IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.4.2006. CORAM: THE HONOURABLE MR.JUSTICE R.BALASUBRAMANIAN AND THE HONOURABLE MR.JUSTICE M.THANIKACHALAM CRIMINAL APPEAL Nos.121,168,375,379,391,395,945 OF 2003 AND CRL.A.No.1239 OF 2004. John Pandian ... Appellant in Crl.A.No.121/2003 (Accused No.7) S.Venkataramakrishnan alias Venkatram alias Thambu ... Appellant in Crl.A.No.168/2003 (Accused No.1) 1.Kumar 2.Pavun Raj @ Pavun 3.Prince Kumar @ Prince @ Balan ... Appellants in Crl.A.No.375/2003 (Accused Nos. 9 to 11) Ganesan ... Appellant in Crl.A.No.379/2003 (Accused No.8) Sivakumar ... Appellant in Crl.A.No.391/2003 (Accused No.2) 1.Yusuf 2.Abdul Kareem @ Kareem ... Appellants in Crl.A.No.395/2003 (Accused Nos. 5 & 6) Ubaiadulla @ Tamilsevan ... Appellant in Crl.A.No.945/2003 (Accused No.4) Vs. State, represented by Inspector of Police, B-2 R.S.Puram Police Station, Coimbatore, Coimbatore District. (Cr.No.1018 of 1993) ... Respondent in Crl.A.Nos.121, 168,375,379,391,395 and 945/2003. https://hcservices.ecourts.gov.in/hcservices/ Crl.A.No.1239 of 2004: State, rep.by The Inspector of Police, B-2 R.S.Puram Police Station, Coimbatore. (Cr.No.1018/1993) ... Appellant Vs. Subramaniam @ Subbukutty ... Respondent (Accused No.3) * * * Crl.A.Nos.121, 168, 375, 379, 391, 395, 945 of 2003 are filed under Section 374(2) Cr.P.C. and Crl.A.No.1239 of 2004 is filed under Section 378 Cr.P.C. all against the judgment dated 6.1.2003 made in Sessions Case No.149 of 1996 by the Additional Sessions Judge (Fast Track Court No.1), Coimbatore. For Appellant in Crl.A.No.121/2003 : Mr.V.Gopinath, Senior Counsel for Mr.K.R.Krishnan For Appellant in Crl.A.No.168/2003 : Mr.N.Natarajan, Senior Counsel for Mr.S.Kadarkarai For appellants in Crl.A.No.375/2003 : Mr.Gopalakrishna Lakshmana Raju for Mr.T.R.K.Kumarasingh For appellant in Crl.A.No.379/2003 : Mr.K.Asokan, Senior Counsel for Mr.Gopalakrishna Lakshmana Raju For appellant in Crl.A.No.391/2003 : Mr.S.Ashok Kumar, Senior Counsel for Mr.AR.L.Sundaresan For the first appellant i.e. A.5 in Crl.A. No.395/2003 : Mr.R.Sankarasubbu For the second appellant i.e. A.6 in Crl.A. No.395/2003 : Mr.K.Asokan, Senior Counsel for Mr.C.Muruganantham For appellant in Crl.A.No.945/2003 : Mr.K.Asokan,Senior Counsel for Mr.D.Veerasekaran https://hcservices.ecourts.gov.in/hcservices/ For respondent in Crl.A.Nos.121,168,375, 379, 391, 395 and 945/2003 and for the appellant in Crl.A.No.1239/2004: Mr.L.Nageswara Rao, Senior Counsel for Mr.S.Jayakumar, P.P. For respondent in Crl.A.No.1239/2004 : Mr.M.Balasubramaniam COMMON JUDGMENT M.THANIKACHALAM, J. A.7; A.1; A9 to A.11; A.8, A.2; A.5, A.6 and A.4, who stand convicted and sentenced to undergo life imprisonment by the judgment of the trial Court dated 6.1.2003, in Sessions Case No.149 of 1996, on the file of the Additional Sessions Judge (Fast Track Court No.1), Coimbatore, are the appellants in Crl.A.Nos.121,168,375, 379, 391, 395 and 945 of 2003 respectively. 2. The State, aggrieved by the acquittal of A.3 in the above Sessions Case, has filed Criminal Appeal No.1239 of 2004. 3. The prosecution brought the accused, to face the trial, before the trial Court for the offences under Sections 120-B, 302 r/w.109, 302, 302 r/w.34 IPC alleging that A.1/appellant in Crl.A.No.168 of 2003 had love affair with one Sunitha-P.W.3; that Sunitha not only refused to accede to the request of A.1, but preferred her classmate, by name Vivi @ Vivek @ Vivekanandan and also married him on 13.12.1991; that thereafter, A.1, had love affair with one Sherry, who was the Engineering College Student of an Institution owned by the family of A.1; that though A.1 married the said Sherry, later she was given in marriage to one Thomas by her parents and hence she left the country along with her husband, which upset A.1; that thereafter, in order to fulfil his earlier desire of marrying P.W.3-Sunitha, which has not vanished, A.1 hatched a conspiracy along with some of the accused to commit the murder of the husband of Sunitha viz. Vivek; that the persons, so engaged, had contacted A.7/the appellant in Crl.A.No.121 