BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2010 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE RAJA ELANGO Criminal Appeal (MD)No.210 of 2008 and Criminal Appeal (MD)Nos. 224, 313 , 398 of 2008 S.Velmurugan .. Appellant/A1 in Crl.A.210/2008 Robin @ Robinson .. Appellant/A3 in Crl.A.224/2008 Dhamodharan .. Appellant/A2 in Crl.A.313/2008 Essakkimuthu .. Appellant/A4 in Crl.A.398/2008 Vs State rep. by The Inspector of Police, Vilathikulam Police Station, Tuticorin District. .. Respondent in all
(Cr.No.115 of 1997) the appeals
Appeals filed under Section 374 of Cr.P.C. against the judgment dated
10.04.2008 made in S.C. No.170 of 2001 on the file of the Additional Sessions
Court-cum-Fast Track Court No.1, Tuticorin.
!For Appellant in ... Mr.C.Mayil Vahana Crl.A.No.210/2008 Rajendran For Appellant in ... Mr.P.Andiraj Crl.A.No.224/2008 For Appellant in ... Mr.V.Gopinath, Crl.A.No.313/2008 Senior Counsel for Mr.P.Andiraj For Appellant in ... Mr.A.W.D.Tilak Crl.A.No.398/2008 ^For Respondent ... Mr.M.Daniel Manoharan, Addl.Public Prosecutor :COMMON JUDGMENT (Judgment of the Court was delivered by P.MURGESEN, J.)
These appeals are directed against the judgment of conviction and
sentences imposed on the accused by judgment dated 10.04.2008 made in S.C.
No.170 of 2001 on the file of the Additional Sessions Court-cum-Fast Track Court
No.1, Tuticorin.
2. The appellants are the accused 1 to 4 and the respondent is the
complainant.
3. The case of the prosecution is as under:-
P.W.1-Neethirajan is the resident of Pallakulam, Vilathikulam. P.Ws.1, 4,
5 and 7 are the children of the deceased Udayar. P.W.8-Parvathi is the first
wife of the deceased Udayar. P.W.9-Mariammal is the wife of the deceased
Kattamariappan. P.W.10-Chinnathai is the wife of the deceased Mariappan. The
first accused-Velmurugan belongs to the community of P.W.1. The deceased Udayar
is the leader of the community. The first accused used to do rowdism and he was
pulled up by P.W.1’s father. In the year 1996, a complaint was lodged against
the first accused regarding damage of a political party office. In that way the
first accused was not happy with P.W.1’s father. P.W.1’s brother and one
Mayilraja who was supported by the first accused contested in the Panchayat
Board election and P.W.1’s brother won in that election and so the first accused
developed enmity towards the father of P.W.1. Further there was an enmity
between Nedungulam Village and Pallakulam Village and the same was ended in a
compromise. On 19.04.1997, a political meeting was held in Vilathikulam and
P.W.1’s father headed that meeting. On 20.04.1997, there was a bullock-cart
race. After finishing the function, at 11.00 a.m. on that day, the deceased
Udayar, Kattamariappan, Deivendran, Muniasamy @ Sathiyaraj, Selvaraj, Mariappan,
Ayyanar and Sakthivel were travelling to their village in an Ambassador Car
bearing Registration No.PY-01-B-6166 belonging to P.W.11-Poongani, the sister of
P.W.4. When they were reaching near Keelvilathikulam Andi Reddiar Bridge at
about 11.30 a.m., the first accused-Velmurugan along with other accused came
from under the bridge and he directed all the accused to throw bombs on the car.
All the 12 accused threw bombs on the car and as a result, P.W.1 who was driving
the car, lost his balance and drove the car into the garden of one Subbiah
Reddiar. Thereafter, the accused Essakkimuthu and Essakkithurai threw bombs into
the car due to which the face of Mariappan was crushed. Then both the accused
Essakkimuthu and Essakkithurai cut the deceased Mariappan with aruval. P.W.1’s
father came out of the car and ran from the place of occurrence, but he was
chased by the first and second accused and was attacked with an aruval. The said
Kattamariappan was also chased and attacked by the accused Peer Mohamed and
Robin when he was running. The other persons in the car ran away in fear.
