IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-9-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.Nos.204 of 2006 and 148 of 2007 Mohan .. Appellant in/ Accused No.1 S/o.Thangaraj CA 204/2006 Selvam @ Selva @ Selvaraj .. Appellant in/ Accused No.2 S/o.Karuppiah Pillai CA 148/2007 vs State by Inspector of Police CB CID Police Station, Chennai .. Respondent in/ Complainant both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the I Additional Sessions Court, Chennai, made in S.C.No.232 of 1996 dated 25.11.2005. For Appellants : Mr.A.Natarajan Senior Counsel for M/s.A.Madhumathi for A1 : Mr.R.Muruga Bharathi for A2 For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was made by M.CHOCKALINGAM, J.) These two appeals have arisen from the judgment of the learned I Additional Sessions Court, Madras, in S.C.No.232 of 1996, whereby the appellants who were ranked as A-1 and A-2 respectively, stood charged, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ Accused Charges Findings Sentence A-1 120(B) r/w S.302 and 201, 302 r/w 34 (6 counts), 201 (4 counts) and 147 IPC 302 r/w 34 (6 counts), 201 (4 counts) and 147 IPC Life imprisonment for each count, 5 years R.I. for each count, 2 years R.I. respectively. The life imprisonment for murders of D-1 and D-4 to D-6 and imprisonment for offence under S.201 and 147 IPC are ordered to run concurrently and the life imprisonment for the murders of D-2 and D-3 stands distinctly and separately. The total 3 life imprisonments are ordered to run consecutively. A-2 120(B) r/w 302 and 201, 147, 302 r/ 34 (3 counts) IPC 302 r/w S.34 (3 counts) and 147 IPC Life imprisonment for each count, 2 years R.I. respectively. The life imprisonment and two years R.I. are ordered to run concurrently. 2.The short facts necessary for the disposal of these appeals can be stated thus: a)In the instant case, there were six persons murdered, namely Lalitha (D1), Sudalai (D2), Ravi (D3), Sampath (D4), Mohan (D5) and Govindaraj (D6). One Sankar @ Gowri Sankar is the prime crime mover- cum master mind for the whole occurrence. Originally, the said Sankar @ Gowri Sankar has been eking out his livelihood as a painter and then, he was running an Auto. Later, he moved to illicit arrack business. Then he entrusted the business of smuggling and selling of illicit liquor to A-1. Later, he was doing brothel business. In 1987, the first deceased-Lalitha entered into brothel business of Sankar, and he kept her in the portion of one Bommi Ammal at Kalachetra. The second deceased-Sudalai was also residing in another portion of the same house. The first and second deceased developed illicit intimacy. b)The first and second deceased fled away taking the cash of Rs.7300/- and a Camera of Sankar. Sankar made all attempts to trace them with the help of his associates. Thereafter, Sankar gave a complaint to P.W.51, the Inspector of Police, Tiruvanmiyur, against them. The first deceased was nabbed and brought to Thiruvanmiyur police station. The first deceased refused to live with Sankar. P.W.51 sent the first deceased with a police constable to board her to Bangalore. But, Sankar took the custody of the first deceased. https://hcservices.ecourts.gov.in/hcservices/ Frustrated over her betrayal, on 28.10.1987, Sankar strangled her neck with his hand. Eldin held her hands and Shivaji also held her both legs. A-1 closed her mouth and nose, as a result of which the first deceased died. Sankar took her golden anklets, ear studs and golden neck chain, which he has given to her out of love and affection. All the four accused took the dead body near the liquor godown of A-1 and buried the same. c)Sankar also decided to finish of the second deceased. On 28.02.1988, he also took the second deceased in the car to the arrack shop of A-1 and all reached the house of Sankar. P.W.1, on the signal given by Sankar, pressed around the neck of the second deceased with M.O.13, towel. Eldin caught hold of both his legs and A-1 closed his mouth and nose with his hands. Shivaji caught hold of both his hands and Sankar kicked him at his vital parts, as a result of which the second deceased died. Sankar removed the golden ring and golden neck chain, which were presented by him, from the dead body. Then, Sankar set fire to the dead body. Later, they bundled the dead body in a bed sheet and threw the same in the sea back water beneath Muttukadu bridge. d)The third deceased Ravi enquired Sankar about the first and second deceased and was also blackmailing and extracting money from Sankar. Aggrieved over the conduct of the third deceased, Sankar decided