Madras High Court
Egaiarasan Alias Thiagarajan Alias ... vs The State By Its on 7 September, 2007
Author: S.R.Singharavelu
Bench: S.R.Singharavelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/09/2007 CORAM THE HONOURABLE MR. JUSTICE S.R.SINGHARAVELU AND THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Criminal Appeal No.233 of 1997 Criminal Appeal No.234,268,284,336 and 402 of 1997 1.Egaiarasan alias Thiagarajan alias Kuzhandai 2.Deivamani 3.Gunasekaran alias Guna alias Anbu Sudaresan .. Appellants/A-6,A-9 & A- 14 in Crl.A.No.233 of 1997 Kundalakesi .. Appellant/A-10 in Crl.A.No.233 of 1997 Pozhilan alias Mani alias Thalapathy .. Appellant/A-1 in Crl.A.No.268 of 1997 Arivu alias Thiruvalluvar alias Arivazhagan .. Appellant/A-4 in Crl.A.No.284 of 1997 Mukilan alias Tamizh Mukilan alias Raman alias Sundar .. Appellant/A-3 in Crl.A.No.336 of 1997 Ilango alias Ilangovan alias Karikalan alias Deivamani .. Appellant/A-2 in Crl.A.No.402 of 1997 Vs The State by its Deputy Superintendent of Police, CBCID, Madurai. Crime Nos.250 and 70 of 1988 .. Respondent/Complainant in Crl.A.Nos.233, 234,268, 336 alias 402 of 1997 1.The State, represented by the Inspector of Police, St.Thomas Mount Police Station, Chennai 600 016. (Crime No.250 of 1988) 2.The state, represented by the Inspector of Police, Kodaikkanal Police Station, Kodaikkanal. (Crime No.70 of 1988) .. Respondent/Complainant in Crl.A.No.284 of 1997 Appeals filed under section 374(2) Cr.P.C., against the judgment dated 17.02.1997 passed in S.C.No.63 of 1993 on the file of the learned Principal Sessions Judge, Dindigul. !For A-1 & A-10 .. Mr.N.Natarajan, Senior Counsel for Mr.N.Chandrasekaran,Advocate and Mr.S.Ravi, Advocate ^For A-2 & A-3 .. Mr.R.Sanakrasubbu, Advocate For A-4 .. Mr.B.K.Rajendran, Advocate For A-6, A-9 & A-14 .. Mr.R.Shanmughasundaram, Senior Counsel for Mr.M.Krishnamoorthy, Advocate For Respondent .. Mr.V.Kasinathan in all Criminal Appeals Additional Public Prosecutor :COMMON JUDGMENT
T.SUDANTHIRAM,J.
The appellants/Accused stand convicted in the following manner:
Crl. A.No. Accused Conviction Sentence 233/1997 A-6, A-9 and A-14
1.Section 5 of Explosives Substances Act, 1908 r/w 120-B IPC.
2.Section 3 r/w Section 25(1-B)(a) of Indian Arms Act
1.Two years rigorous imprisonment for each of the accused for the offence mentioned in (1).
2.One year rigorous imprisonment for each of the accused and to pay a fine of Rs.500/- each and in default to undergo one month simple imprisonment for the offence mentioned in (2).
234/1997 A-10 Section 3 r/w Section 25(1)(A)(a) of Indian Arms Act One year rigorous imprisonment and to pay a fine of Rs.500/-.
268/1997 and 336/1997A-1 and A-3
1.Sections 3,4&6 of Explosives Substance Act, 1908 r/w 120-B IPC.
2.Section 3 r/w Section 25(1-B)(a) of Indian Arms Act.
3.Section 4 of PPD Act and Section 427 IPC Life Imprisonment for the offence under Section 3 of Explosives Substance Act r/w 120-B IPC for each of the accused, Since he has been awarded a maximum punishment of life imprisonment no separate sentence for other offences.
284/1997 A-4 Section 3 of Explosives Substance Act, 1908 r/w 120(B) IPC Life Imprisonment 402/1997 A-2 Sections 3 and 4 of Explosives Substance Act, 1908 r/w 120-B IPC Life imprisonment Against the said conviction and sentence, the appellants have preferred the above appeals.
2.The brief facts of the prosecution are that during the month of March 1988, at door No.4, Walajah Raod, Chennai, all the accused criminally conspired and in order to have separate Tamil Nadu, involved in unlawful activities along with Tamil Nadu Viduthalai Padai, collected guns, cartridges and gun powders and having ill-will against the Government and in order to embarrass the Government, they decided to demolish Nehru Statue in Kathippara at Guindy and explode T.V. Station at Kodaikanal by pasting posters, distributing pamphlets. In order to complete the task, after describing about the criminal conspiracy to one Vadivel @ Vadivel Ravanan @ Thennavanko [P.W.3] and Shamugavadivelu @ Suresh [P.W.4], the accused persons during the months of March and April, 1988 had their conspiracy discussions at chennai, Trichy, Kanchipuram and Kodaikanal. Both P.Ws.3 and 4 helped the accused financially in order to make the task successful.
(b)On 04.04.1988, in the residence of A-6 situate at door No.NHC-364, Tamilnadu Housing Board, Anna Nagar, Navalpattu, Trichy, they prepared explosives and Pozhilan [A-1], Ilango [A-2] and P.W.3 supported financially to one Maran [since deceased] who involved in buying gun powders. On 14.04.1988, at 7.45 p.m., Maran [since deceased] and A-2 made a bomb to explode at TV Station at Kodaikanal and left the other bomb and pamphlets there and caused damage to the TV Station to the tune of Rs.2,745/-. In order to successfully complete the criminal conspiracy of causing damage to the public properties, A-1 financially supported A-2 and A-3. For that purpose, 25 Gelatin sticks, 4 detonators were purchased from Prabhakar on 07.04.1988 and at Rayapuram, Chennai, they prepared explosive bombs and taking pamphlets [containing words that will create difference among the united public] along with the bombs, on 10.04.1988, at 3.00 a.m., kept the bomb at the back side of the Nehru Statue at Kathipara, Guindy and made it exploded, thus causing a damage to the tune of Rs.3,806/-.
(c)On 05.04.1988, Maran [since deceased] gave to A-6 the following items which were under the unlawful custody of A-6:
1.Carbon Machine 9 mm.-13810
2.Stengun rifle and 20 new cartridges 3.22-line cartridge-26 nos.
