BAIL SLIP The Appellants (Accused 1 to 6, 8 to 14 & 17 to 21 & 24 in S.C.No.192 of 1995 on the file of the Court of the Addl District Sessions Judge, Nagapattinam) were directed to be released on bail as per order of this Hon”ble Court dated 28.8.2001 and made in CRL.M.P.2137, 2163 and 5446 of 2001 respectively in Crl.A.No.703 of 1996. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 08.03.2005 CORAM THE HONOURABLE MR. JUSTICE N.DHINAKAR AND THE HONOURABLE MR. JUSTICE A.KULASEKARAN CRL. APPEAL NO. 703 OF 1996 1. Chandramohan 2. Sivanandham 3. Chandrakumar 4. Mahalingam 5. Chinnaiyan 6. Kathaiyan 7. Selvamani @ Chellappa 8. Kunju @ Kunju Pillai 9. Thangaraj 10. Ramesh 11. Pounraj 12. Selvam 13. Annadurai 14. Jeeva 15. Manoharan 16. Gajendran 17. Veeramani 18. Karuppaian 19. Ganesan .. Appellants/ Accused 1 to 6, 8 to 14 & 17 to 21 & 24) - Vs - State rep. by Inspector of Police Kudaivasal Police Station. .. Respondent / Respondent Appeal preferred against the conviction and sentence passed by the learned Addl. Sessions Judge, Nagapattinam, made in S.C. No. 192 of 1995 dated 20.08.1996 as stated therein. For Appellants : Mr. S.Ashok Kumar, SC, for Mr. D.Veerasekaran https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr. K.Duraisami, PP assisted by Mr. S.Jayakumar, APP JUDGMENT (JUDGMENT OF THE COURT WAS DELIVERED BY N.DHINAKAR, J.) The appellants are A-1 to A-6, A-8 to A-14, A-17 to A-21 and A-24. They were tried before the learned Addl. Sessions Judge, Nagapattinam, along with seven others, who were arrayed as A-7, A-15, A-16, A-22, A-23, A-25 and A-26. The learned trial Judge, on the evidence adduced, while acquitting A-7, A- 15, A-16, A-22, A-23, A-25 and A-26, found the above appellants in this appeal alone guilty under various charges, which were framed against them. In this appeal, for the sake of convenience, the acquitted accused, whom we have referred to above and the appellants in this appeal will be referred as A-1 to A-26 in the same order as they were arrayed before the learned Addl. Sessions Judge. 2. The allegation against A-1 to A-26 is that at 1.15 p.m. on 10.9.94, they formed themselves into an unlawful assembly and that A-1 to A-23 were armed with dangerous weapons and in furtherance of the common object of the said unlawful assembly, they caused the death of the first deceased Rajamanickam (for short D-1), the second deceased Venkatachalam (for short D-2) and the third deceased Balasubramanian (for short D-3) and during the course of the same transaction they also caused injuries to P.W.s 2 and 3. 3. The first charge was framed against A-24 to A-26 under Section 147 IPC. The trial Judge found A-24 alone guilty under the said charge and sentenced him to one year rigourous imprisonment, while he acquitted A-25 and A-26. 4. The 2nd charge was framed under Section 148 IPC against A-1 to A-23. While the trial Judge found A-1 to A-6, A-8 to A- 14, A-17 to A-21 guilty and sentenced each one of them to two years rigourous imprisonment, acquitted A-7, A-15, A-16, A-22 and A-23 under the said charge. 5. The 3rd charge was framed against A-1 to A-26 under Section 341 IPC for wrongfully restraining D-2, but the trial Judge convicted A-1 to A-6, A-8 to A-14, A-17 to A-21 and A-24 alone and sentenced each one of them to one month simple imprisonment, while he acquitted the other accused under the said charge. 6. The 4th charge framed against A-1 to A-26 under Section 356 IPC ended in conviction of the appellants alone and the allegation in the said charge is that they assaulted D-1 to D-3. On being convicted, each of the appellant was sentenced to rigourous imprisonment for three months. https://hcservices.ecourts.gov.in/hcservices/ 7. The 5th charge was framed under Section 324 IPC against A-1 to A-12, A-14 to A-19 and A-21 to A-26. The allegation in the said charge is that they caused injuries to D-1 to D-3 and P.W.s 2 and 3. The learned trial Judge, while finding A-2, A-4, A-14, A-17 to A-19 and A-21 guilty under Section 324 IPC, whereas found A-1, A-3, A-5, A-12, A-13 and A-24 guilty under Section 324 read with 149 IPC and on being found guilty, each one of them was sentenced to two years rigourous imprisonment. A-6 and A-8 to A-11, though were found also guilty under Section 324 read with 149 IPC, the learned trial Judge, adopting a different and illogical standard, did not award any sentence. He also did not realise that those accused who were convicted under this charge with the aid of Section 149 IPC were not at all charged under the section as Section 149 IPC is an independent offence. 