Madras High Court
Selvam vs The State Rep. By The on 12 December, 2008
Author: R.Subbiah
Bench: R.Regupathi, R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :: 12/12/2008 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Crl.A(MD)No.495 of 2004 Crl.A(MD)Nos. 618 and 621 of 2004 1.Selvam 2.Gani @ Deiva Nayagam 3.Sathai @ Murugan 4.Senthil Murugan ... Appellants/Accused Nos.5 to 8 in Crl.A.No.495/2004 5.Murugapandian 6.Suresh 7.Kumaran ... Appellants/Accused Nos.9 to 11 in Crl.A.No.618/2004 8.Mariappan 9.Raj @ Madhan 10.C.Mariappan 11.Murugesh .... Appellants/Accused Nos.1 to 4 in Crl.A.No.621 of 2004 Vs. The State rep. by the Inspector of Police, Vadakarai Police Station Vadakarai, Tirunelveli District. (Crime No.136/1999) ... Respondent Common Prayer Appeals filed under Section 374 of Cr.P.C., against the conviction and sentence dated 05.02.2004 passed in S.C.No.697 of 2000 by the Additional Sessions Court, (Fast Track Court No.1), Tirunelveli. !For Appellants ... Mr.D.Veerasekaran ^Respondent ... Mr.N.Senthur Pandian, Additional Public Prosecutor :COMMON JUDGMENT
(Judgment of the Court was delivered by R.SUBBIAH, J.) The appellants in these appeals, who were arrayed as accused Nos.1 to 11 along with one other accused who had been arrayed as A-12 (since acquitted) in S.C.No.697 of 1999, on the file of the Additional Sessions Judge, Fast Track Court I, Tirunelveli, have come forward with these appeals against the order of conviction and sentence passed against them. The appellants in Crl.A.No.621 of 2004 are the accused Nos.1 to 4; the appellants in Crl.A.No.618 of 2004 are the accused Nos.9 to 11 and the appellants in Crl.A.No.495 of 2004 are accused Nos.5 to 8.
2.The charges levelled against the appellants along with the acquitted accused A-12 are that all the appellant/accused, alleged to have armed with deadly weapons, formed themselves into an unlawful assembly and caused the death of three persons by name Pandarasamy, Murugan and Karuppasamy, hereinafter referred to as D1, D2 and D3 respectively, who are the sons of one Pandarm, the complainant in this case, caused the death of the above said three persons on 5.11.1999 at bout 6-30 A.M. at the junction of the bus stop of the village Sundarapandiyapuram, by indiscriminately cutting them with deadly weapons in wreaking revenge due to the previous enmity connected with the murder of one Murugan, the brother of A1 and son of Pandaram in respect which a case had been registered by the police that was pending before the Additional District and Sessions Judge, Tirunelveli.
The learned trial Judge, on the materials placed before him, framed eight charges against the appellants/accused and the acquitted accused viz., A12 as follows:-
Charge No.1) Against the Appellants/Accused Nos.1 to 11 and A-12 under Section 148 of IPC for having formed themselves into an unlawful assembly with deadly weapons and committed rioting.
Charge No.2) Against A-4 and 8 for having wrongfully restrained the deceased Pandarasamy and deceased Murugan respectively for an offence punishable under Section 341 IPC;
Charge No.3) Against A-1 to A-7, and A-9 to A-11 under Section 302 IPC (3 counts) for having attacked the deceased Pandarasamy by A-1 to A-4 and the deceased Murugan by A-6,A-7 and A-9 and the deceased Karupasamy by A-10 and A-11 with deadly weapons and caused their death.
Charge No.4)Against A-8 under Section 302 read with 149 IPC (3 counts) for having been member of the rioting and instigating in causing the death of the deceased persons along with A-1 to A-7 and A-9 to A-11.
Charge No.5) Against A-1 under Section 307 IPC for having hurled the country bomb against P.W.1 with an attempt to commit murder. Charge No.6 Against A-2 to A-11 under Section 307 IPC read with section 149 IPC for being a member of the unlawful assembly and sharing the common object of A1in attempting to commit murder of P.W.1 by hurling the country bomb by A-1.
