Madras High Court
Muthuramalingam vs State By Inspector Of Police on 14 December, 2007
Bench: Prabha Sridevan, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 14/12/2007 Coram The Honourable Mrs.Justice PRABHA SRIDEVAN and The Honourable Mr.Justice S.NAGAMUTHU Crl.A.(MD).No.313 of 2006, Crl.A.(MD).Nos.323, 328, 406, 451 and 539 of 2006 Crl.A.No.313 of 2006 Muthuramalingam ... Appellant vs State by Inspector of Police Kamuthi Circle Kovilangulam Police Station Ramanathapuram ... Respondent Crl.A.No.323 of 2006 1. Muthuramalingam 2. Karnan alias Karunamurthy 3. Boominathan 4. Kalimuthu 5. Krishnan alias Balakrishnan 6. Malayandi 7. Dhakshinamurthy ... Appellants vs State rep. by Inspector of Police Kovilangulam Police Station Ramanathapuram ... Respondent Crl.A.No.328 of 2006 1.Muthumani thevar 2. Ramamoorthy alias Velu thevar 3. Gopal 4. Shanmugavel thevar 5. Kumaraiah thevar 6. Palanivelu thevar 7. Senthooran ... Appellants vs State by Inspector of Police Kovilangulam Police Station Ramanathapuram ... Respondent Crl.A.No.406 of 2006 Boovalingam ... Appellant vs State rep. by Inspector of Police Kovilangulam Police Station Ramanathapuram ... Respondent Crl.A.No.451 of 2006 1. Boominathan alias Chinnathambi Thevar 2. Muthuramalingam ... Appellants -vs- State by Inspector of Police Kovilangulam Police Station Ramanathapuram ... Respondent Crl.A.No.539 of 2006 Jeyaraman ... Appellant vs State by Inspector of Police Kovilangulam Police Station Ramanathapuram ... Respondent Criminal Appeals against the judgment passed by the Additional Sessions Judge (Fast Track Court), Ramanathapuram in S.C.No. 10/96 dated 30.5.2006. !For Appellants ... Mr.N.Anantha Padmanabhan in C.A.No.313/06 For Appellants ... Mr.C.Muthusaravanan in C.A.No.323/06 Mr.K.Jegannathan For Appellants ... Mr.K.Chellapandian Senior Advocate in C.A.No.328/06 for Mr.S.Soundarapandian Mr.A.P.Muthupandian Ms.V.Jayarani Mr.V.Kathirvelu For Appellants ... Mr.Thirumalai Raj, Senior Advocate in C.A.No.406/06 for Mr.S.Chandrasekharan For Appellants ... Mr.Gopalakrishna Lakshmana Raju, Sr. in C.A.No.451/06 counsel for Mr.C.MeenakshiRama Prabu For Appellants ... Mr.Shanmuga Sundaram, Sr. Advocate in C.A.No.539/06 for Mr.S.Ravi. ^For Respondent ... Mr.Raja Illango in all C.As. Addl. Public Prosecutor :JUDGMENT
(The order of the Court was made by S.NAGAMUTHU,J) There were eight murders in one occurrence which includes the merciless killing of a young and innocent child aged one and half years old. 17 persons were originally arrayed as accused in the First Information Report. During the course of investigation it was found out that a total number of 21 persons indulged in the above merciless and brutal murders, of whom, one person by name Chandran died even during the investigation. Final report was filed against 20 persons. Accused No.7, Murugan alias Kotari died during trial. Thus, Accused Nos.1 to 6, 8 to 20 faced the trial in S.C.No.10/96 on the file of the Additional and District Sessions Judge (Fast Track Court), Ramanathapuram.
2. The deceased in the case were Eraniyan (D1), Thillai Natarajan (D2), who was the son of D1, Palaniammal (D3) who was the wife of P.W.1, Sethuammal (D4) who was the mother of D3, Annammal (D5) wife of P.W4, Nagarathinam (D6), wife of D1 and mother of D2, Indira Gandhi (D7), who was the wife of A8 and Rajeswari (D8) daughter of D7 and A8. For the sake of convenience the deceased shall be called as D1 to D8 respectively in this judgment.
3. The appellant in C.A.No.313 of 2006 is Accused No. 20. The appellants in C.A.No. 323 of 2006 are Accused Nos.8,9,10, 16, 17,18 and 19. The appellants in C.A.No. 328 of 2006 are Accused Nos.1 to 4, 11, 13 and 15 and the appellant in C.A.No. 406 of 2006 is Accused No.14. The appellant in C.A.No.451 of 2006 are accused Nos.5 and 6 and the appellant in C.A.No.539 of 2006 is A12. During pendency of the appeal, the sixth appellant in C.A.No.313 of 2006, Malaiyandi who is arrayed as Accused No.18 died. Therefore, the appeals in respect of the other accused are dealt with herein.
4. P.W.1 is the husband of D3, P.W.2 is the son of P.W.1, P.W.3 is the son of D1 and P.W.4 is the husband of D5 and uncle of P.W.1. The accused are also interrelated. P.Ws.1 to 4, D1 to D8 and one Krishna Thevar are the residents of Osampottal Karisalkulam village viz., O.Karisalkulam Village in Ramnad District. Deceased-7, Indira Gandhi was given in marriage to Accused No.8, Muthuramalingam three years prior to the occurrence. Accused No.8, Muthuramalingam is the son of Accused No.10, Boominathan. At the time of marriage, some jewels were presented to her by the parents. But, subsequent to the marriage, her father got the jewels from Deceased 7 and sold away the same. Enraged over the same, Accused No.8 drove Deceased-7 out of the matrimonial home. At that time, she was pregnant. She delivered a child at her parent's home. Even after that, Accused No.8 did not take her as well as the child back. Therefore, there was a village panchayat held during the month of May 1993 in a public place. The accused party as well as the prosecution party participated in the said panchayat to sort out the problem. In the said panchayat, there arose a quarrel which resulted in a free for all. In the said incident, the wife of Boominathan(A10) was done to death. With reference to the said murder, a case was registered under Section 302 IPC and other provisions against P.W.1 Ramamurthy and 11 others. From that time onwards, the prosecution party and the accused party have become two enimical groups.
5. Subsequent to the above occurrence, there arose some dispute between one Rajendran, who was the brother of P.W.1 and Accused No.5, in respect of taking water for irrigation from a local kanmai. In connection with the same, there was a rioting and a case was registered against the said Rajendran and others under Section 307 IPC and other provisions. Because of these two occurrences and the consequential criminal cases, enmity between the two groups became very strong.
6. On 9.2.1994 Rajendran was murdered near Kamuthi Panchayat Union office. The first appellant herein and others were accused in the said murder case. On 10.2.1994, on completing the autopsy on the body of Rajendran, it was handed over to P.W.1 and other family members at Kamuthi Government Hospital. P.W.1, the deceased 1 to 7 and one Krishna Thevar and few others cremated the body of the deceased Rajendran at Kamuthi itself. Thereafter, deceased 1 to 7, P.Ws.1 to 4, one Senthuran, Karuppasami and Krishna thevar were returning to O.Karisalkulam Village in a bus. The deceased No.8 who was hardly one and half years old was on the lap of the deceased No.7. At about 4.30 p.m., they all got down at Thopadaipatti bus stop, from where they had to go on walk to their village viz., O.Karisalkulam village. When they were nearing Karisalkulam branch road, all the accused suddenly emerged from nearby kanmai and bushes. They were all armed with weapons like velsticks, sickles and knives. All of them were found running towards the deceased party. The accused Chandran (since deceased) shot with gun. On seeing this, the deceased and other witnesses started to flee to escape. P.W.1 escaped and hid himself behind the nearby bush. P.W.2 was also hid in a nearby Cholam field. But the deceased 1 to 8 could not escape. A1 Muthumani stabbed D1 Eranian with velkambu on his stomach; A2, Ramamurthy attacked the D4, D5 and D6 with velstick; A3 Gopal, attacked the D4, D5 and D6 with velstick; A4 attacked the D4, D5 and D6 with velkambu; A5 attacked the D3 with aruval on his right arm; A6 attacked the D4, D5 and D6 with velstick. A7 attempted to attack P.W.3 with velstick; A8 stabbed the D7 with velstick on his left arm; A9 attacked the D1 repeatedly with aruval; A10 attacked the D4, D5 and D6 with aruval; A11 stabbed the D2 on his stomach with velstick; A12 stabbed the D3 with velstick on his stomach and chest, left thigh and other parts of the body; A13 attacked the D4, D5 and D6 with velstick; A14 attacked the D4, D5 and D6 with velstick; A15 attacked the D2 with aruval on his head; A16 attacked the D13 with aruval on his right hand; A17 attacked the D7 with aruval on his left hand; A18 attacked the D4, D5 and D6 with velstick; A19 attacked the D4, D5 and D6 with aruval and A20 attacked the D4, D5 and D6 with velsticks. D1, D3 to D8 had succumbed to injuries on the spot. The second deceased Thillai Natarajan and Krishna Thevar were struggling for life. Senthuran and Karuppasami escaped from the place of occurrence. P.Ws. 3 and 4 claimed that they also hid themselves in the nearby bushes and witnessed the entire occurrence.
