BAIL SLIP The Appellants in Crl.A.No.195 of 2003, viz.1.Kanagaraj, 2.Arumugam, 3.Kathirvel, 4.Ahmed Sheriff and 5.Periyasamy and the appellants in Crl.A.No.165/2003 viz.1. Peliyan, 2.Pasuvaraj, 3.Jevarayan, 4.Murugan, 5.Angapparasari, 6.Arappuli, 7.Kalachithan, were released on bail as per order of this Court dated 04.03.2003, and made in M.P.No.1068 of 2003 in Crl.A.No.195/2003 and in M.P.No.898/2003 Crl.A.No.165/2003 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 12.8.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.A.Nos.165 and 195 of 2003 1.Peliyan 2.Pasuvaraj 3.Jevarayan 4.Murugan 5.Angapparasari 6.Arappuli 7.Kalachithan .. Appellants in Crl.A.No.165/2003 / Accused 6 to 10, 12 & 13 1.Kanakaraj 2.Arumugam 3.Kathirvel 4.Ahmed Sheriff 5.Periyasamy .. Appellants in Crl.A.No.195/2003 / Accused 1 to 5 Vs. State rep. by the Inspector of Police Burgur Police Station Erode District. .. Respondent in both appeals Complainant https://hcservices.ecourts.gov.in/hcservices/ Prayer:- Criminal Appeals are filed under Section 374 of Criminal Procedure Code against the judgment dated 4.12.2002 made in S.C.No.112 of 2001 on the file of the Additional District and Sessions Court (Fast Track Court No.IV, Erode) at Bhavani. For Appellants : Mr.N.Manokaran in both the cases For Respondent : Mr.C.Emalias, Govt. Advocate (Crl.Side) in both the cases COMMON JUDGMENT The appellants are the accused A1 to A5 and A6 to A10, A12 and A13. Two appeals are filed by two sets of accused respectively against their conviction and sentence for the offences under Sections 147, 148 and 307 r/w 149 IPC and section 25(1)(b)(a) of Indian Arms Act in respect of A1 to A5, under Sections 147, 148 and 307 IPC and Section 25(1)(b)(a) of Indian Arms Act in respect of A6 to 9, Sections 147, 148 307 r/w 149 and Section 25(1)(b)(a) of Indian Arms Act in respect of A10, under Sections 147, 148, 307 r/w 149 IPC and Section 5 of Explosive Substance Act in respect of A12 and A13. 2.The case of the prosecution was that Special Task Force was formed for the purpose of arresting forest brigade Veerappan and his associates and PW1 was during 1993, the Superintendent of Special Task Force. PW1, while he was on guard duty on 30.8.1993 received an information as if supply of arms and ammunitions, including explosives and country made bombs are made at Kinnathukuzhipatty in Burgur reserve forest area. On receiving such information, PW1 along with his police force, having four teams headed by PW1, Sanjay Arora, PW11 Hussain, MohanSingh and Shanmugarajan left the camp office at Thattakkarai in police jeep and reached Unsakanavai, where they parked their vehicle and thereafter, proceeded towards Kinnathukuzhi by walk and on their way, they had to pass through Unsakanavai and Sippanettipatty and Varattukuttai and near Varattukuttai, they happened to notice human activities and PW1 instructed them to capture them alive and when they were moving further, they happened to see at the distance of 50 m. gang of persons few bearing rifles and few cleaning and repairing rifles and one of the police personnel, at the instance of PW1, after having duly warned them, commanded them to surrender. But, they not only failed to do so, but also started firing at Special Task Force by using muzzle loading guns and the members of Special Task Force returned the firing and thereafter 16 persons surrendered and immediately on their https://hcservices.ecourts.gov.in/hcservices/ surrender, police personnel surrounded them and stood on guard and PW1 seized weapons and bullots, empty cartridges, country made bombs, different types of explosives, equipment which are used for repairing weapons and used for filling up of cartridges, bullots fitted belts all totally 87 under Ex.P1 list from the accused in the presence of PW11 and Inspector MohanSingh. PW1 also on the basis of the statement given by A1 seized Rs.1 lakh which was kept buried beneath a rock near Sippanettipatti, which is according to A1, given to him for purchase of latest AK47 type rifle for the use of Veerappan and the same is seized under Ex.P2 seizure mahazar and thereafter, PW1 brought all the accused to Burgur police station, where he lodged Ex.P3 complaint and handed over along with the arrested accused, MOs seized under Exs.P1 and P2 to the Sub Inspector of Police in-charge of police station in the presence of PW2, then Superintendent of Police in Burgur Police Station. Ex.P3 complaint was registered as Ex.P29 FIR and the FIR was sent to TADA court and 16 accused also on being questioned, gave independent confession statement, which are recorded as Exs.P4 to 19 by PW2. Thereafter, further investigation was entrusted to PW19 Inspector of police, Burgur Police Station, who in the course of his investigation sent all the accused and properties to the concerned Chief Judicial Magistrate court for remand and PW19 