BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/03/2007 CORAM THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR CRL.A.Nos.109 of 2003 and 15 of 2006 1.Annadurai 2.Durai Raj 3.Sollamuthu 4.Muthukutti 5.Madasamy 6.Sudalaimani 7.Raj 8.Mani alias Suddalai .. Appellants in C.A.109 of 2003 Albert .. Appellant in CA 15 of 2006 vs State represented by The Inspector of Police Special CB CID Tirunelveli Crime No.147 of 95 on the file of Kadambur Police Station) .. Respondent
in both appeals
C.A.No.109 of 2003 preferred under Sec.374 of Cr.P.C. against the judgment of
the District and Sessions Judge for Communal Clash Cases of Southern District at
Madurai in S.C.No.37 of 2000 dated 20.12.2002.
C.A.No.15 of 2006 preferred under Sec.374 of Cr.P.C. against the judgment of
the District and Sessions Judge for Communal Clash Cases of Southern District at
Madurai in S.C.No.11 of 2004 dated 9.12.2005.
!For Appellants in : Mr.Gopinath, Senior Counsel,
CA 109 of 2003
for Mr.P.Andiraj
for A-1, A-2, A-6, A-7 & A-8
Mr.Shanmugasundaram
Senior Counsel
for Mr.K.S.Ramachandran
for A-3 and A-4
Mr.Ashok Kumar
Senior Counsel
for Mr.G.Sankaran for A-5
For Appellant in : Mr.T.Lajapathy Roy
CA 15 fo 2006
^For Respondent : Mr.V.Kasinathan
Additional Public Prosecutor
:COMMON JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)
This judgment shall govern these two appeals in C.A.Nos.109 of 2003 and 15
of 2006.
2.A-1 to A-8, the appellants in C.A.109/2003, who stood charged, tried and
found guilty by the Special Court for Communal Clash Cases at Madurai in
S.C.No.37/2000, and also A-1, the appellant in C.A.15/2006, whose case was split
up and separately tried along with A-2 in S.C.No.11/2004 by the same Court and
who was found guilty as per the charges, have brought forth these two appeals.
A-2 in S.C.No.11/2004 was acquitted by the trial Court.
3.The charges, the conviction and the sentence awarded by the trial Court
are as follows:
A-1 to A-8 in C.A.109/2003:
I. Under Sec.120-B of I.P.C. – convicted.
II. Under Sec.148 of I.P.C. – convicted and sentenced to 3 years Rigorous
Imprisonment.
III. Under Sec.341 read with 120-B and 149 of I.P.C. – convicted and sentenced
to 1 month Simple Imprisonment.
IV. Under Sec.302 read with 120-B and 149 of I.P.C. – convicted.
A-1 to A-8 were sentenced to life along with a fine of Rs.10,000/- and default
sentence under Sections 120-B and 302 read with 120-B and 149 of I.P.C.
A-1 in C.A.No.15/2006:
I. A-1 and A-2 – Under Sec.120-B of I.P.C. A-1 was convicted.
II. A-1 and A-2 – Under Sec.148 of I.P.C. A-1 was convicted and sentenced to 3
years Rigorous Imprisonment.
III. A-1 and A-2 – Under Sec.341 read with 120-B and 149 of I.P.C. – A-1 was
convicted and sentenced to 1 month Simple Imprisonment.
IV. A-2 – Under Sec.506(ii) of I.P.C. – acquitted.
V.A-1 and A-2 – Under Sec.302 read with 120-B and 149 of I.P.C. – A-1 was
convicted.
A-1 was sentenced to life imprisonment along with a fine of Rs.3,000/- and
default sentence under Sections 120-B and 302 read with 120-B and 149 of I.P.C.
4.Briefly the facts of the prosecution case as culled out from the
evidence adduced by the prosecution in S.C.No.37/2000, can be stated thus:
(a) P.W.1 is the son of the deceased Guruswamy Thevar. The deceased was
serving as Village Administrative Officer at Koththalai Village and was residing
at Veerapandi Pulikulam. P.W.1 was residing in a nearby village called
Thennampatti. One day prior to the date of occurrence, that was on 2.12.1995,
he visited his father at Veerapandi Pulikulam village. On that day, a
conspiracy was hatched up between A-2 and A-4 that they should finish off the
Village Administrative Officer, the deceased. This conspiracy, which was
hatched up, was actually witnessed by P.W.19, a native of Kadambur, and also
P.W.20, a villager of that place, at about 7.00 A.M. On the date of occurrence,
namely 3.12.1995, P.W.1 accompanied his father, and they went to Kadambur. They
purchased groceries and medicines for the child of P.W.1. After the purchase
was over, both of them went to the Bus Stand, Kadambur. P.W.13, a resident of
Thalaiyiyuthu, went to Kadambur for purchasing provisions. After the purchase,
he also went to the Bus Stand at about 11.00 A.M. He also met the deceased.
