Madras High Court
M.Manimaran (A2) vs The State Of Tamil Nadu on 31 August, 2016
THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 24.08.2016 PRONOUNCED ON : 31.08.2016 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Appeal Nos.55, 91, 94, 100 and 136 of 2016 M.Manimaran (A2) .. Appellant in Crl.A.No.55/16 1. Bala @ Balamahendhiran (A14) 2. Anbu (A15) 3. Baskar (A16) 4. Bala Shankar (A17) 5. Thirunavukarasu (A18) 6. Saravanan (A19) 7. Vengu @ Vengatesan (A20) 8. Prem @ Premkumar (A21) 9. Vimal @ Vimal Raj (A22) 10. Anbarasu (A23) 11. Kumar @ Kutta Kumar (A24) 12. Arivazhagan (A25) 13. Dilli (A26) 14. Munusamy (A27) .. Appellants in Crl.A.No.91/16 1. Jeeva @ Jeevarathinam (A1) 2. Uruthiran @ Urithira Kumar (A3) 3. Raj @ Auto Raj (A6) 4. Iyyaapan @ Balraj (A7) 5. Rajini @ Parthiban (A8) 6. Settu @ Illango (A9) 7. Nagaraj (A10) 8. Kali @ Kalidoss (A11) 9. Prakash (A12) .. Appellants in Crl.A.No.94/16 1. Anbazhagan @ Anbu (A4) 2. Velayudham (A5) .. Appellants in Crl.A.No.100/16 Nagaraj @ Sappai Nagaraj (A28) .. Appellant in Crl.A.No.136/16 - Vs - The State of Tamil Nadu, Rep. by The Inspector of Police, B-4 Police Station, Sevvapet, Thiruvallur. (Crime No.48 of 2003) .. Respondent in all the cases Prayer in all the appeals:- Appeals filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned I Additional Sessions Judge, Tiruvallur, in S.C.No.141 of 2007 dated 21.12.2015. For Appellant in Crl.A. : Mr.V.Prakash No.55 of 2016 SC for Mr.K.Sudalaikannu For Appellants in Crl.A.: Mr.V.Gopinath No.91 of 2016 SC for Mr.M.R.Senthil Kumar For Appellants in Crl.A.: Mr.N.Panchaksharamoorthy No.94 of 2016 For Appellants in Crl.A.: Mr.T.Muniratnam Naidu No.100 of 2016 For Appellant in Crl.A. : Mr.C.S.S.Pillai No.136 of 2016 for Mr.V.Devendhiran For Respondent : Mr.V.M.R.Rajendran in all the appeals Additional Public Prosecutor - - - - - C O M M O N J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu, J.) The appellants are the accused 1 to 12 and 14 to 28 in S.C.No.141 of 2007 on the file of the learned I Additional Sessions Judge, Tiruvallur. The trial Court framed as many as 10 charges against the accused as detailed below:
Serial Number of charge Charge(s) framed against Charge(s) framed under Section 1 A1 to A28 148 of IPC 2 A1 to A28 120(B) of IPC 3 A6 to A28 449 of IPC 4 A1 to A5 449 r/w 149 of IPC 5 A6 to A28 341 of IPC 6 A1 to A5 341 r/w 149 of IPC 7 A6 to A8 & A10 to A16 302 of I.P.C.8
A1 to A5, A9 & A17 to A28 302 I.P.C. r/w 149 of IPC 9 A6 to A28 506(ii) of IPC 10 A1 to A5 506(ii) r/w 149 of IPC The accused No.13 Mr.Kannan @ Thiruttu Kannan died during the pendency of the trial and thus the charges framed against him stood abated. By judgment dated 21.12.2015, the trial Court convicted these appellants for various charges and accordingly sentenced them as detailed below:
Rank of the Accused Penal provision(s) under which convicted Sentence A1 to A5 148 of IPC Rigorous imprisonment for three years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.
120(B) of IPC Imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months.
449 r/w 149 of IPC Rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.
341 r/w 149 of IPC Simple imprisonment for one month and pay a fine of Rs.500/-.
302 r/w 149 of IPC Imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months.
506(ii) r/w 149 of IPC Rigorous imprisonment for three years and to pay a fine of Rs.5,000/-. A6 to A8, A10 to A12 & A14 to A16 148 of IPC Rigorous imprisonment for three years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.