obtained statement from all the police officials and on the next day, he had been to the place of occurrence along with PW11 Inspector of Police, Special Task Force and PW10-VAO Marasamy and prepared Ex.P20 Observation Mahazar and Ex.P28 rough sketch and investigation was thereafter entrusted to PW20. In the course of further investigation, PW20 sent requisition to the concerned court for sending the explosive substances for chemical analysis Ballestic Expert report and the reports are also received and after completing the investigation, due sanction was obtained from the District collector for proceedings against the accused and final report is filed against the accused for the offences referred to above, for their being members of unlawful assembly with a common object of attacking special task force and for their being unlawful possession of deadly weapons, guns, rifles, country made bombs and explosive substance without license and having indulged in act of rioting and for their having attempted to kill PW1 and other members of STF. The case was taken up on file as PRC.No.18/1999 and the same was thereafter forwarded to Sessions Court, Erode, where it was taken on file as SC.No.112/2001. The final report was originally filed against 16 accused and 3 out of 16 was subsequently found absconding. The case was taken up against 13 accused out of 16. A11 died during pendency of the trial and the remaining 12 accused faced trial for the offences referred to above. https://hcservices.ecourts.gov.in/hcservices/ 3.The prosecution during trial examined the police officials who are the members of the Special Task Force and who were in the scene of occurrence, arrested the accused, seized the objects and brought them to the police station and DIG of Police in whose presence the complaint is lodged, independent witnesses, who knew the association of A1 Kanagaraj with Veerappan, VAO who assisted the Investigating Officer in the course of investigation and the experts who gave chemical and ballistic report and the Inspectors of Police, who held investigation and laid charge sheet as PW1 to PW20 and produced the complaint, confession statements of the accused , FIR, observation mahazar, seizure mahazars, rough sketch, Form 95, requisition for chemical examination, reports of the experts, sanction given by the District Collector and arrest report of the Inspector of Police as Exs.P1 to P31 besides M.Os.1 to 88 material objects. The accused totally denied the prosecution case and produced Ex.D1 arrest card as defence side exhibits. 4.The Trial Court on the basis of the available records, found all the accused guilty of the offences referred to above. Aggrieved against the same, A1 to 10 and A12 and 13 preferred the present appeals. During the pendency of the appeals, A9 and A10 died and the appeals are hence prosecuted by A1 to A8 and A12 and A13. 5.The learned counsel for the appellant has put forth the following points against the correctness of the finding of guilt rendered by the Trial Court: (i)The accused admittedly being not known to the prosecution side witnesses before the date of occurrence, their identification by the witnesses in the court for the first time is inadmissible (ii) previous identification in the test identification parade being a check valve to the evidence of identification in the court of an accused by a witness, failure to hold test identification parade renders the identification in court unreliable to base an order of conviction. (iii) arrest of the accused and seizure of the M.Os from the accused is not established through the prosecution side witnesses (iv) non examination of writer of Exs.P1 to P3 seizure mahazar and complaint is fatal to the prosecution case and (v) the discrepancy in arrest report and arrest card raises a doubt regarding the manner of arrest of the accused. 6.Per contra, the learned Government Advocate (Crl.Side) would vehemently defend the judgment of conviction and sentence of the trial court by contending that (i) the accused were https://hcservices.ecourts.gov.in/hcservices/ arrested and confession statement was obtained from A1 and Mos were seized from all the 16 accused and they were thereafter, brought to the police station and handed over along with the complaint to the Superintendent of Police and the Superintendent of Police recorded their confession statement in the police station in the presence of the witnesses. As such, the accused were under the custody of the police officials for reasonable time which is sufficient enough to record the identity of the accused in the mind of the officials and the same enables them to identify the accused in the open court and the failure to hold any test identification parade does not render the identification in the court for the first time to be inadmissible. (ii) Identification in the open court is legally admissible and the corroboration through previous identification with test identification is only a rule of caution. (iii) the arrest of the accused and seizure of articles are sufficiently established through other prosecution side witnesses, whose presence in the scene of occurrence is not doubted. The non-examination of other prosecution side witnesses does not in any manner affect the prosecution case. 7.Heard the rival submissions made on both sides and perused the records. 