P.Ws.1, 2, 5, 15 and also A-1 to A-4 were waiting for the bus at Kadambur Bus
Stand.
(b) At about 11.00 A.M., a bus belonging to Kattabomman Transport
Corporation and bearing Registration No.0127, stopped at the Bus Stand. The
deceased along with P.Ws.1, 2 and 5 to 10 boarded the bus. A-1 to A-4 also
boarded the bus. When the bus was proceeding to Koththalai and when the bus
crossed Izhavelkal Vilakku and Railway Station Road, the bus was stopped, and
immediately, two persons, who stopped the bus, got into the bus, and they were
armed with aruvals. They came near the deceased, and one of the persons shouted
“cut the deceased”. Immediately, A-2 cut the deceased with an aruval on the
left side of the neck. A-3 cut the deceased repeatedly with an aruval. While
the deceased warded off by his hand, his wrist was almost severed. A-4 cut the
deceased on his right hand with an aruval. A-1 stabbed the deceased above his
right flank with a knife. A-5 is the person among two persons who stopped the
bus and boarded. A-5 pulled the deceased from the seat and cut him on his back
side. A-6 cut the deceased on his right cheek with an aruval.
(c) On seeing the occurrence, all the passengers made alarm and also got
down from the bus. They were running hither and thither and raising hue and
cry. One of the accused shouted at A-1 saying that the deceased died. All the
accused got down from the bus. One of the accused shouted to cut the passenger
who belonged to Thevar community. Immediately, one of the passengers examined
as P.W.15, ran away from the place of occurrence, and he was chased by four
persons. Out of the two persons who were originally ranked as A-9 and A-10 and
against whom the case was split up and tried, one stopped the bus. They were
the two accused who chased P.W.15.
(d) P.W.12, a resident of Thalaiyuthu and P.W.29, at about 11.00 A.M. or
12.00 P.M., on seeing the KTC bus halted away from the bus stop, went near the
bus and saw the absconding accused Kennedy, who is A-2 in the other case,
threatening the bus driver, and another absconding accused Albert, A-1 in the
other case, and A-7 and A-8 chased P.W.15. As P.W.15 was wearing saffron dress,
A-1 informed the other accused not to attack him. Therefore, he was left, and
all of them fled away from the place of occurrence.
(e) P.W.1 immediately proceeded to his village and informed to his mother
about the occurrence. Then, he proceeded to Kadambur Police Station and gave a
complaint. P.W.30, the Inspector of Police, who was on duty on 3.12.1995 at
about 2.00 P.M., reduced the oral complaint given by P.W.1, into writing, which
is marked as Ex.P1. On the strength of Ex.P1, the complaint, a case came to be
registered in Crime No.147/95 under Sections 147, 148 and 302 of I.P.C. He
prepared Ex.P26, the First Information Report, and sent it to the Court through
P.W.27, the Police Constable. Thereafter, he went to the scene of occurrence,
made an inspection in the presence of witnesses and prepared Ex.P2, the
observation mahazar, and Ex.P27, the rough sketch. He recovered M.O.1, a HMT
watch, M.O.2, a register, and M.O.3, a pair of plastic cheppals, under a
mahazar, Ex.P3. He also conducted inquest on the dead body of Guruswamy in the
presence of witnesses and panchayatdars and prepared Ex.P28, the inquest report.
The dead body was sent to the Government Hospital along with a requisition,
Ex.P4, for the purpose of autopsy.
(f) P.W.22, the Doctor, attached to the Government Hospital, Kayathar, on
receipt of the said requisition, conducted autopsy on the dead body of Guruswamy
and found 15 injuries. The Doctor has issued a postmortem certificate, Ex.P5,
with his opinion that the deceased would appear to have died of injury No.1 and
due to shock and haemorrhage due to other injuries.
