment for six months. Charge No.3 was framed under Section 324 IPC against A1, A4 (under two counts), A5 and A6 (under two counts) and on being found guilty, each one of them was sentenced to suffer rigorous imprisonment for one year on each count and under Charge No.4 framed under Section 324 r/w 149 IPC (two counts), A2, A3, A7 to A14 were convicted and similarly sentenced. A1, A2, A4 to A13 were charged under Charge No.5 framed under Section 307 IPC and A3 and A14 were charged under Section 307 r/w 149 IPC framed under Charge No.6, and on being found guilty, A1, A2, A4 to A7, A11 and A12 were sentenced each to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.250/- with a default sentence of three months' rigorous imprisonment, while A3, A8 to A10, A13 and A14 were acquitted. The learned Sessions Judge framed Charge No.7 under Section 302 IPC simplicitor against A4 to A6 and A8 to A14 and Charge No.8 under Section 302 r/w 149 IPC against A1 to A3 and A7 and on finding A1, A2, A4 to A7, A11 and A1 2 guilty, sentenced each one of them to imprisonment for life, while acquitting A3, A8 to A10, A13 and A14. Though the learned Sessions Judge framed a charge against A1 to A3 and A7 under Section 302 r/w 1 49 IPC under Charge No.8, A1, A2 and A7 alone were found guilty and each one of them was sentenced to imprisonment for life, while A3 was acquitted of the said charge. Charge No.9 under Section 427 IPC was framed against A1 to A14; but, the learned Sessions Judge convicted A1, A2, A4 to A7, A11 and A12 and sentenced each one of them to one year rigorous imprisonment and to pay a fine of Rs.500/- and in default of payment of fine, each one of them was directed to suffer six months' rigorous imprisonment, while acquitting A3, A8 to A10, A13 and A1 4 of the said charge. Charge No.10 as well as Charge Nos.11 and 12, which were framed against the accused for offences under Sections, 45 0, 307 and 307 r/w 149 IPC ended in acquittal. The learned Sessions Judge under Charge No.13, once again framed another charge under Section 148 IPC against A4 to A14 and on finding them guilty, sentenced each one of them to suffer rigorous imprisonment for three years. A4 to A14 were also charged under Section 506 Part-II IPC framed under Charge No.14 and on being found guilty, each one of them was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.250/- with a default sentence of three months' rigorous imprisonment. A4 to A14 were also charged under Section 3 of the Explosive Substances Act framed under Charge No.15 and under Section 4(b) of the said Act framed under Charge No.16 and each one of them was sentenced to undergo rigorous imprisonment for a period of three years under each charge. Charge No.17 was framed against A4 to A14 under Section 307 IPC and on finding them guilty, the learned Sessions Judge sentenced each one of them to suffer three years' rigorous imprisonment and to pay a fine of Rs.250/- and in default of payment of fine, each one of them was directed to undergo three months' rigorous imprisonment. 3. The allegation in the Charges Nos.1 to 12 is that the accused formed themselves into an unlawful assembly at 2.00 a.m. on 13.2.1992 and in furtherance of the common object of the said unlawful assembly, they attacked Chinnathambi, the deceased in the case, and that in the course of the same transaction, they caused injuries to P.Ws.1 to 8 and that at 3.30 a.m., they went to the house of the deceased and attacked P.Ws.9 to 13. The allegation in the Charges Nos.14 to 17 framed against A4 to A14 is that they formed another unlawful assembly at 4.30 p.m. on 13.2.1992 and in furtherance of the common object of the said unlawful assembly, threw country-made bombs and thereby, attempted to murder P.Ws.31, 32 and 34 and also threatened the witnesses. The present appeals have been filed against the said conviction and sentence. 