Madras High Court
Karumalaiyan @ Annadurai vs State By Inspector Of Police on 31 March, 2003
Author: N.Dhinakar
Bench: N.Dhinakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31/03/2003
CORAM
THE HON'BLE MR.JUSTICE N.DHINAKAR
and
THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN
C.A.NO.245 OF 2000
1.Karumalaiyan @ Annadurai
2.Muthuramalingam
3.Murugan, S/o.Krishnathevar
4.Maruthu @ Nallamarudhu
5.Murugan @ Shongan
6.Meenakshi Sundaram @ Meenakshi ..Appellants
-Vs-
State by Inspector of Police
Keeraithurai Police Station
Madurai
Crime No.334/1997 ..Respondent
Prayer: Criminal appeal against the judgment dated 08.02.2000 passed
by the learned First Additional District Judge Cum Chief Judicial Magistrate,
Madurai in S.C.No.506 of 1997.
!For Appellants :Mr.V.Gopinath, SC for
1,2,3,5 and 6 :Mr.L.Mahendran
For Appellant 4 :Mr.S.Ashok Kumar
^For Respondent :Mr.I.Subramanian, PP
:JUDGMENT
(Judgment of the court was delivered by Justice R.Balasubramanian) Accused 1 to 6 in S.C.No.506/1997 on the file of the First Additional District Judge Cum Chief Judicial Magistrate, Madurai are the appellants in this appeal. They stand convicted at the end of the trial in that sessions case for offences under sections 148 and 302 read with section 149 I.P.C., for which they stand sentenced to undergo imprisonment for life for the offence of murder and to pay a fine of Rs.10 0/-, carrying a default sentence for the offence under section 148 I.P.C. They are before this court challenging their conviction. A1 to A3, A5 and A6 are represented by Mr.V.Gopinath learned senior counsel and A4 is represented by Mr.S.Ashok Kumar. Mr.I.Subramanian learned Public Prosecutor defended the State.
2. The case of the prosecution is that, being members of an unlawful assembly, at 8.00 a.m on 23.04.1997, A1, A2, A3 and A5 fatally attacked on the various parts of the body of the deceased in this case namely, a female by name Leelavathi and caused her death. A4 and A6 were stated to be present as members of the said unlawful assembly, each armed with a weapon in their hand. In establishing the charge, the prosecution examined P.Ws.1 to 3 as prime eye witnesses to the occurrence. P.Ws.6 and 7 are the other two witnesses, who speak about seeing the accused moving away from the scene after committing the crime. P.W.1 is the husband of the deceased. In the election held for the Madurai Corporation, Leelavathi contested in Ward No.59 opposed by A1's wife Valli and some other candidates sponsored by political parties as well as individuals. There was a hot contest between A1's wife and the deceased in this case. Ultimately Leelavathi was declared as elected. P.W.18 is the Election Officer, who speaks about the election held for Ward No.59; the contestants and the ultimate winner in that election. When P.W.18 was about to declare the results, A1, A2 and others objected on some grounds that the result of Leelavathi should not be declared. However P.W.18, after complying with the procedural law, announced the result declaring Leelavathi as the elected candidate. When the counting was going on, P.Ws.2, 3 and others were also there, besides P.W.1. After announcing the results, P.W.1, the deceased and their supporters went home. At 8.00 p.m on that day, A1, A2 and his supporters went to the house of P.W.1, which was at No.2, Rajan Street, Nadar Compound, Villapuram, where they raised slogans against the successful candidate. P.Ws.2, 3 a nd some more were there in the house of P.W.1 at that time. A1, A2 and their supporters left the house challenging as to how Leelavathi would function as a counsellor. P.Ws.2, 3 and others, who were there, pacified A1, A2 and their supporters and asked them to go. There was no water supply for Villapuram area. After Leelavathi became the ward counsellor, she brought water to Villapuram by having the pipeline laid. Having lost in the election and not able to tolerate Leelavathi gaining popularity in the area, the accused developed a hatred towards her. At 8.30 a.m on 23.04.1997, P.Ws.1 to 3 were standing in Villapuram Main Road in the junction of Anna Second Street and they were deliberating about the ensuing May Day festival. Leelavathi was also coming from the east towards west to buy provision in a shop in that road. She was standing opposite to the shop of one Sermakani. All the accused, each armed with a weapon, also came from further east. Then the victim Leelavathi was assaulted by A2 twice followed by A1, A3 and A5 attacking him. A4 and A6, each armed, standing guard at the scene of occurrence, saw to that that none neared the place of attack. P.Ws.1 to 3, by shouting, ran towards the place where Leelavathi was under attack. After completing the attack, all the accused ran towards east with the weapon in their hands. Leelavathi fell down dead. P.W.1 reached the police station and gave the complaint/Ex.p.1 before P.W.17, the Sub-Inspector of Police. M.Os.1 to 3 are the personal wearing apparels of Leelavathi, which she was wearing at that time. M.O.4 is the weapon of offence in the hands of A2. M.O.5 is the weapon of offence in the hands of A1 and M.O.6 is the weapon of offence in the hands of A3. P.W.1 returned to the scene of occurrence after giving the complaint. He identified A3 to A6 in the test identification parade held by the Judicial Magistrate. Regarding the occurrence proper, P.Ws.2 and 3 had given evidence in total corroboration to the oral evidence of P.W.1.