to kill him. On 14.3.1988 at about 9.00 p.m., while Sankar was consuming liquor with P.W.1, A-1, Eldin and Shivaji at Door No.126/A, Ranganathapuram, Thiruvanmiyur, the third deceased came and joined them and also demanded an Auto from Sankar. At that time, Shivaji slapped him and third deceased tried to escape from there. But, Shivaji strangled the neck of the third deceased with red towel, M.O.14. Sankar pressed his mouth and nose with his hands. A-1 caught hold of his both legs and Eldin caught hold of both of his hands and P.W.1 pressed his chest by sitting on his chest, as a result of which, the third deceased died. Thereafter, with the help of one Thoppai Maistry and painter Munusamy and P.W.1, a pit was dug near the bath room of the said house. After sending the said Thoppai Maistry and Munusamy, the dead body of the third deceased was buried. e)The fourth, fifth and sixth deceased used to come to Taj Mahal Hotel where prostitutes from Sankar's brothel house used to entertain the customers and make all sorts of nuisance. On 29.05.1988 at about 4.00 p.m., they were coming in an auto in a drunken mood and saw one Anitha, a prostitute of Sankar's brothel house. They caught hold of her and pulled her. Eldin, who came that side, questioned about their conduct, but he was beaten by the deceased Nos.4 to 6. The same was brought to the notice of Sankar. Then, Sankar collected all the accused and attacked the deceased Nos.4 to 6, but the fourth deceased ran from there. P.W.1 and A-1 chased him and picked him up from the firewood shop of P.W.2. The deceased Nos.4 to 6 were taken to the cement floor near the arrack shop of A-1. All the accused have beaten and assaulted deceased 4 to 6 with M.O.22 (series) casuarina sticks and M.O.23 (series) wooden reapers indiscriminately. The deceased 4 to 6 were kept at Door No.142, Gandhi Street, Periyar Nagar, Thiruvanmiyur and the said deceased were in a dungeon store room. https://hcservices.ecourts.gov.in/hcservices/ Later, the accused found D-4 and D-5 dead and D-6 was groaning and moaning. Since Sankar felt as unsafe to leave the sixth deceased alive, he asked all other accused to finish him off. A-1 pressed and closed the nose and mouth of D-6. P.W.1 held his both legs and Sankar held the neck of D-6 by one hand and kicked him on his chest and abdomen, as a result of which, the sixth deceased also died. Sankar removed the wrist watch from the body of D-5 and gold ring from D-4. In the midnight of 29.5.1988 and wee hours of 30.5.1988, the dead bodies of deceased Nos.4 to 6 were buried by Sankar, A-1, Eldin, Shivaji and P.W.1 in the trenches of the foundation of a building under construction at Plot No.122-A, Ranganathapuram, Thiruvanmiyur. f)P.W.6, the elder brother of D-4, gave a written complaint Ex.P10 on 31.5.1988 about the missing of his brother before F-4 Abiramapuram Police Station and a case in Crime No.736 of 1988 for man missing came to be registered. The F.I.R. was marked as Ex.P115. P.W.3, the auto driver, in whose auto D-4 to D-6 travelled on 29.5.1988, also preferred a written complaint Ex.P8 before Thiruvanmiyur Police Station on 8.6.1988, and a case came to be registered under Section 341, 342 and 323 IPC and the F.I.R. in this regard was marked as Ex.P113. The mother of D-3 also gave a complaint Ex.P15 to Thiruvanmiyur Police Station on 3.7.1988, which was registered in Crime No.963 of 1988. Ex.P114 is the F.I.R. in this regard. g)P.W.53, the Inspector of Police, Pallavaram, took up the investigation in Crime No.802 of 1988 and Crime No.736 of 1988 on 1.7.1988. He made an inspection in the scene of occurrence for Crime No.802 of 1988 and prepared Ex.P116, the observation mahazar, and Ex.P117, the rough sketch, in the presence of witnesses. Then, he proceeded to the second scene of occurrence of the same crime number and prepared Ex.P118, the observation mahazar and Ex.P119, the rough sketch, in the presence of the witnesses. Then, he proceeded to the rear side of Sri Nagathamman Koil and recovered the material objects under a cover of mahazar, and he examined the witnesses and recorded their statements. h)On 6.7.1988, the Investigator arrested P.W.1. He came forward to give a confessional statement which was recorded in the presence of witnesses. The admissible part is marked as Ex.P121. Pursuant to the same P.W.1 pointed out Sankar and Jayavelu. Both of them were arrested by the Investigator. Sankar gave a confessional statement. The Investigator recovered M.O.6 motorcycle from him. i)The Investigator took up investigation in Crime No.963 of 1988 and altered the provisions