of 2003; that he had engaged A.8 to A.11 for the purpose of committing the murder of Vivek; that A.9 to A.11/appellants in Crl.A.No.375 of 2003 have executed the plan, viz. committing the murder of Vivek on 17.8.1993 at about 10.15 a.m. at Coimbatore, R.S.Puram, Diwan Bahadur Road near 'Richy-Rich' Restaurant, in order to facilitate A.1 to marry Sunitha; thereby all of them are liable to be dealt with under Sections 120-B, 302, 302 r/w.34 and 302 r/w.109 IPC. https://hcservices.ecourts.gov.in/hcservices/ 4. Upon committal, when the accused were produced/appeared before the Sessions Court, the learned II Additional Sessions Judge, Coimbatore, by going through the materials, satisfied himself, that the materials placed before him are prima facie sufficient to frame charges, to proceed further, and in this view, the learned II Additional Sessions Judge, framed the following charges, as per the order dated 5.8.1998: Against A.1 to A.11 : under Section 120-B IPC, against A.10 : under Section 302 IPC, against A.9 and A.11 : under Section 302 r/w.34 IPC and against A.1 to A.8 : under Section 302 r/w.109 IPC 5. All the accused, when questioned about the charges, explaining to them also, have refused to plead guilty, disputing the facts or the averments, alleged against them. 6. Thereafter, when the case came before the Additional Sessions Judge viz. Fast Tract Court No.1, Coimbatore, the learned Judge, by going through the materials, felt that the charges framed against A.9 to A.11 viz. original charges No.2 and 3, are not proper, reflecting the case of the prosecution. Therefore, he amended or recast the charges No.2 and 3, framing a charge under Section 302 against A.9 and a charge under Section 302 r/w.34 IPC against A.10 and A.11, as per the order dated 19.4.2002. 7. The accused, when questioned, refused to plead guilty for the amended charges also, thereby compelling the prosecution to make out a case, as projected and as reflected in the charges. 8. At the first instance, in order to prove the charges, on behalf of the prosecution, P.Ws.1 to 56 have been examined, seeking aid from Exs.P.1 to P.116 and M.Os.1 to 38. After the close of the prosecution evidence, the accused were also examined under Section 313 Cr.P.C., on 23.7.2002 bringing to their knowledge the incriminating circumstances available against them in the oral evidence of the prosecution witnesses. At that time, some of the facts were admitted, many of the facts were disputed by the accused, in addition to, filing statements also, which we will advert to infra, wherever it is necessary. 9. At the instance of the prosecution, on application, the prosecution case was reopened, then P.Ws.57 to 60 have been examined on 3.10.2002, marking Exs.P.117 to 121. After the closure of the prosecution evidence second time also, the accused were examined under Section 313 Cr.P.C., on 17.10.2002 for which they have disputed the oral evidence of prosecution witnesses, which are incriminating against them, in addition to marking Ex.D.1. No oral evidence has been let in or any other document has been produced on behalf of the accused, though sufficient opportunities were given to them, to defend the case, if possible to shatter the case of the prosecution. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned trial Judge, while evaluating the above materials, scanned them to his best effort, assessed them based upon legal principles, which brought to surface the offences against A.1, A.2 and A.4 to A.8 under Sections 120-B and 302 r/w.109 IPC. The evidence also brought to surface the guilt of A.9 under Section 302 and 120-B IPC, in addition the offence against A.10 and A.11 under Sections 120-B and 302 r/w.34 IPC. The learned trial Judge, repelling the defence, accepting the case of the prosecution to the major extent, has reached the conclusions, viz.; i) that A.1, though P.W.3 Sunitha was married to Vivek, had an eye or continuous liking over her and in order to attain that desire, he should have conspired; ii) that in order to execute the conspiracy part, A.1 had withdrawn a sum of Rs.3 