3. P.W.17 is the Sub-Inspector of Police in the Investigating Police Station, before whom at 10.00 a.m on 23.04.1997, P.W.1 appeared and gave the complaint, which he reduced into writing. After reading it over to P.W.1, he took his signature in it. He registered the said complaint as Ex.P.1 in his police station crime No.334/1997 for offences under sections 147, 148, 324 and 302 I.P.C. Ex.P.26 is the printed first information report, which he prepared. As the regular Inspector of Police had been transferred to the Police Training School, he informed P.W.19, the Inspector of Police, Theppakulam, who was in charge of the Investigating Police Station, over telephone. P.W.17 also sent the material records to the court as well as to the higher officials. P.W.19 is the Investigating Officer, who by reaching the Investigating Police Station at 10.30 a.m on 23.04.1997, collected the material records and commenced the investigation. He reached the scene of occurrence at 10.45 a.m and in the presence of P.W.8 and another, he prepared Ex.P.8, the observation mahazar and Ex.P.27, the rough sketch. Through P.W.15, he caused photographs of the dead body to be taken. P.W.15 accordingly took photographs of the dead body and M. O.25 series are the photographs and the negatives. In the presence of P.W.8 and another at 11.15 a.m., P.W.19 recovered blood stained earth/M.O.7 and sample earth/M.O.8 under Ex.P.9. As the deceased was a sitting counsellor during the relevant time and anticipating law and order problem, he did not conduct inquest at the spot itself and sent the dead body to the Government hospital for being kept in the mortuary through P.W.12, the police constable. Accordingly P.W.12 accompanied the dead body along with Ex.P.6/requisition given by P.W.19 and handed over the same to Doctor Kodandapani, who was on duty there. On receipt of the dead body, the said doctor consigned it to the mortuary.
4. P.W.19 conducted inquest over the dead body in the mortuary at the Government Rajaji Hospital, Madurai from 12.30 p.m onwards in the presence of panchayatdars and witnesses. During inquest he examined P.Ws.1 to 3. He completed the inquest at 2.15 p.m and prepared Ex.P.2 8, the inquest report. He sent Ex.P.2/requisition for post mortem to the hospital through P.W.16, the police constable. P.W.16 accordingly went to the hospital with the requisition for post mortem and he was present throughout post mortem. After post mortem, he removed the gold neck chain and a silver metti/M.Os.1 and 2 from the dead body and handed over the same to the Investigating Officer. P.W.5 speaks about the receipt of the dead body for being kept in the mortuary and attended to by Dr.Kodandapani. Ex.P.7 is the accident register issued by Dr.Kodandapani on receipt of the dead body. P.W.5 is the doctor, who did post mortem on the dead body on receipt of the requisition sent by the Investigating Officer. He did post mortem with the assistance of Dr.Ramasamy at 2.35 p.m on 23.04.1997 and during post mortem he found various symptoms as noted in Ex.P.3, the post mortem report. Ex.P.4 is the final opinion given by him after receipt of the viscera report. The doctor is of the opinion that the deceased would appear to have died of shock and haemorrhage due to external injuries 1 to 3 and it's corresponding internal injuries (neck vessels and spinal cord) and the cumulative effect of all the other injuries. The symptoms noted by the doctor as reflected in the post mortem report are as follows:
"Antemortem injuries: 1) A transversely oblique cut injury on the right side mandible to the right side neck measuring 20 x 3 cms x bone deep. On dissection, the wound found cutting the underlying mandible partially and the muscles, vessels, nerves and lower aspect of the body of the C4 vertebrae.
2) Another transversely oblique cut injury 3 cms below wound No.1, 1 6 x 3 cms x bone deep from the lower part of chin to the right side of the neck.
On dissection the wound found cutting the underlying muscles, nerves, vessels, C5 vertebrae and the spinal cord.
3) A transversely oblique cut injury measuring 10 x 2.5 cms x bone deep on the right side neck 2 cms below wound No.2 and 4 cms right of the mid-line. On dissection, the wound found cutting the intervertebral disc between the C5 and C6 vertebrae and the spinal cord.
4) Two cut injuries right ear pinna 2 x = cm x full thickness 2.5 cm x = cm x full thickness 1 cm apart.
5) A vertically oblique cut injury right shoulder outer aspect 4.5 cm x 2 cm x muscle deep 3 cms below the acromion process.
6) A vertically oblique cut injury on the back of right shoulder 3 x 1 cms x muscle deep.
7) A cut injury right upper arm back 5 cms below shoulder joint 6 x 2 cms x muscle deep.
8) A transversely oblique cut injury back of right forearm 15 cms below elbow joint 4 cms x = cm x bone deep.
9) A transversely oblique cut injury outer aspect of right forearm 6 cms above wrist joint 3 cms x 1 cm x bone deep skin flapping upwards.
10) A transversely oblique cut injury on the inner aspect of right wrist 6 cms x 3 cm x bone deep cutting the underlying bones, muscles, vessels and nerves; skin flapping upwards.
11) A transversely oblique cut injury back of right hand at the matacarpo phalangeal joint 5 x 1.5 cms x cutting the metacarpal bone.
12) Cut injury right index, middle ring and little finger posterior aspect 2.5 x 1 cm x bone deep cutting the underlying middle phalanx respectively.
13) A transversely oblique cut injury back of left forearm 8 cms below elbow joint, measuring 6 cms x 2 cm x cutting the underlying muscles, vessels, nerves and both bones; skin flapping upwards.
14) A transversely oblique cut injury left wrist inner aspect 3.5 x 2 cm x bone deep cutting carpal bones.
