C.A. No. 1253 of 2003 The Appellant/Accused No. 5 Viz, Harun Batcha was directied to be released on Bail in and by the order of this Court dated 21/10/2003 in Crl.MP No 9196/2003. C.A.No. 1200/2003 The appellant/Accused No. 6 Viz, Bilal Hajar @ Abdul Hameed was directed to be released on Bail in and by the order of this Court dated 04/02/2004 in CRl M.P.13283/2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 8.11.2006 Coram The Honourable Mr.Justice R.Balasubramanian and The Honourable Mr.Justice A.C.Arumugaperumal Adityan CRIMINAL APPEAL Nos.1200, 1253, 1459 of 2003 and 291 of 2004 Bilal Hajar @ Abdul Hameed ... Appellant in C.A.No.1200/2003 /Accused 6. Harun Batcha ... Appellant in C.A.No.1253/2003/A5 1. Zakir Hussain (A1) 2. Shahul Hameed (A2) 3. Babu @ Oomai Babu (A3) 4. Gafoor Rahman (A4) 5. Subhaiyar (A7) 6. S.A.Batsha (A8) ... Appellants in C.A.No.1459/2003 Tajudden (A9) ... Appellant in C.A.No.291/2004 -Vs.- https://hcservices.ecourts.gov.in/hcservices/ State rep.by The Inspector of Police B.1-Bazaar Police Station Coimbatore. ... Respondents in all the appeals (Cr. No 1026/1991) (Complainant) Appeals against the judgment dated 29.7.2003 made in S.C.No.239 of 2000 on the file of Additional District and Sessions Judge (Fast Tack Court No.3), Coimbatore. For Appellants : Mr.AR.L.Sundaresan,Senior Counsel for Mrs.AL.Gandhimathi for A.6 ( C.A.No.1200 of 2003) Mr.N. Manokaran for A.3 and A.5 (C.A.Nos.1459 and 1253 of 2003) Mr.R.John Sathyan for A.1, A.2, A.4 A.7,A.8 (C.A.No.1459 of 2003) Mr.V.Purushothaman for A.9 (C.A.No.291 of 2004) For Respondent : Mr. N.R.Elango Additional Public Prosecutor J U D G M E N T (Judgment of the Court was delivered by R. Balasubramanian, J) Totally nine persons were tried in S.C.No.239 of 2000 on the file of Additional Court of Sessions (Fast Track Court No.III), Coimbatore, for various offences. At the end of the trial, the learned Trial Judge acquitted A.5 of the offence under Section 302 I.P.C. and convicted the remaining accused put up for trial for various other offences. We will give details of the charges and conviction, a little later in this judgment. The convicted accused are before this court in these multiple appeals. Heard Mr.R. John Sathyan, learned counsel appearing for A.1, A.2, A.4, A.7 and A.8 (C.A.No.1459 of 2003); Mr.N.Manokaran, learned counsel appearing for A.3 and A.5 (C.A.Nos.1459/2003 and 1253 of 2003); Mr.AR.L.Sundaresan, learned Senior Counsel appearing for A.6 (C.A.No.1200 of 2003) and Mr.V.Purushothaman, learned counsel appearing for A.9 (C.A.No.291 of 2004). Mr.N.R.Elango, learned Additional Public Prosecutor defended the State. 2. The charges framed by the learned Sessions Judge against the accused are as hereunder:- https://hcservices.ecourts.gov.in/hcservices/ 120-B I.P.C. - A.1 to A.9 148 I.P.C. - A.1 to A.5 302 I.P.C. - A.1 to A.5 332 I.P.C. - A.1 At the end of the trial, the learned Trial Judge found on charge No.1 all the accused guilty and accordingly sentenced each one of them to undergo imprisonment for life. On charges 2 and 3, the learned Trial Judge found A.1 to A.4 alone guilty and acquitted A.5. The convicted accused stand sentenced to undergo imprisonment for life and one year rigorous imprisonment together with a fine on each count carrying a default sentence. On charge No.4, A.1 stands convicted for causing an injury on P.W.1, the police constable on duty and sentenced to undergo one year rigorous imprisonment. As stated earlier, the various accused are before this court in these multiple appeals. 