IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 03/09/2003 Coram The Honourable Mr.Justice N.DHINAKAR and The Honourable Mr.Justice M.CHOCKALINGAM Criminal Appeal No.575 of 1995 1. Vasu 2. Kadar 3. Mohan 4. Appavu @ Selvam @ Appa Selvam ..... Appellants -Vs- State rep. by Inspector of Police, J-1, Saidapet Police Station, Madras. ..... Respondent Prayer: Appeal against the judgment dated 28.4.1995 in Sessions Case No.265 of 1994 delivered by the IV Additional Sessions Judge, Madras. !For Appellant 1 : Mr.S.Shanmugavelayutham ^For Appellant 2 : Mr.V.Gopinath, Sr. Counsel For Mr.K.V.Ananthanarayanan For Appellants 3 & 4: Mr.M.Kandasamy For Respondent : Mr.V.M.R.Rajendran Addl. Public Prosecutor :J U D G M E N T (Judgment of the court was delivered by N.DHINAKAR, J.) The appellants, four in number, were arrayed as A1 to A4 before the IV Additional Sessions Judge, Madras, in Sessions Case No.265 of 1994 , and in the judgment they will be referred to in the same order as they were arrayed before the learned Sessions Judge, for the sake of convenience. The allegation against the accused is that they, joining with Paramasivam and Sampath, who died subsequent to the occurrence, entered into a criminal conspiracy and pursuant to the criminal conspiracy hatched by all the six accused, they formed themselves into an unlawful assembly and in furtherance of the common object of the said unlawful assembly, attacked Umar, the deceased in the case, with patta knives at about 12.15 p.m. on 2.12.1991 and that when the witnesses intervened, they were threatened by all the six accused. The learned Sessions Judge, while finding A1 to A4 guilty under Section 148 IPC and 302 r/w 149 IPC, sentenced each one of them to imprisonment for life under Section 302 r/w 149 IPC and no separate sentence was imposed against them under Section 148 IPC. The accused were acquitted of the charge framed under Section 506 Part-II IPC. Hence, the present appeal. 2. The case of the prosecution is as follows:- P.Ws.1 to 3 are the friends of the deceased and P.W.5 is the elder brother of the deceased. On 2.12.1991, the deceased asked his father to give him some invitation cards, which were printed in connection with the marriage of his sister, stating that they are required to be distributed by him to his friends. The father of the deceased asked him to go to the fancy store, which he was running, and collect the invitation cards, saying that he is going to the hospital, as he was suffering from sickness. The deceased accompanied by his friends, P.Ws.1 to 3, was proceeding to the fancy store run by his father to collect the invitation cards. While they were proceeding in Karaneeswarar Temple Street and when they were near Gowi Nivas Hotel, they were accosted by six persons, who came in a Maruthi van. The persons, who were found in the Maruthi van are A1 to A4 as well as Paramasivam and Sampath, who later died, and each of them was armed with a patta knife. They shouted that Umar must be cut and ran towards the deceased Umar. On seeing the accused, six in number, rushing towards Umar, his friends, P.W.1 to 3, ran away in different directions. The accused chased the deceased, and Paramasivam and Sampath cut Umar on the head and on the legs followed by A1, who cut him on the back of chest. A2 inflicted a cut on the stomach of Umar. The other accused, A3 and A4, were standing guard with patta knifes and threatened the witnesses. On receipt of the injuries, Umar fell down. 3. P.W.5, the elder brother of the deceased, was informed about the occurrence and on getting the information, he rushed to the place and found his brother lying on the ground with injuries. He removed Umar to Government General Hospital, Madras, and produced him before P. W.9, the casualty medical officer, who, on examining him, found him dead. The doctor issued Ex.P-8, a copy of the accident register and also sent an intimation, Ex.P-9, to the police station. 