4.Black coloured Fuse Wire-6cm in length
5.Blackish blue coloured Fuse Wire-38cm in length 6.2 Sun brand Gelatin sticks 7.6-ordinary detonators 8.6-Electric Detonators
(d)A-14[Gunasekaran], A-10[Kundalakesi],A-9-Deivamani,A-11-Tamizhiniyan, A-12[Bavanandi], and A-13[Suresh] were having the following items unlawfully during the period of occurrence:
A-14 [Gunasekaran}:
1.0.38 brand cartridge-107 nos.
2.0.45 brand cartridge-33 nos.
3.0.555 brand cartridge-60 nos.
4.7.65 mm. Cartridge-14 nos.
5.Lapua-38 and Lapua-38 [special]-28 nos. 6.0.45 cartridge-48 nos. [short] 7.0.65 cartridge-14 nos. [length] 8.0.55 mm. Cartridge-57 nos.
9.0.7 rifle cartridge-29 nos.
10.0.10 cartridge-1 no.
11.1 1/2feet length Gun powder fuse wire. A-10[Kundalakesi]:
1.Mark 23 type cartridge-135 nos.
2.Mark 10 type cartridge-214 nos.
3.0.32 Pistol cartridge-38 nos.
4.0.22 type new cartridge-84 nos.
5.0.380 special pistol cartridge-40 nos.
6.Super Special Cartridge-1 A-9-Deivamani:
[1]Country gun-1 no.
(2)SW-0.38 special round cartridge-2 and (3)Lapua 0.38 special round cartridge-2 at door no.A/169,D.L.P.Colony, Block No.20, Vannarapettai, Chennai.
A-11-Tamizhiniyan:
[1]E.L.G.Pistol-1 [2] o.38 new cartridge-10 nos.
[3] 0.9mm new cartridge-1 and [4]0.380 new cartridge-1 A-12 [Bavanandhi]:
[1]Gelatin sticks-4 [2]Electric Detonator-1 at Door No.17, Murugammal Street, Sengalvarayan Avenue, Kancheepuram.
A-13 [Suresh]:
[1]Electric Detonator-3 [2]Gelatin Sticks-6
3.The evidence let in by the prosecution i brief is as follows:
(a)P.W.1-Kannan, was working as Assistant Engineer at Kodaikanal TV Station during the relevant period of time. On 11.04.1988, when he along with one Premasankaran (S.E.A), Ravichandran, Selvaraj [Technician], Kanaiyah [helper], Ganapathy [Van driver], Arulappan [Security Guard] and Raju were on duty, at 7.45 p.m., they heard a bomb blast. When they came out, they saw smoke coming from the North West side of the compound wall and the Glass windows in the main Verandah were broken and the compound wall in the North western side was broken to the extent of one metre. They informed the Station Master and the police. When police came, they saw a dead body near the blasted area. On the next day, when the police conducted inquest, they found that the dead body was one Maran and the person who ran away during the blast with injuries was one Ilango. The complaint given by P.W.1 to the police is Ex.P.1.
(b)P.W.2-Veerabadran is a resident of Chrompet, Chennai and he is working as an Electrician in Public Works Department. At the time of occurrence, he was working in the Maintenance Department of T.B.Hospital at Sanitorium and in-
charge of maintenance of the Nehru Statue. On 09.04.1988 at 8.00 p.m., the light settings on all the four sides of the Nehru Statue and the light setting in the stage were under the control of P.W.2. His duty time was between 5.00 p.m. and 6.00 a.m. One Vasu, gardener, was along with him that night. After taking dinner and switching off the important lights at 8.30 p.m., he started sleeping. The said Vasu was sleeping in the Eastern side of the statue. On 10.04.1988 at 4.30 a.m., they heard a blast sound. On hearing, they became unconscious for five minutes. After getting conscious, when P.W.2 inspected the statue, he saw the right side of the statue broken. He also saw some jute rope, blue coloured cloth and some gunpowder. Four electric bulbs and main switch were broken. He also saw the stone on the right side of the statue had moved a little. P.W.2 went to St.Thomas Mount Police Station and lodged a complaint to P.W.58, the Inspector of Police and Ex.P.2 is the said complaint.
(c)P.W.3-Vadivel Ravanan and P.W.4-Shanmugavadivel, who were the participants in crime have turned as the prosecution witnesses. A-1 [Pozhilan] and A-7 [Ilamurugan @ Balasubramanian] were the friends of P.W.3 between 1976 and 1979. A-4 [Thiruvalluvar @ Arivazhagan] and A-10 [Kundalakesi] were the college friends of P.W.4. A-14 [Gunasekaran] became the friend of P.W.4 during the processions and agitation conducted in order to support the Srilankan Tamilians. During the first week of April 1988, A-3 [Mugilan} became the friend of P.W.4. During 1981, P.W.3 while working as News Reader in All India Radio and being an patriot of Tamil language, he attended the meeting "Ulaga Tamizhina Munnetra Maanadu" as a spectator conducted by one Perunchithiranaar at Periyar Thidal, Chennai and later he was appointed as District Secretary of Ulaga Thamizhina Munnetra Kazhagam, Tirunelveli District. During the month of May, 1984, in the camp held at Nilakottai, A-1 and A-6 became the friends of P.W.4.
(d)During February 1987, due to difference of opinion with his father Perunchithiranaar, A-7 [Ilamurugan], joined with P.W.3 who financially helped him to start a printing press at Trichy and stayed at P.W.10's house as a tenant. A-2 [Ilango] and A-15 [Sivadass] were introduced to P.W.3 at that time. On 20.12.1987 a Meeting was convened at Periyar Thidal, Chennai, where A-16 [Kaliyaperumal] and A-5 [Veeramani] were introduced to P.W.3. On 20.12.1987 A-1 [Pozhilan] criminally conspired to blast the Nehru Statue at Kathipara, Chennai and asked P.W.3 to support that plan. On 30.03.1988, when P.W.3 was on duty at Trichy Radio Station, A-1, A-6, Maran, A-7, A-16 and A-5 jointly planned to explode Nehru Statue and Kodaikanal TV Station by keeping Bombs and for that purpose it was decided that P.W.3 should help them by providing money. On 04.04.1988 at 8.00 a.m., Maran went to P.W.3's residence and gave some books and received Rs.200/- from P.W.3 and informed him that he gave Stengun and gun powder to A-6.
