Bail Slip The Accused viz., Flex @ Felix John S/o. Thanislas was directed to be released on bail as per the order of this Court dated 9.12.2004 and made in Crl.M.P.No.11438 of 2004 in Crl.A.No.449 of 2004 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.08.2006 CORAM THE HONOURABLE MR. JUSTICE R.BALASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE S.MANIKUMAR CRL. APPEAL NO. 449 OF 2004 1) Balu @ Dhanapal 2) Felx @ Felix John .. Appellants/ Accused 1 and 2 - Vs - State by Deputy Superintendent of Police Bhavani. .. Respondent / Complainant Criminal Appeal filed u/s. 374 (2) Cr.P.C. against the conviction and sentence passed by the learned Principal Sessions Judge, Erode, in S.C. No.142 of 2003 dated 3.3.04 as stated therein. For Appellants : Mr. V.K.Muthusamy, SC, for Mr. M.M.Sundaresh For Respondent : Mr. N.R.Elango, APP JUDGMENT (JUDGMENT OF THE COURT WAS DELIVERED BY R.BALASUBRAMANIAN, J.) Appellants, two in number, were tried in S.C. No.142/03 on the file of the Principal Court of Sessions, Erode, under Section 448 IPC (A-1 & A-2); Section 307 IPC read with Section 3 (2) (v) of the Scheduled Casts & Scheduled Tribe (Prevention of Atrocities) Act (A-1); Section 307 read with 34 IPC read with Section 3 (2) (v) of the Scheduled Casts & Scheduled Tribe (Prevention of Atrocities) Act (A-2); Section 302 IPC read with Section 3 (2) (v) of the Scheduled Casts & Scheduled Tribe (Prevention of Atrocities) Act (A-1); Section 302 read with 34 IPC read with Section 3 (2) (v) of the Scheduled Casts & Scheduled Tribe (Prevention of Atrocities) Act (A-2) and Section 506 (II) IPC (A-1). At the end of the trial, the learned trial Judge found the accused guilty of all the offences referred to above and convicted them for the gravest https://hcservices.ecourts.gov.in/hcservices/ offence to undergo imprisonment for life together with a fine carrying a default sentence. We are not referring to the other sentences given to the convicted accused since it is lesser than the sentence given for the gravest offence. Hence, the appellants are before this Court in this appeal. Heard Mr.V.K.Muthusamy, learned senior counsel appearing for the appellants and Mr.N.R.Elango, learned Addl. Public Prosecutor appearing for the State. 2. The prosecution case is that on the intervening night of 10.3.03 and 11.3.03 around 1.00 a.m., the accused trespassed into the house of P.W.1 and her husband and besides making an attempt on the life of P.W.1, committed the murder of P.W.1's husband and in the course of the same transaction, criminally intimidated the witnesses, who came running to prevent any further onslaught and, therefore, punishable for the offence referred to earlier. The prosecution examined P.W.s 1 to 20 besides marking Exs.P-1 to P-32 and M.O.s 1 to 19. The defence did not let in any oral or documentary evidence. 3. P.W.1 is an injured eye witness and she is the wife of the deceased. She belongs to a downtrodden community. A-1 belongs to Hindu – Gounder community and A-2 belongs to Nadar community. A- 1's father has garden-lands. That garden-land is adjoining the garden-land of P.W.1. Over a cart-track, there was a dispute between the two families since the last five years. Two years prior to the occurrence day, the deceased and P.W.2 were filling up sand in the cart-track. On seeing that, A-1's father and A-1's elder brother assaulted P.W.1's husband and P.W.2 leading to a complaint in the police station at their instance. One year prior to the occurrence, in the same cart-track, A-1's father and A-1's elder brother, with a view to prevent the prosecution party from using the cart-track, stacked stones in the said cart-track. P.W.2, his wife and another relative of P.W.1 questioned the accused party as to why they are obstructing the cart-track. On that occasion also, A-1's father and A-1's elder brother assaulted P.W.2 and others calling them by their community name. On that occurrence also a prosecution under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act had been lodged. Therefore, both the families are at loggerheads. At about 4.00 p.m. on 10.3.03, when P.W.1 and her husband (since deceased) were working in their garden-land, A-1 and A-2 came there. At that time A-1 demanded that P.W.1 and her husband should withdraw the case given against his father and his brother. They also threatened that if the case is not withdrawn, then something different would happen to him. Then they left. P.W.1 and her husband returned home at 7.00 p.m. and they told P.W.s 2 and 9 about the incident at 4.00 p.m. in the garden-land. P.W.s 2 and 9 advised them to keep quiet for that