BAIL SLIP --- That the Appellant/Accused A6, A7 and A5 namely Anthonysamy and Arokkiasamy and Lourthusamy were directed to be released on bail by the order of this Court dated 23.01.2009 and 17.6.2009 and made in Crl.M.P.No.1/2009 and 1/09 in Crl.Appl.No.838/08 and Crl.A.210/09 respectively. ---- IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 9.10.2009 Coram THE HON’BLE MR.JUSTICE C.NAGAPPAN AND THE HON’BLE MR.JUSTICE M.JEYAPAUL Criminal Appeal Nos.838 of 2008, 142 and 210 of 2009 1. Lal @ Lawrance 2. Anthonysamy 3. Arokkiasamy Appellants in Crl.A.838/2008 1. Donbosco @ John Bosco 2. Raji @ Christharaj 3. Lourthusamy Appellants in Crl.A.142/2009 Lourdhusamy Appellant in Crl.A.210/2009 vs. State rep by Inspector of Police, Vettavalam Police Station Thiruvannamalai District. (Crime No.68/2003) Respondent in all the three appeals For appellants in Crl.A.Nos.838/2008 and 210 of 2009 : Mr.V.Padmanabhan, Senior Counsel for Mr.M.Rajendran For appellants in Crl.A.No.142/2009 : Mr.S.Mazhaimeni Pandian For respondent : Mr.Hassan Mohamed Jinnah Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ Prayer:- Criminal Appeals to set aside the conviction and sentence imposed in S.C.No.103 of 2003 dated 28.11.2008 on the file of the Sessions Judge, Thiruvannamalai. COMMON JUDGMENT (Judgment of the court was delivered by M.JEYAPAUL, J.) The fourth accused, the sixth accused and the seventh accused in S.C.No.103 of 2003 on the file of the Sessions Judge, Thiruvannamalai have preferred Criminal Appeal No.838 of 2008. The first accused, the second accused and the third accused have preferred Criminal Appeal No.142 of 2009 and the fifth accused has filed Criminal Appeal No.210 of 2009 aggrieved by the judgment pronounced by the Sessions Judge, Thiruvannamalai in the aforesaid case. 2. A1, A3 to A7 were found guilty for the offence under section 147 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs.1000/= in default to undergo rigorous imprisonment for three months each, A2 is found guilty for the offence under section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/= in default to undergo rigorous imprisonment for four months, A1 is found guilty for the offence under section323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month, A2 to A7 are found guilty for the offence under section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A1 to A7 are found guilty for the offence under section 448 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A1 to A3 are found guilty of the offence under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo rigorous imprisonment for six months each, A4, A5 and A7 are found guilty for the offence under section 302 read with 149 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo rigorous imprisonment for six months each, A6 is found guilty for the offence under section 302 read with 109 read with 114 read with 149 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo rigorous imprisonment for six months. A1, A4 and A5 are found guilty for the offence under section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A2, A3, A6 and A7 are found https://hcservices.ecourts.gov.in/hcservices/ guilty for the offence under section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A5 is found guilty of the offence under section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month, A1 to A4, A6 and A7 are found guilty for the offence under section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A3 and A4 are found guilty for the offence under section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each and A1, A2, A5 to A7 are found guilty for the offence under section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each. 3. In order to establish the case of the prosecution, 15 witnesses were examined and 32 documents and 8 M.O.s were marked on the side of the prosecution. 