4. The case of the prosecution is as follows:- P.W.1 is the cobrother of the deceased. P.W.9 is the wife of the deceased. P.Ws.10 and 11 are the father and the mother respectively of the deceased. P. W.12 is the sister of the deceased. P.W.14 is the nephew of the deceased. P.W.13 is the wife of P.W.14. A1 and A2 are brothers and A4 is the son of A1. A5 is the son of A2 and A5 is the nephew of A1. A7 is the brother-in-law of A1. They were all residents of Eechanari. P.W.14 was the owner of the land admeasuring 15.70 acres at Malumichempatti village and Seerapalayam village. A1, A2 and their brother's wife, Lakshmi, were cultivating the said land as tenants. A1 and A2 committed waste in the said property and therefore, an eviction petition in O.P.No.42 of 1989 was filed against them before the Special Deputy Collector (Revenue), Salem, under Section 3(2)(b)(c) of the Cultivating Tenants Protection Act. An order of eviction was passed on 20.12.1991 in favour of P.W.14 and the said order stands marked as Ex.P-3. A1 and A2, aggrieved by the said order of eviction, filed C.R.P.No.136 of 1992 before this court and the same was dismissed by the order under Ex.P-45. After the dismissal of the C.R.P., Eviction Memo, Ex.P-46, was entrusted to P.W.26, Tahsildar, Salem, for evicting the tenants and for handing over the possession of the property to the owner. P.W.25, Revenue Inspector (Eviction), Salem, gave a requisition, Ex.P-47, on 3.2.1992 asking for police protection for execution proceedings to be conducted on 5.2.1992. On 5.2.1992, P.W.26 went to the disputed land, but was obstructed by A1 and A2 as well as by the said Lakshmi and others, who were armed with weapons. They also threatened P.W.26, P.W.30, the Village Administrative Officer of Seerapalayam Village, and P.W.31, the Village Administrative Officer of Malumichampatti Village. Therefore, P.W.26 preferred a complaint, Ex. P-48, to P.W.33, Sub-Inspector of Police, Podanur Police Station, on the basis of which, a case in Crime No.87 of 1992 was registered against the accused under Sections 147, 148, 186, 341, and 352 IPC and Ex.P-60 is a copy of the printed first information report in the said crime. Investigation was taken up in the crime and all the accused except A1 and A2 were arrested and they were released on bail on their own bonds. The possession was then handed over to P.W.14 by P.W.26. This is said to be the motive for the occurrence, which took place at 2.00 a.m. on 13.2.1992. 5. On 13.2.1992, the deceased Chinnathambi and P.Ws.1 to 8 went to the garden-land at Killakkal and took their bed. P.W.3 and P.W.8 were sleeping in the car and others were sleeping inside the farm-house. At about 2.00 a.m., 20 to 30 persons went to the garden-land, armed with aruvals and iron pipes and A4 to A7, A11 and A12 were seen in the group. P.Ws.1 to 8 and the deceased were cut and assaulted by the accused. All the injured persons including Chinnathambi, who also suffered injuries, were locked in a room and after Chinnathambi was identified by the accused, he was dragged out of the room and was cut. Thereafter, P.Ws.1 to 8, who suffered injuries, and the injured Chinnathambi were taken to Eechanari village in a lorry, M.O.3, of which the deceased was the owner. The lorry was left near a Vinayagar temple and the accused left the place. P.W.2, who suffered injuries, went and brought Mahalingam, a driver working under the deceased, and the said Mahalingam drove the lorry, M.O.3, taking the injured P.Ws.1 to 8 and Chinnathambi to Coimbatore Medical College Hospital, Coimbatore. The accused, after leaving the lorry, went to the house of the deceased at about 3.00 a.m. and knocked at the door saying that they have beaten the deceased Chinnathambi and others. The door was opened by P.W.10 and about 20 to 30 persons, who were armed with aruvals and sticks, attacked him. P.Ws.9, 11, 12 and 13 were also attacked by the said crowd. Two autos were brought by P.W.15 and some of them were taken in the auto driven by P.W.16 to Coimbatore Medical College Hospital, Coimbatore. 