Madras High Court
Sappani @ Murugesan vs The State Rep.By on 29 April, 2022
Author: R.Subramanian
Bench: R.Subramanian, N.Sathish Kumar
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.04.2022
(Reserved on 25.04.2022)
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Criminal Appeal(MD)Nos.355 and 352 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
Crl.A(MD)No.355 of 2020:-
Sappani @ Murugesan ... Appellant/A1
vs.
The State Rep.by
The Inspector of Police,
Abiramam Police Station,
Abiramam,
Ramanathapuram District.
(Crime No.54 of 2006) ... Respondent
Appeal filed under Section 374 of the Criminal Procedure Code, to
set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.27 of 2007 dated 23.09.2020.
For Appellant : Mr.S.Ashokkumar, Senior Counsel for
Mr.M.Jegadeesh Pandian
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
1/26
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
Crl.A(MD)No.352 of 2020:-
Sappani @ Murugesan ... Appellant/A1
vs.
The State Rep.by
The Inspector of Police,
Abiramam Police Station,
Abiramam,
Ramanathapuram District.
(Crime No.53 of 2006) ... Respondent
Appeal filed under Section 374 of the Criminal Procedure Code, to
set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.28 of 2007 dated 23.09.2020.
For Appellant : Mr.S.Ashokkumar, Senior Counsel for
Mr.M.Jegadeesh Pandian
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
Crl.A(MD)No.27 of 2021:-
Muthuramalingam ... Appellant/A6
vs.
The State Rep.by
The Inspector of Police,
Abiramam Police Station,
Kamuthi Taluk
Ramanathapuram District.
(Crime No.54 of 2006) ... Respondent
https://www.mhc.tn.gov.in/judis
2/26
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
Appeal filed under Section 374(2) of the Criminal Procedure Code,
to set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.27 of 2007 dated 23.09.2020.
For Appellant : Mr.J.William Christopher
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
Crl.A(MD)No.29 of 2021:-
Muthuramalingam ... Appellant/A6
vs.
The State Rep.by
The Inspector of Police,
Abiramam Police Station,
Kamuthi Taluk
Ramanathapuram District.
(Crime No.53 of 2006) ... Respondent
Appeal filed under Section 374(2) of the Criminal Procedure Code,
to set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.28 of 2007 dated 23.09.2020.
For Appellant : Mr.J.William Christopher
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
3/26
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
Crl.A(MD)No.25 of 2022:-
Moorthy @ Thiru Moorthy ... Appellant/A5
vs.
The State Rep.by
The Inspector of Police,
Abiramam Police Station,
Kamuthi Taluk
Ramanathapuram District.
(Crime No.54 of 2006) ... Respondent
Appeal filed under Section 374 of the Criminal Procedure Code, to
set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.27 of 2007 dated 23.09.2020.
For Appellant : Mr.J.Vijayaraja
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
Crl.A(MD)No.153 of 2022:-
Ravi @ Ravi Shanmugam ... Appellant/A4
vs.
State, rep.by
The Inspector of Police,
Abiramam Police Station,
Ramanathapuram District.
(Crime No.54 of 2006) ... Respondent
Appeal filed under Section 374 of the Criminal Procedure Code, to
https://www.mhc.tn.gov.in/judis
4/26
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.27 of 2007 dated 23.09.2020.
For Appellant : Mr.M.Jegadeesh Pandian
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
Crl.A(MD)No.257 of 2022:-
Gnanavelpandian ... Appellant/A3
vs.
State of Tamilnadu represented by the
Inspector of Police,
Abiramam Police Station,
Ramanathapuram District.
(Crime No.54 of 2006) ... Respondent
Appeal filed under Section 374(2) of the Criminal Procedure Code,
to set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.27 of 2007 dated 23.09.2020.
For Appellant : Mr.M.Karunanithi, for
Mr.M.Karthikeya Venkatachalapathy
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
Crl.A(MD)No.258 of 2022:-
https://www.mhc.tn.gov.in/judis
5/26
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
Gnanavelpandian ... Appellant/A3
vs.
