IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03/09/2002 CORAM THE HONOURABLE MR.JUSTICE P.SHANMUGAM AND THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM CRIMINAL APPEAL NO.75 of 1995 1. Chinnaiah @ Chinnasamy 2. Ravi 3. Nagarajan 4. Deivendran 5. Muniandi 6. Chezhian 7. Ganesan 8. Narayanan .. Appellants/Accused 1 to 8 -Vs- State by Inspector of Police Elayankudi Police Station (Cr.No.736/90) .. Respondent/complainant This Criminal Appeal is preferred under S.374(2) of Code of Criminal Procedure against the judgment of the learned Sessions Judge, Pasumpon Muthuramalinga Devar District, Sivaganga dated 23.12.1994 in S.C. No.16 of 1993. !For Appellants : Mr.V.Raghupathi for A-1, A-2, A-4 and A-6 Mr.R.Karthikeyan for A-3, A-5, A-7 and A-8 ^For Respondent : Mr.S.Jayakumar, Additional Public Prosecutor :JUDGMENT M.CHOCKALINGAM, J. The appelants herein, who were ranked as A-1 to A-8 in S.C.No.16/93 on the file of the Principal Sessions Court, Sivaganga, have assailed the judgment wherein they were found guilty and sentenced to imprisonment as shown below. ------------------------------------------------------------ Accused Sentence Offence (I.P.C.) ------------------------------------------------------------ A-1 Life imprisonment 302 r/w 34 5 years R.I. 307 r/w 34 1 year R.I. 148 5 years R.I. 449 1 year R.I. 324 r/w 34 A-2 Life imprisonment 302 r/w 34 5 years R.I. 307 r/w 149 1 year R.I. 148 5 years R.I. 449 1 year R.I. 324 r/w 34 A-3 Life imprisonment 302 r/w 34 148 5 years R.I. 307 r/w 149 5 years R.I. 449 1 year R.I. 324 1 year R.I. 324 r/w 34 A-4 Life imprisonment 302 r/w 34 1 year R.I. 148 5 years R.I. 307 r/w 149 5 years R.I. 449 1 year R.I. 324 r/w 34 A-5 Life imprisonment 302 r/w 34 5 years R.I. 307 r/w 34 1 year R.I. 148 5 years R.I. 449 1 year R.I. 324 r/w 34 A-6 Life imprisonment 302 r/w 34 1 year R.I. 148 5 years R.I. 307 r/w 34 5 years R.I. 449 1 year R.I. 324 r/w 34 A-7 Life imprisonment 302 r/w 34 1 year R.I. 147 5 years R.I. 307 r/w 34 5 years R.I. 449 1 year R.I. 324 r/w 34 A-8 1 year R.I. 147 5 years R.I. 307 r/w 34 ------------------------------------------------------------ A-9 to A-11 in the said case were acquitted of all the charges against them. 2. On 24.8.1990 at about 2.00 hours in Door No.76, Melapidarichery, Brahmanakurichi Village, the appellants, ranked as A-1 to A-8 in the case along with six others armed with deadly weapons like aruval, patta knife, revolver, etc., constituted an unlawful assembly with the common object to commit the murder of Rajasekaran, P.W.3 Malarkodi and the deceased Manimaran, forcibly entered into the said house, committed the murder of Manimaran, and attempted to cause the murder of and cause grievous injuries to the witnesses, which warranted the framing of the following charges against the appellants. ------------------------------------------------------------ Serial No. Accused Section ------------------------------------------------------------ 1. A-7 and A-8 147 IPC A-1 to A-6 148 IPC 2. A-3 323 IPC 3. A-1, A-2 and A-4 to A-8 323 r/w 149 IPC 4. A-1 to A-8 449 IPC 5. A-1 to A-7 302 r/w 34 IPC 6. A-8 302 r/w 149 IPC 7. A-3 326 IPC 8. A-1 and A-7 324 r/w 34 IPC 9. A-1 and A-5 to A-8 307 r/w 34 IPC 10. A-2 to A-4 307 r/w 149 IPC 11. A-1 and A-6 25 (1B)(A) of Arms Act 12. A-3 and A-6 342 IPC 13. A-1 to A-8 427 IPC ------------------------------------------------------------ 3. The brief facts necessary for consideration of this appeal can be stated as follows: P.W.1 Rajasekaran was residing at Thoothai Village. He owned a tractor with Registration No.TN 63-0954, which he used to hire for agricultural operations and was earning out of it. One Balaguru Servai, a pangali of P.W.1 was also residing in the said Village. There was pre existing enmity between the families. On 24.6.1990, when the said tractor was driven by Dhanasekaran, the younger brother of P.W.1, an accident took place, in which the