(e)A-1 introduced A-3 to P.W.4 who is a patriot of Tamil language during the month of April 1988 and told that A-4 and P.W.4's help for exploding the Nehru statue may be sought for. On 07.04.1988, at a residence at Kasimedu, Chennai, A-9, A-1 and Maran met and A-3 brought Gelatin sticks out of which A-1 and A-3 prepared bombs. Later, in order to protest against Hindi speaking people, Maran took M.Os.4 and 5-pamphlets containing words against Hindi speaking people. On 09.04.1988, as per the plan, A-1, A-3,A-4, P.W.4 and Maran met in a Lodge and slept there. On 10.4.1988, at about 2.30 a.m., P.W.4 went in a motor cycle belonging to A-1 and others went in cycles to the scene of occurrence [Nehru statue] and A-3 kept the time bomb in such a way that it gets exploded in half an hour. After keeping the bomb, he kept two pamphlets in a grassy place leading to Ekkatuthangal road. When they were returning near Kasi theatre, after hearing the blast sound, all the five assembled at P.W.4's lodge and A-1 informed Maran to go to Trichy and execute the other plan successfully. A-1 and P.W.4 went to Velachery and gave the motor cycle to A-1's friend from whom A-1 had borrowed the vehicle. Later, P.W.4 took his cycle and went away. P.W.3, on 11.04.1988, came to know after reading the newspaper about the explosion at Nehru statue. After a week, he came to P.W.4's college and informed him that police are in search of A-14 and that he should go to some other place.
(f)P.W.2 after witnessing the occurrence as narrated above, on 10.04.1988 at 4.50 a.m., went to St.Thomas Mount Police Station and lodged a complaint, Ex.P.2 to the Inspector of Police based on which a case came to be registered in Crime No.250 of 1988 under sections 5(3) of the Explosives Substance Act, 1908 and 427 IPC and Ex.P.71-printed First Information Report was sent to the Court concerned and to the higher officials. At 5.30 a.m., he went to the scene of occurrence, in the presence of P.W.33-Rajendran, Village Administrative Officer and one Santhanakrishnan, he prepared Observation Mahazar-Ex.P.25 and Ex.P.-72-rough sketch. He also recovered, M.O.1 series-five broken stone pieces, M.O.37 series-broken glass pieces of electric lights, M.O.2 series-four twine pieces, M.O.3 series-blue coloured cloth piece, M.O.32-torn newspaper pieces, M.O.36-match box, M.O.33 series-metal pieces of melted battery, M.O.90- four inch rod, M.O.91-one inch rod, M.O.34-thread bundle, M.O.35-five inch rubber piece, M.O.38-burnt metal plates and M.O.39 series-three electric wires, under the cover of Mahazar Ex.P.26.
(g)P.W.1 working as an Assistant Engineer at Kodaikanal after witnessing the damages to the TV Station, informed over telephone on 11.04.1988 at 8.00 p.m., the Inspector of Police of Kodaikanal Police Station and on receiving complaint from P.W.1, Ex.P.1, he registered a case in Crime No.70 of 1988 under section 286, 427 IPC and Section 9(b) of Explosives Substance Act, 1908 and Section 2 of PPD Act Ex.P.74-printed First Information Report was sent to the Court concerned and to the higher officials. P.W.61 went to the scene of occurrence at 9.15 a.m. and arranged for security to that place.
(h)P.W.29, Dr.Mary Karkada, the doctor attached to Van Alan Hospital, when she was in her house, at 7.45 p.m., on hearing the blast sound coming from TV Station, came out. At that time, her neighbour one Rajanvarma told her that somebody has fallen down and she went and saw A-2 lying with injuries all over the body. She took him to the hospital and treated him. A-2 had informed her that when he went to keep bomb in the TV Station, the person who accompanied him had died due to the blast and he had escaped with injuries and that he belongs to Viduthalai Padai Iyakkam. He also deposed to P.W.29 that one Tamizharasan is the leader of the said Iyakkam and that it was they who had exploded the Nehru statue at Chennai. P.W.29 informed the Kodaikanal Police Station at about 10.00 p.m. P.W.61, the Investigating Officer, on information, went to the hospital at 11.30 p.m., and arrested A-2. He sent A-2 to Kodaikanal Government Hospital along with a memo for further treatment at 00.45 hours. At 1.00 a.m., near the house of Rajanvarma, in the presence of P.W.34-Revenue Inspector Mothilal and one Barathan-Village Administrative Officer, he recovered M.O.42-Burnt shirt, M.O.43-blood stained shirt, M.O.44-blood stained banian, M.O.45-brief under the cover of Mahazar Ex.P.28.
(i)P.W.61, the Investigating Officer, at 7.30 a.m., on 12.04.1988, in the presence of the same witnesses, at the scene of occurrence prepared Ex.P.29-the Observation Mahazar and Ex.P.75-the rough sketch. He also recovered in the presence of the same witnesses at 9.00 a.m., M.O.24-Polyester shirt, M.O.98- burnt portion of a cloth bag, M.O.49-a twenty rupees note, M.O.51-a two rupees note, M.O.50-a five rupees note and he recovered from the place where the dead body was lying, M.O.99-a portion blood stained pant, M.O.47 series-a pair of chappals, M.O.100-bag which was hanging on the compound wall, M.O.48-burnt lungi, M.O.53-damaged cement piece, M.Os.4 and 5-two posters respectively under the cover of Mahazar Ex.P.76. He also held inquest upon the body of the deceased between 10.00 a.m. and 1.00 p.m., in the presence of witnesses and panchayatdars through Ex.P.77-the Inquest Report. He sent the dead body for postmortem through the constable.
(j)P.W.49, the doctor attached to Kodaikanal Government Hospital during the relevant period, examined A-2 on 11.04.1988 who came with a medical memo and treated him. Ex.P.47-is the Accident Register wherein he had found the following injuries:
"1.Blast injuries over the right temporal area.
2.Blast stained seen right ear (clotted).
3.Abrasion on right temporal area.
4.Contusion over both upper arm.
5.Contusion over the hip.
6.Blast (multiple) injuries over the back."
The doctor had opined that the injuries are grievous as per the Radiologist report (Ulnar nerve Paralysis (Right)) and the same is also grievous. He also sent the patient to Madurai Rajaji Government Hospital for further treatment. P.W.49, on the same day at 1.30 p.m., conducted autopsy on the dead body of Maran and Ex.P.49-the Postmortem Certificate wherein he found the following external injuries:
"EXTERNAL INJURIES:
Head is not found above the lower jaw some part of tongue and 3 teeth are present and on the back the portion of occipital bone is present. Blast deep injury is seen on the throat above the supra sternal notch. A big bomb blast collapsed injury over the left whole part of the chest. Crushed injuries seen on the left inguina area. Scrotum is not found except a piece of skin of scrotum. A blast deep crushed injury on the left thigh. A blast injury on right upper arm below the elbow taken away the rest of arm. A cut deep blast collapsed injury below the knee taken the rest part. No external injuries on the abdomen."