night and they could talk it over on the next day morning. Accordingly, after taking dinner, P.W.1 and her husband took to their bed. The electric lamp was burning. Around 1.00 a.m., she heard dogs barking. She woke up and at that time she saw both the accused standing by the side of the cot in which her husband was sleeping. A-1 was armed with a suri kathi and A-2 had a stick in his hand. On seeing P.W.1 waking up, A-1 addressing her by her caste name, questioned her as to why would she not withdraw https://hcservices.ecourts.gov.in/hcservices/ the case as requested and then saying so, he stabbed her on her right axilla. At that time, A-2 aimed a blow on her with the stick. As by that time she fell down, she did not receive any injury on that attempt. On hearing the noise, her husband (deceased) woke up. A-1 calling him by his caste name, threatened him as to why he should not withdraw the case and so saying stabbed him on his left side chest with the knife he had. P.W.1 shouted that her husband is being killed. On hearing that noise, P.W.s 2, 3, 9 and others came running. All those persons have their residence close to the garden-land of P.W.1. All those persons also pleaded with the accused not to stab. On the witnesses saying so, A-1 criminally intimidated them by saying that if they dare to near him, they would also meet the same fate. At that time, A-2 by turning her husband to the ground on his face, held him tightly enabling A-1 to stab on her husband's back (shoulder); flank; hip and other places. Then the accused made good their escape. M.O.1 is the said suri kathi used by A-1 and M.O.2 is the stick in the hands of A-2. Then P.W.2 by making use of the phone from a nearby house, informed P.W.11, who reached the crime scene at 5.00 a.m. in his car. P.W.11 transported P.W.1 and her husband in his car in the company of P.W.s 2 and 9 to the Government Hospital, Andhiyur, which they reached at 6.15 a.m. Initial treatment was given to both of them at Andhiyur Government Hospital and going by the nature of the injury, the duty doctor advised them to be taken to the Government Headquarters Hospital at Erode. On they reaching the Government Headquarters Hospital at Erode, at 10.00 a.m., P.W.1 alone was admitted as an in-patient in the said hospital and her husband, on medical advise, was transferred to the Government Medical College and Hospital, Coimbatore. At 10.00 a.m. on that day, when P.W.1 was in the Government Hospital, Erode, the Sub- Inspector of Police from the investigating police station reached the hospital and examined her. She gave the details to him, which he reduced into writing. Then the Sub-Inspector of Police read over the complaint to her and after that she put her left thumb impression in it. Ex.P-1 is the said complaint. At 8.00 p.m. on that day, the Deputy Superintendent of Police examined her. At that time he recovered M.O.s 3 to 5 from her. She came to know that on the next day morning her husband died at the Coimbatore Medical College Hospital. Two months after the occurrence she was taken to the Central Prison, Coimbatore, where she identified A-2 in the test identification parade conducted by the Judicial Magistrate. 4. P.W.6 is the duty doctor in the Government Hospital, Andhiyur. At 6.15 a.m. on 11.3.03, P.W.11 brought injured Murugan for injuries shown to have been sustained by him at 1.00 a.m. on that morning by the use of a suri kathi at the hands of two known persons. On Murugan, since deceased, the doctor found various symptoms as noted by him in Ex.P-7, the accident register. The symptoms noted by him are as hereunder :- "1) A widened laceration of muscle depth 10 x 10 cm on left side of chest near the nipple. 2) A linear abrasion of 11 x 1 cm of muscle depth on back of chest. 3) A laceration of 6 x 5 of muscle depth over the back of abdomen. https://hcservices.ecourts.gov.in/hcservices/ 4) A laceration of 6 x 1 of muscle depth on back of right scapula. 5) A stabbed wound of 5 x 3 x muscle depth on the back of waist. 6) A stabbed wound of 15 x 6 cm of muscle depth on right buttock. 7) A laceration of 3 x 1 x 1 cm over left elbow. Patient referred to Erode G.H." On the same day he also examined P.W.1 for injuries shown to have been sustained by her at 1.00 a.m. on that morning in her house at the hands of two known persons by the use of suri kathi. On her the doctor found various symptoms as noted by him in Ex.P-8, the wound certificate. The symptoms noted by him are as hereunder :- "A laceration of 10 x 5 cm of muscle depth over right side of chest below the left scapula on the back. Patient referred to Erode G.H. - D.O.D. 7.4.2003 X-ray right side chest PA view I.D. No.45386- 11.3.2003 Fracture of 8th rib present. D.O. X-ray – 2196. From the above X-ray report I am of the opinion that the injuries are grievous in nature." Ex.P-28 is the intimation sent by him to the Sub-Inspector of Police, Andhiyur on the medico-legal case of Murugan, since deceased and P.W.1. 