4. The injured were taken to the Government Hospital, Vilathikulam and
they were treated by P.W.21-Dr.Rajmohan. On 20.04.1997, at about 1.50 p.m.,
P.W.1 was treated by P.W.21. P.W.21 examined P.W.1 and found the following
injuries:-
1) A deep crush injury of size 1 x 1 cm skin depth on the left forehead.
2) A crush injury of size 1 x 1 cm skin depth on the left ear on the back side
of the head.
3) On the left side of the chest and left side of the face – 10 Nos. abrasion
injury.
4) Abrasions from the upper part of left thigh on the front side up to the leg.
Ex.P17 is the Accident Register copy of P.W.1.
5. The Doctor examined P.W.3-Selvaraj and found the following injuries:-
1) Abrasions in the whole right hand with presence of ceramic particles and a
crush injury of size 1 x 1 cm.
2) A crush injury of size 3x1x1 cm on the right front hand on the outside area.
3) A crush injury of size 3x1x1 cm adjacent to 2 cms from the second wound and
it looked like a fracture.
4) Abrasions from the upper part of right thigh up to the leg with presence of
glass particles. The injury was of the size 1 x 1 cm.
5) An abrasion of size 1 x 1 cm over the right chest.
6) An abrasion of size 1 x 1 cm near the middle finger of the left hand.
7) An abrasion of size 1 x 1 cm on the left hand.
8) An abrasion on the forehead of size 1/2 x 1/2 cm with presence of glass
particles.
9) An abrasion of size 1 x 1 cm over the right hand.
10) An abrasion on the second finger of the right hand of size 1 x 1 cm.
Ex.P18 is the Accident Register copy of P.W.3.
6. The Doctor examined P.W.4-Muniasamy @ Sathiyaraj and found the
following injuries:-
1) 2 abrasions of size 10 x 1 cm extending from left front hand till outside
area and similarly 4 Nos. abrasions of size 1 x 1 cm nearer to it.
2) A crush injury of size 3 x 1 cm on the left front hand 10 cms from the wrist
area.
3) An abrasion of size 4 x 1 cm on the outside portion of the left wrist.
4) Abrasions over the left area of the stomach.
5) A cut injury of size 3 x 1 cm skin deep on the outside portion of upper left
thigh.
6) Abrasions over left middle thigh on the outside portion of size 10 x 1 cm.
7) 10 Nos. abrasions of size 1 x 1 cm on the upper portion of right thigh on the
outside area.
Ex.P19 is the Accident Register copy of P.W.4.
7. At 3.20 p.m. on that day, the Doctor examined P.W.5-Deivendran and
found the following injuries:-
1) Many abrasions found of size 1/2 x 1/2 cm from the upper portion of left hand
till outside portion of the knee.
2) 10 Nos. abrasions over the left front hand till outside portion of size 1/2 x
1/2 cm.
3) A contusion of size 2 x 2 cm above the fourth finger and an abrasion of size
1/2 x 1/2 cm.
4) An abrasion on the left back side of the head of size 1 x 1 cm.
5) An abrasion of size 1/2 x 1/2 cm on the extreme left upper portion of the
head.
Ex.P20 is the Accident Register copy of P.W.5.
8. At 3.40 p.m., the Doctor examined P.W.6-Ayyanar and found the following
injuries:-
1) 20 Nos. abrasions of size 1 x 1 cm on the entire back portion till hip bone
with blood.
2) An abrasion of size 1 x 1 cm on the left cheek.
3) Presence of a sound in the ear.
Ex.P21 is the Accident Register copy of P.W.6.
9. At 3.50 p.m., the Doctor examined P.W.2-Sakthivel and found the
following injuries:-
1) 10 Nos. abrasions of size 1 x 1/2 cm x skin deep on the outside area of the
left front hand.
2) An abrasion of size 3 x 1 cm on the outside portion of right thigh.
Ex.P22 is the Accident Register copy of P.W.2.
