BAIL SLIP The Appellants/ Accused were directed to be released on Bail as per order of this court dated 1) 21.8.2002 in Crl.M.P.No 6720/02 in C.A.No.1058/2002, 2) 12.8.2002 in Crl.M.P.No 6899/2002 in C.A.No 1074/2002 3) 2.12.2002 in Crl.M.P.No 11615/2002 in C.A.No 1186/2002.4) 4.12.2002 in Crl.M.P.No.11707/2002 in C.A.No 1315/2002. 5) 28.11.2002 in Crl.M.P.No.11611/2002 in C.A.No 1360/2002 and 6) dated 23.6.2004 in Crl.M.P.No.5799/2004 dated 16.4.2004 in Crl.M.P.No.4201/2004, and dated 16.4.2003 in Crl.M.P.No.2771/2003 in Crl A.No.1462/2002 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 21.12.2006 Coram THE HONOURABLE MR.JUSTICE R. BALASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRIMINAL APPEAL Nos.1058, 1074,1186, 1315, 1360 & 1462 of 2002 & 1873 of 2003. Muralisamy @ Muralidharan ..Appellant in C.A.No.1058 of 2002 (Accused No.1) Mohan Raj ..Appellant in C.A.No.1074 of 2002 (Accused No.9) Rajesh ..Appellant in C.A.No.1186 of 2002 (Accused No.10) Settu @ Loganathan Saravanan Mani @ Balan @ Masilamani ..Appellants in C.A.No.1315 of 2002 (Accused Nos.12,13,14) Raju ..Appellant in C.A.No.1360 of 2002 (Accused No.5) Lobas @ Yogavinayagamoorthy Sakthi https://hcservices.ecourts.gov.in/hcservices/ Sakthivel Senthil @ Senthilkumar Devarajan Siva @ Sivasakthivel Konavayan @ Kamaraj ..Appellants in C.A.No.1462 of 2002 (Accused Nos.2,3,4,6,7,8 and 11) Sakthi ..Appellant in C.A.No.1873 of 2003 (Accused No.3) -Vs.- State by Inspector of Police Sooramangalam Police Station Salem District. ...Respondent in all the appeals Appeals under Section 374 of Crl Procedure Code against the judgment dated 12.6.2002 made in S.C.No. 105 of 2001 on the file of Additional Sessions Judge-cum-Fast Track Court No.2, Salem. For Appellants : Mr.V.Gopinath, Senior Counsel for Mr.R.Rajan for A.1 in C.A.No.1058 of 2002 Mr.P.Theogaraj for A.9 in C.A.No.1074 of 2002 Mr.A.Arasu Ganesan for A.10 in C.A.No.1186 of 2002 (A.10 - died) Mr.V.Gopinath, Senior Counsel for Mr.V.Murugesan for A.5 in C.A.No.1360 of 2002 Mr.S.Ashok Kumar, Senior Counsel for Mr.B.Vasudevan for A.2 in C.A.No.1462 of 2002 Mr.K.Srinivasdan for A.4, A.8 and A.11 in C.A.No.1462 of 2002 Mr.R.Karthikeyan for A.6 in C.A.No.1462 of 2002 https://hcservices.ecourts.gov.in/hcservices/ Mr.D.Rajagopal for A.7 in C.A.No.1462 of 2002 Mr.R.Syed Mustafa for A.3 in C.A.No.1873 of 2003 (A.3 died) For Respondent in all the appeals : Mr. C.T.Selvam Additional Public Prosecutor J U D G M E N T (Judgment of the Court was delivered by R. Balasubramanian, J) All the fourteen accused in S.C.No.105 of 2001 on the file of Additional Court of Sessions (Fast Track Court No.II), Salem are before this Court in these multiple appeals questioning their conviction. The conviction includes offences under Sections 302 direct and 302 with the aid of 149 I.P.C. Heard Mr.V.Gopinath, learned Senior Counsel appearing for the appellantS in C.A.No.1058 of 2002 and C.A.No.1360 of 2002; Mr.S. Ashok Kumar, learned Senior Counsel appearing for A.2 in C.A.No.1462 of 2002; other learned counsel on record for the other appellants in these multiple appeals and Mr.C.T.Selvam, learned Additional Public Prosecutor for the State. 2. The occurrence is shown to have taken place on the intervening night of 25.10. and 26.10.2000 at about 01.30 hours, during which time two persons were done to death and P.W.1 came to be injured. The charges are as hereunder:- 147 I.P.C. - A.1 148 I.P.C. - A.2 to A.14 342 I.P.C. - A.1 to A.14 307 I.P.C. - A.5, A.7 and A.14 342 and 307 r/w 149 I.P.C. - A.1 to A.14 302 I.P.C. - A.3, A.4, A.6 and A.14 302 r/w 149 I.P.C. - A.1 to A.14 302 I.P.C. - A.2, A.5, A.7, A.8, A.10 and A.11 302 r/w 149 I.P.C. - A.1 to A.14 506 (ii) r/w 149 I.P.C. - A.1 to A.14. The conviction of the accused is under all the charges. To prove their case, the prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.49 and M.Os.1 to 41. The defence neither let in any oral nor documentary evidence. 