IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11/04/2003 Coram The Honourable Mr.Justice N.DHINAKAR and The Honourable Mr.Justice S.ASHOK KUMAR Referred Trial No.3 of 2003 and Criminal Appeal Nos.326, 327, 328, 329 and 338 of 2003 Referred Trial No.3 of 2003 The Additional Sessions Judge -cum- Chief Judicial Magistrate, Tuticorin. ..... Referring Officer -Vs- 1. Ramesh @ Anthony Peter Ramesh 2. Roach @ Anthony Roadh 3. Anburaj 4. Rathinam @ Michael Rathinam 5. Thommai Xavier 6. Dhanapal 7. Ranjith ..... Respondents Criminal Appeal No.326 of 2003 1. Ramesh @ Anthony Peter Ramesh 2. Thommai Xavier : Appellants vs. State rep. by Inspector of Police, Tharuvaikulam Police Station, Tuticorin. (Crime No.5 of 1998) : Respondent Criminal Appeal No.327 of 2003 1. Roach @ Anthony Roach 2. Anburaj : Appellants vs. State rep. by Inspector of Police, Tharuvaikulam Police Station, Tuticorin. (Crime No.5 of 1998) : Respondent Criminal Appeal No.328 of 2003 1. Rathinam @ Michael Rathinam 2. Dhanapal : Appellants vs. State rep. by Inspector of Police, Tharuvaikulam Police Station, Tuticorin. (Crime No.5 of 1998) : Respondent Criminal Appeal No.329 of 2003 Ranjith : Appellant vs. State rep. by Inspector of Police, Tharuvaikulam Police Station, Tuticorin. (Crime No.5 of 1998) : Respondent Criminal Appeal No.338 of 2003 1. A.Navamani @ Michael Navamani 2. A.Yogaraj @ Anthony Yogaraj 3. Athirstaraj @ Anthony Athirstaraj 4. R.Sittrarasu 5. S.Jelastian 6. Sekar @ Anthony Gunasekar 7. S.Kalidas : Appellants vs. State rep. by Inspector of Police, Tharuvaikulam Police Station, Tuticorin. (Crime No.5 of 1998) : Respondent Prayer: Reference on and Appeals against the judgment dated 29.1.2003 in Sessions Case No.377 of 2000 delivered by the Additional Sessions Judge -cum- Chief Judicial Magistrate, Tuticorin. !For Appellants in : Mr.V.Gopinath, Sr. Counsel Crl.A.No.326/2003 and For Mr.C.Christopher respondents 1 and 5 in R.T.No.3/2003 For Appellants in : Mr.V.Gopinath, Sr. Counsel Crl.A.No.327/2003 and For M/s.L.Mahendran and respondents 2 and 3 G.Anantharangan in R.T.No.3/2003 For Appellants in : Mr.V.Gopinath, Sr. Counsel Crl.A.No.328/2003 and For M/s.A.Kumaraguru and respondents 4 and 6 D.Saravanan in R.T.No.3/2003 For Appellant in : Mr.V.Gopinath, Sr. Counsel Crl.A.no.329/2003 and For Mr.R.John Sathyan respondent 7 in R.T.No.3/2003 For appellants in : Mr.B.Sriramulu Crl.A.No.338/2003 For M/s.R.Karthikeyan and R.Bharanidharan ^For Respondent in all : Mr.I.Subramanian Criminal Appeals Public Prosecutor :J U D G M E N T (Judgment of the court was delivered by N.DHINAKAR, J.) The reference is by the learned Additional Sessions Judge -cum- Chief Judicial Magistrate, Tuticorin, under Section 366(1) Cr.P.C. Criminal Appeal No.326 of 2003 is by A4 and A9, Criminal Appeal No.327 of 2003 is by A5 and A6, Criminal Appeal No.328 of 2003 is by A7 and A10 , Criminal Appeal No.329 is by A12 and Criminal Appeal No.338 of 2003 is by A1, A2, A3, A8, A11, A13 and A17, in Sessions Case No.377 of 2 003 on the file of the learned Additional Sessions Judge -cum- Chief Judicial Magistrate, Tuticorin. In this judgment, the appellants will be referred to in the same order as they were arrayed before the learned Sessions Judge, for the sake of convenience. The appellants were tried along with 15 others, who were acquitted by the learned Sessions Judge and in this judgment, the acquitted accused, A14 to A16 and A18 to 29, will also be referred to in the same order as they were arrayed before the learned Sessions Judge. Since the above appeals and the reference arise out of a single Sessions Case, they are disposed of by the following common judgment. 2. A1 to A29 were tried before the learned Sessions Judge on an allegation that in pursuance of the conspiracy hatched in the house of A1 8 at 6.00 p.m. on 27.2.1998 and at 7.00 a.m. on 2.3.1998, they attacked and caused the death of Vijay @ Vijay Amirtharaj (D1), Anand @ Anand Amirtharaj (D2), Anthony Amaladasan (D3), Anthony Vinoboss (D4), Anthonysamy @ Pasumpon (D5), and Jayaprakash (D6), while they were travelling in a bus from Kulathur to Tharuvaikulam, along with P.Ws.1 to 3, Jayarani and Prakasiammal, after throwing lighted torches at the bus. The learned Sessions Judge acquitted all the accused under Section 120-B IPC, but found A1 to A13 guilty under Section 148 IPC and found A17 guilty under Section 147 IPC and on being found guilty, A1 to A13 were sentenced each to suffer rigorous imprisonment for two years and to pay a fine of Rs.2000/- with a default sentence