Bail Slip The Appellants/Petitioners namely Arivu alias Natarajan Accused - 17 Elango alias Jayabalan Accused - 18 Jay alias Jayachandran Accused - 19 in Crl.A.No.546 of 2004. A.Purushothaman Accused - 7 P.Shanmugam Accused - 15 in Crl.A.No.659 of 2004: Dakshminamoorthy Accused - 1 Ramadass alias Kandippan Accused - 10 Vijayan Accused - 11 Jayamurthy Accused - 12 Masilamani Accused - 4 Krishnamoorthy Accused - 8 Ramalingam Accused - 9 Jayaraman Accused - 16 Manoharan Accused - 20 Singaravelan @ Singaravelu Accused - 3 Rajendran Accused - 5 Subramani Accused - 14 Sivagnam Accused - 21 Perumal Accused - 22 in Crl.A.No.752 of 2004: were directed to be released on bail as per the order of this Court dated 02.07.2004 in Crl.M.P.No.4369/04 in Crl.A.No.546/04, 13.08.2004 in Crl.M.P.No.7382/04 in Crl.A.No.659/04, 23.12.2004 in Crl.M.P.No.12068/04 in Crl.A.No.752/07, 20.09.2004 in Crl.M.P.No.9584/04 in Crl.A.No.752/07, 20.09.2004 in Crl.M.P.No.9583/04 in Crl.A.No.752/07, 02.09.2004 in Crl.M.P.No.8705/04 in Crl.A.No.752/07, 02.09.2004 in Crl.M.P.No.8754/04 in Crl.A.No.752/07, 24.11.2004 in Crl.M.P.No.11221/04 in Crl.A.No.752/07, 24.11.2004 in Crl.M.P.No.11222/04 in Crl.A.No.752/07, on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 07.03.2011 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal Nos.546, 659 and 752 of 2004 Crl.A.No.546 of 2004: 1. Arivu alias Natarajan 2.Elango alias Jayabalan https://hcservices.ecourts.gov.in/hcservices/ 3.Jay alias Jayachandran ..Apellants/ Accused 17, 18 and 19 in Crl.A.No.546 of 2004. Versus Union Territory of Pondicherry represented by its Circle Inspector of Police Tirukannur Police Station, Pondicherry. ..Respondent/complainant Crl.A.No.659 of 2004: 1. A.Purushothaman 2. P.Shanmugam ..Appellants/accused 7 and 15 Versus State by Inspector of Police Thirukanur Police Station Pondicherry, (Crime No.119/1997) .. Respondent/complainannt Crl.A.No.752 of 2004: 1.Dakshminamoorthy 2.Singaravelan 3.Masilamani 4.Rajendran 5.Manoharan 6.Krishnamoorthy 7.Ramalingam 8.Ramadass alias Kandippan 9.Vijayan 10.Jayamurthy 11.Subramani 12.Jayaraman 13.Sivagnam 14.Perumal Appellants/Accused 1, 3 to 5, 20, 8 to 10, 11, 12, 14, 16, 21, 22. Versus Union Territory of Pondicherry represented by its Circle Inspector of Police Tirukannur Police Station, Pondicherry. ....Respondent. Criminal Appeals filed against the conviction and sentence passed passed in S.C.No.3 of 1999, dated 29.03.2004 on the file of the II Additional Sessions Judge, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.A.Natarajan Senior Counsel for Mr.A.Madhumathi for A.7 and A.15 in Crl.A.No.659 of 2004 Mr.Rupert J.Barnabas Vimal B.Crimson for A.1, 3 to 5, 8, 10 to 12, 14 to 22 in Crl.A.No.546 of 2004 and 752 of 2004 Mr.K.S.Dinakaran Senior Counsel for A.9. For Respondent : Mr.A.Suriyaprakasam Public Prosecutor for Pondicherry JUDGMENT The appellants in C.A.No.546 of 2004, 569 of 2004 and 752 of 2004 are the accused in S.C.No.3 of 1999, on the file of the II Additional Sessions Judge, Pondicherry. The appellants in C.A.No.546 of 2004 are A.17, A.18 and A.19 and appellants in C.A.No.659 of 2004 are A.7 and A.15. The appellants in C.A.No.756 of 2004 are 1, 3 to 5, 8 to 12, 14, 16, 20, 21, 22. The accused 2, 6 and 13 have died pending trial. All the remaining accused were convicted and sentenced by the trial Court as follows: Accused 1, 3 to 5, 7 to 9, 11, 14 to 16, 20 to 22 were convicted under Sections 148, 427, 307 (two counts), 448 and 304(ii) r/w 149 IPC and accused 10, 12, 17 to 18 were convicted under Sections 148, 427, 307 (two counts) and 304 (II) IPC r/w 149 IPC and each one of them sentenced to undergo two years rigorous imprisonment for the offence under Section 148 IPC; one year rigorous imprisonment for the offence under Section 427 IPC; five years rigorous imprisonment and to pay the fine of Rs.3000/- in default to undergo six months simple imprisonment for the offences under Section 307 IPC; sentenced to undergo six months rigorous imprisonment for the offence under Section 448 IPC and each one of them sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.7000/- in default to undergo six months imprisonment under Section 304 (II) IPC. From the fine amount, the trial Court ordered to pay compensation of Rs.50,000/- to the legal heirs of each one of the deceased and Rs.5000/- to the eight injured witnesses. Challenging the said conviction and sentence, the appellants have preferred the above said criminal appeals. 