8.As per the case of the prosecution, Special Task Force camped at Mettur headed by the Superintendent of Police divided as four teams headed by different officials spotted gang of persons, near a hill called Varattukuttai in Burgur forest, which is a prohibited area and few of them were found to be in custody of guns and others found to be repairing and cleaning the same and others arranging arms and ammunitions and taking account of them. Having spotted them, the police warned them to surrender and the Special Task Force was also moving towards them. While so, some of the persons the names of whom were ascertained later, opened fire and the police retaliated the same and in the course of the same, Special Task Force surrounded them and they stopped firing and surrendered to Special Task Force and 16 persons so surrendered were immediately arrested by PW1 Superintendent of Police followed by recording of their voluntary confession statement and seizure of arms and ammunitions i.e. rifle, revolvers, double barrel gun, bullets, cartridges, AK47 cartridge, search lights, hanging belts, empty catridges, country made hand granites, carpentry tools, cartridge refilling tools, gun powder, black powder and candle under due mahazars and as there was no independent witness, the same was seized in the presence of Inspector Mohansingh and PW11-Hussain. Based on the https://hcservices.ecourts.gov.in/hcservices/ oral confession statement given by A1, a sum of Rs.1 lakh was also seized in the presence of the same officials Mohansingh and Hussain from A1, which was according to the prosecution, meant for purchase of new AK47 assault rifle for the use of Veerappan. Thereafter, they were brought to the police station and case is registered etc. 9.PW1, who is then Superintendent of Police of Special Task Force, who led the police team to the scene of occurrence, PW3 Sheik Dawood, PW4 John Kennedy, PW5 Selvam and PW11 Hussain who are the other police officials in the team led by PW1, are examined to depose about the circumstances under which the accused and others are spotted near Varattukuttai and the custody of arms and ammunitions by gang of persons and the manner of their arrest and seizure of articles M.O.1 to M.O.87 i.e.rifle, revolvers, double barrel gun, bullets, cartridges, AK47 cartridge, search lights, hanging belts, empty catridges, country made hand granites, carpentry tools, cartridge refilling tools, gun powder, black powder and candle etc. and Rs.1 lakh under Exs.P1 and P2 seizure mahazars. However, the evidence of the police officials concerned and the documentary evidence would not fully support the prosecution version in this regard. There are glaring inconsistencies and contradictions in the oral evidence of the police officials concerned on one hand and the documentary evidence produced herein on other hand. 10.The material witnesses, who are admittedly present in the scene of occurrence, are PW1, PW3, PW4 and PW11 and all of them categorically deposed that they spotted gang of persons and they opened fire to give them warning and they by using muzzle loading guns, shot the police official who inturn retaliated their shot and thereafter, they surrounded, captured and arrested them and seized the articles in the scene of occurrence and on the basis of confession statement of A1 Kanakaraj, amount was recovered from the place of concealment and thereafter, all the accused numbering 16 and along with seized articles, were brought to Burgur Police Station and the accused and the material objects seized are handed over to the Sub Inspector of police by name Subramanian, who registered the case in Crime No.20/93 on the file of Burgur police Station and the investigation was commenced by PW19, then Inspector of Police and further investigation was from 1.9.1993 held by PW20, the Deputy Superintendent of Police. According to the oral evidence of police personnel PW1, PW3, PW4 and PW11, Ex.P1 seizure mahazar for rifle, revolver, bullets, gun, explosives etc. and Ex.P2 seizure mahazar for Rs.1 lakh and Ex.P3 complaint were all prepared by Inspector, MohanSingh and https://hcservices.ecourts.gov.in/hcservices/ the confession statement of A1 Kanagaraj and others in Ex.P4 and P19 were recorded in the police station by PW2. Though according to the prosecution, all the 16 persons were found to be in possession of arms and ammunitions and explosives in the