4. Meanwhile, P.W.1, who witnessed the incident, left the scene of occurrence and went to J-1 Saidapet Police Station, where he gave a complaint to P.W.18, Inspector of Police. The said complaint is Ex.P-1. On the basis of Ex.P-1, P.W.18 registered a case in Crime No.2625 of 1991 against the accused under Sections 147, 148 and 307 IPC. The printed first information is Ex.P-35. The express reports were despatched to the higher officials. He took up investigation in the crime and proceeded to the scene of occurrence accompanied by the SubInspector of Police, Ravindran, and on reaching the scene of occurrence, he was informed that Umar was removed to the hospital in an auto by his brother. P.W.18 sent the Sub-Inspector of Police to the hospital to find out as to what happened to the injured Umar. After sending the Sub-Inspector of Police, he prepared an observation mahazar, Ex.P-2, and drew a rough sketch, Ex.P-36. He seized a blood-stained lungi, M.O.5, under Ex.P-5. At 2.15 p.m., a kerchief, M.O.6, which was lying at the scene of occurrence, was seized under a cover of mahazar, Ex.P-6. At 3.00 p.m., the Sub-Inspector of Police returned to the scene of occurrence and informed P.W.18 that Umar died at the hospital and his body is kept at the mortuary. He handed over Ex.P-9, death intimation, to P.W.18. The crime was, thereafter, altered to one under Section 302 IPC. P.W.18, after altering the crime to one under Section 302 IPC, proceeded to Government General Hospital, Madras, taking along with him the witnesses and conducted inquest over the dead body of Umar between 3.45 p.m. and 6.45 p.m. and the inquest report is Ex.P-37. He examined P.Ws.1 to 4 and others at the time of inquest and recorded their statements. After the inquest was over, the body was handed over to a police constable with a requisition to the doctor for conducting autopsy. 5. On receipt of the requisition, P.W.17, Assistant Professor, Department of Forensic Medicine, Madras Medical College, Madras, conducted auotpsy on the body of Umar and found the following injuries:- HEAD: 1.A transverse gaping cut injury present on the right side of forehead 8x3 cms bone deep. Cut fracture of skull present involving entire thickness of bone (7x0.3 cms) margins sharp, angles acute. 2.An oblique gaping incised wound present over left cheek 2x1 cms bone deep with cut fracture of maxilla present beneath it, involving the outer layer of bone. Margins sharp, angles acute. 3.Three transverse gaping cut injuries present on occipital region of scalp one below the other, measuring 8x1.5 cms bone deep, 10x1.8 cms bone deep and 9x1.5 cms bone deep. The upper and middle injuries are situated 1.2 cms apart. Beneath these injuries cut fracture of skull present. i) 7.6 cm ii) 9.5 cm and iii) 8.5 cm in length, the entire thickness of bone involved. 4.Three transverse gaping cut injuries present on occipital region of scalp one below the other, measuring 8x1.5 cms bone deep, 10x1.8 cms bone deep and 9x1.5 cms bone deep. The upper and middle injuries are situated 1.2 cms apart. Beneath these injuries cut fracture of skull present. i) 7.6 cm ii) 9.5 cm and iii) 8.5 cm in length, the entire thickness of bone involved. 5.Three transverse gaping cut injuries present on occipital region of scalp one below the other, measuring 8x1.5 cms bone deep, 10x1.8 cms bone deep and 9x1.5 cms bone deep. The upper and middle injuries are situated 1.2 cms apart. Beneath these injuries cut fracture of skull present. i) 7.6 cm ii) 9.5 cm and iii) 8.5 cm in length, the entire thickness of bone involved. 6.6.An abrasion over left cheek present 2 x 1 cm dark brown. 7.An abrasion 1 cm below right eye brow present2x1 cm dark brown. 8.There is diffuse sub-dural and sub-arachnoid haemorrhages present over both cerebral hemispheres. 9.NECK:- An oblique gaping incised wound present over lower aspect of left side of neck, 4 cm above left clavicle measuring 5x1x3.5 cms with tailing present upwards and backwards (7cms long) 10.CHEST:- An oblique gaping incised wound present over lower aspect of the left side of neck, 4 cm above left clavicle, measuring 5x1x3.5 cms with tailing present upwards and backwards (7cms long). 11.An oblique gaping stab injury present on the lateral aspect of left side of chest on 8th intercostal space in the mid axillary line, measuring 7x2 cms cavity deep directed inwards, backwards and downwards. Margins sharp, angles acute. On dissection, left dome of diaphragm found to be cut 3.8 x 1.5 cms. A stab injury on the superior surface of spleen present 3.5x0.5x0.8 cms. 12.An oblique gaping stab injury present on the right side of chest on 4th inter costal space on mid axillary line measuring 3.5x1.5 cms cavity deep. The wound is directed inwards, backwards and downwards, margins sharp and angles acute. On dissection: A stab injury present on the outer aspect of upper lobe of right lung 3x1x0.5 cms. Right lung found collapsed. Right pleural cavity contained 200 cc of fluid blood and 50 gms of clotted blood. 