3. The prosecution case is that within the jurisdiction of the investigating police station at Coimbatore on 19.8.1991 a number of materials were written in prominent places in the wall stating that it is a command from the God (FATWA). This hand written material was the subject matter of discussion in a public meeting held on 30.8.1991, in which the deceased by name Shivakumar is stated to have openly crticized the Muslims, as a result of which accused 1 to 9 between 2.30 p.m. and 3.30 p.m. on 1.9.1991 met in the house of A.6 and hatched a conspiracy to kill Shivakumar. According to the prosecution, pursuant to the conspiracy so hatched, A.1 to A.5 forming themselves into members of an unlawful assembly on 5.9.1991 at about 7.45 a.m. fatally attacked Shivakumar and therefore punishable as referred to earlier. In the course of the same transaction, A.1 is stated to have caused an injury on P.W.1, the police constable, who was on duty and therefore punishable under Section 332 I.P.C. In proof of their case, the prosecution examined P.Ws.1 to 29 besides marking Exs.P.1 to P.48 and M.Os.1 to 23. The defence did not let in any oral evidence. But however they marked two exhibits as Exs.D.1 and D.2, the former being the remand report for A.6 and the latter one, a pamphlet containing the handwriting of A.4. 4. There are two sets of evidence available in this case. P.Ws.3 and 4 have been examined to speak about the conspiracy stated to have been hatched by the accused on 1.9.1991. P.Ws.1 and 2 have been examined to prove the actual occurrence proper. In addition to the above, P.W.12 had also been examined to throw some light on the conspiracy aspect and the occurrence proper. Therefore we have decided to state in detail, their evidence alone, the appreciation of which may have a real bearing in this case. P.W.1 during the relevant time was a Grade-I Police Constable in B.2 Police Station – it being in R.S.Puram, Coimbatore. On the occurrence day he was assigned duty in Sukkiravarpet Junction in Rangaiya Gowda Street. It was around 7.45 a.m. From the east towards west in the Mill Road, six persons, each armed with knife, were chasing a person by name Shiva alias Shivakumar affiliated to R.S.S. Party. Just opposite to https://hcservices.ecourts.gov.in/hcservices/ Godawari Textiles, Shiva tumbled on his feet and fell down. At that stage, Shiva was overpowered by those chasing him and they indiscriminately stabbed him on his chest with the weapons, which they had in their hand. While they were so acting they were declaring that with that attack, Shiva must go. In that mob of six except the absconding accused (whose name is Mujbur Rahman) the rest of the accused are present in court. When the five accused present in Court and the absconding accused were attacking, Shiva was trying to thwart the attack by his hands. But however he fell down. Shiva received injuries on his hands. A.1 sitting on Shiva stabbed on his face repeatedly. A.3 also sitting on Shiva stabbed him on various parts of his body. P.W.1 shouted at the accused and tried to snatch the weapon from A.1's hand. At that time A.1 by stabbing, caused an injury on the right hand palm of P.W.1, resulting in a bleeding injury. All the accused tried to escape from the crime scene. At that time P.W.2 came running towards the crime scene and shouted. All the accused made good their escape. Bleeding Shiva was put in an Autorickshaw along with P.W.2 and sent to the Government Medical College Hospital at Coimbatore. P.W.1 making use of the telephone available in a nearby shop (stated to be P.W.17's shop) made a call to the Police Control Room. Then P.W.1 proceeded to the hospital with the knife in his hand. The occurrence was at around 7.45 a.m. P.W.1 reached the hospital at 8.05 a.m. where he was informed by the Doctor in the hospital that Shiva alias Shivakumar is already dead. P.W.1 was highly disturbed. He proceeded to the investigating police station where P.W.28, the Sub Inspector of Police was present. P.W.28 reduced into writing the narration of P.W.1. P.W.1 read that complaint and then signed in it. Ex.P.1 is the said complaint. P.W.1 produced the weapon which he snatched from A.1 at the police station, which was recovered under form 95/Ex.P.2. M.O.1 is the knife. P.W.1 was sent to the hospital with a police