4. The sum and substance of the testimony of the witnesses examined on the side of the prosecution reads as follows:- (i) PW3 Reeta Mary is the mother of PW1 Subash. PW1 Subash is the nephew, PW2 Deepak is the son and PW4 Selvi alias Sowriammal is the daughter of the deceased Gnanaprakasam. They are residing in Jamin Gudalur village. There was an election for the post of President for the Christian community in Jamin Gudalur village. A6 Anthonisamy and one Savarimuthu contested for the said election that was held on 9.2.2003. A6 Anthonisamy was declared elected and Savarimuthu lost the election. As a result of which there was some misunderstanding between the deceased Gnanaprakasam and A6 Anthonisamy group. (ii) On 18.2.2003, one Madhalai Mary, maternal aunt of A6 passed away. A1 Donbosco, A2 Raja alias Christharaj A3 R.Lourthusamy, A4 Lal alias Lawrance and A5 A.Lourthusamy who hailed from Bangalore came to the village to attend the funeral. A6 Anthonisamy and A7 Arokkiasamy are the residents of Jamin Gudalur. (iii) On 19.2.2003, at about 8.30 pm, PW2 Deepak son of the deceased Gnanaprakasam was standing in front of the shop of PW6 Devasagayam. A1 Donbosco, A2 Christharaj and A4 Lawrance came down to the shop of PW6 and picked up quarrel. PW1 and the deceased Gnanaprakasam proceeded to the shop of PW6 where the quarrel was https://hcservices.ecourts.gov.in/hcservices/ raging and tried to prevent the quarrel. The first accused Donbosco beat PW2 Deepak on the backside of his head. The dispute was amicably resolved and A1, A2 and A4 were sent away. (iv) On 20.2.2003 at about 8.00 am, PW2 Deepak was standing in front of the shop of PW6. The first accused came over there by bicycle and picked up quarrel with PW2 Deepak. PW1 came down to the shop of PW6 and enquired about the quarrel with PW2. At that time, A1, A3 and A4 armed with stick, A2 armed with cricket bat and A5 armed with reaper came to the said place. PW2 apprehending some trouble, proceeded to his house and closed it. PW4, the daughter of the deceased Gnanaprakasam came out of the house and closed the outer gate. A1 beat PW4 with stick on her head. PW4 fell down unconscious. The deceased Gnanaprakasam, who was in the upstairs of the house, tried to appease the agitating accused saying that the dispute could be resolved amicably. By then, all the accused scaled the compound wall and entered into the house. The first accused beat the deceased Gnanaprakasam on his head with stick. A2 beat him on his head with cricket bat and A5 attacked him on his head with reaper indiscriminately. PW1 tried to intervene when attacks were launched by A1, A2 and A5. A4 and A5 attacked PW1 on his head with sticks. The first accused attacked him on his left leg. PW3 Reeta Mary the mother of PW1 attempted to ward off the attack launched as against PW1. The first accused attacked her with reaper. PW2 Deepak went out of the house crying that the deceased Gnanaprakasam was beaten. The sixth accused escorted the other accused to beat them. The third accused beat PW2. The first accused beat on his shoulder with stick. By then, crowd gathered over there. All the accused sped away with cricket bat, stick and reaper. (v) Sagayaraj and Ramesh took all the injured to Thiruvannamalai Government Hospital by van. All the injured persons, except Gnanaprakasam who sustained grievous injury on his head, were admitted to Government Hospital, Thiruvannamalai. PW11 Dr.Thilagavathy admitted Gnanaprakasam who was brought by Anthonisamy to Government Hospital, Thiruvannamalai at 9.45 am on 20.2.2003. It was informed by him that Gnanaprakasam was assaulted at about 8.30 am in his house by six persons with club, reaper and stick. She found the following injuries on examination of the injured Gnanaprakasam:- "1) Swelling right orbital region eyelid and face laceration. 2) Bleeding 1 cm with slights swelling right wrist. Unconscious involuntary movement. Pupils no response. 3) Laceration Bleeding 1cm x ½ cm bone deep left frontal scalp. 4) Laceration 2 cm x ½ cm x bone deep left parietal scalp." https://hcservices.ecourts.gov.in/hcservices/ Copy of the accident register issued by PW11 was marked as Ex.P18. Thereafter, Gnanaprakasam was referred to CMC Hospital. (vi) The Doctors in CMC, Hospital, having found that Gnanaprakasam would not survive the injuries sustained by him, asked the relative to take him back to the house. On the way back, Gnanaprakasam succumbed to the injuries. (vii) PW11 Dr.Thilagavathy admitted PW1 Subash at about 10.00 am on 20.2.2003 to Government Hospital, Thiruvannamalai for treatment. One of this relatives brought him for treatment. It was informed to PW11 that Subash was assaulted by six persons with club and reaper at his house at about 8.30 am on 20.2.2003. She found the following injuries on Subash:- "1) Laceration 4cm x 1/2cm x 3/4cm occipital region with bleeding. 2) Irregular laceration 1-1/2cm x 1/2cm x 1/2cm over left parietal region with bleeding. 3) Red colour 1-1/2cm x 1/2cm x 1/2cm over right temporal region. 4) Laceration 1/2cm x 1/2cm x 1/2cm with 1cm 1cm swelling left knee. 5) Contusion parallel 10 cm x 2-1/2 cm left shoulder. 