Charge No.7)Against A-1 under Section 5 of the Explosive Substances Act, 1908 for having been in possession of a country bomb without holding a valid licence.
Charge No.8)Against A-1 under Section 3 of the Explosive Substances Arms Act, 1908 for having possessed and used the country bomb without licence. Charge No.9)Against A-12 under Section 302 read with 201 IPC for having committed the offence with intention of screening the offenders by removing them from the scene of occurrence by using his vehicle and thereby causing disappearance of evidence of an offence committed.
3.Among the 12 accused, appellants/accused Nos.1 to 11 herein, except A-12 were convicted and sentenced. A-1 to A-11 were found guilty under charge No.1 for the offence committed under Section 148 IPC and sentenced to undergo rigorous imprisonment for three years. A-1 to A-7 and A-9 to A-11 were found guilty under charge No.3 under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- each in default to undergo 3 years Rigorous Imprisonment on three counts. Accused No.8 was found guilty under charge No.4 for committing the offence under Section 302 read with 149 IPC (3 counts) and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- under each count, in default to undergo three years rigorous imprisonment (3 counts). So far as the charge Nos.2,5,6,7,8 and 9 are concerned, all the accused are acquitted of the charges by the trial court for the reasons assigned in pras 34, 35, 36 and 37 of the judgment of the trial court. As against the order of conviction and sentence passed by the trial Court, the present appeals have been preferred by the convicted accused. In order to have a clear understanding of the case and the array of the appellants and the conviction and sentences passed against them, all the three appeals are clubbed together and a common judgment is rendered since the facts of the cases are one and the same.
4.The case of the prosecution in short is as follows:
The deceased persons, viz., Pandarasamy, Murugan and Karuppasamy are brothers (referred in this judgment as D-1 to D-3 respectively). P.Ws.1 and 2 are the father and the brother of the deceased respectively. The sister of A-1 viz., Pitchaiammal was given in marriage to P.W.1's son viz., Sappani. At the time of the marriage, P.W.1 Pandarasamy gave four marakals of agricultural land to his son Sappani for cultivation. Subsequent to that marriage there were frequent family disputes between P.W.1's son and A-1's sister (i.e., between the husband and the wife). The father-in-law of P.W.1's son had beaten him due to the family dispute. Hence, P.W.1's son Sappani committed suicide. Thereafter, P.W.1's daughter-in-law (i.e., Sappani's wife) went to her parents' house and stayed there. Hence, P.W.1 had started to cultivate the four marakal of agricultural land by himself which was given to his son at the time of his marriage. A-1 Mariappan cautioned P.W.1 not to cultivate the said four marrakkal agricultural land which was given to P.W.1's son during his marriage with his sister. Hence, a dispute in respect of the said agricultural land had arisen between the two families. In the said dispute between the two families, A-1's brother Murugan was done to death in the year 1996. Hence, a Criminal case was initiated by the police as against P.Ws.1 and 2 and also against the three deceased persons i.e, D1 to D3. The said case was pending before the Sessions Judge, Tirunelveli and the same stood posted on 05.11.1999 for hearing i.e., the date on which the occurrence took place i.e., 05.11.1999. When the deceased persons i.e, D1, D2 and D3 along with P.Ws.1 & 2 (father and sons) came to the signal of Sundarapandiyapuram Junction to board the bus to go to Tirunelveli to attend the Sessions case, and waiting for the bus, all of a sudden A-1 to A-11 (Appellants in these appeals) appeared from the back side of Esakkiamman temple , armed with deadly weapons and started to attack the deceased persons by surrounding them. The appellants 8 to 11 in Crl.A.No. 621 of 2004 i.e., accused persons A-1 to A-4 attacked Pandarasmy (D-1) by inflicting a cut on his back side of the neck, back of shoulder and cut on the right hand and on the lips with aruval. Another four of the appellants 1 to 4 in Crl.A.No.495 of 2004 i.e., accused persons A5, A6, A7 and A8 chased the deceased Murugan (D-2) with Aruval and knife and cut on the neck and cut with knife on right hand repeatedly and cut on the left hand with Aruval while A-8 restrained the deceased not to move more further and on the western side of Esakkiamman temple, another three of the appellants 5 to 7 in Crl.A.No.618 of 2004 i.e., accused persons A9, A10 and A11 cut Karuppasamy(D-3) with Aruval on his neck and cut indiscriminately all over the body. A-1 hurled a country bomb against P.Ws.1 and 2, when they attempted to prevent the appellants from attacking the deceased persons. P.Ws.1 and 2 became panic and ran away from the place of occurrence to a certain distance and as such, the bomb hurled by A-1 did not hit them. After all the accused had left the place of occurrence and taken away by A12 by his car, P.Ws.1 and 2 returned back to the scene of occurrence and they got a bye cycle from one Murugan P.W.4, who is from their village and went to Sambavarvadakarai Police Station to give a complaint.