scene of occurrence and were charged for the offences punishable under the relevant provisions of Arms Act and Explosives Substances Act, Ex.P3 complaint proceeds as if the police team noticed a gang of 5 persons dressed in olive green with muzzle loading guns in their hand and two of them were reloading 12 bore cartridges and another two persons repairing arms and the remaining were arranging arms and ammunitions and were taking account of the same. It is also categorically admitted by the police officials that only few, out of 16 persons, attempted to open fire at special task force. However, neither of the police officials are able to identify the accused who were in possession of arms and ammunitions and the accused, who opened fire at them. 11.As a matter of fact, PW1 has even in the course of his chief examination admitted that by efflux of 9 years duration, he is not able to remember the nature of weapons and the accused from whom the same are seized. PW3 denied any knowledge regarding the manner of arrest of the accused and seizure of the articles from them. According to him, as he was guarding outside and he was not aware as to what transpired inside the police station. He disowned any knowledge, as to who wrote the seizure mahazars and the witnesses who attested the same. PW4 also admits that he did not remember the nature of M.Os and the persons from whom the same are seized. Further, it is no body's case that all the accused are found to be in the custody of arms and ammunitions. The prosecution witnesses do not come forward with the categorical case as to the nature of the weapons and the persons having the custody of the same. 12.The police officials are also inconsistent in their evidence regarding the prosecution theory as to whether the accused opened fire first or in retaliation of firing by the police officials. The evidence of the police officials do not corroborate with each other regarding the distance at which the accused opened fire. Further, PW1 has in his evidence admitted that they fired by using muzzle loading gun at 50 to 60 meters. It is further deposed by him that the muzzle point guns are admittedly capable of shooting within the distance of 50 to 60 feet and as the distance between the accused and the Special Task Force is admittedly 50 to 60 meters, the alleged act of firing by the accused cannot be treated as an attempt to kill police personnel. The very fact that only two of the accused were found https://hcservices.ecourts.gov.in/hcservices/ to be in possession of loaded gun and others were found to be indulging in different acts would bely the prosecution case that all of the them started firing at Special Task Force with an intention to kill the police officials. The other important aspect, which is not proved by the prosecution, is that the area wherein, the accused first found to be in possession of arms and ammunitions is prohibited area. No single document is produced to show that the area concerned is declared to be a prohibited area by the Government. That being the nature of the evidence available herein, the finding of guilt under the relevant provisions of the Arms Act and the Explosive Substances Act is factually unsustainable. 13.As already referred to, the recovery of seizure of arms and explosives and cash is made under Exs.P1 and P2 seizure mahazars. The reading of the same reveals that Ex.P1 mahazar is prepared at 8.45 am on 31.8.1993 at Varatukuttai and Ex.P2 cash is prepared at 12.00 pm on the same day at Mattupatti. As far as the recovery of Rs.1 lakh is concerned, the same is not seized on the strength of any voluntary confession statement of the accused. Ex.P1 complaint proceeds as if the same is seized on the oral confession statement of A1 and the confession statement is admittedly recorded only in the police station under the direction of PW2. Whereas, the glaring inconsistency in the prosecution case in this regard as disclosed in the oral evidence of PW19 and Ex.P20 observation mahazar prepared by him would, as rightly pointed out by the learned counsel for the accused, raise a serious doubt about the genuineness of such prosecution theory. 