15) A transversely oblique cut injury back of left hand on the metacarpal phalangeal joint 5 x 2 cms x bone deep cutting the underlying metacarpal bones (3, 4 & 5).
16) A transversely oblique cut injury base of left thumb 4 cms x 1 cm x bone deep cutting the underlying bone partially.
Margins of all the cut injuries are clean cut.
Other findings: Hyoid bone intact. Peritoneal & pleural cavities empty. Pericardium 15 ml straw colour fluid. Heart normal size chamber empty. Coronaries patent. Lungs, liver, spleen and kidneys cut section pale. Stomach 50 ml of brown colour fluid. No specific smell. Mucosa pale. Small intestine 25 ml of bile stained fluid. No specific smell. Mucosa pale. Uterus normal size. Cut section empty. Brain cut section pale."
The doctor is of the opinion that injury No.1 is sufficient to cause death in the ordinary course of event and injuries 2 and 3 would definitely cause death. Rest of the injuries, in a cumulative way, would cause death and death would have occurred 6 to 8 hours prior to autopsy. The injuries noted on the dead body could have been caused by the use of weapons like M.Os.4 to 6.
5. P.W.19 continued the investigation further by examining witnesses and recording their statements. He recovered M.Os.1 to 3 produced by the accompanying post mortem constable before him after post mortem. Between 7.00 and 8.00 a.m on 24.04.1997 in the house of P.W.1 he examined P.Ws.1 to 3 and recorded their statements. P.Ws.6 and 7 were also present there and he also recorded their statements by examining them. Then he went in search of the accused. On information, he arrested A1 at 10.30 a.m on 24.04.1997 in the presence of P.W.9 and another. At that time A1 gave a voluntary confession statement, the admissible portion of which is Ex.P.10, pursuant to which, under Ex.P.1 1, M.O.5 came to be recovered in the presence of the same witnesses. The arrested accused was brought to the police station and kept in the lock up. He went to apprehend the rest of the accused and at 4.00 p.m on the same day, he arrested A3 and A5 in the presence of P.W.11 and another and examined each one of them. A3 gave a voluntary confession statement at that time, the admissible portion of which is marked as Ex.P.14, pursuant to which under Ex.P.15, M.O.6 came to be recovered. A5 also, on examination, gave a voluntary confession statement. Then the arrested accused were brought to the police station. P.W.19 again went in search of the other accused. At 9.00 p.m on that day, he arrested A6 in the presence of the same witnesses and then brought him to the police station for lock up. On 25.04.1997 he sent A1, A3, A5 and A6 for judicial remand. The case properties were sent to the court with a requisition to subject the same for chemical examination. P.W.13 is the Magisterial Clerk, who speaks about the receipt of the case properties along with Ex.P.16/requisition given by the Investigating Officer. He also gave evidence that along with Exs. P.17 and P.18 the respective case properties were sent to the laboratory for chemical examination. Exs.P.19 and P.20 are the chemical examiner's report and serologist's report. P.W.19 examined P.W.18 on 26.04.1997 and recorded his statement. On 27.04.1997, on prior information, he arrested A2 in the presence of P.W.10 and another. At that time A2 gave a voluntary confession statement, the admissible portion of which is Ex.P.12. Pursuant to Ex.P.12, M.O.4 came to be recovered under Ex.P.13 attested by the same witnesses. The arrested accused and the case property were brought to the police station. Later on the accused was sent for judicial remand and M.O.4 was sent to the court. P.W.19 continued his examination by examining witnesses and recording their statements. At 2.30 p.m on 28.04.1997 he arrested A4 and brought him to the police station at 5.00 p.m. He was sent for judicial remand. P.W.19 gave a requisition on 02.05.1997 to the court to record the statement of P.Ws.1 to 3 under section 164 of the Code of Criminal Procedure, which was returned. On 05.05.1997 he gave another application to the court to record the statement of P.Ws.1 to 3, 6 and 7 under section 164 of the Code of Criminal Procedure. He was succeeded by P.W.20.
6. P.W.20, on taking over the investigation, verified the investigation already done by P.W.19. In accordance with the requisition given to the court to record the statement of P.Ws.1 to 3, 6 and 7 under section 164 of the Code of Criminal Procedure, he produced those witnesses before court on 09.05.1997, on which day they were examined. He gave a requisition to the court on 16.05.1997 to arrange for a test identification parade to enable P.Ws.1 to 3 to identify A3 to A6. P.W.14 is the Judicial Magistrate, who had recorded the statement of P.Ws.1 to 3, 6 and 7 under section 164 of the C ode of Criminal Procedure. He also conducted the test identification parade on 27.05.1997 to identify A3 to A6 by P.Ws.1 to 3. He conducted the test identification parade after complying with all the legal formalities and during the test identification parade, P.Ws.1 to 3 correctly identified thrice A3 to A6. Ex.P.24 is the report submitted by him regarding the test identification parade conducted as referred to above. P.Ws.6 and 7 had given evidence before court stating that on the morning of the day of occurrence, they saw all the six accused running away towards east with the weapon of offence in their hand s and their shirts and dhotis were blood stained. Then on proceeding towards west, they saw the dead body of Leelavathi and then went to their house. They have been examined in the house of P.W.1 by P.W.19 on the next day. P.W.20 examined further witnesses and recorded their statements. After completing the investigation on all aspects and after complying with all the legal formalities, he filed the final report in court on 20.06 .1997 against the accused for offences under sections 147, 148 and 30 2 read with section 149 I.P.C.