said tractor and a motorcycle driven by Chellamuthu, son of Balaguru Servai dashed against each other, and in that collision, Chellamuthu died. Balaguru Servai and his family members became inimical to P.W.1's family, since they thought that the death of Chellamuthu was deliberately caused by Dhanasekaran. Ten days prior to the occurrence, on the request made by P.W.22 Arumugam, P.W.1 took his tractor to Brahmanakurichi on contract basis for the agricultural operations and stayed at his house at Door No.76, Melapidaricheri, Brahmanakurichi Village. On 24.8.1990 at about 2.00 hours, P.W.1, the deceased Manimaran, his wife Jothi, and one Arumugam, all were sleeping in the inner room, while P.W.22 Arumugam and his wife P.W.3 Malarkodi were sleeping outside. P.W.6, Bhoominathan, the brother of Manimaran was sleeping at the motor room. At about 2.00 A.M., P.W.3 Malarkodi hearing the noise and commotion woke up first, and following her, all the persons present there woke up. P.W.1 switched on the light and saw through the window and witnessed the appellants and the other accused armed with patta knife, aruval, revolver, Velkambu and sticks. On seeing P.W.1, A-1 shouted "He is here, kill him". When the accused came near P.W.1, P.W.22 Arumugam and his wife P.W.3 Malarkodi intervened. A-1 shouted "cut them also". Immediately P.W.22 and his wife P.W.3 escaped from the scene of occurrence. P.W.1 closed the door and bolted. The accused forcibly opened the door and made entry into the room. The deceased Manimaran questioned A-1 why they should attack them. On hearing this, A-1 uttered "you have brought him here and have given shelter" and A-1 directed the other accused to finish him first. Immediately A-3 attacked the deceased Manimaran with an aruval on the back of right knee. A-1 gave a severe blow on the left chest of the deceased with a patta knife. A-3 attacked P.W.5 Jothi on the left ankle with an aruval. A-1 also attacked P.W.6 Bhoominathan on the right knee with patta knife. Because of fear, P.W.1 ran into the inner room. A-6 Chezhian attempted to fire at P.W.1 through the pistol. Since the bullet did not come out, he opened the revolver to check the same. At that time, one of the accused removed the tiles from a corner of the house and caused simple injury by pinning with a stick. Again A-6 made an attempt to fire at P. W.1, but failed. Seeing this, A-1 took the revolver from A-6 and fired twice on P.W.1. But, on both occasions, the bullets without touching him pierced into the wall. P.W.1 managed to remove the reaper on the roof and came out of the house. The accused proclaimed that Manimaran was dead and fled away from the scene of occurrence. 4. P.W.1 escaped from the place of occurrence, ran to the house of P.W.2 Velu and narrated the whole incident. P.W.1 stayed there till dawn of the day. P.Ws.1 and 2 went to Ilayankudi Police Station at about 9.00 A.M. P.W.23, Sankar, Sub Inspector of Police, who was in charge of Ilayankudi Police Station, recorded the statement of P.W.1 which is Ex.P1. On the strength of Ex.P1, he registered a case in Crime No.736/90 under Ss 147, 148, 324, 307 and 302 of Indian Penal Code read with S.25(A1) of Arms Act read with S.34 of I.P.C. against the accused. Ex.P35 printed First Information Report and Ex.P1 statement were despatched to the concerned Judicial Magistrate, Sivaganga. P. W.1 Rajasekaran, P.W.5 Jothi and P.W.6 Bhoominathan, who have sustained injuries at the time of the occurrence, were sent by P.W.23 to the General Hospital for treatment with a medical memo. On receipt of the information through V.H.F., P.W.24 Ramaiah, Inspector of Police, proceeded to Melapidaricheri. He received a copy of the First Information Report from P.W.23, Sub Inspector of Police and took up the investigation. The Investigation Officer made inspection of the scene of occurrence in the presence of P.W.1 and one Muthusamy and prepared Ex.P14 Observation Mahazar and Ex.P36 rough sketch. He conducted inquest on the body of Manimaran between 11.00 A.M. and 1.00 P.M. and prepared Ex.P37 inquest report in the presence of the said witnesses. 