13.An oblique gaping stab injury present on the anterior axillary line on 8th inter costal space on right side 3x1.5 cms cavity deep with fracture of 9th rib beneath it. Margins sharp, angles acute. On dissection: A penetrating wound on right dome of diaphragm present 3.5 x 2 cm x entire thickness. A stab injury present on the superolateral aspect of right lobe of liver with tapering inwards. (3.2 cm x 0.5 cm x 1.8 cm). 14.A gaping incised wound over front of right sideo f chest 4 cms below right nipple, measuring 2 x 1 x 0.5 cms. 15.A gaping incised wound over front of right side of chest 7 cm outer and below to right nipple measuring 2 x 1 x 0.5 cms. 16.A gaping incised wound present 2 cm below injury No.15, 0.5 x 0.2 cm skin-deep. 17.A gaping incised wound present 1.5 cm below injury No.16, 0.5 x 0.2 cm skin-deep. BACK OF TRUNK: 18.A gaping oblique incised wound on left supra scapular area 3 x 1 x 0.5 cms with tailing present upwards and inwards (4 cm). 19, 20 and 21. Three superficial incised wounds linear measuring 5 cm, 7 cm and 9 cm situated one below the other on left supra-scapular region with 2 cm in between the first two injuries and 3 cm between the second and third. 22. A superficial gaping oblique incised wound on the right suprascapular area 4 x 3 x 1 cms with tailing present inwards and downwards ( 5 cms long). 23. A superficial gaping incised wound present on right infrascapular area 4 x 2 x 0.5 cms. 24. Two stab injuries present on the back of right side of chest 2 cms below. 25. Injury No.23, measuring 3 x 2 cms cavity dep and 3.5 x 1.8 cms cavity-deep. Sharp margins and acute angles (inner margin coinciding) directed inwards, forwards and downwards. On dissection: a stab injury present on the posterior aspect of lower lob of right lung 3 x 1 x 0 .5 cms with tapering inwards. 26 & 27) Two gaping incised wounds presenting as a single wound 4 cms below injury Nos.24 and 25, measuring 3 x 2 x 1 cms and 4.5 x 2 x 1 cms with their neighbouring margin coinciding. 28 & 29) Two gaping incised wounds presenting as a single wound 5 cms below previous injury, 4.5 x 3 x 1.5 cms and 4 x 2 x 1 cms with their neighbouring margins coinciding. 30) A transverse gaping incised wound present 7 cms above to previous injury 4 x 2 x 1 cms with tailing inwards ( 7 cms long). 31 to 36) A group of six stab injuries presenting as a single injury with multiple extensions like fingers in a hand situated on the lumber region of back of trunk measuring 12 x 6 to 10 cms. On dissection: para-vertebral muscles found cut and a stab injury present on the back of lower half of left kidney 2 x 1 x 0.8 cms. Contusion of mesentery present 7 x 4 x 0.5 cms. 37) An oblique gaping incised wound present on the back of lower part of trunk 2 cms below the previous injury x 4 x 3 x 0.5 cms. 38) An oblique gaping incised wound present 0.5 cm inner to previous injury 3.5 x 2 x 0.5 cms. 39) An oblique gaping incised wound present 3 cms outer to previous injury, 4 x 2 x 1 cms. 40) An oblique gaping incised wound present 4 cms below the previous injury, 3 x 2 x 0.5 cms. 41) An oblique gaping incised wound present 3 cms outer to previous injury 4 x 1 x 0.5 cms. 42) A transverse gaping incised wound present 4 cms below previous injury, 5 x 0.3 x 0.5 cms. 43) A vertically oblique gaping incised wound measuring 4 x 1 x 0.5 cms situated 3 cms inner to previous injury. 44) An oblique linear incised wound present on the thoracic region of back of trunk 6.7 cms long and skin-deep. 45) An oblique linear incised wound present on the mid-scapular region of trunk, 5.3 cms long and skin-deep. 46) An oblique linear incised wound over right scapular region of back, long and skin-deep. RIGHT LOWER LIMB: 47) A transverse gaping cut injury present on the back of lower onethird of right leg measuring 5 x 2 cms bone-deep. 48) An oblique gaping incised wound present on the inner aspect of upper one-third of right leg 4 x 2 x 0.5 cms. 49) An oblique gaping incised wound over the upper one-third of front of right leg 2 x 1 x cms. RIGHT UPPER LIMB: 50) A gaping cut injury present on the distal one-third of palmar aspect of right hand 5 x 0.5 x 0.5 cms. LEFT LOWER LIMB: 51) A vertical gaping incised wound on the upper one third of right forearam 1 x 0.5 x 0.5 cm. 52) A gaping cut injury present on the outer aspect of left ankle 7 x 2 x 1 cms. 53) A gaping cut injury present 1 cm below previous injury, 4 x 1 x 1 cms with fracture of bone beneath it. 54) A gaping cut injury present on the outer aspect of lower onethird of left leg, 5 x 2 x 1 cms. 55 & 56) Two cut injuries presenting as a single injury with extensions on the middle one-third of outer aspect of left leg measuring 3 x 2 x 1 cms and 3 x 2 x 0.5 cms. 57) A gaping cut injury present on the upper and outer aspect of left knee 7 x 4 cms bone-deep with cut fracture of femur beneath it (5 cms long). 