7. Because of the tension in the village due to murder of Rajendran on the previous day, there was police bandobust in the O.Karisalkulam Village. P.W.12 was one such police constable engaged on the bandobust duty. P.W.13 was then driver of a police jeep. P.W.12 heard the noise due to gun shot while he was in the village. He rushed towards the place of occurrence. He found Krishna thevar and the second deceased Thillai Natarajan struggling for life and other deceased dead. He informed the police. Within a short while, P.W.13 was instructed by somebody from Kamuthi police station to rush to the Kamuthi police station with police van. Accordingly, he rushed to the Kamuthi Police station at 5.00 p.m. Then, carrying few police constables he drove the vehicle to the place of occurrence. He found P.W.12 already available at the place of occurrence. Then, P.W.12, P.W.13 and P.W.3 took the second deceased Thillai Natarajan and injured Krishna Thevar in the said police vehicle to the Government Hospital at Kamuthi.
8. At 6.30 p.m. when P.W.5 Dr.Sundaram who was then Assistant Surgeon at Government Hospital, Kamuthi was on duty, P.W.12 produced Krishna Thevar and P.W.3 produced the deceased Thillai Natarajan. P.W.5 admitted Krishna Thevar as in patient and found following injuries on his body:-
1. A cut injury on his right shoulder measuring 8 x 3 x 3 cms.
2. A cut injury on the back of right shoulder measuring 4 x 2 x 2 cms.
Ex.P2 is the accident register in respect of the Krishna Thevar (since died).
9. When P.W.5 examined the second deceased Thillai natarajan, he found no life. He declared him dead and gave intimation to Kamuthi police station. Ex.P4 is the said intimation memo. He found the following injuries on the body of the deceased Thillai natarajan.
1. Incised wound about 7 x 3 cmx (depth could not be ascertained) on the right side of the abdomen in between umbilicus and right iliac crest.
2. A cut injury 7 x 3 cms (depth could not be ascertained) on the centre of the fronto parietel region. Skull bones were found fractured.
3. A cut injury measuring 6 x 3 cms (depth could not be ascertained) on the back of 6th lumbar region.
Ex.P3 is the accident register. Then he shifted the body of the Thillai Natarajan to the mortuary.
10. P.W.1 immediately after the occurrence proceeded to Kovilankulam Police station and preferred the complaint, Ex.P1. P.W.22, who was then Sub Inspector of Police at Kovilankulam Police Station on receiving Ex.P1, registered a case in Crime No.6 of 1994 under Sections 147, 148, 324, 307, 302 IPC and under Section 25(1) of Indian Arms Act. Ex.P34 is the First Information Report. Then he forwarded Ex.P1 and P34 through P.W.15, a Police Constable to the jurisdictional Magistrate, who in turn received the same at 12.10 a.m. on 11.2.1994. The distance between the place of occurrence and the police station is around 6 kms. P.W.22 then forwarded the case diary to P.W.23, the Inspector of Police for investigation.
11. Taking up the investigation, P.W.23, proceeded to the place of occurrence at 7.00 p.m. He prepared the observation mahazar- Ex.P31 in the presence of P.W.19 and another person by name Velayutham, who was then Village Administrative Officer. He also prepared a rough sketch showing the place of occurrence which is marked as Ex.P33. Then, he conducted inquest on the body of the deceased Eranian from 8.00 p.m. and prepared a report Ex.P35 at 10.00 p.m. He recovered cigarrate pocket, match box and a cash of Rs.512/- from the body of the first deceased. M.Os.3 to 7 are the said material objects. On the same day between 10.15 p.m. and 11.00 p.m, he held inquest on the body of the deceased 4, Sethuammal and prepared the report Ex.P36; between 11.10 p.m. to 12.00 pm he conducted inquest on the body of deceased 5, Annammal and prepared the report Ex.P37; between 00.15 a.m. and 1.00 a.m, he held inquest on the body of the deceased 7, Indira Gandhi and prepared the report Ex.P38; between 1.00 am. and 1.30 a.m. he held inquest on the body of the deceased 8, Rajeswari and prepared the report Ex.P39; between 1.45 a.m. and 2.45 a.m. he held inquest on the body of the deceased 6, Nagarathinam and prepared the report Ex.P40; between 3 a.m. and 4 a.m., he held inquest on the body of the deceased 3, Palaniammal and prepared the report Ex.P41. During inquest, he examined P.Ws.1, 4, Senthuran and others. Then he proceeded to the Government Hospital at Kamuthi and held inquest on the body of the deceased Thillai Natarajan between 4.45 a.m. and 6 a.m. and prepared a report Ex.P42. During the said inquest, he examined P.W.3, Manoharan and recorded his statement. At the same time, he also recovered blood stained shirt belonging to P.W.3 Manoharan under a mahazar. M.O.8 is the said shirt. At 6.30 a.m., he recovered blood stained shirt of Krishna Thevar and the same is marked as M.O.9. P.W.23 forwarded the dead bodies of all the eight deceased for postmortem.
12. P.W.6, Dr.Rajasundaram, who was an Assistant Surgeon at Government Hospital at Paramakudi conducted autopsy on the body of the deceased Nagarathinam at 8.15 a.m. on 11.2.1994 and found the following injuries:
(i) An incised wound of about 4 cm x 2 cm x 4 cm over the right chest just lateral to the sterunum
(ii) An incised wound of about 2 cm x 1 cm x 1 cm over the right of cut abdomen wall just below the ribs.
(iii) An incised wound of about 4 cm x 2 cm x 2 cm over the left hypochandrum just below the ribs.
(iv) An incised wound of about 10 cm x 4 cm x 4 cm over the lateral (nc) of left fore arm including the wast visibel borax,
(v) An incised wound of about 10 cm x 4 cm x (nc) over the left side of back just below the lower (nc) of left scapula
(vi) An incised would of about 4 cm x 4 cm x 2 cm over the left side of back just below the previous wound.
(vii) An incised wound of about 6 cm x 4 cm x 10 cm over the centre of the back just above the pelvis bone.
Ex. P5 is the postmortem certificate. The Doctor opined that the death was due to the injuries found on the body and he has further opined that the injuries would have been caused in the manner alleged by the prosecution.
13. On the same day, i.e. on 11.2.1994, he conducted autopsy on the body the deceased 4, Sethuammal at 9.30 p.m. and found the following injuries:
(i) An incised wound of about 5 cm x 2 cm x 10 cms over the left infra auxillary area.
(ii) An incised wound of about 4cm x 2 cm x 2 cm present over the left lois running obliquely upwards and laterally
(iii) An incised wound of about 5 cm x 2 cm x 10 cm present over the right infra scapular area running obliquely downwards and laterally.
Ex.P6 is the postmortem certificate. He has opined that the death would have been caused due to the injuries and the injuries would have been caused in the manner alleged by the prosecution.