6) Laceration 40cm x 5 cm oblique back. 7) Contusion 7 cm x 3cm on mid back. 8) Contusion 6cm x 5cm on right forearm." She expressed her opinion that Subash sustained only simple injuries in the copy of the accident register, Ex.P19 issued by her. (viii) PW11 admitted PW4 Selvi alias Sowriammal at about 10.15 am on 20.2.2003. She was brought by one of her relatives. PW11 was informed that she was assaulted by a person with firewood at about 8.30 pm on 20.2.2003 in her house. She found a laceration measuring 2 cm x 1/4cm x 1/4cm on the left parietal region. She was treated as outpatient. PW11 opined in the accident register, Ex.P20 that Sowriammal sustained simple injury. (ix) PW11 admitted PW2 Deepak (Anthonisamy) at 10.15 am on 20.2.2003. He was brought by one of his relatives for treatment. It was informed to PW11 that he was assaulted with club and reaper in his house at 8.30 am on 20.2.2003. PW11 found a laceration measuring 1/2x1/2x1/2 cm over the frontal region. She opined in the accident register, Ex.P21 that Anthonisamy sustained only simple injury. (x) PW13, Sub Inspector of Police D.Nagarajan attached to Vettavalam Police Station received information about the admission of the injured to Thiruvannamalai Government Hospital and proceeded to https://hcservices.ecourts.gov.in/hcservices/ the hospital at about 12.30 pm on 20.2.2003 and recorded the statement, Ex.P1 from PW1 who was taking treatment in the hospital. PW13 came down to Vettavalam police station and registered a case in Crime No.68 of 2003 under sections 147, 148, 323, 448, 325 and 307 of the Indian Penal Code and prepared printed first information report, Ex.P22 and despatched the same to the learned Judicial Magistrate II Thiruvannamalai and copies thereof to the higher officials concerned. (xi) On 20.2.2003, at about 10.00 pm, he received communication from PW2 Deepak that Gnanaprakasam who sustained injuries in the occurrence died. Therefore, he converted the case into one under section 302 of the Indian Penal Code and prepared the printed express report, Ex.P23 and despatched the same to the learned Judicial Magistrate II Thiruvannamalai and the copies thereof to the higher officials concerned. (xii) PW14 Inspector of Police G.Gothandan, incharge of Vettavalam police station received communication from VHF at 10.30 pm on 20.2.2003 about the occurrence and proceeded to the scene of occurrence at 11.00 pm. He having received a copy of the first information report, arrived at the scene of occurrence, prepared observation mahazar, Ex.P5 in the presence of PW7 Dhanapal and another witness by name Anthony. He also drew rough sketches Exs.P24 and P25. PW12 Pushparaj was engaged for taking photographs of the scene of occurrence. (xiii) At about 11.30 pm on the said day, PW14 seized the blood stained earth M.O.4 and sample earth M.O.5 under seizure mahazar Ex.P6 in the presence of the very same witnesses. He held inquest between 11.45 pm on 20.2.2003 and 00.30 am on 21.2.2003 in the presence of panchayatdars and witnesses and prepared inquest report, Ex.P26. He examined witnesses present over there. (xiv) PW5 Dr.Pugazhenthi, having received requisition from PW14, commenced post mortem examination on the dead body of Gnanaprakasam at 12.05 pm on 21.2.2003. He found the following external injuries:- "1) Sutured wound forehead 3"x1." 2) Injury on the inter parietal region 4"x1-1/2". 3) Injury on the right side of head 3"x1-1/2." 4) Swelling of the forehead 4"x3"." He opined in the post mortem certificate Ex.P4 that the deceased Gnanaprakasam appeared to have died of head injury about 24 to 30 hours prior to post mortem examination. (xv) On 21.2.2003 at about 12.15 pm PW14 arrested A6 Anthonisamy at the bus stop at Aavoor village. Thereafter he was remanded to judicial custody at about 2.00 pm on the said day. The fourth https://hcservices.ecourts.gov.in/hcservices/ accused Lal alias Lawrence was arrested at Vayaloor intersection in the presence of PW7 Dhanapal and another witness by name Anthonidas. In the presence of the witnesses, A4 gave confession statement. On the basis of the admissible portion, Ex.P7 in the confession statement of A4, he took PW14 and the witnesses to the house of Anthonisamy and took out the blood stained club M.O.3 and handed over to PW14. The same was recovered under relevant recovery mahazar, Ex.P8 in the presence of the aforesaid witnesses. A4 was thereafter remanded to judicial custody. M.O.8 lungi worn by the deceased was seized by the constable Sekar and entrusted the same for investigation to PW14 under special