3. P.Ws.1 to 5 and 9 are examined as eye witnesses to the crime, out of whom, P.W.4 turned hostile. P.W.1 knows Punk Kanagaraj (deceased No.1) and Sundaravelan (deceased No.2). At the occurrence time, P.Ws.1,2,3, deceased No.1 and deceased No.2 were standing and talking in a public https://hcservices.ecourts.gov.in/hcservices/ place and at that time a red colour Yamaha Motor-cycle came and stopped opposite to the saloon near Chinnappa Gounder colony at Kasakkaranur. P.W.5, who had been a convict prisoner was acquitted and a few days prior to the occurrence, he came out of jail. P.W.5 was received by P.W.4, deceased No.1 and deceased No.2. The first accused was not happy in the way P.W.5 was received by the above mentioned persons. This was conveyed by deceased No.2 to others. A.3, A.6, A.4, A.8, A.11, A.14, A.13, A.5, A.7 and A.9 circled P.W.1, P.W.3, deceased No.1 and deceased No.2. Deceased No.2 was attacked by A.3, A.6, A.4 and A.14 with various weapons; deceased No.1 was attacked by A.2, A.10, A.11 and A.8 with various weapons and P.W.1 himself was attacked by A.5, A.7 and A.14 using various weapons. A.1 wielding a log of wood was intimidating the witnesses not to near them. A.2 and A.13 were similarly intimidating, each armed with a knife. The shop owners pulled down their shutters. Then proclaiming that the victims have died, the accused left. P.W.1 was taken to the Government Head Quarters Hospital at Salem. M.O.1 is the motor-cycle, in which the accused came. In the hospital, P.W.16 examined him and recorded his statement. The said statement was read over to P.W.1, in which he had signed. Ex.P.1 is the said complaint. 4. P.W.16 is the investigating officer. Early in the morning on 26.10.2000, he received information over telephone from the Government Head Quarters Hospital, Salem about the incident and he accordingly proceeded to the hospital, where he collected the medical intimation for P.W.1 and death intimation for deceased No.2. Ex.P.35 is the death intimation. Then P.W.16 proceeded to the ward, where by examining P.W.1 recorded his statement. P.W.16 came back to the police station and registered that complaint in his police station Crime No.1181 of 2000 under Sections 147, 148, 341, 307, 302 and 506 (ii) I.P.C. and prepared Ex.P.36, the printed First Information Report. He sent the express records to the Court as well as to the higher officials and then reached the crime scene at about 6.30 a.m. P.W.14 is the Head Constable in the investigating police station, who carried the Express Records to the Court as well as to the higher officials. In the presence of P.W.7 and P.W.8, P.W.16 prepared Ex.P.11, the Observation Mahazar and Ex.P.37 the rough sketch. At 7.30 a.m. in the presence of the same witnesses, from the crime scene, he recovered blood stained earth and sample earth under a Mahazar. At 8.00 a.m. in the spot itself in the presence of panchayatdars and witnesses, he conducted inquest over the dead body of Punk Kanagaraj (deceased No.1) and prepared Ex.P.38, the inquest report. Then he sent the dead body to the Salem Government Head Quarters Hospital for post-mortem with a requisition through a police constable. 5.P.W.12 is the police constable, who accompanied the dead body of Punk Kanagaraj (deceased No.1) along with Ex.P.31 to the Government Hospital for post-mortem. After post-mortem he removed M.Os.19 to 22 from the dead body and handed over the same to the investigating officer, who recovered it under form 95. P.W.15 is the Doctor, who did post-mortem on the dead body of deceased No.1 at about 12.20 p.m. on 26.10.2000. During post-mortem, he found various symptoms as https://hcservices.ecourts.gov.in/hcservices/ noted by him in Ex.P.33, the post-mortem report. The symptoms noted by him are as hereunder:- "Injuries:- 1) 6 gaping cut injuries presenting as a single injury present on the front of middle of neck 18 c.m. x 7 c.m. x bone deep. All the structures like hyoid bone, thyroid cartilage, trachea, muscles, blood vessels, cervical vertebra C3, 4, 5 are found cuts. The head is found almost cut except for a tag of skin and muscles on the back. 2) An oblique gaping cut injury on the right side of mouth 5 cm x 1 cm x 0.5 cm. 3) Two oblique gaping cut injuries on the lower jaw aspect on right side measuring 3 x 1 x 1/2 cm and 2 x 1 x 1/2 cm. 4) A gaping cut injury present on back of right index finger 2.5 cm x 1 cm x bone deep. 5) A gaping cut injury present on left clavicle x2 x 1 cm x bone deep. 6) A linear superficial incised wound over right shoulder 7 cm in length. 