Madras High Court
Sebastian Durairaj vs State Rep. By on 30 August, 2006
Bench: M.Chockalingam, A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/08/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE A.SELVAM CRL.A.No.1738 of 2002 1.Sebastian Durairaj 2.Kumar alias Sivakumar 3.Naruvuliraj 4.Krishnamoorthi .. Petitioners vs State rep. By Inspector of Police Somarasampettai Police Station Somarasampettai Trichirapalli District (Cr.No.50 of 1999) .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the I Additional Sessions Judge cum Chief Judicial Magistrate, Trichirapalli, dated 12.8.2002 in S.C.No.143 of 2001. !For Appellants ... Mr.A.Padmanabhan for A-1, A-4 & A-5 Mr.C.Mayilvahana Rajendran for A-3 ^For Respondent ... Mr.V.Kasinathan, A.P.P. :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) This appeal has arisen from the judgment of the learned I Additional Sessions Judge-cum-Chief Judicial Magistrate, Tiruchirapalli, made in S.C.No.143 of 2001, whereby the appellants, four in number, who were arrayed as A-1 and A-3 to A-5 respectively, along with five others ranked as A-2 and A-6 to A-9, were tried for the following charges.
(i) Under Sec.147 IPC against A-2 and A-6 to A-9.
(ii) Under Sec.148 IPC against A-1 and A-3 to A-5.
(iii) Under Sec.307 IPC against A-1.
(iv) Under Sec.307 IPC against A-3 and A-4.
(v) Under Sec.307 IPC against A-3 to A-5.
(vi) Under Sec.302 IPC against A-1.
(vii) Under Sec.302 read with 114 IPC against A-1.
(viii) Under Sec.449 IPC against A-1 and A-3 to A-5.
(ix) Under Sec.302 (2 counts) IPC against A-3 and A-4 and under Sec.302 against A-5.
(x) Under Sec.302 read with 149 IPC (2 counts) against A-2 and A-6 to A-9.
(xi) Under Sec.307 read with 149 IPC (2 counts) IPC against A-2 and A-6 to A-9.
(xii) Under Sec.506(ii) IPC against A-1 and A-3 to A-5.
2.On trial, A-1 was found guilty under Sections 148, 449, 307, 302, 302 r/w 114 and 506(ii) of I.P.C. and sentenced to undergo two years Rigorous Imprisonment, three years Rigorous Imprisonment, seven years Rigorous Imprisonment along with a fine of Rs.1,000/- and default sentence, life imprisonment along with a fine of Rs.1,000/- and default sentence, life imprisonment along with a fine of Rs.1,000/- and default sentence and two years Rigorous Imprisonment respectively.
3.A-3 and A-4 were found guilty under Sections 148, 449, 302 (2 counts) and 307 (2 counts) of I.P.C. and sentenced to undergo 2 years Rigorous Imprisonment, 3 years Rigorous Imprisonment, life imprisonment along with a fine of Rs.1,000/- and default sentence for each count and 7 years Rigorous Imprisonment along with a fine of Rs.1,000/- and default sentence for each count respectively.
4.A-5 was found guilty under Sections 148, 449, 302 and 307 of I.P.C. and sentenced to suffer 2 years Rigorous Imprisonment, 3 years Rigorous Imprisonment, life imprisonment along with a fine of Rs.1,000/- and default sentence and 7 years Rigorous Imprisonment along with a fine of Rs.1,000/- and default sentence respectively.
5.Aggrieved by the said conviction and sentence, the appellants have brought forth this appeal.
6.The short facts necessary for the disposal of this appeal can be stated thus:
(a) P.W.1, Philominal, is the second wife of Rethinasami Udaiyar. During the life time of the first wife, he married P.W.1. The first accused is the son of the said Udaiyar through his first wife. P.W.2 is the daughter of P.W.1.