2. The case of the prosecution in brief is as follows: During the year 1980, one Venu Gounder, President of Vinayagam Pattu village was murdered. In the said case, A.16 - Jayaraman, A.9 - Ramalingam, A.1 - Dakshnamurthy, A.2 - Kamala Kannan, A.6 – Chandrasekaran and deceased Rajendran in this case were all shown as https://hcservices.ecourts.gov.in/hcservices/ accused and they were all acquitted in the year 1981. The deceased Chackravarthy in this case was a supporter of Venu Gounder. The deceased Chandra Gounder party and accused A.6 - Jayaraman party were enimical towards each other. In the year 1982, a milk society was formed in the Vinayagampattu Village. From the year 1984-90, A.16- Jayarama Gounder was the President and subsequently his son Natarajan was the President and again from 1993-96, A.16 was the President. Supporting A.16, A.1- Dhakshinamurthy was the Secretary and second and 13th accused were also working in the society. Two Directors Masilamani and Sampath were supporting the deceased Chakravarthy. In the year 1996, A.16 - Jayaraman Gounder resigned from the post of President. Sampath was elected as President. At that time, A.1 and A.2 were removed from service. There was also enmity among the deceased Chackravarthy and A.4 Masilamani. 3. On 20.12.1997, an election was conducted for electing a Director for Sorapattu Agricultural Credit Society. For the said Director post, P.W.2 - son of the deceased Chackravarthy, deceased Rajendran, A.8 - Krishnamurthy contested. At about 12.00 noon, as it was expected that P.W.2 may win the election, A.8 - Krishnamurthy wanted Rajendran to support him. In such a situation, election had become straight contest between P.W.2-Kalidoss and A.8 - Krishnamurthy. At about 3.00p.m., polling was over. P.W.2, deceased Chackravarthy and others were waiting for the election result near a water tank opposite to the society. The accused party were also standing. At about 3.15 pm., it was declared that A.8 - Krishnamurthy had won the election. At that time, P.W.10 told that the accused party already misappropriated the funds of milk society and in future they were going to misappropriate the amount of Sorapattu Agricultural Credit Society also and no one could question the accused party. 4. Due to the statement made by P.W.10, a wordy quarrel arose between both parties. The Police constables who were on duty pacified both parties and asked them to go to their house. P.W.10 was proceeding to his house. The deceased Chakravarthy, deceased Perumal and others came near the house of one Ekambaram Mudaliar. All the accused ran to the house of Ekambaram Mudaliar and collected the Casurina sticks which were stored in front of the house. 5. The accused 1 to 5 attacked the deceased Rajendran with Casurina stick on his head and when the deceased Chakravarthy tried to intervene he was also attacked by A.6 to A.9 and deceased Perumal was attacked by A.10 to A.13. Others were chased. P.W.2 was attacked by A.8 and A.10. P.W.3 was attacked by A.3 to A.6. P.W.4 was attacked by A.1, A.14, A.15 and A.20. P.W.5 was attacked by A.2, A.18 and A.19. P.W.6 was attacked by A.10 and A.11. P.W.7 was attacked by A.12 and A.13. P.W.9 was attacked by A.10 to A.13. After attacking with sticks, the accused party ran away from the scene of occurrence. The deceased Rajendran had died on the spot. https://hcservices.ecourts.gov.in/hcservices/ The other deceased Chackravarthy and Perumal and other injured witnesses were taken to the hospital. P.W.1, brother of the deceased was near the body of the deceased. 