The doctor had opined that the deceased would appear to have died of extensive multiple blast injuries to the vital organs and head injuries, vessels crushed and haemorrhages due to explosives. He also opined that injury No.1,2 and 6 are possible due to bomb blast."
(k)P.W.61, the Investigating Officer continued the investigation and recovered M.O.52-bag, M.O.54-the urea bag collected from inside M.O.52, M.Os.55 and 56- two tins containing gelatin detonators, M.O.101 series-white cloth used to cover M.Os.55 and 56, M.O.57-a plastic box containing battery cell, M.O.102- broken alarm time piece, M.O.58-a three pin plug, M.O.10-box, M.O.59-torch, M.O.60-blood stained earth and M.O.61-sample earth, under the cover of Mahazar Ex.P.30. He also recovered M.O.62 series-broken glass pieces from the Assistant Engineer Room of the TV Station under a cover of Mahazar Ex.P.31. He placed the records before P.W.68, the Deputy Superintendent of Police, CBCID, Madurai for further investigation.
(l)In the mean time, P.W.66-the Deputy Superintendent of Police, CBCID, Chengalpattu, on getting oral instructions from Deputy Inspector General, took up the investigation in Crime No.250 of 1988. On 15.04.1988, he recorded the statements of P.Ws.45 and 40. On 26.05.1988 and 01.06.1988, he received the statements given by A-6 and P.W.3 before the Court concerned. P.W.42, learned Judicial Magistrate No.1, Madurai, on 12.04.1988 at 10.15 a.m., went to Madurai Rajaji Government Hospital to record the dying declaration-Ex.P38 of A-2 [Ilango] on receiving Ex.P.37-requisition. P.W.41, the learned Judicial Magistrate No.2, on getting instructions from the learned Principal District Judge, on 31.05.1988 at 4.30 p.m., recorded the statement of P.W.3 under Ex.P.35. P.W.44, the learned Principal District Judge sent summons to P.W.3 who appeared before him and accepted the confession given before the learned Judicial Magistrate NO.2, Nilakottai and P.W.44 issued orders stating to treat the said Vadivel Ravanan as prosecution witness.
(m)P.W.66, the Deputy Superintendent of Police, On 26.05.1988, at 3.15 p.m., sent P.W.59, the Inspector of Police to Esplanade Police Station to arrest A-8 in the presence of P.W.47. The accused/A-8 voluntarily came forward to give a confessional statement, the admissible portion of which is marked as Ex.P.44, pursuant to which at 6.30 p.m., M.O.68-book was recovered under the cover of Mahazar Ex.P.45. On the next day, A-8 was produced before the Saidapet Court and all the materials were sent to the Court concerned. On 06.06.1988, on receiving information, sent P.W.52 to arrest A-5, who after arrest was produced before the Saidapet Court on 07.06.1988.
(n)P.W.66, on 04.07.1988, at 5.00 p.m., arrested P.W.4 in the presence of P.W.46 and one Mohammed. P.W.4 gave a statement pursuant to which M.O.65-Silver Plus Motor cycle belonging to P.W.37, bike keys-2, R.C.Book were recovered under Ex.P.43-Mahazar. P.W.4-Shanmugavel sent a requisition Ex.P.68 to concerned learned Judicial Magistrate to give a confessional statement. The Investigating Officer sent a petition under Ex.P.89 to District Collector, Chengalpattu, to register a case against A-4, A-5 and A-8 under the Explosives Substance Act, 1908 and received the Collector's order under Ex.P.63. P.W.57, the learned Judicial Magistrate followed the proceedings and recorded the confessional statement-Ex.P.70, of P.W.4.
(o)P.W.60, the Inspector [Special Branch], CBCID, on 10.05.1988, on getting instructions from the Deputy Superintendent of Police, CBCID, Madurai to investigate upon the deceased Maran and A-6 who was one of the associate of the Movement run by Maran, went to C-364, Housing Board Colony, Anna Nagar along with the Village Administrative Officer Ramalingam and one Thiyagarajan, to recover the material objects in Exs.P.92,6,73,70,93,94,7,5,8,9,96,10,12,11 and 97 under Ex.P.4-Mahazar. Then P.W.60 prepared a printed First Information Report under Ex.P.73 against A-6 under the Explosives Substance Act, 1908. P.W.62-the learned Judicial Magistrate, Chengelpattu, on 23.091.988 tendered pardon to P.W.4 under section 306, Cr.P.C. through Ex.P.80. P.W.67 states that the learned Judicial Magistrate No.1, Trichy, recorded the confessional statement of A-6 by following the procedures contemplated under the law through Exs.P.91 and 92.
(p)P.W.48-T.A.Ravindran, rented a portion of his house to Perunchithiranaar and his son A-1 under an agreement, Ex.P.46. P.W.56, the Sub Inspector of Police, on 03.07.1988 at 12.30 p.m., registered a case against one Arputharaj in Crime No.441 of 1988 under section 3 of Indian Arms Act when he was handed over to him by P.W.68-the Deputy Superintendent of Police and prepared Ex.P.67 the printed First Information Report and sent it to the Court concerned. In the presence of P.W.30, A-1 gave the pistol to the police which was recovered under a cover of Mahazar-Ex.P.24. P.W.55-the Sub Inspector of Police of Ammapet Police Station, Salem, on 05.06.1988 at 2.45 p.m., registered a case in Crime No.453 of 1988 under section 9(b) of Explosives Substance Act, based on the material objects handed over by P.W.68 and Ex.P.66 is the printed First Information Report. P.W.5, the Sub Inspector of Police of Tiruvanandapuram Airport Police Station, on 12.04.1988, gave the details about A-15 [Balachandran] who traveled to Srilanka and also verified his passport bearing No.054927. P.W.64 gave Ex.P.83-Chemical Analyst Report after examining the articles sent to him. P.W.66, the Investigating Officer on 15.3.1991 at 6.15 p.m., arrested A-15 at Tambaram Bus Stand, Chennai in the presence of witnesses and recovered M.Os.109,110 and 11 through Ex.P.90-Mahazar.
