IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.Nos.560 of 2007 and 732 of 2008 1.Thangavel 2.Manickam @ Murugan .. Appellants in CA 560/2007 and Respondents in CA 732/2008 (Accused 1 & 2) vs State by: Inspector of Police Vaniyambadi P.S. Vellore District Vaniyambadi P.S. Cr.No.123/95 .. Respondent in CA 560/2007 and Appellant in CA 732/2008 C.A.No.560 of 2007 preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court, Vellore, in S.C.No.111 of 1998 dated 30.10.2006. C.A.No.732 of 2008 preferred under Sec.377 of Cr.P.C. to enhance the sentence as against the respondents imposed by the Additional District and Sessions Judge, Fast Track Court, Vellore, in S.C.No.111 of 1998 on 30.10.2006. For Appellants/ A-1 & A-2 : Mr.R.Karthikeyan Amicus Curiae For Respondent/State: Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) C.A.No.560 of 2007 challenges a judgment of the Additional Sessions Division, Fast Track Court, Vellore, at Tirupattur, in S.C.No.111 of 1998 whereby these appellants originally shown as A-1 https://hcservices.ecourts.gov.in/hcservices/ and A-3 respectively in the charge, but dealt as A-1 and A-2 respectively at the time of the trial, along with the other accused stood charged, tried and found guilty as follows: ACCUSED CHARGES GUILTY PUNISHMENT A-1 302 (4 counts) & 307 of IPC 302 (4 counts) 307 IPC Life sentence with a fine of Rs.1000/- and default sentence under each count 7 years Rigorous Imprisonment with a fine of Rs.1000/- and default sentence A-2 302 (2 counts) of IPC 302 (2 counts) Life sentence with a fine of Rs.1000/- and default sentence under each count 2.C.A.No.732 of 2008 is an appeal by the State for enhancement of sentence. 3.Necessary facts for the disposal of these appeals can be stated thus: (a) P.W.1 is the daughter of the deceased Nos.1 and 2. The first deceased (D1) Mani along with the family members was residing at Lala Arikollai Kotta Village within the jurisdiction of the respondent police. His father Ellappa Gounder owned six acres of land which he divided and gave to his six children namely four sons and two daughters equally namely one acre each. The land of one of the sons of Ellappa Gounder namely Velayutham, was cultivated by A-1 who is the brother of D1. A-2 as shown in the charge and A-3 who is the present A-2, are the son and son-in-law of A-1 respectively. Ellappa Gounder came out with a proposal to sell his property. A-1 who was actually cultivating the said land, decided to purchase the property of Ellappa Gounder. But, he was not prepared, and he sold the property to his other son namely D1 Mani. Apart from that, A-1 sold the property belonging to one of the sisters of Ellappa Gounder namely Dhanam. A panchayat was convened, in which an amicable settlement was arrived at; but, A-1 was not prepared. He declared that he would go to a Court of law. Enraged over this, A-1 along with the son and son-in-law shown as A-2 and A-3 respectively, planned to finish them off. (b) On the date of occurrence that was on 10.3.1995 between 1.00 A.M. and 2.00 A.M., when D1 Mani along with his wife Savitthri, D2, was sleeping, while D3 the sister Dhanam, D4 Suganthi, the daughter of D1, and D5 Murugan, the son of D1 and D2, and D6 Ellammal, the mother of D1 and A1, were also sleeping. At that time, A-1 and A-2 and the other accused who died pending the trial, armed with deadly weapons, came over there and began to attack them. At that time, the https://hcservices.ecourts.gov.in/hcservices/ light was burning. Since there was a festive occasion, the lights outside were also burning. A-1 with a knife cut D1 on different parts of the body. At that time, A-2 who was armed with a crowbar, also attacked D1. Then, A-1 cut D2, the wife of D1, on different parts of the body while A-2 attacked her with the crowbar. At that time, when P.W.1 intervened, she was also attacked. Then, the other accused attacked D3. When P.W.1 raised a cry, A-1 cut her on different parts of the body. Not satisfied, A-1 attacked D4, and also A-2 with the crowbar attacked D4. Then A-1 cut P.W.1 with the knife on different parts of the body, and injuries were sustained. Further, the son of D1 Murugan was also cut by A-1 and also caused grievous injuries. In the same transaction, A-1 cut P.W.2 with the knife and A-2 with the crowbar. The other accused attacked D5 with the knife on the neck and ear. Further, A-2 and the other accused also attacked P.W.5, while the other accused attacked P.W.6 also. At that time, D6 Ellammal the mother of D1 and A-1 