6. In the mean time, P.W.14 - Ramamurthy, who was working as Constable in the Thirukanur Police Station present near the scene of occurrence and Head constable Renil Kumar gave information over the telephone. P.W.39, Sub Inspector of Police, Thirukanur Police Station received a wireless message at about 3.30p.m., and he went to the spot along with other police constables. He saw the body of the deceased Rajendran and received Ex.P.1 complaint from P.W.1 and he came back to the Police Station at 5.30p.m., and registered a case in Crime No.119 of 1997 for the offence under Section 147, 148, 307, 324, 302 IPC r/w 149 IPC and prepared the First Information Report Ex.P.93. 7. P.W.40 - Inspector of Police who came to the spot on receiving the information, saw P.W.39 receiving complaint from P.W.1. He went from Sorapet to Villupuram along with Police Constable and arranged for the bandhobust in the village. He came back to the place of occurrence and also received a message that the deceased Perumal and the deceased Chackravarthy died on the way to the hospital. He also prepared a rough sketch and observation mahazar. He also recovered three Poovarasu sticks, seven casurina sticks and one Tamarind stick. He also sent the body of the deceased Rajendran to the hospital to be kept in Mortuary. 8. P.W.40 Inspector of Police held inquest over the body of the deceased and recorded the statement of witnesses. He gave requisition for conducting post mortem examination. On receiving the intimation P.W.40, went to the Government Hospital, Pondicherry and enquired the 8th accused/Krishnamurthy and 18th accused/ Ilango alias Jayabalan who were admitted in the hospital, but both the accused refused to give any statement. He also came to know that the 4th accused/Masilamani who was at Mannadipet Hospital absconded from the hospital. 9.P.W.35- Doctor Balaraman who conducted post mortem on the body of the deceased Perumal, found the following injuries: External Injuries: (i)Irregular lacerated injury 10 x 3 cms present over mid parietal region of the head. (ii) Lacerated injury 3 x 1 cms bone deep over occipital region of head right side. (iii)Lacerated injury 3 x 0.5 x bone deep present 3 cms below injury No.(2) on occipital region of head on right side. (iv)Ill defined swelling present over back of chest left side. The Doctor opined that the deceased would have died of shock and haemorrhage due to multiple injuries. Vicera, blood soaked filter paper sent for analysis. https://hcservices.ecourts.gov.in/hcservices/ P.W.35- Doctor Balaraman also conducted post portem on the body of the deceased Rajendran and found the following injuries: External Injuries: (i)V shaped lacerated injury each limb measuring 6 cms length present over right parieto occipital region of head exposing vault of skull. (ii)Lacerated tear 3 cm length present over right ear lobule. (iii)Ill defined swelling 8 x 8 cms with two parallel linear abrassion each 5 cms length present over right cheek. (iv)Abrasion 1 x 1 cm over right side of face over temporal region (v)Multiple small abrasions over right forearm with swelling of right wrist joint. (vi)Abrasion 2 x 2 cms over left knee joint. The Doctor opined that the deceased would have died of shock and haemorrahage due to head injuries. He also sent Viscera, blood soaked filter paper sent for analysis. 10. Doctor Subramanian who conducted post mortem on the body of the deceased Chackravarthy, found the following injuries: External injuries: (i)Lacerated injury 5 x 0.5 cm x bone deep present over mid frontal region of head. (ii) Lacerated injury 7 x 0.5cm x bone deep present over right occipital region of head. (iii)Lacerated injury 3 x 0.5 cm x bone deeep present over right occipital region of the head. (iv)Abrasion over left cheek present. The Doctor opined that the deceased would have died of head injuries and individual has consumed alcohol and he sent the Visera and blood soaked filter paper sent for analysis. 