10. P.W.27-Rajamani was the Sub-Inspector of Police Incharge of the
Vilathikulam Police Station. On 20.04.1997, on receipt of a message from the
Government Hospital, Vilathikulam, he went to the hospital and recorded the
statement of P.W.1. At 2.30 p.m. on the same day, he registered the complaint
under Sections 147, 148, 341, 326, 307 and 302 IPC in Crime No.115 of 1997.
Thereafter he prepared Ex.P34-printed First Information Report and despatched
the complaint and the FIR through one Chelliah, First Grade Constable-1119.
Ex.P35 is the passport issued to the said Chelliah for handing over the
complaint and FIR to the Judicial Magistrate’s Court. The preliminary
investigation was done by one Rakkan, who was the Inspector-Incharge of the
Vilathikulam Police Station. On 20.04.1997 the said Rakkan took up the case for
investigation. He visited the scene of occurrence at 2.45 p.m. and prepared
Ex.P2-Observation Mahazar in the presence of Village Administrative Officer. He
also prepared Ex.P39-Rough Sketch. Thereafter he conducted inquest over the body
of the deceased Udayar from 3.00 p.m. to 4.00 p.m. Ex.P40 is the Inquest Report
pertaining to the deceased Udayar. From 4.00 p.m. to 4.45 p.m., he conducted
inquest over the body of the deceased Kattamariappan in the presence of
Panchayatars and prepared Ex.P41-Inquest Report of Kattamariappan. From 4.45
p.m. to 5.45 p.m., he conducted inquest over the body of the deceased Mariappan
in the presence of Panchayatars and prepared Ex.P42-Inquest Report. Then he sent
the three bodies for conducting post mortem. At 5.00 p.m., he recovered M.O.2-
blood-stained earth and M.O.3-ordinary earth from the place where the body of
the deceased Udayar was lying, under Ex.P3-Athatchi. At 05.45 p.m., he recovered
M.O.4-blood-stained earth and M.O.5-ordinary earth from the place where the body
of the deceased Kattamariappan was lying, under Ex.P4-Athatchi. At 6.00 p.m., he
recovered M.O.6-blood-stained car seat cover and M.O.7-ordinary car seat cover
under Ex.P5-Athatchi. At 06.15 p.m., he recovered the unexploded country bombs
under Ex.P7-Athatchi. At 6.45 p.m., he recovered the cloth pieces and nails
exploded from the bombs, under Ex.P6-Athatchi, in the presence of witnesses.
M.O.8 series are the pieces of materials exploded from the bombs. M.O.9 series
are the nails exploded from the bombs. On 21.04.1997, the Inspector Rakkan,
recorded the statements of witnesses. He also examined the photographer
Murugesan Pillai and received the photographs taken in the place of occurrence.
M.O.22 series are the photographs taken by the photographer on the deceased.
11. Thereafter the body of the deceased Udayar was handed over to the
Vilathikulam Government hospital by P.W.18-Natarajan. Ex.P12 is the passport
issued to P.W.18 to handover the body to the hospital and after post mortem, to
handover the body to the relatives. The body of the deceased Kattamariappan was
handed over to the hospital by P.W.19-Alagappan. Ex.P14 is the passport issued
to P.W.19 to handover the body to the hospital and after post mortem, to
handover the body to the relatives. The body of the deceased Mariappan was
handed over the hospital by P.W.20-Ravindran. Ex.P16 is the passport issued to
P.W.20 to handover the body to the hospital and after post mortem, to handover
the body to the relatives. Post mortem of the bodies of Udayar and Mariappan
were carried out by P.W.21-Dr.Rajmohan and post mortem of the body of
Kattamariappan was carried out by P.W.22-Dr.Rosalin Thayammal. Ex.P24, Ex.P25
and Ex.P26 are the post-mortem certificates of the deceased Udayar, Mariappan
and Kattamariappan, respectively. In all the post mortem reports, the Doctor
opined that all the deceased died due to loss of blood on account of the
injuries sustained and also due to the shock. After the post mortem of the
deceased Udayar, M.Os.11 to 14 were recovered from the body by P.W.18. After
the post mortem of the deceased Kattamariappan, M.Os.15 to 17 were recovered
from the body by P.W.19. After the post mortem of the deceased Mariappan,
M.Os.18 to 21 were recovered from the body by P.W.20.