when raised a cry, A- 1 attacked her with the knife, while A-2 attacked her with the crowbar. (c) The entire occurrence was witnessed by P.Ws.1, 2, 5 and 6, and they were also attacked and injured. In that transaction, D1 Mani, D2 Savithri, D3 Dhanam, D4 Suganthi, D5 Murugan and D6 Ellammal were all done to death instantaneously. P.Ws.1, 2, 5 and 6 who were all injured, were taken to Vaniyambadi Government Hospital where they were all originally given treatment. P.W.3, who was the Doctor on duty, examined P.W.1 medically at 6.30 A.M. and has noted the injuries as found in the accident register copy, Ex.P2. P.W.5 was examined by the same Doctor at 6.45 A.M., and the accident register copy is marked as Ex.P3. P.W.6 was examined at 6.50 A.M., and Ex.P4 is the accident register copy. P.W.3 examined P.W.2 at 7.05 A.M. and the injuries are noted in Ex.P5, the accident register copy. (d) On intimation, P.W.22, the Inspector of Police, attached to the respondent police station, rushed to the hospital and recorded the statement of P.W.1 which is marked as Ex.P1. On the strength of Ex.P1, the report, a case came to be registered in Crime No.123 of 1995 under Sections 302 and 307 of IPC against all the three accused. Then, P.W.22 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P19, and a rough sketch, Ex.P30. He recovered from the place of occurrence all the material objects including the sample earth and bloodstained earth. Then, he conducted inquest on the dead bodies of D1 to D6 in the presence of witnesses and panchayatdars and prepared inquest reports, Exs.P31 to P35 and P37 respectively. All the dead bodies were sent to the Government Hospital along with requisitions for the purpose of autopsy. (e) P.W.7, the Civil Surgeon, attached to the Government Hospital, Vaniyambadi, on receipt of the requisitions conducted autopsy on the dead bodies of D1, D3, D4 and D5 and has issued postmortem certificates, Exs.P28, P9, P12 and P14 respectively wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. (f) P.W.4, the Assistant Surgeon, attached to the Government Hospital, Vaniyambadi, on receipt of the requisition conducted https://hcservices.ecourts.gov.in/hcservices/ autopsy on the dead body of D2 and has issued a postmortem certificate, Ex.P8, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. (g) P.W.10, the Medical Officer, attached to the Government Hospital, Vaniyambadi, on receipt of the requisition conducted autopsy on the dead body of D6 and has issued a postmortem certificate, Ex.P18, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. (h) While the matter stood thus, A-1 appeared before P.W.8, on 11.3.1995 between 2.00 P.M. and 4.00 P.M. and gave a confessional statement, and the same was recorded by P.W.8 which is marked as Ex.P15. Pursuant to the same, he took A-1 and produced before P.W.22, the Investigating Officer, and he volunteered to give a confessional statement which was also recorded in the presence of witnesses. Ex.P38 is the admissible part of the confessional statement. Pursuant to the same, A-1 produced M.O.1, knife, and M.O.4, shirt, which were recovered under a cover of Ex.P16, the mahazar. He was sent for judicial remand. Thereafter, A-2 and A-3 were arrested on 13.3.1995. Both of them gave confessional statements which were also recorded in the presence of witnesses. Ex.P24 is the admissible part of the confession given by A-2. Following the same, A-2 produced the crowbar which is marked as M.O.3. The other accused produced M.O.2, knife, and the same were recovered under a cover of independent mahazars. They were also sent for judicial remand. (i) All the material objects recovered from the place of occurrence and from the dead body and also the material objects produced by the accused and recovered by the Investigating Officer were subjected to chemical analysis which resulted in the reports namely Exs.P42 and P43, the chemical analyst's reports, and Ex.P40, serologist's report. P.W.23, the Inspector of Police, took up further investigation, and on completion of investigation he filed the final report. 4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 23 witnesses and also relied on 43 exhibits and 36 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The Court below heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellants/accused guilty and awarded the punishments as referred to above. Hence C.A.No.560 of 2007 has arisen at the instance of the appellants. 