IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25/06/2003 CORAM THE HONOURABLE MR.JUSTICE N.DHINAKAR AND THE HONOURABLE MR.JUSTICE T.V.MASILAMANI Criminal Appeal No.821 of 2000 1. Sakthivel 2. Nagaraj 3. Prabhu 4. Prakash 5. Aranganathan 6. Mani 7. Manikandan 8. Murthi 9. Muthu 10.Saravanan 11.Murthi 12.Jothi 13.Arul 14.Venkatesan 15.Vijayababu 16.Parthiban 17.Saravanan 18.Chinnakannan 19.Dhayalan 20.Parthipan 21.Guru 22.Ravindiran 23.Raja 24.Pekicemuthu (A) Muthu 25.Ranjith (A) Ranithakumar .. Appellants -Vs- State, by Inspector of Police, Law and Order, Cuddalore N.T. (Crime No.746 of 1999). .. Respondent Appeal against the judgment of the learned Additional District Judge cum Chief Judicial Magistrate, Cuddalore, made in S.C.No.41 of 2000 dated 14.3.2000. !For Appellants : Mr.V.Gopinath, S.C. For Mr.L.Mahendran and Mr.C.Christopher for A-1 and A-2 : Mr.R.Sitaraman and Mr.G.Pugazhenthi for A-5 : Mr.V.Gopinath, S.C. For Mr.K.A.Ramakrishnan for A-9 : Mr.K.N.Basha for A-3, A-4, A-6 to A-8, A-10 to A-22 and A-24 to A-26. ^For Respondent : Mr.M.K.Subramanian Govt. Advocate (Crl. Side) :J U D G M E N T (Judgment of the Court was delivered by N.DHINAKAR, J.) The appellants, who are A-1 to A-22 and A-24 to A-26, were tried along with A-23, who has not chosen to prefer any appeal, before the learned Additional District Judge cum Chief Judicial Magistrate, Cuddalore, under various charges. The allegation against them is that they formed themselves into an unlawful assembly at about 10.30 p.m. on 2 6.6.99 and that A-1 to A-22 and A-24 to A-26, were each armed with deadly weapons, while A-23 was armed with a stick and that in furtherance of the common object of the said unlawful assembly, A-1, A-2, A-5, A-11 to A-15, A-19 to A-21 inflicted injuries on Kumar (D-1) and that A-3, A-4, A-6 to A-10, A-16 to A-18, A-22, A-24 to A-26 cut Anand (D-2) and as a result of the said cut injuries, the two persons died at Krishna hospital run by P.W.17, a private medical practitioner, at 1.00 and 1.15 a.m. respectively on 27.6.99. The learned trial Judge, while convicting A-1 to A-22 and A-24 to A-26 under Section 148 I.P.C., convicted A-23 under Section 147 I.P.C. and sentenced A-1 to A-22 and A-24 to A-26 to one year rigorous imprisonment each and also directed each one of them to pay a fine of Rs.1,000/- with a default sentence of six months R.I. A-23, on being convicted, was sentenced to seven months simple imprisonment and was also directed to pay a fine of Rs.1,000/- with a default sentence of three months S.I. A-1, A-2, A-5, A-11 to A-15 and A-19 to A-21, on being convicted under Charge No.3 for causing the death of D-1, were sentenced each to imprisonment for life and each one of them was also directed to pay a fine of Rs.5,000/- with a default sentence of one year R.I. and similarly, under Charge No.5, A-3, A-4, A-6 to A-10, A-16 to A-18, A-22, A-24 to A-26, on being convicted for the murder of D-2, were each sentenced to imprisonment for life and each one of them was also directed to pay a fine of Rs.5,000/- with a default sentence of one year R.I. Under Charge No.4, A-3, A-4, A-6 to A-10, A-16 to A-18, A-22, A-23 to A-26 were found guilty for sharing the common object of the accused, who were charged under Charge No.3 for causing the death of D-1 and each one of them was sentenced to imprisonment for life and also to pay a fine of Rs.5,000/- with a default sentence of one year R.I. and similarly, under Charge No.6, A-1, A-2, A-5, A-11 to A-15, A-19 to A-21 and A-23 were found guilty for sharing the common object of the accused, who were charged under Charge No.5 for causing the murder of D-2 and each one of them under the said Charge was sentenced to imprisonment for life and they were also directed to pay a fine of Rs.5,00 0/- with a default sentence of one year R.I. A-23 was acquitted under Charge Nos.4 and 6. The learned Sessions Judge further directed that if the fine amount is collected from the accused, a sum of Rs.1 lakh will be paid to the legal heirs of each of the deceased 1 and 2 as compensation. A-1 to A-22 and A-24 to A-26 challenge their conviction and sentence in the present appeal. 2. In this judgment, appellants 1 to 22 will be referred to as A-1 to A-22 and appellants 23, 24 and 25 will be referred to as A-24, A-25 and A-26 and A-23, who did not prefer any appeal for his conviction under Section 147 I.P.C., will be referred to as A-23, in the same order as they were arrayed before the learned Sessions Judge for the sake of convenience. 