of three months' simple imprisonment and A17 was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1000/- with a default sentence of simple imprisonment for one month. A7 and A12, on being convicted under Section 436 r/w 149 IPC framed under Charge No.4, were sentenced each to suffer rigorous imprisonment for seven years and to pay a fine of Rs.7000/- and in default of payment of fine, each of them had to undergo simple imprisonment for one year. Under Charge No.5, A1 to A6, A8 to A11, A13 and A17, on being convicted under Section 436 r/w 149 IPC, were awarded similar sentence, which the learned Sessions Judge imposed on A7 and A12 under Charge No.4. A8, A11 and A13, on being found guilty under Section 302 r/w 149 IPC framed under Charge No.6, on an allegation that they attacked and caused fatal injuries on D1, were sentenced each to suffer imprisonment for life and each one of them was also directed to pay a fine of Rs.10000/- with a default sentence of two years' simple imprisonment. A1 to A7, A9, A10, A12 and A17 were also charged under Section 302 r/w 149 IPC under Charge No.7 and found guilty as charged, for which, the learned Sessions Judge imposed similar sentence, which he imposed on A8, A1 1 and A13 under Charge No.6. 3. The learned Sessions Judge under Charge No.8, charged A1 to A3 under Section 302 r/w 149 IPC for causing the death of D2 and on finding them guilty as charged, sentenced each one of them to imprisonment for life and also to pay a fine of Rs.10000/- with a default sentence of two years' simple imprisonment. Under Charge No.9, A4 to A13 and A17 were charged under Section 302 r/w 149 for sharing the common object of A1 to A3 in causing the death of D2 and the learned Sessions Judge, on finding them guilty, imposed similar sentence, which he imposed on A1 to A3 under Charge No.8. A4 to A6, A9 and A10, under Charge No.10, were charged under Section 302 r/w 149 IPC for the murder of D3 and under Charge No.11, A1 to A3, A7, A8, A11 to A13 and A17 were charged under Section 302 r/w 149 IPC for sharing the common object of the accused charged under Charge No.10 and the learned Sessions Judge, finding the accused charged under Charge Nos.10 and 11 guilty, sentenced A4 to A6, A9 and A10, who were charged under Charge No.10 , to death and also directed each one of them to pay a fine of Rs.100 00/- with a default sentence of two years' simple imprisonment, while sentencing A1 to A3, A7, A8, A11 to A13 and A17, who were charged under Charge No.11, to imprisonment for life and also to pay a fine of Rs.10000/- with a default sentence of simple imprisonment for two years. A7 and A12 were charged under Section 302 r/w 149 IPC framed under Charge No.12 for the murder of D4 and on being convicted, each one of them was sentenced to death and also directed to pay a fine of Rs.10000/- with a default sentence of two years' simple imprisonment. The learned Sessions Judge, while convicting A7 and A12 under Section 302 r/w 149 IPC under Charge No.12 for causing the death of D4, and sentencing each one of them to death, thought it fit to impose imprisonment for life on A1 to A6, A8 to A11, A13 and A17 under Charge No.13, which was framed against them under Section 302 r/w 149 IPC for sharing the common object of A7 and A12 in causing the death of D4, and each one of them was also directed to pay a fine of Rs.10000/- with a default sentence of two years' simple imprisonment. 4. A12 was charged under Charge No.14 framed under Section 302 IPC for causing the death of D5 and on being convicted, he was sentenced to death and also directed to pay a fine of Rs.10000/- and in default of payment of fine, he will undergo simple imprisonment for two years. Under Charge No.15, A1 to A11, A13 and A17 were charged under Section 302 r/w 149 IPC for sharing the common object of A12 in causing the death of D5 and on being convicted, each one of them was sentenced to undergo imprisonment for life and also directed to pay a fine of Rs.10000/- with a default sentence of two years' simple imprisonment. The learned Sessions Judge imposed death sentence on A7 under Charge No.16 framed under Section 302 IPC for causing the death of D6 and directed him to pay a fine of Rs.10000/- with a default sentence of simple imprisonment for a period of two years, while imposing imprisonment for life on A1 to A6, A8 to 13 and 17 under Charge No.17 framed under Section 302 r/w 149 IPC, for sharing the common object of A7 in causing the death of D6, and directing each one of them to pay a fine of Rs.10000/- with