5. On 24.8.1990 at about 11.15 A.M., P.W.7 Dr.A.Ravindran examined P.W.1 Rajasekaran and found the following injuries. 1. An irregular gaping wound at the outer end of left eye brow «" x ¬ " x ¬". 2. An oblique contusion on left upper back 3x1/4" x ¬". 3. An abrasion on left side of the abdomen ¬" x ¬". 4. Pain in the upper row of gums in the left half. P.W.7 has opined that those injuries were simple and has issued Ex.P3 wound certificate. At about 10.45 A.M. P.W.7 Doctor examined P.W.5 Jothi and found the following injuries. 1. Patient conscious and gave the above statement. 2. A gaping wound with clear cut margins on the left foot top at the junction of the leg & foot exposing the inner tendons and muscles 3" x 2" x «". On x-ray, the following was found. -X-ray left ankle with foot AP Lat. -Fracture lower end of left tibia. P.W.7 Doctor has opined that the nature of injury is grievous and has issued a wound certificate under Ex.P4. At about 11.00 A.M., P.W.7 Doctor examined P.W.6 Bhoominathan. He found the following injuries on him. 1. A gaping wound with clear cut margins on Rt. knee running obliquely 2" x «" x «". 2. A contusion on left middle back 1" x ¬" x ¬". The Doctor has opined that the injuries were simple in nature and has given Ex.P5 wound certificate. 6. After the inquest was over, the Investigation Officer sent the dead body through P.W.20 Perumal, a constable, to the General Hospital for postmortem with Ex.P7 requisition. On receipt of Ex.P7 requisition, P.W.7 Dr.Ravindran, commenced the postmortem at 4.15 P.M. on the dead body and found the following injuries. 1) An oblique spindle shaped wound 5 x 2 cm on the middle of neck left side with tapering and downwards with clear cut margins with blood clots. Cut muscles and cut vessels seen through the wound. 2) An oblique spindle shaped wound of 5 x 2 « cms with clear cut margins on the left chest 6" below the nipple and 2 cms away from midline of the chest, running downwards medially and inwards towards the right with blood clots seen. 3) A horizontal incised wound of 10 x 10 x 6 cms with clear cut margins on the right leg 10 cm below the popletial fosse, exposing the bones, muscles, with blood clots. 4) Horizontal incised wound of 5 x 2 x 1 cms with clear cut margins just 1 cm above the wound 3 with blood clots. 5) An oblique incised wound of 5 x 4 x 3 cms with clear cut margins on the back of left thigh 10 cms above the popletial fosse with blood clots. 6) An oblique incised wound of 4 x 3 x 3 cms on the medial aspect of left thigh 10 cms above the knee joint with blood clots. 7) An incised wound of 4 x 3 x 1 cm on right gluteal region in the upper outer quadrant with blood clots. 8) A horizontal incised wound of 9 x 4 x 3 cms on middle of sacral region exposing the muscles. 9) A horizontal incised wound of 5 x 4 x 1 cm on the inner quadrant of left gluteal region. 10) An incised wound 5 x 2 x 1 cm on the back of left arm encircling the axilla with blood clots. 11) An incised horizontal wound of 1 « x 1 x 1 cms on the left supra scapular region. 12) An incised wound of 1 x « x « cms over the 5th metacarpo phalangeal joint of right hand. 13) An incised wound of « x ¬ x ¬ cm on the 4th metacarpo phalangeal joint of right hand. 14) An oblique incised wound of 5 x 2 x 1 cms on the medial side of left palm with blood clots. 15) An abrasion of « x ¬ cms on left knee. 16) An oblique incised wound 6 x 3 x 1 cm on the back of middle of left fore arm with blood clots. P.W.7 Doctor has issued Ex.P8 postmortem certificate and has opined that the deceased would appear to have died of shock and haemorrhage due to injuries to vital organs and multiple injuries. 