7. When the accused were questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against each one of them, they denied the entire materials as false and contrary to facts. On the side of the defence, three witnesses have come to be examined as D.Ws.1 to 3 besides marking Exs. D.1 to D.7. D.W.1 would state that he is working as a lecturer in Victoria Tutorial College in Aviniyapuram, Madurai. He knows A4. He also knows all the accused. A4 is a graduate. One Manivannan is his lawyer. He used to meet him in his chambers as well as in court. In the ground floor of the court building, the court of Judicial Magistrate No.5 is towards north while the court of Judicial Magistrate No.6 is towards south. These two court halls are separated by a common passage. Only in that passage the under trial prisoners would be made to sit. The under trial prisoners would be brought before court by about 11.00 a.m and the prisoners would be called for remand extension only by about 1.00 p.m. Even after that, they would come and sit outside the verandah till the vehicle comes to take them back to the prison. The van used to come only at 4.00 p.m. D.W.2 is the Assistant Professor of Forensic Medicine in the Madras Medical College Hospital. He would give evidence about injuries 1, 2 and 3 as noted in Ex.P.3, the post mortem report and it's effect. According to him, injury No.1 would cause instantaneous death. He would also state that each one of the injury independently as well as cumulatively would cause death instantaneously. After receipt of any one of the three injuries, it is impossible for the injured to survive. After receipt of injury No.1, the injured could have stood to the ground only for a few seconds and after receipt of injuries 2 and 3, it would not be possible for the injured to stand any more. After receipt of injuries 1 and 2, it would not be possible for the injured to turn his neck. Injuries 8 and 16 found on the dead body could have been caused on the victim when he was resisting the onslaught by projecting the hands. After receipt of injuries 2 and 3 as noted in Ex.P.3, the post mortem report, it would be impossible for the injured to voluntarily raise the arms. After receipt of injuries 1 to 3, there is no chance for the injured to raise the voice.
8. D.W.3 had been examined to show that A2 during the relevant time was in his company far away from the scene in connection with a temple festival. Exs.D.1 to D.5 are the statements of P.Ws.1 to 3, 6 and 7 recorded under section 164 of the Code of Criminal Procedure by the Judicial Magistrate. Ex.D.6 is the invitation, which shows that in memory of the deceased in this case, on her first death anniversary, there was a blood donation camp. Ex.D.7 is shown to be a wall poster to show that the temple Kumbabishekam was held as spoken to by D.W.3 .
9. Mr.V.Gopinath learned senior counsel appearing for some of the convicted accused would contend that P.Ws.1 to 3 would not be eye witnesses and likewise P.Ws.6 and 7 also could not have seen the accused moving away from the scene of occurrence. In elaborating this submission, the learned senior counsel would state that since P.Ws.2 and 3 claim that they know A3 and if really they were present along with P. W.1 at the time of occurrence, then definitely they would have given the name of A3 to P.W.1. A3's name is not found in Ex.P.1. Therefore this belies the presence of P.Ws.2 and 3 as eye witnesses to the occurrence. P.W.1 is the resident of the same area in which all the accused are shown to reside. P.W.19 had given evidence to the above effect. This means, P.W.1 must be knowing all the accused. But however he had given the names of A1 and A2 alone in the complaint and had described the rest of the accused as known persons and that he do not know the names and the place to which they belong. After seeing the incident, the conduct of P.Ws.6 and 7, as spoken to by them, especially when they are not strangers to P.Ws.1 to 3, is not that of usual eye witnesses. Therefore their evidence must be excluded from consideration. The statement of P.Ws.6 to 11 recorded by the Investigating Officer had reached the court only on 21.07.1997 and this would have an impact on the evidentiary value of these witnesses. The case of the prosecution so far as it is directed against A3 to A6 is hardly convincing and they appear to have been implicated due to political rivalry. The evidence of P.Ws.1 to 3 against A1 and A2 also do not appear to be natural and therefore they must be disbelieved. The learned senior counsel would also state that as far as A5 is concerned, he was a juvenile on the date of occurrence and therefore the lower court is duty bound, when the said fact is brought to it's notice, to hold an enquiry on that issue and come to a conclusion of it's own. But however in this case such an exercise has not been done. Mr.S. Ashok Kumar learned counsel appearing for A4 would adopt the arguments advanced by the learned senior counsel. Mr.I.Subramanian learned senior counsel and State Public Prosecutor would defend the case by stating that, the sequence of events as spoken to by the witnesses, in and by which A3 to A6 were brought on record as accused in the crime, bristles with truthfulness on the face of it. The delay in sending the statements of P.Ws.6 to 11 to the court may not have any impact in the prosecution case at all in view of the fact that all the accused, except A2 and A4, have come to be arrested on the next day of the occurrence itself based on the statements of witnesses. Therefore there is a ring of truth in the prosecution case as spoken to by P.Ws.1 to 3, 6 and 7 and there are no compelling circumstances available on record to disbelieve the strong evidence of P.Ws.1 to 3, 6 and 7.
