IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 1.2.2007. CORAM THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN and THE HON'BLE MR.JUSTICE M.JEYAPAUL Criminal Appeal Nos.1395, 1412 and 1439 of 2004 140, 162, 195, 290 of 2005, 1032 of 2006 and 15 of 2007 & 669/05 1. Murthy 2. Dhanapal Appellants in Crl.A.No.1395/2004, Accused Nos. 17 &18 Sankar Appellant in Crl.A.No.1412/2004, Accused Nos.11 Kalaivanan Appellant in Crl.A.No.1439/2004, Accused Nos. 7 Koola Nagarajan alias Nagarajan Appellant in Crl.A.No.140/2005, Accused Nos. 1 Anbarasan Appellant in Crl.A.No.162/2005, Accused Nos. 10 Parameswaran Appellant in Crl.A.No.195/2005, Accused Nos. 3 Saminathan Appellant in Crl.A.No.290/2005, Accused Nos. 13 Surendran alias Kundappan Appellant in Crl.A.No.1032/2006, Accused Nos. 6 Saravanan Appellant in Crl.A.No.15/2007, Accused Nos. 9 vs. https://hcservices.ecourts.gov.in/hcservices/ State rep. By Inspector of Police, Omalur Police Station Cr.No.1350/97) Respondent Crl.A.No.669 of 2005 State rep. By Inspector of Police, Omalur Police Station Cr.No.1350/97) Appellant vs. 1. Lakshmanan A4 2. Konar Saravanan alias A5 Subramani 3. Kamaraj A8 4. Selvam A12 5. Mottaiyan @ Sambu @ Shanmugam A14 6. Karuppiah A15 7. Manoharan A16 Respondents Criminal Appeals against the Judgment dated 20.10.2004 made in S.C.No.34 of 1999 on the file of the I Additional Sessions Judge, Salem. For appellant in Crl.A.Nos.140/2005 : Mr.V.Vibhishnan formalities Mr.K.Balakrishnan For appellants in Crl.A.Nos.195/2005, 1032/2006, 1439/2004, 15/2007, 162/2005 and 290/2005 : Mr.S.Doraisamy, Senior Counsel for Mr.V.Elangovan https://hcservices.ecourts.gov.in/hcservices/ For appellants in Crl.A.Nos.1412/2004 and 1395/2004 : Mr.K.V.Sridharan for Ms.Jayasri Baskar For respondent in all the above appeals and for appellant in Crl.A.No.669/2005 : Mr.N.R.Elango, Addl. Public Prosecutor For respondents in Crl.A.No.669/2005 : Mr.R.Shanmughasundaram, Senior Counsel for Mr.C.M.Gunasekaran for Mr.V.Purushothaman COMMON JUDGMENT (Judgment of the court was delivered by M.JEYAPAUL,J.) Totally eighteen accused were charged in S.C.No.34 of 1999 on the file of the First Additional Sessions Judge, Salem. 2. A1 to A18 were charged for offences under sections 148, 307 read with 149 and 332 read with 149 IPC, and section 3(1) of the TNPPD Act read with section 149 IPC, A1 to A6 under sections 341 IPC and 3 of Explosive Substances Act, A7 to A18 under section 6 of the Explosive Substances Act, A6 to A11 under section 332 IPC, A1 to A5, A7 to A10 and A12 to A18 under section 332 read with 149 IPC, A1 to A10 and A14 under section 302 read with 34 IPC, A2 to A9 and A11 to A13 and A15 to A18 under section 302 read with 149 IPC, A3, A4 and A8 under section 302 read with 34 IPC, A1, A2, A5 to A7 and A9 to A18 under section 302 read with 149 IPC, A5, A7, A15 and A17 under section 302 read with 34 IPC, A1 to A4, A6, A8 to A14, A16 and A18 under section 302 read with 149 IPC, A2, A6 and A18 under section 302 read with 34 IPC, A1, A3 to A5 and A7 to A17 under section 302 read with 34 IPC, A11, A12, A13, A16 under section 302 read with 34 and A1 to A10, A14, A15, A17 and 18 under section 302 read with 149. 3. The learned Additional Sessions Judge, Salem found A4, A5, A8, A12, A14, A15 and A16 not guilty under any of the aforesaid offences and found A1, A2, A3, A6, A7, A9, A10, A11, A13, A17 and A18 guilty for offences under sections 148, 341 and 302 IPC (five counts) and section 3 of the Explosives Substances Act and sentenced them each to undergo one year rigorous imprisonment for offence under section 148 IPC, one month simple imprisonment for offence under section 341 IPC and life imprisonment and to pay fine of Rs.5000/= each in default to undergo a further period of two years rigorous imprisonment for offence under section 302 IPC (five counts) and to undergo one year rigorous imprisonment for offence under section 3 of the Explosive https://hcservices.ecourts.gov.in/hcservices/ Substances Act. The sentence imposed for offences under sections 148 and 341 IPC and 3 of the Explosive Substances Act were ordered to run concurrently, but, the sentence imposed for offence under section 302 IPC (five counts) were directed to run consecutively. Fine amount imposed was directed to be paid as compensation to the heirs of the victims. 