7. After the postmortem was over, M.O.18 bloodstained banian, M.O.19 bloodstained trouser, M.O.20 bloodstained lunghi and M.O.21 waist thread, which were recovered from the dead body of Manimaran, were handed over to P.W.20 Constable, who produced them before the Investigation Officer. P.W.24 Inspector of Police, recovered M.O.10 bloodstained earth, M.O.11 earth without bloodstain, M.O.12 (series) fired bullets, M.O.13 unfired bullet and M.O.14 (series) fired bullets under Ex.P15 Mahazar. The damaged tractor was sent for inspection by the Motor Vehicle Inspector. The report given by P.W.13, Natarajan, Motor Vehicle Inspector, on inspection of the tractor is marked as Ex.P16. The Investigation Officer enquired P.Ws. 1, 5 and 6 at the Government Hospital, Ilayankudi and recorded their statements. He recovered M. O.23 banian from P.W.1, M.O.24 saree from P.W.5, and M.O.25 Lunghi from P.W.6. The Investigation Officer sent P.W.3 Malarkodi to the General Hospital for treatment. On 25.8.1990 at 4.45 P.M., P.W.4 Dr. Raheema Usman examined P.W.3 Malarkodi and found the following injuries. -Pain on the left ear and left cheek present. P.W.4 Doctor has opined that the said injury was simple and has given Ex.P2 wound certificate. 8. On information that A-1, A-3 and A-4 surrendered before the court, he applied before the concerned court for police custody for the purposes of interrogation. Pursuant to an order dated 13.9.1990, he took A-1, A-3 and A-4 and enquired them. On 13.9.1990, A-1, A-3 and A-4 gave separate confessional statement in the presence of P.W.15 Muniyandi and Pakkan. Following the same, A-1 produced M.O.3 patta knife, and the Investigation Officer recovered the same under Ex.P18 mahazar in the presence of the said witnesses. As per the confessional statement given by him, A-4 produced M.O.4 Velkambu, and the same was recovered by the Investigation Officer under Ex.P19 mahazar in the presence of the witnesses. Following the same, A-3 produced M.O.1 aruval, which was recovered under Ex.P20 mahazar in the presence of the same witnesses. Despite the information given by A-1 regarding the revolver, the same could not be traced out. A house search was made in the residence of the first accused, and Ex.P39 house search mahazar was prepared. On 16.9.1990, at about 14.30 hours, A-2 and A-10 were arrested at Manamadurai-Madurai Road, Milaganoor Junction, and their confessional statements were recorded separately. M.O.26 Ambassador Car bearing Registration No.MD 6233 was recovered from A-10 under Ex. P40 mahazar in the presence of P.W.16 and one Marimuthu. The Investigation Officer recovered M.O.2 patta knife, produced by A-2, under Ex. P41 mahazar in the presence of the witnesses. On 19.9.1990, at about 1.45 P.M., P.W.7 Doctor examined A-3 Nagarajan and found the following injuries. 1. A healed scab formed linear horizontal wound on the left wrist back about 2 «" x ¬". The Doctor has opined that the injury found on him was simple and would have been caused by M.O.1 aruval. He has issued Ex.P6 wound certificate. 9. On 23.9.1990 at 1.00 P.M., when A-8 was arrested at Manjapattinam, Paramakudi, he gave a confessional statement, and the same was recorded in the presence of P.W.17 Marimuthu and Sivanandam. A-8 took the police party to Padamathur-Thirupachi Road, Kavaloor Junction and produced M.O.6 stick, M.O.7 stick and M.O.17 stick. The Investigation Officer recovered them under Ex.P24 mahazar in the presence of the above witnesses. On 24.8.90, P.Ws.1, 3, 5, 6, 9, 22 and Arulandhu were enquired and their statements were recorded. On 23.9.90 at 1.00 P.M., A-7 was arrested at Vaigai River Bridge, Manjapattinam. As per his confessional statement, he produced M.O.8 bamboo stick in the presence of P.W.17 and Sivanandam. The Investigation Officer recovered the same under Ex.P26 Mahazar. On 30.9.90, the statements of P.Ws.7 and 9 Doctors were recorded. On 9.10.1990, the 5th accused was arrested, and his confessional statement was