10. Having regard to the arguments advanced by the learned counsel on either side, we perused the entire materials available on record. Even at the outset, we would like to take the point raised by the learned senior counsel that A5 was a juvenile on the date of occurrence as the first issue. Mr.I.Subramanian learned State Public Prosecutor produced before us an unreported order dated 18.02.1999 in Crl.R.C. No.612/1998 passed by a learned single Judge of this court. The revision petitioner in that case is A5 in the present case. A perusal of the said order shows that even before the case was committed before the Court of Sessions, the issue was raised before the committal Magistrate himself and the committal Magistrate, after considering the medical records namely, Radiologist's report, had found that issue against him on 05.12.1997 itself. Not satisfied with that decision passed at that stage, A5 after the case was committed before the Court of Sessions, took out an application in Crl.M.P.No.80/1998 on 24.12.1997 to decide the issue of he being a juvenile stating that the procedure contemplated by the then Juvenile Justice Act should be followed. The learned Sessions Judge, by order dated 20.04.1998 dismissed that application and the revision before this court was against that order. The learned single Judge while dismissing that revision, affirmed the order of the learned Sessions Judge holding that A5 was not a juvenile. Inasmuch as at two stages the issue of A5 being a juvenile had been found against him and the said order of this court having not been challenged in a manner known to law, in our considered opinion, the said issue cannot be re-agitated once again in this appeal. Accordingly we reject the argument of Mr.V.Gopinath learned senior counsel that A5 was definitely a juvenile on the date of occurrence and therefore he ought not to have been tried along with the adult accused.
11. The cause of death in this case is established to be one due to homicidal violence. Ex.P.3 is the post mortem report and Ex.P.4 is the final opinion, which establish our above conclusion. The defence is not disputing the same. The case of the prosecution is that, it is the accused, who are responsible for causing the fatal attack on the victim (A1 to A3 and A5 while A4 and A6 were standing guard). To substantiate their case, the prosecution had examined P.Ws.1 to 3, 6 and 7. In our considered opinion, the evidence of the above witnesses can be broadly classified into two groups namely, those who have actually witnessed the occurrence and those who have seen the accused moving away from the scene of occurrence after the crime. Under the first category, the evidence of P.Ws.1 to 3 would come and under the second category the evidence of P.Ws.6 and 7 would come. By examining P.W.18, the prosecution had established that the deceased, in the election held for counsellors of the Madurai Corporation, was opposed by A1's wife by name Valli. The evidence of ocular witnesses also show that besides the deceased and A1's wife, there were a few more politically sponsored candidates as well as individuals. However as already stated, the evidence of P.W.18, the election officer, would show that the deceased was the successful candidate for Ward No.59 defeating her close rival namely, Valli (A1's wife). The case of the prosecution is also that, only in the backdrop of political rivalry, the occurrence in question is shown to have taken place. From the evidence of P.W.18, it appears that when he was about to declare the results of the winning candidate namely, the deceased, some objections were raised at the behest of the defeated candidate namely, Valli. But overruling those objections, the result was announced. The further case of the prosecution is that, even after that, there were some bickerings between the two groups and even on the night on which the election result was announced, A1 and A2, with their supporters, went to the house of the deceased and challenged her as to how she would perform her duties as the counsellor. The case of the prosecution is that, P.Ws.1 to 3, besides a few more, were there in the house of P.W.1 at that time and their evidence on that aspect is clear and cogent. The occurrence proper is shown to have taken place at about 8.00 or 8.30 a.m on 23.04.1997. It is true that P.Ws.1 to 3, 6 and 7 belong to the same political faction namely CPI(M). But simply because they belong to the same group, it need not necessarily follow that their evidence must be discarded on that sole ground, if their evidence is found to be otherwise trustworthy.
12. P.W.1 is the husband of the deceased. A1 and A2 are brothers while A3 is the brother of Valli, who is A1's wife. Rest of the accused are also shown to be either related to A1 and A2 or their friends. The occurrence had taken place, according to the prosecution, in Villapuram main road, which runs east-west. On either side of the said road, there are some constructions, which are either shops or godown. Ex.P.27 is the plan. Serial No.3 in that plan is the provision store belonging to one Sermakani. The plan also shows the residence of the deceased as Serial No.21. P.W.1 had given evidence to show that he resides in the building shown as serial No.21, which is a row of buildings owned by one Nadar. The case of the prosecution is that P. Ws.1 to 3 were at the junction of Anna Second Road branching towards south from Villapuram main road planning as to how the ensuing May Day should be celebrated. The place where P.Ws.1 to 3 were standing is on the western side of the east-west road. All of them saw the deceased coming from east to buy some provisions from the shop of Sermakani and they also saw each of the accused armed with a weapon coming from further east towards west. The evidence of P.Ws.1 to 3 consistently and cogently show that all the accused, on nearing the victim, except A4 and A6, indiscriminately attacked Leelavathi, since deceased, with the weapon of offence in their hands, resulting in her instantaneous death. On a perusal of the oral evidence of P.Ws.1 to 3, we find that the involvement of A1 to A3 and A5 in inflicting various injuries on the person of Leelavathi stands established beyond the pale of controversy.
13. Then we applied our mind to the other set of evidence namely, P.Ws.6 and 7, who would state that they were also proceeding in the same road from east to west and when they were on that road, they saw all the accused coming in the opposite direction (going towards east) with the weapon of offence in their hands and their clothes were blood stained. Therefore the evidence of these two sets of witnesses namely, P.Ws.1 to 3 seeing the occurrence proper itself and the evidence of P.Ws.6 and 7 seeing the accused moving away after committing the crime, are heavily relied upon by the State to sustain their case. As already stated, prima facie the evidence of these two sets of witnesses establish beyond doubt the occurrence proper and the accused moving away from the scene of occurrence.