5. P.W.19 is the Sub-Inspector of Police in Andhiyur police station. On receipt of information from the Government Hospital, Andhiyur, regarding the medico-legal case, he reached the Government Hospital, Andhiyur at 7.20 a.m. where he came to know that all the injured have been transferred to the Government Hospital, Erode. Ex.P-28 is the intimation received from the hospital. From the Government Hospital, Andhiyur, he reached the Government Hospital, Erode at 9.30 a.m. On enquiry he came to know that Murugan, since deceased, has already been transferred to the Coimbatore Medical College Hospital. However, he found P.W.1 as an in-patient in the hospital and by examining her reduced her statement into writing. Ex.P-1 is the said complaint given by P.W.1 in which he got her thumb impression after reading it over to her. Then he came back to the police station at 12.00 noon and registered the said complaint in crime No.92/03 under Sections 452, 307, 342, 506 (II) IPC and Section 3 (2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Ex.P-29 is the printed first information report prepared by him. He sent the express records to court as well as to higher officials. 6. P.W.20 is the Deputy Superintendent of Police. At 12.45 p.m. on 11.3.03 he received the express records and commenced investigation. At 2.15 p.m. on the same day, he reached the crime scene where in the presence of P.W.12 and another, prepared the observation mahazar, Ex.P-14. Ex.P-30 is the rough sketch prepared by him. From the scene of occurrence, he recovered M.O.s 1 and 8 to 11 under Ex.P-15 attested by the same witnesses. He examined P.W.s 2, 3 and 9 by recording their statements. Then he reached the Government Hospital, Erode at 8.00 p.m. and by examining P.W.1 recorded her statement. Then, in the presence of P.W.12 and https://hcservices.ecourts.gov.in/hcservices/ another he recovered M.O.3, bloodstained jacket, M.O.4, bloodstained saree and M.O.5, bloodstained inskirt under Ex.P-16. He came to know that at 2.05 p.m. on that day Murugan breathed his last in the Government Hospital, Coimbatore, which information he received at 5.30 p.m. on that day. Accordingly, he altered the section of offence to one under Section 302 IPC and prepared Ex.P- 31, the altered express first information report. He sent the express records to the court as well as to the higher officials. From 8.00 a.m. till 11.00 a.m. on 12.3.03 he conducted inquest over the dead body in the mortuary in the Government Medical College Hospital, Coimbatore in the presence of panchayatadars and witnesses. Ex.P-32 is the inquest report. During inquest he examined P.W.s 2, 9 and others by recording their statements. He again examined P.W.1 in the Government Hospital, Erode and recorded her statement. He examined P.W.11 and others on 13.3.03 and recorded their statements. 7. P.W.13 is the photographer, who took photographs of the crime scene from three different angles. M.O. 12 series and M.O.13 series are the photographs and negatives. P.W.12 witnessed the preparation of the observation mahazar, Ex.P-14 and recovery of M.O.s 7 to 11 under Ex.P-15. He also witnessed the recovery of M.O.s 3 to 5 under Ex.P-16. P.W.20 gave a requisition to the jurisdiction Tahsildar to issue community certificates for the accused, the deceased and P.W.1. P.W.8 is the Tahsildar, who had issued Exs.P-10 and P-11, the community certificates to P.W.1 and the deceased. He also issued community certificates, Exs.P-12 and P-13 for A-1 and A-2. P.W.20 arrested A-1 at 11.00 a.m. on 20.3.03 in the presence of P.W.15 and another. On examination, A-1 gave a voluntary confession statement, the admissible portion of which is Ex.P-17. Pursuant to Ex.P-17, M.O.s 1 and 14 to 16 came to be recovered under Ex.P-18. P.W.15 is the Village Administrative Officer, who had deposed about the arrest of A-1; his examination; recording his confession statement, the admissible portion of which is Ex.P-17 pursuant to which M.O.s 1 and 14 to 16 came to be recovered under Ex.P-18. He also witnessed the recovery of a TVS- Moped under Ex.P-19 and M.O.17 is the said motorcycle. P.W.20 brought the accused and the recovered incriminating objects to the police station. The arrested first accused (A-1) was sent for judicial remand and the case properties