Madras High Court
Sudalai vs State Represented By on 28 August, 2008
Author: M.Sathyanarayanan
Bench: D.Murugesan, M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/08/2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRIMINAL APPEAL (MD)No.393 of 2007 and CRIMINAL APPEAL (MD)No.404 of 2007 and CRIMINAL APPEAL (MD)No.78 of 2008 1.Sudalai 2.Maharajan 3.Paramasivan ... Appellants/A.1, A.9 and A.10 (in Crl.A.(MD) No.393 of 2007) 1.Esakki Muthu @ Kariandi Esakkimuthu Konar 2.Kanthan 3.Kombaiah 4.Sudalai ... Appellants/A.3 to A.5 and A.11 (in Crl.A.(MD) No.404 of 2007) 1.Sankaran 2.Perumal 3.Maharajan ...Appellants/A.6 to A.8 (in Crl.A.(MD) No.78 of 2008) Vs. State represented by Inspector of Police, Kurumboor, Tuticorin District. ... Respondent/Complainant Prayer Appeals filed under section 374(2) of the Code of Criminal Procedure, against the judgment dated 27.06.2007 in S.C.No.7 of 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.I, Tuticorin. !For Appellants ... Mr.V.Kathirvelu for A.1, A.3 to A.5, A.9 and A.11 Mr.P.Jeyapaul for A.10 Mr.Ravi for A.6 to A.8 ^For Respondent ... Mr.V.Kasinathan, Additional Public Prosecutor * * * * * :COMMON JUDGMENT
M.SATHYANARAYANAN.,J The above appeals are preferred by the appellants/A.1, A.3 to A.5, A.6 to A.8, A.9, A.10 and A.11 respectively challenging the conviction and sentence passed by the Court of Additional District and Sessions Judge/Fast Track Court No.1, Tuticorin, in S.C.No.7 of 2006 dated 27.06.2007 wherein the appellants were convicted and sentenced as under:
Accused Conviction Sentence A.1 U/s 324 I.P.C (2 counts) to undergo two years rigorous imprisonment under each count and to pay a fine of Rs.2,500/- i/d to undergo 3 months rigorous imprisonment and the sentences were ordered to run consecutively.
A.2, A.6 U/s 302 r/w 34 I.P.C.(2 counts) to undergo Life Sentence under each count to A.8 and to pay a fine of Rs.5,000/- i/d to undergo 6 months rigorous imprisonment and the sentences were ordered to run consecutively.
A.2 U/s. 323 I.P.C. to undergo 6 months rigorous imprisonment and to pay a fine of Rs.1,000/- i/d to undergo 2 months rigorous imprisonment and the sentence was ordered to run concurrently along with earlier sentence imposed on him.
A.3 to U/s.302 r/w 34 I.P.C. to undergo Life Sentence and to pay a fine of Rs.5,000/-
A.5, i/d to undergo 6 months rigorous imprisonment. A.11 A.9 U/s.324 I.P.C to undergo three years rigorous imprisonment and to pay
a fine of Rs.2,500/- i/d to undergo 3 months rigorous imprisonment.
A.10 U/s.326 I.P.C. to undergo 7 years rigorous imprisonment and to pay a fine of Rs.5,000/- i/d to undergo 6 months rigorous imprisonment.
2. The trial Court had acquitted A.1, A.3 to A.11 regarding the commission of the offences under Sections 148, 120(B) and 506(II) I.P.C and A.1 under Section 341 I.P.C and A.2 under section 120(B), 147, and 506(II) I.P.C.
3. The State has not preferred any appeal challenging the above said findings of the trial Court as regards acquittal.
4. The case of the prosecution is as follows:
P.W.1, Shanmugakrishnan @ Shanmugasundaram, is doing milk business at Kandan Kudiyiruppu. In Kandan Kudiyiruppu, there are two sects of people belong to Yadhava community. They are Seevanathan group and Madumeithan group. P.W.1, Shanmugakrishnan, belongs to Seevanathan group. The appellants/accused are also related to each other and they belong to Madumeithan group.
5. A.1, A.4 and A.5 are sons of A.3. A.9 and A.10 are brothers and brothers-in-law of A.3. A.6 to A.8 are brothers. A.11 is the son of A.10's sister-in-law. A.2 is the junior father/uncle of A.10.
6. In the year 1997, some of the witnesses in the present case attacked one Krishna konar who belonged to Madumeithan group and in that connection, a case in Cr.No.29 of 1997 was registered by Arumuganeri Police Station for the commission of the offences under Section 147, 148, 323 and 324 I.P.C. After trial, the accused therein were acquitted and from that time onwards, both groups are inimical to each other.
7. In Kandan Kudiyiruppu, there are two temples belonged to Yadhava community. One of the temples, i.e, Amman temple is within the said Kandan Kudiyiruppu and another temple, i.e, Sudalai Madasamy temple is on the southern side of the Kandan Kudiyiruppu. There is a practice to give donation/kodai (bfhil) once in two years to Sudalai Madasamy temple and all along, it was given by the people belong to Seevanathan group.
8. On 02.08.2005, Madumeithan group under the leadership of A.10, Paramasivam, had given such donation/kodai to the said temple. However, P.W.3, Murugesan, belongs to Seevanathan group has not given donation/kodai. On that day, during night hours, P.W.7, Vaikundam, who is the priest/samiyadi had gone to midnight ceremony and give holy ash firstly to P.W.22, Murugesan and due to the fact also, the enmity further developed between two groups. In connection with the said incident, all accused assembled in the house of the A.2, Maharaja Konar on 06.08.2008 and hatched a conspiracy to finish off the people belong to Seevanathan group and it should be done before the eight day festival.
9. Due to the said conspiracy, on 09.08.2005 at about 08.30 p.m, both group after finishing off the pooja and after obtaining prasadh (gpurhjk;). were returning. At that time, all the accused with an intention to murder armed with deadly weapons and formed themselves into an unlawful assembly in front of Sudalai Madasamy temple on Ammanpuram to Arumuganeri road. At that time, P.W.3, Murugesan, came and he was wrongfully restrained by A.1 and he has scolded him as he has not paid any tax/kodai and why he has not given? After uttering the said words, he beat P.W.3 with the handle of his aruval and caused injury at the left eye and also left knee.
10. The maternal uncle of P.W.3 namely Nainar konar (D.1) had asked them as to why they are beating P.W.3. A.2, told him that he is the sole cause of all troubles and with an intention to murder him, beat him with a stick. A.2 also instigated other accused to finish them off and immediately, the accused started attacking Nainar konar (D.1). A.3 to A.5 indiscriminately cut Nainar konar (D.1) with aruvals and due to the injuries sustained, Nainar konar died on the spot.