a default sentence of simple imprisonment for two years. A4 was charged under Charge No.18 framed under Section 324 IPC for causing injury to P.W.4 and the learned Sessions Judge, finding him guilty as charged, sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.1000/- with a further direction that he will undergo simple imprisonment for one month if the fine amount is not paid. A4 was also charged under Section 326 IPC framed under Charge No.19 for causing grievous injury to P.W.2, for which, on being convicted, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.3000/- with a default sentence of simple imprisonment for six months. A charge under Section 212 r/w 302 IPC was also framed under Charge No.20 against A29, but it ended in acquittal. The present appeals challenge the above conviction and sentence and the reference is for the confirmation of the death sentence imposed upon some of the accused. 5. Shorn of unnecessary details, the case of the prosecution, as could be discerned from the oral and documentary evidence, can be briefly summarised as follows:- P.W.1 is the mother of D1 and D2. P.W.2 is the cousin brother of P.W.1. P.W.3 is the wife of D4. P.W.16 is the brother of P.W.2. D3 and D4 are brothers and D5 is the father of D6. A1 to A3 and A22 are brothers. A5, A6 and Benzen (First Deceased-Accused  DA1), who died during the occurrence, are brothers. A4, 20, 24 and A25 are brothers and they are the sons of Susai Mariya Nadar, who is the husband of the sister-in-law of P.W.1. D1 was elder to D2. D1, during the relevant period, was studying and D2 was eking out his livelihood as a fisherman. In the year 1974, the uncle of P.W.1, Rajan Nadar, and his sons murdered Savarimuthu. Thereafter, there were several instances and the prosecution witnesses and the accused party were cutting each other resulting in several criminal complaints being filed against both parties. In all the criminal cases, the prosecution party and the accused party were figuring either as accused or as witnesses. In the year 1980, there was a lull in the activities of both the parties only to be ignited in the year 1996 during the Panchayat Board election. Anthony Xavier and A6 contested the elections. Anthony Xavier won by defeating A6. On account of this, A24, A26 and others murdered Anthony Xavier. On 22.12.1997, at Tharuvaikulam beach, A20 was cut by D1 to D6 and one Soundararaj and in respect of the incident, a crime was registered and the committal proceedings were pending before the Court of Judicial Magistrate, Vilathikulam. Ex.P-20 is a copy of the printed first information report in the said crime. The accused party were threatening the deceased party and the prosecution witnesses that they will be destroyed totally. 6. On 4.3.1998, D1 to A6 accompanied by P.Ws.1 to 3, Jayarani, who is the wife of D5, and Prakasiammal, the mother of D3, went to the Court of Judicial Magistrate at Vilathikulam, in connection with the case. After the case was adjourned to 7.4.1998, they came to the busstand at Vilathikulam and boarded a bus in order to reach their village. They alighted at Kulathur to get a bus, which will take them to their village and boarded a bus at Kulathur at 11.35 a.m. D1 to D6, P.Ws.1 to 6 and two others as well as Jayarani and Prakasiammal, were in the bus, along with other passengers. P.W.5 was the conductor and P.W.6 was the driver of the bus. D5 and D6 purchased tickets to Tuticorin and others purchased tickets to Tharuvaikulam. The tickets were purchased by D5. When the bus reached the junction at Jakkammalpuram at about 12.15 p.m., a green-colour van, M.O.27, bearing Registration No.TN-69-A-3866 came from the opposite direction and the accused alighted from the van. They were armed with knives, aruvals, swords, sticks and lighted torches. A1 to A13, Joseph (Second Deceased-Accused  DA2), who died subsequent to the incident, and Benzen ( DA1) alighted from the vehicle along with the other accused. A7, A12 and DA2 threw the lighted torches at the bus and the bus caught fire. A1, A2 and A3 boarded the bus through the front door and through the rear door of the bus, A4 to A7 and A9 along with DA1 entered. A4 to A6 were having swords and A10 was having a stick and DA1 was having a knife. There were more than 55 passengers in the bus. The accused, on entering the bus through the front and rear doors, asked the passengers to alight and the passengers alighted. P.Ws.5 and 6 were threatened not to move the bus. They also gave a warning that every one, except for D1 to