7) A linear superficial incised wound, over left shoulder 6 cm in length. 8) A gaping cut injury present above right knee 3 cm x 1 cm x 0.5 cm. 9) A gaping cut injury below right knee 2 x 1 cm x 0.5 cm. The above cut injuries are ante mortem in nature. Other finding:- Pleural Peritoneal cavities empty. Heart: Empty, Lungs, Liver, Spleen, Kidneys C/s.pale. Stomach 50 gms. Partly digested greyish Chyme present. No smell, mucosa pale." The Doctor opined that death would have occurred 6 to 18 hours prior to autopsy, as a result of shock and haemorrhage due to multiple cut injuries. He also deposed that the weapons shown to him in court could have caused the injuries found on the dead body. 6. At 11.00 a.m. P.W.16 conducted inquest over the dead body of Sundaravelan (deceased No.2) in the hospital in the presence of panchayatdars and witnesses. Ex.P.39 is the inquest report. Then he sent a requisition through P.W.13, the police constable to the hospital for conducting post-mortem on the dead body of deceased No.2. P.W.13 accordingly took Ex.P.32, the requisition to the hospital for conducting post-mortem on the dead body of deceased No.2. After post-mortem he https://hcservices.ecourts.gov.in/hcservices/ removed M.O.23 from the dead body and handed over the same to the investigating officer. P.W.15 did post-mortem on the dead body of deceased No.2 at 1.30 p.m. on 26.10.2000, during which time he found various symptoms as noted by him in Ex.P.34, the post-mortem report. The symptoms noted therein are as hereunder:- "Injuries:- 1) A gaping oblique cut injury present on left side of upper part of neck measuring 15 cm x 5 cm x bone deep. All the muscles blood vessels are found cut, cut fracture of C3- C4 vertebrae present. 2) A gaping cut injury present on lower 1/rd of right forearm measuring 8 cm x 3 cm x bone deep with cut fracture of radius and ulna present. 3) A gaping cut injury present on back of right hand 5 cm x 1 cm x 1/2 cm. 4) A gaping cut injury present on right index finger 3 x 1 x 1/2 cm. 5) A gaping cut injury present on left index finger 2 cm x 1 cm x 1/2 cm. 6) An abrasion over left big toe 3 cm x 1 cm. The above injuries are ante mortem in nature. Other findings:- Plueral peritoneal cavities empty. Heart empty, Lungs, Liver, Spleen, Kidneys, C/s. Pale, Stomach empty. No smell Mucosa, Pale intestines normal. Brain C/s. pale." The Doctor opined that death would have occurred 6 to 18 hours prior to autopsy as a result of shock and haemorrhage due to multiple cut injuries. He had also deposed that the weapons shown to him in court could have caused the injuries found on the dead body. Injury No.1 found on the dead body of deceased Nos.1 and 2 are on vital parts of the human body and the rest of the injuries are on the non-vital parts. Injuries on non-vital parts are not sufficient to cause death. 