11. Swaminathan, (D.3), on seeing the attack on Nainar konar questioned the accused and immediately, he was attacked by A.6, A.7 and A.8 with aruvals and he was inflicted with cut injuries. While Swaminathan, (D.3), was taken to the Government Hospital, Tiruchendur, he died. P.W.4, Periasamy, who is the father of Swaminathan (D.3) on seeing the attack on his son raised alarm and he was stabbed by A.9 with Valaya kambu and caused him bleeding injuries and it was questioned by P.W.2 Raghavan and he was attacked with aruval. A.10, also attacked P.W.5 Isakkimuthu with aruval.
12. The said incident was seen by Periyasamy, younger brother of P.W.1, Shanmugakrishnan. A.6, as a result of a conspiracy hatched, cut him with sword (ths;) on Periyasamy and he falls down. A.6, once again cut him with his sword and A.11 cut him with aruval. A.7 and A.8 also attacked Periyasamy with aruvals. A.2, beat Periyasamy on his head with a stick. Due to multiple injuries, Periyasamy (D.2) died on the spot. P.W.1, has seen the occurrence and he raised an alarm and he was beat by A.2. All the accused assembled together and threatened the witnesses with the weapons that if they come near, they will also be finished off and they ran away with the weapons.
13. The prosecution after investigation, has laid the charge sheet as against the accused as follows:
Charges Accused U/s.
First A.1 to A.11 Section 120(B) I.P.C. Second A.1, A.3 to A.11 Section 148 I.P.C. Third A.2 Section 147 I.P.C. Fourth A.1 Section 341 I.P.C. Fifth A.1 Section 324 I.P.C. Sixth A.2 to A.5 Section 302 r/w 149 I.P.C. Seventh A.6 to A.8 Section 302 r/w 149 I.P.C. Eighth A.1 and A.9 Section 324 I.P.C. Ninth A.10 Section 326 I.P.C. Tenth A.2, A.6, A.7, A.8 and A.11Section 302 r/w 149 I.P.C. Eleventh A.2 Section 323 I.P.C Twelfth A.1 to A.11 Section 506 (ii) I.P.C.
14. During the course of trial, the prosecution examined twenty seven witnesses and marked sixty exhibits. The prosecution also marked M.O.1 to M.O.31 to sustain their case. On behalf of the accused, three witnesses were examined and three exhibits were marked.
15. There were totally seven eyewitnesses to the commission of the offence. P.W.1 to P.W.5 were the injured witnesses and P.W.6 and P.W.7 were also eyewitnesses to the occurrence.
16. P.W.1 along with P.W.2 and P.W.3 went to Kurumboor Police Station at about 09.30 p.m, and gave a statement under Ex.P.1 to P.W.25, the Sub Inspector of Police of Kurumboor Police Station. In Ex.P.1, P.W.2 signed as a witness.
P.W.25, based on Ex.P.1, has registered an F.I.R in Cr.No.230 of 2005 under Sections 147, 148, 341, 294(b), 323, 324, 307 and 302 I.P.C. The printed F.I.R is marked as Ex.P.31. P.W.25, after registering the F.I.R, prepared the medical memo and sent the injured witnesses namely P.W.1 to P.W.3 to the Government Hospital, Srivaikuntam. P.W.25, also forwarded the F.I.R, the Statement of P.W.1 under Ex.P.1 through P.W.17, the Head Constable attached to Kurumboor Police Station to the Court of Judicial Magistrate, Srivaikuntam and he also forwarded the copies to his higher officials. He also informed the Circle Inspector of Police, Alwarthirunagari. P.W.27, was the then Inspector of Police, Alwarthirunagari circle and when he was on patrol duty at about 10.30 p.m, on 09.08.2005, he got the information about the registration of the said case. On receipt of the information, he went to the scene of occurrence namely Sudalai Madasamy temple and in that place, he got the copy of the F.I.R. P.W.27, in the presence of P.W.24, the Village Administrative Officer and Village Assistant, prepared the scene mahazar at about 11.00 p.m on that day, which has been marked as Ex.P.27. P.W.27, also prepared a rough sketch under Ex.P.38.
17. P.W.27, conducted inquest on the body of Nainar Konar (D.1) in the presence of the Panchayatars on 10.08.2005 between 12.15 a.m and 02.15 a.m., and prepared the inquest report under Ex.P.39. During inquest, he examined P.W.6 and other two persons and recorded their statements. Thereafter, he gave a requisition for doing post-mortem on the body of Nainar Konar (D.1) through P.W.18.
18. P.W.10, a Doctor attached to the General Hospital, Srivaikuntam, conducted the autopsy on the body of Nainar Konar (D.1) and noted the following injuries:
"1. A deep cut injury starting from behind the left mandible upto 1cm behind the angle of mouth left, 8 X 4 X 6 cms size.
2. A deep cut injury from 1 cm behind the injury No.1. upto the centre of the back of neck of 9 X 4 X 6 cms size.
3. A cut injury 5 cm behind the left ear resulting a skin slap hanging of 6 X 4 cms size and skull exposed.
4. 4 X 1 X 1 cms size cut injury dorsum of left hand.
5. 4 X 1 X 1 cm size cut injury near injury No.4, parallel to it.
6. 6 X 3 X 3 cm size cut injury in the middle of right forearm on the outer side.
7. Two linear incised injury of 4 and 5 cms length in the outer aspect of right arm.
8. 1 X 1/2 X 1/2 cm cut injury in the tip of nose.
9. An incised wound of 1 X 1/2 X 1/2 cms in the back of right shoulder hyoid intact. No bony injury in the skull bone. Stomach contains partly digested food particles of about 300 gms. All vital and visceral organs are pale. Brain tissue normal in consistency."
19. P.W.10, issued the post-mortem certificate under Ex.P.8 and he opined that the deceased Nainar Konar (D.1) would appear to have died 12 to 16 hours prior to the post-mortem and the cause of death was due to shock and haemorrhage on account of the multiple injuries sustained by him. Thereafter, the articles found on the body of Nainar Konar (D.1) was recovered under a cover of mahazar and the body was handed over to the relatives for cremation.
20. P.W.27, conducted the inquest on the body of Periyasamy (D.2) on 10.08.2005 between 02.15 a.m and 04.15 a.m and prepared inquest report under Ex.P.40 and he also examined P.W.6 and two other persons and obtained their statements. The photographs of the deceased Periyasamy was also taken. A requisition for conducting the post-mortem on the body of the deceased Periyasamy through P.W.19 was sent to the Government Hospital, Srivaikuntam. P.W.10 also conducted the post-mortem on the body of the deceased Periyasamy (D.2) on 10.08.2005 at about 11.30 a.m, and noted the following injuries:
"1. A cut injury of 6 X 3 X 2 cms in the centre of the back exposing the vertebral bones.
2. 4 X 2 X 3 cms size cut injury on the back side of right loin.
3. A deep cut injury of 8 X 5 X 8 cms on the back in the left side above from the shoulder below upto lower end of spapula bone fractured 3rd, 4th, 5th ribs fractured lung tissue injured.