P.W.21, the Sub Inspector of Police, Sambavarkadarai Police Station, received the complaint and registered a case in Crime No.136 of 1999, under Sections 147, 148, 341, 307, 302 IPC and under Sections 3 and 5 of the Explosive Substances Act, 1908. The said FIR is marked as Ex.P.24. Thereafter, P.W.21 forwarded the express FIR to the Judicial Magistrate Tenkasi, through P.W.22. The same was handed over to the Judicial Magistrate at 10.00 a.m. on the same day viz., 05.11.1999 and copies of the same were forwarded to the superior officials in the Department.
P.W.28, the Inspector of Police, Sambavarvadakarai, Police Station, on receipt of the FIR proceeded to the scene of occurrence at 9.00 a.m., and in the presence of P.W.6, Village Administrative Officer, and one Veerangan, Village Assistant, prepared an observation Mahazar, Ex.P.2 and a Rough Sketch, Ex.P.32 and then conducted inquest over the body of Pandarasamy (D-1) from 10.00 A.M. to 11.30 A.M. in the presence of panchayadars. The inquest report of D-1 is marked as Ex.P.33 and during the inquest, he recorded the statements of P.Ws.1,2,3,4 and 6, and the Village Assistant and others. He sent the body of D-1 for conducting the post- mortem through P.W.23, Head Constable. Thereafter, P.W.28 conducted the inquest over the body of Murugan (D-2) from 11.30 a.m. to 13.00 p.m., in the presence of panchayatdars. The inquest report of D-2 is marked as Ex.P.34 and the body of D-2 was sent for post-mortem through P.W.24, Head Constable to the Government Hospital. Subsequently, P.W.28, conducted the inquest over the dead body of Karuppasamy (D-3) from 13.00 p.m., to 14.30 p.m, in the presence of panchayatdars. The inquest report of D-3 is marked as Ex.P.35. Thereafter, P.W.28, sent the body of the deceased for post-mortem through P.W.25, Head Constable. Thereafter, P.W.28, the Investigating Officer, recovered the blood stained earth and sample earth from the place where the bodies of D-1 to D-3 were lying, under cover of Mahazars marked as Exs.P.36 to 38 respectively and recovered the material objects M.Os.1 to 13 under Exs.P.39 to P-41 from the place of occurrence.
P.W.16, Dr.Ramakrishnan, the Medical Officer, who on receipt of the requisition Ex.P.19 sent by the Investigating Officer, conducted the autopsy at 3.30 p.m. on 05.11.1999, on the body of Murugan (D-2) and issued the Post-Mortem Certificate Ex.P.20, wherein he noticed the following:-
"Injuries: 1)An oblique cut injury extending from 2" lateral to thyroid prominence on the left side to Right shoulder cutting dens all the structures (Vertebral column, C-3-C4 spine, carotid and jugular vessels, muscles, hyoid leaving behind skin, over the right side of neck, 1" below right mastoid (size about 30 cm x 7 cm up to skin level on the right side) 2) An oblique cut injury from left side of neck to right shoulder 10 cm x 3 cm upt muslce depth. 3) An oblique cut injury 7.5 cm x 3 cm x upto muscle depth cuttings right ulnar bone and leveed vessels. 4) An oblique cut injury involving the base of left thumb 3cm x 2cm x utp bone depth 5) an oblique cut injury 3 cm x 2 cm x cutting the muscle phalanx of left ring finger 6) an oblique cut injury 3cm x 2 cm cutting the proxmel phalanax of left middle finger. 7) An oblique cut injury 3 cm x 2 cm x cutting of phlanx of left middle finger 8) An oblique cut injury over the depth of left hand cutting the tandous and malanges of 2nd, 3rd and rth (9cm x 3cm x 3cm 9) An oblique cut injury of 2cm x 1 cm x upto bone depth over left wrist.