lakhs from his company account, on 30.7.1993, by issuing a self-cheque, which was encashed by A.2; iii) that at the request of A.1, A.2 should have taken A.4 to A.6 to Tirunelveli, having reserved the journey, through train, on 17.7.1993; iv) that A.4 and others stayed at Tirunelveli on 17.7.1993 and 1.8.1993, wherefrom they have also contacted A.7, over phone; v) that since A.7 was not available and had been to Chennai, A.2 and A.4 to A.6 have travelled to Chennai and contacted A.7 at M.L.A.Hostel, Chennai, where A.7 was staying; vi) that from Chennai, they have travelled, by train, to Coimbatore and thereafter, the amount of Rs.3 lakhs was encashed by A.2 on a self-cheque issued by A.1, on 30.7.1993, as stated above, and paid to the hirelings vii) that though the hirelings have made an attempt to assault Vivek, in view of the bundobast, on account of serial bomb blasts at Coimbatore, they were unable to execute the same at the first instance; viii) that then, having returned to Tirunelveli, once again A.9 to A.11 travelled in the car driven by A.8, went to Ooty, returned on 17.8.1993 and precisely executed the murder, as planned; and ix) that the investigation so did in fine established all the above facts, without any snap, anywhere, thereby, by strong threads netting, not allowed A.1, A.2 and A.4 to A.11 from escaping the clutches of law and in this view, they should be punished inflicting appropriate punishments. 11. Thus concluding, the learned trial Judge convicted A.1, A.2 and A.4 to A.8 under Section 120-B and 302 r/w.109 IPC. A.1 was sentenced to undergo life imprisonment and to pay a fine of Rs.2 lakhs in default to undergo simple imprisonment for a further period of one year under Section 120-B IPC. A.2, A.4 to A.6 and A.8 were https://hcservices.ecourts.gov.in/hcservices/ sentenced to undergo life imprisonment under Section 120-B IPC and to pay a fine of Rs.2,000/= each, in default to undergo simple imprisonment for a further period of six months. A.7 was sentenced to undergo life imprisonment under Section 120-B IPC and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for a further period of six months. Since A.1, A.2 and A.4 to A.8 were sentenced under Section 120-B IPC, no separate sentence was awarded under Section 302 r/w.109 IPC. 12. A.9 was convicted for the offence under Section 302 and 120-B IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.20,000/=, in default to undergo simple imprisonment for a further period of one year. 13. A.10 and A.11 were convicted for the offences under Sections 120-B and 302 r/w.34 IPC and they were sentenced to undergo life imprisonment for the said offences and to pay a fine of Rs.2,000/= each, in default to undergo simple imprisonment for a further period of six months. 14. Taking into consideration the sufferings of the victim and his Legal Representatives, the learned trial Judge has ordered a compensation of Rs.1,50,000/= to the legal heirs of the deceased, from the fine amount imposed and realised from A.1 and A.7. 15. The learned trial Judge was of the view that no offence has been made out as far as A.3 (the respondent in Criminal Appeal No.1239 of 2004) is concerned, and in this view, he acquitted A.3 from all the charges. 16. Aggrieved by their conviction and sentence, A.1, A.2, and A.4 to A.11 have preferred the Criminal Appeal Nos.121,168,375, 379, 391, 395, 945 of 2003 and aggrieved by the acquittal of A.3, the State has preferred Criminal Appeal No.1239 of 2004. 