BAIL SLIP --------- The Appellants in Crl.A.No.336/2004 Viz 1) Abbas @ Deva Abbas (A4) 2) Abdul nazer (A5) 3) Abdul Hackeem (A6) were directed to be released on bail as per order of this Court dated 15/6/06 and made in Crl.A.No.336/2004 dated 10/4/06 and made in Crl.M.P.No. 1864/2006. ----------- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.12.2006 CORAM THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN & THE HON'BLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRL.APP.NOS.338 AND 336 OF 2004 1.Abu Thakir 2.Shajakhan 3.Sirajudeen ..Appellants in Crl.A.No.338/2004/Accused 1 to 3 1.Abbas @ Deva Abbas 2.Abdul Nazar 3.Abdul Hackeem ..Appellants in Crl.A.No.336/2004/Accused 4 to 6 Vs. State represented by Inspector of Police R-1, Podanur Police Station Crime No.271/2002 Coimbatore District ..Respondent in both the appeals /Complainant Prayer: Criminal appeals under Section 374(2) of Crl.P.C. against the judgment dated 11.02.2004 passed by the learned First Additional Sessions Court, Coimbatore in S.C.No.114/2003. For Appellants in : Mr.V.Gopinath, SC for Crl.A.No.336/04 : Mr.N.Manokaran For 1st Appellant in : Mr.B.Sriramulu, SC for Crl.A.No.338/04 : M/s.N.Sultan Aribeen https://hcservices.ecourts.gov.in/hcservices/ For Appellants 2&3 : Mr.S.Shanmugavelayutham, SC for in Crl.A.338/2004 : Mr.B. Appu Kutty For Respondent in : Mr.N.R.Elango, APP both the appeals COMMON JUDGMENT (Judgment of the court was delivered by Justice R.Balasubramanian) Six accused were tried in S.C.No.114/2003 on the file of the First Additional Court of Sessions, Coimbatore, for various offences. At the end of the trial, the learned trial Judge found A1 to A3 guilty under sections 120-B, 148, 341 and 302 I.P.C; A4 and A6 under sections 120-B, 147 and 302 read with section 149 I.P.C and A5 under sections 120-B and 302 read with section 109 I.P.C. For the offence of criminal conspiracy, each one of the convicted accused stands sentenced to undergo imprisonment for life together with a fine of Rs.10,000/-, carrying a default sentence. For the offence of murder, either directly or with the aid of section 149 or 109 I.P.C, each one of the convicted accused stands sentenced to undergo imprisonment for life together with a fine of Rs.10,000/-, carrying a default sentence. For the offence under section 341 I.P.C., each one of the convicted accused stands sentenced to undergo one month rigorous imprisonment together with a fine of Rs.500/-, carrying a default sentence. For the offence under section 148 I.P.C., the convicted accused stands sentenced to undergo two years rigorous imprisonment together with a fine of Rs.10,000/-, carrying a default sentence. The sentences stand directed to run concurrently. Hence, the convicted A4 to A6 have filed Crl.App.No.336/2004 and A1 to A3 have filed Crl.App.No.338/2004 before this court. Heard Mr.B.Sriramulu learned senior counsel appearing for A1; Mr.S.Shanmugavelayutham learned counsel appearing for A2 and A3; Mr.V.Gopinath learned senior counsel appearing for A4 to A6 and Mr.N.R.Elango learned Additional Public Prosecutor defending the State. 2. According to the prosecution, on 26.03.2002 a Muslim by name Sultan Meeran was murdered by two persons and therefore, to retaliate, a criminal conspiracy was hatched on 27.03.2002 by the accused; as a consequence to the criminal conspiracy, all the accused formed themselves into members of unlawful assembly (A1 to A3 armed) on 28.03.2002 at 7.30 a.m and in the course of the same transaction, by wrongfully restraining Murugesan (since deceased), A1 to A3 caused his death. To prove their case, the prosecution examined P.Ws.1 to 30, besides marking Exs.P.1 to P.77 and M.Os.1 to 43. The defence, on their side, examined four witnesses as D.Ws.1 to 4 and marked https://hcservices.ecourts.gov.in/hcservices/ defence material object Nos.1 to 10. P.W.1 is working in a lorry transport office at Ukkadam. The deceased, who is a member of RSS, is P.W.1's younger brother. P.W.1, the deceased and their mother are all living together. The deceased was an active member of RSS. Both P.W.1 and the deceased are unmarried. At about 6.30 a.m on the occurrence day, the deceased was taking his bath and P.W.1 went to a nearby barbar shop to have a shave. P.W.1's paternal uncle came to the barbar shop and informed P.W.1 that east of Badrakaliamman Koil, somebody are engaged in a quarrel with Murugesan (since deceased). Immediately P.W.1 ran towards that place, where he found his younger brother lying on the ground with bleeding injuries. Murugesan did not respond to the calls of P.W.1. P.Ws.5 and 28, the former residing east of P.W.1's house