12. Further investigation was taken up by P.W.29-Muthaiah, Inspector of
Police on 26.04.1997. On 28.04.1997 at about 5.00 p.m., he arrested the accused
Muniasamy in the presence of witnesses Muthusamy and Athiappan. The accused
Muniasamy gave confession statement in the presence of P.W.14. Thereafter he
sent the accused Muniasamy to judicial custody. On 30.04.1997 he received an
information that the first accused-Velmurugan surrendered before the Judicial
Magistrate Court, Srivaikundam. On 05.05.1997 at 8.00 a.m., he arrested the
accused Pandi @ Vijayapandi in the Venkatachapuram Bus Stop at Kulathoor and he
was sent to judicial custody. On 06.05.1997, P.W.29 went on medical leave. The
first accused gave confession statement in the presence of P.W.16. Ex.P9 is the
admissible portion of the confession statement of the first accused-Velmurugan.
On the basis of the confession statement, M.O.23-Vettaruval was recovered. On
08.05.1997, the accused Essakkimuthu surrendered before the Judicial Magistrate
Court, Tirunelveli. A requisition was given by the Inspector to send the
material objects for chemical examination under Ex.P29. P.W.25-Perumal was the
Head Clerk in the Judicial Magistrate Court, Vilathikulam at that time. He
received the request Ex.P29 to send the material objects for chemical
examination from the Inspector. Ex.P27 is the letter from the Court to send the
material objects for chemical examination. Ex.P32 and P33 are the Chemical
Examination Report and Serological Report, respectively. P.W.23-Karpagam
examined the explosives and prepared Ex.P28-Chemical Examination Report. P.W.25-
Perumal examined the bombs on receipt of Ex.P29.
13. On 08.06.1997, at 6.00 p.m., the accused Dhamodharan was arrested. He
gave confession statement. Ex.P45 is the admissible portion of the confession
statement of the accused Dhamodharan. On the basis of that confession statement,
a vettaruval measuring 59 cms was recovered under Ex.P44-Athatchi. On
29.06.1997 the Inspector Jayabalan took up the case for further investigation
and now he retired and he was not able to walk. Therefore, P.W.29 spoke on
behalf of the Inspector Jayabalan. On 11.08.1997, the Inspector Jayabalan sent
the file pertaining to this case to the District Collector for sanction. He also
arrested the accused Peer Mohamed who was the accused in some other case. On
07.09.1997, he sent the accused Sudalai to judicial custody. On 11.09.1997, the
accused Varadarajan was arrested at 9.00 a.m. and he was sent to judicial
custody. Then a requisition was given by the Inspector for conducting
identification parade of the accused under Ex.P36. Ex.P37 is the letter from the
Court for conducting identification parade. Thereafter, the identification
parade was conducted by Judicial Magistrate No.1, Kovilpatti. Ex.P38 is the
Identification Parade Report. Thereafter P.W.29 completed the investigation and
filed charge sheet against the accused, under Sections 147, 148, 341, 324, 326,
307, 302 r/w 149 and also Sections 3 and 4 of the Explosives Act on 26.09.1997.
14. Before the Trial Court, P.Ws.1 to 29 and D.Ws.1 to 3 were examined and
Exs.P1 to P46 and D1 to D9 and M.Os.1 to 23 were marked. On consideration of
the evidence adduced on record, the Trial Court convicted the accused 1 to 4
under Section 148 IPC and sentenced each of them to undergo R.I. for one year;
convicted the accused 1 to 4 under Section 427 IPC and sentenced each of them to
undergo R.I. for one year; convicted the accused 1 to 4 under Section 324 IPC (6
counts) and sentenced each of them to undergo R.I. for one year for each count;
convicted the accused 1 to 4 under Section 302 IPC and sentenced each of them to
undergo life imprisonment and to pay a fine of Rs.3,000/- each in default to
undergo 6 months R.I. each; convicted the accused 1 to 4 under Section 302 r/w
149 IPC (2 counts) and sentenced each of them to undergo life imprisonment for
each count and to pay a fine of Rs.3,000/- each in default to undergo 6 months
R.I. each. All the sentences were ordered to run concurrently.
