IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05/03/2003 CORAM THE HONOURABLE MR.JUSTICE N. DHINAKAR AND THE HONOURABLE MR.JUSTICE R. BALASUBRAMANIAN R.T. No. 2 of 2003 and CRL.APPEAL No.204/2003 R.T. No. 2/2003 Additional Sessions Judge- cum-Chief Judicial Magistrate, Tuticorin. ..Referring Officer -Vs- 1. Shankara Narayan 2. Santhanapandi 3. Saravanan ..Respondents C.A. No.204/2003 1. Shankara Narayan 2. Santhanapandi 3. Saravanan ..Appellants Vs. State rep. by the Inspector of Police, Ettayapuram Police Station, Tuticorin District. (Crime No.154/2000) ..Respondent Prayer: Referred trial for confirmation of death sentence passed by judgment dated 8.1.2003 in S.C.No.514/2001 on the file of the Additional Sessions Judge-cum-Chief Judicial Magistrate,Tuticorin and Criminal Appeal by the accused in S.C.No.514/2001 against the same judgment. !For Appellants in C.A.No.204/2003/ Respondents in R.T. No.2/2003 :: Mr.O. Venkatachalam and Mr.N.Doraiswamy ^For Respondent in C.A.No.204/2003 :: Mr.I. Subramanian, Public Prosecutor :J U D G M E N T (Judgment of the Court was delivered by R.BALASUBRAMANIAN,J) The appellants in the appeal stand convicted in S.C. No. 514/2001 on the file of the Additional Court of Sessions, Tuticorin, for offences under Section 302 r/w Section 34 I.P.C. (5 counts) and Section 307 r/w Section 34 I.P.C. For the offence of murder, each one of them stands sentenced to be hanged till their death and for the other offence, each one of them stands sentenced to undergo 7 years RI. Consequent to imposing death sentence, the Court of Sessions made a reference to this Court and it is R.T. No.2/2003. The convicted accused have also filed a separate appeal namely C.A. No. 204/2003. Since both the proceedings arise out of one sessions case, we are inclined to dispose of the same by this common judgment. Heard the learned counsel on either side. 2. For convenience sake, we will refer to the five deceased in this case D-1, D-2, D-3, D-4 and D-5. D-5 is the wife of D-1 and D-4 is their daughter. D-2 is the younger brother of D-1 while D-3 is the brother of D-4. A-1 to A-3 are brothers. A-3 is the husband of D-4. The case of the prosecution is that at 7.15a.m. on 30.8.2000, when all the deceased along with P.W.s 1 to 3 and a few others went to the village of the accused to unite A-3 and his wife D-4, all the accused sharing the common intention, fatally attacked the five persons, out of whom four died on the spot while one died in the hospital, a few days later. In the course of the same transaction, they also made an attempt on the life of P.W.2 and he luckily survived. To substantiate the charge, the prosecution examined three witnesses as eyewitnesses to the occurrence, out of whom, P.W.2 is an injured eye-witness. Let us summarise in short here under the oral evidence of P.W.1: "D-1 is his brother-in-law; all the accused are known to him and they reside at Thalaikattupuram; Maheswari  D-4 is the daughter of D-1; about three years prior to the occurrence, marriage between A-3 and Maheswari took place; they were living together for about 7 or 8 months and even during that time, the spouses were quarrelling; this made D-4 leave her matrimonial abode and take shelter under her father; D-1, with a view to bring peace between the spouses, asked P.W.5 to mediate; P.W.5 told D-1 to send his daughter; however, D-1 insisted that unless A-3 comes, he will not send his daughter; P.W.5 is the junior paternal uncle of the accused; the witness along with P.W.5 went to Thalaikattupuram to ask A-3 to come to D-1's house and take his wife with him; On the way, A-3 was seen in the bus-stand and when he was asked to come and take his wife, he refused stating that they can send his wife on their own; this was informed to D-1; a few days later, D-4 was sent in the company of P.W.2 and D-5 to Thalaikattupuram; later, one Muthiah of Sadanandapuram died; A-3's sister had been given in marriage to Muthiah's son; therefore, A-3 was asked to come for condolence; P.W.2 went to inform A-3 about that; A-3 told P.W.2 that he will not come and signing in a white paper told P.W.2 to take Maheswari with him; P.W.2 refused to take D-4 and returned to the village; D-1 and D-5, four days later, went to Thalaikattupuram and at that time, D-4 informed them that she cannot live any more at Thalaikattupuram as she was subjected to cruelty and harassment; D-1 and D-5 informed D-4 that they will bring elderly people from their village