14. P.W.8, who was a Civil Surgeon at Government Hospital at Paramakudi conducted autopsy on the body of the deceased 7, Indira Gandhi on 11.2.1994 at 1.00 p.m. and found the following injuries External injuries:
(i) An incised wound, oblique in nature of about 4 cms x 2 cm x 10 cms depth over the left infra axillary region
(ii) A lacerated wound on the left arm of about 7 cmx 2 cm x 4 cm.
(iii) Three oblique placed incised wounds on the back of the left forearm of about 5 x 1/2 x 1/2; 4x 1/2 x 1/2; 3 x 1/2 x 1/2.
Internal injuries:
1.There were fracture of left 5th, 6th, 7th ribs on the medial ends.
2. About 300 ml of blood and clots present in the left hemithorax.
3. About 300 ml of blood present in the right hemithorax.
4. There was a lacerated wound of about 8 cms x 1 cm x 2 cms depth over the lower lobe of the left lung.
5. Right lung congested.
Ex.P8 is the postmortem certificate and he has opined that the death would have been caused due to the injuries sustained and the injuries would have been caused in the manner alleged by the prosecution.
15. On the same day, he conducted autopsy on the body of the deceased 8, Rajeswari at 2.05 p.m. and found the following injuries External injuries:-
(i) An incised wound of about 5 x 2 x 2 cms on the left side of the abdomen with intestines protruding out.
(ii) An incised wound of about 5 x 2 x 2 cms on the right side of the abdomen with intestines protruding out.
(iii) An incised wound of oblique in nature on the right side of the chest below the nipple of about 5x2x 8 cms depth.
(iv) A lacerated wound of about 7 x 2 x 3 cms on the right side.
(v) An incised wound on the left side back of about 5 x 2 x 5 cms.
(vi) An incised wound on the left infra scapular area of about 3 x 1 x 2 cms.
Internal injuries:- There were fracture of right 3, 4, 5, 6 ribs. Liver : There is an incised wound of about 4 x 1 x 1 cm on the right lobe of the liver.
Ex.P9 is the postmortem certificate. He has opined that the deceased would have been died due to the injuries sustained and the injuries would have been caused in the manner alleged by the prosecution.
16. On the same day, P.W.8 conducted autopsy on the body of the deceased 5, Annammal at 3.05 p.m. and found the following injuries:
External injuries:
1. An incised wound on the right infra clavicular area of about 4 x 1 x 6 cms
2. An incised wound on the right leg of 1 x 1/2 cm
3. An incised wound below right knee joint of about 2 x 1 cm
4. An incised wound on the centre of the back 3 x 1 x 3 cms with spine
5. An incised wound of about 4 x 1 x 6 cms above the right gluteal region.
6. An incised wound of about 5x 1 x 6 cm below right gluteal region. Internal Examination:
1. There were fracture of 1,2, 3 ribs on the right side.
2. There was about 500 ml of fluid blood present in the right hemithorax.
3. There is an incised wound of about 6 x 3 cms depth present on the right upper and middle lobe of Heart chambers empty.
Ex.P10 is the postmortem certificate. He has opined that death would have been caused due to the injury to lungs and other vital organs and also due to shock and hammorage.
17. P.W.9, was a civil surgeon attached to the Government Hospital, Ramanathapuram. On 11.2.1994 at about 12.30 p.m., he held autopsy on the body of the deceased Palaniammal and found the following injuries:-
External injuries:-
(i) 5" x 2" x 2" lacerated wound on the right fore arm
(ii) 5" x 2" x 2" lacerated wound on the right arm
(iii) A deep lacerated wound over the left arm 5" x 2" x 2".
(iv) An incised wound on the left side of the chest just lateral to the sternum 2" x 1" x 4".
(v) An oblique incised wound below the lower aspect of left breast 2" x 1" x 1".
(vi) An incised wound over the right side of the back below the rib 2" x 1" x1".
(vii) An incised wound over right hypochondrium 5" x 1" x 4".
(viii) Another incised wound about 2" x 1" x 4" over the right hypochondrium below the previous wound.
(ix) An incised wound about 2" x 1" x 4" over the left lumbar area.
(x)An incised wound 2" x 1" x 3" over the lateral aspect of left thigh.
(xi) An incised wound over the back of the right shoulder 1" x 1" x 1/2".
(xii) Another incised wound about 1" x 1" x 1/2" just below the previous wound.
(xiii) An incised wound about 2" x 1" x 1" over the middle of the left thigh.
Internal injuries:-
Heart:- An incised wound about 3 cm x 2 cm x 1 cm over the right ventricle with 1000 cc of blood in the thoracic cavity.
Liver:- An incised wound about 4 cm x 1 cm x 2 cm over the right lobe of the liver.
Ex.P11 is the postmortem certificate. He has opined that the death would have been caused due to the injuries sustained and the said injuries would have been caused in the manner alleged by the prosecution.
18. P.W.10, was an Assistant Medical Officer attached to the Government Hospital, Paramakudi. On 11.2.1994 at about 3.30 p.m., he conducted autopsy on the body of the deceased Thillai natarajan and found the following injuries:-
(i) A transverse lacerated injury of size 6 cm x 4 cm x bone deep across the frontal bones on the scalp.
(ii) An oblique stab injury with clean cut edges of size 6 cm x 4 cm x abdomen deep on the right side region of the abdomen. 2" above the injunal legament loops of small intestine lying outside through this wound.
(iii) An ellipted shaped stab injury of size 5 cm x 3 cm x abdomen deep on the back of right side near the vertebral column between L1 and L2 vertibral level.
A probe inserted through this injury reaches outside through the injury No.2.
Ex.P12 is the postmortem certificate. He has opined that the death would have been caused due to the injuries sustained in the vital organs and the said injuries would have been caused in the manner alleged by the prosecution.
19. P.W.11, Dr.Nalini Jayashree conducted autopsy on the body of the deceased Iranian on 11.2.1994 at about 3.30 p.m. and found following injuries on the body of the deceased Iranian :-
(i) Spindle shaped stab injury of about 4 x 2 x 8 cms on the upper border of the left scapular region.
(ii) Elliptical shaped cut injury of about 4 x 2 x 10 cm on the medial aspect of left scapular region.
(iii) Spindle shaped stab injry of about 4 x 2 x 10 cm right side of post aspect of chest 2cm below right scapular angle.
(iv) Stab injury of about 4 x 3 x 30 cm right to the lower aspect of right scapula on the post auxillary line. Bones seen through the wound.
(v) The wound No 4 opens outside of ant aspect of abdomen just 4 cm below stanum and middle of upper abdomen through which loops of small intestine seen.
The Doctor has opined that the deceased would appear to have died of shock and hamarrage due to injury to vital organs like heart, liver and lungs.
20. P.W.23 continuing the investigation, again proceeded to the place of occurrence on 11.2.1994 at 7.15 a.m. He recovered blood stained earth and sample earth from the place where D1 was done to death under a mahazar Ex.P22 in the presence of P.W.21 and another witness. Similarly at 7.30 a.m, in the presence of the same witnesses, he recovered blood stained earth and sample earth from the place where the deceased 2 - Thillai Natarajan was attacked under Ex.P23 mahazar. In the presence of the same witnesses, at 7.45 a.m. he recovered blood stained earth and sample earth from the place where D4 - Sethuammal was attacked under Ex.P24 mahazar. At 8.00 a.m. he recovered blood stained earth and sample earth from the place where the D5 Annammal was attacked under a mahazar Ex.P25 in the presence of the same witnesses. At 8.15 a.m. under a mahazar Ex.P26 in the presence of the same witnesses, he recovered blood stained earth and sample earth from the place where the D7 Indira Gandhi was attacked. He also recovered a piece of sweater belonged to the D8 - Rajeswari. He also recovered ear stud from the place under the same mahazar. At 8.45 a.m. he recovered blood stained earth and sample earth from the place where the D6 Nagarathinam was attacked under Ex. P27. At 9.00 am., he recovered sample earth and blood stained earth from the place where the D3 Palaniammal was attacked under Ex.P28 mahazar. Then he examined few more witnesses including P.W.12 Balakrishnan and P.W.13 Sadiq Hameed. He examined the driver of MPTC bus and conductor Ganesan in which the deceased lastly travelled from Kamuthi. He arranged to take photographs of the place of occurrences and the dead bodies.