120(B) of IPC Imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months.
449 of IPC Rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.
341 of IPC Simple imprisonment for one month and pay a fine of Rs.500/-.
302 of IPC Imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months.
506(ii) of IPC Rigorous imprisonment for three years and to pay a fine of Rs.5,000/-. A9 & A17 to A28 148 of IPC Rigorous imprisonment for three years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.
120(B) of IPC Imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months.
449 of IPC Rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.
341 of IPC Simple imprisonment for one month and pay a fine of Rs.500/-.
302 r/w 149 of IPC Imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months.
506(ii) of IPC Rigorous imprisonment for three years and to pay a fine of Rs.5,000/-. Challenging the said conviction and sentence, the appellants are before this Court with these appeals.
2. The case of the prosecution in brief is as follows:
2.1. All these accused belong to either Tiruvur village in Tiruvallur district or the neighbouring villages. They all belong to Scheduled Caste and they also belong to a political party. The deceased in this case was one Mr.Sukumar. He was a resident of Tiruvur village aged hardly 19 years. He belonged to non-Scheduled Caste community. He also belonged to a regional political party known as Pattali Makkal Katchi. The village was divided on communal lines and there was a long standing enmity between these two groups of people in the village.
2.2. It is alleged that some disrespectful act was done to the statute of Dr.B.R.Ambedkar at Tiruvur village. On knowing the same, the people belonging to Scheduled Castes gathered in front of the statute and indulged in road roko. At that time, the accused 1 to 5 came to the said place in two motorcycles. The accused 6 to 28 were in the crowd. The accused 1 to 5 induced accused 6 to 28 that for the above act of disrespect shown to Dr.B.R.Ambedkar, they should kill someone belonging to Pattali Makkal Katchi. They also told that the members of Pattali Makkal Katchi were organising a function to hoist their party flag in the village. Therefore, accused 1 to 5 induced and instigated others to go and kill somebody belonging to the said party.
2.3. It is alleged that on being induced by A1 to A5, the accused 6 to 28 went to the field of one Mr.Sukumar (deceased) surrounding the deceased at his field, it is alleged that A6 to A16 attacked the deceased with deadly weapons like aruval, patta knife and also with wooden logs. The deceased fell down sustaining serious injuries and died instantaneously. The accused 6 to 28 fled away from the scene of occurrence.
2.4. The occurrence was witnessed by P.Ws.1 to 5. P.W.1 immediately went to Sevvapet Police Station and made a complaint at 11.30 a.m. on 01.02.2003. In the complaint, he mentioned 11 persons as named accused and few other unnamed accused who could be identified by him. Ex.P1 is the complaint. P.W.11, the Inspector of Police in-charge of Sevvapet Police Station, registered a case in Crime No.48 of 2003 under Sections 147, 148, 302 and 506(ii) I.P.C. Ex.P7 is the F.I.R. He forwarded both the documents to Court.
2.5. Taking the case for investigation, P.W.11 went to the place of occurrence at 02.30 p.m. He prepared an observation mahazar and a rough sketch in the presence of P.W.6 and another witness. He recovered bloodstained earth and sample earth from the place of occurrence. Then, he conducted inquest on the body of the deceased. Ex.P8 is the inquest report. He then forwarded the body for postmortem.
2.6. P.W.10 Dr.Sekar conducted autopsy on the body of the deceased on 01.02.2003 at 03.30 p.m. He found the following injuries:
External Injuries: (1) cut injury over FT palm just below the wrist about 8x2x2 cms exposing cell metacarpal. (2) cut injury over dirtal peulnar crease about 8 x 2 cms exposing bones (Rt). (3) cut injuries over (Lt) palm just below the wrist 8x2x2 cms exposing all metacarpal. 7X2x2 cms exposing bones (4) cut injuries over Lt distal crease about 7x2x2 cms exposing bones. (5) cut injury over Rt side on the back neck and extending from middle of S.M. Muscles to post entor portion 2 cms Lt side of C.Spine cervical vertebrae (3,4,5,6 exposed), Cervical cord cut at the level of C4 and C5. (6) Cut injury over right shoulder about 3x2x2 cms.