(q)P.W.68-the Deputy Superintendent of Police, Madurai, on 14.04.1988, on getting instructions from P.W.66, took up investigation in Crime NO.70 of 1988 and examined the witnesses. On 17.04.1988, he met P.W.66 with regard to the case registered in Crime NO.70 of 1988 and continued his investigation in Vellore and Pothanoor as regards A-2. On 28.04.1988, he enquired A-6 and examined the material objects recovered on 12.04.1988 by P.W.60. On 12.05.1988 between 4.00 p.m. and 5.00 p.m., based on the statement given by A-6 regarding the Tamil Nadu Viduthalai Paadai Movement headed by A-1 and the participants Maran [since deceased], A-15, A-2, P.W.3 and A-7, the Investigating Officer conducted a search in A-7's residence and recovered M.Os.13,112,11,23,14,16,115,17,116,19,21,22,20 in the presence of P.W.13 through Ex.P.5. He also took up the investigation in Crime No.144 of 1988 and on 10.04.1988, he went to Trivandrum Airport; examined P.W.5-P.K.R.Nair and recovered Exs.P.3 and 93. On 18.05.1988, at 2.00 p.m., he arrested P.W.3 and he showed the photograph of the deceased Maran to P.W.3 and the witness and confirmed that it was Maran who died in the occurrence that had taken place on 11.04.1988. He also sent a petition to the Magistrate Court concerned to record the statement of P.W.3 and he also received the statement given by A-6 under section 164 Cr.P.C. Since the cases in Crime Nos.144 of 1988 and 70 of 1988 are connected ones, the Investigating Officer sent a requisition to the learned learned Judicial Magistrate No.3, Trichy, to send all the documents to Nilakottai Judicial Magistrate Court.
(r)P.W.68, the Deputy Superintendent of Police, on 30.05.1988 at 11.00 p.m., he arrested A-7 at Kajamalai, Trichy in the presence of P.W.10 and one Balasubramanian. He also sent a requisition to the Court concerned to record the statement of A-7 under section 164 Cr.P.C. On 04.06.1988, as per the directions of Nilakottai learned Judicial Magistrate, he took A-2 for police custody and based on the confessional statement given by A-2 in the presence of P.Ws.16 and 18, A-2 identified P.W.19-Shanmugam's house from where gelatin sticks-140 nos.,Electric Detonators-17, Two Fuse Thread bundles were recovered through Ex.P.8-Mahazar in the presence of P.W.17. P.W.63-learned Magistrate recorded the confessional statement-Ex.P.82, of A-7. P.W.68 handed over the material objects recovered from P.W.19's house to P.W.55-the Inspector of Police, Ammapet Police Station, based on which a case came to be registered against P.W.19 in Crime N0.463 of 1988 under section 9(b) of the Explosives Substance Act, the printed First Information Report of which is marked as Ex.P.66.
(s)P.W.68, the Investigating Officer on 06.06.1988 at 11.00 a.m., went to Kodaikanal and enquried P.Ws.21 and 22 who were employed under P.W.20-Mustafa's lodge and recovered Exs.P.13 and 6-the Lodge Register and bill pertaining to the purchase of the alarm time piece. On 08.06.1988 at 6.00 p.m., A-2 was sent for judicial remand. On the same day P.W.12 was enquired and his statement was recorded. On 21.06.1988, he enquired and recorded the statement of P.W.49-the doctor who treated A-2 and conducted postmortem of the deceased Maran. On 27.06.1988 A-2 was directed to be kept under custody under the National Security Act as per the direction of the District Collector, Dindigul. On 28.06.1988, the Investigating Officer arrested A-1 and A-3 in the Palladam A.P.Sheik lodge in the presence of P.W.23 and on Songoda Kounder. A-1 gave a confessional statement, the admissible portion of which is marked as Ex.P.20, pursuant to which on 30.06.1988 at 10.00 a.m., A-1 identified the house of A-14 from where in the presence of P.W.65 and the said Songoda Kounder, M.Os.104,80,81 series,82 series, 83 series, 84 series, 85 series, 86 series, 87 series, 89,117,118,18,119,20 were recovered through Ex.P.84-Mahazar. He also arrested A-14. Later, the Investigating Officer went to Triplicane at 12.00 noon and arrested A-10 in pursuance of the identification of A-10 by A-1 and recovered M.Os.105, 72,71,74,75,76,106 through Ex.P.85-Mahazar in the presence of the same witnesses. At 1.30 p.m., he recovered M.O.108 from the office of Ulaga Tamizh Munnetra Kazhagam situate at Walajah Road through Ex.P.86-Mahazar. At 3.00 p.m., he arrested A-7 and recovered M.Os.17,77,78 series and 79 series through Ex.P.87-Mahazar in the presence of the same witnesses. All the arrested accused [A-14, A-7, A-10 and A-1] were produced before the learned II Metropolitan Magistrate, Saidapet.
(t)A-3 identified the house to P.W.68, the Deputy Superintendent of Police where the bombs were prepared. On 01.07.1988 at 10.00 a.m., A-1 identified A-12 [Bavanandhi] at Kancheepuram and recovered from A-12's house, four gelatin sticks, one electric detonator through Ex.P.22-Mahazar in the presence of P.W.28. At 12.30 p.m., A-3 identified A-11 and A-11 was arrested and from his house M.Os.25, 26 series, 27 series, 28 and 29 through Ex.P.23-Mahazar in the presence of the same witnesses. A-11 and A-12 were produced before the learned Judicial Magistrate, Kancheepuram and got their remand extended. On the same day, at 4.30 p.m., he came to Aarani and pursuant to the identification of A-3, the Investigating Officer recovered from the shop of the witness Prabakaran, gelatin sticks-89, detonators-76, Ordinary fuse wire of detonator-19, another fuse wire 284 through Ex.P.18-Mahazar in the presence of P.W.25-Kumar. On identification of P.W.25, the Investigating Officer recovered material objects through Ex.P.19-Mahazar from one Vanitha's house. All the material objects recovered were submitted to P.W.54-the Inspector of Police along with a separate Report, based on which P.W.54 registered a case in Crime No.384 of 1988 under section 9(b) of Explosives Substances Act and prepared Ex.P.64-printed First Information Report. He also registered a case against Vanitha in Crime No.394 of 1988 under section 9(b) of the Explosives Substance Act and Ex.P.65 is the printed First Information Report.