(g) P.W.30 proceeded with the further investigation. On 3.12.1995, he
examined P.Ws.3 to 11, 13, 17 and 27 and recorded their statements. On
4.12.1995 at about 5.00 P.M., he arrested A-2 to A-6 at Malaipatti near the
field of A-2. At about 5.15 P.M., he recorded the confessional statement given
by A-2. The admissible part is marked as Ex.P29. In the presence of witnesses,
A-2 produced M.O.9, aruval, which was recovered under Ex.P34, the mahazar. At
about 6.15 P.M., he recorded the confessional statement of A-4. The admissible
part is marked as Ex.P30. Pursuant to the confessional statement, the
Investigator recovered M.O.10, aruval, from A-4 under a mahazar, Ex.P35. At
about 7.00 P.M., the Investigator recorded the confessional statement of A-3.
The admissible part is Ex.P31. In the presence of the same witnesses, he
recovered M.O.11, aruval, under a mahazar, Ex.P36. At about 7.45 P.M., he
recorded the confessional statement of A-5. Ex.P32 is the admissible part. In
the presence of the same witnesses, he recovered M.O.12, aruval, and M.O.14,
bloodstained shirt, under a mahazar Ex.P37. At about 8.30 P.M., the
Investigator recorded the confessional statement of A-6. The admissible part is
Ex.P33. In the presence of the same witnesses, he recovered M.O.13, aruval, and
M.O.15, bloodstained shirt, under a mahazar, Ex.P38. P.W.25, the Village
Administrative Officer, was the mahazar witness. On 5.12.1995, the Investigator
examined P.Ws.14, 16 and 25 and recorded their statements.
(h) On 23.1.1996, A-1 surrendered before the Judicial Magistrate,
Nanguneri, which came to the knowledge of the Investigator. Then, he filed a
memo to take him to police custody. Accordingly, it was ordered. At about 9.30
P.M., the Investigator recorded the confessional statement of A-1, which was
voluntarily given by him, in the presence of witnesses. Ex.P22 is the
admissible part. Following the same, A-1 took the police party to a place where
he threw the knife. The Investigator did not recover anything; but, he prepared
an observation mahazar in respect of that place. Further, on 31.1.1996, the
Investigator examined P.Ws.12 to 15 and 29 and recorded their statements. On
1.2.1996, the Investigator examined the other witnesses and recorded their
statements.
(i) On 8.2.1996, the Investigating Officer sent a requisition, Ex.P6, to
the Judicial Magistrate, Vilathikulam, to conduct an identification parade.
Accordingly, an identification parade was conducted in the Central Prison by
P.W.23, the Judicial Magistrate, Vilathikulam. P.Ws.1, 3, 4, 12, 15, 16 and 29
were summoned and asked to identify the accused. P.W.1 identified A-1 and A-6.
P.Ws.3 and 4 did not identify the accused. P.W.12 identified A-1 alone. P.W.16
identified A-1 and A-6. P.W.29 identified A-1 and A-2. Ex.P7 is the report as
to the identification parade proceedings. Thereafter, the Investigator examined
P.Ws.1, 12, 15 and 20 and recorded their further statements. On 23.2.1996, he
examined P.W.4 and recorded his statement.
(j) All the material objects recovered from the place of occurrence and
from the dead body, and the material objects recovered from the accused, were
subjected to chemical analysis by the Forensic Sciences Department, which
resulted in two reports namely Ex.P10, the Chemical Analyst’s report, and
Ex.P11, the Serologist’s report. On completion of investigation, the
Investigating Officer filed the final report on 29.3.1996.
5.The case in respect of the absconding accused, two in number, was split
up, and the case in respect of A-1 to A-8, was committed to Court of Session.
Necessary charges were framed against A-1 to A-8 in S.C.No.37/2000.
6.In respect of the other two accused, out of whom A-1 is the appellant in
C.A.15/2006, the case was taken up in S.C.No.11/2004, and necessary charges were
framed against them.
7.In order to substantiate the charges framed in S.C.No.37/2000, the
prosecution examined 30 witnesses and also relied on 37 exhibits and 16 material
objects. On completion of the evidence on the side of the prosecution, the
accused were questioned under Sec.313 of Cr.P.C. as to the incriminating
circumstances found in the evidence of the prosecution witnesses, which they
flatly denied as false. On their side, D.Ws.1 and 2 were examined and 3
documents were marked.