and the latter residing at Kovaipudur, were there in the crowd. When P.W.1 enquired them, they told him that the attack is in the context of the earlier incident, where, a person belonging to the assailants' community had come to be stabbed. They also told him that the assailants ran away from the crime scene. Within ten minutes thereafter, P.W.6 came there and she informed P.W.1 that in the morning when she was opening her shop (P.W.6 is having a fruit vending shop), she noticed two or three persons coming near her shop in a red colour car and scooter and then they proceeded in the pathway leading to the temple. Sometime later, P.W.1's uncle Subramani (not examined) and P.W.15 came there. P.W.15 and others took injured Murugesan in the car of P.W.1's uncle to the Government Hospital at Coimbatore. En route, P.W.14, over his mobile phone, informed the investigating police station. When P.W.1 reached the crime scene, it was 7.30 a.m and fifteen minutes thereafter, they left for the hospital, which they reached at 8.00 a.m. The duty Doctor, by examining Murugesan, pronounced him dead. 3. P.W.29, the Sub-Inspector of Police, came to the hospital and examined P.W.1. The narration of P.W.1 was reduced into writing by P.W.29, in which P.W.1 had signed. Ex.P.1 is the said complaint. Murugesan was wearing a white colour shirt and a white dhoti. At the crime scene, the handbag of the deceased, his hawai slippers (two in number) and a mobile phone were found. M.O.1 is the mobile phone. M.O.2 is the handbag and M.O.3 is the hawai slippers. At 8.30 a.m., the Investigating Officer came to the hospital. During inquest, P.W.1 identified the dead body of his brother. M.Os.4 and 5 are the dhoti and shirt of the deceased respectively. P.W.29 is the Sub- Inspector of Police in the investigating police station. At 8.20 a.m on 28.03.2002 when he was in the police station, P.W.15, who is the local BJP leader, telephoned to him and said that Murugesan, a resident of Kovaipudur, had been stabbed by a few and with multiple injuries, he is being taken to the Government Hospital at Coimbatore. On that information, P.W.29 reached the hospital at 8.45 a.m where, he came to know that Murugesan had already died. He collected the death intimation available in the police outpost. He examined P.W.1 and recorded his statement. P.W.29 came back to the police station https://hcservices.ecourts.gov.in/hcservices/ at 9.45 a.m and registered that complaint as Ex.P.1 in his police station Crime No.271/2002 for various offences. Ex.P.72 is the printed first information report. Then, he sent the express records to the court as well as to the higher officials. P.W.30 is the Investigating Officer. As there was no supply of printed forms of first information report by the Government, first information report was prepared in a xerox copy of the printed first information report format. Since six months before the occurrence, there was no supply of printed first information report forms. Since xerox copy of the first information report format is used, care is taken to see that the serial number available in the printed first information report is not masked while taking xerox copies. P.W.30, on the occurrence day morning, received information over wireless about this crime and accordingly, taking permission from his higher ups to leave the place where he was on duty, reached the crime scene at about 10.00 a.m on that morning. He collected the express records from police constable Rajendran and in the presence of P.W.20 and another, he prepared Ex.P.30, the observation mahazar and Ex.P.74, the rough sketch, between 10.00 and 10.20 a.m. Then he made security arrangements for the place and proceeded to the Government Hospital, where, in the presence of panchayatdars and witnesses, he conducted inquest over the dead body. Ex.P.73 is the inquest report. As Murugesan's relatives wanted to donate the eyes of Murugesan, with the permission of the Chief of the Hospital, the eyes of Murugesan were allowed to be removed. Then, P.W.30 gave Ex.P.47 (requisition) to the hospital to conduct post mortem. 