P.W.4 is the son of P.W.1. P.W.5 is the brother of P.W.1. P.W.6 is the person who accompanied P.W.5 on the date of occurrence. The said Rethinasami udaiyar had lot of landed properties. He gave a part to his second wife and another part to A-1, while he retained 11 acres of land. He died in 1990, before which he executed a Will, and the Will came into force on his death. Out of this 11 acres of land, P.W.1 sold 3 . acres of land to a third party, and she also made arrangements to get a joint patta which was also issued. A-1 on coming to know about the sale of a part of the property, covered under the Will, and also the issuance of joint patta, wanted to sell a part of the property, and the proposed purchaser insisted upon that the document must be signed by P.W.1. A-1 made a demand on her for signing the document; but, she was not willing. On so many occasions, the dispute and quarrel in that regard arose. On the previous day namely 1.2.1999, at about 10.00 P.M., P.W.1 along with the children had the dinner. P.W.5, her brother, accompanied by P.W.6, came over there, and after the dinner was over, they were staying that night in the house of P.W.10, which is situated nearby. On the date of occurrence namely 2.2.1999, at about 12.30 A.M., A-1 accompanied by all other accused and armed with deadly weapons, came to the house, and they were first witnessed by P.W.1. They made unlawful entry into the house, and in that course, the accused cut not only P.Ws.2 and 4 but also caused instantaneous death of two children of P.W.1 namely Margret Mary aged 16 years, and Rani Arokiammal, aged 19 years. This was witnessed by P.Ws.1, 5 and 6 also, while P.Ws.2 and 4 were injured.
(b) Immediately after the occurrence, the injured persons were taken to Annal Gandhi Memorial Government Hospital, Tiruchirapalli, where P.W.7, the Doctor, attached to the said hospital, examined P.W.2 at about 3.15 A.M., while he examined P.W.1 at about 3.45 A.M. Following the same, the Doctor gave the wound certificates which are marked as Exs.P5 and P6 respectively. He also examined P.W.4, and the wound certificate in his regard is Ex.P7. An intimation was given to the concerned Police Station. Following the same, P.W.18, the Sub Inspector of Police, attached to Somarasampettai Police Station, went over to the Government Hospital, Tiruchirapalli, and recorded the statement of P.W.1, which is marked as Ex.P1. On the strength of Ex.P1, the complaint, a case came to be registered in Crime No.50/99 under Sections 324, 326, 307, 302 and 506(ii) of I.P.C. Ex.P27 is the First Information Report, which was sent to the Judicial Magistrate concerned.
(c) P.W.23, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the place of occurrence and arranged for the photographs to be taken. Accordingly, P.W.21, the Photographer, took photographs. The Investigating Officer also made an inspection of the spot in the presence of witnesses and prepared Ex.P16, the observation mahazar, and Ex.P28, the rough sketch. Then, he conducted inquest on both the dead bodies in the presence of witnesses and panchayatdars and prepared Ex.P29, the inquest report, in respect of Margret Mary, and Ex.P30, the inquest report, as regards Rani Arokiammal. He also recovered the material objects from the place of occurrence. Following the same, both the dead bodies were sent to the Government Hospital for the purpose of autopsy along with the requisitions, Exs.P8 and P9, respectively.
(d) P.W.8, the Reader and Head of the Department, Forensic Medicine, K.A.P.V. Government Medical College, Tiruchirappalli, on receipt of the requisition Ex.P8, conducted autopsy on the dead body of Margret Mary and found the following injuries:
"1) A transversely placed cut wound noted over the left side of chin measuring 4 cm x 2 cm x Bone deep with cut fracture of symphysis menki and left side ramus of mandible.
2) A wide gaping cut wound noted over the whole of front of neck transversely placed measuring 12 x 6 cm x cervical vertebrae deep exposing the cut portions of great vessels of both sides of neck, nerves, muscles, thyroid cartilage with cut fracture of C2 C3 C4 cervical vertebrae - larynx, Trachea were also found cut through and through.
3) A curved wide gaping cut wound over the back of Right side of Neck and the adjoining occipital region of scalp measuring 8 x 4cm x bone deep with corresponding cut fracture over the underlying occipital bone and cut fracture of the transverse process of C4 C5 cervical vertebrae - The underlying muscles, vessels and nerves were also found cut.
4. An oblique incised cut wound noted over the lower third of back of Right forearm measuring 6 x 4cm x bone deep with cut fracture of both the bones of Right forearm.