17. The facts, leading to the filing of the final report, followed by trial, ending in conviction of A.1, A.2 and A.4 to A.11 and acquittal of A.3, resulting these Criminal Appeals, shorn of unnecessary details, as exposed by the prosecution witnesses, briefly are as follows: i) Thiru Venkataramakrishnan alias Venkatram alias Thambu-A.1, Tmt.Sunitha-P.W.3, Ramganesh-P.W.5, Sivakumar-P.W.6, Krishnaraj-P.W.10, Manojkumar-P.W.27 and Vivek-the deceased in this case, are the collegemates, since they were doing their under-graduation in P.S.G.College, Coimbatore, between 1985 and 1988. Vivek is the brother of P.W.2 Abhiramavishnu and they are the sons of P.W.1-Krishnaraj Kaalingarayar. A.1 and Vivek belong to rich families, in their respective areas. ii) A.1 had a deep liking towards P.W.3-Sunitha because of her charming personality or otherwise, whereas she fell in love https://hcservices.ecourts.gov.in/hcservices/ with Vivek, son of P.W.1. But, on one occasion, when A.1 conveyed his desire, to P.W.3, to marry her, she replied, that since she is in love with Vivek, she wanted to marry Vivek alone thereby rejecting or turning down the desire, causing upset to him. However, A.1 requested P.W.3 not to divulge the same to anybody. The fact that P.W.3-Sunitha was having love affair with Vivek and that they have also decided to marry, known to their friends and collegemates, including P.Ws.5,6,10 and 27. iii) The marriage proposal between Vivek and P.W.3-Sunitha was postponed because of the reason Vivek wanted to gain some experience, in the financial business, for which he intended to take training at Salem, where his uncle was having financial business. Therefore, Vivek and P.W.3 have postponed their marriage and P.W.3 also assured that she would be waiting. iv) Vivek, after completing the training, with his uncle at Salem, commenced his business in the name and style of Nayagam Investments and Nayagam and Co. Thus, after settling in the life, Vivek informed his father-P.W.1 about his desire to marry Sunitha, further informing about his love affair, which P.W.1 also heard through the friends of Vivek. Thereafter, with the consent of the parents of Vivek and Sunitha, their marriage was celebrated, in a grand manner, on 13.12.1991. v) A.1, who was not successful in his desire to marry P.W.3- Sunitha, had developed intimacy with one Sherry, the daughter of P.K.Zacharia-P.W.11, who was studying B.E. in V.L.B.Janakiammal College of Engineering and Technology, Coimbatore, run by the family members of A.1. A.1 convincing Sherry or otherwise, married her on 6.5.1990 at a temple in Tiruppur, and the marriage was also registered in the Office of Sub Registrar, Palghat, Kerala, on 11.5.1990 under Ex.P.2, not known to her father. vi) The father of Sherry, i.e. P.W.11, arranged the marriage of his daughter and she also got married to one George Thomas on 4.1.1993 at Syrian Orthodox Cathedral Church, Trivandrum, Kerala. When this fact came to the knowledge of A.1, he went to the place of P.W.11 and informed him, that he had married his daughter Sherry, showing the Marriage Registration Certificate also. P.W.11 questioned the conduct of A.1, as to why he has not taken any action for the past three years, thereby doubting the marriage between A.1 and Sherry. P.W.11 realising the seriousness of the matter, requested A.1, as to when and how the marriage was celebrated, for which, at a later point of time, A.1 produced some more documents, as if he married Sherry. On seeing these documents, P.W.11 questioned his daughter Sherry, who informed the father, in the presence of A.1, that she had no connection, whatsoever, with A.1 and she is willing only to live with her husband George Thomas. Because of the stand taken by Sherry, A.1 was very much disappointed and in fact, Sherry went to Sharjah https://hcservices.ecourts.gov.in/hcservices/ along with her husband Thomas. vii) A.1, unable to get Sherry also, became once again upset and he initiated proceedings, to snap the relationship, with Sherry, by filing a petition on 12.5.1993, under Section 13 of the Hindu Marriage Act, 1955, in H.M.O.P.No.150 of 1993 before the Vacation Civil Judge, Coimbatore, which was later transferred to the Sub Court, Coimbatore and re-numbered as H.M.O.P.No.182 of 1993, seeking dissolution of his marriage with Sherry, as seen from Ex.P.7. Thereafter, Sherry also filed a suit in O.S.No.1458 of 1993 on the file of the District Munsif, Coimbatore, to declare her as a Christian; to declare the alleged marriage between herself and A.1 on 6.5.1990 as void and also to declare that the alleged marriage agreement, dated 11.5.1990 is also void. Since both parties entered into a compromise, the