15. Challenging the conviction and sentences imposed by the Trial Court,
the present appeals have been filed by the appellants / accused.
16. During the pendency of the trial, the accused Peer Mohamed,
Essakkidurai and Ponraj died. The accused 1 to 9 were tried and the Trial Court
acquitted the accused 5 to 9. The present appeals are filed by the accused 1 to
4. The first accused-Velmurugan filed Crl.A.No.210 of 2008. The second-accused
Dhamodharan filed Crl.A. No.313 of 2008. The third accused-Robin @ Robinson
filed Crl.A.No.224 of 2008. The fourth accused-Essakkimuthu filed Crl.A.No.
398/2008. Since all these appeals arise out of a common judgment, they are
taken up together and being disposed of by a common judgment.
17. Learned counsel for the appellant / first accused in Crl.A.No.210 of
2008 submitted that he is not pressing the appeal. He has also made an
endorsement to that effect. Therefore Crl.A.No.210 of 2008 is dismissed as not
pressed.
18. Now we have to deal with the appeals pertaining to A2, A3 and A4.
P.Ws.1, 4, 5 and 7 are the children of the deceased Udayar. The first accused-
Velmurugan belongs to the community of P.W.1. The deceased Udayar is the leader
of the community. Though the first accused and the deceased Udayar belonged to
the same community, the relationship between them was not cordial. The first
accused used to do rowdism and he was pulled up by P.W.1’s father. In the year
1996, a complaint was lodged against the first accused regarding damage of a
political party office. In that way the first accused was not happy with P.W.1’s
father. The accused developed enmity towards the father of P.W.1. Further,
P.W.1’s brother and one Mayilraja who was supported by the first accused
contested in the Panchayat Board election and P.W.1’s brother won in that
election and so the first accused developed enmity towards the father of P.W.1.
19. The motive for the murder was spoken by P.Ws.1 to 5. At this juncture,
the learned Senior Counsel appearing for the second accused argued that A1 only
had enmity towards P.W.1’s father. The other accused cannot have any grudge over
P.W.1’s father. The enmity was spoken by P.Ws.7 and 8 also, apart from P.Ws.1 to
5 and the presence of the accused have also been spoken by P.Ws.1 to 6. P.Ws.1
to 6 were injured in the occurrence and they were treated by P.W.21-Dr.Rajmohan.
20. On 20.04.1997, at about 1.50 p.m., P.W.1 was treated by P.W.21. P.W.21
examined P.W.1 and found the following injuries:-
1) A deep crush injury of size 1 x 1 cm skin depth on the left forehead.
2) A crush injury of size 1 x 1 cm skin depth on the left ear on the back side
of the head.
3) On the left side of the chest and left side of the face – 10 Nos. abrasion
injury.
4) Abrasions from the upper part of left thigh on the front side up to the leg.
Ex.P17 is the Accident Register copy of P.W.1.
21. The Doctor examined P.W.3-Selvaraj and found the following injuries:-
1) Abrasions in the whole right hand with presence of ceramic particles and a
crush injury of size 1 x 1 cm.
2) A crush injury of size 3x1x1 cm on the right front hand on the outside area.
3) A crush injury of size 3x1x1 cm adjacent to 2 cms from the second wound and
it looked like a fracture.
4) Abrasions from the upper part of right thigh up to the leg with presence of
glass particles. The injury was of the size 1 x 1 cm.
5) An abrasion of size 1 x 1 cm over the right chest.
6) An abrasion of size 1 x 1 cm near the middle finger of the left hand.
7) An abrasion of size 1 x 1 cm on the left hand.
8) An abrasion on the forehead of size 1/2 x 1/2 cm with presence of glass
particles.
9) An abrasion of size 1 x 1 cm over the right hand.