5. Abrasions noted over:
1. Lateral to Right Knee - 2 x 1cm
2.below the Right knee - 2 x 2cm
6. A wide gaping cut wound over the ulna aspect of left wrist and palm measuring 10cm x 8cm x bone deep exposing the cut portions of carpal bones, metacarpal bones, lower ends of ulna and radius outside along with the cut portions of blood vessels, nerves and tendons, muscles of hand and palm.
7. An oblique wide gaping cut wound noted over the base of all fingers of left hand exposing the cut portions of metacarpal bones, phalanges, vessels, tendons, nerves and muscles outside.
8. An incised wound over the middle of dorsum of left hand measuring 2 x 1cm x bone deep with cut fracture of the underlying metacarpal bones.
9. An incised wound below the lateral end of left clavicle, elliptical in shape measuring 4 x 2cm x muscle deep with a linear tailing abrasion from its medical end for about 10cm in length.
10. A cut wound over the back of dorsum of all the fingers of Right hand with cut fracture of the underlying metacarpal bones and phalanges." The Doctor has issued Ex.P10, the postmortem certificate, with her opinion that the deceased would appear to have died of shock and haemorrhage due to multiple cut injuries about 12 to 18 hours prior to postmortem.
(e) The same Doctor, P.W.8, on receipt of the requisition, Ex.P9, conducted autopsy on the dead body of Rani Arokiammal and found the following injuries:
"1) A vertically oblique wide gaping cut wound noted over the whole of left side forehead on its lateral half extending on to the left side from to parietal regions of scalp measuring 14 x 4cm x Bone deep Brain matter was found coming out through the cut fractured gap of left side from to parietal bone.
2) A curved cut wound over the left side back of Neck posterior to the left ear measuring 6 x 3 cm x bone deep through which Brain matter was found coming out and was found cut. On dissection:- the underlying vessels, nerves, neck muscles were found out.
Internal injuries: On reflecting the scalp skin - sub scalp contusion noted over the whole of left side scalp - A wide cut fracture noted over the whole of left side frontal and parietal bones corresponding to the above mentioned external injury No.2. On opening the skull - subdural and sub arachnoid haemorrhage noted over both sides cerebral hemispheres with bilateral basal subdural thick blood clots. Intra cerebral haemorrhage in both sides. Extra dural blood clot of about 200 cms noted over the left side posterior crenial fossa. Laceration of the whole of left side frontal, parietal and temporal lobes of brain with surrounding softening."
The Doctor has issued Ex.P11, the postmortem certificate, with her opinion that the deceased would appear to have died of shock and haemorrhage due to multiple cut injuries about 12 to 18 hours prior to postmortem.
(f) Pending the investigation, the Investigating Officer arrested A-1 on 8.2.1999. A-1 gave a confessional statement, which was recorded. The admissible part of the confessional statement is marked as Ex.P19. Pursuant to the same he produced an aruval, which was recovered under a cover of mahazar. The Investigator also arrested A-2 on 12.2.1999 at 7.00 A.M. On the same day, A-3 was arrested at 2.00 P.M. A confessional statement was given by A-3. The admissible part is marked as Ex.P31. Pursuant to the same M.Os.3 to 5, aruvals, produced by him, were recovered under a cover of mahazar. On 23.2.1999, A-4 and A-6 to A-9 were arrested. A-5 was arrested on 24.2.1999. All the material objects recovered from the place of occurrence and from the dead bodies, and also the weapons of crime recovered from the accused pursuant to the confessional statements, were subjected to chemical analysis by the Forensic Sciences Department, which resulted in Ex.P14, the Chemical Analyst's report, and Ex.P15, the Serologist's report. A requisition, Ex.P2, was given by the Investigating Officer to the Judicial Magistrate for the conduct of test identification parade. Accordingly, P.W.3, the Judicial Magistrate No.1, Trichy, conducted test identification parade on 17.3.1999, and the proceeding in that regard is marked as Ex.P4. On completion of investigation, the Investigator filed the final report.