medical memo, where he took treatment as an out patient. During inquest P.W.1 was examined. P.W.1 identified in the Central Prison A.1 and A.3. In the test identification parade conducted by the Judicial Magistrate on 6.2.1992; (P.W.1 actually identified only A.3 and the absconding accused and it may be noted even here itself that in the test identification parade A.1 was not put up for identification). Another test identification parade was conducted by the Judicial Magistrate, in which P.W.1 identified A.4. P.W.1 also identified A.7 and A.9 in court as the persons, who were involved in the occurrence proper. He added that on the occurrence day except the accused mentioned by him in Court and the absconding accused, no other accused were there. All the accused had long knives in their hands. 5. P.W.26 was the Sub Inspector of Police during the relevant time in the Control Room. He was on duty from 8.00 p.m. on 4.9.1991 till 8.00 a.m. on 5.9.1991. At 7.45 a.m. on 5.9.1991 when P.W.26 was in the control room, a police constable having No.896 (there is no dispute that it is P.W.1) made a call, which originated from a telephone having indicator No.49124 stating that in Sukkiravarpet Junction, a person had been killed and as there was a huge crowd, a police van must be sent. P.W.26 through the Very High Frequency mike informed Police Patrol Vehicle No.21 of B.2 https://hcservices.ecourts.gov.in/hcservices/ Police Station and they also sent a section of police personnel. P.W.26 came to know later on that a crime bearing Crime No.1026 of 1991 under Section 302 I.P.C. had come to be registered on the file of the investigating police station. P.W.28 is the Sub Inspector of Police in the investigating police station. At 8.30 a.m. on 5.9.1991, P.W.1 – a traffic constable attached to B.2 Police Station appeared before him and narrated the complaint, which he reduced into writing; read it over to him and then took his signature in it. He registered that complaint as Ex.P.1 in his police station Crime No.1026 of 1991 under Section 302 I.P.C. Ex.P.40 is the Printed First Information Report prepared by him. He also recovered M.O.1 produced by P.W.1 at that time under Ex.P.2. Then P.W.1 was sent to the Government Hospital with a medical memo for treatment. P.W.29 is the investigating officer. At 9.05 a.m. on 5.9.1991 P.W.28 handed over the Express Records to him. Immediately he commenced the investigation. He reached the scene of occurrence at 9.20 a.m. and in the presence of P.W.11 and another, he prepared Ex.P.7, the Observation Mahazar and Ex.P.41, the rough sketch. He caused the crime scene to be photographed from different angles. At 10.35 a.m. from the crime scene he recovered blood stains; blood stained earth; sample earth; a pair of yellow colour hawai slipper; another yellow colour left foot hawai slipper; a blue colour hawai slipper and another blue colour hawai slipper all round the occurrence place. They were all recovered in the presence of P.W.11 and another under Ex.P.8. P.W.11 witnessed the preparation of the various records as well as the recoveries namely, M.Os.4 to 11, as spoken to by the investigating officer. P.W.29 conducted inquest over the dead body in the hospital from 11.30 a.m. till 1.30 p.m. in the presence of Panchayatdars and witnesses. Ex.P.42 is the inquest report. During inquest, he examined P.Ws.1,2,3,4,6 and 8 and recorded their statements. Then he sent a requisition to the Government hospital for conducting post-mortem. 6. P.W.24 is the Police Constable, who carried the requisition for post-mortem to the hospital. He was present throughout post-mortem. After post-mortem he removed the personal wearing apparels from the dead body and handed over the same to the investigating officer. P.W.19 is the professor of Medicine in the Government Medical College Hospital at Coimbatore. On receipt of the requisition, he did post-mortem on the dead body on 5.9.1991. During post-mortem he found various symptoms as noted by him in Ex.P.24, the post-mortem report. The symptoms noted by him are as hereunder:- "External Appearances:- Dried blood stain seen on the left side neck, left upper arm, left chest, left abdomen, left thigh, right cheek, right upper arm, right thigh, entire back and both sides back of the thighs. 