58) A gaping cut injury present on the outer aspect of middle onethird of left thigh 2 x 1 x 0.5 cms. 59) A gaping cut injury present on the outer aspect of upper onethird of left thigh 3 x 1 cms bone-deep with cut fracture of femur beneath it (2.5 cms long). 60. LEFT UPPER LIMB: An oblique incised wound present on the outer aspect of upper one-third of left arm 5 x 2 x 1 cms with tailing present downwards and inwards (4.5 cms). 61) An oblique incised wound present on the outer aspects of middle one-third of left arm 2 x 1 x 1 cms. 61 to 65) 4 cut injuries presenting as a single injury with extensions on the lateral aspect of one-third of left arm 8 x 5 to 7 cms with fracture dislocation of left elbow and cut fracture of left humerus 1.5 cms long. 66) An incised wound present on back of lower one-third of left forearm 7 x 3 x 1.5 cms. 67) An incised wound present on the back of upper one-third of left forearm 7 x 2 x 1.5 cms. 68) An incised wound 2 cms below previous injury, 2.5 x 0.5 x 0.5 cms. 69) An incised wound over middle one-third of inner aspect of left forearm 2 x 1 x 1 cms. 70) An abrasion over dorsum of left hand 3 x 2 cms dark brown. The doctor issued Ex.P-34, the post-mortem certificate, with his opinion that the death was on account of shock and haemorrhage due to multiple stab and cut injuries. 6. P.W.18, continuing with his investigation, questioned the witnesses and also the doctor, who conducted autopsy. He, thereafter, returned to the scene of occurrence, where he examined some more witnesses whose statements were recorded. He searched for the accused and took stops to trace the Maruthi van bearing Registration No.TN-01-P-306 6, in which the accused arrived at the place of occurrence. He took efforts to trace the accused and to arrest them and on 2.12.1991, came to know that Paramasivam and Sampth and A1 surrendered before XIII Metropolitan Magistrate, Madras. He, thereafter, filed a petition before the learned Magistrate to take them into police custody. On the same day, he seized the Maruthi van at about 6.00 p.m. under a mahazar Ex.P-11 attested by the witnesses. He searched for the other absconding accused and the van, which was seized, was sent to court. At about 5.30 p.m. on 6.12.1991, he arrested A4 when he was near the junction of C.I.T. Nagar and Canal Bank Road in the presence of witnesses. When questioned, A4 gave a statement, the admissible portion of which is Ex.P-16. A4 took the police party to the railway track near Appavoo Nagar and produced M.O.16, a patta knife, and the same was seized under a cover of mahazar Ex.P-17. A4 was, thereafter, sent to court for remand. The officer questioned the witnesses and also took efforts to trace the other two absconding accused. On 7.12.1991, on the orders of the court, Paramasivam and Sampath as well as A1 were taken into police custody and were questioned at the police station. Sampath gave a statement and the admissible portion of the same is Ex.P-12. Paramasivam also gave a statement, the admissible portion of which is Ex.P-19. A1 gave a statement and Ex.P-20 is the admissible portion of his statement. In pursuance of the admissible portions of the statements, the police party was taken by Sampath to a Vinayagar temple at Corporation Colony, T.Nagar, where M.O.17, the knife, was produced and the same was seized under Ex.P-21. Paramasivam took the police party to the upper portion of the said temple from where, the knife, M.O.25, was seized under a cover of mahazar, Ex.P-25. Sampath took the police party to Corporation Colony First Street and from the house bearing Door No.31, produced a blood-stained polyster lungi and a full sleeve shirt, M.Os.18 and 19 respectively, and they were seized under Ex.P-22. Paramasivam, thereafter, took the police party to Corporation Colony Second Street and from the house baring Door No.31, produced M.Os.20 and 21, a lungi and a shirt, which were seized under a cover of mahazar Ex.P-23. A1 took the police party to Ashok Nagar and from the house bearing Door No.20 at Ganapathy Street, M.Os.22 to 24, on being produced, were seized under Ex.P-24. The witnesses, who attested the mahazars, were questioned and