in both the crime numbers as Sec.302 and 201 read with 34 of IPC and sent special reports under Exs.P123 and 124 respectively. He gave a requisition to the Tahsildar for the exhumation of the dead bodies of D4 to D6. On 7.7.1988, he recovered the material objects pointed out by P.W.1, under a cover of mahazar. As pointed out by Sankar and P.W.1, he visited the house of Sankar and prepared an observation mahazar Ex.P125 and rough sketch Exs.P126 and P127. Then, both of them pointed out to the Tahsildar, P.W.42, the place of occurrence where the dead bodies of D4 to D6 were https://hcservices.ecourts.gov.in/hcservices/ buried. Then, the dead bodies were exhumed. P.W.53 prepared an observation mahazar, Ex.P128 and a rough sketch, Ex.P129. j)Both Sankar and P.W.1 pointed out the place where the dead body of D3 was buried. Then, it was exhumed. P.W.53 prepared Ex.P130, the observation mahazar, and Ex.P131, the rough sketch. P.W.42, the Tahsildar, prepared inquest reports, Exs.P75 to 78, in respect of D3 to D6 respectively. Then, the requisitions Exs.P42 to 45 were given to the hospital authorities for the conduct of postmortem on the dead bodies of D3 to D6. Finding that no case was registered for the murder of D2, a FIR was drawn in Crime No.987 of 1988 namely Ex.P132, under Sec.302, 201 read with 34 of IPC against Sankar, Eldin and P.W.1. k)P.W.31, the Professor of Forensic Medicines, Madras Medical College, on receipt of the said requisitions conducted autopsy on the dead bodies of D3 to D6. The Doctor has issued the postmortem certificates Exs.P46 to P49 respectively in their regard, opining that the deceased would have died of sudden violent attack and unnatural death due to asphyxia and strangulation. l)During the course of investigation, P.W.53 recovered some material objects on 8.7.1988 under a cover of mahazar. He applied for police custody in respect of Sankar, P.W.1 and Jeyavelu, and it was ordered. He recovered the material objects produced by P.W.1, under a cover of mahazar. Then, on 14.7.1988, he arrested A-1. He volunteered to give a confessional statement which was recorded in the presence of witnesses. The admissible part of the said confession is Exs.P17 to P21. Pursuant to the same, he showed the places where he buried the dead bodies of D1 and D3 to D6. He also produced material objects which were recovered under a cover of mahazar. While Sankar was in police custody, he gave a confessional statement, the admissible part of which is Ex.P136. Then, a requisition, Ex.P92, was given to the Tahsildar for exhumation of the dead body of D1. It was exhumed, and P.W.42 prepared an inquest report Ex.P93. Then, P.W.53 prepared an observation mahazar, Ex.P24, and a rough sketch, Ex.P137. The Tahsildar gave a requisition for the conduct of postmortem on the dead body of D1. On receipt of the same, P.W.31, the Medical Person, conducted autopsy on the dead body of D1 and has issued a postmortem certificate, Ex.P51, opining that the deceased would have died of sudden violent attack and unnatural death due to asphyxia and strangulation. P.W.53 found out that no case has been registered regarding D1. Then, he suo moto drew a FIR, Ex.P138, in Cr.No.1010/1988 under Sections 302 and 201 read with 34 of IPC. He gave requisitions for sending the material objects to the Forensic Sciences Department for chemical analysis. Accordingly, they were subjected to. m)The entire case was transferred to CB CID, Madras, for further investigation. P.W.55, the Inspector of Police, attached to the CB CID, took up further investigation. He took Sankar, P.W.1 and Jeyavelu under police custody. He also took steps to have A-1 under police custody. He recovered material objects under a cover of mahazar. On requisitions, the statements of Sankar and A-1 were recorded by the Judicial Magistrate under Sec.164 of Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/ n)On 9.8.1988, P.W.54, the Inspector of Police, attached to the CB CID, arrested A-1 and Ravi and recorded the confessional statements given by them. He recovered M.O.10, TVS 2183, under a cover of mahazar. o)On 15.8.1988, P.W.55 arrested Eldin and recorded the confessional statement given by him. The gold ring M.O.25, produced by his wife, was recovered under a cover of mahazar. On 29.8.1988 he arrested Shivaji. He gave a requisition Ex.P157, for conducting superimposition test regarding D4 to D6. As per the requisition, 14 items were subjected to chemical analysis. Ex.P59 is the biological report, while Ex.P60 is the serology report. On a requisition, P.W.43, the Judicial Magistrate, recorded the statements of Ragu, Perumal and Devendran under Sec.164 of Cr.P.C. As per the requisition, the Judicial Magistrate, Kancheepuram, recorded the statement of Anitha under Sec.164 of Cr.P.C. After completing the investigation, P.W.55 filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 57 witnesses and also relied on 181 exhibits and 127 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The lower Court after hearing the arguments advanced, took the view that the prosecution has proved the case, found the appellants guilty under the above provisions of law and awarded imprisonment as referred to above. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of the appellant/A-1 in C.A.No.204 of 2006, the learned Senior Counsel Mr.A.Natarajan would submit that as far as the finding of the learned trial Judge that the appellant was guilty under Sections 302 read with 34, 201 and 147 of IPC, the appellant has no arguments to advance; but, he has to concentrate on the sentence imposed by the learned trial Judge to undergo 3 consecutive life imprisonments; that the trial Judge after recording a finding that as far as the appellant was concerned, the offence against the appellant is proved, found him guilty under Sec.302 read with 34 of IPC on six counts and sentenced him to life imprisonment under each count and recorded a finding that he was guilty under Sec.201 of IPC on four counts and sentenced to undergo 5 years Rigorous Imprisonment on each count and 2 years Rigorous Imprisonment under Sec.147 of IPC; that the learned trial Judge has ordered the life imprisonment to run concurrently and two life imprisonments to run consecutively, but has not assigned any reasons whatsoever; that as per the prosecution case, there was originally 10 accused out of whom two accused shown in S.C.No.232/96 namely Mohan and Selvaraj were originally ranked as A-2 an A-8 in S.C.No.76/89; that charges were also framed against all the accused including the appellant; that out of the charges levelled in respect of six murders, the life sentence awarded to the appellant Mohan for the murder of D1, D4, D5 and D6, was made to run concurrently by the https://hcservices.ecourts.gov.in/hcservices/ trial Court; that the life sentence awarded in respect of the murder of D2 and D3 stood separately and distinctly and was made to run consecutively; that the trial Court has awarded consecutive sentence of life imprisonment; that apart from that, the trial Court has specifically observed that there was no set off under Sec.428 of Cr.P.C. to the appellant; that the appellant was in custody for nearly about 18 years and hence he is arguing only for the question of sentence. 5.Added further the learned Senior Counsel that the main accused in the case was Shankar @ Auto Shankar; that the main accused Shankar, Eldin, Shivaji and five others were tried separately by the Principal Court, Chengleput, since the case was split up in respect of the appellant who escaped from the prison; that out of this 8, Shankar, Eldin and Shivaji were awarded death sentence by the trial Court; that the same was confirmed by the High Court; that on appeal, the Supreme Court confirmed the sentence of death to Shankar and Eldin while the death sentence awarded to Shivaji was modified to life imprisonment; that as far as the accused Shivaji was concerned, there was no consecutive life imprisonment for any of the murder; that he was simply to undergo 14 years in the prison and thereafter on remission given by the Government, he was released; that in all aspects as to the involvement, allegations and overt acts attributed to the appellant Mohan were similar to that of Shivaji, and hence he has got to be given set off under Sec.428 of Cr.P.C. which has been specifically denied by the trial Court and concurrent running of the life sentence. 6.The learned Senior Counsel would further submit that as far as the set off was concerned, this Court in the order made in HCP No.708 of 2007 to the co-accused Shivaji granted set off by quashing that portion of the judgment of the trial Court; that the said order made by this Court in HCP No.708 of 2007, is equally applicable to the appellant herein; that since the similarly placed accused Shivaji was awarded concurrent life imprisonment for 6 counts by the Apex Court, this appellant is also entitled to the same benefit; that the trial Court has awarded the consecutive life sentences based on the Apex Court's judgment reported in 2007-1 MLJ (Cri) 1527 (KAMALANANDHA AND OTHERS V. STATE OF TAMILNADU); and that Their Lordships have observed in that judgment