1. A transverse out wound 3 x 2 cm muscle deep situated on the left side neck 8 cm below the pinna of the left ear. https://hcservices.ecourts.gov.in/hcservices/ 2. A transverse cut wound 4 x 2 cm bone deep situated on the left shoulder. 3. An oblique cut wound 5 x 2cm muscle deep situated on the outer aspect of the elbow region. 4. An oblique cut wound 2 x 1 cm muscle deep situated on the inner aspect of middle third of the left fore-arm 5 cms below wound No.3. 5. A transverse cut wound 5 x 2 cm muscle deep situated on the lower third of the left fore-arm 10 cm below wound No.3. 6. An oblique cut wound 7 x 2 cm bone deep situated on the lower third of the left forearm 2 cm below wound No.5. 7. A transverse cut wound 3 x 2 cm muscle deep situated on the lower third of the left fore-arm 4 cm below wound No.5. 8. A transverse cut wound 5 x 2 cm muscle deed situated on the middle third of the left thigh 14 cm above the left knee joint. 9. A transverse cut wound 2 x 2 cm muscle deep situated on the right upper arm 9 cm below the Right shoulder joint. 10. An oblique cut wound 6 x 2 cm muscle deep situated on the right forearm 9 cm below the right elbow joint. 11. An oblique cut wound 3 x 2 cm muscle deep situated on the lower third of the right forearm, 4 cm above the right wrist joint. 12. A transverse cut wound 4 x 2 cm bone deep situated on the right side axillary region 13 cms outer to the right nipple. 13. An oblique cut wound 3 x 2 cms muscle deep situated on the outer aspect of the right scapular region. 14. A transverse cut wound 2 x 2 cm muscle deep situated on the upper part of the right scapular region. 15. An oblique cut wound 3 x 2 cm muscle deep situated on the right inter scapular region. 16. An oblique stab wound 3 x 2 cms cavity deep situated on the right interscapular region 1 cm outer to wound No.15. 17. An oblique stab wound 3 x 2 cms cavity deep situated on the left back 7th intercostal space 1 cm outer to midline. 18. A transverse cut wound 5 x 2 cm muscle deep situated on the left back 8th intercostal space 1 cm below wound No.17. 19. A transverse cut wound 3 x 1 cm muscle deep situated on the outer aspect of the left scapular region 5th intercostal space. All the above wounds 1 to 19 have regular margins and everted. Blood oozing from all the above wound. https://hcservices.ecourts.gov.in/hcservices/ 20. An oval shaped abrasion of 3 x 1 cm skin deep, situated on the left cheek. 21. A linear abrasion 10 x 1 cms skin deep with tappering down seen over the left shoulder to left upper arm outer aspect. 22. An oval shaped abrasion 2 x 1 cm skin deep situated on the back of the left elbow. 23. An oval shaped abrasion 3 x 1 cm skin deep situated on the inner aspect of the elbow joint. 24. A linear abrasion of 6 x 1 cm skin deep situated on 5 to 7th left intercostal space of the chest 3 cm away from the midline. 25. An oval shaped abrasion 3 x 1 cm skin deep situated on the right ankle joint. All the absrasions are covered with dried blood. All the teeth present. Eyes, ears and genitals are normal. Finger nails pale. No discharge via nostrils; mouth and urethar. Internal Appearances:- Dissection of wound No.16 extends obliquely downwards to the right Thoracic Cavity. Right side 6th rib fractured. Right Thoracic cavity contains 300 ml of fluid blood. Right lung pale. Dissection of wound No.17 extends obliquely downwards piercing the left lower lobe of lung 3 x 1 cm and 2 cm depth. Blood oozing left Thoracic cavity contains 900 ml of fluid blood. Left lung pale. Heart – Both chambers empty. No