14. Let us now apply our mind to the various points urged by the learned senior counsel for the accused requesting us to disbelieve the oral evidence of the two sets of witnesses referred to above. It is true that in Ex.P.1, P.W.1 had mentioned the names of A1 and A2 by name and described the others as "known persons", whose names and place of residence "not known". From the evidence of P.W.19, the Investigating Officer, it had come to light that all the accused are residents of the same area where P.W.1 also resides, ofcourse in two different blocks. From this, an argument is advanced that P.W.1 must be knowing the names of all the six accused and if that position is accepted, then there is no reason as to why he cannot give the names of all the accused except A1 and A2. This, according to the defence, would only show that A3 to A6 were not in the picture at all. P.Ws.2 and 3 no doubt admit that they know A3 as well. The prosecution case is that, P.Ws.1 to 3 were together when they saw the crime. There is nothing on record to show that P.Ws.2 and 3 knew that P.W.1 was not aware about the names of all the accused, in particular, the name of A3. P.W.1 had categorically stated that after seeing the occurrence he did not ask P.Ws.2 and 3 about the identity of the assailants nor did they give him any information. P.Ws.2 and 3 had not accompanied P.W.1 to the police station. P.W.17, the Sub-Inspector of Police, would state that P.W.1 alone appeared before him an d lodged the complaint. Therefore it is possible to visualize that P.Ws.2 and 3 would have been under the impression that P.W.1 must be knowing the name of A3 as well when he went to the police station and that is why they did not inform him the names of the assailants. It may also be possible to visualize that when P.W.1 went to the police station, P.Ws.2 and 3 would not have had an inkling that P.W.1 may not be in a position to give all the names. P.W.1 had stated in a natural manner that he came to know the identity of A3 only when he came back after giving the complaint/Ex.P.1 to the police. The involvement of A4 to A6 by names and addresses was not also within the personal knowledge of P.W.1 when he would state that the said information was furnished to him on 24.04.1997 by P.Ws.6 and 7 when they came to his house to offer condolences. Therefore we do not find anything unusual or any serious legal infirmity in P.W.1 not giving the name of either A3 in Ex.P.1 and the names of A4 to A6 as affecting his very evidence. From a perusal of the evidence of P.W.1, it is not possible to conclude that he knew the names of A3 to A6 also personally when he went to the police station to lodge the information. For the reason, already stated, we hold that the failure on the part of P.Ws.2 and 3 in not disclosing to P.W.1, when he left for the police station, that the name of A3 appear to be in the run of events and they cannot be found fault with for not disclosing such an information to P.W.1. Consequently we hold that the failure on the part of P.Ws.2 and 3 to say so to P.W.1 would not affect their evidence in toto.
15. The inquest in this case had been done by P.W.19 between 12.15 and 2.30 p.m on 23.04.1997 in the hospital. The involvement of A3 by name had come to the knowledge of P.W.1 as spoken to by him only during inquest as brought to his notice by P.Ws.2 and 3. Therefore the evidence of P.W.1 shows that he had come to know about A3's involvement by name during inquest itself. A perusal of the evidence of P.W.2 would show that he may not be knowing the name of A3 at the time when inquest was done and infact we may go one step further to say that P.W.2's evidence would show that he came to know the involvement of A3 by name only on 24.04.1997 when he, along with P.W.3, was in the house of P.W.1 in offering condolences, at which point of time, P. Ws.6 and 7 disclosed the involvement of the rest of the accused. But inasmuch as P.W.1 had stated that after giving the complaint he came to know about the involvement of A3 by name from P.Ws.2 and 3, which answer had been elicited by the defence in his evidence in cross, a duty is cast upon them to confront P.Ws.2 and 3 on this aspect namely, as to whether they gave this information to P.W.1 or not. We have already found that the evidence of P.W.2 may not throw any light on this aspect. But however the defence had not chosen to cross examine P.W.3 at all as to whether he gave that information to P.W.1 i.e., about the involvement of A3 by name in this case. Therefore we hold that the evidence of P.W.1 that he came to know about the involvement of A3 by name only during inquest stands un-controverted in any manner known to law. The inquest report and the statement of P.Ws.1 to 3 had been received by the in charge Magistrate on 24.04.1997 itself, as spoken to by P.W.13, the Magisterial Clerk. Therefore without any hesitation we have to conclude even at this stage that the involvement of A3 by name had come to the notice of the Investigating Agency within a few hours after registering the complaint itself.