3. The case of the prosecution as could be discerned from the oral and documentary evidence can be briefly summarised as follows:- P.W.2 is the brother of D-1. A-1 and A-2 are brothers and other accused are their associates. P.W.1 and the deceased as well as the accused were residents of Kattunaicken street of Pudhupalayam. D-1, Kumar, was a distant relative of P.W.1 and D-2, Anand, was a friend of P.W.1. D-1 was eking his livelihood by distributing newspapers and D-2 was making a living by doing sentry work at construction sites. D-1 was the Secretary of Democratic Youth Federation of India during the relevant period and D-2 was a member of the said society. D-1 and D-2 were close friends and they used to participate in all agitations. P.Ws.1 to 3, who were the members of the said Democratic Youth Federation of India, also used to do social service of cleaning streets and removing debris, etc. A-1 and A-2 were selling illicit arrack near Kedilam river. As the woman folks had to attend calls of nature by going to the river bank, the activities of A-1 and A-2 was a hindrance to them. The members of the society, therefore, made a complaint at the police station. The police took action and prevented A-1 and A-2 from selling arrack and therefore, the accused had a grievance against the witnesses and the deceased. About six months prior to the date of incident, Kanagaraj, a member of the Society, was assaulted by A-1, A-2, A-7 and another near the tailor shop of A-1 and in respect of that, a complaint was given at the police station, which was registered under Section 307 I.P.C. The case was pending during the relevant period. In the said complaint, D-1 was figuring as a witness. On account of this, A-1 and A-2 could not sell arrack and four days prior to the date of incident, A-1 and A-2 sold arrack through one Rajathi, but D-1 intervened by giving a complaint to the Superintendent, Cuddalore, leading to the arrest of Rajathi. Therefore, the accused grew angry with D-1 and D-2, since when D-1 went to give a complaint to the Superintendent, he was accompanied by D-2, P.W.1 and one Ganesan. They threatened D-1 and D-2 as well as the witnesses that they will not leave them alive. This is said to be the motive for the occurrence, which took place at about 10.30 p.m. on 26.6.99. 4. At about 10.30 p.m. on 26.6.99, P.W.1, on coming to know that the house of P.W.4 is being damaged by A-1 to A-10, rushed to the place along with P.Ws.2 and 3. There, he found A-1 to A-10 armed with iron pipes and veecharuvals damaging the house of P.W.4. On seeing this, the residents of the street ran away from the place. P.Ws.1 to 3 returned to their house and while they were so returning, they saw D-1 and D-2 in front of the house of P.W.5. A-1 and A-2 and their henchmen, who were armed with veecharuvals, iron pipes and other weapons, rushed towards them and A-1, seeing D-1, told him that he will not be allowed to live peacefully and cut him with a veecharuval on the right side of his head. A-2, with a veecharuval, cut D-1 on the left side of his head. A-5 cut D-1 on the fore head and A-13 cut D-1 on the right side of his head. A-14 cut D-1 on the back of his head and A-11 beat D-1 with an iron pipe on the right shoulder. A-12 beat D-1 on the right fore arm with an iron pipe and A-19, who had an iron pipe in his hand, beat D-1 on the right leg. A-20, with a veecharuval in his hand, pecked at the left shoulder of D-1. A-16 pecked at D-1 on the right side of his buttocks. A-21 cut D-1 on the right hand and when D-2 intervened, A-3 cut him on the left side of his head with a veecharuval, followed by A-4, who cut him on the right side of his head. A-25 cut him on the chin and A-8 cut him on the right side of his hand. A-10 cut D-2 on the right hand and A-16 followed by beating D-2 with an iron pipe on the right shoulder. A-22 cut D-2 on the right hand and A-17, with a veecharuval, cut D-2 on the right fore arm. A-24 cut D-2 on the right fore arm and A-6 cut him on the left hand. A-7 and A-9 inflicted a cut injury on the fingers of his left hand. A-26 cut D-2 on the left flank, while A-18 cut him on the right side of his chest. A-23, with a stick, was all