4. Aggrieved by the aforesaid judgment, A17 and A18 prefer Criminal Appeal No.1395 of 2004, A-11 prefers Criminal Appeal No.1412 of 2004, A7 Criminal Appeal No.1439 of 2004, A1 Criminal Appeal No.140 of 2005, A10 Criminal Appeal No.162 of 2005, A3 Criminal Appeal No.195 of 2005, A13 Criminal Appeal No.290 of 2005, A6 Criminal Appeal No.1032 of 2006 and A9 Criminal Appeal No.15 of 2007. Aggrieved by the order of acquittal recorded by the Trial Judge as against A4, A5, A8, A12, A14, A15 and A16, the State has preferred Criminal Appeal No.669 of 2005. The second accused has not preferred any Criminal Appeal before this court. 5. On the side of the prosecution, as many as 35 witnesses were examined and 107 documents and 39 Material Objects were marked. On the side of the defence, 13 witnesses were examined and 17 documents were marked. One K.K.Palanisamy, Additional Superintendent of Police was examined as court witness and four documents were marked as Court Exhibits. 6. The case, in brief, of the prosecution, as unfolded by the witnesses examined on their side during the course of Trial, is as follows:- Mahaboob John, PW1, Annadurai, PW2 and Tamilarasan, PW3 accompanied G.Natarajan, Sub Inspector of Police (since deceased) attached to Mettur Police Station escorting the remand accused Durai alias Duraian, Murugan, Chinna Jega alias Arokiasamy, Periya Jega alias Jegadeesan and Raja concerned in Crime No.334 of 1997 on the file of Mettur Police Station from Salem Sub Jail to the Court of the learned Judicial Magistrate I, Mettur for the purpose of remand on 29.10.1997. All of them went to Sub Jail, Salem in the jeep bearing registration number TN 27 G 1013 driven by Tamilarasan, PW3 and having taken the aforesaid remand accused concerned in Crime No.334 of 1997 on the file of the Mettur Police Station proceeded via Omalur to Mettur and after the order of remand was passed by the learned Judicial Magistrate I, Mettur they were returning to Salem via Omalur. At about 4.45 pm on the said day, when the vehicle was crossing the railway gate at Omalur, there was a speed breaker and as a result of which PW3 had to slow down the vehicle. At that point of time, one Koola Nagarajan A1, Saravanan A9 and Murugesan A2 along with more than 15 persons came armed with lethal weapons and intercepted the vehicle. Country bomb was thrown at the vehicle and it exploded in front of the vehicle. The aforesaid persons having entered into the vehicle attacked the remand accused indiscriminately. When the deceased Natarajan, Sub Inspector of Police attempted to shoot the assailants, he was attacked all over his body and the gun he held was also snatched away. The remand accused were dragged out of the vehicle and were attacked indiscriminately which resulted in their instantaneous death. A1, Koola Nagarajan, sped away by Yamaha motorcycle. P.Ws.1 to 3 also sustained injury in the occurrence. https://hcservices.ecourts.gov.in/hcservices/ 7. PW1 saw the first accused speeding away in Yamaha vehicle. Thereafter, he got lift in a TVS 50 moped and proceeded towards Mettur. He found Mr.Promoth Kumar (PW34), Superintendent of Police, Salem coming from Mettur. He stopped his vehicle and informed him of the occurrence. Thereafter, PW34 proceeded to the scene of occurrence along with PW1 in his vehicle and having found the assailants taking to heels, he along with other police officials chased them. One of the accused threw a country bomb and as a result of which PW34 and other police officials sustained injuries. He shot the assailants and also ordered other police officials to shoot them. As a consequence, three persons were shot dead. 8. R.Chandrasekaran, Head Constable (PW14) who was a part of the team of the Superintendent of Police apprehended A9. In the said process, he also sustained injuries. 