State of Tamilnadu represented by the
Inspector of Police,
Abiramam Police Station,
Ramanathapuram District.
(Crime No.53 of 2006) ... Respondent
Appeal filed under Section 374(2) of the Criminal Procedure Code,
to set aside the conviction and sentence as imposed on him by the
Additional District Sessions Court, Paramakudi, Ramanathapuram
District, made in Sessions Case No.28 of 2007 dated 23.09.2020.
For Appellant : Mr.M.Karunanithi, for
Mr.M.Karthikeya Venkatachalapathy
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
COMMON JUDGMENT
R.SUBRAMANIAN, J.
AND N.SATHISH KUMAR, J.
All these appeals are filed by the accused persons who have been convicted for offences under Sections 302 of IPC read with Sections https://www.mhc.tn.gov.in/judis 6/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 34, 396 and 120(b) of IPC. There were 8 accused involved in S.C.No.27 of 2007 in which, the charge against the accused persons was that they murdered one Subramanian, Sub Inspector of Police, on the fateful day. A2 and A8 died pending trial and A7 was acquitted of all the charges. The other accused persons namely, A1 and A3 to A6 have come up with the appeals. There was another incident of attack on a Head Constable Mr.Bose that has preceded the attack on the Sub Inspector of Police on the same day, for which, a case was registered in Crime No.53/2006 which was later converted to Sessions Case No.28 of 2007. The accused therein were charged for the offences under Sections 307, 392 read with 395 and 397 of IPC. The accused in S.C.No.28/2007 are the same persons as in S.C.No.27 of 2007. Here also, A2 and A8 died pending trial and A7 was acquitted of all the charges. All other accused were punished with imprisonment for a period of 7 years. While A1, A3 and A6 have come up with the appeals, A4 and A5 have undergone the sentence.
2. In S.C.No.27/2007, a complaint was lodged by PW1 Mr.Bose who is the injured Head Constable in the other case namely, S.C.No. 28/2007. According to him, while he was returning to the police station by around 07.00 p.m., on 28.04.2006, he was waylaid by the accused https://www.mhc.tn.gov.in/judis 7/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 persons near Nanthicheri bus stop and was attacked by them. They tied him up with a lungi and took his motorcycle away. They also took away some of his valuables. After sometime, he managed to escape and walked up to the village. Upon reaching the village, he had informed one Neelamegam-PW22 and Parameswaran-PW16. They, in turn, informed PW2-Sub Inspector of Police-Malar of the attack. She assembled Constables and went to Nanthicheri bus stop, there, they found the Sub Inspector Subramanian lying with injuries. Both the injured persons were taken in an Auto to the Government Hospital, Kamuthi and from there, Bose was shifted to Meenakshi Mission Hospital, Madurai. The Sub Inspector Subramanian was taken to Government Rajaji Hospital, Madurai, where he was declared dead on arrival. Therefore, the accused persons were charged under Section 302 read with Sections 34, 396 and 120(b) of IPC. Upon receipt of a complaint, an FIR was registered. Though the FIR was originally registered under Sections 147, 148, 341, 342 read with Section 379 of IPC, upon the death of the Sub Inspector of Police Subramanian, the same was altered to Section 302 IPC. Upon registration of the FIR, the same was dispatched to the Court and the Circle Inspector of Parthibanur visited the scene of occurrence at 01.30 a.m., on 29.04.2006 and prepared the Observation Mahazar in the presence of the witnesses. He had also enquired the deceased https://www.mhc.tn.gov.in/judis 8/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 Subramanian at 22.10 hours on 28.04.2006 and had recorded his statement. The same has been marked as Ex.P45. He had also spoken about informing the higher-ups and summoning the finger print expert. Since the Head Constable Mr.Bose was also injured on the same day at almost the same time, another case was registered in Crime No.53/2006 and an FIR was lodged charging the accused persons under Sections 147, 148, 341, 342 and 379 IPC. The said case was also taken up for investigation. Subsequently, the accused persons were arrested and it is claimed that they had also given extra judicial confessions admitting guilt. After investigation and after collecting the evidence, including the evidence of the finger print expert and other material objects, some of which were seized upon the confessions of the accused, a final report was laid in both the cases charging the accused as aforesaid.
