Bail Slip The Appellants/Accused Viz., (1) K. Balan and 2) Varadharajan were directed to be released on Bail in and by the Order of this Court dated 14.8.1997 and made in Crl.M.P.No.3716/1997 in Crl.Appeal No.600/97. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.3.2006 Coram:- The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice J.A.K.SAMPATHKUMAR Criminal Appeal No.600 of 1997 1.K.Balan 2.Varadharajan ... Appellants/Accused Vs State Rep.by The Inspector of Police, Coonoor Police Station, The Nilgiris District ... Respondent/Complainant Criminal Appeal is filed under Section 374 (2) of Cr.P.C. against the judgment passed by the learned Nilgiris District Sessions Judge, Udhagamandalam in S.C. No.27 of 1996 dated 14.07.1997 . For appellants : 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 learned Nilgiris District Sessions Judge, Udhagamandalam in Sessions Case No. 27 of 1996 dated 14.07.1997, convicting the appellants/accused under Section 324 I.P.C. and sentenced them to undergo Imprisonment for 3 years respectively. 2. Originally, the appellants / accused along with 10 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 accused Rajesh @ Anantharaman was absconding https://hcservices.ecourts.gov.in/hcservices/ 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. 3. In the meantime, the case against appellants/accused along with 9 other accused was tried and disposed of on 16.7.1997 in S.C.No. 27 of 1996, convicting the appellant/accused 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. 10,11,13,14&22 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 was examined as P.W.1. P.W.2, Maimoon Begam is the wife of the deceased. P.W.3, Azaruddin is the brother's son 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 appellants/accused came to the shop of the deceased Anwar in the motorcycle bearing registration No.TN-37 F 2855 and parked the motorcycle nearby. The appellants/accused were working under P.W.11 on the date of occurrence and used the said motorcycle at the time of occurrence. M.O.20 is the motorcycle bearing registration No. TN.37-F- 2855. M.O.21 is the key bunch. M.O.22 RC Book. 4.3.Before that the accused namely, Rajesh @ Anantharaman concerned in S.C. No.04 of 1997, came in the motorcycle bearing registration No.TN38- 1443 and parked the same on the roadside. M.O.23 is the motorcycle. M.O.24 is the key bunch. M.O.32 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 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 @ Ananthaaman took a bottle containing chocolates and broken the same. When questioned, the accused Rajesh @ Anantharaman took M.O.1 and stabbed the deceased on his chest. In the meantime, the appellants /accused who came in the motorcycle TN.37-F-2855 took the weapon of offence kept in the motorcycle of the accused Rajesh @ Anantharaman 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 P.W.1 and the wife of the deceased Maimoon Bagum P.W.2 tried to intervene to prevent further assault. In that process, the accused Rajesh @ Anantharaman assaulted P.W.1 Khadhar Sha with M.O.1 and caused simple injury. The brother's son of the deceased Anwar namely, Azaruddin P.W.3 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 and neighbour namely Banalal P.W.4 came to the scene of occurrence took the deceased in P.W.4's jeep to Lali hospital at coonoor and admitted him and there he was declared dead. 4.5. At about 10.20 hours, in pursuance of the incident, the shop keeper namely Khadhar Sha P.W.1 gave a complaint Ex.P.1, to the Head Constable P.W.21 and the same was registered as F.I.R.. Ex.P.1 is the complaint given by the shop keeper P.W.1 and Ex.P.29 is the F.I.R. He also seized the blood stained cloth of P.W.1 under form 95. M.0.2-shirt; M.0.3-Banian; Ex.P.28-form 95. He has also sent P.W.1 with a medical memo to the hospital for treatment. Ex.P.35- copy of medical memo. 4.6.On receipt of information from P.W.21, P.W.22 Inspector of Police took up investigation, 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.15. M.0s 30 and 31 are photos and negatives. 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. Ex.P.2 is the observation mahazar. 4.7. Thereafter, P.W.22 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. https://hcservices.ecourts.gov.in/hcservices/ P.W.22, 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.17 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. 4.8. In the meantime, the injured Sundar P.W.5 and injured Khadhar Sha P.W.1 were admitted in the Coonoor Government Lali hospital on 14.4.1995 at about 10.05 hours and 12.30 hours respectively and subjected for treatment. P.W.16 examined both the injured namely Sundar and Khadhar Sha 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. Ex.P.17 is the wound certificate given to injured Khadhar Sha. He was examined by P.W.15 at 12.30 hours. Injuries are simple in nature. P.W.15 further opined that the weapon of offence namely M.O.1, M.O.4, M.O.5 and M.O.6 could have caused these injuries. P.W.22 has also came to the hospital, examined P.W.5, and seized his blood stained cloths in the presence of P.W.7 and one Babu under a mahazar. M.O.11 – Shirt; M.O 12- Banian; Ex.P.6 – Mahazar. 4.9. On 18.4.1989 at about 11.00 hours, on information, P.W.22 Inspector arrested the appellants/accused at Parliar – Coonoor in the presence of P.W.9, Gani and one Sulaiman and recorded their confession statement. In fact, they were apprehended by P.W.22 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.22 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. 