5.Pending the said appeal, the State came forward with C.A.No.732 of 2008 stating that it is a fit case where the sentence awarded to the accused have got to be enhanced by giving the capital punishment. The State appeal was also taken up for consideration. https://hcservices.ecourts.gov.in/hcservices/ 6.Mr.R.Karthikeyan, Advocate, appointed as Amicus Curiae to argue the appeal on behalf of the appellants/accused, would submit that in the instant case, before the trial Court, P.Ws.1, 2, 5, 6, 9 and 11 were examined as eyewitnesses; that P.Ws.1, 2, 5 and 6 were closely related to the deceased; that even as per the prosecution case, there were long enmity prevailed, and thus they came forward to give false evidence. Added further the learned Counsel that if the test of careful scrutiny is applied, the lower Court should have rejected the evidence of P.Ws.1, 2, 5 and 6, since it did not stand scrutiny; that there are lot of discrepancies found; that apart from that, as far as A-2 was concerned, though all the eyewitnesses have attributed so many overt acts on the deceased, no corresponding injuries were found, and thus it would tell upon their evidence; and that they could not have seen the occurrence at all. 7.The further contention of the learned Counsel was that the prosecution would claim that A-1 suddenly appeared before P.W.8 and gave a confessional statement, and the same was recorded by him, and he was produced by P.W.8 before P.W.22, the Investigator; that this part of the evidence cannot be accepted for two reasons; that firstly, P.W.8 was neither a V.A.O. nor a Government Official who could record the extra-judicial confession alleged to have been given by the accused; that secondly, P.W.8 was an utter stranger to whom no one would appear and give such a confessional statement in respect of such a heinous crime, and hence that part of the evidence should not have been accepted; and that according to the prosecution, he was produced before the Police Officer and there also he gave another confessional statement which was followed by the recovery of M.Os.1 and 4. 8.Added further the learned Counsel that the subsequent arrest and confessions alleged to have been given by the present A-2 and also the other accused who died pending the trial, were nothing but inventions and later introductions in order to suit the prosecution case; that if they are perused, it would clearly reveal that they were all cooked up documents and hence it should also been rejected. 9.The learned Counsel would further submit that in the instant case, it is highly doubtful whether Ex.P1, the report, could have come into existence as put forth by the prosecution; that according to P.W.11, who is said to be an occurrence witness, the Police Officer came to the hospital and after they rushed there, he has given a statement, and the same was recorded by the Police Officer, and he has also signed the same; that if to be so, the statement recorded from P.W.11, was actually the report, but it has been suppressed; that had it been produced before the Court, it would have unfolded the truth; but, the prosecution has suppressed the same; that it would be fatal to the prosecution case; that under the circumstances, the prosecution has miserably failed to prove its case, and hence they are entitled for acquittal in the hands of this Court. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions. https://hcservices.ecourts.gov.in/hcservices/ 11.After making his reply, the learned Additional Public Prosecutor would submit that here is a case, A-1 and the present A-2 have been found guilty for murders of four persons and two persons respectively; that further, it is a heinous crime committed by them; that they have gone to the place of occurrence armed with weapons during night hours when others were sleeping, and they have murdered them which would speak of the brutality; that further, they have murdered a child of 8 years old; that under the circumstances it was a fit case where the Court has to apply the decision of the Apex Court reported in 1983 SUPREME COURT CASES (CRI.) 681 (MACHHI SINGH AND OTHERS V. STATE OF PUNJAB); that the lower Court has given the punishment of life imprisonment which the Court should have given the capital punishment of death sentence, and hence, it is a fit case where the Court has to take the view and enhance the sentence awarded to the accused by the trial Court. 