21. On 20.2.1994, P.W.23 arrested A5 Boominathan, A17 Krishnan @ Balakrishnan and A20 Muthuramalingam. On such arrest, A5 Boominathan volunteered a confession and the same was reduced into writing in the presence of the witnesses. In the said statement, he disclosed about the place where he had hidden 7 aruvals, 10 velsticks, a toy gun and 3 knives. Ex.P29 is the admissible portion of the said statement. In pursuant to the same, he took P.W.23, P.W.19 and another witness and produced M.O.30 (7 aruvals), M.O.31 (3 knives) and M.O.32 (10 velsticks) and also produced M.O. 33 (toy gun). On 24.2.1994, five more accused surrendered before the Court. During investigation he had recovered M.Os.34 to 69 from the bodies of the deceased. P.W.23 got custody of accused 11 Kumaraiah alone by means of an order of the Court. While in such custody, he volunteered a confession and the same was duly reduced into writing. But no recovery was made on such confession. In due course, other accused also surrendered before the Court. P.W.23 continued investigation, examined Doctors, collected medical reports and made arrangements for sending the material objections for chemical examination. Finally he laid charge sheet against the accused under Section 147, 148, 324, 506(ii), 307 and 302 read with 34 IPC.
22. The trial court on considering the materials framed the following charges against appellants.
Charge No.1 :
Against all the accused under Section 148 IPC. Charge No.2:
Against A1 to A6, A9, A10, A11 to A13, A15, A16, A18 to A20 under Section 302 readwith 34 IPC in respect of murder of the deceased 1 Eranian, the deceased 2 Thillai Natarajan, deceased 3 Palaniammal, deceased 4 Sethuammal, deceased 5 Annammal and deceased 6 Nagarathinam.
Charge No.3 :
Against A8 and A17 under Section 302 readwith 34 IPC (2 counts) in respect of murder of D7 Indira Gandhi and D8 Rajeswari.
Charge No.4 :
Against A1 to 6,A 9 to 13, A15, A16, A18 to 20 under Section 302 read with 149 (7 counts) and against A 8 and 17 under Section 302 read with 149 IPC (6 counts) Charge No.5 :
Against A7, A14 and A15 under Section 307 IPC in respect of attempt on the life of Krishna thevar.
Charge No.6 :
Against A1 to A13 and A16 to A20 under Section 307 read with 149 IPC in respect of the attack made on Krishna thevar and Manoharan P.W.3. Charge No.7 :
Against A1 to A6,A 8 to A20 under Section 307 read with 149 IPC in respect of the attack made on Krishna thevar and P.W.3 Manoharan. Charge NO.8:
Against A1 to A20 under Section 307 read with 34 IPC in respect of the attempt on the life of Krishna thevar and P.W.3 Manoharan.
23. Since the accused pleaded not guilty they were put on trial. During pendency of trial, A7 Murugan @ Kotari died. So, accused 1 to 6 and 8 to 20 faced the trial.
24. During trial, on the side of the prosecution, 23 witnesses were examined, 45 documents were exhibited and 69 Material Objects were marked. When the accused were questioned in respect of the incriminating evidences against them, they denied the same. They have not chosen to examine any of the witness or exhibit any document on their side.
25. Having considered the materials available on record, the trial court has found the accused guilty and sentenced them as detailed below:-
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Sl. No. Accused Conviction Sentence
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1. A1 to A6 and A8 to A20 u/s 148 IPC RI for one year
2. A1 to A6 , A9 to A13, u/s 302 r/w Imprisonment A15, A16, A18 to A20 34 IPC for life
3. A8 and A17 u/s 302 r/w Imprisonment 34 IPC (2 counts) for life for each count.
4. A1 to A6, A9 to A13, u/s 302 r/w Imprisonment A15, A16, A18 to 20 149 IPC (7 counts) for life for each count.
5. A14 u/s 302 r/w Imprisonment 149 IPC (8 counts) for life for each count.
6. A8 and A17 u/s 302 r/w Imprisonment 149 IPC (6 counts) for life for each count.
7. A14 and A15 u/s 307 IPC RI for 10 years
8. A1 to A6, A8 to u/s 307 r/w RI for 10 years A13 and A16 to A20 149 IPC
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26. The sentences have been ordered to run concurrently. Accused 1 to 6, 8 to 20 were acquitted of charge under Section 307 read with 149 IPC and 307 read with 34 IPC. Accused 1 to 6 and 8 to 20 were acquitted of the charge under Section 307 readwith 149 IPC and 307 read with 34 IPC. Challenges the above conviction and sentence, the appellants have come forward with the above appeals.
27. During the pendency of these appeals, A18, who is the sixth appellant in C.A.No.323 of 2006 died and so, only in respect of accused 1 to 6, 8 to 17 and 19 and 20 these appeals are now dealt with.
28. The learned senior counsel Mr.R.Shanmuga Sundaram, the learned senior counsel appearing for some of the accused would contend that since in this case there are large number of deceased and large numbers of accused, there is every possibility of false implication. Therefore, the evidence of the prosecution witnesses should be very closely scrutinised. Yet another reason stated by the learned senior counsel is that since the prosecution witnesses are closely related to the deceased and highly enemical towards the accused, their evidences require close scrutiny. He would add that if such a test of close scrutiny is applied, it would be obvious that the evidence of P.Ws.1 to 4, who claimed to be eyewitnesses cannot be believed at all. He would further contend that the original information passed on to the police which brought P.W.12 and other police personnel to the place of occurrence would naturally be a true version and the same would be the earliest version. He would contend that such earliest information has been suppressed by the prosecution and in its place Ex.P1 has been substituted. He would further submit that though Ex.P1 is stated to have been given at 5.30 p.m. on 10.2.1994, the same has reached the hands of the learned Magistrate only at 12.10 a.m. on 11.2.1994. Since, according to him, there is no plausible explanation coming forth from the prosecution, the unexplained delay would create lot of doubts in the case of the prosecution. Since there are materials to infer that Ex.P1 would have been prepared after prolonged deliberation, the same would collapse the entire case of the prosecution, the learned senior counsel contended. He would further submit that all eight murders would not have happened at one and the same place. He would take us through the evidence of P.W.12, wherein he has stated that he saw only three bodies strewed at the place of occurrence when he had gone there first. On the basis of the said evidence, the learned senior counsel would submit that others would have been killed at some other place and not as it is stated by the prosecution. He would further submit that the investigation has not been done properly in this case to find out the truth. He placed strong reliance on the evidence of P.W.23, wherein P.W.23 has admitted that police sniffer dog was brought to the place of occurrence. From that he would submit that the said fact would go to establish that the assailants were not at all known and that is why in order to find out some clue in respect of the assailants, the police sniffer dog was summoned to the place of occurrence. He would further submit that P.W.2 was not examined during inquest and thus in the absence of any explanation for his non examination during his inquest, it can safely concluded that he was put up later on as an eyewitness. He would further add that the name of P.W.3 does not find place in the complaint and therefore, his presence at the place of occurrence cannot be true. The learned senior counsel would further submit that the names of Accused 18 to 20 did not find place in the First Information Report and as such, he would contend that they have been falsly implicated as accused at a later point of time.The non examination of driver and conductor of the bus and also non production of records like invoice book and ticket book of the bus is serious lapse on the side of the prosecution. He would rely on the judgment of the Honourable Supreme Court reported in (1991) 4 SUPREME COURT CASES 304 (RANJIT SINGH v. UNION TERRITORY OF CHANDIGARH), 2005 SUPREME COURT CASES (CRI) 1121 (KAMALANATHA v. STATE OF T.N.) and a judgment of this court reported in 2000-1-L.W.-(Crl) 408 (SAMUDRAPANDI AND 3 OTHERS v. STATE REP. BY INSPECTOR OF POLICE ETC.,).