Internal examination: All internal organs pale and soft, congested, heart empty and stomach contains undigested food particles of about 60 ml. Ex.P5 is the postmortem certificate and Ex.P6 is his final opinion. According to him, the deceased had died due to shock and hemorrhage due to the multiple injuries found on the body.
2.7. P.W.11 arrested A14 Bala @ Balamahendhiran on 03.02.2003 at 11.45 p.m. in the presence of P.W.6 and another witness. On such arrest, he made a voluntary confession, in pursuance of the same, he took the police and the witnesses to the place of hideout and produced a knife with wooden handle. P.W.11 recovered the same under a mahazar. At the same place, he arrested A13 Mr.Kannan @ Thiruttu Kannan and A17 Mr.Bala Shankar. On such arrest, A13 made a voluntary confession, out of which, a knife was recovered. Out of the voluntary confession made by A17, four wooden logs were recovered. Similarly, the other accused were also arrested and from whom also weapons were recovered. Investigation was thereafter taken over by his successor P.W.12 and on completing the investigation, he laid the chargesheet against the accused.
2.8. Based on the above materials, the Trial Court framed appropriate charges as detailed in the first paragraph of the judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 12 witnesses were examined, 45 documents and 25 material objects were marked.
2.9. Out of the said witnesses, P.Ws.1 to 5 are the eyewitnesses to the occurrence. P.W.6 has spoken about the preparation of the observation mahazar, a rough sketch and also the arrest of some of the accused and the consequential recovery of weapons. P.W.7 has also spoken about the arrest of some more accused and consequential recovery of the weapons. P.W.8 was the Village Administrative Officer, she has spoken about the confession made by some of the accused and consequential recoveries of the material objects. P.W.9 has also spoken about the arrest of the other accused and the recoveries of the weapons made out of the disclosure statement. P.W.10 has spoken about the postmortem conducted and his final opinion regarding the cause of death. P.Ws.11 and 12 have spoken about the investigation done and the final report filed.
3. When the above incriminating materials were put to the accused, under Section 313 of Cr.P.C., they denied the same as false. Their defence was a total denial. Having considered all the above, the trial Court convicted all these appellants as detailed in the first paragraph of this judgment and that is how, they are before this Court with these appeals.
4. We have heard the learned senior counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and we have also perused the records, carefully.
5. In this case, as we have already pointed out, P.Ws.1 to 5 are the eyewitnesses to the occurrence. P.W.1 is a neighbour of the deceased and he was owning a land just by the side of the land belonging to the deceased. According to him, a mob of people came around 10.00 a.m on 01.02.2003 and shouted that somebody from the Palli people should be killed. He has further stated that they surrounded the deceased. The accused A2 to A8 and A15 were present in the crowd. He has further stated that the accused 6 to 8 and 15 cut the deceased with aruval indiscriminately and the deceased died on the spot. Thereafter, he went to the Sevvapet police station and made a complaint. P.W.2 is the mother of the deceased. She has stated about the disrespect shown to the statue of Dr.B.R.Ambedkar by some miscreants. She has further stated that on hearing about the occurrence, she went to the place of occurrence and saw the deceased lying dead. But she has not identified any accused as the assailant. P.W.3 is an eyewitness to the occurrence. She has got lands by the side of the land where the deceased was killed. She has stated that around 10.00 a.m. on 01.02.2003, a crowd of people came, in which A6 and A8 were also present and they were armed with weapons. She has further stated that A6 and A8 cut the deceased indiscriminately and the deceased fell down in a pool of blood and died. Then all the accused ran away from the scene of occurrence. P.W.4 yet another eyewitness has also stated that a crowd of people came, surrounded the deceased and attacked him. According to him, A6 to A8, A10, A11 and A16 attacked the deceased. P.W.5 another eyewitness to the occurrence has spoken about the presence and participation of A6 to A8, A10, A11 and A16.
6. The learned senior counsel for the appellants would submit that the presence of these witnesses cannot be believed. We find no force at all in the said argument. Of course, P.W.2 has not stated anything about the identity of the assailants, therefore the evidence of P.W.2 is of no use for the prosecution. The prosecution therefore relies on the eyewitness account of P.Ws.1, 3, 4 and 5. These witnesses have spoken consistently about presence and participation of Accused A6 to A8, who according to them cut the deceased indiscriminately. There is no consistency in evidence in respect of other accused. Even the presence and participation of the other accused have not been consistently stated by these witnesses. Therefore, it is difficult to sustain the conviction of the accused except A6 to A8.