(u)P.W.68, in continuation of his investigation, on 02.07.1988 went to Kanchipuram and recorded the statements of P.W.27 and one Thanigaiarasu. On the same day, he recovered Ex.P.94 from P.W.15. Then, A-3 identified the house of A-13 at Pondicherry pursuant to which M.Os.121,125 series, 12 series and some gelatin sticks and electric detonators-3 were recovered through Ex.P.95-Mahazar. He also arrested A-5 [Veeramani] whose remand was extended till 04.07.1988 after getting approval from the learned Magistrate concerned. On From the house of V.N.Arasu, material objects were recovered through a Mahazar pursuant to the identification of A-1. On 04.07.1988 the Investigating Officer came to Madurai and A-1 and A-3 were sent for judicial custody. A-13 was kept under police custody. On 21.07.1988, the Investigating Officer went to Kodaikanal and enquired P.Ws.1 and 31 and one Vijayan and recorded their statement with regard to the damages to the TV Station.
(v)P.W.50 examined the cartridges and pistols and gave Exs.P.52 and 54- Reports respectively. P.W.51 compared the signatures of A-1 and A-2 in M.Os.1 to 4 and gave a report through Ex.P.57 opining that the signatures in the material objects well suits the signatures of A-1 and A-2. P.W.68, on 12.09.1988 sent Vadivel Ravanan to Court concerned who was willing to turn as a prosecution witness. On 21.09.1988, P.W.44-the learned Principal District Judge, Madurai, tendered pardon to P.W.3 and he accepted Vadivel Ravanan as Prosecution witness through Ex.P.42. On 13.10.1988, he sent a requisition under Ex.P.96 to the Forensic Lab to examine the pistol recovered from A-14. He also sent Ex.P.97-requisition to the District Collector, Dindigul, to register cases against the accused persons under the Explosives Substance Act and Indian Arms Act to which course the District Collector gave orders through Exs.P.39 and 40. On 14.12.1988, P.W.68, the Deputy Superintendent of Police came to Chennai and since the crime committed in both the crime Nos.250 of 1988 and 70 of 1988 are by one and the same group, he along with P.W.66 were instructed to file a common First Information Report to which course, the examined the orders issued by the District Collector. On 15.03.1991 at 6.30 p.m., A-15-Sekar was arrested and he was sent for judicial remand on the next day. On 25.04.1991, a petition was filed to keep A-15 in custody under National Security Act. One Sundaram, the accused in this case remained absconding. On completing the investigation, the Investigating Officer filed the final report against all the accused persons including Sundaram under sections 120(b) and 427 IPC read with Section 3,4,5 and 6 of the Explosives Substance Act; Section 4 of PPD Act and Section 3 read with 25(1)(b)(a) and section 27 of Indian Arms Act. Since the said Sundaram was absconding, a separate case in Crime No. 03 of 1993 was taken up for investigation.
4.Before the Trial Court, the prosecution examined 68 witnesses, marked 99 exhibits and produced 125 material objects. On the side of the defence, 6 exhibits were marked.
5.The accused were questioned under Section 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses against them. They denied them as false. On considering the oral and documentary evidence, the learned Trial Judge framed charges against the accused as mentioned supra.
6.Learned Senior counsel appearing for A-1 [Pozhilan @ Mani] submitted that the first accused conviction under section 120-B IPC is not maintainable since for conspiracy except the evidence of the approvers [P.Ws.3 and 4], no other evidence is available. The approvers' evidence is only a tainted evidence and as such, the evidence of one tainted witness cannot corroborate the evidence of another tainted witness. It is the rule of prudence though not rule of law, corroboration of material particulars connecting accused is necessary and such corroboration should be by way of reliable evidence. Reliance was placed by learned Senior Counsel on the decisions reported in YASH PAL MITAL Vs. STATE OF PUNJAB [AIR 1977 SUPREME COURT 2433], CHONAMPARA CHELLAPPAN AND OTHERS Vs. STATE OF KERALA [1979 (4) SUPREME COURT CASES 312], RAM NARAIN Vs. STATE OF RAJASTHAN [1973 SCC (CRI.) 545], MOHD.HUSAIN UMAR KOCHRA ETC. Vs. K.S.DALIPSINGHJI AND ANOTHER ETC. [1969 (3) SCC 429] and RENUKA BAI ALIAS RINKU ALIAS RATAN AND ANOTHER Vs. STATE OF MAHARASHTRA [2006 (3) SCC (CRI.) 290].
7.It was submitted by learned Senior Counsel that no single material of explosive substance is marked in this case. He also submitted that no property was directly recovered from the first accused, though according to prosecution in pursuance of his confession, property was recovered from other accused. The recovery would not connect the first accused with the alleged crime. The recoveries made from other accused cannot be said to be within the knowledge of the first accused. Placing reliance on the decisions reported in PULUKURI KOTTAYA AND OTHERS Vs. EMPEROR [AIR (34) 1947 PRIVY COUNCIL 67], learned Senior Counsel submitted that under section 27 of the Indian Evidence Act, the discovery of fact alone is admissible and not the discovery of the properties. Even otherwise, the recoveries made by the prosecution are suspectable. The recoveries are made in several places and the same mahazar witness had been taken and was kept by the police officer for nearly two months.
8.It was further submitted by learned Senior Counsel that the learned Trial Judge was prejudiced by the descriptions made by the prosecution in certain documents as offences under section 121 and 124(A) IPC and describing as waging war. Even the first charge describes of such allegations, but there was no specific charge under section 121 or 124 IPC. He also submitted that there was malafide on the part of the investigating authorities and there was no act of terrorism by the first accused. Mere taking part in a meeting and speaking is not aiding terrorism. He also placed reliance on the decision reported in P.NEDUMARAN AND FIVE OTHERS VS. STATE REP. BY DEPUTY SUPERINTENDENT OF POLICE, Q BRANCH CID, CHENNAI CITY CHENNAI 600 005] [2004 (1) CTC 721].
9.Learned Senior counsel Mr.R.Shamughasundaram, appearing for A-6,A-9,A-10 and A-14 submitted that in Ex.P.20, the confession given by the first accused, the names of six accused were mentioned. But, A-12, A-13 and A-15 were acquitted by the Trial Court whereas only A-9, A-10 and A-14 were convicted which is not proper.
10.Learned counsel appearing for the second and the third accused submitted that P.W.3 had not stated anything about the third accused. Learned counsel appearing for the fourth accused submitted that no recovery was made from the fourth accused and there is no corroborating materials to convict the fourth accused.