3. In its attempt to bring home the guilt in S.C.No.27/2007, the prosecution had examined PWs 1 to 56 and Exs.P1 to P70 were marked. Material Objects Mos.1 to MO28 were exhibited. In S.C.No.28/2007, PWs 1 to 43 were examined and Exs.P1 to P37 were marked. MOs.1 to 30 were exhibited. The accused persons did not let in any evidence.
4. The learned Sessions Judge upon a consideration of the https://www.mhc.tn.gov.in/judis 9/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 evidence that was let in, found A1 and A3 to A6 in S.C.No.27/2007 guilty of the offences under Section 302 and 396 IPC. A sentence of life imprisonment was imposed on them, apart from a direction to pay a fine of Rs.2,000/- each, failing which, to undergo simple imprisonment for a period of one year. In S.C.No.28 of 2007, the accused persons namely, A1 and A3 to A6 were convicted to undergo rigorous imprisonment for a period of 7 years and a fine of Rs.1,000/- each, was imposed, in default, to undergo simple imprisonment for a period of six months. Aggrieved, the accused persons have come up with these appeals as stated supra.
5. We have heard Mr.S.Ashokkumar, learned Senior Counsel appearing for Mr.M.Jegadeesh Pandian, learned counsel for the appellant in Crl.A(MD)Nos.352 and 355 of 2020, Mr.M.Karunanithi, for Mr.M.Karthikeya Venkatachalapathy, learned counsel for the appellant in Crl.A(MD)Nos.257 and 258 of 2022, Mr.J.William Christopher, learned counsel appearing for the appellant in Crl.A(MD)Nos.27 and 29 of 2021, Mr.M.Jegadeesh Pandian, learned counsel appearing for the appellant in Crl.A(MD)No.153 of 2022, Mr.J.Vijayaraja, learned counsel appearing for the appellant in Crl.A(MD)No.25 of 2022 and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for the prosecution in all the appeals.
https://www.mhc.tn.gov.in/judis 10/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022
6. The learned counsel for the appellants would contend that the Session Court erred in concluding that the appellants were guilty of the offences charged against them. They would point out to various discrepancies in the evidence available. The counsel for the appellants would submit that the accident register which is the first document shows that the deceased as well as the injured were attacked by unknown persons. The accident register in S.C.No.27/2007 has been marked as Ex.P30. The accident register in S.C.No.28 of 2021 has been marked as Exs.P5 and P6. Drawing our attention to the same, particularly, the recording therein, which states that alleged to have been assaulted with Aruval and Valkambu by four unknown persons.
7. The learned counsel appearing for the appellants would contend that this first statement has subsequently been contradicted by the deceased and the injured victim. The claim made is that while being transferred from Kamuthi Government General Hospital to Madurai Government Rajaji Hospital, the Sub Inspector of Police/Subramanian had told the police officers who had accompanied them in the Ambulance that he has wrongly implicated Moorthy, but it was the accused persons https://www.mhc.tn.gov.in/judis 11/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 who had attacked him. It is claimed that the said statement should be treated as a dying declaration. When the said Subramanian was taken to Madurai Rajaji Government General Hospital, he was declared dead on arrival, while the Head Constable Mr.Bose was taken to Meenakshi Mission Hospital and was treated there. The dying declaration of the deceased Sub Inspector of Police Subramanian has been marked as Ex.P22 in S.C.No.27/2007. In the dying declaration recorded by the District Munsif cum Judicial Magistrate, Kamuthi, at around 09.50 p.m., the Sub Inspector of Police Subramanian, has not identified the accused, but has stated that 6 or 7 unidentified persons attacked him with billhooks and sickles at Nanthicheri Vilakku. He has not named those persons.
