BAIL SLIP Crl.A.No.591/2006 The Appellant/Accused No.2. namely C.Arunachalam,S/o. Chinnapillai, was released on bail as per the order of this Hon'ble Court, dated 17.8.2006 made in Crl.MP.No.2 of 2006 in Crl.A.No.591 of 2006 on the file of this Court. Crl.A.No.140 of 2006 The Appellant/Accused No.3, namely, Thangamani, S/o. Gopal, was released on bail as per the order of this Hon'ble Court, dated 8.9.2006, made in Crl.MP.No.4233 of 2006 in Crl.A.No.140 of 2006 on the file of this Court. Crl.A.No.202 of 2006 The Appellants/Accused Nos 4 and 5, namely, 1. Viswanathan @ Kuttakalai, S/o. Chellavel, and (2). Venkatesan, S/o. Arasan, were released on bail as per the order of this Hon'ble Court, dated 9.10.2006, made in Crl.MP.No.4294 of 2006 in Crl.A.No.202 of 2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11.03.2008 Coram: The Hon'ble Mr. Justice P.D.DINAKARAN and The Hon'ble Mr. Justice R.REGUPATHI Criminal Appeal Nos.591, 140 and 202 of 2006 and 822 of 2007 A.Nagarajan (A1) C.Arunachalam (A3) .. Appellants in C.A. No.591/2006/Accused 1 & 2 Thangamani (A4) ... Appellant in C.A. No.140/2006/Accused 3 https://hcservices.ecourts.gov.in/hcservices/ Viswanathan @ Kuttakalai(A5) Venkatesan (A6) .. Appellants in C.A. No.202/2006/Accused 4 & 5 D.Veerasamy (A2) .. Appellant in C.A. No.822/2007//Accused vs. State rep. by The Inspector of Police Sozhatharam Police Station Cuddalore District. (Crime No.99 of 2003) .. Respondent in all the Appeals./Complainants in all petitioners Appeals against the judgments dated 19.01.2006 and 25.04.2007, passed by the learned Principal Sessions Judge, Cuddalore, in S.C. Nos.138 of 2004 and 169 of 2005 respectively. For Appellants in : Mr.V.Gopinath, Sr. Counsel C.A.Nos.140 & 202/06 for Mr.A.Shivakumar and Mr.G.Pugalendhi For Appellants in : Mr.John Sathyan for C.A.Nos.591/06 & 822/07 Mr.K.Thilageswaran For Respondent : Mr.N.R.Elango, Addl. Public Prosecutor. COMMON JUDGMENT (Delivered by R.REGUPATHI,J.) These appeals are directed against the judgments dated 19.01.2006 and 25.04.2007 made in Sessions Case Nos. 138 of 2004 and 169 of 2005 respectively on the file of the learned Principal Sessions Judge, Cuddalore, whereunder the appellants herein were tried and convicted and sentenced as mentioned below. The appellants are referred to as per the rank mentioned in the charge sheet filed by the respondent. https://hcservices.ecourts.gov.in/hcservices/ 1.2. Charges were framed against all the six accused on 28.7.2004 for the offences punishable under Sections 120-B, 147, 148, 342, 302 r/w 109, 302 and 302 r/w 149 I.P.C. At the time when the trial was taken up, the second accused absconded and therefore, the case against him was split up. The first trial has been taken up against A1 and A3 to A6 and all the accused were convicted and second trial was taken up for the second accused separately and he was also convicted. Aggrieved against the conviction and sentence, A1 and A3 filed C.A.No.591 of 2006, A2 filed C.A.No.822/2007, A4 filed C.A.No.140 of 2006 and A5 and A6 filed C.A.No.202 of 2006. 1.3. The charge against the accused is that on 11.4.2003 at 6.00 p.m. near Pavadairayan Temple at Sithamallee, all the accused, due to prior enmity, assembled near Pavadairayan Temple, armed with deadly weapons, in pursuance of conspiracy, with a common intention to commit the murder of the deceased Velmurugan, committed the murder of the deceased. The following are the charges framed against the accused. 120-B I.P.C. - A1 to A6 147 I.P.C. - A1 to A6 148 I.P.C. - A1, A2, A5 and A6 342 I.P.C. - A3 and A4 302 read with 109 I.P.C. - A1 302 I.P.C. - A1 and A2 302 read with 149 I.P.C. - A3 to A6 1.4. Accused Nos.1 to 6, on being found guilty, were sentenced as hereunder: 302 r/w 149 IPC - A1 and A3 to A6 to undergo imprison- ment for life and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for three months; 302 r/w 34 IPC – A2 to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo rigorous imprison- ment for three months; 120-B IPC - A1 and A3 to A6 to undergo imprisonment for life; 120-B r/w 320IPC- A2 to undergo imprisonment for life; 147 I.P.C. - A3 and A4 to undergo rigorous imprisonment for three months; https://hcservices.ecourts.gov.in/hcservices/ 148 I.P.C. - A1, A2, A5 and A6 to undergo rigorous imprisonment for six months; 342 I.P.C. - A3 and 4 to undergo rigorous imprisonment for six months; and the substantive sentences of imprisonment shall run concurrently. 