11.Learned Additional Public Prosecutor was also heard and he had submitted that the approvers, P.Ws.3 and 4 speak about the part taken by A-1 to A-4 and the deceased Maran. The evidence of P.Ws.3 and 4 is corroborated by the fact that after conspiracy, the incident has taken place in which the deceased Maran had died and the second accused had sustained injury. The statement from the second accused is also recorded by the learned Magistrate while he was in the hospital and further the arms and ammunitions were recovered in pursuance of the confession statement given by the first accused. P.W.29, the doctor, who treated the second accused after he was being injured in the incident, also had given evidence about what was narrated to her by the second accused about the incident.
12.We have carefully gone through all the evidence and materials available in this case and the rival submissions made by either of the parties.
13.This is a case of bomb blast occurred at TV relay station at Kodaikanal in which one Maran had died on the spot and the second accused Ilango sustained injuries while they were planting the time devised bomb. The case of the prosecution is that in pursuance of the conspiracy among the accused on 10.04.1988, a time bomb was planted and set at Nehru statue at Kathippara, Madras and the said bomb was exploded causing damage to the pedestal of the statue and the electric lamps. After this occurrence, the bomb was planted at the TV relay station at Kodaikanal on the next day.
14.At the outset, before discussing the evidence available in the case, it is not understandable as to why no charge was made against the accused under section 121, 121-A and 124-A IPC. As submitted by learned Senior Counsel, Ex.P.89, the requisition letter from the Deputy Superintendent of Police to the District Collector for obtaining sanction mentions the word tht the accused had entered into criminal conspiracy to damage public property and to wage war against the Government of India by blowing of the Nehru statue at Kathippara junction, Chennai. Even the first charge framed against the accused contains substance of accusation to the extent that the accused had conspired together to act against the Government and for which they collected the arms and ammunitions.
15.Secondly, we are also unable to understand why the accused No.1 to 4 alone were convicted by the Trial Court with the aid of section 120-B IPC. The learned Trial Judge, had observed in paragraph 49 of his Judgment that the accused No.1 to 4, 6,9, 10 and 14 have conspired together and in pursuance of that conspiracy, acts were committed. But, to our surprise the accused No.6,9,10 and 14 were not convicted under section 120-B IPC along with A-1 to A-
4. The state also has not preferred any appeal against them though there had been a favourable finding in favour of the prosecution in the judgment. Anyhow, it is for us now to consider the available evidence and on that basis, to decide whether the conviction made against the appellants are sustainable.
15.As submitted by learned Senior Counsel that the evidence of the approvers, P.Ws.3 and 4, is a tainted evidence and therefore, unless there is a corroboration on material particulars, it should not have been acted upon. Also the evidence of one approver which is tainted cannot corroborate the evidence of another approver. The corroboration of the approver's evidence must be from other independent sources. In CHONAMPARA CHELLAPPAN AND OTHERS Vs. STATE OF KERALA [1979 (4) SUPREME COURT CASES 312], the Hon'ble Supreme Court has observed in paragraph 4 as follows:
"4.........
The law is well settled that the Court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence an even section 133 of the Evidence Act clearly provides that the evidence of an accomplice witness should not be accepted unless corroborated. At the same time, it must be remembered that corroboration must be in respect to material particulars and not with respect to each and every item however minor or insignificant it may be. Actually the requirement of corroboration is a rule of prudence which the courts have followed for satisfying the test of the reliability of an approver and has not been crystalized into a rule of law. It is equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated."
16.In RENUKA BAI ALIAS RINKU ALIAS RATAN AND ANOTHER Vs. STATE OF MAHARASHTRA [2006 (3) SCC (CRI.) 290], the Hon'ble Supreme Court has observed in paragraph 31 as follows:
"31.The prosecution thus succeeded in proving that these appellants have committed a series of murders. The learned counsel for the appellants strongly urged before us that the evidence of the approver should not have been accepted by the Court as it is a tainted evidence. It was argued that there is no satisfactory corroboration of the evidence of the approver and unless there is a corroboration, it should not have been acted upon. It is true that the evidence of the approver is always to be viewed with suspicion especially when it is seriously suspected that he is suppressing some material facts....."
17.With the above observations of the Apex Court, it is to be seen how far the evidence of P.Ws.3 and 4 are acceptable and whether there is any corroboration connecting each one of the accused to the crime. According to P.W.3, approver, on 30.03.1988 at 11.00 a.m., the first accused and Maran [deceased accused] came to his office and the first accused spoke over the phone to the sixth accused. The first accused informed P.W.3 that on 20.03.1988, A-2, A-5, A-6 and A-16, all joined together and taken a decision to set up a time bomb at Nehru Statue and Kodaikanal TV Station. P.W.14 had stated that during the first week of April 1988, the first accused introduced him the third accused and he had told the third accused that the fourth accused and P.W.4 can be utilised by the third accused for demolishing the Nehru statue. P.W.4 also speaks about manufacturing of time bomb by the first and the third accused. He further deposed that on 10.04.1988 at about 2.00 a.m. or 2.30 a.m., A-1, A-3, A- 4 and the deceased Maran all of them went to Nehru Statue and the third accused set the time bomb near the statue. A-1, A-4 and the deceased Maran and P.W.4 were keeping a watch. Here both P.Ws.3 and 4 speak about the first accused. But, P.W.3 do not speak about A-3 and A-4. P.W.4 did not speak about the second accused. In the said position, now it is to be seen whether there is any other corroboration to each one of A-1 to A-4. As far as A-2 is concerned, he sustained injury in the occurrence and after sustaining injury, he had been seen by P.W.29-doctor lying on the road and thereafter, he was taken to the hospital and was given treatment. While he was enquired by P.W.29-doctor, he had accepted to him that while he and the deceased Maran went to set up a bomb at TV Station tower, it had exploded and then the deceased had died at the spot and he had escaped. This part of the evidence of P.W.29 amounts to the Extra-judicial Confession from A-2. Absolutely there is no reason to reject the evidence of P.W.29 who is a respectable and independent witness.
18.Apart from that, while A-2 was in Government Rajaji Hospital, Madurai, his statement was recorded by the learned Judicial II Class Magistrate No.1, Madurai, which is marked as Ex.P.38. Though Ex.P.38 cannot be treated as a dying declaration at this stage, it can be treated as a statement given under section 164 Cr.P.C., which may be used only as a piece of corroboration.