the time standing by that side. This was at 10.45 p.m. The occurrence was witnessed by P.Ws.1 and 2 and there were electric lights burning at the place. On hearing the alarm, the villagers also gathered. The accused ran away from the place leaving the two injured persons. P.Ws.1 to 3 removed D-1 and D-2 and produced them before P.W.17, a private medical practitioner, who was running a hospital under the name and style of Krishna Hospital, at 11.30 p.m. P.W.17 examined D-1 and found on his person the following injuries:- 1. A lacerated fresh injury cutting the parietal bone exposing brain 8 cm. x 3 cm. x 2 cm. on the rt. side of the head. 2. A fresh lacerated injury 6 x 1.5 x 1 cm. over rt. side of forehead. 3. A lacerated fresh injury 3 x 1 x 1 cm. over the lt. parietal region. 4. An incised wound 5 x 2 x skull deep on the lt. side of occipital region. 5. A lacerated injury 2 x 1 x 1 cm. close to injury No.(4). 6. An incised wound 3 x 2 x 1 cm. on the rt. elbow. Ex.P.18 is the copy of the accident register issued by the said doctor for the injuries found on D-1. He also examined D-2 and for the injuries found on his person, he issued Ex.P.19, the copy of the accident register and the injuries found on D-2 are as follows:- 1. An incised fresh injury 6 x 1.5 x 1 cm. on the right side of the scalp. Bleeding through right ear and mouth. 2. An incised fresh wound 2 x 1 x 1 cm. on the chin. 3. An incised fresh injury 3 x 1 x 1 cm. on the right arm. 4. An incised fresh injury 7 x 2 x 1 cm. on the left neck. 5. An incised fresh wound 2 x 1 x 1 cm. on the right elbow. 6. A lacerated fresh injury 2 x 1 cm. x 1 cm. on the right arm. 7. An incised wound 2 x 1 x 0.5 cm. on the right gluteal region. 8. an incised wound 3 x 1 x 1 cm. on the dorsum of the hand above the index finger. 9. An uncontinuous incised wound 5 x 1 x 1 cm. on the dorsum of the right hand. 10.Multiple small incised wounds right hand. 5. In the meantime, HC 471 of Cuddalore N.T. Police station contacted P.W.20, who was engaged in vehicle check-up, at about 10.45 p.m. and informed about the rioting, which had taken place at Pudhupalayam. On the oral information furnished by the said head constable, P.W.20 proceeded to the scene village accompanied by a Sub-Inspector and other police officers. On reaching the scene village, he could not get any information about the rioting, but he received an information that the injured persons have been removed to Krishna hospital. P.W.20 proceeded to Krishna hospital, where finding D-1 and D-2 in an unconscious stage and not able to get any information from the persons, who were present at the hospital, left the hospital and reached the police station at about 12.30 p.m. P.W.1 appeared before him with a written complaint and handed over the same to him. On the basis of the written complaint handed over by P.W.1, P.W.20 registered a case in Crime No.446 of 1999 against A-1 to A-10 under Sections 147, 148, 32 4, 326 and 307 I.P.C. by preparing express reports. A copy of the printed first information report is Ex.P.29 in the case. Thereafter, he proceeded to Krishna hospital and on reaching the hospital, he was informed that both D-1 and D-2 have died. P.W.20 returned to the police station with the death intimations and altered the crime to one under Section 302 I.P.C. Ex.P.30 is the express report in the altered crime. He took up investigation in the crime and reached the scene of occurrence at 3.00 a.m., where an observation mahazar, Ex.P.2, was prepared. He also seized blood stained earth and sample earth, M. Os.6 and 7, under a mahazar, Ex.P.3. At about 4.30 a.m., in front of the house of A-1, the blood stained earth and the sample earth, M.Os.8 and 9, were seized under a cover of mahazar, Ex.P.4. The mahazars were attested by witnesses. He also drew a rough sketch, Ex.P.31. He left the scene of occurrence and reached Krishna hospital, where the inquest over the body of D-1 was conducted between 6.00 a.m. and 8.00 a.m., during which P.Ws.1 to 3 were questioned and their statements were recorded. Ex.P.32 is the inquest report. The inquest over the body of D-2 was conducted thereafter and the same witnesses were examined during the inquest of D-2 also. Ex.P.33 is the inquest report prepared by the officer in respect of D-2. After the inquest, requisitions, Exs.P.24 and P.25 were issued to the medical officer and the two dead bodies were despatched with his requisitions. 