4. 4 X 2 X 2 cm cut injury right side of cervical vertebrae.
5. 6 X 5 X 5 cm cut injury left loin below the axilla 6 X 5 X 5 cms with 5th, 6th, 7th ribs fractured.
6. 4 X 2 X 6 cms stabbed injury left shoulder close to neck on the back.
7. 10 X 2 X 2 cms cut injury in the centre of skull bone on the back in the longitudinal pl... making fracture of skull.
8. 2 X 1 X 1 cm cut injury right side of injury No.7.
9. Left side ear pinna cut into two haves from above and hanging."
21. After post-mortem, P.W.10 issued post-mortem certificate under Ex.P.10 wherein he opined that the deceased Periyasamy would appear to have died 12 to 16 hours prior to the post-mortem due to shock and haemorrhage on account of multiple injuries. The articles found on the body of the deceased Periyasamy were sent to the Court.
22. P.W.27, in the presence of P.W.24 and Village Assistant, collected the blood stained earth and other articles at the place in which the body of Nainar konar was lying, under a cover of mahazar under Ex.P.28. P.W.27, received the intimation under Ex.P.37 from the Government Hospital, Tiruchendur with regard to the death of Swaminathan (D.3) and he proceeded to the Hospital and he was accompanied by P.W.6 and two other persons. In the mortuary, P.W.27, conducted the inquest on the body of Swaminathan (D.3) in the presence of Panchayatars and prepared the inquest report under Ex.P.41. He examined the witnesses, Kannan and Padmanaban who were present at the time of inquest and recorded their statements. Thereafter, P.W.27, gave a requisition under Ex.P.24, to conduct autopsy over the body of Swaminathan (D.3). P.W.21, Dr.Ponravi conducted the post-mortem on the body of Swaminathan (D.3) and he noted the following injuries:
"1. A cut injury 7cm X 1cm X 1cm over left lower jaw with fractured bone.
2. A cut injury 15cm X 3cm X 3cm just below left ear extendings from left cheek up to the back of neck.
3. A cut injury 3 cm X 1 X 1/2 cm over back of left shoulder.
4. A cut injury 3 cm X 1/2 X 1/2 cm over middle of forehead.
5. A cut injury 4 cm X 1 cm X 1/2 cm just above right ear.
6. A cut injury 2 cm X 1/2 X 1/2 cm over back of neck.
7. A cut injury 2 cm X 1/2 X 1/2 cm just below injury No.6.
8. A cut injury 4cm X 1cm X 1/2cm over left shoulder.
9. A cut injury 1 cm X 1/2 X 1/2 cm just below injury No.8."
23. P.W.21, has issued the post-mortem certificate under Ex.P.26 wherein he opined that the deceased would appear to have died of shock and haemorrhage due to the multiple injuries sustained 12 to 18 hours prior to the post-mortem. After post-mortem, the articles found on the body of Swaminathan (D.3) were recovered.
24. P.W.27, after coming to know that P.W.4 and P.W.5 were admitted in the Government Hospital, Tuticorin, on reference form Tiruchendur Government Hospital, went on 11.08.2005 and recorded their statements. P.W.27 also recorded the statements of other witnesses namely P.W.1 to P.W.3. On 12.08.2005, on coming to know about the presence of A.2, he arrested A.2 in the presence of P.W.24 and recorded his voluntary confessional statement and based on the admitted portion of the said statement, he recovered M.O.2, under Ex.P.30. A.1, A.3, A.4, A.6 to A.9 had surrendered before the Court of Judicial Magistrate No.1, Tuticorin, on 11.08.2005 and P.W.27, on receipt of the said information, filed necessary application seeking police custody. On 18.08.2005, A.11 surrendered before the Court of Judicial Magistrate No.1, Tuticorin. P.W.27, put the accused into police custody and according to the prosecution, they voluntarily gave a confessional statements and based on their statements, the weapons used by them were recovered under a cover of mahazar.
25. The seized material objects were sent for chemical analysis and the Chemical analysis report was marked as Ex.P.13 and the Serological report was marked as Ex.P.14 and the other material objects were also sent for Chemical analysis and reports were also received.
26. P.W.27, after completing the investigation, has laid the charge sheet on 14.10.2005 against the accused for the commission of the offence under Sections 147, 148, 341, 120(b), 307, 324, 326, 506(II) and 302 I.P.C read with Section 149 I.P.C.
27. P.W.1, is the elder brother of Periyasamy, D.2. In the chief examination, he has spoken about the motive aspect and also the overt acts on the part of the accused. According to P.W.1, A.1 beat P.W.3 Murugesan with the handle of aruval and A.2 beat Nainar konar and also instigated the other accused to finish them off. The deceased Nainar konar was cut by A.3, A.4 son of A.3, A.5 brother of A.4 and A.2 also beat him with a stick.
28. Insofar as the deceased Periyasamy (D.2) is concerned, A.6 to A.8 and A.11 inflicted the fatal injuries with lethal weapons and A.2 beat him with a stick forcefully on his head. Insofar as Swaminathan (D.3) is concerned, A.6 to A.8 inflicted the fatal injuries. P.W.1 further deposed that he was attacked by A.2 with a stick on his back. A.9, stabbed P.W.4 with Valaya kambu and P.W.2 was also attacked by A.1 on the reverse/blunt side of aruval and A.10 cut P.W.5 with an aruval. In the cross-examination, it was suggested that the injuries found on the injured witnesses were self-inflicted and the complaint and F.I.R were concocted as it contains specific overt acts on the part of each accused. It was also suggested that with such a position, it is not possible for P.W.1 to give such a version with specific overt acts and weapons used by the accused.
29. On behalf of A.5 also suggestions were put. P.W.1 was also extensively cross-examined with regard to the cycle of P.W.3 used by him to reach the police station. P.W.2 who is also an injured witness had corroborated the version of P.W.1 as regards the overt acts and he was also extensively cross-examined by putting similar questions which were put to P.W.1. P.W.3 also corroborated the versions of P.W.1 and P.W.2 in its entirety and he was also extensively cross-examined with regard to the injuries sustained by him. P.W.4, another injured witness, had also corroborated the version of P.W.1 to P.W.3 with regard to the injuries sustained by him. P.W.4, another injured witness had also corroborated the version of P.W.1 to P.W.3 with regard to the weapons used by the accused and their overt acts and in the cross-examination, he specifically deposed that A.5 Kombaiya, cut the deceased Nainar Konar on the rear side of his ear and also on his neck and he has also spoken about the lights in the scene of occurrence.
30. P.W.5, another injured witness had fully corroborated the version of P.W.1 to P.W.4 and he was also extensively cross-examined with regard to the injury and also with regard to the utilisation of services of sniffer dogs.