8.In order to establish the charges framed in S.C.No.11/2004, the
prosecution examined 25 witnesses and also relied on 28 exhibits and 17 material
objects. On completion of the evidence on the side of the prosecution, the
accused were questioned under Sec.313 of Cr.P.C. as to the incriminating
circumstances found in the evidence of the prosecution witnesses, which they
flatly denied as false. On their side, D.W.1 was examined and 4 documents were
marked.
9.The trial Court heard the arguments advanced on either side, took the
view that the prosecution has proved the case beyond reasonable doubt in respect
of A-1 to A-8 in S.C.No.37/2000, and A-1 in S.C.No.11/2004, found them guilty as
per the charges and awarded punishment as referred to above. Hence, these two
appeals at the instance of the appellants before this Court.
10.Advancing his arguments on behalf of A-1, A-2 and A-6 to A-8, the
learned Senior Counsel would submit that in the instant case, the prosecution in
order to prove the charges levelled against them, examined P.Ws.1 to 11 and 15
as eyewitnesses; that so far as P.Ws.2 to 11 and 15 are concerned, they have
turned hostile; that the only witness available for the prosecution was P.W.1;
that though the prosecution has miserably failed to prove the conspiracy part,
the lower Court has accepted the case of the prosecution; that the witnesses
examined in that regard, were P.Ws.19 and 20, out of whom P.W.20 has turned
hostile; that the only witness available was P.W.19; that according to the
prosecution, a conspiracy was hatched up on the previous day that was on
2.12.1995, and on that day, in a nearby village, A-2 was telling A-4 that they
must finish off the Village Administrative Officer, the deceased, as decided by
A-1; that this conspiracy was actually made in a public place; that apart from
that, P.W.19 did not belong to that village; that he belonged to some other
village; that according to the prosecution, the conspiracy was hatched up at
7.00 A.M.; that it is highly improbable that a person like P.W.19, who belonged
to some other village, visited the village, where A-2 and A-4 were coming to an
agreement to hatch up a conspiracy as decided by A-1 and that too, in a public
place adjacent to the house property; and that the way in which it has been put
forth would clearly indicate that this could not have happened at all.
11.Added further the learned Senior Counsel that there are circumstances
to reject the case of the prosecution; that according to the prosecution, the
occurrence has taken place on 3.12.1995, and the conspiracy was hatched up on
the previous day that was on 2.12.1995; but, both P.Ws.19 and 20 were examined
by the Investigator on 1.2.1996 i.e., after two months; that this would go to
the root of the matter; that apart from that, nowhere this conspiracy part is
stated in the earliest document, Ex.P1; that all would go to show that the
prosecution has miserably failed to prove the case for conspiracy.
12.The learned Senior Counsel would further submit that as far as the
occurrence part is concerned, the lower Court should have rejected the case
outright for more reasons than one; that the case of the prosecution in gist,
was that P.W.1 accompanied the deceased, and they along with the eyewitnesses
boarded a bus belonging to KTC, and the bus was proceeding from the Bus Stand,
and A-1 to A-4 also got into the bus, and on the way, the bus was stopped, and
two other accused also got in; that it is pertinent to point out that the
description of the entire case in the F.I.R. was only against six accused; that
P.W.1 would claim that he already knew A-1 and A-6; but, the F.I.R. does not
reveal any description of the names of any of the accused; that it would contain
only the name of A-1, but would mention five known persons; that the charge
sheet was filed, and it was for eight persons; that under the circumstances, two
persons have been introduced; that even the FIR does not speak about the whole
occurrence; that it speaks about the fact that six persons were available, and
five were armed with aruvals, and one had a knife in hand; that in the instant
case, P.Ws.12, 13, 15 and 29 were all examined only on 31.1.1996, while the
occurrence has taken place on 3.12.1995; that it is further pertinent to point
out that the statements of these witnesses were recorded by the Investigator
under Sec.161 of Cr.P.C. after a period of two months; that they reached the
Court after a period of two months thereafter; that all would indicate that
these witnesses have nothing to do with the occurrence in question; and that
their statements have been recorded in such a way to suit the convenience of the
prosecution case.
13.The learned Senior Counsel would further add that the inquest was
conducted by the Investigator on 3.12.1995 between 4.00 P.M. and 6.00 P.M.; that
no one of the witnesses’ names are mentioned therein; that it is pertinent to
point out that the inquest report though it bore the names of the accused with
description, also reached the Court only after two days; and that it would be
quite clear that the inquest report has been prepared with all manipulation
possible in order to rope in the accused, who have nothing to do with the
occurrence at all.