10) an oblique cut injury at the junction of upper 2/3rd and lower 1/3rd of left forearm cutting left ulnar bone 11) A transic cut injury at the back of left elbow dislocating left radius".
P.W.17, Dr.Muthuraj, the Medical Officer, who on receipt of the requisition Ex.P.21 sent by the Investigating Officer, conducted the autopsy at 4.30 p.m. on the body of Karuppasamy (D-3) and issued the Post-Mortem Certificate Ex.P.22, wherein he noticed the following:-
"External injuries:1)A cut injury over the right side of neck extend up to C1 vertiberal hand complete transection of spinal cord measuring 20cm x 20cm x15cm, cut through all important major blood vessels, nerves neck murder on the right side of all major nerves 2)A cut injury over right side check cut # of body of right man disk measuring 10cm x 5 cm x 2cm 3 cut injury over right side of face extending from forehead medial and of right eye to right zygoma measuring 15cm x 3cm x 2cm 4) cut injury under the chin measuring 2 cm x 2cm x 1cm injury over middle of flixor aspect of right forearm 5cm x 2cm x 1 cm. 6) A cut injury over left lumbar region of abdomen measuring 3cm x 2 cm x 1 cm. 7) cut injury over right forearm radial aspect measuring 10cm x 1 cm x 1cm 8) A cut injury over back of right side chest measuring 3 cmx2 cm x 1cm".
Similarly, one Doctor Kumar, who on receipt of the requisition Ex.P.29 sent by the Investigating Officer, conducted the autopsy at 3.40 p.m., on 5.11.1999, on the body of Pandarasamy (D-1), and issued the Post-Mortem Certificate Ex.P.30, wherein, he noticed the following:-
"1)An oblique cut injuryon the posterior aspect of neck at the level of 2nd incised vertibira leaving only 4cm of skin in the front of the nect intact 20cm x15cm x 4cm
2)An oblique cut injury on the fore head length 20cmx 4cm x 2 cm exposing brain substances
3)A cut injury on the mandible 1 cm below the lower lip 4 cm x 2cm x 1cm bone deep 4) A laceration injury at the dorsal aspect of the right hand 5 cm x 2 cm 5)An oblique cut injury on the dorsal aspect of the right hand 5 cm x 2cm x 1cm upto bone depth. 6) An oblique cut injury 2" below the right wrist on the ulnar aspect 4 cm x 2cm x 1cm (-bone depth)
7)An oblique cut injury on the ventral aspect of the middle of the right forearm 3cm x 2cm x 1cm (bone depth)
8)An oblique cut irregular in shape from the back of the neck to the tip of the right shoulder joint 25cm x 6cm x 4cm muscles and exposes acromiam of the scapula".