8. A-13 and A-20 were charged under Section 324 read with 149 IPC under charge No.6 and the learned trial Judge, while convicting A-13 under Section 324 read with 149 IPC, found A-20 guilty under Section 324 IPC simplicitor and each of the accused was sentenced to two years rigourous imprisonment under the said charge. 9. The 7th charge framed under Section 326 IPC against A-7, A-13, A-15, A-16, A-20, A-22 and A-23 was on the allegation that A-13 cut P.W.3 with an aruval on the left hand fingers and A-7, A-15, A-16, A-22 and A-23 attacked D-1 and A-2 attacked D-3 with dangerous weapons respectively. The learned trial Judge, while convicting A-13 under Section 326 IPC simplicitor as charged, found A-20 guilty under Section 326 read with 149 IPC, though there was no specific charge under Section 149 IPC against the accused and each one of them was sentenced to three years rigourous imprisonment and each one of them was directed to pay a fine of Rs.500/= with a default sentence of six months rigourous imprisonment, while all the other accused were acquitted. 10. Charge No.8 under Section 326 read with 149 IPC was framed against A-1, A-3 to A-6, A-8, A-9 to A-12, A-14, a-17 to A-19, A-21, A-24 and A-26 and the allegation in the said charge is that they were members of the unlawful assembly when the other accused caused injuries to D-1 to D-3 and the witnesses. The trial Judge found A-12, A-17, A-18, A-21 alone guilty under the said charge and sentenced each one of them to three years rigourous imprisonment and each one of them was directed to pay a fine of Rs.500/= with a default sentence of six months rigourous imprisonment, while A-1, A-3 to A-6, A-8 to A-12, A-14 and A-19 were acquitted under the said charge. 11. Charge No.9, which was framed under Section 326 read with 149 IPC (2 counts) was framed against A-2, who was found not guilty under the said charge. 12. Charge No.10 was framed under Section 326 read with 149 IPC (3 counts) against A-25, but he was found not guilty under https://hcservices.ecourts.gov.in/hcservices/ the said charge. 13. The 11th charge was framed against A-3 and A-12 under Section 302 IPC simplicitor for causing the death of D-2 and D- 3. The learned trial Judge found A-3 and A-12 guilty and sentenced each one of them to imprisonment for life under the said charge, but also strangely found A-1 guilty under the said charge and sentenced him to imprisonment for life for causing the death of D-1, though no charge was framed against him for the murder of D-1 under the said charge. 14. The 12th charge under Section 302 read with 34 IPC was framed against A-1 to A-3, A-5, A-6, A-8 to A-12, A-13, A-21 and A-24 to A-26. The allegation against the accused in the said charge is that A-1 to A-3, A-5, A-6, A-8 to A-12 and A-21 attacked D-3 and caused his death and that A-24 attacked D-1 while A-13, A-25 and A-26 attacked D-2. Charge No.13 was also framed under Section 302 read with 34 IPC (2 counts) against A- 4, A-14, A-17 and A-18. The learned trial Judge, without giving a separate finding under charge Nos. 12 and 13, gave a common finding that A-1 to A-6, A-8 to A-11, A-13, A-14, A-17, A-18 and A-21 are guilty of the said offences and sentenced each one of them to imprisonment for life without specifically stating whether the said conviction is under charge No.12 or charge No.13, forgetting the contents of the charge under charge No.12, which was framed against the accused mentioned in the said charge, that they have attacked D-1 to D-3, whereas under charge No.13, the allegation is that the accused mentioned in the said charge have attacked and murdered D-2 and D-3. 15. Charge No.14 framed under Section 302 read with 149 IPC was against A-2, A-4 to A-18, A-22, A-23 and A-25. The learned trial Judge did not give any finding and law is well settled that if there is no finding, it means implied acquittal. 16. Similarly, A-21, though was charged under Section 302 read with 149 IPC (2 counts) under charge No.15 for sharing the common object of the other accused for causing the death of D-1 and D-3, no finding was given by the learned trial Judge against him under the said charge and, thereby, acquitting him by implication. 