7.The case was committed to Court of Session and necessary charges were framed. Following the procedural formalities, the appellants along with the others faced the trial. In order to substantiate the charges, the prosecution examined 23 witnesses and also relied on 31 exhibits and 19 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned procedurally under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of defence, 4 witnesses were examined including the Judicial Magistrate No.VI, Trichy. Ex.D1 is the requisition given by the Investigating Officer to the Magistrate for recording the dying declaration of P.W.2, while Ex.D2 is the dying declaration of P.W.2. On completion of the trial, the trial Court heard the arguments advanced on either side, and found the appellants/ A-1 and A-3 to A-5 guilty and awarded the punishments as referred to above, while A-2 and A-6 to A-9 were acquitted of all the charges levelled against them. Hence, this appeal at the instance of the appellants before this Court.
8.The learned Counsel advancing his arguments on behalf of the appellants, made the following submissions:
(i) In the instant case, though it was a case of double murder along with the charges for attempt to murder, the prosecution has miserably failed to adduce even the sufficient evidence; but, the lower Court was carried away by the fact that it was a case of double murder. Even on the same evidence adduced through P.Ws.1, 2, 4, 5 and 6 (P.Ws.1, 2 and 4 were injured witnesses), the lower Court was not ready to believe that part of the case, wherein A-2 and A-6 to A-9 were accused of. Under the circumstances, the lower Court should not have believed the rest of the evidence in which the witnesses have implicated the appellants before this Court.
(ii) So far as the eyewitnesses are concerned, it is highly improbable that they could have seen the occurrence proper. In the trial Court, the prosecution relied much on the evidence of P.Ws.1, 2 and 4, who were injured witnesses. P.W.5 is the brother of P.W.1, and P.W.6 is the person who accompanied P.W.5 that day. So far as P.Ws.5 and 6 are concerned, their evidence has got to be rejected for the simple reason that even as per their evidence, at the time of occurrence they were staying in the house of P.W.10 which is situated 150 feet away, and on hearing the distressing cry, they came to the spot. Thus, both could not have seen the occurrence at all in the darkness.
(iii) As regards P.W.1, not even one injury was caused to her. According to the prosecution, the motive for the occurrence was that there was a property dispute between A-1 and P.W.1, and P.W.1 refused to sign the papers for the sale of the part of the property by A-1. Thus, there was a quarrel and dispute all along. Had the prosecution story in that part been true, the whole revenge should have been against P.W.1. According to the prosecution, P.W.1 was very well available in the house at the time of occurrence; but, not even A-1 or any one of the accused attacked her. This would be indicative of the fact that P.W.1 could not have been present at the place of occurrence at all.
(iv) P.W.1 has participated in the identification parade; but, she has identified only A-4, though she has identified a few of the accused before the trial Court. If she was not able to identify any one of the accused except A-4, her evidence in respect of the appellants before the Court should have been eschewed by the Court. Thus, she has not attributed anything about A-1, who, according to the prosecution, had the motive to commit the crime.
(v) So far as P.W.2 is concerned, she is an injured witness. According to the prosecution, there was a dying declaration given by P.W.2 and recorded by the Judicial Magistrate, D.W.4, on 2.2.1999, the very day of the occurrence.
But, she has not identified anyone and in particular, A-1. This would clearly indicate that she has not seen anybody. The records would go to show that she identified only A-3 on 17.3.1999 during the identification parade. But, at the time of trial, she has identified A-3 and A-4, after a period of three years. P.W.2, though she has been called as injured witness, who could not speak about the identity of the accused at the time of the dying declaration recorded by the Judicial Magistrate on the very day of the occurrence, has identified A-3 and A-4 after a long time. Thus, her evidence should have been rejected by the Court.
(vi) Insofar as P.W.4, though he has identified A-3 in the trial Court, he has not identified anybody at the time of the identification parade; but, he has identified A-3 before the Court, after a lapse of three years. Thus, his evidence is nothing but highly improbable and should have been rejected by the Court.