16. The next phase of the prosecution case is the involvement of A4 to A6. Their involvement is spoken to by P.Ws.6 and 7. It may be true that they are comrades of P.Ws.1 to 3. Their evidence shows that when they were going from east to west at Villapuram Main Road ( the road where the occurrence is shown to have taken place), they saw all the accused coming in front of them with the weapon of offence in their hands. Their evidence also shows that their clothes were blood stained. They proceeded further west where they found the dead body of Leelavathi lying near the provision store of Sermakani. Their evidence further shows that as they neared the dead body, a huge crowd had already gathered there and everyone was in a state of shock. Their evidence also shows that the entire atmosphere was tense and therefore when they saw that, both of them went home without talking anything with the persons, who were present at the scene of occurrence. From the fact that they did not do anything at that stage, it cannot be said that they are not witnesses to the fact spoken to by them. Their evidence is natural and convincing when they saw hundred's of people gathered around the dead body and they have also seen P.Ws.1 to 3 there, though it would have been open to them to go nearer to P.Ws.1 to 3 and console P.W.1 on the death of his wife, yet from the very fact that they did not do the same, would not by itself mean that they would not have witnessed the accused moving away from the scene of occurrence. Their evidence also shows that they went to the house of P.W.1 on the morning of 24.04.1997 to offer condolences and at that time they found P.Ws.1 to 3 there. Admittedly P.Ws.6 and 7 are not eye witnesses to the occurrence. Therefore their evidence that on reaching the house of P.W.1 to offer condolences on the morning of 2 4.04.1997, they made enquiries as to how the occurrence took place, would not mean, in our considered opinion, that they have not seen the accused moving away from the scene of occurrence. There is nothing wrong in they making preliminary enquiries from the persons present there as to how the occurrence took place. Only in the course of such conversation, they have disclosed the identity of A3 to A6 as persons involved in the crime, besides the two mentioned in the complaint. Their evidence is also that they disclosed the said information to the police officer when they were examined in the house of P.W.1. P.W.19's evidence would show that in the mor ning of 24.04.1997 he went to the house of P.W.1 in the course of further investigation and while examining P.Ws.1 to 3, he found P.Ws.6 and 7 also present there and he examined them. It may be true that he had admitted that his case diary will not show where exactly he examined P.Ws.6 and 7 and recorded their statements. None-the-less, in our opinion, the said absence of entry in the case diary cannot belie the oral evidence of P.Ws.1 to 3 that P.Ws.6 and 7 brought to their knowledge at that time the involvement of the rest of the accused by name and a perusal of the evidence of P.Ws.6 and 7 do show that they said so before the Investigating Officer. The fact that P.Ws.6 and 7 came to be examined on 24.0 4.1997 itself as spoken to by them as well as by the Investigating Officer stands strengthened by the arrest of the respective accused, whose involvement in the crime by name surfaced for the first time on the morning of 24.04.1997. A3, A5 and A6 came to be arrested in the late part of the evening on the same day while A4 had come to be arrested on 28.04.1997. The arrest of A3, A5 and A6 on 24.04.1997 itself and their remand would only show that the statements of P.W.6 and P. W.7 recorded on 24.04.1997 alone ought to have been the basis for the said arrest. Therefore the arrest of the respective accused as referred to above in close proximity to the examination of P.Ws.6 and 7 on 24.04.1997 would only strengthen our conclusion that P.Ws.6 and 7 should have been definitely examined on the morning of 24.04.1997 as spoken to by not only themselves but also by P.W.19, the Investigating Officer. It may be noticed that A4 came to be arrested on 28.04.1997 . The arrest of A3 to A6 as referred to above and their judicial remand made by the court would go a long way in favour of the prosecution to defend the criticism of the defence made about the delayed receipts of the statements of those witnesses by court. in respect of certain statements of these witnesses. The evidence of P.W.13, the Magisterial Clerk, would show that the statements of P.Ws.6 to 11 recorded during investigation had reached the court only on 21.07.1997. As already stated, the strong facet of the prosecution case is the arrest of A3 to A6 on the two dates referred to above and this thwarts all possible criticisms by the defence attacking the evidence of P.Ws.6 and 7 on the ground that their statements had reached the court almost three months after it was shown to have been recorded. Therefore we have no hesitation to conclude that the evidence of P.Ws.1 to 3 as eye witnesses to the occurrence and the evidence of P.Ws.6 and 7, as persons who had seen the accused moving away from the scene of occurrence, establish the prosecution case beyond doubt.
17. A faint argument is advanced before this court that due to political rivalry and pressure, A3 to A6 have been brought before court as the accused, for which we do not find even a semblance of material to sustain the said argument. The evidence of P.Ws.1 to 3, as already referred to, is natural and convincing and from the mere fact that none tried to save the victim from being assaulted till her death, would not by itself discredit their evidence on the occurrence proper. How a person, on seeing the dastardly crime, would respond to the situation, would vary from individual to individual and it can never be uniform. Therefore as a matter of universal rule, it cannot be said that simply because eye witnesses did not raise to the occasion to save the victim, it should be necessarily concluded that they cannot be eye witnesses. Though in the evidence of P.W.19, the Investigating Officer, it had come to light that all the accused are residents of Villapuram, the place where P.W.1 is also residing, we do not find any material from which it can even be inferred that P.W.1 knows all the accused by name and their residence. If really the prosecution is bent upon fabricating the case, then nothing would have prevented P.W.1 from giving the names of all the six accused at the first instance itself. The truthfulness of the prosecution case lies in the manner in which the complaint came to be lodged with the contents found therein. The case of the prosecution as disclosed in Ex.P.1 is found to be carried forward throughout the trial in a consistent manner. In Ex.P.1 it is disclosed that besides A1 and A2, two out of the remaining four accused also joined in attacking the victim. In the oral evidence before court, P.Ws.1 to 3 consistently speak about A1, A2, A3 and A5 as persons, who inflicted injuries on the victim. Therefore there is definite consistency on this aspect before court when compared the same with the averments contained in Ex.P.1. Equally there is definite consistency in the prosecution case when we compare the averments contained in Ex.P.1 and the oral evidence before court regarding the overt acts attributed to A4 and A6. Throughout, the prosecution had stuck to the version that A4 and A6 were only present armed and they did not attack the victim. It may be true that there is a little improvement in the oral evidence of P.W.1 when he deposed before court that A4 and A6 while standing guard near the scene also criminally intimidated the nearby persons from going near the place of attack. This trivial improvement in the oral evidence of P.W.1 about the role played by A4 and A6, when compared with Ex.P.1, is not of such a serious nature which would affect the very substratum of the prosecution case. We find that the complaint had come to be given within a short time. It is true that the complaint came to be given after 1-1/2 hours from the time of occurrence when the police station is hardly at a distance of half a kilometre from the scene. But it must be seen that the victim is none-else than the wife of P.W.1 and that too when she had suffered innumerable cut injuries on her body, it is nothing but natural that P.W.1 would have taken some time to regain himself and then decided to give the complaint. He would also state that he walked all his way to the police station and gave the complaint. Therefore we do not find any deliberate delay on the part of P.W.1 in lodging the information. In fact if really the prosecution gained anything by giving the complaint belatedly, then we see no reason at all as to why P.W.1 could not have mentioned the name of A3 also in the complaint, since P.Ws.2 and 3 know the involvement of A3. This only shows that after regaining himself, P.W.1, without any further deliberation in his mind, straight away went to the police station to lodge the information.