31. P.W.6 and P.W.7 who were not injured and who were present in the scene of occurrence, had fully corroborated the testimonies of P.W.1 to P.W.5 with regard to the overt acts on the part of the accused and the weapons used by them. They were also extensively cross-examined with regard to the availability of light in the scene of occurrence and also the cycle used by P.W.3 Murugesan.
32. P.W.8, Dr.Jeyakumar has treated P.W.1 at about 03.30 p.m on 09.08.2005 and issued wound certificate under Ex.P.2. P.W.8 also treated P.W.2 and P.W.3 and issued wound certificate under Ex.P.4 and P.3 respectively. P.W.9, Dr.Amutha had seen P.W.4 and P.W.5 and treated them on 09.08.2005 and issued wound certificates under Exs.P.33 and P.35 respectively.
33. P.W.10, Dr.Subbiah, conducted the autopsy on the body of the deceased Nainar konar (D.1) and Swaminathan (D.3) and issued post-mortem certificates under Exs.P.8 and P.10 respectively. P.W.11, Ayyanar, had put lights in the temple and he has spoken about the light aspect in the scene of occurrence. P.W.12, is a wire man of Tamil Nadu Electricity Board, had turned hostile.
34. P.W.13, is an auto driver and he took the deceased Swaminathan and two others to Hospital and in the cross-examination, he has deposed that Swaminathan (D.3) was made to walk to the hospital. P.W.14, had taken photographs in the scene of occurrence. P.W.15, Panchayat President, speaks about the street lights. P.W.16, the Court official, had sent the material objects for chemical analysis. P.W.17, the Head Constable attached to Kurumboor Police Station, took the F.I.R to the Judicial Magistrate Court, and handed over to him at 07.30 p.m, on 10.08.2005. In the cross-examination, he deposed that the column 15 has not been filled up and the distance between the police station and the Court is about 20 Kms. P.W.18 to P.W.20 took the bodies of D.1 to D.3 for post-mortem. P.W.21, had conducted the autopsy over the body of D.3 Swaminathan and issued Ex.P.26, post-mortem certificate. In the cross-examination, he deposed that the deceased Swaminathan (D.3) after injuries can be alive for ten minutes and he cannot run or walk.
35. P.W.22, had received the holy ash from P.W.7 on 12.08.2005 and he deposed that no sniffer dogs came to the scene of occurrence. P.W.23 speaks about the conspiracy hatched by the accused and he deposed that all the accused went to the house of A.2 on 06.08.2005 and he overheard the conversation. P.W.24, the Village Administrative Officer, is a witness to the seizure mahazar, arrest of the all accused and the recoveries made from them pursuant to their confession. In the cross-examination, he deposed that he is prone to memory lapse.
36. P.W.25, has registered the F.I.R on the basis of Ex.P.1, complaint given by P.W.1. He deposed that P.W.1 came to the Police Station on 21.30 hours on 09.08.2005 along with P.W.2 and P.W.3. He further deposed that even prior to the F.I.R, he received the telephonic information and the copy of the F.I.R was handed over to P.W.27 at about 23.15 hours on 09.08.2005. He also deposed that P.W.1 to P.W.3 were sent on single medical memo. P.W.26, had treated P.W.4 and P.W.5 and he also deposed that the deceased Swaminathan (D.3) was brought to the Hospital and he has given the intimation to the police station. In the cross- examination, he deposed that P.W.5 told him that he was attacked by more than eight persons. P.W.27, the Investigating Officer after investigation, laid the charge sheet.
37. All the accused were questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating materials against them and they denied it and further submitted that false case has been foisted as against them.
38. D.W.1 was the Head Constable attached to the Dog Squad through whom the General Diary maintained by the said Squad, came to be marked as Ex.D.1. According to Ex.D.1, the services of the sniffer dogs were sought for in respect of Cr.No.230 of 2005 and the sniffer dog was also sent to the scene of occurrence. D.W.1 also had spoken to that effect.
39. D.W.2 was the Head Constable attached to Kurumboor Police Station through whom page No.76 of the General Diary dated 09.08.2005 came to be marked as Ex.D.2. He denied the suggestion that prior to the registration of the case in Cr.No.230 of 2005, some cases were registered and thereafter also some other cases were registered.
40. D.W.3, Dr.Vetrivel, has been examined on behalf of A.5 namely Kombaiah. As per the testimony of D.W.3, he examined A.5 on 13.08.2005 and issued wound certificate under Ex.D.3, wherein it has been stated that the mental capacity of A.5 is not that of the person aged about 18 years and he cannot do things without the help of others. In the cross-examination, D.W.3 has admitted that he is not a Psychiatrist, but only a Paediatrician.
41. The trial Court on a consideration of oral and documentary evidences, had convicted the accused and sentenced them as stated above.
42. A.1, A.9 and A.10 had preferred appeal in Crl.A.(MD)No.393 of 2007. A.3 to A.5 and A.11 had preferred appeal in Crl.A.(MD)No.404 of 2007. A.6 to A.8 had preferred appeal in Crl.A.(MD)No.78 of 2008.
43. Insofar as A.10 in Crl.A.(MD)No.393 of 2007 is concerned, he has been represented by Mr.P.Jeyapaul, advocate. Mr.V.Kathirvelu, advocate, has appeared for A.1, A.3 to A.5, A.9 and A.11 and Mr.Ravi has appeared for A.6 to A.8 and We heard their submissions. We have also heard the submissions of Mr.V.Kasinathan, learned Additional Public Prosecutor.
44. Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11 has made the following submissions:
45. The F.I.R registered based on Ex.P.1 complaint, is not based on the earlier information as the earlier information with regard to the commission of the offence has been burked by the prosecution. The F.I.R came to be registered only after the sniffer dogs came to the scene of occurrence and at that time, the accused were not yet fixed and only after deliberation, the names of the accused were fixed and thereafter, Ex.P.1, complaint was preferred by P.W.1 based on which the F.I.R came to be registered. The injuries found on P.W.1 to P.W.5 were self-inflicted.
46. It is also submitted that in Ex.P.1, the minute details with regard to the overt acts on the part of the accused have been given by one of the injured namely, P.W.1 and the same would not have been possible as admittedly, three persons have done to death and the occurrence was over within a very short span of time. Moreover, the F.I.R reached the Court only after 8 1/2 hours and the statements recorded from the witnesses including the eyewitnesses reached the Court only at the time of filing of the charge sheet. However, the inquest report has reached the Court within two days from the date of its preparation.
47. The motive attributed by the prosecution was flimsy. According to the prosecution, there was a previous enmity wherein some of the prosecution witnesses came to be arrived as accused which ended in acquittal even in the year 2000 and there was no enmity. Even on 02.08.2005, when P.W.22 was given holy ash by P.W.7, there was no confrontation between the accused and the witnesses/deceased. The conspiracy aspect spoken by P.W.27 was disbelieved by the trial Court and all the accused were acquitted of conspiracy charge.