(vii) Apart from the above, the false implication of A-1 in the case would be quite evident from the evidence of P.Ws.10 and 11. According to P.W.10, a sniffer dog was brought to the place after the occurrence, and A-1 also came to the place of occurrence after the occurrence was over. Had A-1 participated in the commission of the offence, there was no need for him to come to the place of occurrence immediately after the occurrence was over. From the evidence of P.W.23, the Investigating Officer, it would be quite clear that P.W.11 at the earliest has given a statement that A-1 was very well present at the place of occurrence. P.W.21 was the photographer, through whom both the dead bodies along with the scene of occurrence were photographed. According to him, he came to the place of occurrence at about 2.30 A.M., and at that time, A-1 was also present at the place. This would indicate that it was nothing but a false accusation against A-1 and cast a doubt whether A-1 who is in inimical terms with P.W.1, could have participated in the crime.
(viii) The lower Court found A-1 and A-3 to A-5 only guilty and the rest of the accused were acquitted of all the charges. In the instant case, no question of application of Sec.148 of I.P.C. would arise.
(ix) Further, so far as A-1 was concerned, he was standing outside the house, and hence, Sec.449 of IPC could not be applied.
(x) So far as the charges under Sec.307 are concerned, A-1 and A-5 were found guilty under Sec.307 of IPC, while A-3 and A-4 were found guilty under Sec.307 (2 counts) of IPC. These charges were framed in respect of the grievous injuries sustained by P.Ws.1, 2 and 4. P.Ws.5 and 6 were not pointing to any particular person who caused that particular injury. So long as P.Ws.1, 2 and 4 who actually sustained injuries, were unable to speak about the person or the assailant who caused the said injuries, then they could not be found guilty in respect of those charges.
(xi) So far as A-5 is concerned, there is nothing to indicate that A-5 was identified by anybody. Even the role played by him is not spoken to by anybody. Thus, all would go to show that A-5 had no role to play in the entire incident, nor was there any evidence as to his presence. Under the circumstances, all the charges against him would also go.
(xii) The lower Court being carried away by the incident in which two persons were done to death, and two persons were severely injured, has come to the erroneous conclusion that the prosecution has proved the case. Thus, for all the above reasons, they are entitled for acquittal in the hands of the Court.
9.The Court heard the learned Additional Public Prosecutor on the above contentions.
10.The Court paid its anxious consideration on the submissions made and made a thorough scrutiny of the available materials.
11.It is not a fact in controversy that in an occurrence that took place on 2.2.1999, in the house of P.W.1, two of her daughters namely Margret Mary and Rani Arokiammal, aged 16 and 19 years respectively, were done to death. Following the registration of the case by P.W.18, the Sub Inspector of Police, attached to Somarasampettai Police Station, the case was taken up for investigation by P.W.23, the Inspector of Police, who went to the spot. After the inspection of the spot, he conducted inquest on both the dead bodies and prepared two inquest reports. Following the same, the dead bodies were subjected to autopsy by P.W.8, the Doctor. She has given two certificates in respect of these two persons, wherein she has opined that they died out of shock and haemorrhage due to the multiple injuries about 12 to 18 hours prior to postmortem. The fact that they died out of homicidal violence and the contents of these certificates were never questioned by the appellants/accused at any stage of the proceedings. Hence, it has got to be recorded that both Margret Mary and Rani Arokiammal died out of homicidal violence.
12.Though there were nine accused, who were charged on different counts, the lower Court was not prepared to accept the prosecution case in respect of A- 2 and A-6 to A-9 and acquitted them of all the charges, but was ready to believe the case of the prosecution in respect of A-1 and A-3 to A-5, who are the appellants before this Court, and found them guilty. Needless to say in a case like this, where number of charges were levelled against number of accused and the evidence was adduced before the Court by the prosecution, a duty is cast upon the trial Court to cause proper marshalling of the evidence, consider the same and take a correct decision. Hence, the first contention put forth by the learned Counsel for the appellants that while the trial Court has disbelieved the evidence of the same witnesses namely P.Ws.1, 2, 4, 5 and 6, in respect of A-2 and A-6 to A-9, it should have rejected their evidence outright cannot be countenanced. Though attractive at the first instance, the said argument will not stand the scrutiny of law, and hence, it is rejected.