17. Charge No.16 framed under Section 302 read with 149 IPC (3 counts) was framed against A-19, A-20, A-24 and A-26 on the allegation that they shared the common object in murdering D-1 to D-3, but the learned trial Judge found A-19 and A-20 alone guilty under Section 302 read with 34 IPC for which each one of them was sentenced to imprisonment for life. 18. Charge No.17 was framed under Section 114 IPC against A-24 to A-26 for abetting the other accused without mentioning the nature of the offence, which they have abetted, and the learned trial Judge strangely convicted A-24 alone guilty under Section 302 read with 114 IPC as if the said charge is for the https://hcservices.ecourts.gov.in/hcservices/ abetment of murder against A-24 even though there is no such allegation against A-24 under the said charge. On being found guilty, A-24 was sentenced to imprisonment for life. However, A-25 and A-26 were acquitted under the said charge. 19. Charge No.18 which was framed under Section 25 (1-B) (b) read with Section 4 of the Arms Act was framed against A-2, A-14 and A-21 on the allegation that they used the weapon velkambu. On being found guilty as charged, each one of them was sentenced to two years rigourous imprisonment and each one of them was directed to pay a fine of Rs.500/= and in default to undergo rigourous imprisonment for six months. 20. By the present appeal, the appellants, who were found guilty by the learned trial Judge and convicted for various offences as noted above, challenge their conviction and sentence. 21. The facts, which led to the framing of charges and ultimate conviction of the appellants and the acquittal of some of the accused are based on the following facts, which were unfolded by the prosecution before the trial court :- The appellants and the prosecution party were residents of Neikuppai village falling within Kudaivasal Taluk. They were agriculturists by profession. The appellants are Dalits and the prosecution witnesses are caste Hindus. A person by name Murugaiyan, belonging to the Dalit community, was murdered in the year 1993-94 on account of his illicit relationship with Lakshmi, who was the wife of Swaminathan, a dobhi by profession. During Pongal, in the year 1994, the caste Hindus used to prevent their cattles from getting into the fields of the Dalits on account of which quarrels used to arise. On account of this there was animosity between the two groups. The Dalits never used to be called for work by the caste Hindus in the village. In connection with the murder of Murugaiyan, which we have mentioned earlier, a criminal case was filed against 27 accused, who were caste Hindus, and the same was pending trial on the unfortunate date of incident. 22. About a fortnight before the date of incident, A-24 to A-26 were seen talking with each other near a sluice and this was witnessed by P.W.1, who heard them telling each other that caste Hindus must be murdered. P.W.1, after attending to his work, returned to the village and informed the villagers; but the villagers did not give importance to the conversation of A- 24 to A-26, which was heard by P.W.1 and which in turn was conveyed to them. P.W.1 also came to know that the accused party was convening a secret meeting. On 10.9.94 P.W.s 1, 10 and Karthikeyan were proceeding towards their house. They, in front of the house of A-24, saw all the accused standing with weapons. P.W.1 crossed the house of A-24 and, thereafter, hid himself and was watching at the accused as to what they proposed to do. A-1 and A-3 were each armed with veech aruval; A-5 to A- 13, A-15 and A-16 were having aruvals; A-2 and A-14 were having velsticks; A-4 was having a sulukki and A-19 to A-23 were having iron rods. A-24 to A-26 did not have any weapons in their https://hcservices.ecourts.gov.in/hcservices/ hands. While P.W.1 was watching them, the accused divided themselves into two groups; one group proceeded towards Koradacheri and the other group proceeded towards Poongavur. A- 12, A-13, A-17 to A-20 and A-24 to A-26 proceeding towards Koradacheri were heard talking among themselves that they have to finish of Venkatachalam (D-2). The other accused, who went towards Poongavur were seen shouting that they have to murder atleast ten persons on that day. P.W.1 asked Karthikeyan to inform the villagers and P.W.s 1 and 10 proceeded through another road to inform others. When they were crossing a channel, they saw the accused group, which earlier proceeded towards Poongavur. A-1 was seen cutting D-1 with an aruval on his neck by saying that the persons who have murdered Murugaiyan must be done to death. D-1 fell down in the field. A-2, A-4 and A-14 stabbed him