said suit, filed by Sherry, was decreed, as per terms and conditions of the compromise petition in I.A.No.1740 of 1993, on 28.7.1993, as seen from Ex.P.13. Pursuant to the said compromise, the H.M.O.P., filed by A.1, was dismissed, as not pressed, on 27.8.1993, as also seen from Ex.P.7. Thus, A.1 had depression in his life, in not getting a girl of his choice, not only at the first time but also at the second time. viii) As friend, A.1 used to go to the house of P.W.3 and Vivek, where their other friends also used to assemble. The friends- P.Ws.5,6,10 and 27 advised A.1, to marry somebody and lead a peaceful happy life. A.1 having idea to marry, had constructed a palatial bungalow, at a cost of Rs.40 lakhs, as well as purchased diamond ear-studs -M.O.16, which were shown to P.W.3. On seeing the plight of their friend, when P.W.3 and her husband have advised A.1 to marry somebody, he told them that if an intelligent girl like Sunitha is available, he would marry her. When A.1 and his classmate P.W.10-Krishnaraj had some general discussion also, A.1 had informed him that Vivek was a gifted man, since he got a wife like Sunitha, further telling him that if Sunitha had not married Vivek, he would have tried and got married her. The fact, because of the love failure at the fist instance and because of the matrimonial failure at the second time, A.1 became upset, known to his friends viz. P.Ws.5,6,10 and 27. ix) A.1, who was upset and dejected, because of the fact, Sherry also refused to live with him, it appears, had planned to commit murder of Vivek, in order to get P.W.3, since the image of P.W.3 has not vanished from his mind, due to previous love and the subsequent intention to have her, as his wife. In this way, having conspired, planning to commit murder of Vivek, he requested his office boy-A.2 to make arrangements, since he knew A.4 to A.6, who are known to A.7, a mercenary capable of lending hirelings, for professional murder. x) In order to go to Tirunelveli via Madurai, to contact A.7 in person, at the first instance, A.2 reserved railway tickets for him, along with A.4 to A.6, under Ex.P.14, went to https://hcservices.ecourts.gov.in/hcservices/ Madurai, where from all of them went to Tirunelveli, and stayed at Janakiram Lodge, owned by P.W.23-Ramkumar. In the Lodge, A.4, though his name is Ubaiadulla, had stayed in the name of Tamilsevan along with A.2 and A5 and A.6 in Room Nos.409 and 407, for which in Ex.P.20 necessary entry was made. The accused while staying at Janakiram Hotel, have attempted to contact A.7, over phone (72324), from Room No.409, for which they have paid phone call charge, as indicated in Bill-Ex.P.22. They have vacated the rooms, on the same day, paying the charges also, and the counterfoil of the Bill is Ex.P.21. Since A.7 was not available at Tirunelveli, they went to Chennai, since it came to their knowledge, that A.7 was staying at M.L.A.Hostel, Chennai. xi) While A.7 was staying at the M.L.A.Hostel, Chennai, in the room of Se.Ku.Thamilarasan, MLA., which was given to one Baskaran, as his Guest (Ex.P.8), as per the entries in Exs.P.9 to P.12 many people have met him, as spoken by P.W.18, on the basis of records. There, getting instructions from A.7, A.2 and A.4 to A.6 have travelled from Chennai to Coimbatore on 19.7.1993, in Nilgiris Express, making reservation under Ex.P.16, for which reservation chart was given under Ex.P.17. xii) Pursuant to the conspiracy, in order to meet the expenses, A.1 had issued a self-cheque (Ex.P.24), for Rs.3 lakhs on 30.7.1993 and handed over the same to A.2, for encashment, which was encashed by him from the Lakshmi Vilas Bank, where P.W.24-Krishnamurthy was working as Manager, which is also evidenced by Exs.P.23 to 25. When P.W.24 had some doubt, about the identity of A.2, he requested P.W.25-Sabapathy to identify A.2 and on identification alone, the amount was paid to A.2. When P.W.25 told A.2, whether he could inform the encashment to the Mill, A.2 said to him, not necessary. xiii) On 1.8.1993, A.4 went to Tirunelveli and stayed in Blue Star Hotel, in the name of