14.Added further the learned Senior Counsel that in the instant case, an
identification parade was actually conducted; that the evidence adduced by the
prosecution in respect of the identification parade, has got to be rejected
outright for the simple reason that the occurrence has taken place on 3.12.1995;
that the accused persons namely A-2 to A-6, except A-1, were all arrested on
4.12.1995; but, the identification parade was conducted on 14.2.1996, and thus,
there was an enormous delay; that even according to the accused, they were shown
previously; that there was sufficient interval in that regard; that if to be so,
in the absence of any explanation acceptable and convincing, the identification
parade conducted by the Judicial Magistrate, is of no significance and legal
consequence at all; that though in the F.I.R., six accused are shown, at the
time of charge sheet, 10 accused were shown; that even at the time of the
identification parade, the prosecution witnesses who are taken for
identification parade, could not identify the accused properly; that as could be
seen from the proceedings as to the identification parade, marked as Ex.P7, all
these P.Ws.1, 3, 4, 12, 15 and 29 were summoned; that they have participated in
the identification parade, in which P.W.1 has identified A-1 and A-6, P.Ws.3 and
4 did not identify any of the accused, and P.W.12 identified A-1 alone, and
P.W.16 identified A-1 and A-6, and P.W.29 identified A-1 and A-2; that though
six persons are shown as accused in the F.I.R., even it is claimed by P.W.1 that
he knew A-1 and A-6; that under the circumstances, the identification parade, in
which P.W.1 who knew A-1 and A-6, was able to identify them, was not at all
necessary; that so far as others are concerned, they could not identify as
stated above; that even at the earliest point of time, the identification parade
was conducted, and they could not identify the assailants; that under the
circumstances, no question of identifying the assailants before the Court would
arise, and no evidentiary value could be attached to the evidence of the
witnesses.
15.Added further the learned Senior Counsel that in the instant case,
though it was actually like a communal clash, no evidence is available at all;
that in view of the same, the prosecution case must fail; that the evidence of
the eyewitnesses could not be believed, and for all these reasons, they are
entitled for acquittal in the hands of this Court.
16.Advancing his arguments on behalf of A-5, the learned Senior Counsel
would submit that as far as A-5 was concerned, there is no mention of his name
in Ex.P1; that if to be so, there should have been an identification parade;
but, no identification parade was conducted; that apart from that, even on
3.12.1995, P.W.1 did not know A-5 earlier; that if to be so, identification
parade becomes necessary in that regard, but not done so; that P.W.12 was
another eyewitness; and that he did not speak about the presence of A-5 at the
time of occurrence. Added further the learned Senior Counsel that as regards A-
5, he was a student doing his course; that he was staying in the hostel; that
D.W.2 is the Warden, through whom all the records pertaining to the date of
occurrence, were summoned and produced; that D.W.2 has spoken to the fact that
A-5 was very well available in the hostel on that day; that at this juncture, it
is pertinent to point out that when the Investigator was examined regarding this
aspect of the matter, he has categorically deposed that he came to know that A-5
was a student, and he examined the authorities in the College and in the hostel;
but, he did not either record their statements or recover any of the documentary
evidence; that all would go to show that the Investigating Officer even after
coming to know that there is no involvement of A-5 in the crime, merely because
of the reason that his name is added, instead of dropping him, has proceeded
with the case and filed the final report against him; that on the contrary,
there is evidence to show that he was available in the hostel on the day of
occurrence; that under the circumstances, the case against A-5 was not at all
brought home, and hence, he is entitled for acquittal.
17.The learned Senior Counsel appearing for A-3 and A-4 would submit that
even in the FIR, their names have not been shown; that at the time of the
identification parade, A-3 and A-4 were not identified by any one of the
witnesses; that as far as A-4 was concerned, his name is Narayanan, son of
Chollamuthu; that for that purpose, D.W.1, the Village Administrative Officer,
has been examined; that in the case papers, A-4’s name is shown as Muthukutti;
that under the circumstances, question of identify also would arise; but, the
prosecution did not explain the same; that it can be well stated that there is
completely bereft of evidence, and hence, they are entitled for acquittal.