2.1. The case of the prosecution is that both the accused and the deceased were residing at Sithamallee Village situated within the jurisdiction of the respondent police. The accused and the deceased belong to different community. There was some misunderstanding between the groups of the accused and the deceased and the house of A1 and A2 was set fire to by the deceased and his group two and half years prior to the date of the occurrence. On account of that, a case has been registered against the deceased and it was pending. On account of enmity between the accused and the deceased, A1 was staying outside the village and six months prior to the date of occurrence, returned back to the village. Under such circumstances, on 11.4.2003 at about 6 p.m., the deceased, P.Ws.1, 2, 3 and 4 were watching cricket match played by the locals near Amman Temple and at that time, all the six accused approached the deceased Velmurugan to have a talk of compromise relating to the pending case against Velmurugan and others. The deceased also accompanied the accused to Pavadairayan Temple and at that time, all the accused alleged to have committed the offence. 2.2. The Prosecution, in order to substantiate its case, has examined P.Ws.1 to 15, marked Exs.P1 to P28 and produced M.Os.1 to 9. P.Ws.1 to 6 were cited by the prosecution as eye witnesses of the case. 2.3. P.W.1 narrated the motive part of the case of the prosecution and stated that he was also present when the deceased was taken by the accused and when he closely followed the deceased, the first accused stating that only on account of the deceased, he was staying away from the village, instigated the other accused to assault the deceased. Accordingly, A3 and A4 caught hold of the deceased, A1 with a knife caused injury on the back side of the head of the deceased, A2 with a knife caused injury on the back side of the head of the deceased, A5 attacked the deceased with a billhook on the left wrist and A6 on the left palm of the deceased. The deceased after receiving injuries, ran for a short distance and fell down near Amman Koil. The accused ran away from the scene of occurrence with weapons. Thereafter, it is stated that P.W.1 with the assistance of P.W.2 carried the deceased in his motor cycle to admit the deceased in the hospital at Chozhatharam. When they reached the hospital, the deceased was found dead. Thereafter, a complaint has been given by P.W.1 to P.W.14, Sub Inspector of Police and the same was recorded as https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1. The other eye witnesses of the case of the prosecution corroborated the evidence of P.W.1. 2.4. P.W.14, Sub Inspector of Police, on receipt of Ex.P.1 complaint given by P.W.1 on 11.4.2003 at 8.00 p.m., registered a case in Crime No.99 of 2003 for the offences punishable under Sections 147, 148, 341, 294, 324 and 302 I.P.C. and the printed F.I.R. is marked as Ex.P20. He despatched copies of the F.I.R. to the higher officials and to the Court. 2.5. P.W.15, Inspector of Police, received copy of the FIR at about 9 p.m. on 11.4.2003 and reached the scene of occurrence at about 10 p.m. He prepared an Observation Mahazar Ex.P2 and a Rough Sketch Ex.P21 in the presence of P.W.7 and one Ramachandran. He also recovered M.O.5 bloodstained mud, M.O.6 watch and M.O.7 sample mud under Ex.P3 Mahazar in the presence of P.W.7 and Ramachandran. On 12.4.3003 at 7 a.m., he conducted inquest over the body of the deceased in the presence of the witnesses at the Government Hospital, Chidambaram and prepared Ex.P22 Inquest Report. He examined the witnesses on the same day. The dead body of the deceased was sent for post-mortem with Ex.P15 requisition. 2.6. P.W.12 is the Doctor, who conducted post mortem over the body of the deceased and issued post mortem certificate under Ex.P14. In Ex.P14, the following injuries have been noticed:- " External Injuries:- 1. 20cm x 5cm x 7cm reddish cut injury. A gaping injury - cutting the ear lobe right in the middle - cutting the parotid gland in the middle cutting the facial artery - the wound extending obliquely downwards up to the lateral part of neck cutting the sterno mastoid muscle, facial cutting the external jugular vein, carotid sheath and carotid artery. 2. 7x5x5cm reddish oblique cut injury found at the left wrist inner side exposing the tendons and cut- radial artery was cut. 3. 3x1x1cm reddish oblique cut injury at the base of left little finger palmar side. 4. 12x3x3cm reddish oblique cut injury on the left side of occipital bone area fracturing the occipital bone. 5. 3x3cm reddish abrasion found over the dorsum of great toe right. https://hcservices.ecourts.gov.in/hcservices/ 6. 7x3x3cm lacerated reddish wound over the base of great toe dorsal side of left foot. 7. 6x1x1/2cm reddish oblique cut injury over the posterior side of elbow left. P.W.12 Doctor has given an opinion to the effect that the deceased would have died due to the multiple cut injuries with skull bone fracture sustained leading to haemorrhage and shock. 