7. P.W.16 arrested A.1, A.5, A.6 in the bus stop in the bypass road of Thiruvakaudanur in the presence of P.W.7 and 8 and examined them. At that time A.1 gave a voluntary confession statement, the admissible portion of which is Ex.P.2, pursuant to which M.Os.1, 24, 2, 3, 5, 4, 25 and 6 came to be recovered under Ex.P.3 attested by the same witnesses. At 5.30 p.m. on the same day in Five Roads Junction at Salem P.W.16 arrested A.3, A.4, A.7 and A.9 in the presence of the same witnesses and examined them. At that time A.3 gave a voluntary confession statement, the admissible portion of which is Ex.P.4., pursuant to which M.Os.7, 18, 26, 27, 28, 9, 8, 29, 30 and 31 came to be recovered under Ex.P.5 attested by the same witnesses. Under Ex.P.6, M.O.10 came to be recovered at 8.00 p.m. on the same day, pursuant to the same admissible portion of the confession statement of A.3. The arrested accused and the case properties were brought to the police station. The accused were sent for judicial remand https://hcservices.ecourts.gov.in/hcservices/ and the case properties were sent to the court. P.W.16 was searching for the remaining accused. On prior information P.W.16 arrested A.10, A.14, A.11 and A.13 in the presence of P.Ws.7 and 8 and examined them. At that time, A.10 gave a voluntary confession statement, the admissible portion of which is Ex.P.40, pursuant to which M.Os.30, 32, 33, 16, 17, 34, 35, 36, 37 and 38 came to be recovered under Ex.P.41. 8. P.W.16 continued his investigation by examining further witnesses and recording their statements. On 31.10.2000 P.W.16 gave a requisition to the court to subject the case properties to the laboratory for examination. On 4.11.2000 P.W.16 came to know that A.2 had already surrendered before Judicial Magistrate No.II, Dharmapuri on 30.10.2000 and A.8 had surrendered on 31.10.2000 before Judicial Magistrate No.I, Sangagiri. On 7.11.2000 P.W.16 gave an application Ex.P.42 to the court to take A.2 and A.8 in to police custody. On that, the Court passed an order on 7.11.2000/Ex.P.43 giving police custody of A.2 and A.8 and accordingly he took them into police custody. On 8.11.2000 when he examined A.2 in police custody in the presence of P.Ws.7 and 8, he confessed and the admissible portion of his confession statement is Ex.P.7. Pursuant to Ex.P.7, M.Os.11 and 12 came to be recovered under Ex.P.8. A.8 also gave a voluntary confession statement when he was examined in police custody in the presence of P.W.7 and P.W.8. Ex.P.44 is the admissible portion of the confession statement of A.8, pursuant to which M.O.38 came to be recovered under Ex.P.45. A2 and A.8 were re- surrendered in court for continuation of their judicial remand. 9. P.W.2 is another eye witness, whose evidence regarding the occurrence proper namely, causing injury to P.W.1 and attacking deceased Nos.1 and 2 is on the same lines as spoken to by P.W.1. So is the evidence of P.W.3. P.W.5's evidence is also more or less on the same lines as spoken to by P.Ws.1,2 and 3. P.W.9's evidence is also on the same lines. As noted earlier, P.W.4 examined as an eye witness to the occurrence turned hostile. P.W.6 is the wife of Punk Kanagaraj/deceased No.1. She was examined to prove that she went to the hospital on coming to know about the crime. But however, since she did not support the version of the prosecution case, she was treated as hostile. P.W.7 is the Village Administrative Officer of Nayakkanpatti. He witnessed the arrest of various accused; their examination; recording their confession statements leading to the recovery; examination of A.2 and A.8 when they were in police custody and recording their confession statements leading to the recovery. P.W.8, the Village Administrative Officer of Zahir Ammalapalayam, who was examined for the same purpose turned hostile. 10. P.W.10 was the duty Medical Officer in the Government Head Quarters Hospital at Salem. At 3.50 a.m. on 26.10.2000, Kanagaraj - P.W.1 appeared before him along with his friend Srinivasan. P.W.10 examined Kanagaraj and at that time Kanagaraj told him that "unknown" assailants attacked him with sticks and unidentifiable other weapons at about 1.30 a.m. near Thiagaraja Polytechnic. P.W.10 found him to be conscious. On him P.W.10 found various symptoms as noted by him in Ex.P.17, the Accident https://hcservices.ecourts.gov.in/hcservices/ Register. The symptoms noted therein are as hereunder:- "Injuries:- 1) Incised wound 3 cm x 1/2 cm x 1/2 cm over right axilla. 