Since the Medical Officer, Dr.Kumar, was on medical leave for a long period, P.W.17, Dr.Muthuraj, who is well-conversant with the writing and the signature of Dr.Kumar, has produced Ex.P30 and gave evidence on behalf of Dr.Kumar with reference to the post-mortem certificate, Ex.30. On receipt of the information, on the same day (5.11.1999), at 6.00 P.M., P.W.28, arrested A-3, A-10, A-8 and A-11 in the presence of P.W.10, Village Assistant and recorded their confession statements, and the admissible portion of the confession statement of A-3 and A-10 are marked as Exs.P.42 and P43 respectively and then at 20.30 p.m., recovered the TVS Moped bearing Reg.No.TNI 3531 (M.O.15) from the northern side of Subbulakshmi Aluminium Factory, which is at the outskirts of the northern side of Keelapuzhiur village and also 2 Aruvals marked as M.O.s 16 and 17 under cover of a Mahazar Ex.P.44 and 2 knives marked as M.Os.18 and 19 under cover of a Mahazar Ex.P.45. Thereafter, P.W.28, arrested A-1, A-2, A-4 and A-9 and recorded their confession statements at 11.00 p.m., the admissible portion of which are marked as Exs.P.46 to P48. Pursuant to their confession, on 06.11.1999 P.W.28 recovered M.Os.20 to 23 under cover a of Mahazar Ex.P.49 and recorded the statements of other witnesses. P.W.28, on 07.11.1999 arrested A-12. On coming to know that on 09.11.1999 A-6 surrendered before the Judicial Magistrate, Sattur and A-7 surrendered before the Judicial Magistrate II, Tirunelveli, on 12.11.1999, P.W.28 filed an affidavit before the Judicial Magistrates and secured them under police custody. On 13.11.1999, P.W.28 arrested A-5 at 12.00 noon and recorded the voluntary confession statement given by him, the admissible portion of which is marked as Ex.P.50. Pursuant to the confession, an aruval M.O.24 was recovered under cover of a mahazar Ex.P.51. The voluntary confession statement given by A-6 was recorded in the presence of the witnesses, the admissible portion of which is marked as Ex.P.15. In pursuance of the confession, M.O.25, 'Vettukathi' was recovered and thereafter, he was sent to judicial custody. Similarly, based on the confession statement given by A-7 aruval M.O.26 was recovered and thereafter, A-7 was sent to judicial custody. Thereafter, P.W.28, Investigating Officer examined the doctors, who conducted the autopsy and sent the material objects for chemical analysis with a requisition under Ex.P.52. The chemical analyst's and serologist's reports were subsequently received under Exs.P.55 and P56. After completion of the investigation, P.W.28, laid the final report against A-1 to A- 12 under Sections 147,148,341,307 and 302 IPC and under Sections 3 and 5 of the Explosive Substances Act, 1908 .
5.The prosecution in order to substantiate its case examined P.Ws.1 to P.W.28, marked Exs.P.1 to P.57, and produced M.Os.1 to 34. On the side of the defence, DW-1 and DW-2 were examined and Exs.D-1 to D-3 were marked.
6.The learned trial Judge, on the basis of the oral and documentary evidence produced by the prosecution, questioned the appellants/accused under Section 313 Cr.P.C. The appellants denied the complicity of the offences and pleaded innocence.
The learned trial Judge after analyzing both oral and documentary evidence and hearing the submissions made on either side, convicted and sentenced the appellants as stated supra. Aggrieved against the order of conviction and sentence, the appellants/Accused Nos.1 to 11, have preferred the present appeal.
7.The learned counsel for the appellants submitted that in the first information report P.W.1 has clearly stated that the names of the accused and the overtacts attributed to each of the accused. But, while deposing evidence before the lower Court P.W.1 had stated that A-1 to A-4 attacked his son Pandarasamy(D-1) and all the four accused delivered cut on the back side of the head with Aruval and another cut at right hand and at his lips. His another son Murugan (D-2) was attacked by another four accused and delivered cut on his right shoulder and Karuppasamy (D-3) was attacked by another three persons and delivered cut on his right flank and on his right shoulder with aruval and knife. Thus, it was contended by the counsel for the appellants that though P.W.1 was able to state in the First Information Report lodged by him about the overtacts attributed to each of the accused, in his evidence he was not in a position to say about the specific overtacts attributed to each of the accused as stated in the First Information Report. Further, during the course of cross examination, P.W.1 admitted that he had forgotten the names of the accused and their fathers' name. Thus, by comparing the averments made in the FIR by P.W.1 and the evidence adduced by him before the Court, the learned counsel for the appellants vehemently contended that when A-1 was in a position to inform the names of the accused along with their fathers' names, while lodging the First Information Report, he could have stated the names of the accused and the overtacts attributed to each of the accused in his evidence also. But the fact remains that P.W.1 is not in a position to tell the names of the accused and the specific overtacts attributed to the accused A-1 to A-12 which would undoubtedly go to show that P.W.1 would not have been present at the scene of occurrence. Similarly, P.W.2 had spoken in his evidence even without any slight deviation about the overtacts attributed to each of the accused as stated in the First Information Report. But, P.W.28, in his cross-examination had stated that P.W.2 did not say anything about the overtacts attributed to each of the accused in the statement recorded by him. That piece of evidence of P.W.8 would go to show that he must have been tutored by the prosecution about the overtacts attributed to each of the accused. Thus, the learned counsel for the appellants contended that P.Ws.1 and 2 being the father and brother of the deceased, would have been procured subsequently by the prosecution and thereafter, on seeing the injuries, the overtacts would have been fixed and the First Information Report would have been prepared. Secondly P.Ws.1 and 2 are the interested witnesses. Except P.Ws.1 and 2, the other witnesses P.Ws.3 and 5, though were examined as eye-witnesses, they turned hostile. These infirmities found in the evidence of the prosecution witnesses clearly would go to show that a grave suspicion is created in the evidence of P.Ws.1 and 2 disclosing that they could not have witnessed the occurrence. Further their evidence is not cogent and convincing to connect the accused with the offences. Under such circumstances, the conviction and sentence passed by the learned trial Court is not legally sustainable.