11. On 23.12.1997, P.W.40 – Inspector of Police arrested the eighth accused/Krishnamurthy and eighteenth accused/Ilango alias Jayabalan near bus stand, Pondicherry and he sent them to the hospital and obtained wound certificates. He also recorded the confessional statement and in pursuance of the confession statement, he recovered M.O.36 - Casuarina sticks and M.O.37 - Poovarasan Stick. On 28.12.1997, he arrested A.4, A.5, A.6, A.14 and A.20 and recorded the confessional statements and in pursuance of the confessional statement of A.1, he recovered the blood stained Dhothi and in pursuance of the confessional statement of A.4, he recovered M.O.31 - casuarina stick and in pursuance of the confessional statement of A.6, he recovered M.O.43 - stick and in pursuance of the confessional statement of A.7, M.O.45 blood stained dhothi and blood stained Tamarind stick M.O.44 were recovered. He sent A.4 and A.20 to the hospital as they were having old injuries and obtained wound certificates. On 01.01.1998, he arrested A.3, A.12, A.13 and recorded their confessional statements and in pursuance of the confessional statement of A.3, he recovered M.O.46- Casuarina stick https://hcservices.ecourts.gov.in/hcservices/ and in pursuance of the confessional statement of A.12, he recovered M.O.41 - casuarina stick and in pursuance of the confession statement of A.13, he recovered M.O.89 - stick. On 09.01.1998, he arrested A.2, A.10, A.11 and A.15 and recorded their confessional statements and in pursuance of the confessional statement given by A.2, he recovered M.O.51 and M.O.48. In pursuance of the confessional statement of A.10, he recovered M.O.49 stick and in pursuance of the confessional statement of A.11, he recovered stick M.O.50. On 15.01.1998, he arrested A.9, A.16, A.17 and A.19 and recorded their confessional statements. In pursuance of the confessional statement of A.9, he recovered M.O.90 stick and in pursuance of A.16, he recovered stick M.O.52. On 10.02.1998, he arrested the accused A.21 and on 28.02.1998, he arrested A.22. He continued the investigation and recorded the statement of witnesses and on 03.08.1998 he filed report before the Court for altering the Sections 147, 148, 307, 324, 302 r/w 149 IPC into Sections 148, 341, 447, 448, 427, 307 (8 counts) and 302 (3 counts) r/w 149 IPC and the alteration report is Ex.P.103. After completing the investigation, he laid the final report against all the accused. 12. In order to establish the case, prosecution has examined P.Ws.1 to P.W.40, marked Exs.P.1 to P.104 and produced material objects M.Os.1 to 90. When the accused were questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances available against them, they denied their complicity. On the side of the defence, neither any witness was examined nor any document was marked. 13. The trial Court after analysing the evidence convicted and sentenced the accused as already stated above. 14. The learned counsel Mr.Rupert J.Barnabas appearing for the accused in Crl.A.Nos.546 and 759 of 2004 submitted that P.W.1 could not be the eye-witness to the occurrence and Ex.P.1 said to have been given by him is false and it is inadmissible in evidence. Even according to the prosecution case, wireless message was given by Renil Kumar, Head Constable at 3.30p.m., to P.W.39 Station House Officer and on such information, P.W.39 also had come to the scene of occurrence. As such, the Head Constable Renilkumar is the first informant in this case and the information given by him and received by P.W.39 would amount to First Information Report and the present Ex.P.1 is inadmissible which would amount only a statement recorded under Section 161 Cr.P.C. The prosecution had deliberately omitted to examine the Head Constable Renil Kumar who was cited as a witness by the prosecution in the final report. The present Ex.P.1 complaint from P.W.1 and the First Information Report were deliberately prepared with the false particulars. P.W.39 Station House Officer claimed that he registered the First Information Report, but P.W.1 had stated that First Information Report was registered by the Inspector of Police P.W.40. P.W.1 had deposed in the cross https://hcservices.ecourts.gov.in/hcservices/ examination that what was written in the complaint Ex.P.1 was not found in the first Information Report. Though the First Information Report was registered at 5.30p.m., a copy of the report was submitted to the Magistrate only at 9.15 p.m., and there is no explanation for the delay of 3 hours and 45 minutes. P.Ws.2 to 14 never deposed that P.W.1 was present along with them at the time of attack and he was left by the side of the dead body of his brother deceased Rajendran. This leads to show that P.W.1 was brought from Vinayagampet to the Police Station and his signature was obtained in the complaint which had caused the delay in preparing the FIR and sending it to the Magistrate. 