18. In addition to the oral evidence of P.Ws.1 to 3 as eye witnesses to the occurrence, which establish the involvement of A1 to A3 by name and the others as "known persons" and the oral evidence of P.Ws.6 and 7, which establish the involvement of A4 and A6, the prosecution had also taken care for holding a test identification parade to enable P.Ws.1 to 3 to identify A3 to A6. This appears to have been done obviously because in Ex.P.1 the name of A1 and A2 alone have been mentioned and the names of rest of the accused have not been given. When there is direct evidence of eye witnesses, who can speak about the involvement of the various accused, the holding of the test identification parade would be only redundant. But as already stated, the prosecution wanted to be abundantly cautious and therefore the test identification parade had been conducted. We perused the evidence of P.W.14, the Judicial Magistrate, who conducted the test identification parade. A reading of his evidence does not show any vitiating material in his evidence, which would discredit the test identification parade conducted by him and the report submitted. His evidence and report show that P.Ws.1 to 3 consistently and correctly identified A3 to A6 on all the three occasions when each one of them were called separately by the Magistrate to identify the various accused. An attempt has been made by the defence that all the accused were shown to the witnesses before hand and therefore the test identification parade is of no use. Recently the Hon'ble Supreme Court of India in the judgment reported in 2002 S.C.C (Crl.) Pg.1698 (Dana Yadav Vs. State of Bihar) held that the purpose of conducting the test identification parade is not to rely upon the materials collected during the test identification parade as substantive evidence but it is only with a view to test the memory of the witnesses about they seeing the involvement of the accused in the crime. Therefore as already stated, looking from any angle, the conducting of test identification parade is definitely redundant, since the evidence of P.Ws.1 to 3 as one block of evidence and the evidence of P.Ws.6 and 7 as the other block of evidence, definitely establish beyond the pale of controversy the involvement of A1 to A6 in the crime. D.W.1 had been examined to show that there is a possibility of the accused being shown to the witnesses. His evidence is only on surmises and conjectures. His evidence at best shows that the accused, when brought before court for remand, would be asked to wait in the common passage separating court hall No.5 and court hall No.6. There is no material on record to show that during those times the witnesses in the case on hand before the remand court and the accused were shown to them. Then the prosecution relies upon the oral evidence of D.W.3 coupled with Ex.D.7, the wall poster, to show that A2 was with him at a place far away from the scene of occurrence on the crucial date. Again, on going through the evidence of D.W.3, we do not find that A2 had established his plea of alibi by being at a different place from the place of occurrence. D.W.2 had been examined to speak about the position of the victim after she received injuries 1 to 3. Again it is only an opinion evidence. How a human body would react after receiving injury after injury, though theoretically may be said in one way but yet in reality it can never be so. It is therefore not possible to visualise that after receiving injuries 1 to 3 the victim would not have been in a position to raise her arms, which alone would have resulted in injuries to her arms. Therefore we are not impressed with the oral evidence of D.W.2 to conclude that after receiving injuries 1 to 3, the victim would not have been in a position to raise either her voice or resist further onslaught.
19. One other aspect which remains to be answered in this case is the plea of alibi set up by A1. His case is that from 19.04.1997 till 23.04.1997 he was taking treatment under Doctor Ravindran, which disabled him from moving out. He has not taken any positive stand at any stage of the proceeding that he was an inpatient in any hospital under the care of Dr.Ravindran. P.W.19, the Investigating Officer, would state in his evidence that his enquiry revealed that A1 was taking treatment under Dr.Ravindran. By taking treatment alone it cannot be said that A1 has been immobilised in any particular place. When he sets up a plea of alibi, a burden is cast upon him to establish the same. He has not chosen to discharge the said burden in any manner known to law either by examining Dr.Ravindran or bringing in any other material. Therefore his case of alibi stands only at the stage of suggestion and nothing more than that.
20. For all the reasons stated above, we have no doubt at all in our mind that the conviction of all the six accused in this case is supported by legal materials warranting no interference in the judgment under challenge. Accordingly while sustaining the judgment under challenge, the appeal fails and it is dismissed.
To
1.The First Additional District Judge Cum Chief Judicial Magistrate, Madurai
2.-Do-Through the Principal Sessions Judge, Madurai
3.The District Collector, Madurai
4.The Director General of Police, Chennai
5.The Public Prosecutor, Madras
6.The Superintendent, Central Prison, Madurai
7.The Inspector of Police, Keeraithurai P.S., Madurai