6. On receipt of the requisitions, P.W.18, the Assistant Surgeon attached to Government Hospital, Cuddalore, conducted autopsy on the body of D-1 and found the following injuries:- 1. A lacerated cut injury  right forehead with size 7 cm. x 2 cm. x 2 cm. exposing bone. 2. A deep cut injury exposing fractured bone and brain over right frontal area with size 10 cm. x 3 cm. x 2 cm. 3. A bone deep cut injury over left frontal area with size 5 x 2 x 2 cm. 4. A bone deep cut injury over frontal left area behind the wound item  3 with size 5 x 2 x 2 cm. 5. A bone deep cut injury over centre of occipital area, with size 10 x 3 x 2 cm. 6. A linear contusion mark with3 cm. long size over right shoulder. 7. A lacerated cut wound 1 x 1 x 1 cm. size over left scapula. 8. Two lacerated wounds with size 1 x 1 x 1 cm. each found side by side over right buttocks. 9. A lacerated cut injury with size 3 x 1 x 1 cm. exposing the bone over the lateral aspect of right elbow. 10. A lacerated wound 1 x 1 x 1 cm. size  right upper arm. 11. A lacerated wound  right leg with 2 x 1 x 1 cm. size. The doctor issued Ex.P.27, the post-mortem certificate, with his opinion that the deceased died on account of shock due to head injuries about 8 to 12 hours prior to autopsy. Similarly, the dead body of D-2 was subjected to autopsy by the said doctor and on his person, the doctor found the following injuries, which he noted in Ex.P.26, the post-mortem certificate:- 1. An incised cut wound exposing the bone about 6 cm. x 2 cm. x 2 cm. size over right frontal area. 2. A 2 x 2 x 1 cm. size cut wound over left frontal region. 3. A cut wound with 2 x 2 x 1 cm. size on centre of chin. 4. A cut wound with 3 x 3 x 2 cm. size on middle of the right arm. 5. An incised cut wound with size 3 x 3 x 3 cm. on right elbow. 6. A linear contusion about 10 cm. length  right shoulder. 7. A cut wound  right hand dorsum. 8. A deep cut injury over left forearm with size 8 x 4 x 2 cm. 9. A cut injury with 2 x 1 x 1 size near the wound No.8. 10. A cut injury over left dorsum of hand with size 3 x 1 x 1 cm. 11. A cut injury with 2 x 2 x 1 cm. size over left middle finger exposing fractured bone. 12. A cut injury about 2 x 3 x 1 cm. size over right side of hip. 13. A cut injury about 2 x 3 x 1 cm. over right chest. The doctor has opined that the deceased died on account of shock due to head injuries about 8 to 12 hours prior to autopsy. 7. In the meantime, P.W.20, continuing with his investigation, questioned witnesses and recorded their statements. The blood stained clothes of the deceased produced by the police constable, who took the dead bodies to the hospital, were also seized. The scene of occurrence was caused to be photographed through the photographer, P.W.12 at 1.00 p.m. on 27.6.99. He questioned P.Ws.1 to 3 and recorded their statements. On 27.6.99, he formed a special party to trace the accused and arrest them. On 28.6.99, P.Ws.5 to 8 and others were questioned and their statements were recorded. On 29.6.99, he questioned the photographer, P.W.12 and other witnesses and also searched for the accused. On an information received at noon on 30.6.99, he left with his party to Devanampattinam and arrested A-7, A-11, A-12 and A-13 in the presence of P.W.13 and another. A-7 produced an aruval, M.O.19, which was seized under a mahazar, Ex.P.11. On 1.7.99, A-2, A-6 and A-8 were arrested. In pursuance of the admissible portion of the statement, Ex.P.5, given by A-2, the police party was taken to Cuddalore-Chidambaram road and from underneath a bridge, an aruval, M.O.10, was produced, which was seized under a cover of mahazar, Ex.P.6. The same was attested by P.W.9 and another. A-3 was arrested at noon on 3 .7.99 and he gave a statement. The admissible portion of the said statement is Ex.P.12. In pursuance of the admissible portion, Ex.P.12, M.O.16, an aruval, was seized under a cover of mahazar, Ex.P.13, attested by P.W.14. On 5.7.99, A-5, A-10 and A-15 were arrested and in pursuance of the admissible portion, Ex.P.7, given by A-5, the two aruvals, M.Os.11 and 12, were seized under a cover of mahazar, Ex.P.8, attested by P.W.9. The accused were sent to Court for remand. A-1 and A-18 were arrested at about noon on 7.7.99. A-1 gave a statement and the admissible portion