48. Near the scene of occurrence, there is no clinching evidence to show that there were lights so as to enable the witnesses to see the occurrence and the Wireman of Tamil Nadu Electricity Board, P.W.12 had turned hostile.
49. As regards the injuries sustained by P.W.1 to P.W.3, the wound certificates are in variance with their oral testimonies. As regards the admission of Swaminathan, (D.3) at the Tiruchendur Government Hospital, it was the version of the prosecution through an auto driver, P.W.13, that D.3 was made to walk and the opinion of the post-mortem Doctor had indicated that with the injuries sustained by D.3, he would not have alive for ten minutes. Therefore, the said version of the prosecution has been falsified through the evidence of P.W.13. It is also the submission that the arrest, recovery and preparation of mahazars were stage managed. As regards A.5, it has been submitted that the sentence was suspended by this Court on production of certificate that he was an adolescent at the time of the alleged commission of the offence and the evidence of D.W.3 had also established that he is not mentally sound. Therefore, the overt act attributed against A.5 as spoken to by P.W.1 to P.W.7 are highly unbelievable.
50. It is further submitted that the blood stained clothes worn by A.5 was not recovered and sent for chemical analysis.
51. Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, had invited the attention of this Court to the oral evidence of prosecution witnesses and submitted that the F.I.R with regard to the alleged commission of the offence has been suppressed by the prosecution. The F.I.R had reached the Court only after 8 1/2 hours and there is no explanation forthcoming from the prosecution as to the said delay. The wound certificate in respect of P.W.1 to P.W.5 are quite contrary to their oral testimonies and therefore, it is highly doubtful with regard to the manner in which they sustained injuries while the offences were committed. The injury sustained by P.W.1 to P.W.3 were self- inflicted and in view of the summoning of Dog Squad to the scene of occurrence, the version stated by P.W.1 in Ex.P.1 giving minute details with regard to the manner of occurrence and the overt acts on the part of the accused cannot be believed at all.
52. Since there is no clinching proof adduced by the prosecution with regard to the burning of lights in the scene of occurrence, the witnesses would not have seen the occurrence at all. The sum and substance of the arguments made by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11 is that since the F.I.R is highly doubtful and that the motive is very flimsy and there are many inconsistencies and the gaping holes in the case projected by the prosecution coupled with the fact that in respect of the conspiracy charge, all the accused were acquitted and so also, with regard to the commission of offences under Section 147, 148 and 341 I.P.C, the trial Court has committed a grave error in convicting the said accused. It is further submitted by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, that awarding of double imprisonment for life in respect of A.2, A.6 to A.8 is totally unwarranted and in any event, the trial Court ought to have awarded benefit of doubt and acquitted the said accused.
53. It is vehemently contended by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11 that the perusal of testimonies of P.W.1 to P.W.5, the injured witnesses and P.W.6 and P.W.7 would reveal that their testimonies are verbatim same and their testimonies are parrot-like and therefore, no reliance can be placed upon their testimonies. In support of the said submission, Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, has placed reliance upon the following decisions:
(i) Sevi v. State of Tamil Nadu reported in AIR 1981 SUPREME COURT 1230.
(ii) Rambilas and others v. State of Madhya Pradesh reported in 1997(8) Supreme 442.
54. In Sevi v. State of Tamil Nadu reported in AIR 1981 SUPREME COURT 1230, the Honourable Supreme Court of India has held that witness giving dramatic account of the incident with minute details of attack on each victim, especially in view of the fact that they were also attacked simultaneously, their version cannot be relied upon. In the said decision, the Honourable Supreme Court of India found that the Station House Officer has taken the First Information Report Book with him to the scene of occurrence and with regard to the discrepancy, he did not produce the general diary. The Honourable Supreme Court of India also found that all the witnesses are partisan witnesses and notwithstanding the fact that four of them had sustained injuries, the Court is unable to accept their evidence in the peculiar circumstances of the case. The Honourable Supreme Court of India further found that the investigation itself is found to be tainted and as regards the minute details spoken to by the witnesses, the Honourable Supreme Court found that they were all attacked simultaneously and if so, it was impossible for each of them to have motives to attack on everyone.
55. In Rambilas and others v. State of Madhya Pradesh reported in 1997(8) Supreme 442, the Honourable Supreme Court of India found that the evidence of alleged eyewitness is just like a parrot and even omissions, contradictions and improvements are identical and therefore, their version is totally unbelievable when they testified that they had gone to the place of occurrence and the distance is about one furlong. The Honourable Supreme Court of India in that case found that it was night time and only light available was that of the Moon and in the cross-examination, they admitted that they did not see the actual assault as they were prevented from going to the place of occurrence by the appellants. It is further deposed by them that some time thereafter, they again went to the place of occurrence, but they could not see the appellants as well as the dead body. Therefore, the Honourable Supreme Court of India found that the assertion of these witnesses that they had gone to the place of occurrence during that night appeared to us a cock and bull story. The Honourable Supreme Court of India also noted that even after the ghastly attack, none of the witnesses ever thought of going to the father of the victim to inform him about the incident and also did not go to the police station during the same night to lodge the F.I.R.
56. We have perused the testimonies of P.W.1 to P.W.7 and also Ex.P.1. It is to be remembered that the accused and the prosecution witnesses and the deceased belong to the same community and are residing in the same village and they knew each other very well. The motive projected by the prosecution that some of the prosecution witnesses were prosecuted in the year 2000 which ended in acquittal and thereafter, on 02.08.2005, when P.W.7 gave holy ash to P.W.22 who belonged to other group and that on 09.08.2005, when P.W.3 was attacked and thereafter, the murders took place, had been spoken by the witnesses. Assuming that there is no motive for the commission of the offences, since it was an eyewitness account, the motive for commission of the offence pale into insignificance.
57. As regards the availability of lights in the scene of occurrence, though P.W.1 has deposed that on the road, there was no light put up, this fact was spoken to by P.W.2 Raghavan, and also P.W.3 Murugesan and so also P.W.4 Periyasamy. P.W.5 had also spoken about the burning of lights put up for the occasion and also the street lights.
58. P.W.6, who was a witness had also spoken about the burning of lights put up for the occasion and also burning of street lamps and so also, P.W.7 who was not an injured witness.