29. Mr.Chellapandian, the learned senior counsel appearing for some of the accused submitted that a reading of First Information Report which is a lengthly document would naturally create a doubt since the same is highly artificial and the same contains all minute details about the occurrence. He would further add that so far as Accused 15 is concerned, though it is stated that he caused injury on Krishna Thevar on his wrist, correspondingly there was no medical evidence showing any injury on the wrist. Thus, according to the learned senior counsel, medical evidence does not support the case of the prosecution in so far as Accused 15 is concerned.
30. Mr.Gopalakrishna Lakshmana Raju, the learned senior counsel appearing for Accused 5 and 6 would contend that so far as Accused 5 is concerned, there is no specific overtact attributed against him and his presence alone has been spoken to which according to him, would not be sufficient to convict him. In so far as Accused 6 is concerned, the learned senior counsel would contend that P.W.3 alone would speak about his overtact. Even that part of the evidence is only an after thought since the same is not found in his statement made during investigation . He would further add that P.W.2 was staying at a distant place studying in a school and therefore, he would not have had occasion to be present along with others at the crucial time of occurrence.
31. The learned senior counsel Mr.Thirumalai Raj appearing for Accused 14 would submit that in respect of Accused 14 there is no overtact at all attributed by any of the eyewitnesses. P.W.1 alone has stated that he cut Krishna Thevar. But there was no injury found by the Doctor on Krishna Thevar to corroborate the said version. Thus, according to him, the medical evidence does not corroborate the eyewitness account.
32. Ms.Jayarani, the learned counsel appearing for Accused 11 would submit that though P.W.1 to 3 have spoken to about his presence and also about his overtacts, their evidence cannot be believed. Her main contention is that Accused 11 Kumaraiah was the Ex-President of the village. Due to previous motive, he has been falsely implicated.
33. Mr.Kathirvelu, the learned counsel appearing for Accused 13 would submit that in so far as Accused 13 is concerned, except his presence, no witness has stated anything about him at all and therefore, he is entitled for acquittal. According to him, though his name finds a place in the First Information Report, in Court no witness has stated anything about him, except his presence.
34. Mr.K.Jeganathan, the learned counsel appearing for A 17 and A19 would submit that though P.Ws.1 and 2 have spoken to about his overtacts, considering the fact that A 17 hails from a different village and had no relationship with the rest of the accused, his presence and participation in the occurrence could be doubted and so he may be acquitted. In so far as A 19 is concerned, he contended that his name does not find a place in the First Information Report. But he was implicated as an accused only at later point of time. It is not as if P.W.1 does not know about the identity of A19. Therefore, according to the learned counsel, non mentioning of the name of the A19 in the First Information Report is a very strong circumstance in favour of the accused that he was not present at the time of occurrence.
35. Mr.Anandapadmanabhan, the learned counsel appearing for A20 would submit that the name of A20 does not find a place in the First Information Report. Even during inquest, P.Ws.1 to 3 did not make any mention about the presence of A20 at the place of occurrence. It was only P.W.4, who implicated him for the first time. The learned counsel would submit that it is nothing but an after though on the part of PW4 in order to wreck vengence. He would also further submit that the medical evidence does not corroborate. He would further point out that P.W.4 did not know the name of A20. Admittedly, there was no test identification parade. Therefore, identification of A20 made for the first time in Court by P.W.4 is not at all acceptable.
36. Mr. Muthupandian, the learned counsel appearing for A2 to A4 and Mr.C.Muthusaravanan, the learned counsel appearing for A8, A9, A10 and A16 would adopt the arguments advanced by the rest of the learned counsel.
37. Mr.Raja Ilango, the learned State Additional Public Prosecutor would submit that the evidence of P.Ws.1 to 4, who are all eyewitnesses to the occurrence is trustworthy. According to him, it is quite natural for all the deceased, Krishna thevar and P.Ws.1 to 4 to have gone together for funeral of Rajendran. It is also quite natural for all to return in the evening together. There is evidence that all of them came in the same bus and got down at Thopadaipatti bus stand and proceeded towards their village on walk. Since P.Ws.1 to 4 escaped and hid themselves in the nearby places, they are unhurt, otherwise they would have also tasted the same fate of the deceased. He would submit that absolutely there is no reason whatsoever to disbelieve the presence of P.Ws.1 to 4 in the place of occurrence and to discard their evidence.
38. The learned Additional Public Prosecutor would further submit that P.W.12 who was on a bandobust duty in the village had rushed to the place of occurrence immediately on hearing the noise due to gun shot. P.W.13 also has come there immediately thereafter. They along with P.W.3 have taken Krishna thevar and the D2 - Thillai Natarajan to the hospital and thereupon admitted them in the hospital immediately. The evidence of P.Ws.12 and 13 would go to further establish the place and time of occurrence.
39. The learned Additional Public Prosecutor would further submit that though the First Information Report is a lengthly document, that by itself would not raise any inference that it is a concocted document. Absolutely, there is no delay whatsoever in preferring the complaint and forwarding the same to the Court. Therefore, hardly there is no reason to hold that the First Information Report is a concocted document, so as to disbelieve the entire case of the prosecution.
40. The learned Additional Public Prosecutor would further submit that though there are certain defects in the charges, in view of the saving provision contained in Section 215 Cr.P.C, this Court may sustain conviction of the accused under appropriate penal provisions by modifying the judgment of the lower court.
41. We have considered the rival contentions and also carefully perused the records.
42. Admittedly on 9.2.1994, the brother of P.W.1, Rajendran was murdered at Kamuthi near the panchayat union office. There was a case registered against the accused 1 to 6, 8, 10, 13 and few others. Prior to that, one Thinnammal, who belonged to the accused group was done to death and there was a case of murder registered against the prosecution party and the same was pending. There was also an attempt to murder case registered against the deceased Rajendran viz., the brother of P.W.1 and others on the complaint of the first accused herein. The defence has not disputed the pendency of these criminal cases against the respective parties. Thus, the motive projected by the prosecution stands proved as the same has not been disputed at all and the said motive would go to establish that there were two groups in the village one headed by A8 Muthuramalingam and other headed by P.W.1 and his brother Rajendran.
43. There is no controversy that on 10.2.1994, the body of Rajendren who was killed on 9.2.1994 was cremated. It is quite natural that the relatives of the deceased Rajendran would have come to Kamuthi to attend the funeral. P.Ws.1 to 4 and deceased 1 to 8 are either family members or closely related to the deceased Rajendran. Therefore, it is quite natural for deceased 1 to 8 and P.Ws.1 to 4 and Krishna thevar to have attended the said funeral at Kamuthi. It is also not in controversy that from Kamuthi one has to come by bus to Thopadaipatti bus stop and from there one has to go on walk to O.Karisalkulam village. The D1 to D8, P.Ws.1 to 4, Krishna thevar and few others who were returning after the funeral had come by a pubic service bus and got down at the said bus stop. Though the said fact is disputed by the defence, we do not find any material to disregard the prosecution case that all the eight deceased, P.Ws.1 to 4 and Krishna thevar and others were proceeding towards their village together. In our considered opinion, the presence of P.Ws.1 to 4 at the place of occurrence has been clearly established.
44. It was contended by the learned counsel for the appellants that P.W.2 was then a student studying in a higher secondary school at Abiramam village which is a far off place from the place of occurrence and therefore, his presence at the place of occurrence at the crucial time cannot be true. But a perusal of evidence of P.W.2 would go to show that he is the brother's son of Rajendran. Therefore, it is quite natural for him to have come for the funeral. The next contention of the learned counsel is that P.W.1 was not examined either at the place of occurrence during inquest made on the bodies of D1, D3 to D8 or in the hospital during the inquest made on the body the D2 Thillai Natarajan. He was examined only on 11.2.1994. According to the learned counsel, had it been true that he was one among the eyewitnesses, either he would have been examined at the place of occurrence during the inquest of the D1, D3 to D8 or in the hospital during inquest held on the body of the deceased Thillai Natarajan. Thus, the presence of P.W.2 is doubtful. But we are not persuaded by the said argument. Admittedly, P.W.2 was examined on 11.2.1994 at 9.00 a.m. at the place of occurrence. He was hardly 16 years old. Since there were number of deceased who were all his relatives, there is every possibility for him to engage himself either going to the hospital or inform the relatives etc. It is not as if that he was not examined for number of days. As it is seen from the evidence of P.W.23, he was examined on 11.2.1994 itself. Therefore, it cannot be construed to be a long delay so as to disbelieve the evidence of P.W.2 and his presence. Thus, the reasons stated by the learned counsel to disbelieve the presence of P.W.2 at the place of occurrence has no force.