18.The learned Counsel for the appellant in C.A.15/2006 would submit that
in the instant case, the gist of the case of the prosecution, was that A-1, the
appellant herein, was chasing P.W.12, and it was A-2 who stopped the bus at the
that time; that two witnesses were examined namely P.Ws.12 and 13 in
S.C.No.11/2004; that P.W.12 was the witness, who was examined in the other case
as P.W.15; but, he has turned hostile; that so far as P.W.13 was concerned, he
did not speak anything about the act of chasing; that in the instant case,
P.W.25 has not also given any explanation as to why the earliest statements
given by both were not to that effect; that according to the prosecution case,
A-1 was chasing, and A-2 stopped the bus; but, A-2 was acquitted by the lower
Court; that even as per the prosecution case, chasing was the only act; but, it
was not proved by any evidence as required by law, and under the circumstances,
he is entitled for acquittal; but, the lower Court was carried away by the fact
that he was absconding; and that the other case ended in conviction and also
more relied on the evidence adduced in the other case and found him guilty, and
thus, he is entitled for acquittal in the hands of this Court.
19.The Court heard the learned Additional Public Prosecutor on all the
above contentions put forth by the learned Senior Counsel and paid its anxious
consideration on the submissions made.
20.It is not a fact in controversy that the deceased Guruswamy who was
serving as Village Administrative Officer, Koththalai, and the father of P.W.1,
was done to death in an incident that took place in a running bus belonging to
KTC, on 3.12.1995. Following the incident, P.W.1 proceeded to the respondent
Police Station and gave an oral complaint, which was reduced into writing.
Thereafter, Ex.P1, the complaint, came into existence, on the strength of which
a case came to be registered, and the investigation was taken up. P.W.30, the
Investigating Officer, conducted an inquest on the dead body. Following the
same, the dead body was subjected to postmortem by P.W.22, the Doctor, who has
opined in Ex.P5, the postmortem certificate, that the deceased would appear to
have died of injury No.1 and due to shock and haemorrhage due to other injuries
sustained. The fact that Guruswamy died out of homicidal violence was never
questioned by any of the appellants at any stage of the proceedings. Hence,
without any impediment, it can be safely recorded so.
21.In order to substantiate the accusations made against these accused
that there was a conspiracy hatched up on the previous day that was on
2.12.1995, at about 7.00 A.M. at Malaipatti Village, the prosecution has marched
only two witnesses namely P.Ws.19 and 20, out of whom P.W.20 has turned hostile.
Hence, his evidence was not useful to the prosecution case. But, the
prosecution had the evidence of P.W.19. As far as P.W.19 was concerned, this
Court is afraid whether it could accept his evidence to come to a conclusion
that there could have been a conspiracy. According to P.W.19, he did not belong
to that village, and the conspiracy was hatched up in the nearby village at
about 7.00 A.M., and when he was just proceeding in the village nearby a house
property, A-2 and A-4 were talking to each other, and A-2 was actually telling
A-4 that as decided by A-1, they should finish off the Village Administrative
Officer, the next day. At this juncture, it is pertinent to point out that
whether such a conspiracy could be hatched up in a public place and that too, by
7.00 A.M., and whether it would have been heard by P.Ws.19 and 20. The strong
circumstances against the prosecution in regard to the conspiracy, are two in
number. Firstly, it is doubtful whether P.W.19 could have been in the place
where the conspiracy is said to have been hatched up. Secondly, P.W.19 was
examined by the Investigator only on 1.2.1996, when the occurrence has taken
place on 3.12.1995. Had it been true that a villager like P.W.19, came to know
about the conspiracy in the previous day, a reasonable prudent conduct of a
person would be to disclose the same and not to keep quiet for a period of two
months. Therefore, the case of the prosecution that P.W.19 was examined by the
Investigator on 1.2.1996, and the statement was also recorded as to the
conspiracy, is highly doubtful. In short, it can be stated that the prosecution
has not proved the conspiracy part, and thus, it failed miserably.
22.So far as the occurrence was concerned, according to the prosecution,
it was spoken to by the eyewitnesses, who were P.Ws.1 to 11, 12, 15 and 29. Out
of these witnesses, as could be seen, P.Ws.2 to 11 and 15 have turned hostile.
Thus, the witnesses who were available for the prosecution, were P.Ws.1, 12 and
29. So far as these witnesses are concerned, the prosecution has claimed that
they were all eyewitnesses. As regards P.Ws.12, 13, 14 and 29 are concerned,
they were all examined by the Investigator only on 31.1.1996. Once the
occurrence has taken place in a village like that, on 3.12.1995 and once the
prosecution came forward to project a case that these witnesses happened to be
eyewitnesses to the occurrence in a running bus, they were examined only on
31.1.1996. That apart, the statements of these witnesses also reached the Court
only on 2.4.1996. All would go to show that the evidence of P.Ws.12, 13, 14 and
29 cannot be accepted. The delay is also noticed not only at the time when they
were examined by the Investigator after a period of two months from the time of
occurrence, but also at the time when the statements reached the Court after two
months thereafter in the month of April. No explanation was tendered by the
prosecution at all. Even in a case where the prosecution comes forth with an
explanation, a duty is cast upon the Court to carefully analyse the explanation.