and try to settle her life with her husband and even after that, if A-3 is not coming around, then a complaint can be given at the Ettayapuram Police Station; on the morning of 30.8.2000(the date of occurrence), all the five deceased along with a few more left in a van driven by P.W.4 to Thalaikattupuram; totally 13 people travelled in that van; they had coffee around 7 or 7.15a.m. at Kovilpatti and then reached Thalaikattupuram where the vehicle was parked south of the house of A-1; the witness went to get P.W.5 and P.W.5 accordingly accompanied him; they were conversing among themselves as to how the problem between A-3 and D-4 could be solved; when the witness and P.W.5 went inside the house of A-1 with A-3, A-1 and A-2 were standing outside the house. When the witness and P.W.5 were talking with A-3, they heard somebody shouting "stab, cut"; immediately, A-3 took an Aruval with him and ran out of the house; this made the witness also to come out and see what was happening; at that time, D-1 was found running towards north chased by A-1 and A-2. A-1 and A-2 were also armed with weapons; A-3 also followed them with the weapon in his hand; north of A-1's house, near the ration shop, D-1 was indiscriminately attacked by A-2, A-3, A-1 and A-3 again; P.W.2 stating that his brother is being cut, tried to save him; A-1 attacked P.W.2 on his right hand; at that time, D-2 intervened stating that his brother had been cut; A-1 did not spare him and cut him on his back with the weapon; D-3, who was also nearby was also attacked by A-1, A-3 and A-2; D-3 died on the spot; Maheswari-D-4 came running stating that her brother had been cut; she was cut by A-3 followed by A-1 and A-2 on various parts of her body; she also died on the spot; frightened D-5 ran for safety and she was stabbed by A-1 followed A-3, A-2 and again by A-1; she also died on the spot; all the accused ran away with the weapons in their hands for safety; he saw P.W.2 and Gurusamy, since deceased (D-2) with injuries. Gurusamy could not walk; he was carried by him, P.W.3 and others and brought to the main road; on seeing the occurrence, P.W.4, who was driving the van in which the witnesses and the deceased came, took his vehicle and drove it away; a bus from Vilathikulam towards Ettayapuram came in which Gurusamy, since deceased, and P.W.2 were taken to the Police Station; P.W.19, the Sub-Inspector of Police was there before whom P.W.1 narrated the incident; then injured P.W.2 and Gurusamy were sent to the hospital and then P.W.19 took a complaint from P.W.1; he wrote down the complaint to the narration of P.W.1 in which P.W.1 signed; Ex-P1 is the said complaint. Gurusamy, since deceased, died in the Government Hospital on 16.9.2000. In the spot itself, Muthusamy  D-1, Sundaramoorthy  D-3, Maheswari  D-4 and Guruvathai  D-5 died and their bodies were lying in the same place; M.O.s 1 to 3 are the weapons of offence used by the accused." On the occurrence proper, we have the evidence of P.W.s 2 and 3 in total corroboration to the oral evidence of P.W.1. Besides, P.W.2 had also given evidence as to how he came to sustain injuries and at whose hands. The circumstances under which P.W.2 had come to sustain the injuries had been spoken to by P.W.s 1 and 3. P.W.4 is the van driver, in which van, the deceased, witnesses and others came to Thalaikattupuram by leaving their village at 4 a.m. on 30.8.2000. He would state that all of them alighted near the house of A-1 and within 10 minutes thereafter, he heard a distress cry that somebody is being cut and he immediately left the place in his van. 3. P.W.19 is the Sub-Inspector of Police in the investigating Police Station. At 8.30a.m. on 30.8.2000, P.W.1 appeared before him and gave an oral complaint, which he reduced into writing. He had taken his signature in it and he registered it as Ex-P1 in Crime No. 154/200 0 for offences under Sections 302 and 307 I.P.C. He prepared Ex-P1 5, the printed First Information Report. He sent the material records to the Court as well as to the higher officials. P.W.20 is the Investigating Officer, who took up investigation immediately on collecting the material records at about 9.30a.m. on 10.8.2000. He reached the scene of occurrence where he found the dead body of Muthusamy (D-1 ) lying on the road. In the presence of P.W.9 and another, he prepared the Observation Mahazar  Ex-P16 for that place and Ex-P36-the rough sketch. By examining P.W.1 and others and in the presence