were sent to the court. At 3.00 p.m. on 31.3.03 P.W.20 arrested A-2 in the presence of P.W.15 and another and examined him. A-2 also gave a voluntary confession statement, the admissible portion of which is Ex.P-20, pursuant to which M.O.2 and M.O.18 came to be recovered under Ex.P-21 attested by the same witnesses. P.W.15 had given evidence on the above aspects. P.W.20 then came back to the police station with the arrested accused and the recovered objects and he sent A-2 for judicial remand and the case properties to the court. He gave a requisition to the court to subject the case properties for chemical examination. P.W.18 is the Magisterial clerk, who speaks about the receipt of the case properties along with Ex.P-24, requisition given by the investigating officer to subject the case properties for chemical examination. As an enclosure to court's letter, Ex.P-25, the case properties were sent to the laboratory. Exs.P-26 and P-27 are the chemical examiner's report and serologist's report. https://hcservices.ecourts.gov.in/hcservices/ 8. P.W.4 is the Assistant Professor of Forensic Medicine in the Coimbatore Government Medical College Hospital. On receipt of Ex.P-2, requisition to conduct post-mortem on the dead body, he commenced post-mortem at 12.15 p.m. On 12.3.03. During post-mortem he found various symptoms as noted by him under Ex.P-4, the post- mortem report. The symptoms noted are as hereunder :- "The following ante mortem injuries are seen :- 1) Vertically oblique incised wound of 11 cms x 1.5 cms x subcutaneous deep involving upper two-third to middle two-third of front of left chest. The lower end of the wound is 10 cms away from the midline. The upper sharp end of the wound is 5 cms away from the left anterior axilla. 2) Vertically oblique stab injury of 3.5 cms x 1 cm x muscle deep seen over posterior aspect of upper part of right forearm 2 cms below the back of right elbow joint. 3) Oblique incised wound of 5 cms x 2 cms x muscle deep seen over middle of left scapular region. The upper sharp end is 13 cms from the left posterior axilla. The lower blunt end is 8 cms away from the midline. 4) Transversely oblique incised wound of 16 cms x 0.75-0.5 x subcutaneous deep involving 1 cm below injury No.3. The lower end is on the midline. The upper end is 8 cms away from the left posterior axilla. 5) Oblique stab injury of 5 cms x 1.5 cms x thoracic cavity deep seen over left back of middle chest. The lower margin 6 cms away from the midline and upper margin 4 cms below lower end of the injury No.4. On dissection the wound passes obliquely downwards through the 6th intercostal space and caused a stab of 3 cms x 1 cm for a depth of 4 cms in the posterior aspect of lower lobe of left lung. Total depth of the wound tract is 7 cms. 6) Oblique stab injury of 4 cms x 1 cm x thoracic cavity deep seen over the back of left lower chest. The upper end of the wound is 1.2 cms away from the midline. The lower end of the wound is 12 cms below the lower end of the wound No.5. On dissection the wound passes downwards obliquely and caused a stab of 1.5 cms x 1 cm for a depth of 1.5 cms in the posterior aspect of middle part of the spleen. Total depth of the wound tract is 6 cms. 7) Oblique stab wound of 12 cms x 3 cms x muscle deep seen over the right lower gluteal region. The lower sharp end is 19 cms below right anterior iliac spine. The upper blunt end is 13 cms away from the mid part of sacral region. Other Findings :- - Pleural and peritoneal cavities empty. - Lungs cut section pale. - Heart : Right side chambers contains clotted https://hcservices.ecourts.gov.in/hcservices/ blood, Left side chambers empth – Coronaries patent. - Hyoid Bone intact. - Stomach contains 50 ml of mucosal fluid. No specific smell. Mucosa pale. - Small intestine contains 20 ml of bile stained fluid. No specific smell. Mucosa pale. - Liver, spleen, kidneys and brain cut section pale. - Urinary bladder empty. Viscera preserved for chemical analysis. Sample of blood preserved." Ex.P-3 is the viscera report, which shows neither alcohol nor poison was detected in the viscera. Ex.P-5 is his final opinion, which shows that death is due to external injury Nos. 5 and 6 and its complication. According to him, a weapon like M.O.1 could have caused those injuries and injuries 5 and 6 with their corresponding internal injuries would cause death or sufficient to cause death in the ordinary course of events. 