lesion. Liver, Spleen, Kidneys are pale. Stomach contains 10 ml of turbid fluid. N odour. Mucosa pale. Intestine empty. Urinary Bladder:Empty.Skull bone, Hyoid Bone Intact. Brain – Pale. Viscera and blood preserved for chemical analysis." Ex.P.25 is his final opinion. The Doctor opined that death would have occurred due to cumulative effects of multiple injuries. The viscera was preserved by P.W.19 for examination. He would depose that the injuries found on the dead body could have been caused by long knives and Aruvals. Injury Nos.16 and 17 with corresponding internal injuries would cause death instantaneously. P.W.18 is the Medical Officer in the Government Medical College Hospital, Coimbatore. At 8.05 a.m. on 5.9.1991 Shivakumar, son of Kuppusamy aged about 26 years was brought before him by his friend Prabhakar and Senthil Kumar, who is the brother of said Shivakumar for injuries shown to have been sustained by Shivakumar. P.W.18 examined Shivakumar and found him dead. P.W.18 enquired the persons, who brought Shivakumar to the hospital and they answered that three known persons and three unknown persons at about 7.45 a.m. on that day in Sukkiravarpet attacked Shivakumar with Aruvals. P.W.18 examined Shivakumar and found on https://hcservices.ecourts.gov.in/hcservices/ him various symptoms as noted by him in Ex.P.23, the Accident Register. P.W.18 consigned the dead body of Shivakumar to the mortuary. The symptoms noted by him are as hereunder:- "External Injuries:- 1.Eliptical stab injury left shoulder 4 x 2 cm. 2. Stab injury left shoulder 5 x 2 cm. 3. 5 eliptical stab wounds over the back and front of left forearm measuring 3 x 2 cm each. 4. Stab wound 5 x 3 cm over left thigh. 5. Two stab wounds right shoulder 2 x 2 cm each. 6. 2 stab wounds over right forearm 2 x 3 cm each. 7. Stab wound over left wrist 2 x 2 cm. 8. 6 eliptical stab wounds over back each measuring about 2 x 2 cm. 9. 3 x 2 cm cut wound 4" below left ear. 10. A transverse cut wound 12 cm over right axilla. In addition to multiple abrasions at various places over the body are seen." 7. P.W.29 continued his investigation further by examining witnesses and recording their statements. He recovered M.Os.21 to 23 removed from the dead body after post-mortem by the constable, who was present throughout post-mortem and produced before him, under form 95/Ex.P.44. On information furnished to him by the police constable at 5.00 p.m. on 6.9.1991 he arrested A.6 and A.7 and brought them to the police station. Then A.6 and A.7 were sent for judicial remand by P.W.29. On 7.9.1991 P.W.29 examined further witnesses by recording their statements. On 10.9.1991 he gave a requisition to the Court to examine P.Ws.3 and 4 under Section 164 of the Code of Criminal Procedure. P.W.29 examined further witnesses and recorded their statements. P.W.29 received an intimation that A.1 and A.2 have surrendered before Judicial Magistrate No.II, Trichy on 13.9.1991. On 26.9.1991 he filed an application before the Chief Judicial Magistrate to take A.1 and A.2 into police custody. Ex.P.45 is the affidavit and petition filed by him in regard thereto. At 5.30 p.m. on 26.9.1991 he took A.1 and A.2 into police custody pursuant to Court's order and brought them to the police station. At 5.30 a.m. on 27.9.1991 he examined A.1 in the presence of P.W.21 and another. A.1 gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.29. Pursuant to Ex.P.29, M.Os.15 and 16 came to be recovered under Ex.P.31. At 7.15 a.m. P.W.29 examined A.2 in the presence of the same witnesses and he also gave a voluntary confession statement, the admissible portion of which is Ex.P.30. Pursuant to Ex.P.30, M.Os.17 to 19 came to be recovered under Ex.P.32. A.1, A.2 and the recovered incriminating objects were brought to the police station. P.W.21 witnessed the examination of A.1 and A.2 by P.W.29 in police custody; recording of their confession statements and recovery of the