with velsticks on various parts of his body. When P.W.2 intervened, he was cut by A-3 on the head followed by A-14, who stabbed him with a velstick. This was at 1.30 p.m. 23. The accused, who went towards Koradacheri, namely, A-12 and A-24 to A-26 returned to the place and were seen telling the other accused that they have already murdered D-2. Then all the accused left the place saying that they have to murder D-3. P.W.1, out of fear, ran away from the place. The accused group went and surrounded Balasubramanian (D-3), while he was at his field, supervising agriculture work. He was surrounded by the accused and A-24 instigated the other accused not to leave him. A-1 with a veech aruval cut him on the left cheek and D-3 fell down. When P.W.8 tried to intervene, A-21 threatened him to run away from the place. A-14 beat him with a velstick on his left hand. P.W.8 ran and hid himself in the field of Swamikannu. He saw A-3 cutting D-3 on the right neck two or three times followed by A-5, A-6, A8, A-9, A-11, A-12 and A-15, who cut D-3 indiscriminately. The attack on D-3 was witnessed by P.W.9 apart from P.W.8. After the accused left the place, the witnesses went near D-3 and found him dead. Thereafter, the witnesses ran to the village where they were informed that two other persons were also murdered and that P.W.s 8 and 9 informed the other villagers that D-3 was cut to death. All the villagers went to the place where the dead bodies were lying. 24. P.W.1 left the scene of occurrence for Kudaivasal police station. P.W.1 reached Kudaivasal police station and gave an oral complaint to P.W.13, the head constable at 3.45 p.m. P.W.13 reduced the complaint into writing and the said complaint is Ex.P-1. On the complaint, Ex.P-1, P.W.13 registered a case in crime No.462 of 1994 against 26 accused under Sections 147, 148 and 302 IPC. Ex.P-11 is a copy of the printed first information report. He despatched the express reports to higher officials and handed over Ex.P-1 as well as he copy of the printed first information report, Ex.P-11 to P.W.18, a police constable with a direction that those two documents must be handed over to the learned Magistrate. He also sent information over wireless to the Inspector of Police. https://hcservices.ecourts.gov.in/hcservices/ 25. P.W.19, who was the Circle Inspector, Nanilam, and who was holding additional charge of Kudaivasal police station, on receipt of information over wireless, informed the police officials of Kudaivasal police station to go over to the scene of occurrence with a copy of the printed first information report. He proceeded to Neikuppai village and reached it at 4.55 p.m. A copy of the printed first information report was given by a police constable and investigation was taken up by him. At 5.05 p.m., he prepared an observation mahazar, Ex.P-8 as regards the place where the dead body of Venkatachalam (D-2) was lying. A rough sketch, Ex.P-16 was also drawn. The inquest over the dead body of D-2 commenced at 6.00 p.m. and was over by 8.00 p.m. At the time of inquest, P.W.s 1, 8 and 9 were examined and their statements were recorded. Ex.P-17 is the inquest report. After the inquest, the dead body was handed over to a police constable with a requisition to the doctor for conducting autopsy. 26. P.W.19 proceeded to the place where the dead body of Rajamanickam (D-1) was lying. He prepared an observation mahazar, Ex.P-9 at 8.30 p.m. A rough sketch Ex.P-18 was drawn. The inquest over the dead body of D-1 commenced at 9.15 p.m. and ended at 11.15 p.m. The inquest report stands marked as Ex.P- 19. During inquest, the witnesses, who were earlier examined were again examined and their statements were recorded. After the inquest, he handed over the dead body of D-1 to a police constable with a requisition to the doctor for conducting autopsy. 27. At 11.45 p.m., he proceeded to the place where the dead body of Balasubramanian (D-3) was lying. He prepared an observation mahazar, Ex.P-10 and drew a rough sketch, Ex.P-20. Inquest was conducted over the dead body of D-3 between 0030 hours on the night of 10/11.9.94 and 0230 hours in the presence of panchayatadars. Ex.P-21 is the inquest report. As the witnesses who were examined at the time of inquest had no new material to offer, their statements were not recorded. After the inquest, he handed over the dead body of D-3 to a police constable with a requisition to the doctor for conducting autopsy. 