D6, should alight from the bus. After the passengers alighted, D1 to D6, P.Ws.1 to 4, Jayarani and Prakasiammal were alone in the bus. The accused threatened the ladies to alight and P.Ws.1 and 3 started crying and did not get down from the bus; but, they were forced to get down by the passengers. Accordingly, P.Ws.1 and 3, Jayarani and Prakasiammal got down from the bus and D1 to D6 and P.W.2 were alone inside the bus. D1 was pushed through the front door and A8, A11 and A13 repeatedly cut him on various parts of his body. D2 came out of the bus with burn injuries and he was cut by A1 to A3. D3, while coming out the rear door of the bus, was cut by A4, A5 , A6 and A9. Benzen (DA1) was having a knife and the same was snatched by D3, with which he stabbed DA1 on the stomach. Thereafter, D3 was cut repeatedly and he fell down through the rear door. While D4 to D6 attempted to come out of the bus through the front door, Joseph (DA2) cut D4, A7 cut D6 and A12 cut D5. They fell inside the bus and were burnt as the bus was burning. P.W.2 came out of the bus through the front door and he was cut by A4 on his hands and also on his neck. P.W.2 ran away from the place. Thereafter, DA1, who suffered injuries at the hands of D3, was placed in the van and all the accused left from the scene of occurrence in the van. 7. P.W.1, accompanied by P.W.3, leaving Jayarani and Prakasiammal at the place, went to Tharuvaikulam Police Station and reached it at 1 .30 p.m. P.W.1 gave an oral complaint to P.W.44, the Head Constable. The oral complaint of P.W.1 was reduced into writing by P.W.44 and the same is Ex.P-1. P.W.44, on the complaint, Ex.P-1, registered a case in Crime No.5 of 1998 against the accused, whose names are found mentioned in the said complaint, under Sections, 147, 148, 341, 506 (ii), 307, 302 and 436 IPC. He prepared express reports and Ex.P-25 is a copy of the printed first information report in the crime. At that time, P.W.2, accompanied by his brother, P.W.16, also reached the police station and finding injuries on P.W.2, he was referred to the hospital for treatment. 8. On being referred, P.W.2 appeared before P.W.47 at 2.15 p.m. and on his person the doctor found the following injuries:- 1.An incised wound on the right arm measuring 10 x 5 x 5cm. 2.An incised wound on the chin measuring 3 x 1 x 1 cm. 3.An incised wound on the left arm measuring 2 x 1 x 1 cm. Ex.P-31 is the wound certificate issued by the doctor with her opinion that injury No.1 is grievous in nature. P.W.4, who also suffered injuries, reached the hospital on his own and presented himself before the same doctor at 4.45 p.m. and the doctor, on examining him, found on his person an incised wound measuring 3 x 1 x 1 cm on the left side of his back, which she noted in Ex.P-30, the wound certificate. 9. In the meantime, P.W.44 sent express reports to the higher officials and to the court. P.W.50, the Circle Inspector of Police of Kulathur Circle, while he was in the office of the Superintendent of Police, Tuticorin, received an information at 1.00 p.m. over V.H.F. from Tharuvaikulam Police Station, about the occurrence and reached the scene of occurrence at 1.40 p.m. He received a copy of the printed first information report at the scene of occurrence at 3.45 p.m. He, thereafter, took up investigation in the crime and prepared an observation mahazar, Ex.P-35, and drew a rough sketch, Ex.P-36. Inquest over the dead body of D1 was conducted in the presence of panchayatdars between 6.45 p.m. and 10.45 p.m. on 4.3.1998 by preparing Ex.P-37, the inquest report. Inquest over the dead body of D2 was conducted between 10.45 p.m. and 11.45 p.m. in the presence of panchayatdars and Ex.P-38 is the inquest report. Between 11.45 p.m. and 00.45 a.m. on the night of 4/5.3.1998, inquest over the dead body of D3 was conducted in the presence of panchayatdars by preparing the inquest report, Ex.P-39. Inquests over the dead bodies of D4 to D6 were conducted by P.W.48, Inspector of Police, Ettaiyapuram, on the orders of the Superintendent of Police. Inquest over the dead body of D5 was conducted between 10.45 p.m. and 11.45 p.m. on 4.3.1998 in the presence of panchayatdars and the inquest report is Ex.P-32. Between 11.45 p.m. and 00.45 a.m. on the night of 4/5.3.1998, inquest was conducted over the dead body of D4 in the presence of panchayatdars by preparing Ex.P-33, the inquest report. Ex.P-34 is the inquest report in respect of the inquest conducted over the dead body of D6 between 00.45 a.m. and 1.45 a.m. on the night of 4/5.3.1998. At the time of the inquests conducted over the dead bodies of D1 to D3, Jayarani and Prakasiammal were examined and their statements were recorded; but, no witness was examined at the time when the inquests over the dead bodies of D4 to D6 were conducted. After the inquests, the dead bodies were despatched through police constables along with requisitions to the medical authorities, for conducting autopsy. 