In the instant case, no explanation was offered at all either through the
witnesses or through the Investigator, P.W.30. Under the circumstances, without
any hesitation, the evidence adduced by the prosecution through P.Ws.12, 13, 14
and 29 have got to be rejected outright. Thus, the only evidence put forth by
the prosecution was that of P.W.1. Now, this Court is mindful of the caution
made by law and the rulings of the Apex Court that when the eyewitnesses
happened to be the close relations of the deceased, their evidence on that
ground, cannot be rejected, but has got to be accepted, after exercising the
rule of careful scrutiny. In the instant case, despite the exercise of the
rule, this Court is of the considered opinion that the evidence of P.W.1 has
inspired the confidence of the Court.
23.As far as P.W.1 was concerned, according to him, he went to the place
of his father, and both of them started from there, and they came to Kadambur,
and they purchased provisions and medicines, and they were waiting for the bus,
and they got into the bus, and both of them seated, and at that time, they saw
four persons getting into the bus, and the bus was moving, and on the way, the
bus was stopped, and two persons got in, and the occurrence has taken place in
which five persons armed with aruvals, and one person armed with a knife,
stabbed his father. Immediately P.W.1 and all other passengers got down and
they made distressing cry. It is the further evidence of P.W.1 that he went to
the village, informed to the mother, proceeded to the Police Station and gave
Ex.P1, the report, which has resulted in the FIR coming into existence. Now, at
this juncture, no doubt would arise that six persons have actually participated
in the crime. But, at the same time, it has to be seen whether the prosecution
has brought home its case against A-1 to A-6 before the Court. The earliest
document is Ex.P1. In Ex.P1, only six assailants are mentioned to have
participated in the crime. When Ex.P1 is perused, the name of A-1 alone is
found and none else. As far as the other five persons are concerned, when their
names and descriptions are not found in the FIR, the Court would naturally
expect their identification that has got to be made clear. A-2 to A-6 were
arrested on 4.12.1995, and an identification parade was conducted on 14.2.1996.
So far as the identification parade in respect of A-2 to A-6, is concerned, it
cannot in any way advance the case of the prosecution. They were arrested on
4.12.1995. The identification parade was actually conducted on 14.2.1996 after
a long period. In such circumstances, naturally an explanation has got to be
tendered by the prosecution why there was such a huge and inordinate delay in
conducting the identification parade. It is well settled proposition of law
that in a case where the identification parade was conducted with a delay, the
legal consequence would be not to give any evidentiary value.
24.Apart from the above, it is pertinent to point out that even that
identification parade with such a huge and inordinate delay did not support the
prosecution case for the simple reason that at the time of the identification
parade, P.Ws.1, 3, 4, 12, 15 and 29 were summoned. Out of these witnesses
before the Court, P.Ws.1, 12 and 29 were the persons, who spoke about the
prosecution case. P.W.1 was able to identify A-1 and A-6. P.Ws.3 and 4 did not
identify any accused. P.W.12 identified A-1 alone, and P.W.29 identified A-1
and A-2. As rightly pointed out by the learned Senior Counsel for A-3, A-4 and
A-5, as far as A-5 was concerned, he was not actually taken for identification.
As regards A-3 and A-4, they were not identified by any one of these witnesses.
Needless to say, in a given case, the law make it a must to conduct
identification parade for the reason that the earliest opportunity should be
given to the witnesses to identify them in order to ascertain the participation
of the accused in a given occurrence. But, in the instant case, as far as all
these witnesses are concerned, they identified only A-1; but, they were not able
to identify the other accused. In such circumstances, if they could not
identify any one of the accused except A-1, their identification in Court in
respect of the other accused, was of no avail. Therefore, the evidence in
respect of the other accused, was not at all available. What is available for
the prosecution is the evidence in respect of A-1.