various incriminating objects as already spoken to by P.W.29. P.W.21 also witnessed P.W.29 https://hcservices.ecourts.gov.in/hcservices/ lifting the finger prints and foot prints of A.1 and A.2. Ex.P.33 is the foot prints of A.1 while Ex.P.34 is the foot prints of A.2. P.W.29 after bringing A.1 and A.2 into police custody made A.1 to rewrite the handwritten material already found written on the wall (FATWA) in three white sheets , a number of times in the presence of P.Ws.21 and another. He also made A.1 to write in a white paper, the numerical from 1 to 9 seven times. Ex.P.46 is the said record. Likewise A.2 was asked to write and Ex.P.47 is the record in regard thereto. P.W.29 lifted the finger prints and foot prints of A.1 and A.2 with the help of a handwriting expert. Then A.1 and A.2 were re-surrendered in Court for continuation of their judicial remand. 8. On 1.10.1991 P.W.29 came to know that the absconding accused Mujbur Rahman and A.3 have surrendered in the Magistrate's Court at Coimbatore on 17.9.2001 and received an intimation in regard there to. P.W.29 sent a requisition to the court to conduct the test identification parade to enable P.Ws.1 to 4 to identify the assailants. At 12.00 noon on 6.10.1991 in the presence of P.W.20 and another, P.W.29 arrested A.5 and examined him. At that time A.5 gave a voluntary confession statement, the admissible portion of which is Ex.P.26, pursuant to which M.Os.12 to 14 came to be recovered under Ex.P.27 attested by the same witnesses. A.5 was brought to the police station and in two white papers, his foot prints and finger prints were lifted. P.W.20 witnessed the arrest of A.5; his examination; recording his confessions statement leading to the recovery and lifting his foot prints and finger prints as spoken to by P.W.29. The foot prints of A.5 is Ex.P.28. A.5 was sent for judicial remand. All the case properties so recovered were also sent to the court with a requisition to subject the same for chemical examination. At 6.15 p.m. on 21.10.1991 P.W.29 arrested A.8 just opposite to his house. He was brought to the police station at 7.00 p.m. and then sent for judicial remand. By giving a requisition to the judicial authorities through the Deputy Commissioner of Police, he examined the absconding accused Mujbur Rahman and A.3. At 12.30 p.m. on that day, the absconding accused gave a voluntary confession statement, the admissible portion of which is Ex.P.35, pursuant to which a knife had been recovered under Ex.P.37. However the knife had not been exhibited. A.3 was examined at 3.00 p.m. in the presence of P.W.22 and another. At that time A.3 gave a voluntary confession statement, the admissible portion of which is Ex.P.36, pursuant to which M.O.20 came to be recovered under Ex.P.38. P.W.25 witnessed the examination of the absconding accused Mujbur Rahman and A.3 and recording their confession statements. P.W.23 witnessed the recovery of the weapon under Ex.P.37 pursuant to the confession statement given by Mujbur Rahman, the absconding accused. P.W.23 also witnessed the recovery of M.O.20 at the instance of A.3 under Ex.P.38. P.W.22 is the jailor during the relevant time in the prison at Coimbatore. On 22.10.1991 P.W.29 the investigating officer appeared and gave a requisition disclosing that he wants to examine two remand prisoners. Their names are Mujbur Rahman (the absconding accused) and Oomai Babu (A.3). In the presence of P.W.22, both the accused were examined. Exs.P.35 and 36 are the confession statements https://hcservices.ecourts.gov.in/hcservices/ of the absconding accused and A.3 and P.W.22 admits his signature in those confession statements. The incriminating objects recovered as referred to above were sent to the Court on 23.10.1991 by P.W.29 with a requisition to subject the same for chemical examination. On 21.1.1992, P.W.29 came to know that A.4 had surrendered before Judicial Magistrate No.III,Coimbatore.