9. The Sub Inspector of Police, Natarajan, since deceased, was retrieved from the scene of occurrence by one Selvaraj, Police Constable and was admitted to Government Hospital, Omalur for treatment. Dr.John Gurupatham, PW30, admitted the said Natarajan at about 5.20 pm on 29.10.1997, examined him and found him sustained some simple injuries. The said Natarajan informed PW30 that he was attacked by four known persons and some other unknown persons at about 4.45 pm on 29.10.1997. The wound certificate issued to Natarajan is marked as Ex.P96. 10. Esak, PW17 received information about the occurrence and was directed to go to the scene of occurrence at about 5.00 pm on 29.10.1997. He descended at the scene of occurrence at about 6.45 pm on the same day and having retrieved P.Ws.1 to 3 therefrom admitted them to Government Hospital, Omalur at 7.00 pm on the same day. Dr.Kalyanaraman, PW27, having admitted P.Ws.1 to 3 for treatment, issued wound certificates Exs.P69, P70 and P71 classifying the injuries they sustained as simple in nature. 11. GOWTHAMAN (PW32), Sub Inspector of Police attached to Omalur Police Station, having received information Ex.P99 from Government Hospital, Omalur, proceeded to the Hospital at about 6.30 pm on 29.10.1997 along with Pachamuthu, PW24, Head Constable attached to the said Police Station. As the Sub Inspector of Police, Natarajan, was not in a position to script the first information, Pachamathu, PW24 reduced into writing the oral statement of the said Natarajan who was taking treatment. On the basis of the first information report, PW59, given by the Sub Inspector of Police, PW32 registered a case in Crime No.1350 of 1997 for offences under sections 147, 148, 341, 332, 307 and 302 IPC and section 5(b) of the Explosive Substances Act and prepared printed FIR, Ex.P100. 12. As per the instructions of the Deputy Superintendent of Police, the Inspector of Police Mr.P.Raju, PW35, having received a copy of the FIR at https://hcservices.ecourts.gov.in/hcservices/ about 6.15 pm on the said day, proceeded to the scene of occurrence. He also registered a case in Crime No.1351 of 1997 for offences under sections 147, 148, 341, 332 and 307 IPC and section 5(3) of the Explosive Substances Act on the basis of the first information report given by the Superintendent of Police Pramoth Kumar (PW34) in respect of the second limb of the occurrence where three assailants were shot dead by the police officials. Both FIR and printed FIR were despatched to the learned Judicial Magistrate, Omalur. R.Chandrasekaran, PW14, Head Constable produced the accused Saravanan A9 apprehended by him when he was fleeing and thereafter he was arrested by PW35. Blood stained shirt M.O.25 and blood stained pants M.O.26 were recovered from him under form 95. 13. The second accused was produced on apprehension by the Head Constable Anandan, PW13 and a shirt M.O.27 and a lungi M.O.28 were also recovered from him under form 95. 14. At about 8.15 pm on the said day, PW35 proceeded to the scene of occurrence and prepared observation mahazar in the presence of the Village Administrative Officer. He also drew rough sketch Ex.P103 reflecting the scene of occurrence. The damaged jeep was recovered by him at 9.00 pm on the said day. Gun powder, M.O.1, Bullets, M.O.5 and M.O.6, Country Bomb, M.O.7, glass pieces, M.O.8, blood stained mud, M.O.9 and sample mud, M.O.10 were also recovered from the scene of occurrence in the presence of witnesses. Siddique Basha, PW31, photographer was engaged to take photographs of the scene of occurrence. A10, Anbarasan, was arrested at about 10.30 am on 13.10.1997 and on the basis of the admissible portion in his confession statement, knife was recovered at Chingalapatti Tank. The apparels worn by A10 were also recovered from him. 15. Dr.Vallinayagam, PW23 conducted post mortem examination on the dead body of the remand accused