25.In the instant case, as rightly pointed out by the learned Senior
Counsel, the F.I.R. did not contain the names of A-2 to A-8. The statements of
the witnesses were recorded only on 31.1.1996 after two months, and it also
reached the Court two months thereafter. Therefore, the identification parade
conducted is of no use for the prosecution. In such circumstances, it cannot be
stated that the prosecution has brought home the guilt of A-2 to A-6. As
regards A-7 and A-8, their names have been included, and even in the FIR, the
names of A-7 and A-8 are not made mention. Even as per the prosecution case,
only six persons have participated. Taking into consideration the evidence of
P.W.1, the case what is available for the prosecution in respect of A-1, is
consistent from the very beginning. Even in Ex.P1, the name of A-1 is
mentioned. As regards A-1, he was not arrested; but, he actually surrendered
before the Judicial Magistrate, Nanguneri, on 23.1.1996, and the identification
parade was conducted on 14.2.1996 where all these witnesses have clearly
identified A-1 and have also identified him in Court. Thus, the fact that A-1
was armed with weapon, and he also participated in the crime causing the death
of the deceased, is proved. The evidence of P.W.1 in this regard stood fully
corroborated by the medical evidence also. Hence, all the circumstances are
pointing to the participation of A-1 in the crime. When the evidence is
marshalled and considered properly, the evidence of P.W.1 and all other
circumstances would be pointing to the guilt of A-1. It can be well stated that
as regards A-1, his participation in the crime and his complicity are proved by
the prosecution. As far as A-2 to A-8 in C.A.109 of 2003 are concerned, it is
highly doubtful whether this Court can sustain a conviction on the evidence
which is shrouded with suspicion and doubts as narrated above. Hence, A-2 to A-
8 are entitled for acquittal.
26.So far as the appellant in C.A.15/2006 is concerned, originally, two
more persons were also shown as A-9 and A-10 in the case. Since they were
absconding, the case was split up, and the trial went on. A-2 was acquitted by
the trial Court. A-1 was the only appellant in the above appeal who was found
guilty. According to the prosecution, there are two witnesses examined as
P.Ws.12 and 13 in S.C.No.11/2004. P.W.12 turned hostile in the other case. The
gist of the case of the prosecution was that A-1 was actually chasing P.W.12;
but, P.W.12 has turned hostile in the other case. Thus, P.W.13 is the only
witness available. But, he did not speak anything at the time of the
investigation that A-1 was chasing. He has also not spoken about the said fact
before the Court. Under the circumstances, it would be quite clear that as far
as A-1 was concerned, the lower Court was carried away by the conviction and
sentence given in the other case. In view of these reasons, as regards the
appellant in C.A.15/2006, it can be well stated that there is bereft of
evidence. Therefore, he cannot be found guilty at all. Under the
circumstances, he is entitled for acquittal.
27.As could be seen above, as far as A-1 in C.A.109/2003 is concerned, A-1
has got to be found guilty under Sec.302 of I.P.C., and the life sentence along
with fine and default sentence has got to be sustained in his regard.
Accordingly, the conviction of A-1 in C.A.No.109/2003 under Sec.302 read with
120-B and 149 of I.P.C. is modified, and instead, he is convicted under Sec.302
of I.P.C. The sentence awarded by the trial Court in that regard, is sustained.
28.So far as A-1 in C.A.No.109/2003 is concerned, the case of the
prosecution for conspiracy fails, and hence he is acquitted of the charge under
Sec.120-B of I.P.C. In respect of the other charges as regards A-1 and in
respect of all the charges as regards the other accused namely A-2 to A-8, in
C.A.109/2003, the prosecution has not proved the case, and they are entitled for
acquittal in that regard, and accordingly, acquitted. The fine amounts if any
paid by A-2 to A-8 in C.A.109/2003, will be refunded to them, and the bail bonds
executed by them, shall stand terminated.
29.As regards the appellant in C.A.15/2006, he is acquitted of all the
charges levelled against him. The fine amount if any paid by him, will be
refunded to him.
30.In the result, C.A.No.109/2003 is partly allowed. It is reported that
A-1 is on bail. Hence, the Sessions Judge shall take steps to commit him to
prison to undergo the period of sentence.
31.In the result, C.A.No.15/2006 is allowed.
Nsv/
To:
1.The District and Sessions Judge for
Communal Clash Cases of Southern District
Madurai
2.The Inspector of Police
Special CB CID
Tirunelveli
(Crime No.147/95 on the
file of Kadambur Police Station)
3.The Public Prosecutor
Madurai Bench of Madras High Court