8. Relying upon the said dying declaration given before the Judicial Magistrate, the learned counsel appearing for the appellants would vehemently contend that the accused persons have been subsequently falsely implicated in the crime. They would also invite our attention to the fact that the prosecution had even gone to the extent of recording 164 statements of police officials which would show that the prosecution had made a all-out attempt to fix the accused persons. Terming the evidence as incoherent and unreliable apart from being https://www.mhc.tn.gov.in/judis 12/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 artificial, the learned counsel would submit that the prosecution has miserably failed to establish the guilt.
9. It is the further contention of the learned counsel for the appellants that the finger print reports cannot be relied upon, as the relevant finger print report has not been marked in the respective sessions cases. It is also contended that the call records of the telephones which have been marked as Exs.P61 to P63 in S.C.No. 27/2007 and Exs.P35 and P36 in S.C.No.28/2007 have also been jumbled up and they have been marked in different cases. The complaint in S.C.No.28/2007 has not been made subject matter of the evidence in S.C.No.27/2007. These irregularities in the recording of evidence are sought to be taken advantage by the learned counsel for the appellants to contend that the prosecution had failed in its attempt to prove the guilt. Therefore, the accused persons are entitled to benefit of doubt.
10. The learned counsel for the appellants would also rely upon a judgment of the Hon'ble Supreme Court in Rajinder Singh alias Kada vs. State of Punjab reported in 1993 SCC (Cri) 135, to contend that when there are several dying declarations which are in conflict with each other, the evidentiary value of the dying declaration becomes very weak https://www.mhc.tn.gov.in/judis 13/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 and the same cannot form a basis for a conviction. Drawing our attention to the judgment of the Supreme Court in Hari Om alias Hero vs. State of Uttar Pradesh reported in 2021 (4) SCC 345, the learned counsel for the accused would contend that when a conviction is based on circumstantial evidence, all the links have to be proved and even if there is a snap of one link, the conviction cannot be justified. According to learned counsel for the appellants, the case of the prosecution is riddled with inconsistencies and the claim of the prosecution that the deceased Sub Inspector Subramanian had told the police officers accompanying him in the Ambulance that these 5 accused persons had attacked him, is highly artificial and the same cannot be accepted. PW55, the Circle Inspector had recorded the statement of Subramanian at 22.10 hours on the date of occurrence namely, 28.04.2006. The said statement was marked as Ex.P45. Even in that statement, Subramanian had stated that it was one Moorthi who was doing vegetable business in Muthukulathur, had arranged the attack due to previous property dispute. Referring to the dying declaration given before the Judicial Magistrate and the statement before the Circle Inspector marked as Ex.P45, the learned counsel for the accused would contend that the prosecution has miserably failed to prove the complicity of the accused persons in the offences.
https://www.mhc.tn.gov.in/judis 14/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022
11. Contending contra, Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor would submit that of course, there are certain procedural infirmities in the trial. He would concede that the initial mistake made by the prosecution is registration of two FIRs for occurrences which have happened in a very close proximity of time. He would submit that the prosecution could have done well to register one single FIR and investigated the crime. The registration of two FIRs and two Sessions Cases had lead to documents being interchanged and the trial being affected. He would further submit that the prosecution should be given an opportunity to rectify the defects by exercising the power under Section 386 Cr.P.C., permitting the prosecution to let in additional evidence. He would also rely upon a judgment of this Court in K.Thoosimuthu @ Saravanan and others vs. State of Tamil Nadu reported in (2019) 4 MLJ (Crl) 589, wherein, a Division Bench of this Court had considered the mandate under section 223(d) of the Code of Criminal Procedure, by not conducting a joint trial. He would also submit that non compliance with the mandate of Section 223(d) had resulted in several irregularities like, the documents getting interchanged and vital evidence not being produced in the murder case i.e., S.C.No.27/2007. https://www.mhc.tn.gov.in/judis 15/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 The learned Additional Public Prosecutor would, however, submit that even on merits, there is unimpeachable evidence to support the conclusions of the trial Court. He would point out that the finger prints that were taken from the motorcycles belonging to the deceased and the injured person tallied with the finger prints of atleast two of the accused persons namely, Sappani @ Murugesan and Ravi @ Ravi Shanmugam. He would also draw our attention to the recovery of material objects based on the confessions of the accused persons.