13.In order to substantiate the accusations made against these appellants/A-1 and A-3 to A-5, the prosecution examined P.Ws.1, 2, 4, 5 and 6. It is true that P.W.1 is the mother of P.Ws.2 and 4. P.W.5 is the brother of P.W.1. P.W.6 is the person who accompanied P.W.5. The occurrence has taken place at about 12.30 A.M. on 2.2.1999. Even as per the evidence of P.W.5, on that date, he accompanied by P.W.6, came to the house of P.W.1 and had the dinner; but, they were staying in the house of P.W.10. The house of P.W.10 is admittedly situated 150 feet away from the house of P.W.1. During night hours, only after hearing the distressing cry, they came to the spot. It would be quite clear that they could not have either seen the assailants or witnessed the occurrence as put forth by the prosecution. Hence, the evidence of P.Ws.5 and 6, in the opinion of the Court, do not require further consideration.
14.So far as P.W.2 was concerned, she is shown not only as an eyewitness, but also as an injured witness. The only reason on which her evidence has got to be rejected in toto, is the earliest document which is Ex.D2, the dying declaration, which was recorded by D.W.4, the Judicial Magistrate, on the date of occurrence itself i.e., 2.2.1999, from P.W.2. A reading of Ex.D2 would clearly indicate that she could not further speak about any of the assailants. She has not even spoken anything about A-1, who is her step brother. This, in the opinion of the Court, would be suffice to reject her testimony. It could be well commented that even assuming that she was very well available at the time of occurrence, she could not speak about the same, and on that evidence, no one of the accused can be found guilty.
15.In the instant case, only the evidence of P.Ws.1 and 4 are available to the prosecution. P.W.1 is the person against whom A-1 has got inimical terms. P.W.1's evidence is thoroughly scrutinised. According to her, she was in the house at the time of occurrence. It was she who first saw A-1 with an aruval. The evidence of P.W.4, who is the son of P.W.1, stood in full corroboration of the testimony of P.W.1. Now, at this juncture, P.Ws.1 and 4 have clearly spoken about the presence of A-1, A-3 and A-4. So far as A-1, A-3 and A-4 are concerned, P.W.1 has identified A-4 at the time of the identification parade. She has clearly spoken about the presence of A-1. So far as A-1 is concerned, no identification by P.W.1 or P.W.4 is necessary because he was also a member of the family as the son of the said Udaiyar through the first wife. As regards A- 3, he was identified by P.W.4. The evidence of P.Ws.1 and 4, giving graphic narration of the entire incident, in the opinion of the Court, would be suffice, and has inspired the confidence of the Court. Hence, the evidence of P.Ws.1 and 4 has got to be necessarily accepted.
16.Now, the Court has to consider the contentions put forth by the learned Counsel for the appellants. The first contention put forth by the learned Counsel for the appellants is that A-1 could not have been present at the place of occurrence. The learned Counsel placed reliance on the evidence of P.Ws.5, 10, 11 and 21. At this juncture, it has to be pointed out that their evidence would go to show that A-1 was available in the place of occurrence subsequent to the time of occurrence. Therefore, even assuming that A-1 was present at the place of occurrence, after the occurrence was over, it would have been a scene created by A-1 as if he had not participated in the crime. While there was direct evidence pointing that it was A-1 who was present at the time of occurrence and who has also participated along with the other accused, and the evidence of the eyewitnesses could be relied upon, and it is acceptable and convincing also, there is no need for any importance to be attached to the evidence of P.W.5, who came to the place of occurrence, after hearing the distressing cry, and also the evidence of P.Ws.10, 11 and 21. Thus, their evidence need not be given any importance. In such circumstances, the contention put forth that A-1 could have been implicated falsely has got to be discarded in the face of the evidence of the eyewitnesses.