Murugan. He, having found as many as ten cut injuries all over his body, opined that he died of shock and haemorrhage due to multiple injuries and issued post mortem certificate Ex.P50. He also conducted post mortem examination on the dead body of the remand accused Durai alias Duraian. He found as many as 13 cut injuries and subdural and subarachnoid haemorrhage. He opined that the said Durai alias Duraian had died due to shock and haemorrhage on account of multiple injuries in the post mortem certificate Ex.P52. He also conducted autopsy on the dead body of the remand accused Raja and having found as many as 16 cut injuries and subdural and subarachnoid haemorrhage on both cerebral haemorrhage opined that he had died of head injuries in the post mortem certificate, Ex.P54. He conducted post mortem examination on the dead body of Chinna Jaha alias Arokiasamy and having found as many as 12 cut injuries and subdural and subarachnoid haemorrage over both cerebral hemisphere, opined that he had died of head injuries in the post mortem certificate, Ex.56. He also conducted post mortem examination on the dead body of Jagan alias Jagadeesan at about 12.05 pm on 13.10.1997 and having found as many as 13 cut injuries and subdural and subarachnoid haemorrage over both cerebral hemisphere, opined that he had died of head injuries in the post mortem certificate, Ex.58. https://hcservices.ecourts.gov.in/hcservices/ 16. The post mortem Constables recovered apparels and other articles found on the body of the aforesaid remand prisoners after the post mortem examination was over and entrusted them to PW35 for the purpose of investigation in this matter. On 4.11.1997, at about 7.00 am, PW35 arrested A4 Lakshmanan and on the basis of the admissible portion in the confession statement given by him, blood stained billhook was recovered at his instance. 17. On 6.11.1997, at about 1.30 pm, A8 Kamaraj, A12 Selvam, A14 Shanmugam, A15 Karuppiah, A16 Manoharan, A17 Moorthy and A18 Dhanapal, were arrested and on the basis of the confession statement given by each of the accused, arms and ammunitions from the respective accused were recovered under the cover of relevant mahazars. 18. On 10.11.1997, at about 9.30 am, A5 Saravanan, A6 Surendran and A11 Sankar, were arrested in the presence of witnesses. On the basis of the confession statements given by them, the weapons of offence were recovered at their instance. On the basis of the requisition given by the Inspector of Police PW35, the learned Judicial Magistrate Muthusamy (PW26), having observed all the formalities, conducted Test Identification Parade on 12.11.1997 and 25.11.1997. P.Ws.1 to 3 were required to identify the accused viz., A2, A4, A8, A9, A10, A12, A15, A16, A17 and A18 in the Identification Parade that was held on 12.11.1997. PW1 and PW2 identified all the aforesaid accused except A4. PW3 identified all the aforesaid accused in the Test Identification Parade that was held on 12.11.1997. Again on 25.11.1997, PW1 could identify A6 and A11, but, could not identify A5. P.Ws.2 and 3 could identify A5, A6 and A11. As A1 was arrested later in point of time, he was not subjected to Test Identification Parade. Likewise, A3, A7 and A13 also were not subjected to Test Identification Parade. The proceedings of the Test Identification Parade conducted by the learned Judicial Magistrate Muthusamy PW26 were marked as Exs.P66 and P68. 19. A3 Paramaswaran, who was involved in another Crime No.72 of 1998 on the file of Omalur Police Station, was arrested on 21.1.1998 at about 6.30 pm. On 1.2.1998 at about 3.00 pm, A13 Saminathan, who was involved in another Crime No.109 of 1998 on the file of Omalur Police Station, was arrested for the purpose of this case. On the basis of the confession statement given by him, a billhook was recovered at his instance. On 12.2.1998, at about 2.30 pm, A1 Nagarajan, who was involved in another Crime No.156 of 1998 on the file of Omalur Police Station, was arrested and on the basis of the confession statement