Tamilsevan, where P.W.26- Ramasubramaniam was working as a Receptionist. At the time of his stay, entry was made in Ex.P.26 in which he had also signed. When he vacated the room, at about 3.00 p.m., a bill was issued and the counterfoil is Ex.P.27. During his stay, he has made a local cal (probably to A.7), though the number is not known, because of the absence of electronic recording. According to the prosecution, it must be to John Pandian-A.7. xiv) A.8 to A.11 are very much known to A.7 and in fact, when there was an agitation opposing the arrest of A.7, A.9 also participated, for which a case was also registered, as spoken to by P.W.33-the then Inspector of Police, Tirunelveli Taluk Police Station, in Cr.No.155/1993 of Tirunelveli Taluk Police Station, under Sections 147,148,341,506(II), 435 and 307 IPC and under Section 2 of the Tamil Nadu Damage to Public Properties Act. Ex.P.33 is the FIR in that case. P.W.33 also arrested A.9 in that case and remanded him as disclosed by https://hcservices.ecourts.gov.in/hcservices/ Ex.P.34. xv) In the first week of August 1993, in view of the heavy bundobust, provided in R.S.Puram area, due to serial bomb blasts, that rocked Coimbatore and other illegal activities, as determined, A.9 to A.11 were unable to carry out the command of A.7 i.e. murdering Vivek. xvi)Some of the accused, in the name of Pandian, Palanganatham Madurai, stayed at Coimbatore Vijaya Lodge, situated at Geetha Hall Road, between 2.8.1993 and 6.8.1993. For the stay on 2.8.1993, a single room was booked at the first instance, as spoken by P.W.28, for which Ex.P.29 was given. During their stay, they have gone to the STD Booth of P.W.39, from where they have contacted A.7 through phone, which is exposed by Ex.P.53. When A.4 to A.6 were together, P.W.30, a gunny merchant has seen them, that too while they were conversing about the dispute between Vijayalakshmi Mills owner and a finance business owner, who is having his business at R.S.Puram (probably meaning the deceased). xvii) A.8, without informing the owner of the vehicle-TAC 5667 P.W.32, appears to have taken the vehicle for the travel of A.9 to A.11, to Coimbatore, Ooty and failed to return forthwith, resulting in a complaint by him to P.W.36-the then Sub Inspector of Police, CCB-II, Tirunelveli. That complaint is Ex.P.32 and the General Diary entry for the same is Ex.P.37. xviii) A.8 to A.11 travelled in the car, owned by P.W.32 to Ooty, and returned for which there is an entry in the Paraliar Check Post which is spoken by P.W.43, supported by Exs.P.61 and 62. While they were at Ooty, they have stayed at Aarthi Lodge on 16.8.1993, where P.W.44 was working as Receptionist in the year 1993. For the stay of A.9 along with three others, entries were made in the Lodge Register-Ex.P.63, at page 112. They have vacated the room on 17.8.1993 at 6.00 a.m. xix) A.8 to A.11 returned from Ooty on 17.8.1993 and as planned, they had been to Diwan Bahadur Road, R.S.Puram Coimbatore, near 'Richy Rich' Restaurant waiting for Vivek. The business premises of deceased Vivek was near 'Richy Rich' Restaurant, in the complex called MRS Complex. Mr.Vivek, in order to attend to his day-to-day routine work, came there, in his car, alighted from the car and proceeded to his office. At that time, A.10 and A.11 restrained him, from going further, while A.9 attacked him with M.O.1, cutting his neck, causing other injuries also, which was witnessed, not only by P.Ws.14 to 16, but also by some other persons, who are nearby, since the incident had taken place at about 10.15 a.m. in the morning, in a busy locality. P.W.16, who was working as Watchman in a jewellery shop called 'Prithvi Jewellery' at D.B.Road, R.S.Puram, seeing this incident, informed the same to the Manager of Vivek's office-Valliyappan, who rushed to the scene https://hcservices.ecourts.gov.in/hcservices/ of crime. After committing the murder, A.9 to A.11 escaped in the car, driven by A.8. While escaping from the scene of crime, one of them (A.10) had left the chappal-M.O.7. Some one who had seen the incident informed thourgh phone to the