report Ex.P27. (xvi) PW14, having found that PW3 Reeta Mary had sustained injury in her ear, sent her alongwith medical memo for treatment to Government Hospital, Thiruvannamalai. PW10 Dr.Sagaya Inba Sekar gave treatment to PW3 She alleged before the doctor that she was assaulted by a known male person on 20.2.2003 at 8.30 am near her house with firewood. PW10 found an abrasion over the left ear lobe measuring 1x1 cm. She was treated as outpatient PW10 opined in the accident register Ex.P17 that PW3 sustained only simple injury. (xvii) On 24.2.2003 at about 6.30 am PW14 arrested the first accused and the second accused near Rajanthangal bus stand in the presence of PW8 and another witness by name Das. The first and the second accused gave confession statements. On the basis of the admissible portion Ex.P9 in the confession statement of the first accused, the sticks M.O.3 series were recovered from the hut of Arokyasamy at Jamin Gudalur. The same was recovered under recovery mahazar Ex.P10 in the presence of the aforesaid witnesses. On the basis of the admissible portion, Ex.P12 in the confession statement of the second accused, cricket bat M.O.1 was recovered from the terraced house of Anthonisamy at Jamin Gudalur under recovery mahazar Ex.P12. A1 and A2 were remanded and the material objects were despatched to the court for safe custody. (xviii) The confession statement of the first accused would disclose that he sustained injury at the hands of the deceased Gnanaprakasam and PW2 Deepak. Therefore, a case in crime No.73 of 2003 under sections 341, 323 and 294(b) of the Indian Penal Code was registered. The first accused was sent alongwith the medical memo for treatment to the Government Hospital, Thiruvannamalai. The first information report registered based on the confession statement of the first accused was marked as Ex.P28 and the printed first information report prepared based thereon was marked as Ex.P29. (xix) On 1.3.2003 at about 8.30 am the third and fifth accused were arrested at Velananthal intersection in the presence of PW9 Dhanish Lal and another witness by name Anthonydas. Both the accused gave voluntary statements in the presence of those witnesses. On the https://hcservices.ecourts.gov.in/hcservices/ basis of the admissible portion, Ex.P13 in the confession statement, A3 took out the reaper M.O.2 from the backside of the hut of Arokyasamy at Jamin Gudalur and handed over to PW14 which was recovered under seizure mahazar, Ex.P15. On the basis of the admissible portion Ex.P14 in the confession statement of the fifth accused, he took out one of the clubs M.O.3 series from the backside of the hut of Arokyasamy at Jamin Gudalur and handed over to PW14 which was recovered under relevant seizure mahazar Ex.P16. Both the accused were remanded to judicial custody and the material objects were sent to the court under Form 95. (xx) PW14 submitted requisition for sending the material objects for chemical examination. The learned Judicial Magistrate II Thiruvannamalai submitted the material objects to the Forensic Sciences Department under covering letter Ex.P30 for conducting chemical examination. Exs.P31 and P32 are the chemical examination reports received by the court. (xxi) PW15 Sivanesan, Inspector of Police, who took up the case for further investigation examined the other witnesses in this case and laid final report on 28.4.2003 as against all the accused before the learned Judicial Magistrate II Thiruvannamalai. (xxii) The incriminating portions found in the evidence of the prosecution witnesses were putforth to the accused under section 313 of the Code of Criminal Procedure. All the accused have completely denied the incriminating circumstances spoken to by witnesses and it was submitted by the accused that a false case has been foisted as against them. Neither oral nor documentary evidence was adduced on the side of the accused. (xxiii) The Trial Court, having adverted to the injured ocular witnesses viz., P.Ws.1 to 4, the arrest and recovery of material objects and the medical evidence available on record, returned a verdict of conviction as against all the seven accused. 5. Homicidal death of Gnanaprakasam:- PW11 Dr.Thilagavathy has given treatment to Gnanaprakasam. Ex.P18 is the copy of the accident register issued by her. It would reflect that Gnanaprakasam, who was admitted to Government Hospital, Thiruvannamalai for treatment, sustained swelling injury on the orbital region, bleeding injuries on the right wrist and laceration on the frontal and parietal scalp. 