17.In the instant case, P.Ws.1 and 4 have clearly spoken to the fact that it was A-1, A-3 and A-4, who have entered into the house and cut both Margret Mary and Rani Arokiammal, and they were done to death instantaneously. So far as A-1 is concerned, he was the person who abetted in the commission of the crime by instigating the other accused. The learned Counsel for the appellants would submit that he has not instigated others to commit murder, but only to cut them. It remains to be stated that at the time of occurrence i.e., at about 12.30 A.M., they were armed with deadly weapons; that they have come to the spot; that A-1 has identified the persons inside the house; and that his words would be suffice, which has resulted in the murder of two girls aged 16 and 19 years respectively. At this juncture, the act of A-1, in the opinion of the Court, was a merciless one for the simple reason that the animosity could have been only against P.W.1, who refused to sign the document, and it cannot, at any stretch of imagination, be against the two persons, who were young girls, aged 16 and 19 years respectively, and who were done to death. Under the circumstances, the act of A-1 instigating A-3 and A-4 to commit the offence, would attract the penal provisions of Sec.302 read with 114 of I.P.C. In view of the above, the conviction and sentence imposed on A-1 under Sec.302 and 302 read with 114 of I.P.C. and on A-3 and A-4 under Sec.302 (2 counts) of I.P.C. have got to be sustained.
18.Insofar as the accusation against A-1, A-3 and A-4, in respect of the charges under Sec.307 of I.P.C., the whole charges are in respect of the severe injuries sustained by P.Ws.1, 2 and 4. Now, marshalling of the evidence would clearly reveal that either P.Ws.1,2 and 4 or P.Ws.5 and 6, the so called eyewitnesses, could not speak about who caused the particular injuries to P.W.1 or P.W.2 or P.W.4. Thus, the evidence as rightly pointed out by the learned Counsel for the appellants, is nebulous. In such circumstances, the culpability cannot be fixed. In view of the above, as regards the charges under Sec.307 of I.P.C., A-1, A-3 and A-4 are entitled for an acquittal.
19.So far as the charge under Sec.148 of I.P.C. is concerned, the same cannot be attracted for the simple reason that only four were found guilty i.e., A-1 and A-3 to A-5. It can be stated that it lacks in law. Therefore, they could not be found guilty under the said charge.
20.So far as the charge under Sec.449 of IPC is concerned, A-1 was found standing outside, and hence, Sec.449 of IPC could not be attracted for A-1. A-3 and A-4 were found guilty under Sec.449 of IPC and rightly too.
21.So far as the charge under Sec.506(ii) of IPC is concerned, the criminal intimidation is spoken to by the eyewitnesses, and the lower Court was perfectly correct in finding A-1 guilty and awarding the punishment.
22.At this juncture, this Court is of the considered opinion that so far as A-5 is concerned, he is neither identified by anyone, nor the role played by him is also made mention of. In view of the evidence available, finding A-5 guilty of all the charges would be unsafe. Hence, A-5 is acquitted of all the charges levelled against him.
23.For the foregoing reasons, the conviction and sentence imposed on A-1 under Sections 302, 302 read with 114 and 506 (ii) of I.P.C. are confirmed. So far as A-3 and A-4 are concerned, the conviction and sentence imposed on them under Sections 449 and 302 (2 counts) of I.P.C. are sustained. The sentences are to run concurrently. The conviction and sentence imposed on A-1 under Sections 148, 449 and 307 of I.P.C., are set aside, and he is acquitted of the said charges. The conviction and sentence imposed on A-3 and A-4 under Sections 148 and 307 (2 counts) of I.P.C. are set aside, and they are acquitted of the said charges. The fine amounts paid by A-1, A-3 and A-4 in that regard will be refunded to them. So far as A-5 is concerned, the conviction and sentence imposed on him are set aside, and he is acquitted of all the charges levelled against him. The fine amounts paid by A-5 will be refunded to him.
24.In the result, this criminal appeal is partly allowed to the extent indicated above. It is reported that A-1 is on bail. Hence, the Sessions Judge shall take steps to commit A-1 to prison to undergo the sentence. The bail bond executed by A-5, shall stand terminated.
To:
1)The I Additional Sessions Judge-cum-
Chief Judicial Magistrate Tiruchirapalli.
2)The Inspector of Police Somarasampettai Police Station Somarasampettai Trichirapalli District (Cr.No.50 of 1999)
3)The Public Prosecutor Madurai Bench of Madras High Court