45. The next contention of the learned counsel for the appellants is that P.W.3 was not examined during inquest conducted on the bodies of D1, D3 to D8. Had it been true that he was one among the eyewitnesses, he would have been examined during the said inquest, the learned counsel contended. On this score, the learned counsel would submit that P.W.3 was put up as eyewitness at later point of time. But a perusal of the evidence of P.W.23 would go to show that P.W.3 was examined during the inquest conducted on the body of the deceased 2 Thillai Natarajan. P.W.3 is the son of the D1 - Eranian and D6 - Nagarathinam. Krishna thevar was also related to him. After the occurrence, according to him, he found Krishna thevar and Thillai Natarajan struggling for life. Therefore, he along with P.Ws.12 and 13 had taken them to the hospital. P.W.3 has clearly stated that he was in the hospital since his brother Thillai Natarajan was declared dead by the Doctor. There is nothing strange on the part of P.W.3 to stay in the hospital as his brother Thillai Natarajan was declared dead. Thus, non examination of P.W.3 during inquest held on the bodies of deceased 1 and 3 to 8 is hardly matter. He has been duly examined during the inquest held on the body of the deceased Thillai Natarajan without any delay. Therefore, in our considered opinion, the non examination of P.W.3 during the inquest of D1, D3 to D8 is not at all a flaw in the prosecution case so as to doubt the very presence of P.W.3 at the place of occurrence.
46. The learned senior counsel Mr.Shanmuga Sundaram appearing for some of the accused pointed out that in Ex.P4 intimation memo sent by the Government Hospital about the death of Thillai Natarajan, there is no mention made that he was brought to the hospital by P.W.3. On this strength, the learned senior counsel would contend that the evidence of P.W.3 that he had gone to the hospital taking the D2 Thillai Natarajan and Krishna thevar for admission cannot be true. The learned senior counsel, referring to the entries made in Ex.P5, the accident register relating to Krishna thevar, would point out that in Ex.P5, there is no mention about the name of P.W.3. It contains only the name of P.W.12 as a person who had brought him to the hospital. Similar entry is found in Ex.P6, the accident register relating to Thillai Natarajan also. Relying on these two documents, the learned senior counsel would submit that P.W.3, Manoharan would not have been either present at the place of occurrence or gone to the hospital. The said contention of the learned senior counsel is liable to be rejected in view of Ex.P3 and the evidence of P.W.5 through which, it has been established that the D2 Thillai Natarajan was brought to the hospital at Kamuthi at 6.20 p.m. on 10.2.1994 by P.W.3. It has been more specifically stated that he was accompanied by 'Manoharan - brother'. There is no dispute that it is only P.W.3, who is the brother of Thillai Natarajan. This is a very strong piece of evidence to hold that P.W.3 Manoharan would have been present at the place of occurrence and that is why he had the occasion to take Thillai Natarajan to the hospital at the earliest point of time i.e. at 6.20 p.m. itself. Of course in Ex.P2, the name of P.W.12, Balakrishnan alone has been mentioned as the person who had brought Krishna thevar to the hospital. It is the case of the prosecution itself that P.W.12 Balakrishnan and P.W.13 Shahul Hameed and P.W.3, Manoharan took Krishna thevar and the deceased 2 Thillai Natarajan to the hospital. In view of the said fact, we are not able to find any force in the argument of the learned senior counsel that P.W.3 would not have been present at the time of occurrence.
47. The learned senior counsel would further submit that P.W.4 also would not have been present at the place of occurrence. He would submit that the D5 Annammal is the wife of P.W.4. He also happens to be the uncle of P.W.1. Had it been true that his wife D5 Annammal was killed in his very presence, he would not have been a silent spectator and hiding himself. But we are not able to get ourselves persuaded by the said argument. The scrutiny of the evidence of P.W.4 would go to show that he deposed in a very natural manner. He has not claimed that he has seen the attack made on the every person. He has only spoken about A18 Malaiyandi and A17 Krishnan. He has further stated that he witnessed the entire occurrence from a near by kanmai where he was hiding himself. His evidence in our considered opinion does not suffer from any infirmity. For all these reasons, we have no doubt that P.Ws.1 to 4 would have been present and witnessed the occurrence.
48. Yet another contention of the learned counsel is about summoning of police sniffer dogs to the place of occurrence. The learned counsel would contend that since the assailants were not known, the service of sniffer dog was summoned by P.W.23. We have considered the evidence of P.W.23 in this regard, wherein he has stated that police sniffer dog was summoned. But there was no probe into that by way of cross examination on the part of the defence in respect of time of dog brought and also the purpose. In the absence of any such probe by way of cross examination for the way in which the sniffer dog was brought to the place of occurrence, we cannot hold that the dog was brought only because the assailants were not known to anybody.
49. The contention of the learned counsel that the non examination of the driver and conductor of the bus, in which the deceased party had lastly travelled from Kamuthi, and non production of the documents viz., invoice and ticket book is a serious flaw which creates doubt in the case of prosecution does not convince us. It is seen from the evidence of P.W.23, the driver and conductor of the bus were examined during investigation. For the reasons best known to the prosecution, they have not been examined. However, in our considered opinion, the non examination of the driver and the conductor of the bus would not in any manner create doubt about the travel made by the deceased party in the bus. When the evidences of P.Ws.1 to 4 are so cogent and convincing in that regard, only on the ground of non examination of the driver and conductor and non production of invoice and ticket book, we cannot discard the case of the prosecution that the deceased party lastly travelled from Kamuthi in the said bus and got down at Thodapatti bus stop. The learned senior counsel Mr.Shanmuga sundaram placed reliance on the decision reported in 2000 - 1 - L.W. (Cri) 408 (SAMUDRAPANDI AND 3 OTHERS v. STATE REP. BY INSPECTOR OF POLICE, ETC.), wherein it has been stated that non recovery of ticket book would create doubt in the case of the prosecution. But, the said conclusion arrived at by the Court in that case is based on the facts and circumstances of that case. Hardly can it be a precedent. In our case, as held above, the non recovery of ticket books and the invoices cannot be considered to be a flaw, much less, a serious flaw in the case of the prosecution so as to discredit the evidence of P.Ws.1 to
4.
50. The learned counsel pointed out that the prosecution witnesses contradict each other in respect of the overtacts attributed to these accused. In our view, such contradictions are quite natural. It is highly impossible for any witness to remember each and every one overtact of every accused which he had witnessed long back so as to narrate the same without any contradiction. Such contradictions are bound to occur. Unless those contradictions are material so as to discredit the entire evidence of a particular witness or the entire case, the said contradictions are only to be neglected. Therefore, though there are certain contradictions in respect of overtacts, we are not prepared to reject the evidence of P.Ws.1 to 4 on that score alone.
51. The learned senior counsel would contend that if the First Information Report is found to be false and fabricated, then the entire case of the prosecution should collapse. Admittedly, the occurrence had taken place at 4.30 pm. The distance between the place of occurrence and the police station is hardly 6 kms. P.W.1 had gone to the police station within one hour and preferred the complaint Ex.P1 which contains all the details. The said First Information Report, Ex.P34 and the complaint, Ex.P1 had reached the hands of the learned Magistrate at 12.10 am without any delay. This shows the promptness with which the First Information Report has been registered which would exclude any possibility for deliberations.