2) Incised wound 17 cm x 1 cm x 1/2 cm over medial aspect of left arm. 3) Incised wound 4 cm x 1/2 cm x 1/2 cm over left elbow. 4) Incised wound 4 cm x 1/2 cm x 1/2 cm over lateral aspect of left arm. 5) Incised wound 6 cm x 1 1/2 cm x 1/2 cm over left forearm." P.W.10 admitted P.W.1 in the hospital and issued Ex.P.15 the intimation to the police. Ex.P.18 is the Radiologists report, which shows that at the lower end of left elbow, there was a chip fracture. At 1.55 a.m. on 26.10.2000 i.e. before examining P.W.1, Sundaravelan, since deceased (deceased No.2) was admitted in the hospital by P.W.10 . Ex.P.16 is the intimation given by P.W.10 to the police on the medico legal case of Sundaravelan (deceased No.2). P.W.11 is the Magisterial Clerk, who speaks about the receipt of the case properties along with the requisition given by the investigating officer to subject the same for chemical examination; sending the case properties to the laboratory as an enclosure to Court's letter and receipt of Chemical Examiner's Report and Serologists Report. P.W.16 was continuing his investigation by examining further witnesses and recording their statements. P.W.16 came to know that A.12 had surrendered in court at 9.00 a.m. on 22.11.2000. Accordingly, he took A.12 into police custody and examined him in the presence of P.W.7 and P.W.8 and at that time A.12 gave a voluntary confession statement, the admissible portion of which is Ex.P.9. Pursuant to Ex.P.9, M.O.13 came to be recovered under Ex.P.10 attested by the same witnesses. Ex.P.48 is the certificate given by the Electricity Board to show that there was no power disruption at the time of occurrence in the crime scene. M.Os.40 and 41 are the shirt and blood stained trousers of P.W.1 recovered by P.W.16 under Ex.P.49. After completing the investigation, P.W.16 filed the final report in court against the accused on 31.12.2000 for the offences referred to earlier. 11. When the accused were questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against each one of them, they totally denied their involvement. As noted in the beginning, neither oral nor documentary evidence was brought before court at their instance. Mr.V.Gopinath, learned Senior Counsel arguing for two of the convicted accused would contend that though the prosecution had examined persons as eye witnesses to the crime, yet, if this court finds any suspicion in the registering of the complaint - which is the foundation for the prosecution on which alone the entire credibility of the prosecution stands, then the evidence of the eye witnesses would fall to the ground. Learned Senior Counsel elaborated https://hcservices.ecourts.gov.in/hcservices/ his argument by taking us through the corrections made in Ex.P.1, the complaint and P.36, the printed First Information Report. It is his further contention that long before Ex.P.1 had come to be registered there was another written complaint about the incident given by P.W.2 and that has been suppressed. Therefore there is a serious doubt as to whether the prosecution is holding back the very genesis of the prosecution case. Learned Senior Counsel then contended that the evidence of P.Ws.1 to 3, 5 and 9 by the very nature appears to be so very artificial which this court can easily reject. There was no rhyme or reason for these witnesses to be present at a totally different place from their respective houses at such an odd hour that too, every one of the witnesses examined to prove the crime stating that all of them had gone to have a shave in the same Saloon. To P.W.10, learned Senior Counsel would contend, P.W.1 told that his assailants are "unknown". Likewise the assailants of Sundaravelan (deceased No.2) are also stated to be "unknown" assailants to P.W.10. Therefore the cumulative effect of such shortcomings in the prosecution case would definitely enable this court to consider acquitting all the accused. When there is no dispute that there is bitter