2.7. During the course of investigation, P.W.15 arrested A1, A6, A5 and A2 on 13.4.2003, 15.4.2003, 18.4.2003 and 1.5.2003 and recorded their voluntary confession statements leading to the recovery of M.Os.1 to 4 knives. The material objects and the clothing of the deceased after post-mortem were despatched to the Court of Judicial Magistrate for sending the same to the Forensic Laboratory for getting Expert's opinion. 2.8. P.W.7 has been examined as witness for preparation of Ex.P2, Observation Mahazar, Ex.P3, Mahazar for recovery of M.Os.5 to 7 viz. bloodstained mud, watch and sample mud and Ex.P5, Mahazar for recovery of knife, M.O.1. He attested the observation and seizure mahazars. P.W.8 is the attesting witness for the arrest of A1 and A2. He also attested Exs.P4 and P6, the confession statements of A1 and A2 and Ex.P7 viz., mahazar for recovery of M.O.4 knife. P.Ws.9 and 11 are the attesting witnesses for the arrest of A6. They also attested Ex.P8, the confession statement of A6 and Ex.P9 viz., mahazar for recovery of M.O.2 knife. P.W.10 is the attesting witness for the arrest of A5. He also attested Ex.P10, the confession statement of A5 and Ex.P11 viz., mahazar for recovery of M.O.3 knife. 2.9. P.W.13 is the Court Clerk, who received the material objects from P.W.15 and on the direction of the learned Magistrate, sent the same to the Forensic Lab for chemical examination. Exs.P18 and P19 are the Chemical Analysis Report and Serology report respectively. 2.10. On completion of the investigation, P.W.15 filed a charge sheet against the accused for the offences punishable under Sections 147, 148, 341, 324, 294 and 302 I.P.C. on 16.5.2003. 3. On conclusion of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. with regard to the incriminating materials available against them and all of them denied their complicity in the crime and pleaded innocence. Neither oral nor documentary materials have been adduced on the side of the accused. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned Sessions Judge, after hearing the arguments put forth by both the parties, convicted the accused for the offences alleged and aggrieved against the conviction and sentence, the present appeals have been preferred. 5. Though two separate trials have been conducted, in view of the common charges framed and the materials relied on by the prosecution are one and the same, it has been decided to deliver a common judgment for all the appeals. 6.1. Mr.Gopinath, learned senior counsel appearing for A4 to A6 submitted that the evidence of P.Ws.1 to 6 with regard to the overt act attributed insofar as A3 and A4 viz., that they caught hold of the deceased has not been put forth consistently by the eye witnesses P.Ws.1 to 6. P.W.2 did not speak about the overt act of A3 and A4, but on the contrary P.W.4 though speak about the overt act, the same has been attributed to A2. Therefore, he submitted that the evidence of eye witnesses of the prosecution is not consistent and on this ground alone, A3 and A4 are eligible to be acquitted. 6.2. P.W.1 is the brother-in-law of the deceased and P.W.6 is the junior paternal uncle of the deceased and other eye witnesses are friends of the deceased and P.W.1. Therefore, their tainted interested testimony cannot be taken for convicting the accused. 6.3. As per the case of the prosecution, A1 was staying away from the village. He submitted that he returned back six months prior to the date of occurrence and under such circumstances, if the allegation put forth by the prosecution is accepted, the occurrence would have taken place much earlier since A1 was living in the same village for six months. 6.4. The narration put forth by the prosecution that the deceased was taken away by the accused for compromise talk is unbelievable in view of the long standing enmity between the accused and the deceased. 6.5. It is the case of the prosecution that A3 and A4 caught hold of both the hands of the deceased. If that be so, the deceased would not have received injuries on his hand while warding off the assault delivered by A5 and A6. 6.6. It is submitted that though P.Ws.1 and 2 were aware that the accused died even before he could be admitted in the hospital at 6.45 p.m. and though the police station is 30 to 40 feet away that place, they failed to give a complaint to the police and the same was given only at 8 p.m. The first information report reached the learned Magistrate at 1.00 a.m. on the next day. It is contended that the delay in giving the first information report and the delay https://hcservices.ecourts.gov.in/hcservices/ of the same reaching the Court create suspicion and the only conclusion that could be reached is that the FIR is fabricated and when the delay has not been sufficiently explained, the case of the prosecution itself could be doubted. 