4. P.W.21 is the Casualty Medical Officer in the Government Medical College Hospital at Coimbatore, before whom, at 8.30 a.m on 28.03.2002, Murugesan (since deceased) was brought by P.W.15 and others. On examination, P.W.21 found Murugesan already dead. Ex.P.32 is the accident register issued by P.W.21. P.W.21 consigned the dead body to the mortuary and Ex.P.33 is the record in regard thereto. P.W.21 sent intimation to the police outpost about the medico legal case. P.W.23 is the Professor of Forensic Medicine in the Government Medical College Hospital at Coimbatore. On receipt of Ex.P.47, the requisition to conduct post mortem on the dead body of Murugesan, P.W.23 commenced post mortem on the dead body at 12.25 p.m on 28.03.2002. During post mortem, he found various symptoms as noted by him in Ex.P.48, the post mortem report. The symptoms are as hereunder: "1) Vertically oblique stab injury over front of right side of chest measuring 5 cms x 2.5 cms x entering the right thoracic cavity. The upper outer end of the wound is 6 cms above and medial to right nipple. On dissection the wound passes backwards, medially and downwards in the right third intercostal space cutting the intercostal muscles, vessels, nerves and cutting the fourth rib close to https://hcservices.ecourts.gov.in/hcservices/ sternum. Then it has caused a stab injury in the underlying anterior aspect of lower part of upper lobe of right lung measuring 2.5 cms x 1 cm x 1.5 cms and exited out in the inner aspect of lower part of right lung measuring 2.25 cms x 1 cm. Then it caused a cut in the right side of front of pericardium measuring 1.75 cms x 1 cm and then caused a stab in the anterior aspect of right ventricle measuring 1.5 cms x 1 cm x cavity deep. Pericardial sac contains 50 ml of blood with clots. Right pleural cavity contains 750 ml of blood with clots. The depth of the wound tract is about 10 cms. The margins of the wound are regular and both ends are pointed. 2) Transversely oblique stab injury over back of left side of upper chest measuring 3 cms x 1 cm x entering the left thoracic cavity. The lower medial end of the wound is 4 cms from the middle of T 3 vertebra. The wound passes forward, downwards and medially through the left third intercostal space causing a stab injury in the posterior aspect of upper lobe of left lung measuring 2 cms x 1 cm x 2 cms. The deepest part ending as a point. Both ends of the wound are pointed and the margins are regular. The length of the wound tract is about 8 cms left pleural cavity contains 400 ml of blood with clots. 3) Vertically oblique stab injury over back of right side of upper chest measuring 3 cms x 1 cm x entering the right thoracic cavity. The upper medial end of the wound is 1.5 cms from the middle of T 4 vertebra. The wound passes downwards, laterally and forwards in the fourth right intercostal space cutting the right fourth rib in the posterior aspect and causing a stab injury in the middle lobe of right lung measuring 2.5 cms x 1 cm x 2 cms and the deepest point ending as a point. The length of the wound tract is about 8 cms. Both ends of the wound are pointed and the margins are regular. 4) Transversely oblique stab injury over back of left side of upper chest close to midline measuring 3 cms x 1 cm x 3.5 cms deep in the muscle plane. The lower inner end of the wound is close to middle of T3 vertebra. The wound passes downwards, laterally and forwards. Both ends of the wound are pointed and margins are regular. 5) Vertically oblique stab injury just below the right side of lower lip measuring 1 cm x 0.5 cms through and through and exiting through the buccal surface of the lower lip on the right side, wound measuring 0.75 x 0.5 cm. The wound passes upwards, backwards and laterally. The length https://hcservices.ecourts.gov.in/hcservices/ of the wound tract is about 1 cm. The upper inner end of the wound is 1 cm right to midline of chin. The ends of the wound are pointed (both) and the margins are regular. 6) Vertically oblique stab injury over the middle third of back of left arm measuring 4.5 cms x 2 cms x 6 cms deep in the muscle plane. The distal outer end of the wound is 8 cms above left elbow. The wound passes upwards, forwards and medially. Both the ends of the wound are pointed and margins are regular. 7) Oblique stab injury over the posterior aspect of left hip measuring 3 cms x 1 cm x 5 cms deep in the muscle plane. Both ends of the wound are pointed and the margins are regular. The lower outer end of the wound is 7 cms below and behind the left anterior superior illiac spine. The wound passes forwards, upwards and laterally. 8) An oblique cut injury over left side of upper lip measuring 3 cms x 1 cm x 1 cm muscle deep. 9) An oblique cut injury over left side of lower lip measuring 4 cms x 1 cm x 1 cm muscle deep. 10) Transversely oblique incised wound over front of upper part of neck just above thyroid cartilage measuring 3 cms x 1 cm x skin deep. 11) Oblique incised wound in the middle of right infra clavicular region measuring 1 cm x 0.5 cm x skin deep. The upper inner end of the wound is 6 cms from the medial end of right clavicle. 