28. On receipt of the requisition, P.W.5, the Civil Surgeon attached to the Government Headquarters Hospital, Kudaivasal, conducted autopsy on the body of Rajamanickam (D-1) and found on the body the following injuries :- "1) An incised wound 2 cms x 1 cm x 1 cm over the right cheek. Muscles cut corresponding to the injury. 2) A punctured wound 2 cm x 1 cm x 1 ½ cm over the left side neck 1 cm from the middle line at the level of the cricoid cartilage. Muscles of the neck cut. 3) A punctured wound 2 cms x 1 cm x 1 ½ cms over the left side neck 2 cms below the injury number (2). Muscles cut. https://hcservices.ecourts.gov.in/hcservices/ 4) A punctured wound 2 cms x 1 cm x 2 cms over the left side neck 5 cms from the midline. Muscles cut. 5) An incised wound 15 cms x 8 cms x 6 cms over the back of the right side neck and right shoulder blade. Muscles of the neck on the back rt.side cut. 7th cervical vertebra cut and the spinal column cut at the 7th cervical vertebra. 6) An abrasion 1 cm x ½ cm over the left ear lobe. 7) An incised would 5 cms x 2 cms x 2 cms over the occipital region of the scalp and the left side muscles cut. 8) A punctured wound 2 cm x 1 cm x 1 ½ cm over the left side chest at the 7th left space in the anterior axillary line. Muscles cut. 9) A lacerated injury 5 cms x 3 cms x 2 cm over the left knee. 10) A punctured wound 2 cms x 1 cm x 1 cm over the back at the level of the right lower end of scapula. Muscles cut. 11) A punctured wound 2 cm x 1 cm x 1 cm over the back 1 cm below the injury number (10). Muscles cut. 12) A punctured wound 2 cm x 1 cm x 1 ½ cm over the right iliac crest muscles cut." The doctor issued Ex.P-5, post-mortem certificate, with his opinion that death was on account of shock and haemorrhage due to the injury to spinal cord and that death would have occurred about 18 to 24 hours prior to autopsy. 29. The same doctor, P.W.5, on receipt of requisition from the investigating officer, conducted autopsy on the body of Venkatachalam (D-2) and found on his body the following injuries :- "1) An incised wound lying horizontally 25 cms x 10 cms x 10 cms extending from the right side of the neck, front of the neck, below the cricoid cartilage, to the left side neck. The wound posteriorly extends from the right, to the back of the neck, to the left side of the neck. The two ends of the wound is separated by 5 cms. The carotids arteries on both sides, jugular veins on both sides, trachea, oesophagus are cut. Muscles of the neck are completely cut and lacerated. Spinal cord and vertebral column is cut at the level of the 5th cervical, vertebra and vagus nerves and other nerves are cut. 2) An incised wound 5 cms x 2 cms muscle deep over the chin regular margins. One end of the injury joins with injury no.1 on the right side. 3) An incised wound lying horizontally over the lower end of the back of the right arm 5 cms x 3 cms bone deep. Muscles cut. 4) An incised wound 2 cms x 1 cm x 1 cm over the right hypochondrium in the mid clavicular line. 5) An abrasion 1 cm x ½ cm over the abdomen 1 cm https://hcservices.ecourts.gov.in/hcservices/ over the umbilicus. 6) An incised wound 2 cms x 1 cm x 1 cm over the 3rd left intercostal space in the mid clavicular line just above the left nipple. 7) An incised wound 5 cms x 3 cms x 2 cms over the back of the left elbow, muscles cut. 8) An incised wound 2 cms x 1 cm x 1 cm over the back of the chest just below the lower end of the left scapula. 9) An incised wound 3 cms x 2 cms x 1 cm over the right side chest over the 9th right intercostal space in the anterior axillary line." The doctor issued Ex.P-4, post-mortem certificate with his opinion that death was on account of shock and haemorrhage due to injury to carotid vessels, jugular veins, vagus veins, vagus nerve and spinal cord and death would have occurred about 18 to 24 hours prior to autopsy. 30. On receipt of the requisition, P.W.6, the Assistant Surgeon attached to the Government Headquarters Hospital, Nagapattinam at Kudaivasal, conducted autopsy on the body of Balasubramanian (D-3) and on the body the doctor found the following injuries :- "1) Incised wound left side of the neck and left half of front of neck 14 cm x 4 cm x vertebra deep. Trache and oesophagus are completely cut below the cricoid cartilage – common carotid artery – veins are completely cut. All the muscles and nerves are cut. 2) Incised wound left side of the neck 1 cm above the wound no.1 – 10 cm x 3 cm x vertebra deep. Muscles, vessels and nerves are completely cut. 3) Incised