12. Of course, the learned Additional Public Prosecutor would attempt to rely upon the telephone records to show that the accused persons had, in fact, confessed of the crime to another police officer namely, Muthupandi, who was examined as PW29. We have our own doubts regarding the admissibility of such evidence. We do not propose to express any opinion on the said claim as of now. Recently, in Nasib Singh vs. State of Punjab and another reported in (2022) 2 SCC 89, the Hon'ble Supreme Court had dealt with the scope of Section 223(a) to (g) and proviso to Section 223 and treated Sections 219 to 221 as exceptions to the rule enumerated under Section 218 of Cr.P.C. Though separate trials is a norm, the provisions of Sections 219 to 221 and Section 223 serve as an exception to the norm. The Hon'ble https://www.mhc.tn.gov.in/judis 16/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 Supreme Court while examining the scope of conduct of joint trial in a criminal case, had held that while applying the principles enunciated in Sections 218 to 223, the Court must apply a two pronged test namely,
(i) whether conducting a joint/separate trial will prejudice the defence of the accused, and/or (ii) whether conducting a joint/separate trial would cause judicial delay. The Hon'ble Supreme Court had formulated the following principles with reference to conduct of joint trial and also separate trials:-
''51. From the decisions of this Court on joint trial and separate trials, the following principles can be formulated:
51.1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 - 221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied.
51.2. While applying the principles enunciated in Sections 218 - 223 on conducting joint and separate trials, the trial court https://www.mhc.tn.gov.in/judis 17/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
51.3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix.
51.4. Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice.
51.5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.'' https://www.mhc.tn.gov.in/judis 18/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022
13. In the present cases, there are two crimes committed at around the same time by the same set of persons. Section 223(d) empowers or provides for conduct of joint trials in case of persons accused of different offences committed in the course of the same transaction. In the cases on hand, the accused persons have been charged with offences under Section 302 in respect of SC.No.27/2007 and Section 307 read with of course the other provisions of IPC in S.C.No.28/2007. The same persons are accused of different offences committed in the course of the same transaction. Therefore, the Sessions Court could have done well to atleast conduct a joint trial for the two sessions cases which would have resulted in the mishap that has occurred in marking of documents and non marking of documents in the cases on hand.
14. In K.Thoosimuthu @ Saravanan and others vs. State of Tamil Nadu reported in (2019) 4 MLJ (Crl) 589, a Division Bench of this Court has pointed out that the failure on the part of the Sessions Court to conduct a joint trial has resulted in serious illegalities at the trial. There, it was a case of a double murder which took place within a https://www.mhc.tn.gov.in/judis 19/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 very short span of time. The Division Bench after examining the facts of the two cases, found that a joint trial should have been conducted.
15. As pointed out by the Division Bench, most of the evidence is common in both the sessions cases and the witnesses who have been examined are also the same, excepting the fact that the attack resulted in the death of the Sub Inspector Subramanian and fortunately, the Head Constable Mr.Bose escaped with injuries. This resulted in the accused being charged for different offences. We have no doubt in our mind that both the offences are part of the same transaction. Of course, the accused persons would suffer a certain amount of prejudice, if we are to order re-trial, but a duty to ensure fair trial is cast upon this Court also.
Fair trial means a fair trial not only to the accused persons, but also to the victims and the society at large. The accused persons have been charged with very grave offences and the little prejudice that would be caused to them cannot be a ground to avoid a joint trial.