12) Transversely oblique skin deep incised wounds four in number in the left subscapular region measuring 5 cms x 1 cm, 3 cms x 1 cm, 2 cms x 0.5 cm and 1 cm x 0.5 cm. 13) Transversely oblique skin deep incised wound over upper interscapular region on the right side measuring 2 cms x 1 cm. 14) Transversely oblique skin deep incised wound over the back of right lower chest measuring 2 cms x 0.5 cms. 15) Vertically oblique skin deep incised wound over the upper interscapular region on the left side measuring 4 cms x 0.5 cm. 16) Vertically oblique skin deep incised wound over https://hcservices.ecourts.gov.in/hcservices/ the upper interscapular region on the right side measuring 2 cms x 0.5 cms. 17) Transversely oblique skin deep incised wound over the back of left side of upper abdomen measuring 2 cms x 1 cm. 18) Transversely oblique skin deep incised wound over the dorsum of right wrist measuring 5 cms x 0.5 cm. 19) Oblique cut injury over the dorsum right hand measuring 5 cms x 1 cm x bone deep. 20) Another transversely oblique cut injury over the dorsum of right hand close to right index finger measuring 3 cms x 1 cm x bone deep. 21) Oblique cut injury over the radial aspect of right palm measuring 2 cms x 0.5 cm x 1 cm muscle deep. 22) Oblique cut injury over the medial aspect of lower third of right thigh 5 cms above right knee measuring 7 cms x 2 cms x 1 cm deep in the subcutaneous plane. 23) Transversely oblique cut injury over the front of upper part of left arm 12 cms below the top of left shoulder measuring 2 cms x 1 cm x 1 cm deep in the muscle plane. 24) Oblique incised wound over the front of upper part of left forearm 8 cms below left elbow measuring 3 cms x 0.5 cm x skin deep. 25) Abrasions seen in the following regions: • 1 cm x 1 cm, 0.5 x 0.5 cm over right side of forehead. • 3 cm x 0.25 cm over right lateral aspect of lower chest. • 2 cm x 1 cm, 0.5 cm x 0.5 cm over dorsum of proximal part of right forearm. • 2 cm x 1 cm over back of right elbow. • 3 cm x 1 cm, 2 cm x 1 cm over lateral aspect of upper part of right leg. • 4 cm x 3 cm over lateral aspect of middle third of right thigh. • 2 cm x 1 cm over the lateral aspect of right hip. • 7 cm x 4 cm over the lateral aspect of right gluteal https://hcservices.ecourts.gov.in/hcservices/ region. • 3 cm x 1 cm just below left mastoid. • 4 cm x 1 cm and 3 cm x 1 cm over left lateral aspect of neck. • 3 cm x 1 cm over left supra scapular region. • 4 cm x 0.5 cm and 1 cm x 1 cm over lateral aspect of upper part of left arm. • 1 cm x 1 cm over posterior aspect of lower part of left arm. • 5 cm x 4 cm and 0.5 cm x 0.5 cm over posterior aspect of left elbow. • 4 cm x 2 cm over lateral aspect of left hip. • Multiple tiny scratch abrasions over left knee, lower part of left forearm, right hand, right side of face, left side of forehead, dorsum of nose and over front of neck. Other findings: • Peritoneal cavity empty. • Lungs cutsection pale. • Heart all chambers empty. Coronaries patent. • Hyoid bone intact. • Stomach contains 150 ml of brown colour fluid without any specific smell. Mucosa pale. • Small intestine contains 20 ml bile stained fluid without any specific smell. Mucosa pale. • Liver, spleen, kidneys and brain cutsection pale. • Urinary bladder empty. • External genitalia nil injury. Right hydrocele present." The Doctor opined that death is due to haemorrhage and shock due to injuries 1, 2 and 3 (stab injuries over chest and corresponding internal injuries to heart and both lungs). According to the Doctor, death would have occurred 4 to 8 hours prior to autopsy. Ex.P.49 is the viscera report, which shows that neither poison nor alcohol was detected in the viscera. Except the abrasions, injuries 1 and 6 could have been caused by the knife shown to him. Injuries 2 to 5 and 7 are stab injuries and the injuries noted in serial No.6 could have been caused by the use of two knives. Cut injuries and tear injuries might have been caused by the weapons in M.O.6 series. 5. P.W.30, from the crime scene, recovered M.O.1 (mobile phone); M.O.2 (a faded dark colour canvass cloth shoulder bag) and M.O.40 series viz., a sum of Rs.5,920/- consisting of 17 notes in Rs.100/- https://hcservices.ecourts.gov.in/hcservices/ denomination; 34 notes in Rs.50/- denomination; 4 notes in Rs.20/- denomination and 47 notes in Rs.10/- denomination. Besides the above, he also recovered M.O.8 series (a key chain); M.O.3 (a pair of faded yellow colour hawai chappals); M.O.7 (a knife cover); M.O.9 (blood stained earth) and M.O.10 (sample earth) under Ex.P.31 attested by P.W.20 and another. Then, he examined P.Ws.2 to 4, 7, 8, 16 and 20 by recording their statements. On 29.03.2002, he examined P.Ws.15, 19 and 23 by recording their statements. On 30.03.2002 and 31.03.2002, P.W.30 examined further witnesses by recording their statements. On 01.04.2002, P.W.30 sent the incriminating objects recovered from the crime scene to the court. He recovered M.Os.5, 41, 42 and 4 removed from the dead body after post mortem and handed over to him under Form 95 (Ex.P.75). On 02.04.2002, 04.04.2002 and 08.04.2002, he examined further witnesses by recording their statements. 