9. P.W.17, the police constable attached to the investigating police station would state that he carried the requisition given by the Deputy Superintendent of Police (P.W.20) to the hospital for conducting post-mortem on the dead-body. After post-mortem he removed M.O.19 from the dead body and handed over the same to the investigating officer along with his special report, Ex.P-23. P.W.16 is the police constable in the investigating police station, who received the death intimation, Ex.P-22 from the police outpost in the Government Medical College Hospital, Coimbatore. P.W.14, examined to prove that he sold the knife to A-1, turned hostile. P.W.2 is the elder brother of the deceased. Apart from giving details about the property dispute between the two groups, as far as the occurrence proper is concerned, he would state that on the night of 10.3.03, after dinner, he went to sleep and at about 1.00 a.m. in the following morning he heard dogs barking and shouts from his brother's house that somebody is attempting on the life. According to him, his brother's house is fifteen feet north of his house. On hearing the noise, he along with his wife, P.W.s 3, 9 and others ran towards his younger brother's house where they saw both the accused standing in the house of his younger brother. A-1 was armed with a knife while A-2 was armed with a stick. On reaching there, he found P.W.1 having an injury on her right side axilla and a stab injury on the left side chest of his brother, since deceased. He pleaded with the accused not to stab any further. A-1, thereafter, criminally intimidated the witnesses that if they dare near him, he would not spare them. At that time, A-2 by turning his younger brother on his face, held him tightly to the ground by using the stick he had in his hand and A-1, with the knife in his hand, stabbed on his brother's left back side shoulder; hip and buttocks. Then the accused made good their escape. M.O.1 is the weapon in the hands of A-1 and M.O.2 is the stick in the hands of A-2. At 3.00 a.m. in the morning, by making use of a telephone in a nearby house, he informed P.W.11. During the occurrence time electric lights were burning in the house of the deceased and in that light he saw the crime. P.W.11 brought a car in which he along with P.W.9 and others took P.W.1 and Murugan, https://hcservices.ecourts.gov.in/hcservices/ since deceased to the Government Hospital, Andhiyur. They reached the hospital at 6.00 a.m. from where they went to the Government Hospital, Erode. P.W.1 was admitted as an in-patient in the hospital and Murugan, since deceased, was transferred to the Government Hospital, Coimbatore and he accompanied Murugan to Coimbatore. At 2.00 p.m. on that day in the hospital at Coimbatore, Murugan died. P.W.2 was examined by the Deputy Superintendent of Police on that evening. He was also examined during inquest. Then two days later he identified A-2 in the test identification parade. P.W.3 is another eye witness to the crime. He also gave details of the pending land dispute between the parties. According to him, he went to his bed in his house at 9.00 p.m. on 10.30.03. His evidence as to what happened after he woke up suddenly at 1.00 a.m. after hearing the dogs barking is on the same lines as spoken to by P.W.2. 10. P.W.20 gave a requisition to the competent court on 7.4.03 to conduct test identification parade to identify A-2. On 19.5.03 test identification parade was conducted. P.W.5 is the District Munsif-cum-Judicial Magistrate, Perundurai. Pursuant to the order of the Chief Judicial Magistrate, Erode, he passed a consequential order on 19.5.03 to conduct test identification parade in the Central Prison at Coimbatore. At 4.15 p.m. on 19.5.03 he reached the Central Prison at Coimbatore and made all the preliminary enquiries. Then after observing all the legal formalities, he conducted the test identification parade. During test identification parade, P.W.1 identified A-2 correctly twice. P.W.2 identified A-2 correctly on all the three occasions. Rathinal, wife of P.W.2 could not identify A-2 even once. P.W.9 identified A-2 correctly on all the three occasions. P.W.3 identified A-2 correctly on all the three occasions. However, P.W.3's brother, Samiappan, could not identify A-2 even once. Kuppusami, another witness (not examined in court) could not identify A-2 correctly even once. Ex.P-6 is his proceedings relating to the conduct of the test identification parade. 11. P.W.7 is the Radiologist in the Government Hospital, Erode, whose evidence show that P.W.1 suffered a grievous injury. M.O.6 is the X-ray and Ex.P-9 is his certificate. P.W.9 is the nephew of the deceased. He would also state that when he was fast asleep in his house on the night of 10.3.03, he heard dogs barking in the early hours of the following morning and on