10. Meanwhile, Benzen (DA1), who suffered injuries at the hands of D3, was produced before the doctor Mariyam Beevi, P.W.47, at Government Hospital, Tuticorin, at 1.10 p.m. and the doctor, on examining him, found him dead. 11. On receipt of the requisition, Ex.P-28, issued by P.W.50, and the dead body of D1 being produced by P.W.35, P.W.46, the Civil Assistant Surgeon attached to Government Hospital, Tuticorin, conducted autopsy on the body of D1 and found the following injuries:- 1.An incised wound 6" x 2" x skin-deep transversely placed above left ear. 2.Neck is severed and hanging by skin tag anteriorly from the trunk. 3.An incised wound 3" x 3" x 4" transversely placed just above wound No.2. 4.An incised wound 3" x 2" x skin-deep exposing underlying bone transversely place above wound No.1. 5.The left upper limb is severed from the trunk and hanging by skin tag only. 6.An incised wound 4" x 2" between left thumb and index fingers. 7.An incised wound at the ball of the left middle finger and hanging by skin tag only. 8.An incised wound 6" x 4" x 4" transversely placed upper part of back of left thigh cutting underlying muscles and bone partially. 9.An incised wound 4" x 4" x 2" transversely placed in the left supra-clavicular region. 10.An incised wound 2" x 2" x 1" in the inter-scapular region vertically placed. 11.An incised wound 3" x 1" x 1" transversely placed below injury No.10. The doctor issued Ex.P-29, the post-mortem certificate, with his opinion that the deceased would appear to have died of shock and haemorrhage due to the multiple injuries suffered, about 16 to 24 hours prior to post-mortem. 12. On receipt of the requisition, Ex.P-9, issued by P.W.50, and the dead body of D2 being produced by P.W.36, P.W.11, the Civil Assistant Surgeon attached to Government Hospital, Tuticorin, conducted autopsy on the body of D2 and found the following injuries:- 1.Middle of forearm of right upper limb was cut and part of the skin was attached to the upper segment. 2.A lacerated injury present over the right knee. 3.A lacerated injury present over the right side of the fact involving right ear and right eye (5" x 2" x 3"). 4.Two separate lacerated injuries present over the right shoulder about 1" part (4" x 2" x 2")  (3" x 2" x 1 ="). 5.A lacerated injury over the left side of the fact involving left eye and left nose (5" x 3" x 2"). 6.(a) A lacerated injury present over the left side chest (2" x 1" x 3"). (b) A lacerated injury present over the right side chest (2" x 1" x 1 "). 7.A lacerated injury present over the dorsal aspect of left upper arm (2 =" x 1 =" x 1"). 8.A lacerated injury present in the middle of left forearm (2 =" x 1 =" x 1"). 9.Two separate lacerated injuries present over the back of neck (3" x 2" x 2" each). The doctor issued Ex.P-10, the post-mortem certificate, with his opinion that the deceased would appear to have died of shock and haemorrhage due to the multiple injuries and the injury to the left lung. 13. On receipt of the requisition, Ex.P-26, issued by P.W.50, and the dead body of D3 being produced by P.W.38, P.W.45, the Civil Assistant Surgeon attached to Government Hospital, Tuticorin, conducted autopsy on the body of D3 and found the following appearances: Body was completely charred and the features of the viscera (Not clear) could not be identified because of extensive complete burns. The doctor issued Ex.P-27, the post-mortem certificate, with his opinion that the deceased would appear to have died of extensive burns leading to complete charring. 14. On receipt of the requisition, Ex.P-5, issued by P.W.48, P.W.9, the Civil Assistant Surgeon attached to Government Hospital, Tuticorin, conducted autopsy on the body of D4 and found the following appearances:- A body of a male lying on its back. Extensive charring from head to feet in skin, subcutaneous tissue and muscles over abdomen. Left fracture stump is seen because of charring.All the organs are pale, shrunk and dry. The doctor issued Ex.P-6, the post-mortem certificate, with his opinion that the deceased would appear to have died of deep-seated burns with charring all over