16. After reviewing the authorities with reference to joint trial, the Division Bench of this Court in K.Thoosimuthu's case, referred to a decision of the Hon'ble Supreme Court in Mohd. Hussain vs. State (NCT of Delhi), reported in AIR 2012 SC 3860, wherein, the Apex https://www.mhc.tn.gov.in/judis 20/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 Court has observed as follows:-
''The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.'' https://www.mhc.tn.gov.in/judis 21/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022
17. The Division Bench went on to observe as follows:-
''35. The appellate Court has been conferred with very wide powers to order for a retrial in a criminal case. It is true that the same can be done only in exceptional cases. This is one such exceptional case, where this Court has to necessarily set aside both the judgments and order for retrial. The trial that was conducted before the Court below is vitiated by serious illegalities on account of misconception of the nature of the proceedings. The appellate Court cannot merely express its helplessness and give the benefit to the accused persons. The power has been given to the appellate Court only to exercise it in appropriate cases. This Court is of the considered view that this is a case, where the proceedings before the Court below is not a mere irregularity but suffers from serious illegality.''
18. In the cases on hand, the conduct of separate trials had not only resulted in documents being interchanged, but also vital documents have not been produced. The complaint in S.C.No.28/2007 is the foundation for the charge in S.C.No.27/2007. Unfortunately, the said complaint has not been produced. The finger print reports have been interchanged. These procedural irregularities, in our opinion, should not https://www.mhc.tn.gov.in/judis 22/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 result in an undue advantage to the accused. If it results in undue advantage to the accused, the trial cannot be said to be a fair trial. We are, therefore, of the considered opinion that this is a fit case where the trial Court must be directed to conduct a joint trial of the two sessions cases which would by and large cure technical defects in the trial. We are conscious of the fact that the trial will be delayed, but we have no other choice, but to direct a joint trial if we are to ensure a fair trial. The prejudice caused to the accused could be minimized or mitigated by directing the trial Court to enlarge them on bail. Since we are remitting the matter for a joint trial, we are not expressing any opinion on the merits of the matter. Whatever little discussion we have made on the evidence is only to show as to how the failure on the part of the trial Court in not conducting a joint trial, had affected the trial of the two sessions cases. We, therefore, have no hesitation in setting aside the judgments of the trial Court in both theses cases.
19. Accordingly, all the criminal appeals will stand allowed and the judgments in S.C.Nos.27 and 28 of 2007 on the file of the Additional District Sessions Court, Paramakudi, Ramanathapuram District, are set aside and both the sessions cases will stand remitted to the trial Court for a joint trial with a direction to the trial Court to conduct a joint trial of https://www.mhc.tn.gov.in/judis 23/26 Crl.A(MD)Nos.352 and 355 of 2020, 27 and 29 of 2021, 25, 153, 257 and 258 of 2022 both the cases. Considering the fact that the occurrence took place in the year 2006 and the trial was concluded in the year 2020, we direct the trial Court to complete the trial within a period of three months from the date of receipt of the records from this Court. It is made clear that the accused persons shall co-operate with the trial Court in concluding the trial within the period fixed above. The accused persons are at liberty to move the trial Court seeking bail and the trial Court will consider the bail applications sympathetically in the light of the fact that a re-trial has been directed by this Court. If the trial Court finds that the appellants adopt dilatory tactics, it will be open to the trial Court to ensure their presence by recalling the bail orders and remanding them to custody as pointed out by the Hon'ble Supreme Court in State of Uttar Pradesh vs. Shambhu Nath Singh reported in AIR 2001 SC 1403.
20. The Criminal Appeals are disposed of as above.
(R.S.M., J.) (N.S.K., J.)
29.04.2022
Index : Yes / No
bala
To
https://www.mhc.tn.gov.in/judis
24/26
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
1.The Inspector of Police,
Abiramam Police Station,
Abiramam,
Ramanathapuram District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
25/26
Crl.A(MD)Nos.352 and 355 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
bala
PRE-DELIVERY COMMON JUDGMENT MADE IN
CRL.A(MD)Nos.355 and 352 of 2020, 27 and
29 of 2021, 25, 153, 257 and 258 of 2022
DATED : 29.04.2022
https://www.mhc.tn.gov.in/judis
26/26