6.7. Though it is alleged that P.Ws.1 and 2 have taken the deceased in a motor cycle, neither the bloodstained found in the clothing of P.Ws.1 and 2 nor the two wheeler was recovered by P.W.15 during the course of investigation, which will disprove the story put forth by the prosecution. 6.8. As per the evidence of P.W.3, it has been stated that the two wheeler was driven by one Siva and it is contradictory with the evidence put forth by the other witnesses. Moreover, the said Siva has not been examined before the Court. It is submitted that the inquest was conducted on 12.4.2003, wherein description of the weapons has been mentioned by the Investigating Officer. However, those weapons have been recovered, as per the case of the prosecution, only on 13.4.2003, 15.4.2003, 18.4.2003 and 1.5.2003. The description of the weapon would be known only after the recovery. Since such description mentioned in the inquest report even prior to the recovery of the weapons, it is submitted that the version of the prosecution for arrest and recovery must be proved. 6.9. It is submitted that neither any witness has been examined nor materials has been produced to substantiate the charge of conspiracy. However, the learned trial Judge erroneously convicted the accused for conspiracy. 6.10. It is submitted that the deceased had sustained six injuries and those injuries have been distributed to all the accused and even if the assault on the deceased is accepted, the same would have been caused by a single person with one weapon. 6.11. Admittedly, the accused and the deceased belong to different community. A case is pending against the deceased on the complaint given by the accused and under the said circumstances, there is all possibility for falsely foisting the case against the accused. 6.12. Mr.R.John Sathyan, learned counsel appearing for A1 and A2 has adopted the arguments put forth by the senior advocate. He further submitted that since A1 returned back to the village six months prior to the occurrence, it must be presumed that there was no enmity between the accused and the deceased at all. The deceased has got other enemies, as he is an accused in a murder case and he was regularly conducting panchayat in the village and hence submitted that those persons would have committed the murder of the deceased. Though the occurrence took place at 6.00 p.m. and the complaint has been given at 8.00 p.m., the Investigating Officer took up the https://hcservices.ecourts.gov.in/hcservices/ investigation only at 10.00 p.m. and submitted that under such circumstances, there is a possibility of fabrication. It is submitted that the witnesses in the second trial stated that they were examined by the police at 7.00 p.m. itself and therefore submitted that a complaint is given even before registration of the case as per Ex.P.1. It is submitted that when the case of the prosecution is that the deceased ran away and fell down after a distance and when the prosecution evidence speaks about the fell of the deceased at the second place, non recovery of the bloodstained mud in the second place is fatal to the prosecution case. It is submitted that though the deceased was taken to the hospital, he was not admitted to the hospital and the evidence of P.Ws.1 and 2 that they have not done so because the deceased died on the way is unbelievable. 7.1. Per contra, the learned Additional Public Prosecutor submits that though it is alleged that P.Ws.1 and 6 are related to the deceased, the other witnesses are independent witnesses in the village. The overt act attributed against A3 and A4 is consistent with the evidence of P.W.1. The first accused along with the other accused were having ill-will all these days after the incidence of arson and that A1 was living away from the village for two years. From the circumstance put forth by the prosecution, one could easily visualise that the first accused along with the other accused is waiting for an opportunity to finish the deceased and the earlier occurrence of arson cannot be viewed lightly and with that motive, the present occurrence had taken place and all the witnesses have narrated the motive part of the case of the prosecution. The deceased was taken by the accused under the guise of compromise talk and the deceased was taken from the cricket ground where P.Ws.1 to 6 were present along with others. It is submitted that even though A3 and A4 caught hold of the deceased, he could ward off the assault when made. 7.2. It is submitted that since the deceased was found dead while reaching near the hospital, he was not admitted in the hospital and therefore laid down on the ground, outside the hospital. Though it is stated that the deceased died at 6.45 p.m., P.Ws.1 and 2 waited for the arrival of the other witnesses and thereafter, a report was given at 8.00 p.m. Under such circumstances, there is no delay in lodging the FIR. The Judicial Magistrate's Court is situated 30 kms away from the police station and because of the distance it cannot be said that there was delay in despatching the FIR to the Court. 