6. Dr.Venu Geetham, who was on duty, examined the injured Chinnathambi at 4.20 a.m. on 13.2.1992 and found on his person the following injuries:- 1.A cut injury measuring 4" x 2" x muscle-deep over the upper portion of the right hand. 2.A cut injury measuring 1" x =" x muscle-deep over the right thumb. 3.An injury measuring =" x =" on the left knee. 4.A cut injury measuring 2" x 1" x muscle-deep on the upper left hand. 5.A cut injury measuring 4" x 2" x muscle-deep on the left side of the head. 6.A cut injury measuring 2" x 1" x muscle-deep on the back of the head. Ex.P-4 is a copy of the accident register. The doctor examined P.W.7 at 4.30 a.m. and found on his person the following injures, which he narrated in Ex.P-5, a copy of the accident register:- 1.A cut injury measuring 3" x 2" x muscle-deep on the left wrist. 2.An injury measuring 2" x 1" above injury No.1. 3.A cut injury measuring 4" x 2" over right shoulder. 4.A cut injury measuring 6" x 4" x muscle-deep on the left thigh. 5.A cut injury measuring 1" x 1" over the left knee joint. 6.A cut injury measuring 2" x =" over the back side of the right hand. P.W.6 was examined at 4.45 a.m. by the doctor and on his person, the following injuries were noted:- 1.A cut injury measuring 6" x 2" on the left ankle. 2.A cut injury of the size =" x =" on the left thigh. 3.A cut injury of the size 2" x =" over the centre of the head. Ex.P-6 is a copy of the accident register issued by the doctor in respect of the injuries found on P.W.6. 7. The doctor examined P.W.4 at 4.55 a.m. and found the following injuries, which he noted in Ex.P-7, a copy of the accident register, on his person:- 1.A cut injury of the size 2" x 1" over the left thigh. 2.A cut injury measuring 1" x =" on the left elbow. 3.Three cut injuries measuring 3" x 1", 1" x =" and =" x =" on the left upper hand. 4.A cut injury of the size 2" x 1" on the left hand. 5.A cut injury of the size 2" x =" at the centre of the head. 6.A cut injury measuring 3" x 2" over the right elbow. P.W.10 was examined at 5.05 a.m. and on his person, the following injuries were found:- 1.A cut injury measuring 2" x =" over the right ankle. 2.A cut injury of the size =" x =" near the right elbow joint. 3.A cut injury of the size 1" x =" on the left forehead. Ex.P-8, a copy of the accident register, was issued by the doctor. At 5.15 a.m., P.W.1 was examined and the doctor found on his person, the following injuries, which he noted in Ex.P-9, a copy of the accident register:- 1.Two cut injuries measuring 2" x 1" x muscle-deep and 1" x 1" x muscle-deep on the left upper hand. 2.A cut injury measuring 4" x =" x muscle-deep over the left side of the back of chest. 8. At 5.25 a.m., the doctor examined P.W.2 and on his person, he found two cut injuries, one on the right thigh measuring 6" x 4" x muscle-deep and the other at the centre of head measuring 2" x =", which was muscle-deep. Ex.P-10 is a copy of the accident register issued by the doctor in respect of the injuries found on P.W.2. P.W.5 was examined at 5.30 a.m. and a cut injury measuring 3" x 1", which was muscle-deep, was found over the left elbow of his person, as narrated in Ex.P-11, a copy of the accident register. The doctor found the following injuries which were found on the person of P.W.8, who was examined at 5.35 a.m.:- 1.A cut injury measuring 7" x 2" over the right palm. 2.A cut injury measuring 2" x <" x skin-deep over the right right leg. 3.A cut injury of the size =" x =" x skin-deep over the right shoulder. 4.A cut injury of the size <" x <" on the left middle finger. Ex.P-12 is a copy of the accident register issued by the doctor. 