12.In answer to the above, it is contended by the learned Counsel for the appellants that it is not a fit case where the capital punishment could be awarded. The Counsel would further add that it is actually a property dispute; that the properties were actually sold in favour of D1; that A-1 is the brother of D1; that they were on inimical terms; that since the panchayat was in favour of D1, A-1 got provoked by the situation; that apart from that, in the instant case, even according to the prosecution, all the overt acts were attributed to the accused who died pending the trial; that hence no overt act is attributed to either of the appellants, and hence it is not a fit case where the decision of the Apex Court relied on by the prosecution could be followed, and the Court has to consider the same. 13.The Court paid its anxious consideration on the submissions made on either side in entirety. 14.It is not in controversy that in an incident that took place on 10.3.1995 between 1.00 A.M. and 2.00 A.M. six persons were murdered. They were Mani, Savithri, Dhanam, Suganthi, Murugan and Ellammal. Following the inquest made by the Investigator, P.W.22, and preparation of the inquest reports, all the dead bodies were subjected to postmortem by P.W.7, the Doctor, in respect of D1, D3, D4 and D5 and P.W.4, the Doctor, as regards D2, and also P.W.10, the Doctor, in respect of D6. On scrutiny of the postmortem certificates, it would be quite clear that all persons have died out of shock and haemorrhage due to the injuries sustained by them. Further, the fact that all the six deceased persons died out of homicidal violence was never a subject matter of dispute by the appellants before the trial Court, and hence without any impediment it has got to be factually recorded so. 15.In order to substantiate the fact that these appellants/A-1 and A-2 along with other accused who died pending the trial have committed the murders of these persons at the time and place of occurrence, the prosecution rested its case on the direct evidence by examining P.Ws.1, 2, 5, 6, 9 and 11 as eyewitnesses. Out of these six witnesses, P.Ws.1, 2, 5 and 6 are injured witnesses. It is true that these witnesses were all closely related to each other and also related to all the deceased persons. It is well settled proposition of law that merely because of the relationship of the witnesses to https://hcservices.ecourts.gov.in/hcservices/ the deceased, their evidence cannot be discarded, but it could be subjected to careful scrutiny. That apart, it is also well settled that in a given case like this, where the prosecution has marched occurrence witnesses who are actually injured, unless and until a strong circumstance or reason is brought forth, the Court should not discard the testimony. In the case on hand, out of these witnesses, P.Ws.1, 2, 5 and 6 were injured witnesses. Their testimonies were subjected to careful scrutiny. This Court is unable to notice any reason to discard or even to look it with suspicion. The trial Court marshaled the evidence proper and found that their evidence was trustworthy since it has inspired the confidence of the Court. That apart, the evidence of P.Ws.1, 2, 5 and 6 were also fully corroborated by the evidence of P.Ws.9 and 11. Therefore, in the considered opinion of the Court, the prosecution by direct evidence as marched before the trial Court, has proved the said fact that these accused persons indulged in the criminal acts in the night hours and have caused the death of those six persons and also caused injuries to P.Ws.1, 2, 5 and 6. 16.It is pertinent to point out that all these injured persons P.Ws.1, 2, 5 and 6 were taken to Vaniyambadi Government Hospital immediately, and they were given treatment by P.W.3, the Doctor, and the accident register copies were marked as Exs.P2 to P5 for P.Ws.1, 2, 5 and 6 respectively wherein all have spoken to the fact that they were injured by three persons at the place and time of occurrence. It remains to be stated that all these documents have come into existence even before the registration of the case, and the defence is unable to show any reason why these earliest documents should not be accepted by the Court. Thus, the evidence of P.Ws.1, 2, 5 and 6 stood fully corroborated by the evidence of P.Ws.9 and 11 and also the accident register copies Exs.P2 to P5 as referred to above. Apart from that, on arrest, A-1 and A-2 have volunteered to give confessional statements which were recorded, and on production, the weapon of crimes were recovered from them. In view of the above evidence coupled with the evidence of the postmortem Doctors, P.Ws.4, 7 and 10 and also the contents of the postmortem certificates that the deceased have died out of shock and haemorrhage due to the injuries sustained, this Court is of the considered opinion that the prosecution has proved the guilt of the accused beyond reasonable doubt. Further, in the instant case this Court is of the view that all these contentions now put forth by the learned Counsel for the appellants do not make out any point in favour of the appellants/accused. 