4.10. Thereafter, accused Balan and Varadharajan took P.W.22 along with with P.W.9 Gani and witness Salim to No.2, Coimbatore Goundapalayam Shoba nagar cross lay out and identified the house of the accused Rajesh @ Anantharaman. Therefore, P.W.22 Inspector of Police arrested the accused Rajesh @ Anantharaman in presence of the said witness. At that time, the accused Rajesh @ Anantharaman 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. Ex.P.11 is the admissible portion of the confession statement of the accused Rajesh @ Anantharaman. 4.11. Thereafter, P.W.22, the appellant/accused, Rajesh @ Anantharaman along with P.W.9 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.22, 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 https://hcservices.ecourts.gov.in/hcservices/ M.O.27 and handed over the same to P.W.22 who inturn seized the same under mahazar Ex.P.13. Moreso, the accused Rajesh @ Anantharaman 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.22 who inturn seized the same under mahazar Ex.P.14. Everything was done in the presence of P.W.9, Gani and witnesses Sulaiman. 4.12. In the meantime, after postmortem, blood stained cloth of the deceased was also sized under Special report by P.W.21 Head Constable and he handed over the same to P.W.22 Inspector. M.O.7 is the white Shirt, M.O.8 is the Lunghi and M.O.9 -Waist card with Thayathu. Ex.P.27 is the special report. Similarly, the blood stained cloth of the injured Khadhar Sha P.W.1 was also received by P.W.22 from P.W.21 who seized the same under form 95. 4.13. P.W.22 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. 4.14. 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.22 Inspector summoned the accused, who were surrendered before the Court, to the police station examined them and obtained statement. 4.15. On 07.8.1995, P.W.22 Inspector examined P.W.13, Varadarajan, who sustained injury by the attack of Muslim and recorded his statement. Ex.P.15 is the copy of the F.I.R registered on the complaint of P.W.13. (Crime No. 287 of 1995) 4.16. On 17.8.1995, P.W.22 Inspector examined P.W.14, Ramesh, who sustained injury by the attack of Muslim and recorded his statement. 4.17. P.W.14, Ramesh gave a complaint to the police station regarding this occurrence. Ex.P.34 is the copy of the FIR registered on the complaint given by P.W.14, Ramesh. (Crime No. 288 of 1995) 4.18. On 28.8.2005, P.W.22 Inspector recorded statement of P.W.12 Ravi, who was also assaulted by muslims. 4.19. In the meantime, P.W.22 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.1 Khadhar Sha, P.W.2 Maimoon Bagum, P.W.3 Azaruddin and P.W.5 Sundar. On receipt of requisition Ex.P.24 from P.W.22 Inspector, P.W.19, 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 https://hcservices.ecourts.gov.in/hcservices/ formalities, P.W.19 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. 4.20. On 19.5.1995, P.W.22 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.22. Ex.P.20 is the letter of the Court. On receipt of requisition Ex.P.20, P.W.18 examined blood stained cloths and Material Objects and submitted 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.22 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. 5. Prosecution has examined 22 witnesses, marked 35 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 guilty for the offence under Sections 324 IPC after diluting the offence under Section 302 IPC and sentenced them to suffer Rigorous Imprisonment for 3 years and acquitting the remaining offences levelled against them. 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 appellants/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 communal clash between the muslims on one side and Vishwa Hindu Parishat (V.H.P) on other side is motive for the occurrence? (II) Whether the deceased Anwar died due to homicide? (III)Whether the accused Rajesh @ Anantharaman, Balan and Varadharajan have assaulted the deceased Anwar,causing bleeding injuries resulting to is death? Point No: I 9. 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.10 to P.W.14 and P.W.22 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 https://hcservices.ecourts.gov.in/hcservices/ the Hindus. In fact, P.W.13 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.14 has been registered in Crime No. 288/95 and the copy of the same is marked as Ex.P.34 through P.W.22. There is no dispute regarding these facts. P.W.14 has also stated that P.W.12 has sustained injury in that incident though P.W.12 has not spoken to that effect. The learned counsel for the appellants 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.II: 10. It is true that the deceased Anwar, resident of Moors Garden, Coonoor, on 14.4.1995 at about 9.45 a.m. sustained injuries in the hands of some assailants 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.17 Ex.P.18 is the Postmortem Report. P.W.22 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: III 11. It is the specific case of the prosecution that the accused (1) Rajesh @ Anantharaman (2) Balan and (3) Varadharajan used the weapon of offence namely M.O.1 (2) M.O.6 (3) M.O.4 and (4) M.O.5 respectively assaulted the deceased Anwar causing profuse bleeding injury resulting to his death. The prosecution relied on the eye witnesses namely Tmt. Maimoon Bagum P.W.2 wife of the deceased Anwar and Azaruddin P.W.3 brother's son of the deceased Khadhar Sha, Khadhar Sha,(P.W.1) shop boy of the deceased coupled with postmortem report, Serological report, blood stained cloths and blood stained weapon of offence to substantiate the guilty act of the accused. 