enmity between the two groups and if the foundation of the prosecution is found to be a fabricated one or suspected to be a fabricated one, then it would not be possible to find out where exactly lies the truth. Mr.S.Ashok Kumar, learned Senior Counsel appearing for one of the convicted accused also advanced arguments, which is more or less on the same lines as referred to above. According to the learned Senior Counsel, from the mere fact that even at 3.55 a.m. when P.W.1 was examined by P.W.10, the information was that the assailants are "unknown", it is clear that the prosecution had no clue at all till that time about the actual culprits. If this conclusion is possible on the evidence available, then the corrections found in Ex.P.1 and Ex.P.36 would definitely lend enormous support to the defence case that the prosecution version is a concocted one. In support of his arguments that once the foundation of the prosecution is doubted, then the entire edifice of the prosecution case would collapse, learned Senior Counsel relied upon the judgment of the Supreme Court reported in AIR 1980 supreme Court 638 (MARUDANAL AUGUSTI v. STATE OF KERALA). In answering these points, learned Additional Public Prosecutor would primarily contend that the correction found in Ex.P.1 is so very obvious that no court can miss taking note of it. If the Police Inspector wants to make a correction and if he wants to fabricate a case, then he would have taken enough care to see that the correction is made in such a way that it goes unnoticed. Therefore from the mere correction in Ex.P.1, this court may not be in a position to throw out the entire prosecution case since the contents of Ex.P.1 are consistently spoken to by P.Ws.1 to 3, 5 and 9 and therefore the correction may not have any role to play at all in deciding the prosecution case. Learned Additional Public Prosecutor would submit, in the context of various recoveries made at the instance of the accused, that in those recovered objects blood group of either deceased No.1 or deceased No.2 is found. As far as the points put forward before this court that there was an earlier complaint prior to Ex.P.1, learned Additional Public Prosecutor argued that a reading of the evidence of P.Ws.2 and 9 together, it is possible to hold that the said statement of https://hcservices.ecourts.gov.in/hcservices/ P.W.2 was only in the morning of 27.10.2000 and definitely not prior to recording of Ex.P.1. According to the learned Additional Public Prosecutor, P.W.2 had every reason to go in search of his brother Sundaravelan (deceased No.2) since it was a festival day namely, Deepavali and there is nothing wrong in Sundaravelan's mother sending P.W.2 to fetch the other son to be at home to celebrate Deepavali. The evidence of P.Ws.1 to 3, 5 and 9, learned Additional Public Prosecutor would argue, is full of confidence and therefore there are no compelling reasons to reject their evidence. 12. In the light of the arguments advanced by the learned counsel on either side, we went through the entire materials. Since the main attack by the defence is on the genuineness of Ex.P.1, we felt that it is desirable, we examine first the genuineness of Ex.P.1. It is needless to state that Ex.P.1/the complaint is the foundation for any prosecution case and when the prosecution case is before court, its truth or otherwise would have to be tested only in the light of the said complaint. Courts have been repeatedly holding that there cannot be any exception to the above said position. According to the prosecution, the occurrence took place at about 1.30 a.m. in the morning of 26.10.2000, i.e. on the intervening night of 25.10./26.10.2000. P.W.10 is the Doctor, who examined Sundaravelan, one of the deceased in this case at 1.55 a.m. on 26.10.2000. He then sends Ex.P.16 the intimation to the police. P.W.10 during the relevant time was working in the Government Mohan Kumaramangalam Medical College Hospital. At