6. PW1 Subash would depose before the court that though an attempt was made to admit the injured Gnanaprakasam to CMC Hospital, Vellore, the injured Gnanaprakasam had to be taken back to the house as the CMC Hospital authority refused to admit him to the hospital for treatment on account of the bad health condition of Gnanaprakasam. It is in evidence that when Gnanaprakasam was taken https://hcservices.ecourts.gov.in/hcservices/ back to the house, he breathed his last. 7. PW5 Dr.Pugazhenthi is the doctor who conducted post mortem examination on the dead body of Gnanaprakasam at about 12.05 pm on 21.2.2003. He found a sutured wound over the forehead measuring 3x1 cm, an injury on the inter parietal region measuring 4x1-1/2 cm and yet another injury on the right side head measuring 3x1-1/2 cm and also a swelling over the forehead measuring 4x3 cm. Having examined the internal injuries corresponding to the aforesaid external injuries, PW5 Dr.Pugazhenthi in the post mortem certificate, Ex.P4 issued by him opined that the deceased would appear to have died of head injuries about 24 to 30 hours prior to post mortem examination. The medical evidence referred to above would clinchingly establish that Gnanaprakasam died a homicidal death. 8. Motive for the murder of Gnanaprakasam:- The prosecution has come out with a case that four eyewitnesses in the occurrence sustained injury in the very same occurrence. When ocular testimony is there that too from the very mouth of the injured witnesses, motive part of the case pales into insignificance. Of course, the learned counsel appearing for accused 4 to 7 and the learned counsel appearing for accused 1 to 3 would vehemently submit that there was no motive for the murder of Gnanaprakasam inasmuch as it was only the accused party who allegedly won the election. 9. The learned Additional Public Prosecutor would submit that P.Ws.1 to 4 have categorically spoken to the fact that there was a dispute between A6, who won the election and the prosecution parties, who supported the candidate who lost the election conducted for the village Christian community people. 10. Let us now refer to the evidence of P.Ws.1 to 4 who categorically spoke to the motive part of the case of the prosecution. PW1 has deposed that in the election that was held on 9.2.2003 for the Christian community in Jamin Gudular village, A6 Anthonisamy was declared elected, but, Savarimuthu, who contested the election lost the election. It is his categorical version that on account of such declaration of the result in favour of A6 Anthonisamy, there was some animosity between the deceased Gnanaprakasam and A6 Anthonisamy. PW2 the son of the deceased would speak in detail to the effect that the election was conducted on 9.2.2003 under the supervision of Father Don Bosco and three Sisters. The 6th accused Anthonisamy who contested the election against Savarimuthu was about to be declared elected. PW2 approached Father Don Bosco and informed him that the election was conducted in a partisan manner and therefore, the election should be stopped. It was informed to PW2 that as the election had crossed a particular level, the same could not be stopped. Therefore, there was a dispute between the family of Anthonisamy A6 and the family of the deceased, https://hcservices.ecourts.gov.in/hcservices/ he would depose. PW3 Reeta Mary is the mother of PW1. She has also spoken to the live dispute between A6 on the one side and the deceased on the other side in connection with the declaration of election in favour of A6 Anthonisamy. PW4 also would speak to the fact that there was a motive between the family of A6 and the deceased as the election went in favour of A6 Anthonisamy. 11. There is no reason to disbelieve the evidence of P.Ws.1 to 4 who have cogently spoken in one voice that there was a live dispute between A6 family and the deceased family in connection with the election that was conducted on 9.2.2003. Considering the above evidence on record, we come to a decision that the prosecution has established beyond reasonable doubt that there was a motive between the family of A6 and the deceased. 12. Rioting armed with deadly weapon:- A1 to A5 are charged under section 149 and A6 and A7 are charged under section 147 of the Indian Penal Code. P.Ws.2, 3 and 4 have deposed in one voice that A1, A4 and A5 armed with wooden log, A2 with cricket bat and A3 with reaper, entered into the house of the deceased alongwith A6 and A7. PW1, though stated in the complaint, Ex.P1 that A1,