59. As already stated above, that the accused and the prosecution witnesses belong to the same community and they are residing in the same place and that they knew each other very well. Therefore, it is possible for P.W.1 to P.W.7 to identify the accused who attacked the deceased with lethal weapons. It is the version of P.W.1 to P.W.5 that they witnessed the occurrence in a close quarters and that they were also subjected to attack and except P.W.5, all of them sustained only simple injuries. P.W.5 suffered fracture on his left hand. Therefore, in the opinion of this Court, it was possible for them to witness the occurrence and with specific overt act on the part of the accused. Even for the sake of arguments that the testimonies of injured witnesses can be eschewed as they could not have seen the occurrence because of the attack on them, We cannot brush aside the testimonies of P.W.6 and P.W.7 who admittedly did not suffer any injuries. P.W.7, the priest/samiyadi, who after coming from Thiralai, gave holy ash to P.W.22 on 02.08.2005 and also conducted the festival on 09.08.2005. Therefore, their presence cannot be disputed and they have spoken the overt acts on the part of A.1, A.2, A.3, A.4, A.5, A.6, A.7, A.8 and A.11. The testimonies of P.W.1 to P.W.7 would reveal that A.3, A.4 and A.5 caused the murder of the deceased Nainar Konar (D.1) with lethal weapons and A.6, A.7, A.8 and A.11 caused the death of the deceased Periyasamy (D.2) and A.6, A.7 and A.8 caused the death of the deceased Swaminathan (D.3). A.1 beat P.W.3 Murugesan and A.2 also beat the deceased Nainar Konar (D.1) and also instigated the other accused to finish them off. P.W.1 was attacked by A.2 with a stick on his back and P.W.4 was stabbed by A.9 with Valaya kambu and P.W.2 was attacked by A.1 with the back side of the aruval and A.10 cut P.W.5 with aruval and his wound certificate would reveal that he suffered a fracture on his left humeral shaft as evidenced by Ex.P.6.
60. The above cited two judgments may not be applicable to the facts of the present case as the factual matrix in those cases were entirely different. Even assuming that the testimonies of P.W.1 to P.W.5 who were injured are to be rejected, P.W.6 and P.W.7 had spoken clearly the overt acts on the part of the accused which ultimately led to the murders of D.1 to D.3 and also the injuries upon P.W.1 to P.W.5.
61. It is submitted by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11 that the entries in the wound certificate as regards P.W.1 to P.W.5 are contrary to the oral testimonies and in this connection, he placed reliance upon the decision of the Honourable Supreme Court of India in Chinnamma v. State of Kerala reported in AIR 2004 SUPREME COURT 2816. In the said case, there were two dying declarations, recorded by the Head Constable and by the Judicial Magistrate, respectively and the contents of the same were highly contradictory as to the infliction of the injuries by the appellant. The Honourable Supreme Court of India has held that the entry in the wound certificate made in a document regularly maintained and the doctor had no reason whatsoever to make an incorrect entry, and no question was asked to the Doctor when he was in the witness-box as to the correctness of the entry and hence, due to weight should be given to the contents of the wound certificate and the Courts below ought not to have rejected the same on the basis of oral evidence given by certain witnesses.
62. P.W.8, Dr.Jeyakumar treated P.W.1 and gave Ex.P.2, wound certificate and he also treated P.W.2 and P.W.3 and gave wound certificates Ex.P.4 and P.3 respectively. P.W.9, Dr.Amutha, treated P.W.4 and P.W.5. In the cross- examination, suggestions were put to P.W.8 that the injuries on the injured persons were self-inflicted and he denied it. However, in respect of Ex.P.3, P.W.8 has deposed in the cross-examination that there is a possibility of self- inflicting injury also and so also, the injuries found in Ex.P.4.
63. It is to be remembered that the opinion of expert is not a substantive piece of evidence and it is to be weighed along with other evidence. In Pattipati Venkaiah v. State of Andhra Pradesh reported in 1986 Mad LJ (Cri) 23 :
(1985 Cri LJ 2012), wherein, it is observed that 'medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. The medical officer was not in a position to determine with absolute exactitude and precision, the actual time of causing the injuries and the time of death. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person. His primary effort is to save the life of the person brought to him and inform the police in medico-legal cases. It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.'.
64. A perusal of the testimonies of P.W.8 and P.W.9 coupled with Exs.P.2 to P.4, Exs.P.33 and P.35, coupled with the testimonies of P.W.1 to P.W.5 would reveal that they suffered injury during the course of fatal attack on D.1 to D.3. It is trite law that the testimonies of the injured witnesses vis-a-vis are inconsistent as regards part played by each of the accused, may not itself be a ground to disbelieve them. But, in the present case, right from the complaint, P.W.1 to P.W.5 had spoken uniformly about the overt acts on the part of the accused and it is to be remembered that they belong to the same community as that of the accused and they are also residing in the same village.
65. The contradictions, inconsistencies, exaggerations or embellishments pointed out by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, do not demolish the testimonies of P.W.1 to P.W.7 and the discrepancies pointed out by the learned Counsel, is only trivial and at best, it could be termed as innocuous omission which on the perusal of entire materials available on record, and it would not affect the credibility of the case projected by the prosecution.
66. It is further submission of Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, that except inquest report, all the statements of the witnesses have reached the Court only along with the charge sheet and the prosecution has failed to explain the delay. In support of the said submission, he placed reliance on the decisions in Arumugam v. State reported in (2001) M.L.J (Crl.) 801 and Muthu, etc. v. State, etc, reported in 1999-2-L.W(Crl.) 123 S.N.
67. In Muthu, etc. v. State, etc, reported in 1999-2-L.W(Crl.) 123 S.N, this Court held that inordinate delay in sending the statements of eyewitnesses to the Court, is fatal to the case of the prosecution and so also, in the judgment in Arumugam v. State reported in (2001) M.L.J (Crl.) 801, this Court held that the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure, should be sent to the Court at the earliest point of time and if there is any delay, then its evidentiary value is open to serious doubt.
68. It is remembered that the occurrence took place on 09.08.2005 and three persons were done to death. Two of them died on the spot and one of them died on the way to the Hospital. Apart from the death of three persons, five persons were also injured and were admitted in the hospital. It is not as if the statements were sent later and thereafter, the charge sheet came to be filed. Admittedly, the statements were sent along with the charge sheet which was received by the Committal Court. As already said above, Ex.P.1, complaint, was given at the earliest point of time, at 09.30 p.m, on 09.08.2005. The F.I.R was handed over to P.W.17 and it reached the Court on 10.08.2005 at 07.30 a.m. The testimonies of the prosecution witnesses especially P.W.1 to P.W.7 would reveal that they stick on to their version as found in Ex.P.1 complaint. Even assuming that there was a delay in forwarding their statements to the Court along with the charge sheet, no exaggeration, insertion or concoction took place in their statements.
69. P.W.27, the Investigating Officer was also not cross-examined on that aspect. In the opinion of the Court, forwarding of the statements of eyewitnesses and other witnesses along with the charge sheet, in the facts and circumstances of the present case, will not vitiate the credibility of the prosecution case. The delay in forwarding the statements in all the case, cannot be said to be fatal to the case of the prosecution and it would depend upon the facts and circumstances of each case.
70. The submission made by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11 that the summoning of the dog squad as evidenced through the evidence of D.W.1 and Ex.D.1, would reveal that the accused were not fixed and after much deliberation only, the accused were fixed and thereafter, Ex.P.1, complaint came to be preferred based on the which the F.I.R came to be registered and the same would shake the foundation of the prosecution case, in our opinion, lacks merit.