12. The point for consideration is whether the alleged eye witnesses can be relied on in this case. All the three eye witnesses have stated that they have seen the accused assaulting the deceased Anwar causing bleeding injuries and that the injured was taken to hospital wherein, he was declared dead. The blood stained cloth of the deceased namely lunghi, White Polyester full shirt were marked as M.0.8 and M.O.7 and the same were subjected for Serological test. The blood stained cloth of the deceased contains "A" group origin. The blood stained cloth of the accused Rajesh @ Anantharaman and Balan contains "A" group origin. Moreso, the blood stained cloth of the accused Varadharajan contains https://hcservices.ecourts.gov.in/hcservices/ human blood but the grouping test could not be done. Similarly, weapon of offence used by the said accused were also subjected for Serological test. Weapon of offence used by the accused Varadharajan contains human blood. P.W.18 spoke in detail about the Serological test. According to the prosecution, blood stained cloth of the accused and also material objects used for the commission of offence were seized only in pursuance of their confession statement. It is evident on record that the accused Rajesh @ Anantharaman has assaulted the deceased Anwar with M.O.1, on his chest causing severe damage to the heart. Similarly the accused Balan and Varadharajan assaulted the deceased Anwar with M.O.6 , M.O.4 and M.O.5 respectively causing severe bleeding injuries. Ex.P.19 postmortem report contains these particulars. Postmortem doctor namely P.W.17 corroborates this part of evidence. So much so, on 18.11.1995 at about 11.00 p.m., the accused Balan and Varadharajan were arrested at Barliar and recorded their statement in the presence of P.W.9 Gani and witness Sulaiman by P.W.22. They were apprehended by P.W.22, while they were riding in the Motor cycle bearing Registration No.TN.37 F 2855 which is marked as M.O.20. Key bunch and RC book of the said vehicle were also seized along with motorcycle. They were marked as M.O.21 and M.O.22. They have also given confession statement in presence of P.W.9 Gani and witness Sulaiman. Exs.P.7 and 8 are the admissible portion of the confession statement of the accused Balan and Varadharajan. Thereafter, the accused Balan and Varadharajan took P.W.21 to the house of the accused Rajesh @ Anantharaman and identified him. He was apprehended by P.W.22 and recorded his statement. Ex.P.11 is the admissible portion of the confession statement of the accused Rajesh @ Anantharaman. 13. Thereafter, the accused have taken P.W.22 along with other witness to stone quarry near Brindhavan School Road, and Ooty Road Junction at Coonoor identified the places and took out their respective blood stained cloths and weapon of offence and handed over the same to P.W.22 who inturn seized the same in the presence of P.W.9 Gani and witness Sulaiman under Mahazar P.12, P.13 and P.14. 14. Moreover, On the requisition given by P.W.22, P.W.19 after following all formalities, conducted identification parade in respect of the accused namely (1)Rajesh @ Anantharaman (2) Balan and Varadharajan for identification by the eye witnesses namely (1) Maimoon Begam wife of the deceased (P.W.2), (2) Azaruddin, brother's son of the deceased (P.W.3), (3)Khadhar Sha, shop boy of the deceased (P.W.1) and (4) Sundar, neighbour of the deceased (P.W.5). Except P.W.5 Sundar, other witnesses have identified the accused and stated that they are responsible for assaulting the deceased Anwar at the relevant point of time, date and place in the manner as alleged by the prosecution. Report of Identification parade has been marked as Ex.P.26. From the narration of events, it is apparent that the accused have assaulted the deceased Anwar resulting, to his death. 15. The learned counsel for the appellants by referring to various discrepancies and contradiction in the deposition of prosecution witnesses and contended that the alleged eye witness could not have been present at the time of occurrence. https://hcservices.ecourts.gov.in/hcservices/ 16. Now, we have to find out whether there is any truth in the contention of the learned counsel for the appellants. It is to be noted that though the accused are strangers to the eye witnesses, they have identified the accused at the time of identification parade except P.W.5 Sundar. Moreover, the vehicle used for the commission of offence were infact identified by the witnesses since , they have noted the vehicle Number. 17. In fact, the witness Azaruddin, P.W.3 (Juvenile witness at the time of occurrence – age 9) has taken note of the number of the motor cycle on the sand wherein, he was playing at the time of occurrence. This part of evidence has been elicited at the time of cross examination of P.W.3. His evidence reads as follows: ".. .. .. nkhl;lhh; irf;fpspd; ek;giu ehd; kzypy; vGjp itj;njd;/ .. .. .. " Moreover, the accused namely Balan and Varadharajan were apprehended while they were riding motor cycle bearing No. TN.37 F 2855, which was used for the commission of offence. The vehicle No. TN37 F 2855 has been clearly referred in the complaint Ex.P.1. The presence of witness Azaruddin and playing infront of the shop of the deceased Anwar at the time of occurrence has been referred in Ex.P1. which reads as follows. ".. .. .. Kjyhspapd; mz;zd;