7.3. The non-recovery of bloodstained clothing of P.Ws.1 and 2 and bloodstained two wheeler are immaterial in view of the reason the other materials are available. The description of the weapons found mentioned in the inquest report itself and such description has been gathered from the eye witnesses to the occurrence viz., P.Ws.1 to 6. Therefore, the recovery materials cannot be disbelieved. https://hcservices.ecourts.gov.in/hcservices/ 7.4. Though no witness for speaking conspiracy has not been examined, the evidence of P.Ws.1 to 6 establishes that all the accused 1 to 6 joined together with a common aim to commit the murder of the deceased and under such circumstances, it is submitted that the prosecution has established the charge of conspiracy also. 7.5. In view of the consistent version of all the eye witnesses, it cannot be claimed that the overt acts of the accused have been distributed. The long standing enmity is substantiated in view of the pendency of the earlier case of arson and the case put forth by the prosecution is consistent with the motive. It is submitted that the accused were waiting for a particular day and chosen the day of occurrence to commit the murder of the deceased. Though it has been suggested about the availability of other enemies, no materials have been produced during the cross examination to substantiate such argument. Therefore, it is submitted on behalf of the State that the conviction and sentence imposed by the Court below are reasonable and the appeals must be dismissed. 8. We have perused the materials available on record and heard the submissions made by both sides. 9.1. The occurrence of the prosecution case took place at 6.00 p.m. in the presence of six eye witnesses and others in a broad day light. Prior to the time of occurrence, the deceased was watching cricket along with the eye witnesses. Only at that time, the accused came to that place and under the guise of compromise talk, they have invited the deceased and after taking the deceased to a little distance, it is the first accused, who has got direct enmity with the deceased, instigated the other accused also mentioning the earlier incidence of arson to assault the deceased and thereby the occurrence alleged to have taken place. The narration put forth by the eye witnesses for the motive as well as the actual occurrence is consistent. Though P.Ws.1 and 6 have been stated as related to the deceased, merely because of the reason of their relationship, their evidence cannot be disbelieved. Moreover, their evidence is corroborative by other eye witnesses and therefore, on perusal of the evidence of eye witnesses P.Ws.1 to 6, we are of the considered view that the occurrence had taken place in the manner put forth by the prosecution. Only with a view to wreak vengeance, A1 has committed the offence for which the other accused assisted A1 in committing the offence. 9.2. Since witnesses were present near the deceased, P.Ws.1 and 2 carried the deceased with the help of two wheeler to save his life to the hospital which is 10 kms away and because of the multiple injuries sustained, it appears that the deceased could not withstand the shock and haemorrhage and that is the reason why the deceased died on reaching the hospital. Since P.Ws.1 and 2 ascertained the https://hcservices.ecourts.gov.in/hcservices/ death of the deceased even before the deceased could be admitted in the hospital, they kept the body of the deceased outside the hospital. It is probable P.Ws.1 and 2 would have waited for the arrival of other relatives of the deceased and only under such circumstances, a complaint has been given at 8.00 p.m. to the police. P.W.15, Inspector of Police, after receiving the FIR at 9.00 p.m., reached the scene of occurrence at 10.00 p.m. and took up the case for investigation. In view of the facts and circumstances of the case, we do not find any delay in registration of the FIR and the investigation conducted. The Magistrate's Court is situated at 30 kms away from the police station and under such circumstances, we do not find any delay in despatch of the FIR to the Court of Magistrate. 9.3. All the accused are known to the witnesses since both the groups live