recorded. Following the said confession, A-5 produced M.O.5 Velkambu in the presence of P.W.9 Savarimuthu and Subramaniam, and the same was recovered under Ex.P27 mahazar. On 9.10.1990 at about 10.30 P.M., A-6 was arrested near Elayankudi Panchayat Union Office. His confessional statement was recorded in the presence of P.W.19 Rajamanickam and Subramaniam. The Investigation Officer despatched all the material objects to the concerned Judicial Magistrate with Exs.P28 and P32 requisitions for chemical analysis. After the examination of the material objects, Exs.P30 and P31 Chemical Analyst's reports and Ex.P34 Serologist's report were received by the concerned court. The photographs pertaining to the place of occurrence are marked as M.O.15 (series), and the negatives are marked as M.O.16. The Investigation Officer obtained necessary permission from the District Collector to prosecute the accused under the relevant provisions of the Arms Act. 10. The Investigation Officer gave Ex.P9 requisition to the concerned Judicial Magistrate to conduct an identification parade. P.W.8, Mr.Devadas, Judicial Magistrate No.I, Sivagangai, sent Ex.P10 letter to the Chief Judicial Magistrate for permission to conduct the identification parade at Madurai Central Jail. On receipt of Ex.P11 order, P.W.8 issued Ex.P12 order directing the witnesses to be present on 27.10.1990 in that regard. 13 witnesses were produced. P.W.8 selected 40 persons identical to the accused. P.W.6 identified A-1 to A-9 and A-11, while P.W.5 identified A-1. P.W.22 identified A-1, A-2, A-5, A-7 and A-8. A-5 was identified by P.W.10. P.W.3 Malarkodi identified A-1 to A-8 and A-11. After completion of the identification parade, P.W.8 despatched Ex.P13 report to the Chief Judicial Magistrate. On completion of the investigation, the Investigation Officer laid the charge sheet. 11. In order to prove the charges, the prosecution has examined P. Ws.1 to 24, marked Exs.P1 to P43 and produced M.Os.1 to 26. When the accused were questioned under S.313 of Code of Criminal Procedure, they denied the version of the prosecution witnesses and would further add that their versions were false. On the side of the defence, D.W.1 was examined, and Exs.D1 to D7 were marked. One Kesavaram was examined as C.W.1, and Exs.C1 was marked. After hearing both sides, the learned Sessions Judge found the appellants-accused guilty and sentenced them as found above. Hence, this appeal. In respect of the charges, in which the appellants/accused were acquitted, the State has not preferred any appeal. 12. Arguing for the appellants, the learned Counsel would submit that the trial court should have acquitted all the appellants, who were ranked as A-1 to A-8, of all the charges, since the prosecution has miserably failed to prove the accusations made against them; that according to the prosecution, A-1 and others went to the scene of occurrence with a motive to murder P.W.1, in view of the earlier enmity that prevailed among the families; that the motive that was attributed was removed; that even if the accused entertained any such motive, they would have given effect to the same in their native place viz. Thoothai; that there was no need for them to visit Brahmanakurichi situated 40 or 45 kilometers away; that even according to the prosecution, the accused constituted an unlawful assembly with the common object of murdering P.W.1 and not anybody else; that though there were 15 accused armed with deadly weapons, no one attacked P.W.1; that it is pertinent to note that all the injuries sustained by him were simple and superficial; that according to the witnesses, it was A-1, who asked them to attack P.W.22 stating that it was he, who was harbouring P.W.1 ; that it is pertinent to note that the said P.W.22 and his wife P.W.3 escaped from the place of occurrence even before the commencement of the occurrence; that according to the prosecution, the assailants