52. The contention of the learned counsel that there should have been some other earliest information to the police and the same has been suppressed is only an assumption. The learned senior counsel relies on the evidence of P.W.13 to drive this point home. According to P.W.13, when he was at Kamuthi Reserve police station, he was informed by a police personnel from the Kamuthi police station to rush to the said police station. The said information was passed on over phone. Immediately he proceeded to the Kamuthi police station from where, carrying some police personnel, he reached the place of occurrence and found P.W.12 at the place of occurrence. Then he along with P.W.12 took the deceased Thillai Natarajan and Krishna thevar to the Government Hospital. Placing reliance on this part of the evidence, the learned senior counsel would submit that some other information would have been given to Kamuthi police station, based on such information, P.W.12 had rushed to the place of occurrence with the police vehicle. The said earliest information has been suppressed, the learned counsel contended. But we are not able to accept the said argument. It may be true that some information was passed to Kamuthi police station by somebody. But, however, such information passed through phone cannot be considered to be first information for registration of a case for want of authenticity. Therefore, even assuming that there was some other information passed to the Kamuthi police, in our considered opinion, that cannot be a ground at all to hold that Ex.P1 is a document which came into existence after deliberations.
53. Yet another contention of the learned senior counsel is that P.W.21, who is the witness for observation mahazar, has stated that he heard about the occurrence at 4.00 p.m. on that day and then he proceeded to the place of occurrence and reached at 4.30 pm. He has further stated that immediately thereafter he returned to the Tahsildar's office at Kamuthi, from where, again he proceeded along with Tahsildar in a jeep at 6.30 p.m. The learned senior counsel would rely on this part of the evidence of P.W.21 to submit that the enquiry held by the Tahsildar on the spot and the report prepared by him would contain truth and the suppression of the same creates doubt in the case of the prosecution. He would further submit such a report would have been prepared by the Tahsildar long prior to the registration of the case and therefore, the said document is an important document in this case. Though the said argument appears to be attractive, a perusal of the evidence of P.W.21 would expose the fallacy of the same. It may be true that the Tahsildar, who is the Taluk Magistrate rushed to the place on hearing about the occurrence since it was sensational multiple murders. It may even be true that a Tahsildar would have forwarded a report to the Government. But the said report is not a part of record of the investigation done by the police. If at all, it is the case of the accused that the said document would contained a different version, which would be favourable to the accused, nothing would have prevented the accused either for summoning the Tahsildar as a witness or to produce the report, if any, of the Tahsildar in evidence on their side. The prosecution is not obliged to produce such a report since it does not form part of the investigation done by the police. Thus, the non production of the said report of the Tahsildar cannot be termed as a suppression at all.
54.The contention of the learned senior counsel Mr.Chellapandian is that Ex.P1 is a lengthy document running to 3 pages and the same contains all the minute details about the occurrence, which would indicate that the same would have been prepared after long deliberations. He would further submit that it is humanly impossible to narrate each and every one overtact of the accused in the First Information Report when there are multiple number of deceased and multiple number of accused. Of course it is true that the First Information Report runs to three pages containing minute details, but, that itself cannot give an inference that it is a concocted document so as to the discredit the entire case. To the contrary, what is required on the part of the Court is that the Court should be very cautious in approaching the case to find out the truth and to find out whether any accused has been falsely implicated. The next question is regarding the trustworthiness of the P.Ws.1 to 4. As contended by the learned senior counsel Mr.Shanmuga sundaram, since these witnesses are highly enemical towards the accused and closely related to each other and interested in the case of the prosecution, their evidences require very close scrutiny. They need to pass the test of close scrutiny.
55. Keeping in mind the above caution and also the settled position of law that the Court is required to apply the test of close scrutiny of the evidences of PWs.1 to 4 since they are closely related to the deceased and highly enemical towards accused, we have to analyse whether the evidences of P.W.s 1 to 4 clearly point to the guilt of all the accused or not. So far as A1, Muthumani is concerned, P.Ws.1 to 3 have spoken clearly about his participation in the occurrence and his overtacts. His name also finds place in the First Information Report which duly corroborates the evidence of P.W.1. So far as A7, A11 and A15 are concerned, P.Ws.1 to 3 have spoken to about their participation in the crime and the overtacts. Their names find place in the First Information Report. So far as A8, A9, A12, A16 and A17 are concerned, P.Ws.1 and 2 have spoken about their presence, participation in the occurrence and the overtacts. Their names also find place in the First Information Report. So far as A2, A3 and A6 are concerned, P.W.3 has spoken about their presence and participation in the crime. The presence and participation of A4, A10 and A18 has been spoken to by P.W.2 alone. The presence and participation of A14 has been spoken to by P.W.1.
56. The presence alone of A5 and A13 has been spoken to by the witnesses. But there are no overtacts attributed to them. The participation of A19 and A20 has been spoken to only by P.W.4.
57. As narrated above, the participation of the accused A1 to A4, A6 to A12 and A14 to A18 has been spoken to either by one or two or three witnesses. There are no reasons to reject their evidence so far as these accused are concerned.
58. The learned senior counsel would point out that the investigation is highly defective and no effort has been made by the Investigating Officer to find out the truth. According to him, since many of the accused in the present case were also accused in the earlier case in respect of murder of Rajendran, without finding out of the actual involvement of any of these accused, P.W.23 has fabricated the case in connivance of P.W.1 and his party against all their enemies. Though there are certain defects in the investigation, we are fully convinced that the accused 1 to 4, 6 to 12, 14 to 18 were the perpetrators of this crime.
59. The contention of the learned counsel Mr.Muthupandian is that in so far as A15 is concerned, though it is alleged that he caused an injury on Krishna Thevar on his wrist, the medical evidence does not support the same. Of course, there is no corresponding injury. But in our considered opinion, having regard to the nature of the occurrence in which many people were attacked, simultaneously such contradictions would bound to occur and therefore, on that ground alone, we cannot hold that A15 has not participated in the occurrence and not caused injury on the Krishna thevar.
60. The contention of the learned counsel Mr.Thirumalairaj that though it is alleged by P.W.1 that A14 inflicted injury on Krishna Thevar with velstick, there is no corresponding stab injury on him also cannot be accepted. Though it is stated by the Doctor that there was a cut injury on the body of Krishna thevar, it cannot be always said that velstick cannot cause a cut injury. It all depends on the manner in which the weapon is used.
61. The contention of Ms. Jayarani, the learned counsel for A11 is that A11 has been falsely implicated in the case because he was Ex-President of the village and also there was enmity between P.W.1 and him. It is needless to point out that the motive is a double edged weapon. It may be due to the said motive, A11 had participated in the occurrence. Therefore on the ground raised by the learned counsel, A11's participation cannot be disbelieved.
62. The contention of Mr.Jeganathan, learned counsel for A17 and A19 is that A17 hails from a different village and so he could not have been present at the place of occurrence also cannot be accepted. As pointed out earlier regarding his participation, P.Ws.1 and 2 have cogently deposed and the medical evidence also supports the same.
63. However, we have got doubt about the participation of A5, A13, A19 and A20. In so far as A5, Boominathan and A13 Palanivel are concerned, though there is evidence that they were also present in the occurrence, there is no overtact attributed to these two accused. It is not as if they were not armed with weapons. According to the prosecution case, they were armed with weapons. Even then, it is not stated that they caused any attempt on any one of the deceased or caused any injury. Had it been true that they were present at the scene of occurrence, certainly they would have either attempted to cause any injury or to have caused injury on any one of the victims. The very fact that there is no such evidence available against them would create doubt about their very participation in the occurrence. Since the danger of false implication is more prone in a case where there are multi number of deceased and multi number of accused, applying the test of close scrutiny, we are not able to convince ourselves that the prosecution has proved the participation of A5 and A13 and so we are inclined to acquit them.
64. So far as A19 and A20 are concerned, their names do not find place in the First Information Report. P.Ws.1 to 3 have not even spoken about their presence in the crime spot. P.W.4 alone has stated about their presence and participation. P.W.4 has admitted during cross examination that he does not know the name of A20 prior to the occurrence. Admittedly, there was no test identification parade conducted. He has identified A20 for the first time in Court. The medical evidence also does not corroborate the overtact spoken to by P.W.4 in respect of A20. Though he has stated that his wife Annammal, D5 was attacked by A19, Dakshinamoorthy, it is only an improvement since he has not said so during investigation. Thus the participation of A19 and A20 also has not been proved beyond reasonable doubts.