of panchayatars, between 10.15a.m. and 11.15a.m., he conducted inquest over the dead body of Muthusamy (D-1). Ex-P37 is the Inquest Report. He sent the dead body through a police constable for postmortem. At 11.30a.m. on the same day, in the presence of witnesses, he recovered bloodstained earth and sample earth and a broken stick from the place where the body of Muthusamy was lying on the ground. He also noticed that the dead bodies of Sundaramoorthy, Maheswari and Guruvathai were lying on the same road separated by a short distance. In the presence of the same witnesses, he prepared Ex-P18, the Observation Mahazar and Ex-P38, the rough sketch in respect of the place where the three bodies referred to above were found lying. In the presence of the same witnesses, he conducted inquest between 12.30p.m. and 1.45p.m. on that day on the dead body of D-3 and prepared Ex-P39, the Inquest Report. Then, he sent the dead body through a police constable for postmortem. Over the dead body of D-4, he conducted inquest between 1.4 5p.m. and 3.10p.m. in the presence of the same witnesses and panchayatars and prepared Ex-P40, the Inquest Report. Then, he sent the dead body for postmortem through a police constable. In the presence of the same witnesses and panchayatars, he conducted inquest between 3.3 0p.m. and 4.30p.m. on the same day over the dead body of D-5 and prepared Ex-P41, the Inquest Report. Then, he sent that dead body also for postmortem through a police constable. 4. P.W.13 is the police constable, who was present during postmortem on D-1. After postmortem, he removed M.O.s 14 to 19 from the dead body and handed over the same to the Investigating Officer. P.W.14 is the police constable, who was present throughout postmortem done on D-3 and after postmortem, he removed M.O.s 20 to 23 from the dead body and handed over the same to the Investigating Officer. Likewise, P.W.15 is the constable, who was present throughout the postmortem on D-4 and after postmortem, he removed M.O.s 24 to 32 from the dead body and handed over the same to the Investigating Officer. P.W.16 is the last of the four police constables, who was present throughout the postmortem done on D-5 and after postmortem, he removed M.O.s 33 to 40 from the dead body and handed over the same to the Investigating Officer. P.W.6 is the doctor, who did postmortem on the respective dead bodies of D-1, D-3, D-4 and D-5 on receipt of Exs-P2, P4, P6 and P8 requisitions brought by the respective police constables. During postmortem on the body of D-1, she found various symptoms as noted in Ex-P3, the postmortem report. The Doctor is of the opinion that the deceased would appear to have died of the cumulative effect of shock and haemorrhage due to the injuries sustained. Injury No.4 is fatal in nature. The symptoms as noted by the doctor are as follows: "Injuries:- 1. A cut injury right side of face about 4cm x 3 cm x 3cms. cutting muscle underneath. 2. A cut injury just below injury No.1 over right mandibular region about 12 cm x 5 cm x 5 cm lacerating the muscles and fracturing the bone underneath. 3. A cut injury 2 cms above injury No.1 starting from right maxillary region extending to the nose and cutting it in middle about 9 cm x 4 cm x 3 cms lacerating the muscles and fracturing the bones underneath. 4. A cut injury right side of neck about 15 cm x 8 cm x 9 cm severing the muscles, blood vessels, nerves and cervical vertebral with spinal cord at c4 level. 5. A cut injury is behind right ear about 10 cm x 3 cm upto bone depth fracturing it. 6. A cut injury over left elbow, Totally severing the joint bones muscles on lateral aspect, blood vessels and nerves leaving. Skin and muscles on medial aspect. 7. A cut injury over dorsal aspect of right wrist about 3 cm x 2 cm x 1 cm. 8. A cut injury 1" below injury No.7 over right hand about 6 cm x 3 cm x 3 cm severing the tendons and fracturing the bones underneath. Skull : Fracture of right temporal bone. Brain Normal. Thorax: Heart empty. Lungs pale. Abdomen Stomach empty other internal organs pale. Post-mortem concluded at 2 p.m. on 30.8.2000. Death would have occurred 5  7 hours prior to Post-mortem. Opinion as to cause of death: The deceased would appear to have died of the cumulative effect of shock and haemorrhage due to the injuries sustained. Fatal injury Injury No.4" During postmortem on the body of D-3, the doctor found various symptoms as noted by her in Ex-P5, the postmortem report. According to the doctor, the deceased would appear to have died of the cumulative effect of shock and haemorrhage due to three injuries sustained and injury No.1 is fatal in nature. The symptoms noted by her are as follows: "Injuries: 1. A cut injury right side of neck about 18 cms x 12 cm x 10 cm severing blood vessels, muscles nerves and vertebral with spinal cord at c4 level. 