15. The learned counsel further submitted that the prosecution has shifted the scene of occurrence to Vinayagampet to Sorapet for the purpose of its convenience where the election was held. The injured witnesses of prosecution at the earliest point of time informed the Doctor P.W.30 that they were assaulted by sticks at Vinayagampet area and the finding of the trial Court that the Doctor had mistaken the place of residence Vinayagampet for the place of occurrence is without any material. The place of occurrence being shifted, the body of Rajendran was brought from Vinayagampet and placed in Sorapet. 16. The learned counsel also submitted that A.4, A.8, A.18 and A.20 were also injured, but the prosecution had failed to explain the injuries sustained by the accused. The non explanation of the injuries on the accused is fatal to the prosecution case. The learned counsel also submitted that a close scrutiny of evidence would expose that it was only the prosecution party who were the aggressors and it is admitted by the witnesses that P.W.10 provoked the prosecution party with his words. There is no independent witness to corroborate the evidence of the prosecution witnesses. The learned counsel pointed out the infirmities in the evidence relating to the recovery of sticks and stated that P.W.40 - Investigating Officer did not call anyone from the residents of Sorapet as mahazar witness. 17. The learned counsel made a very lengthy argument with minute particulars pointing out minor contradictions, which also finds place in the grounds of criminal appeal No.752 of 2004. According to the learned counsel, the defence theory is that at Vinayagampet a quarrel arose among the prosecution party comprising three groups, due to the defeat in election and they pointed out one another as cause for their defeat and the verbal clash resulted in physical attack on one another and as they were already present along with goondas and outsiders in the attack among themselves they got injured. The learned counsel also relied on several decisions in support of his arguments for each and every minute point. https://hcservices.ecourts.gov.in/hcservices/ 18. The learned Senior Counsel Mr.K.S.Dinakaran appearing on behalf of the 9th accused submitted that if P.W.1 had been present at the time of occurrence, he also would have sustained injuries and his conduct also was unnatural. He did not take the deceased to the hospital along with other injured person. The learned Senior Counsel further submitted that FIR being false, there is possibility of implicating any number of accused in this case. 19. Mr.A.Natarajan, learned Senionr Counsel appearing for A.7 and A.15/appellants in Crl.A.no.659 of 2004 submitted that the place of occurrence is shifted and as far as A.15 is concerned, only P.W.4 says that he was assaulted by A.15 on the hip but there is no corresponding injury. From the mere presence of A.15, presumption cannot be drawn for attracting the common intention to attack on the deceased and others. 20. Per contra, learned Public Prosecutor for Pondicherry State submitted that P.W.1's presence was spoken by P.Ws.2, 4, 6, 9, 11, 39 and 40 and P.W.1 being brother of the deceased having felt that his brother had already died, he did not make any attempt to take the deceased to the hospital. 21. The learned Public Prosecutor further submitted that the evidence of P.W.1 is also corroborated by the evidence of P.W.2 to 9 who are the injured eye witnesses to the occurrence and also supported by the evidence of Police constable P.W.14 who was present at the scene of occurrence at the time of occurrence. The learned Public Prosecutor further submitted that the distance between Vinayagampet and Sorapet is only two kilometers and no suggestion was put to any witness that the occurrence had not taken place at Surapet and there was no possibility and no necessity to bring the body of the deceased from Vinayagampet to Sorapet and what was noted regarding the place of occurrence in the accident register cannot be given much importance, since the place of residence is mentioned as the place of occurrence. When the oral evidence is so clear and cogent it need not be rejected on minor contradictions. 