6. On prior information, P.W.30 arrested A1 identified by the informant at 8.15 p.m on 10.04.2002 and examined him in the presence of P.W.25 and another. A1 gave a voluntry confession statement at that time, the admissible portion of which is Ex.P.53. The statement was recorded from 8.15 p.m till 10.30 p.m on that day. Pursuant to the same, A1 led the police party and the witnesses to another place, from where, he produced a knife (M.O.6 series), which was recovered under Ex.P.54 attested by the same witnesses. Then, A1 took the police party and the witnesses to the crime scene and then to his house, from where, he produced M.O.15, a full sleeves polyester shirt; M.O.16, a faded blood stained pant; Ex.P.17 (medical record); M.O.17 and M.O.18 (Journals) under Ex.P.55 (search list) attested by the residents of the house. The arrested accused was brought to the police station and confined in the station cell. Then, P.W.30 examined P.Ws.13 and 14 and recovered the medical case sheet of A1 under Ex.P.56. He then altered the section of offence and prepared Ex.P.76, the altered express first information report. At 6.00 a.m on 11.04.2002, P.W.30 arrested A2 on prior information on he being identified by the informant. At that time, A2 gave a voluntary confession statement, the admissible portion of which is Ex.P.50, pursuant to which, one knife (M.O.6 series) came to be recovered under Ex.P.51. A2 then led the police party to the crime scene. Then, he took the police party to his residence, from where, he produced M.O.14 (blood stained full sleeves shirt); M.O.13 (faded cement colour pant); M.O.11 (a book on religion) and M.O.12 (another book) under Ex.P.52 (search list). The arrested A2 was brought to the police station and then locked up in the station cell. On prior information, he searched the house of A3 in the presene of P.W.25 and another. A3 was not available there. From his house, he recovered M.O.19 series under Ex.P.57 (search list). P.W.30 also searched the house of A5, from where, M.O.20 series came to be recovered under Ex.P.58 (search list). Then P.W.30 searched the house of A4, from where, he recovered M.O.21 series under Ex.P.59 (search list). The https://hcservices.ecourts.gov.in/hcservices/ house of the absconding accused Ibrahim was also searched, from where, M.O.22 series came to be recovered under Ex.P.60 (search list). The house of another absconding accused by name Ashraf Ali was also searched, from where, M.O.23 series came to be recovered under Ex.P.61 (search list). A1 and A2 were sent for judicial remand. As A1 had injuries on his right hand wrist, he was sent for treatment with a medical memo. P.W.30 arrested A3 at 9.00 p.m on 11.04.2002 on being identified by the informant and examined him in the presence of P.W.25 and another. A3 at that time gave a voluntary confession statement, the admissible portion of which is Ex.P.62. Personal search of A3 resulted in the recovery of M.O.24 (money purse); M.O.25 ( a paper containing the address of the deceased); M.O.26 (a visiting card) and M.O.27 series (Rs.30/- consisting of three Rs.10/- denomination notes) under Ex.P.63. A3 then led the police party and the witnesses to a place known to him, from where, a knife (M.O.6 series) came to be recovered under Ex.P.64. A3 also produced M.O.30, a bag, from that place, in which, M.O.28, a blood stained green colour lungi and M.O.29, a full sleeves shirt, were available and they were recovered under Ex.P.65. A3 then led the police party and the witnesses to the crime scene. He also led the police party and the witnesses to his house, from where, he produced M.O.31 (notice), which was recovered under Ex.P.66 (search list). P.W.30, on prior information, arrested A4 at 6.00 a.m on 12.04.2002 on he being identified by the informant. At that time, A4 gave a voluntary confession statement. M.O.32, the scooter driven by A4, was recovered. Personal search of A4 resulted in the recovery of M.O.33 (money purse); M.O.34 (sacred ashes and kumkum); M.O.35 (photo of Lord Vinayaga) and M.O.36 series (a sum of Rs.45/- consisting of one note in the denomination of Rs.20/-; two notes in the denomination