2. A cut injury over right mandibular region about 10 cm x 5 cm x 4 cm fracturing the bone underneath. 3. A cut injury over right ear pinna about 4 cm x 1 cm. 4. A cut injury over anterior aspect of left shoulder about 6 cm x 4 cm x 3 cm. 5. A cut injury over left mammary region 2 cms below left collar bone about 9 cm x 5 cm upto bone depth fracturing 2nd 3rd and 4th ribs. 6. A cut injury middle of right forearm fracturing both bones and severing muscles, blood vessels and nerves  leaving tag of a cut torn 4 cm in width. 7. A cut injury (torn) about 12 cm x 6 cms upto bone depth lacerating the tendons and fracturing the bone underneath. The little ring and middle finger lacerated. 8. A cut injury 4 cm below left elbow fracture both bones severing muscles, blood vessels nerves  leaving a tag of skin with muscle about 3 cms width and 2 cms in thickness on medial aspect. 9. A cut injury left little finger about 3 cm x 2 cm bone depth fracturing it. 10. A cut injury right side of lower abdomen about 3 cm x 2 cm x 1cm. 11. A cut injury left side of lower abdomen about 6 cm x 2 cm peritoneal cavity opened. Small intestines protruding through it. 12. A cut injury over right knee about 6 cm x 4 cm x 3 cm. Skull: Brain Normal. Thorax: Heart Chambers empty. Lungs pale. Laceration in left lung upper lobs left lung collapsed. Abdomen: Stomach empty, other internal organs pale. P.M. concluded at 3.20p.m. On 30.8.2000. Death could have occurred 6-8 hours prior to P.M. Opinion as to cause of death: The deceased would appear to have died of the cumulative effect of shock and haemorrhage due to the injuries sustained. Fatal injury : Injury No.1" On the dead body of D-4, the doctor found various symptoms as noted by him in Ex-P7, the postmortem certificate. The doctor is of the opinion that the deceased would appear to have died of cumulative effect of shock and haemorrhage due to the injuries sustained and injury No.1 is fatal. The following are the symptoms noted by the doctor on the dead body of D-4: "Injuries: 1. A cut injury left side of chest  below the breast  starting from mid clavicular line  extending on to the back of chest about 30 cm x 10 cm. Opening the chest wall  collapsing the left lung and fracturing 6th to 8th ribs there. 2. A cut injury left side of face about 7 cm x 5 cm upto bone depth fracturing maxillary bone. 3. A cut injury left shoulder on poster aspect about 3 cm x 2 cm x 2 cms. 4. A cut injury just below injury No.3 about 3 cm x 2 cm x 2 cms. 5. A cut injury over right palm near the finger roots about 5 cm x 3 cm bone depth fracturing them (medial three). 6. A cut injury back of neck at l c3 level about 6 cms x 2 cm x 3 cm fracturing the bone C3. 7. A cut injury 2 cm above injury No.6 about 7 cm x 5 cm x 1 cm. 8. A cut injury 3 cm below injury No.6 about 4 cm x 2 cm x 1 cm. Skull: Normal. Brain Normal. Thorax: Fracture of ribs (Torn) on left side left lung collapsed. Both lungs pale. Heart chambers empty. There was a cut injury anterior wall of left side about 3 cm x 1 cm. Opening the cavity. Abdomen:Stomach empty. Other internal organs pale. P.M. concluded at 4.40p.m. on 30.8.2000. Death would have occurred 8-10 hours prior to Post-mortem. Opinion as to cause of death: The deceased would appear to have died of the cumulative effect of shock and haemorrhage due to the injuries sustained. Fatal injury : Injury No.1." On the dead body of D-5, the doctor found various symptoms as noted in Ex-P9, the postmortem certificate. According to the doctor, the deceased would appear to have died of the cumulative effect of shock and haemorrhage due to the injuries sustained and injury No.1 is fatal. The symptoms as noted in Ex-P9 are as follows: "Injuries: 1. A cut injury over neck at c4 level cutting vertebral C4 level with spinal cord, all major blood vessels and nerves veseles of neck  leaving a tag of skin about 5 cms in width anteriorly connecting the head to the body (length 32 cms  depth 12 cms.) 2. A cut injury 1 cm below right ear about 7 cm x 3 cm x 3cms. 3. A cut injury over right collar bone about 6 cm x 3 cm x 2 cm fracturing the