14.The reading of Ex.P20 observation mahazar would reveal that though the date of preparation of the same in the beginning is given as 5.30 pm on 1.9.93, the same is signed by PW19 on 2.9.1993. It is also deposed by PW19 in the course of his cross examination that he had been to the scene of occurrence on the very next day, on which the accused are produced to Burgur Police Station and he is not able to explain the difference in the date mentioned in Ex.P20 observation mahazar and if the same is viewed, in the light of the statement of A1 under section 313 Cr.P.C. that he is owning 50 acres of land in and around Burgur village and owning a house and Rs.1 lakh seized was forming part of Rs.1,49,990/- representing the sale proceeds of Tamarind and special task force came and removed his double barrel gun, 12 cartridges and Rs.1,49,990/- cash along with receipt from his house and when his wife lodged a complaint against the police, the same is not taken up on file and he sent a complaint to higher officials and when the enquiry was pending upon the same, https://hcservices.ecourts.gov.in/hcservices/ he was threatened to withdraw the case and on his failure to do so, he was falsely implicated in this case on 1.9.1993, it would compel this Court not to believe the prosecution version regarding the date of arrest of A1 and seizure of cash of Rs.1 lakh. Further, another inconsistency, which is drawn to the attention of this court, is the time at which, the accused are sent for judicial remand. While PW19 says that the accused are sent for judicial remand at 11.00 pm on 31.8.1993, as per the entry in Ex.D1 arrest card, they are sent for remand at 8.00 am on 1.9.1993. Ex.D1 containing the entry regarding remand of the accused at 8.00 am on 1.9.93 dated 31.8.1993 and signed on 31.8.1993. This is but discrepancy remains unexplained by PW19. It is not mentioned by PW19 that the date mentioned as 2.9.1993 in Ex.P20 observation mahazar and/or as 31.8.1993 in Ex.D1 arrest card are due to any inadvertent error. 15.Further, the perusal of the records would reveal that Exs.P1 and P2 seizure mahazars reached the court at 12.00pm on 1.9.1993. Whereas, Ex.P3 complaint and Ex.P29 FIR reached at 3.05am on 1.9.1993. As already stated, Exs.P1 and P2 seizure mahazars are prepared much before Ex.P3 complaint and Exs.P4 to P19 confession statements are recorded by PW2 in Burgur Police Station on 31.8.1993. It is in the evidence of PW19/Investigation Officer that the recording of the confession statement of the accused is completed at 8.00 pm on 31.8.1993. If that is so, all the documents i.e., seizure mahazars, complaint, FIR and confession statements are very much available at the time of sending the complaint and FIR to the Court. Whereas, all the documents are not sent to the court at one and the same time. The seizure mahazars and confession statements are sent to court only much after the complaint and FIR. Further, Ex.P20 observation mahazar prepared on 1.9.1993 is sent to Court only on 22.1.1998 and the failure of sending all the documents at one and the same time and other material document with delay remains unexplained on the part of the prosecution. 16.The combined appreciation of absence of any definite and corroborated evidence of the competent witnesses regarding the actual persons in custody of the weapons and the nature of the weapons and the person from whom the weapons are seized and the exact date of arrest of the accused and the time at which they were remanded to judicial custody and non-explanation for sending all the documents at one and the same time, would render the prosecution theory to be highly doubtful. https://hcservices.ecourts.gov.in/hcservices/ 17.The next aspect relied upon by the prosecution is the identification of the accused in the open court. It is not in dispute that the accused are not known to Pws before their alleged arrest on 31.8.1993 and after their arrest, allegedly on 31.8.1993, they are identified by the witnesses in the open court only during 2001 and 2002. There is no previous identification through test identification parade of the accused by the witnesses. Under such circumstances, the learned counsel for the accused would seriously argue that their identification for the first time in the open court without any corroboration through previous identification is not admissible. 18.Whereas, the learned Government Advocate (Crl. Side) would contend that as the PWs referred to above, are the persons who arrested the accused and seized the articles and brought them to the police station and witnessed the recording of confession statement by PW2, Superintendent of Police in Burgur police station, their identity is sufficiently recorded in the mind of the prosecution side witnesses, who belong to Special Task Force, as such, the previous identification through test identification is not necessary and their identification in the open court by memory can be duly relied upon. 19.However, Hon'ble Apex Court and our High court in their judgment reported in 2002 (7) SCC 295 (Dana Yadav v. State of Bihar) and in 2006-1-LW (Crl.) 166 (Alumalai and 5 others v. State by Inspector of Police, Hasanur Police station), are of the view that though the previous identification through test identification parade is rule of caution and rule of evidence and ordinarily, their identification for the first time in court is not inadmissible, the same cannot be relied upon to base an order of conviction. Applying the ratio laid down by Hon'ble Apex Court and considering the time interval between the date of arrest