19.As far as A-1 is concerned, apart from both the approvers referred to A-1, the sixth accused who had given a judicial confession in Ex.P.91 to the learned Judicial II Class Magistrate No.1, Trichy, in which he had spoken about the first accused and about the decisison taken to blast the Nehru Statue. A-6 had given confession implicating himself and also A-1 and A-2. The judicial confession of A-6 is inculpatory in nature. The judicial confession of the accused cannot be treated as a weak piece of evidence.
20.Section 30 of the Indian Evidence Act reads as follows:
"30.Consideration of proved confession affecting person making it and others jointly under trial for same offence:-
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."
Learned Magistrate who recorded the judicial confession of A-6 had followed the procedures and as such the confession of A-6 stands proved and therefore, can be taken into consideration against the first and the second accused.
21.Apart from the above materials, the confession of the first accused to police which led to recovery of arms and ammunitions from other co-accused also stands as a circumstance against him. Though there may not be any recovery directly from the first accused, Ex.P.20-the confession recorded by the police officer reveals the fact that a revolver and two box of bullets are available with the accused A-9, A-10 and A-14.
(i)M.O.77-country made gun, M.O.78-Special cartridge and M.O.79-Special cartridge-2 nos. were recovered from A-9 under Ex.P.87.
(ii)M.O.71-Automatic Rifle ball amunsation mark 10, M.O.72- Automatic Rifle ball amunsation, M.O.73-Pistal ball amunsation-38, M.O.74-0.22 Ball KF-4 nos., M.O.75-Special ball silver amunsation and M.O.76-Super special cartridge were recovered from A-10 under Ex.P.85.
(iii)M.O.80-0.38 ball amunsation 107, M.O.81-0.450 ball amunsation 33, M.O.82-0.555 ball amunsation 60, M.O.83-0.765mm ball 14, M.O.84-Laguva 38 spl- 28, M.O.85-0.45 ball amunsation 48 short, M.O.86-0.65 ball amunsation 14 long and M.O.87-0.55mm ball amunsation-57 were recovered from A-14 under Ex.P.84.
22.The question is whether the recoveries made from those accused can be used as an incriminating circumstance against the first accused. Section 27 of the Indian Evidence Act reads as follows:
"27.How much of information received from accused may be proved:-
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
23.Here, the disclosure of statements made by the first accused is to the effect that arms and ammunitions are available with the other accused. The information furnished by the first accused leads to the discovery of a fact that arms and ammunitions are available with A-9, A-10 and A-14 and subsequently, it led to recovery of those articles. Therefore, the information furnished by the first accused is a discovery of fact as admissible under section 27 of the Indian Evidence Act. It can be said only to the extent that the first accused had knowledge that arms and ammunitions were available with the other co-accused and not more than that. In PULUKURI KOTTAYA AND OTHERS Vs. EMPEROR [AIR (34) 1947 PRIVY COUNCIL 67], which is the landmark decision under section 27 of the Indian Evidence Act, wherein it is held in paragraph 10 that:
"10.Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact there by discovered may be proved. The section seems to be based on the view that if a fact is actually discovered inconsequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr.Megaw, for the Crown, has argued that in such a case the fact discovered is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confession made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But, if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26 added by section 27 should not be held to nullify the substance of the section. In their Lordship's view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to the discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife. Knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But, if to the statement the words be added "with which I stabbed A"
this words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
24.With regard to the accused No.3 and 4, the approvers P.Ws.3 and 4 do not refer them at all. Though P.W.4 refers A3 and A4, there is no other corroboration supporting the evidence of P.W.4 with regard to A-3 and A-4. Nothing about A-3 and A-4 either in the Extra-judicial Confession of A-2 or in his statement to the learned Magistrate in Ex.P.38 or in the judicial confession given by A-6 in Ex.P.91. No recovery is made either from A-3 or A-4 or in pursuance of the confession of A-3, no property has been recovered and ultimately there is no corroboration in the evidence of P.W.4 to connect A-3 and A-4. As far as A-6, A-9, A-10 and A-14 are concerned, the arms and ammunitions recovered from them, which are not the properties ordinarily transferable and mere possession itself being an offence, establish their guilt. As far as the sixth accused is concerned, apart from the recovery, there is judicial confession given by him before the learned Magistrate. The contention of learned Senior Counsel Mr.Shanmugasundaram, that A-6, A-9, A-10 and A-14 are convicted under the Arms Act and Explosives Substance Act and their trial along with the other accused would amount to mis-joinder of charges or mis-joinder of persons, cannot be accepted. Though A-6, A-9, A-10 and A-14 are not convicted along with A-1 and A-2 under section 120-B IPC, the case of the prosecution is that there had been a conspiracy among all the accused. Subsequent acquittal of some of the accused on some of the charges do not give a right to raise an objection as a case of mis-joinder of charges or mis-joinder of persons. Considering the totality of the case, the trial is not vitiated.
25.Therefore,
(a)we confirm the conviction and sentence imposed on the sixth accused by the Trial Court.
(b)In respect of A-9 an A-14, their conviction under section 5 of the Explosives Substance Act read with 120-B IPC is set aside. But their conviction under section 3 read with 25(1-B)(a) of Indian Arms Act and sentence imposed by the Trial Court is confirmed.
(c)The conviction of A-10 under section 3 read with section 25(1)(A)(a) of Indian Arms Act and the sentence imposed by the Trial Court is confirmed.
(d)The conviction of A-1 and A-2 under sections 3,4 and 6 of Explosives Substance Act, 1908 read with 120-B IPC is confirmed, but the sentence of life imprisonment, which is the maximum sentence provided under the section is modified to a period of ten years rigorous imprisonment. The period already undergone shall be given set off.
(e)The convictions of A-1 under section 3 read with Section 25(1-B)(a) of Indian Arms Act and section 4 of PPD Act and the sentence imposed by the Trial Court are confirmed.
(f)The conviction and sentence imposed by the Trial Court on A-3 and A-4 are set aside.
26.In the result, Criminal Appeal Number Preferred by Allowed/Dismissed 233 of 1997 A-6 A-9 and A-14 Dismissed Partly Allowed 234 of 1997 A-10 Dismissed 268 of 1997 A-1 Partly Allowed 336 of 1997 A-3 Allowed 284 of 1997 A-4 Allowed 402 of 1997 A-2 Partly Allowed ap To
1.The Principal Sessions Judge, Dindigul.
2.The Deputy Superintendent of Police, CBCID, Madurai.
3.The Inspector of Police, St.Thomas Mount Police Station, Chennai 600 016.
(Crime No.250 of 1988)
4.The Inspector of Police, Kodaikkanal Police Station, Kodaikkanal.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.