9. In the meantime, P.Ws.9 to 13, who suffered injuries and who were taken to the hospital in two autos, were also examined by the same doctor. P.W.9 was examined at 5.40 p.m. on 13.2.1992 and on her person, the following injuries were noted:- 1. A cut injury measuring 1" x 1" x muscle-deep on the upper lip. 2.A cut injury of the size 2" x <" x muscle-deep at the centre of the head. Ex.P-13 is a copy of the accident register. The doctor examined P.W.12 at 5.45 a.m. and on her person, he found a cut injury measuring 2" x =", which was muscle-deep, on the left side of the head and issued Ex.P-14, a copy of the accident register. At 5.50 a.m., P.W.3 was examined and an abrasion measuring =" x =" was seen on the right ankle of his person and the doctor issued Ex.P-15, a copy of the accident register. P.W.11 was examined by the doctor at 5.55 a.m. and a cut injury measuring 2" x <" with clotted blood of the size 2" x 2" was seen on the back of his head. Ex.P-16 is a copy of the accident register issued by the doctor. At 7.25 a.m., the doctor, on examining P. W.13, found on her person a swelling measuring 2" x 1" on the left elbow and issued Ex.P-17, a copy of the accident register. When the doctor questioned the deceased and the witnesses as to how they suffered injuries, they informed him that they were attacked by 30 known person. As the condition of Chinnathambi was serious, he was admitted as an in-patient and P.W.18, the doctor, treated him, and the condition of Chinnathambi later deteriorated and ultimately he passed away at 9.00 a.m. P.W.18 sent Ex.P-18, death intimation, to the Outpost Police Station, Coimbatore Medical College Hospital, Coimbatore. 10. In the meantime, on receipt of the information about the admission of the injured including Chinnathambi, P.W.33, the Sub-Inspector of Police attached to Podanur Police Station, proceeded to Coimbatore Medical Collecte Hospital, Coimbatore, and questioned P.W.1, who gave a statement. The said statement is Ex.P-1. P.W.33, at about 7.30 a.m. also recorded the statement of P.W.9, which was marked as Ex.P-2 in the case. P.W.33 returned to the police station and on the basis of Ex.P-1, registered a case in Crime No.115 of 1992 under Sections 148 and 307 IPC and prepared Ex.P-61, a copy of the printed first information report, and on the basis of Ex.P-2, registered a case in Crime No.116 of 1992 under Sections 148 and 307 IPC and prepared Ex.P-62 a copy of the printed first information report. Investigation was taken up by P.W.34, Inspector of Police, Podanur. In the meantime, the death intimation was received from the hospital and thereafter, the crime was altered to one under Section 302 IPC and Ex.P-63 is the express report in the altered crime. 11. P.W.34, on taking up investigation in the crime, proceeded to Coimbatore Medical College Hospital, Coimbatore, after obtaining a copy of the printed first information report at the police station. Inquest over the dead body of Chinnathambi was conducted by him between noon and 3.00 p.m. in the presence of panchayatards and at the time of inquest, P.Ws.1 to 3, 13 and 14 were questioned and their statements were recorded. Ex.P-64 is the inquest report. After the inquest was over, the body was handed over with a requisition to the medical authorities for conducting autopsy. 12. On receipt of the requisition, P.W.19, Professor in Forensic Medicine, Coimbatore Medical College Hospital, Coimbatore, conducted autopsy on the body of Chinnathambi and he found the following injuries:- 1.4 x 2 cm front of left shoulder. 2.6 x 4 cm outer surface of left arm. 3.15 x = cm linear oblique on the inner surface of left arm. 4.10 x < cm oblique front of lower end of left side of chest. 5.6 x 2 = cm left cubital fossa. 6.4 cm long on the left lateral aspect of chest. 7.8 x < cm left loin. 8.12 x 5 cm lateral surface of middle of right leg. 9.3 x 2 cm lateral surface of right knee. 10.12 x 3 cm lateral surface of upper third of right thigh. 11.7 x 1 cm in the left hip region. 12.12 x < oblique linear on the right lateral aspect of chest. 13.6 x 4 cm below the right clavicle. 14.7 x 7 cm front of lower end of right arm. 15.Multiple small of varying size and shape noticed in the following areas: lower end of front of left thigh, front of left leg, front of left ankle, back of left forearm and elbow outer aspect of right ankle front of right leg and right thigh back of right forearm dorsum of right hand and back of the trunk. 