17.The learned Counsel brought to the notice of the Court that though six witnesses were examined, there were discrepancies noticed in their evidence. At this juncture, it remains to be stated that the occurrence has taken place between 1.00 A.M. and 2.00 A.M. on 10.3.1995 when all these injured persons were actually sleeping that time and three persons armed with weapons have attacked the deceased, and in the course of the same transaction, P.Ws.1, 2, 5 and 6 were also injured, and injuries were caused by the accused. The discrepancies brought to the notice of the Court are bound to occur, and it would not in any way affect the truth of the prosecution case. https://hcservices.ecourts.gov.in/hcservices/ 18.As far as the contention that though A-2 stood charged for the murder of D2 and D6, the overt acts attributed to him by the witnesses did not find place in the postmortem certificates issued is concerned, when the certificates are looked into, this Court is unable to agree with the learned Counsel for the appellants. 19.The other contention that it was claimed by the prosecution that A-1 appeared before P.W.8, who has actually recorded the statement; but, he was neither a VAO nor a Government Official who was competent or empowered to record the confessional statement, though attractive at the first instance, does not stand the scrutiny of law. According to P.W.8, he was already known to A-1, and hence A-1 appeared before him and narrated the incident. Usually when any accused appears before a person who is an associate or close to him and makes an extra-judicial confession, he used to take him to the Police Station. In the instant case, P.W.8 has reduced the information into writing by which it cannot be stated that it is illegal or should be rejected. It is true that if the person is a VAO or any Government Official, he has to record the same following the procedural formalities, but the same are not applicable to P.W.8. P.W.8 has produced A-1 before P.W.22, the Investigator. At this juncture, it is pertinent to point out that P.W.22 has deposed that after A-1 was arrested, he volunteered to give a confessional statement. The admissible part is marked as Ex.P38, following which he also came forward to produce M.O.1, knife, and M.O.4, shirt. For the arrest, confessional statement and recovery of M.Os.1 and 4 on production by A-1 and recovered by the Investigator under a cover of Ex.P16 mahazar, the prosecution brought forth necessary evidence, and the evidence projected through P.W.8 remained unshaken. Under the circumstances, it leaves no doubt in the mind of the Court to accept that part of the evidence. Therefore the contention put forth by the learned Counsel for the appellants does not merit acceptance. 20.The last feeble contention put forth by the learned Counsel for the appellants is that at the final paragraph of the judgment, the lower Court has given a finding as if A-2 had committed the murder of D3 and D5 instead of D2 and D6 and hence the judgment of the trial Court has got to be set aside. The Court made a thorough scrutiny of the judgment under challenge. All the witnesses have spoken to the effect and also the trial Court while making discussion has recorded that A-2 has committed the murder of D2 and D6, but at the final paragraph of the judgment, a mistake has crept in in describing the name of the deceased, and instead of D2 and D6, it is mentioned as D3 and D5. The same, in the considered opinion of the Court, will not in any way affect the judgment, and thus the contentions put forth by the learned Counsel for the appellants do not merit acceptance. They are to be rejected and accordingly rejected. Thus the prosecution has proved the case beyond reasonable doubt, and the charges in respect of A-1 for murder of D1, D2, D4 and D6 and A-2 for murder of D2 and D6 have been clearly proved. Taking into consideration the time and place of occurrence and the act in which they have also attacked the deceased persons, the nature of the acts committed cannot but be termed only as murder, and thus the trial