7. Now turning to the evidence against A6 to A8, the learned senior counsel would submit that the presence of these so called eyewitnesses at the place of occurrence cannot be believed. We find no force at all in the said argument. After all they got lands just by the side of the place where the deceased was killed and they got no axe to grind against these accused alone leaving behind the said accused. Though these witnesses were cross examined at length, nothing has been elicited to discredit their evidence.
8. The learned senior counsel would submit that P.W.3, during cross examination has stated that these accused were not previously known to him. Assuming that on that score, the evidence of P.W.3 can be brushed aside, the unassailable evidences of P.Ws.1, 4 and 5 would go to clinchingly prove the presence and participation of A6 to A8. The medical evidence also duly corroborates the eyewitness account.
9. The learned senior counsel would submit that the F.I.R. in this case would not have come into being at that time as it is alleged by the prosecution. He would submit that P.W.11 has admitted during cross examination that he received message from the higher police officials to visit the place of occurrence at 08.30 a.m. itself, whereas, according to the present case of the prosecution, the occurrence itself was at 11.30 a.m. Thus, according to the learned senior counsel, there is no truth in the allegations. Thus, according to him truth is not before the Court.
10. A perusal of the evidence of P.W.11 would go to show that since there was a road roko from the morning, he was informed by his higher police officers to visit the place of occurrence immediately because the Inspector of Police (proper) for the Seevapet Police Station was not available on that day. Therefore, it cannot be presumed that the occurrence did not happen at 11.30 a.m.
11. So far as the motive is concerned, it has been clearly established by these witnesses that these accused had grudges against the people belonging to the Pattali Makkal Katchi. Though initially the object of the assembly was not to kill specifically the deceased, the common object of the assembly was to do away with someone who belonged to the Pattali Makkal Katchi. Thus, the common object of the assembly has also been established by the prosecution.
12. The learned senior counsel would submit that since P.Ws.1 and 3 to 5 are partisan and interested, their evidence need to be carefully weighed. In this regard, the learned senior counsel would make reliance on the judgment of the Hon'ble Supreme Court in Masalti Vs. The State of U.P. reported in AIR 1965 SC 202. The Hon'ble Supreme Court has stated that in the event the evidence of the partisan witness are doubtful, in the absence any corroboration, their evidences should not form the basis for conviction.
13. It is true that as per the settled law, this Court should be circumspect to carefully analyse the entire evidence of partisan witnesses, though the prosecution has projected that as many as 28 persons came in the mob, one cannot expect them to notice the presence and participation of all the 28 accused and speak about the overact including the weapons held. A witness may be in a position to notice only the participation of few accused. If the Court is satisfied that the presence and participation of some of the accused are consistently spoken by the witnesses and whose evidences also inspire the confidence of the Court, there can be no difficulty for the Court to act upon the said evidence. In this regard, we may refer to the Masalti's case (cited supra), wherein, in paragraph 15 the Hon'ble Supreme Court has held as follows:
15....Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of people armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not....
14. The learned senior counsel for the appellant would submit that since the evidence of these witnesses are rejected as against rest of the accused, their evidences should be rejected in toto as against these accused A6 to A8 also. This argument does not persuade us, the principle 'falsus in uno falsus in omnibus' has not been recognised by Indian Courts. In the Indian scenario, the law is if the Court is able to separate the grain from the chaff, there is no legal impediment for the Court to act upon the grain. In the instant case, though the prosecution has projected the case against 28 accused, we are able to separate the grain and act upon the same. In our considered view, from out of the eyewitnesses account, coupled with the medical evidence, the prosecution has clearly established that the accused A6 to A8 had killed the deceased and they were also the members of the unlawful assembly armed with deadly weapons and therefore they are liable for punishment for offences under Sections 148, 449 and 302 r/w 149 I.P.C. So far as other charges are concerned, there is no evidence against them and therefore they are entitled for acquittal.