given by him, Yamaha motorcycle and billhook were recovered at his instance. PW4 Kuppusamy, PW5 Govindaraj and PW6 Lakshmanan have spoken to the role of the accused in the ghastly crime of multiple murders. They could also identify the first accused who participated in the occurrence. PW35 sent all the Material Objects for chemical examination. Having completed the investigation, PW35 laid final report as against the accused. https://hcservices.ecourts.gov.in/hcservices/ 20. The incriminating circumstances spoken to by the witnesses examined on the side of prosecution were put to the accused to respond under section 313 Cr.P.C. A4, A8, A12, A14, A16, A17 and A18 have set up a plea of alibi. The other accused have totally denied their role in the commission of murder of the remand accused. On the side of the defence, D.Ws.1 to 13 were examined. 21. DW1 was the President of Navapatti Panchayat during 1996 to 2000. N.R.Dhanapal, DW9 was a Panchayat Councilor. Both of them have spoken to the surrender of A4, A8, A12, A14, A16, A17 and A18 by the public to the Deputy Superintendent of Police who was camping at the Travelers Bungalow at Mettur. 22. Balasubramaniam, DW2 and Nagarajan DW7 who are Labour Union Leaders have deposed to the effect that there was a surrender of the aforesaid accused by the public to the Deputy Superintendent of Police. They have also spoken to the effect that A4, A8, A12, A15 and A16 who worked as contract labourers in the Thermal Plant participated in the strike at Mettur at the time of the alleged occurrence on the fateful day. 23. DW8 deposed that A17 and A18 worked in his field at the time when the occurrence unfolded. Bhuvaneshwari DW3 is none other than the wife of the first accused Nagaraj. She would state that the arrest of A1 was not effected as stated by the prosecution and in fact, A1 was taken away by the police from her residence at Tirupur. She would also state that A1 was manhandled by the investigating sleuths and as a result of which A1 sustained multiple injuries. 24. Jaya, DW4 who is the wife of A14 Shanmugam and Selvi DW5 who is the wife of A12 Selvam have stated that their husbands worked in Thermal Power Station and participated in the strike on the fateful day. Santhi, DW6 would state that she went to the place where the strike was going on and discussed with her husband A4 Lakshmanan about the family problem at the time of occurrence. Mahaesraj, DW10, who is a relative of A7 Kalaivanan, would state that A7 was with him. Vasantha, DW11, mother of A10 Anbarasan would state that A10 was innocent but, the police apprehended him. Vellachi, DW12, the mother of A3 Parameswaran would also state that without any rhyme or reason, A3 was apprehended by the police. Jaya DW13, wife of A8 Kamaraj would state that A8 participated in the strike at the Thermal Plant at the time of occurrence. 25. The Trial Court has chosen to examine the Additional Superintendent of Police as CW1. The wound certificate of PW3 was marked as Ex.C3 and the wound certificate of the deceased Natarajan, Sub Inspector of Police, was marked as Ex.C4. 26. The Trial Court, having thoroughly perused the evidence on record, found that A1, A2, A3, A6, A7, A9, A10, A11, A13, A17 and A18 were members of unlawful assembly armed with lethal weapons and committed an offence punishable under section 148 of the Indian Penal Code and they have also obstructed the police escort jeep from proceeding further on the main road https://hcservices.ecourts.gov.in/hcservices/ and thereby they committed an offence punishable under section 341 of the Indian Penal Code. As the Trial Court was convinced that the aforesaid accused, as per the evidence available on record, used country bombs at the time of occurrence, they were found guilty of an offence punishable under section 3 of the Explosive Substances Act also. The aforesaid accused also were convicted for an offence punishable under section 302 read with 149 IPC (five counts) for the murder of five remand accused. As there was no legal evidence on record to establish the role of individual accused in attempting to murder of P.Ws.1 to 3, they were acquitted of the charge under section 307 IPC. A4, A5 A8, A12, A14, A15 and A16 were relieved of all the charges framed as against them as the prosecution could not establish beyond reasonable doubt their role in the crime alleged against them. 27. Criminal Appeal Nos.1439 of 2004, 195 of 2005 and 290 of 2005:- A7 has preferred Criminal Appeal No.1439 of 2004, A3 Criminal Appeal No.195 of 2005 and A13 Criminal Appeal No.290 of 2005. 