71. A perusal of the testimonies of eyewitnesses would reveal that no sniffer dog came to the scene of occurrence and the investigating officer has also not spoken about the same. Since the complaint came to be lodged within two hours from the time of occurrence and the F.I.R also reached the Court on the next day morning at 07.30 a.m, it cannot be said that the complaint is a false and concocted one.
72. As regards the false implication of the accused, We already found that the accused and witnesses are belonged to the same community and the residents of the same village and even according to the defence version, there was no enmity among them. The occurrence had taken place at about 08.30 p.m, on 09.08.2005 near the temple where the festival was going on and accused, deceased and prosecution witnesses were present and P.Ws.1 to 7 were eyewitnesses to gruesome murder of three persons.
73. The testimonies of P.W.2, P.W.3, P.W.4, P.W.6 and P.W.11 would also reveal that street lights and lights put up for the occasion were burning and hence, it would have been possible for the witnesses to see the occurrence. Admittedly, the witnesses and accused knew each other and therefore, it would be possible for the witnesses to identify the accused and see their overt acts. So, in our opinion, there is no possibility of false implication of the accused.
74. Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11 has submitted that the prosecution miserably failed to bring home the guilt on the part of the accused under Section 34 I.P.C and in support of his submission, he placed reliance upon the judgment of the Honourable Supreme Court of India in Parichhat v. State of M.P reported in AIR 1972 SUPREME COURT 535, wherein it has been held that 'in absence of any evidence of a prior meeting of minds and any prearranged plan or of participation of accused persons in the fight in question, they cannot be convicted with the aid of Section 34. Prosecution must prove that the criminal act has been done in concert pursuant to the pre- arranged plan. Mere proof that some accused persons were with the main accused who inflicted fatal injury on the deceased at the time of cutting of crops on the field will not attract the applicability of Section 34.'. The learned Counsel further submitted that in view of the fact that the conspiracy charge against the accused was not held to be proved and so also, the commission of offences under Sections 147 and 148 I.P.C, the trial Court has committed a grave error in convicting A.2, A.6 to A.8 under Section 302 I.P.C read with Section 34 I.P.C and so also, A.3 to A.5 and A.11 for the same offence.
75. In Suresh v. State of U.P reported in (2001) 3 SCC 673 : 2001 SCC (Cri) 601, the Honourable Supreme Court has considered the applicability of Section 34 I.P.C and held as follows:
"23.Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.
38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of the occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case."
76. In Lallan Rai v. State of Bihar reported in (2003) 1 SCC 268 : 2003 SCC (Cri) 301, it has been held as follows:
"20. A plain look at the statute reveals that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It is trite to record that such consensus can be developed at the spot. The observations above obtain support from the decision of this Court in Ramaswami Ayyangar v. State of T.N {(1976) 3 SCC 779 : 1976 SCC (Cri) 518}.
21. In a similar vein the Privy Council in Barendra Kumar Ghosh v. King Emperor {(1924-25) 52 IA 40 : AIR 1925 PC 1 : 26 Cri LJ 431} stated the true purport of Section 34 as below:
'The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, "act" includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 34, when any offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait".
22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused - though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
77. The principles laid down in those decisions are to the effect that the requirement of Section 34 I.P.C is sharing the common intention upon being present at the place of occurrence and it depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor.
78. It is to be stated that Section 34 has no requirement that all accused must come together and it is the common intention which is material. The fact that A.1, A.2, A.3, A.4, A.5, A.6, A.7, A.8 and A.11 came to attend the temple festival armed with weapons and at the instigation of A.2, the other accused namely A.3, A.4 and A.5 inflicted the fatal injuries on Nainar Konar (D.1) and A.6, A.7, A.8 and A.11 inflicted the fatal injuries on Periyasamy (D.2) and A.6, A.7, A.8 inflicted fatal injuries on Swaminathan (D.3) and also causing injuries upon P.W.1 to P.W.5, would reveal that they shared the common intention to commit the offence.
79. It is further submitted by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, that according to the prosecution version, P.W.3 came on a cycle and after the occurrence, P.W.1 and P.W.3 went on a cycle to the Police Station and lodged Ex.P.1, complaint and the non-recovery of cycle of P.W.3, is fatal to the case of the prosecution. It is further submission of Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, that in the scene of occurrence, vessels and prasadhs offered to the deities were scattered and the same have not been recovered and therefore, it is highly doubtful whether the occurrence took place in the place of occurrence as projected by the prosecution. The said submissions made by Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, has no force. Even assuming that non-recovery of cycle, prasadhs and vessels amounts to lapses and the same would not render the prosecution case in brittle that there are only minor discrepancies. It is also the settled position of law that deficiencies in investigation, cannot be a ground to discord the prosecution version. As already discussed in the earlier paragraphs, the testimonies of P.W.1 to P.W.7 are authentic, credible and cogent. As per the post-mortem reports of D.1 to D.3, they died of homicidal violence. Most of the accused had surrendered before the Court and after proper applications, they were taken into custody. As per the recovery made under Section 27 of the Indian Evidence Act, the weapons were also recovered and sent for chemical analysis and most of the weapons were found to be blood stained.
80. On a careful analysis and perusal of testimonies of P.W.1 to P.W.5 - injured witnesses, We found that they are trust worthy and believable and have great evidentiary value. There are no compelling reasons exist to discord their testimonies. Even for the sake of arguments, that the testimonies of P.W.1 to P.W.5 cannot be relied upon, the testimonies of P.W.6 and P.W.7 who were not injured, also fully support the version of the prosecution, since they specifically had spoken about the overt acts on the part of each of the accused with certainty and no reasons exist to disbelieve their version. The injuries found on the bodies of the deceased and P.W.1 to P.W.5 also tallied with the medical evidence.
81. Mr.Ravi, learned Counsel for A.6 to A.8 apart from adopting the arguments of Mr.V.Kathirvelu, learned Counsel for A.1, A.3 to A.5, A.9 and A.11, has submitted that after the acquittal of some of the prosecution witnesses in the year 2000, there was no dispute and therefore, the motive attributed by the prosecution is not at all proved. Since, the incident was over within ten minutes, it would not have been possible for P.W.1 to P.W.7 to speak about the occurrence with pinpoint accuracy and therefore, their version ought not to have believed at all.
82. In Crl.A.(MD)No.393 of 2007, A.10 is one of the appellants and according to the prosecution, he cut P.W.5 with aruval and P.W.26, Doctor, had examined him. In Ex.P.32, accident register, it has been stated by P.W.5 that more than eight persons attacked him and therefore, there is a contradiction in his version. The accident register speaks about the only one injury where in the injuries sustained by P.W.2, injury No.2 is a grievous. As regards the recoveries concerned, P.W.24, the Village Administrative Officer was the witness for all the arrest and recoveries and he is only a stock witness and his evidence cannot be believed.