8.Learned counsel for the appellants further contended that P.W.1 in his evidence stated that after the occurrence, he and his daughters-in-law (wives of D-1 to D-3) were crying by keeping the dead bodies of the deceased on their laps and has also admitted that his dress and sarees of daughters-in-law were stained with blood but the blood stained cloths were not seized. This non seizure of the blood stained cloths of P.W.1 and his daughters-in-law creates a grave doubt about the presence of P.W.1 at the place of occurrence. Though P.W.1 in his evidence stated that before reaching the place of occurrence, to catch the bus he and the deceased had taken refreshment in the morning but in the post mortem-certificate P.Ws.16 and 17, the Doctors, who had conducted the Post- Mortem, did not say anything about the presence of the digested food in the intestine of the deceased. Thus, the learned counsel for the appellants contended that the occurrence would not have taken place in the manner as projected by the prosecution and the accused have been falsely implicated by the police in the case. Under such circumstances, the conviction and sentence passed by the trial Court is not sustainable and as such, the same has to be set aside.
9.Per contra, learned Additional Public Prosecutor contended that it is a day light murder. The motive for committing the murder is very strong. On 19.04.1996, the brother of A-1 namely, one Murugan was murdered earlier due to the family dispute between the families of P.W.1 and A-1. In respect of the same, a criminal case was also initiated in S.C.No.94 of 1997 before the Sessions Court, Tirunelveli as against P.Ws.1 and 2 and the three deceased persons. Pursuant to the murder of the said Murugan, enmity was brewing for quite a long time between the families of the deceased persons and A-1. The motive is strongly proved through prosecution witnesses P.Ws.1 and 2. There is no delay in sending the First Information Report to the Judicial Magistrate, who received the FIR within three hours from the time of the occurrence. P.Ws.3 and 5, who are the neighbours, are natural witnesses and though their evidence was treated as hostile in their chief examination, they have clearly stated about the presence of a group of assailants armed with deadly weapons and chasing the deceased persons. Of the two, P.W.3 has deposed that on the date of occurrence he also went to the Court in connection with yet another case initiated against him. He adds that P.Ws.1, 2 and the three deceased were proceeding ahead of him to attend the hearing of their case. He further states that the group of accused chased the deceased persons in three different directions in different groups and that Murugesan, P.W.4 arrived at the scene by driving his cycle and P.Ws.1 and 2 got the cycle from him (P.W.4) and proceeded to the police station. Since he has not mentioned the names of the assailants he was treated hostile. According to the prosecution, all the accused were closely related to him and that is why he is not supporting the prosecution case. P.W.4 has deposed that on 5.11.1999 while he was proceeding to the village Sundarapandiyapuram he saw a group of persons numbering 7 or 8 came running with aruvals and knives. He has sworn that he saw P.W.1 at the scene place. PW 4 has admitted that he gave the cycle to P.Ws.1 and 2, who proceeded to the police station to report about the occurrence. P.W.5, another hostile witness, a nearby resident of the scene of occurrence, has stated in his chief-examination that he saw P.W.1 and his deceased three sons standing at the scene place saying that they were going to the Court to attend the hearing and in a short while, he said A1 and 10 others armed with aruvals, sticks and knives rushing to the scene place shouting 'cut and stab'. Evidently since he has not mentioned the names of the accused he has been treated as hostile. The evidence of P.Ws.3 and 5 is properly analyzed along with the evidence of P.Ws.1 and 2 before the trial Court. The evidence of P.Ws.3 and 5 would support the part of the prosecution case if not the clear identity of the accused Totally, there were 27 cut injuries on all the three deceased persons. Therefore, describing the minute details about each and every cut is not possible for the witnesses. P.W.1 was aged about 65 years and his evidence was recorded after four years from the date of occurrence. Therefore, naturally, there is a possibility of losing his memory. Under such circumstances, the admission made by him, in cross examination that he did not remember the names of the accused except the names of A-1 to A4, cannot be found fault with. Though, there are some minor contradictions, broadly speaking the material evidence both oral and documentary produced by the prosecution are substantiated and the case is proved by the prosecution beyond all reasonable doubts and therefore, the conviction and sentence awarded by the trial Court has to be sustained and the appeals have to be dismissed.