16.Left index and middle fingers swollen and deformed. C/s revealed fracture of the proximal phalanx in both fingers. 17.Lacerated oblique injury 5 x 1 cm x bone-deep in the right parieto-occipital region. 18.Curved incised wound 9 x 1 cm x bone-deep in the left parietooccipital region above the left ear. 19.Oblique cut injury 9 x 3 cm x bone-deep directed lateral to medial seen on the outer surface of middle of left arm with severe cure of muscles and blood vessels and nerves. 20.Stab wound vertical 2 x 1 cm x bone-deep on the middle of front of left leg. 21.Lacerated oblique wound 1 x 1 cm muscle-deep in the upper third of right leg. 22.Vertical lacerated wound 3 x 1 cm bone-deep on the dorsum of right thumb with fracture of terminal phalanx. 23.Oblique lacerated wound 2 x 1 cm bone-deep on the lateral surface of right arm with fracture shaft of right humerus. 24.Oblique cut injury directed above downwards 12 x 4 cms bone-deep on the outer surface of upper third of right arm with severance of the muscles, blood vessels, nerves with fracture of the shaft of the right humerus. 25.Both forearms and legs were swollen, dissection revealed massive, diffuse, sub-cutaneous and inter-muscular hematoura. The doctor issued Ex.P-20, the post-mortem certificate, with his opinion that the deceased would appear to have died of shock and haemorrhage as a result of cumulative effect of the multiple injuries sustained by him, about 6 to 12 hours prior to post-mortem. 13. In the meantime, the investigating officer, seized the bloodstained clothes of the deceased Chinnathambi under Ex.P-41 as well as the blood-stained clothes of the witness, P.W.1, under a cover of mahazar, Ex.P-65, attested by P.Ws.22 and 23. The blood-stained clothes of P.W.2 and the lorry, M.O.3, were seized under Exs.P-66 and P-67 respectively. While he was at the hospital, he came to know that the accused are present in the scene-village and therefore, proceeded to the scene-village, accompanied by P.W.28, P.W.29, P.W.30 the Village Administrative Officer of Seerapalayam village, P.W.31 the Village Administrative Officer of Malumichampatti village, P.W.32, Tahsildar, Coimbatore South, and M.O.33, the Sub-Inspector of Police. On reaching the scene-place, he deputed police constables to surround the place with a view to prevent the accused from escaping from the scene of occurrence. Thereafter, P.W.34 and the above-said officers proceeded towards the garden-land, where the accused were staying and when they were approaching the garden-land, bombs were thrown at them and undaunted by the bombs, which were hurled at them and which were exploding on all sides of the police party, the police officers approached the place and arrested A4 to A14. A4 was found in possession of M.O.41, a rexine bag, containing four bombs and M .O.42, a toy gun. P.W.34 seized M.Os.5 to 14, veecharuvals, and M.Os.15 to 28, iron pipes, along with country-made bombs, 16 in number, under a mahazar Exs.P-31 and 32 attested by witnesses. An observation mahazar, Ex.P-39, and a rough sketch, Ex.P-68, were prepared by the officer. He seized M.O.43 burnt ash, M.O.44 sample earth, M.O.45 ash, M.O.46 sample earth, M.O.47 ash and M.O.48 sample earth, from three different places, where bombs were exploded, under a mahazar Ex.P-32. He also seized M.Os.49 and 52, blood-stained cement portions, M.Os.50 and 51, sample cement portions, from two different places of the garden-land, under a mahazar Ex.P-33. He prepared Ex.P-34 for the seizure of M.O.53, bloodstained cement portion, and M.O.54, sample cement portion, from a room of the garden-land. Similarly, the officer seized a rubber stamp, M.O.55, and xerox copies of notices, M.O.56 series, under a cover of mahazar, Ex.P-35. A car bearing Registration No.TAU 5522 was seized under Ex.P-37. P.W.34 questioned P.Ws.21, 30, 31, and 32 and recorded their statements. The accused were handed over to P.W.33, the SubInspector of Police, with a