83. P.W.7, who is an independent witness has not spoken anything about A.10 and therefore, the conviction of A.10 under Section 326 I.P.C is not proper. However, a perusal of wound certificate would reveal that injury No.1 is an external injury and in respect of the corresponding internal injury, P.W.5 suffered a fracture which was a grievous injury.
84. P.W.1 to P.W.6 had spoken about the overt act on the part of A.10. For the reasons already recorded above, We have no reason to disbelieve their testimonies.
85. It is further submitted by Mr.P.Jeyapaul, learned Counsel for A.10, that the questions under Section 313 Cr.P.C, were prepared for all the accused and the questions which are not relevant for A.10 had also been put to him which resulted in serious prejudice in answering the incriminating materials made as against A.10.
86. Mr.P.Jeyapaul, learned Counsel for A.10, has placed reliance on the decision in Sevi v. State of Tamil Nadu reported in AIR 1981 SUPREME COURT 1230, which We have considered in the earlier paragraphs.
87. As regards the submission of the learned Counsel for A.10 that same questions were put to all the accused, he placed reliance on the decision in State of Madhya Pradesh v. Mukesh and others reported in (2007) 2 MLJ (Crl) 1068 (SC), wherein the Honourable Supreme Court held that putting same questions to all accused and recording similar answers do not subserve requirements of Section 313 of Code of Criminal Procedure. But, it is to be remembered that it cannot be the sole ground to acquit the accused.
88. The statement of A.10 under Section 313 Cr.P.C would reveal that he understood the questions and answered the same. A.10 must show that failure of justice was occasioned due to adoption of said procedure by the trial Court; On the other hand, from the materials available on record, We find A.10 has not been put to any prejudice.
89. It is also submitted by Mr.P.Jeyapaul, that Ex.P.1, complaint is an authentic one and earlier complaint has been suppressed and in that event, the foundation of the prosecution case falls to the ground and the benefit of the same should inure in favour of the accused. As already discussed in the earlier paragraphs, We found that Ex.P.1 - complaint was came to be lodged within two hours from the time of occurrence and it reached the Court on the next day morning at 07.30 a.m. We also found that the testimonies of P.W.1 to P.W.7 especially that of P.W.1 was in consensus with Ex.P.1 and each of the witnesses had spoken the overt act on the part of all the accused in clear terms. From the materials available on record, We found that apart from the information, there was no earlier complaint apart from Ex.P.1.
90. As regards, A.5, Mr.V.Kathirvelu, learned Counsel has submitted that he was not mentally sound as he suffered from Progenic Meningitis at an early age and D.W.3 has also given a certificate to that effect. Hence, it would not have been possible for A.5 to participate in the alleged commission of the offence. D.W.3 is not a Psychiatrist and the certificate given by him in the opinion of this Court lacks authenticity and his testimony is unacceptable. We also found from the testimonies of P.W.1 to P.W.7 that A.5 was attributed with fatal overt acts with regard to the murder of Nainar Konar (D.1). A.5 surrendered before the Court of Judicial Magistrate, Aruppukkottai on 18.08.2005 and when he was again produced before the learned Judicial Magistrate, Srivaikuntam, there was no sufficient time for the Investigating Officer to obtain his police custody. Since the overt act on the part of A.5 has spoken clearly by the eyewitnesses which in our opinion are cogent, authentic and reliable, We cannot hold A.5 is not guilty of the offence.
91. Even assuming that there are deficiencies in the investigation, it cannot be a ground to discord the prosecution case in entirety. The discrepancies/ infirmities/lapses/omissions pointed out by the learned Counsel for the appellants, in our opinion, are only minor in nature and in any way, do not dilute the credibility of the acceptable evidence of P.W.1 to P.W.7. Assuming that there was defective investigation, that by itself may not lead to a conclusion that the accused are innocent and it would depend upon the facts and circumstances of each case.
92. We also found that considering the nature of injuries noted by the Doctors who conducted the post-mortem on the dead bodies of D.1 to D.3 and the manner of assault and the fact that the accused were armed with lethal weapons had proved beyond doubt that they shared a common intention to finish off the deceased and in that process, they also caused injuries to P.W.1 to P.W.5.
93. Therefore, in our opinion, the trial Court was right in arriving at a finding that the accused are guilty of the offences and rightly convicted them for the same. We find no infirmities in the impugned judgment passed by the trial Court.
94. In fine, all the three Criminal Appeals are dismissed confirming conviction and sentence passed in the judgment dated 27.06.2007 in S.C.No.7 of 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.I, Tuticorin.
95. It is submitted by the learned Counsel for A.1, A.2, A.6 to A.8 that A.1 was convicted under Section 324 I.P.C on two counts and awarded rigorous imprisonment for two years for each count and a fine of Rs.2,500/- with default sentence and the sentence of imprisonment was ordered to run consecutively. In respect of A.2, A.6 to A.8, they were convicted under Section 302 read with Section 34 I.P.C for two counts and were sentenced to undergo rigorous imprisonment for life on two counts and a fine of Rs.5,000/- with default sentence and the sentence of life imprisonment awarded on two counts was ordered to run consecutively. The judgment of the trial Court in ordering the above said accused to undergo rigorous imprisonment for life consecutively, may be modified to that one of concurrently.
96. It is now conclusively settled by a catena of decisions that the punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life and the latest decision is C.A.Pious vs. State of Kerala, reported in (2007) 8 SCC 312.
97. In view of the said decisions, it is not necessary to order the accused to undergo the sentence of imprisonment consecutively. Insofar as A.2, A.6 to A.8 are concerned, the judgment of the trial Court in ordering them to undergo rigorous imprisonment for life consecutively is modified and instead, they are ordered to undergo rigorous imprisonment for life concurrently. Insofar as A.1 is concerned, he was convicted under Section 324 I.P.C on two counts and was sentenced to undergo rigorous imprisonment for two years consecutively. A.1 caused injury on P.W.3 by using the handle of the aruval and as per the opinion of the Doctor, the injuries were simple in nature. In view of the same, the sentence of imprisonment imposed on A.1 is ordered to run concurrently.
98. In the result, all the appeals are dismissed subject to the above modifications. It is represented that A.1, A.5, A.9 and A.10 are on bail and in view of the dismissal of these appeals, the bail bonds are terminated. The Inspector of Police, Kurumboor Police Station, is directed to secure the custody of the said accused and produce them before the Court of Judicial Magistrate, Srivaikuntam for the purpose of undergoing the remaining part of their sentence.
99. For compliance, call these matters after three weeks.
rsb To
1.The Additional Sessions Judge, Fast Track Court No.I, Tuticorin.
2.The Superintendent of Police, Tuticorin District.
3.The Inspector of Police, Kurumboor, Tuticorin District.
4.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.