of the said statement is Ex.P.14. He took the police party to his house, where he produced M.O.17, which was seized under a cover of mahazar, Ex.P.15, attested by P.W.15. A-1 gave a complaint stating that his house was damaged by the villagers. The said complaint of A-1 was registered as a crime in Crime No.467 of 1999 and investigation was taken up in the said crime also. He continued with his investigation and recorded the further statements of P.Ws.1 to 4. On 2.7.99, A-9 surrendered before Judicial Magistrate No.1, Villupuram and on 9.7.99, he was taken into police custody on the orders of the Court. He was brought to the police station and questioned at about 6.30 p.m. The accused gave a statement and in pursuance of the admissible portion, Ex.P.16, given by him, the police party was taken to a burial ground, where he produced M.O.18, which was seized under a cover of mahazar, Ex.P.17. Later, he was sent to Court for remand. A-4 was arrested at about 2.30 p.m. on 14.7.99, when he was standing under suspicious circumstances near a check post. He was questioned and in pursuance of the admissible portion, Ex.P.9, given by him, the police party was taken to his house at Arumugampillai street, where, M.O.20, the veecharuval, was produced. The same was seized under a cover of mahazar, Ex.P.10. He conducted investigation in connection with Crime No.467 of 1999, which was registered on the basis of the complaint given by A-1, by preparing observation mahazar and drawing a rough sketch. He questioned other witnesses on 8.7.99, 9.7.99 and on 16.7.99. On 23.7.99, A-1 was detained under preventive detention under Act 14 of 1982 in terms of the provisions of the said Act. He questioned witnesses and recorded their statements and further investigation was taken up by P.W.21, who arrested A-14, A-16 and A-17 on 5.8.99. On 8.8.99, A-14 was arrested by him. He also questioned the doctor, P.W.17 and recorded his statement. 30.1.2000. After the completion of investigation, the final report was filed against the accused on 3.9.99. 8. The accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them. They denied all the incriminating circumstances. They did not examine any witness on their side. 9. P.W.18, the doctor, who conducted autopsy, was examined to establish the cause of death of D-1 and D-2. It was he, who conducted the autopsies on the two dead bodies of Kumar and Anand, namely, D-1 and D-2 and issued the two post-mortem certificates, Exs.P.27 and P.26 respectively, with the opinion that they died on account of shock due to head injuries. In the evidence, he has stated that external injuries 1 to 4 found on D-1 with their corresponding internal injuries are cumulatively and independently fatal in nature. He has also stated that external injuries 1 and 2 found on D-2 with their corresponding internal injuries are fatal in nature and that the injuries found on D-1 and D-2 could have been caused in the manner alleged by the prosecution. We, therefore, hold that the prosecution has succeeded in establishing the cause of death of D-1 and D-1 and it was on account of homicidal violence. 10. The prosecution examined seven witnesses to prove that A-1 to A-26 inflicted the injuries on the two persons and they were examined as P.Ws.1 to 3 and 5 to 8. Though P.Ws.1 to 3 have supported the prosecution version, P.Ws.5 to 8 have turned hostile. We, therefore, have to consider only the evidence of P.Ws.1 to 3 and the other materials to find out whether the prosecution has succeeded in establishing the charges against the accused. 11. We will first take up the case of A-11 to A-26. The names of A-11 to A-26 were not mentioned by P.W.1, when he gave the complaint, Ex.P.1, to P.W.20, the investigating officer, as the persons, who participated along with A-1 to A-10. Their names are not only not found in Ex.P.1, the earliest document to come into existence in this case, but P.W.1, in his earlier statement recorded under Section 161 Cr.P.C. by P.W.20 during the inquest, also did not mention their names as the persons, who were present along with A-1 to A-10. P.Ws.2 and 3, though, according to the prosecution, were examined at the time of inquest along with P.W.1, also did not mention their names as the assailants of the two persons. Therefore, it becomes clear that P.W.1 neither in his complaint, Ex.P.1, nor in