65. In conclusion, for the reasons stated above, we hold that A1 to A4, A6 to A12 and A14 to A18 (since died) are responsible for the gruesome murder of D1 to D8 and attempting to murder Krishna thevar. Since they formed an unlawful assembly with common object of doing away with the deceased 1 to 8 and Krishna thevar, each one accused was responsible for the overtact of the rest of the accused also. They are constructively responsible for the killing of each deceased. It can be safely held that each accused is liable to be punished under Section 302 read with 149 IPC since these accused alone caused the death of the eight persons. They are liable to be punished under Section 307 read with 149 IPC for having made an attempt on the life of Krishna thevar. Similarly they are liable to be punished under Section 148 IPC for having been members of unlawful assembly with deadly weapons. (A7 and A18 are dead).
66. As pointed out by the learned counsel for the defence, though the trial court has not taken care to frame charges under appropriate penal provisions, we are of the view that the accused have not been in any manner mislead by the said errors pointed out by the learned counsel. It is needless to say that under Section 215 Cr.P.C. unless it is shown that failure of justice has occasioned or the accused has been mislead by such errors, the said errors are not at all material and because of the errors and omissions in the charges, the conviction cannot be held vitiated. Therefore, it is necessary to modify the conviction and sentences appropriately. In result, we modify the conviction and sentence imposed by the lower court as detailed below:-
i) A1 to A4, A6, A8 to A12 and A14 to A17 are convicted under Section 148 IPC and sentenced to undergo rigorous imprisonment for one year.
ii) A1 to A4, A6, A8 to A12, A14 to A17 are convicted under Section 302 read with Section 149 IPC (8 counts) instead of 302 read with 34 IPC and sentenced to undergo imprisonment for life for each count.
iii) We confirm the conviction of A1 to A4, A6, A8 to A12 and A14 to A17 under Section 307 read with Section 34 IPC and sentence them to undergo rigorous imprisonment for ten years.
iv) We set aside the conviction and sentence imposed on A5, A13, A19 and A20.
67. In all other respects, the conviction and sentence imposed by the lower court under various charges stand modified as indicated above.
68. The trial court has directed the sentences to run consecutively. The learned senior counsel Mr.Shanmuga sundaram appearing for some of the accused relying on the judgment of the Honourable Supreme Court reported in (1991) 4 SUPREME COURT CASES 304 (RANJIT SINGH v. UNION TERRITORY OF CHANDIGARH) would submit that in view of the statutory mandate under Section 427 (2) of Cr.P.C., the sentences of imprisonment for life are only to run concurrently. He would also place reliance on the decision of the Honourable Supreme Court reported in AIR 1961 SC 600 (GOPAL VINAYAK GODSE v. STATE OF MAHARASHTRA) to submit that imprisonment for life means imprisonment for the whole of the remaining period of the convicted person's natural life. According to the learned senior counsel, if that be so, it will be unworkable to impose sentence of imprisonment for life for each count to run consecutively. He would further submit that in view of Section 427 Cr.P.C., it is illegal to direct the life sentences to run consecutively. But we are not persuaded by the said argument. At the first instance, the judgment of the Honourable Supreme Court in RANJIT SINGH's case has got no application to the facts of the present case since it was rendered in the context of Section 427 Cr.P.C. Section 427 Cr.P.C. reads as follows:-
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
69. A close reading of Section 427 (2) of Cr.P.C. would go to show that it applies to a person who has been undergoing sentence for imprisonment for life in connection with a different trial. But in our considered opinion, Section 427 Cr. P.C. has no application in respect of life sentences to be imposed in the same trial. When a similar question arose before the Honourable Supreme court in KAMALANANTHA v. STATE OF T.N. (2005 SUPREME COURT CASES (CRI) 1121), the Honourable Supreme Court has laid down the law on this subject. The Honourable Supreme Court has referred to Section 31 of the Code of Criminal Procedure and has held that the term of 'imprisonment' employed under Section 31 of the Cr.P.C. includes imprisonment for life also and therefore, as provided under Section 31 of Cr.P.C. it is not illegal to direct the sentences of life imprisonment imposed in the same trial to commence one after the expiry of the other. The Honourable Supreme Court in paragraph 76 has held as follows:-
"The contention of Mr.Jethmalani that the term "imprisonment" enjoined in Section 31 Cr.P.C. does not include imprisonment for life in unacceptable. The term "imprisonment" is not defined under the Code of Criminal Procedure. Section 31 of the Code falls under Chapter III of the Code which deals with power of courts. Section 28 of the Code empowers the High Court to pass any sentence authorised by law. Similarly, the Sessions Judge and Additional Sessions Judge may pass any sentence authorised by law, except the sentence of death which shall be subject to confirmation by the High Court. In our opinion, the term "imprisonment" would include the sentence of imprisonment for life. "
70. In view of the aforesaid law laid down by the Honourable Supreme Court, it is not illegal to direct the sentences of life to run consecutively.
71. The learned senior counsel Mr.Shanmuga Sundaram would further submit that having regard to the plea of the accused that they are the villagers hailing from poorer families and considering the plight of the members of the families of the accused, this Court may direct the sentences of life to run concurrently. We have given anxious consideration to the above submissions of Mr.Shanmuga Sundaram, the learned senior counsel.
72. While dealing with the case, we feel that the occurrence is heart rending. When the deceased who are closely related to each other were in distress as their close relative Rajendran was done to death and they were returning to their house, these appellants had attacked them in a brutal manner and caused the death of seven persons instantaneously and one died in the hospital. The merciless killing of the innocent and helpless child aged one and half years which was on the lap of the D7 can not be condoned at all. The manner in which the crime has been executed would go in the history of the State in future as to how brutality was unleashed in a village on innocent victims. It is not as if the occurrence was not a pre- meditated one. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of the most superlative degree in conception and cruel in execution. The accused are not possessed of the basic humanness and completely lack the psyche or mindset which can be amenable for any reformation. It is barbaric, diabolic, revolting and rarest. The accused do not deserve our sympathy at all. As a matter of fact, such crimes in this State are to be put down with iron hands. But the lower court has taken a generous view to show sympathy on the accused to impose only imprisonment for life.
73. For all these reasons, in our considered opinion, any leniency shown to the appellants would be a misplaced sympathy. Therefore, we are of the firm view that the direction of the lower court for the sentences of life imprisonment imposed for each count and imprisonment of 10 years imposed to run consecutively deserves to be confirmed.
74. In result, C.A.No.451 of 2006 is allowed in so far as A5, Boominathan is concerned. The conviction and sentence imposed on him is set aside. In so far as A6 in C.A.No.451 of 2006 is concerned, the appeal is dismissed with modifications indicated in para 66.
75. C.A.No.328 of 2006 is allowed in so far as A13, Palaniveluthevar is concerned. The conviction and sentence imposed on him is set aside. C.A.No.328 of 2006 is dismissed in respect of the other accused/ appellants with modifications indicated in para 66.
76. C.A.No.323 of 2006 is allowed in respect of A19, Dhakshinamoorthy. The conviction and sentence imposed on him is set aside. In respect of A18, Malaiyandi, the appeal stands abated as he is dead. The appeal in respect of other accused/ appellants is dismissed with modifications indicated in para 66.
77. C.A.No.313 of 2006 is allowed. The conviction and sentence imposed on A20, Muthuramalingam is set aside.
78. C.A.Nos.406 of 2006 and 539 of 2006 are dismissed with modifications indicated in para 66.
79. A5, Boominathan, S/o Chinnathambi, A13 Palaniveluthevar, S/o.Vellaisamy, A19 Dhakshinamoorthy S/o. Irulandi and A20 Muthuramalingam S/o Ilanthi Thevar are directed to be set at liberty forth with, unless they are required in connection with any other case.
bg To
1. Inspector of Police Kovilangulam Police Station, Ramanathapuram
2. Additional Sessions Judge (Fast Track Court), Ramanathapuram