bone. 4. A cut injury  middle of forehead about 2 cm x 1 cm x 1 cm. 5. A cut injury over right wrist about 4 cm x 3 cm x 2 cm. Skull: Normal, Brain normal. Thorax: Heart chambers empty. Lungs pale Abdomen Stomach empty. Other internal organs pale. P.M. concluded at 5.55p.m. on 30.8.2000. Death would have occurred 9-11 hrs prior P.M. Opinion as to cause of death: The deceased would appear to have died of the cumulative effect of shock and haemorrhage due to the injuries sustained. Fatal injury : Injury No.1" 5. P.W.20 continued the investigation further by examining witnesses and recording their statements. From the place where the dead body of D-3 was lying, he recovered bloodstained earth and sample earth under a mahazar attested by witnesses. Likewise, bloodstained earth and sample earth were also recovered from the place where the dead bodies of Maheswari and Guruvathai were lying in the presence of witnesses under mahazars. He examined P.W.19 and recorded his statement. He handed over further investigation in this case as per the orders of his superior to P.W.21, another Inspector of Police. P.W.21 continued the investigation further in this case. He verified the investigation already done by P.W.20. He examined Gurusamy (D-2) and Lakshmanan (P.W.2)in the hospital on 10.9.2000 and recorded their statements. He came to know that all the accused have surrendered in Court and accordingly, he moved an application before the Court seeking police custody of all the three accused. Acco rdingly, police custody was given to him. When the accused were in police custody, he examined each one of them in the presence of P.W.s 8 and 12. Each one of the accused gave a voluntary confession statement, the admissible portions of which are Ex-P13, Ex-P14 and Ex-P15 respectively. Pursuant to the above referred to confession statements, under Exs-P43, P44 and P45, M.O.s 1, 2 & 3 came to be recovered respectively. The accused were then surrendered before the Court. He came to know that Gurusamy taking treatment in the Government Hospital died on 16.9.2000. He conducted inquest over the dead body of Gurusamy in the hospital in the presence of panchayatars and witnesses and prepared Ex-P46, the Inquest Report. He sent a requisition for postmortem to be conducted on the dead body of Gurusamy. P.W.7 is the doctor, who did postmortem on the dead body of Gurusamy on receipt of Ex-P11 requisition. During postmortem, he found various symptoms on the dead body as noted in Ex-P12 , the postmortem certificate. The Doctor is of the opinion that the deceased would appear to have died on account of cut injury on the right side of back. The symptoms noted by the doctor are as follows: "Injuries noted: 1. Sutured wound (sutures both ends) (surgical procedure, ICD), 4 x 1 = cm x viscera depth close to the right nipple. 2. Vertically oblique (Sutured and sutures removed) cut injury, 10 cm long x lung deep, on the middle of right side of back. On dissection it is lung deep. The cut injury has entered the thoracic cavity right side through the space between 4th and 5th ribs on the right side (back). Fourth rib on the right side cut in its back (course of cut injury). This injury cuts the base of right lung which is found collapsed. Right thoracic cavity contains 250 ml of puurlent material. Right side of diaphragm and upper part of right lobe of liver found lacerated 10 x 5 x 4 cm. Peritoneal cavity contains 300 ml of seropurulent fluid. 3. Abrasion 4 x 1 cm right forearm. Heart: Normal. Coronaries : Patent. Hyoid Bone: Intact Lungs: Congested. Stomach: Contains 30 ml of mucosal fluid. Nil Specific Smell. Mucosa: Normal. Liver, Spleen and kidneys: C/s. Congested. Small Intestine: Contains 30 ml of bile stained fluid. Nil specific smell. Mucosa: Normal. Bladder: Normal. Opinion as to cause of death: The deceased would appear to have died of complication of cut injury on the right side of back." P.W.17 is the police constable, who was present throughout postmortem on D-2. P.W.21 continued the investigation further by examining the doctor, who did postmortem on the body of D-2. He sent the case properties to the Court with a requisition to subject the same for chemical examination. P.W.10 is the Magisterial Clerk, who speaks about the receipt of the case properties and the requisition Ex-P22 given by the Investigating Officer to subject the same for chemical examination. Along with the Court's letter Ex-P23, the case properties were sent to the