armed with deadly weapons, attacked the deceased Manimaran, an utter stranger, and thus the prosecution story was improbable and unbelievable; that it is pertinent to note that the appellants had neither the common intention nor the common object to attack the deceased, and hence, the prosecution story as to the common intention or common object has got to be rejected; that there was undue and unexplained delay in making a complaint to the police; that according to the prosecution, the occurrence has taken place at 2.00 A.M. on 24.8.1990, but the complaint was given by 9.00 A.M. i.e. after about 7 hours; that the explanation of the prosecution that P.W.1 escaped from the place of occurrence and went to the house of P.W.2 Velu and stayed over that night to keep himself safe, and then, he proceeded to the Police Station along with P.W.2 in a cycle could not be believed; that there was bus facility from 4.30 A.M. onwards, and hence, the delay in lodging the complaint has greatly affected the prosecution case. Added further the learned Counsel that it is highly artificial that the said complaint contained the names of eyewitnesses, all the overt acts and all the injuries caused to the deceased; that Ex.P1 complaint has come into existence only after consultation and deliberations; that at this juncture, it has to be pointed out that the occurrence has taken place during night hours; that while the prosecution has come forward with the case stating that the occurrence has taken place at 2.00 A.M., a duty was cast upon the prosecution to prove the fact of availability of light to show that the witnesses were able to see the occurrence; that in the instant case, it is pertinent to note that the light is not mentioned either in the Observation Mahazar or in the Rough Sketch or the photographs, which were the earliest documents, but the theory of light was an introduction and development at the time of the trial, and on that ground, the lower court should have rejected the prosecution case; that the prosecution has relied on the evidence of P.Ws.1, 3, 5 and 6 as eyewitnesses; that it is highly improbable that P.W.1, against whom all the accused had common intention to finish him of did not attack him, and he was able to escape from the place of occurrence; that as per the prosecution case, P.W.5 had sustained grievous injury at the time of occurrence by an attack made by A-3; that it remains to be stated that she has neither identified A-3 nor identified any one of the accused except A-1, which would make it highly doubtful whether she was present at the time of occurrence and sustained the injury as urged by the prosecution; that there is lot of inconsistency as to the overt acts committed by the respective accused in the evidence of the witnesses; that one Mani @ Manikandan mentioned as one of the accused, who participated in the alleged occurrence, was actually in judicial custody from 20-4-1990 to 5-10-1990, and this fact was proved by the defence through the evidence of P.W.24 and D.W.1, and this itself would clearly show the falsity of the prosecution case; that it is highly artificial on the side of the prosecution to state that despite attempts were made by two o f the accused persons, the bullet never hit at P.W.1, and if this has got to be believed, it would be clear that the occurrence should have taken place in utter darkness and persons, who were armed with deadly weapons like knife and aruval would not have spared P.W.1 at any rate; that it would be highly difficult to believe that when all the accused came to the scene of occurrence with the common object of doing away with P.W.1, they allowed P.W.1 to climb on the rooftop and to allow him to escape, but the prosecution has come forward to state that some of the accused climbed the roof, dismantled the tiles for attacking P.W.1, and the injuries alleged to have been sustained by P.W.1 were simple, which