their statements were recorded. The material objects were sent to court under Form 95 on 9.12.1991. The officer arrested A2 and A3 on 14.12.191 while they were near Krishnaveni Theatre at T.Nagar and when questioned, A2 gave a statement, the admissible portion of the same is Ex.P-12. When A3 was questioned, he gave a statement and the admissible portion of the same is Ex.P-13. The police party were taken by A2 to Ranganathan Subway and from a bush near a railway track, he produced M.Os.13 and 14, a shirt and a lungi, which were seized under a mahazar Ex.P-1 4. A3 took the police party to C.I.T. Nagar and produced the knife, M.O.15, which was seized under a cover of mahazar, Ex.P-15. Both the accused were brought to the police station, searched and locked up and they were later sent to court for remand on 15.12.1991. The material objects seized were sent to court with a requisition, Ex.P-28, to forward them for analysis. The officer questioned the auto-driver, who took the injured Umar to the hospital, and recorded his statement. After the completion of investigation, the final report was filed against all the six accused on 20.3.1992. 7. The accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them and they denied all the incriminating circumstances. A2 examined himself as D.W.1 and also examined three more witnesses as D.Ws.2 to 4. According to D.W.1, who is A2 in the case, he left Madras on 17.11.1991 with a view to visit Sabarimala temple and reached Trichy on 18.11.1991. He has stated that he was staying at the house bearing Door No.40-A in South Tailors Street, belonging to one Ravi, who is a painting contractor, and that he was engaged in painting work at Trichy till 9.12.1991. He has further stated that while he was at Trichy, he has sent letters to D.W.2, Kanchana, whom he married on 14.5.1992 and that he also received two letters from D.W.2. According to him, he had written Ex.D-1, the letter dated 19.11.1991, and Ex.D-2, the letter dated 25.11.1991, addressed to Kanchana and received Exs.D-3 and D-4, the letters dated NIL, with a post office seal dated 15.12.1991 on Ex.D-4, from Kanchana. To support his evidence, Kanchana, whom D.W.1 subsequently married, was examined as D.W.2. D.W.3 was examined to say that he and A2 were engaged in painting work at Trichy and that on 9.12.1991, the elder brother of A2, informed him that his father is detained by the police and that thereafter, he took A2 to Madras. He has stated that he left Trichy on 17.12.1991. D.W.4 was examined, through whom, Ex. D-5, the appointment order given to P.W.1, and Ex.D-6, the letter dated 13.4.1995 addressed to the court, were marked, to say that the attendance register of P.W.1 for the period from 1.12.1991 to 3.12.1991 is not traceable. In short, through D.W.4, the defence wanted to establish that P.W.1 was at his work-spot and therefore, could not have been present at the scene of occurrence and through the evidence of D.Ws.1 to 3, it wanted to establish that A2 was at Trichy and was not at the scene of occurrence along with the other accused. 8. The learned counsel appearing for the appellants/accused strongly contend that in view of the evidence of D.Ws.1 and 2 supported by D.W.3 and the letters, Exs.D-1 to D-4, it is crystal clear that A2 was not present at the scene of occurrence along with the other accused as he was away at Trichy, being engaged in painting work and therefore, the case of the prosecution is to be rejected against A2. They further contend that since P.W.1 gave prevaricating answers in crossexamination by going back on his earlier statement recorded by the police officer under Section 161 Cr.P.C., his evidence cannot be accepted and that since A3 and A4 are not attributed with any specific overt act, they cannot be found guilty. On the above contentions, we have heard the learned Additional Public Prosecutor and also perused the recorded evidence. 9. The cause of the death of Umar is not in dispute, since the doctor, P.W.17, who conducted autopsy, found as many as 70 injuries and he also stated that all the injuries could have been caused with weapons, like M.Os.15, 16, 17, 22 and 25 and that the death was on account of multiple stab and cut injuries. On the medical evidence, which is not in dispute, we hold that Umar died on account of homicidal violence. 10. The prosecution, before the trial court, examined four witnesses as P.Ws.1 to 4 to establish that the appellants/accused, who were arrayed as A1 to A4, along with two other