10.We have heard the learned counsel appearing for the parties and perused the entire records.
11.This is a case of triple murder, which was committed in a brutal manner in the day light in which three persons have lost their lives. P.Ws.1 and 2, who are the father and brother of the deceased (D-1 to D-3) were indicted along with D1 to D3 on the previous murder case along with D1 to D3 in S.C.No.94/97 pending before the Sessions Court, Tirunelveli relating to the murder of one Murugan, brother of A1. It is not in dispute that in respect of the earlier murder case P.Ws.1 and 2 and D1 to D3 were regularly attending the hearings in that case before the Additional District & Sessions Court, at Tirunelveli. It is the case of the prosecution that on 05.11.1999, all the deceased and P.Ws.1 and 2 while waiting for the bus to go to Tirunelveli, for attending the hearings in respect of the above said case, A-1 to A-11 suddenly appeared before them and committed the murder. Under such a situation we do not find any reason to disbelieve the presence of P.Ws.1 and 2 at the place of occurrence along with the deceased persons. It is the case of the prosecution that immediately after the occurrence P.Ws.1 and 2 got a cycle from P.W.4 to go to the police station and gave the complaint containing all material details as recorded in Ex.P1 and P.W.1 has clearly stated all the information in Ex.P1 to P.W.21, Sub Inspector of Police which was attested by P.W.2. P.W.1 in his statement in Ex.P.1 had clearly stated about the overtacts attributed to each of the accused with reference to each of the deceased persons i.e., D1 to D3.
12.The injuries mentioned in the First Information Report clearly tally with the Post- Mortem Certificates issued by P.Ws.16 and 17 and Dr.Kumar. Though in the cross examination of P.W.1, he had stated that he did not remember the names of all the accused at this length of time spreading over a period of four years, as submitted by the learned Public Prosecutor, it is not sufficient to come to the conclusion that P.W.1 might not have been present at the place of occurrence. In fact, P.W.1 had sworn to the fact that a group of 12 accused came and attacked the deceased persons. He has also mentioned the names of A1, A2, A3, A4 as assailants among the others and these four persons attacked D1 and his other sons D2 and D3 were murdered by the other group of accused persons. In cross-examination he has explained that at this distance of time he is not in a position to identify the accused barring A1 to A4 by their names. He asserts that while scrutinizing the evidence of prosecution witnesses carefully, it should be borne in mind that P.W.1 who was aged about 65 years, adducing evidence after four years, he had clearly explained in his evidence that he knew the names of each of the accused on the date of occurrence as well as presently, he has forgotten the names of all the accused (at the time of giving evidence). Hence, it is pertinent to note that it is not the evidence of P.W.1 that he did not know the accused, involved in the occurrence. On the other hand, he strongly stood on his stand that he knew the names of the accused and knew the accused persons but presently, (at the time of adducing evidence) he has forgotten the names of the accused. Under such circumstances, we do not find any infirmity in the evidence adduced by P.W.1 for the reason that it is natural for a person aged about 65 years not to remember all the names of the persons for a long time spreading over four years from the date of occurrence. The medical evidence given by the doctors P.Ws.16 and 17 that there was no food particles in the stomach of the deceased, which, according to the defence counsel, indicates that the deceased persons should have started from the village in the early mornings. This