22. Learned Public prosecutor further pointed out that the non- examination of Renil Kumar, Head Constable does not affect the prosecution case. Though he had given wireless information to the police, it was only cryptic message regarding rioting and the said information is also narrated in the FIR. Only after coming to the scene of occurrence, a detailed information from P.W.1 was obtained which amounts to First Information Report regarding the death of the deceased. 23. The learned Public Prosecutor also submitted that the accused did not sustain any injury in the occurrrence, and while they were questioned under Section 313 Cr.P.C., did not say so and no https://hcservices.ecourts.gov.in/hcservices/ counter complaint was given by the accused. Even otherwise, the injuries said to have been sustained by the accused were simple in nature and the non-explanation of the injury do not affect the case of the prosecution. 24. This Court considered the submissions made by all the parties and perused the records. 25. Prosecution witnesses 1 to 11 and 14 are eye witnesses to the occurrence. Three persons viz., Rajendran, Chakravarthy and Perumal have died and P.Ws.2 to 8 and one Sivakumar were injured in the incident. P.W.1 – brother of deceased Rajendran is the first informant who had given complaint Ex.P.1 to P.W.39 – Sub Inspector of Police. Though it was contended that P.W.1 could not have been eye witness to the occurrence, this Court is unable to accept it. Just because he was not injured and he being son of the deceased, his evidence cannot be rejected. Nothing had been brought out in the cross examination to improbabalise his presence at the time of occurrence. He had clearly spoken about the origin of occurrence also. P.W.1 did not take his brother to the hospital since it was understood that he died in the spot. While other injured persons were taken to the hospital, deceased Rajendran would not have been left at the spot. There was no delay in giving Ex.P.1 complaint to Police. The occurrence was at 3.30p.m., and P.W.39 – Sub Inspector of Police had come to the spot at 4.30p.m and after receiving Ex.P.1 returned to the station which was at a distance of 10 kms and recorded Ex.P.93 FIR at 5.30pm. Though an attempt was made to confuse P.W.1 during cross examination by showing FIR, P.W.1 had clearly stated that he signed in Ex.P.1 at the spot in the presence of P.W.39 and denied the suggestion that Ex.P.1 was prepared two and half hours latter. 26. One another contention raised by the defence that Ex.P.1 is not admissible since already information had been given by Police Head Constable Renil Kumar through wireless message which only would amount to First Information and not Ex.P.1 and the non-examination of Renil Kumar is fatal to the prosecution case is also to be rejected. Though Renil Kumar Head Constable is not examined the wireless message given by him is extracted in Ex.P.93 Express FIR as follows: "Today (20.12.1997) at 15.30 hours while I was on rounds in Tirukkanur market in connection with the strike by the employees of private buses, I received a wireless communication from H.C.1409 C.V. Renil Kumar who was deputed along with P.C.1394 Ramamoorthy and H.G.(D)997 Saravanan in Thirukkanur Police Jeep PYC 8723 for bandobust duty in connection with the Election of Director from the Vinayagampet village to the Sorapet Village Co-operative agricultural credit society at Sorapet that a serious rioting was taken place at Sorapet in connection with the above election. I immediately proceeded to Sorapet https://hcservices.ecourts.gov.in/hcservices/ alongwith H.C.965, P.C.1544, 886, 918." This makes it clear that only cryptic information