28. Mr.S.Doraisamy, learned Senior Counsel appearing for A7, A3 and A13 would submit that except the omnibus statement of the witnesses examined on the side of prosecution that A7, A3 and A13 also participated in the occurrence, there is no legal evidence to connect the aforesaid accused with the crime. The testimony of the witnesses for the first time before the court without any Identification of them earlier will not stand the legal scrutiny. He would further submit that their names also do not find a place in the First Information Report. 29. Mr.N.R.Elango, the learned Public Prosecutor would submit that though there was no Test Identification Parade conducted so far as A7, A3 and A13 are concerned, inasmuch as witnesses have spoken before the Trial Court to the effect that those accused also participated in the occurrence, conviction recorded by the Trial Court will have to be confirmed. 30. As rightly pointed out by the learned counsel appearing for the appellants, no Test Identification Parade was arranged as far as the aforesaid accused are concerned. It is not the case of the prosecution that A7, A3 and A13 were already known to the prosecution witnesses. It is found from the evidence let in on the side of the prosecution that the occurrence commenced with throwing country bomb in front of the police jeep which escorted the remand prisoners from Mettur to Salem. No specific overtact has been attributed to these accused by any of the prosecution witnesses except the testimony in generic about the role of all the 18 accused in this case. There was no specific identification of these accused during the course of trial also. We genuinely doubt the role of A7, A3 and A13 in the commission of the various offences charged against them by the Trial Court. Therefore, the benefit of doubt is conferred on A7, A3 and A13 as known to law and they are acquitted and as a consequence, Criminal Appeal Nos.1439 of 2004, 195 of 2005 and 290 of 2005 are allowed and A7, A3 and A13 are directed to be set at liberty forthwith. 31. Criminal Appeal Nos.1395 of 2004, 1412 of 2004, 162 of 2005, 1032 of 2006 and 15 of 2007:- Criminal Appeal No.1395 of 2004 is preferred by A17 https://hcservices.ecourts.gov.in/hcservices/ and A18, Criminal Appeal No.1412 of 2004 by A11, Criminal Appeal No.162 of 2005 by A10, Criminal Appeal No.1032 of 2006 by A6 and Criminal Appeal No.15 of 2007 by A9. 32. Heard Mr.K.V.Sreedharan, learned counsel appearing for A17, A18 and A11, Mr.S.Doraisamy, learned Senior Counsel appearing for A10, A6 and A9 and Mr.N.R.Elango, learned Additional Public Prosecutor appearing for the State. It is submitted on behalf of A17, A18, A11, A10, A6 and A9 that though these accused were allegedly identified by P.Ws.1 to 3 before the learned Judicial magistrate concerned, only an omnibus testimony to the effect that all the accused participated in the occurrence is found on record. No specific overtact was attributed to A17, A18, A11, A10, A6 and A9 by P.Ws.1 to 3. Further, those accused have specifically stated before the learned Judicial Magistrate, who conducted Test Identification Parade that their photographs were already shown to P.Ws.1 to 3 who were the police officials for the purpose of enabling them to identify the accused. The entire villagers had submitted petitions before the authorities seeking justice on the specific and solid plea that A17 and A18 were also produced by the villagers for the purpose