that Sec.31 of Cr.P.C. includes life imprisonment also. 7.It is the further submission of the learned Senior Counsel that the said judgment of the Apex Court cannot be applied to the present facts of the case; that as per sub clause 2(a) of Sec.31, the maximum imprisonment shall not be longer than 14 years; that in Chatar Singh V. State of M.P. (2007 CRL.L.J. 796), the Apex Court has held that as per Sec.31 of Cr.P.C., an accused cannot be sentenced for a longer period than 14 years; and that equally, the Apex Court in Saibanna V. State of Karnataka (2005 SCC (CRL.) 1094), has held that in the teeth of Section 427(2) of the Code of Criminal Procedure, 1973, it is doubtful whether a person already undergoing sentence of imprisonment for life can be visited with another term of imprisonment for life to run consecutively with the previous one. https://hcservices.ecourts.gov.in/hcservices/ 8.Relying on a decision of the Apex Court in Ranjit Singh V. Union of India (AIR 1991 SC 2296), the learned Senior Counsel would submit that a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending life span of the offender or for that matter anyone is beyond human might. 9.Added further the learned Senior Counsel that the Apex Court in the parent case appeal, has modified the death sentence awarded to A- 3 Shivaji into life imprisonment and though he was involved in all six murders, there was no consecutive life imprisonment awarded to him for any of the murders; that he has simply undergone 14 years in the prison and thereafter, in view of the remission by the Government he was released; that since the case of the appellant in all aspects as regards the involvement, allegations and overt acts attributed to him, were similar to that of Shivaji, the imposition of 3 consecutive life sentences against the appellant by the trial Court without assigning any reason is liable to be modified, and hence the judgment of the trial Court has got to be modified. 10.Advancing arguments on behalf of the appellant in C.A.No.148 of 2007, who was ranked as A-2 before the trial Court, the learned Counsel would submit that the trial Court has not considered the defence put forth by the appellant on a proper perspective; that since he was also tried along with the other accused who were actually involved in six murders, the trial Court was thoroughly prejudiced and has found him guilty even though the prosecution case did not carry any merit; that as far as the appellant/A-2 was concerned, even as per the prosecution case, he was only involved in the commission of murder as against D4 to D6; that it is pertinent to point out that even as per the prosecution case, he assaulted three persons; but, he has not murdered any of them; that the appellant had used only wooden reaper; that the cause of death of D4 to D6 was only by suffocation and not by physical assault; that the stick was found in the scene of occurrence, and the same was also recovered; that the appellant had never intended to cause the death of any one of them; that even as per the prosecution case, his part was only in respect of the assault with stick and that too, without any motive; that the three deceased persons were teasing the girl known to the prime accused Auto Shankar with whom the appellant has joined; that even as per the evidence of the so-called witnesses namely P.Ws.3, 4, 5, 9, 14 and 20, they saw D4, D5 and D6 teasing a girl and in protest, the occurrence has taken place; that all the three were drunken and teasing the girl known to Shankar; that the appellant has been in prison for nearly 16 years; and that the fact that the appellant has escaped from the prison has caused much prejudice in the mind of the trial Court and hence observed he did not deserve any set off which was against law and also caused prejudice to the appellant. 11.Added further the learned Counsel that the other accused having similar footing of causing injury to D5 and D6, have been sentenced to life imprisonment and the remand period has been set off and confirmed by the Apex Court; that the case of the appellant is https://hcservices.ecourts.gov.in/hcservices/ not in any way different, and thus the discrimination was unfair in the eye of law; that even assuming that the prosecution has proved its factual position of the case, it would not attract the penal provision of murder, but would be a culpable homicide not amounting to murder; that under the circumstances, the conviction under Sec.302 read with 34 of IPC and the life imprisonment awarded are more high; that utmost he could be found guilty under Sec.147 of