15. Now turning to the quantum of punishment, in our considered view, having regard to the circumstances in which the offences were committed, the mitigating as well as the aggravating circumstances, sentencing A6 to A8 to undergo imprisonment for life and pay a fine of Rs.1,000/- each in default to under rigorous imprisonment for four weeks for offence under Section 302 r/w 149 I.P.C.; to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each in default to undergo rigorous imprisonment for two weeks for offence under Section 449 I.P.C. and to under rigorous imprisonment for one year and pay a fine of Rs.500/- each in default to under rigorous imprisonment for two weeks for offence under Section 148 I.P.C. would meet the ends of justice.
16. In the result,
(a) The Criminal Appeal Nos.55, 91, 100 and 136 of 2016 are allowed on the following terms:
(i) The conviction and sentence imposed on the appellants / accused M.Manimaran (A2), Bala @ Balamahendhiran (A14), Anbu (A15), Baskar (A16), Bala Shankar (A17), Thirunavukarasu (A18), Saravanan (A19), Vengu @ Vengatesan (A20), Prem @ Premkumar (A21), Vimal @ Vimal Raj (A22), Anbarasu (A23), Kumar @ Kutta Kumar (A24), Arivazhagan (A25), Dilli (A26), Munusamy (A27), Anbazhagan @ Anbu (A4), Velayudham (A5) and Nagaraj @ Sappai Nagaraj (A28) respectively by the learned I Additional Sessions Judge, Tiruvallur, in S.C.No.141 of 2007 dated 21.12.2015, is set aside and they are acquitted from all the charges.
(ii) The fine amount, if any paid, shall be refunded to them.
(iii) The bail bond, if any executed by them, shall stand discharged.
(b) The Criminal Appeal No.94 of 2016 is partly allowed on the following terms:
(i) The conviction and sentence imposed on the appellants / accused Jeeva @ Jeevarathinam (A1), Uruthiran @ Urithira Kumar (A3), Settu @ Illango (A9), Nagaraj (A10), Kali @ Kalidoss (A11) and Prakash (A12) by the learned I Additional Sessions Judge, Tiruvallur, in S.C.No.141 of 2007 dated 21.12.2015, is set aside and they are acquitted from all the charges. The fine amount, if any paid, shall be refunded to them. The bail bond, if any executed, by them, shall stand discharged.
(ii) So far as the appellants / accused Raj @ Auto Raj (A6), Iyyaapan @ Balraj (A7) and Rajini @ Parthiban (A8) are concerned, they are convicted under Sections 148, 449 and 302 r/w 149 of I.P.C and sentenced to undergo imprisonment for life and pay a fine of Rs.1,000/- each in default to under rigorous imprisonment for four weeks for offence under Section 302 r/w 149 I.P.C.; to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each in default to undergo rigorous imprisonment for two weeks for offence under Section 449 I.P.C. and to under rigorous imprisonment for one year and pay a fine of Rs.500/- each in default to undergo rigorous imprisonment for two weeks for offence under Section 148 I.P.C. So far as the other charges are concerned, they are set aside and they are acquitted from those charges. The above sentence shall run concurrently. The period of detention already undergone by the accused Raj @ Auto Raj (A6), Iyyaapan @ Balraj (A7) and Rajini @ Parthiban (A8) shall be set off under Section 428 Cr.P.C. The fine amount now imposed shall be adjusted from the fine amount already paid, if any, and the excess, if any, shall be refunded to them. The bail bonds shall stand cancelled. The Trial Court shall take steps to secure the accused Raj @ Auto Raj (A6), Iyyaapan @ Balraj (A7) and Rajini @ Parthiban (A8) and commit them to prison so as to undergo the remaining sentence.
(S.N.J.) (V.B.D.J.)
31.08.2016
Index : Yes.
Internet : Yes.
kk
S.NAGAMUTHU,J.
&
V.BHARATHIDASAN,J.
kk
To
1. The I Additional Sessions Judge,
Tiruvallur.
2. The Inspector of Police,
B-4 Police Station,
Sevvapet, Thiruvallur.
3. The Public Prosecutor,
Madras High Court.
PRE DELIVERY COMMON JUDGMENT
in Crl.A.Nos.55, 91, 94, 100 & 136 of 2016
RESERVED ON : 24.08.2016
PRONOUNCED ON : 31.08.2016