contention, in our opinion, does not merit consideration because P.W.1 has stated that on the date of occurrence they took vadai and tea. It is not clear whether the deceased persons also took any snack. Therefore, as stated before, this submission has to be rejected as having no legs to stand. The defence has also trotted out a theory that the earlier case relating to the death of Murugan had been compromised and on that score there was no enmity between the two parties and as such it cannot be said that the accused attacked the deceased and caused the death of the three persons. In support of this theory the defence has examined two witnesses viz., D.Ws.1 and 2 and filed three documents marked as Exs.D1 and 2 and a copy of the deposition of the prosecution witness in S.C.No.94/97 as Ex.D3. The trial court, for the reasons mentioned in para 33 of its judgment has rejected this theory in view of the overwhelming evidence of this case showing that the previous case has not been compromised. In our view, this new theory of the defence is totally unacceptable and hence we reject the evidence of D.Ws.1 and 2 and the theory of compromise in the previous case.
13.For the foregoing reasons, we are not inclined to accept the submissions made by the learned counsel for the appellants that P.W.1 might not have been present at the scene of occurrence. Then coming to the evidence of P.W.2, learned defence counsel vehemently contended that P.W.2 without any slight deviation, had spoken about the overtacts attributed to each of the accused as recorded in the First Information Report. But P.W.28, Investigating Officer in his evidence stated that P.W.2 did not say anything about the overtacts caused by each of the accused in the statement recorded by him. Under such circumstances, based on the evidence of P.W.28, the Investigating Officer, it could be easily inferred that P.W.2 might not have been present at the place of occurrence and probably he had spoken about the overtacts attributed to each of the accused as tutored by P.W.28, who, according to the suggestion made to P.W.1 by the defence, P.W.28 joining hands with P.Ws.1 and 2 had prepared Ex.P1, which has been emphatically denied by P.W.1. On a careful analysis of the materials on record, we find that the statement made by P.W.1 to P.W.21, the Sub Inspector of Police was attested by P.W.2 on the date of occurrence itself. Further more, as we stated supra, on the date of occurrence, there was a hearing of the Criminal case in S.C.No.94 of 1997, as against P.Ws.1 and 2 and D-1 to D-
3. Therefore, a combined presence of all the deceased persons along with P.Ws.1 and 2 at the bus stop was very much possible and probable on the date of occurrence. The attestation made in Ex.P.1 also proves the presence of P.W.2. Under such circumstances, we are not inclined to accept the submission made by the learned counsel for the appellants that P.W.2 is a tutored witness. We are of the view that P.W.2 as an eye witness to the occurrence had spoken about the overtacts attributed to each of the accused. The non-seizure of the blood- stained clothes of the respective wife of the deceased persons would not lead to any conclusion that P.Ws.1 and 2 might not have been present at the scene of occurrence This is a very insignificant fact to affect the veracity of the prosecution case. It is very difficult for the witnesses also to give minute details of each and every cut on the deceased while describing the occurrence by the prosecution witnesses in the case of multiple murder like the present one. In the present case, in our opinion, there is no glaring contradictions in the evidence adduced by P.Ws.1 and 2. The evidence and other documents including the Post-Mortem Certificates and the compelling circumstances strongly corroborate the evidence of P.Ws.1 and 2 and other witnesses. In our considered view, the prosecution has demonstrably established the guilt of the accused as found by the trial court beyond all reasonable doubts. Therefore, we confirm the judgment of the trial Court and consequently dismiss all the appeals.
14.It is reported that the accused are on bail. The learned Sessions Judge concerned is directed to take steps to secure the presence of the accused, who are on bail, and commit them to prison to undergo the remaining period of sentence.
sms To:
The Inspector of Police, Vadakarai Police Station Vadakarai, Tirunelveli District