10) An abrasion on the second finger of the right hand of size 1 x 1 cm.
Ex.P18 is the Accident Register copy of P.W.3.
22. The Doctor examined P.W.4-Sathiyaraj and found the following
injuries:-
1) 2 abrasions of size 10 x 1 cm extending from left front hand till outside
area and similarly 4 Nos. abrasions of size 1 x 1 cm nearer to it.
2) A crush injury of size 3 x 1 cm on the left front hand 10 cms from the wrist
area.
3) An abrasion of size 4 x 1 cm on the outside portion of the left wrist.
4) Abrasions over the left area of the stomach.
5) A cut injury of size 3 x 1 cm skin deep on the outside portion of upper left
thigh.
6) Abrasions over left middle thigh on the outside portion of size 10 x 1 cm.
7) 10 Nos. abrasions of size 1 x 1 cm on the upper portion of right thigh on the
outside area.
Ex.P19 is the Accident Register copy of P.W.4.
23. At 3.20 p.m. on that day, the Doctor examined P.W.5-Deivendran and
found the following injuries:-
1) Many abrasions found of size 1/2 x 1/2 cm from the upper portion of left hand
till outside portion of the knee.
2) 10 Nos. abrasions over the left front hand till outside portion of size 1/2 x
1/2 cm.
3) A contusion of size 2 x 2 cm above the fourth finger and an abrasion of size
1/2 x 1/2 cm.
4) An abrasion on the left back side of the head of size 1 x 1 cm.
5) An abrasion of size 1/2 x 1/2 cm on the extreme left upper portion of the
head.
Ex.P20 is the Accident Register copy of P.W.5.
24. At 3.40 p.m., the Doctor examined P.W.6-Ayyanar and found the
following injuries:-
1) 20 Nos. abrasions of size 1 x 1 cm on the entire back portion till hip bone
with blood.
2) An abrasion of size 1 x 1 cm on the left cheek.
3) Presence of a sound in the ear.
Ex.P21 is the Accident Register copy of P.W.6.
25. At 3.50 p.m., the Doctor examined P.W.2-Sakthivel and found the
following injuries:-
1) 10 Nos. abrasions of size 1 x 1/2 cm x skin deep on the outside area of the
left front hand.
2) An abrasion of size 3 x 1 cm on the outside portion of right thigh.
Ex.P22 is the Accident Register copy of P.W.2.
26. All of them reached the hospital within short time after the
occurrence and they clearly spoke about the assault of P.W.1’s father in their
evidence. From the evidence it is clear that there was motive also on the part
of the other accused. Therefore the plea that there was no motive for the other
accused to attack P.W.1’s father is not of much weight.
27. At this juncture, it is alleged on behalf of the defence that there is
discrepancy with regard to the weapon used in the occurrence. Learned counsel
for the fourth accused vehemently argued that in the FIR it is stated that the
accused Mariappan was stabbed, but it is the case of the prosecution that the
accused Mariappan was cut. The post mortem certificate would show that he was
stabbed and cut. The Court can analyse the occurrence on the basis of the
evidence on record. The car was stopped by throwing bombs and they were
exploded in the scene of occurrence. Unexploded bombs were also recovered from
the scene of occurrence. Also, the material objects were examined by the
Forensic Laboratory and the same was spoken to by the witnesses. The recovery of
the particles present in the exploded bombs and the unexploded bombs would show
the gravity of the offence in the scene of occurrence. When the bombs explode,
certainly there would be panic and therefore, the injured witnesses ran away. In
such a condition, we cannot expect that they will give accurate and correct
particulars regarding the overt act of the accused. It is settled law that each
witness cannot be expected to react in a same way. The post mortem certificates
also would show that he was stabbed as well as cut, by the accused. So, this
small discrepancy between the FIR and the witnesses, will not go to the root of
the case.
28. Learned counsel for the appellants have submitted that P.W.1 deposed
before the Doctor that he was attacked by throwing bombs and also pistol, but it
is the case of the prosecution that the victims were assaulted by knife and
aruval and so, the prosecution’s version is liable to be rejected. For this the
learned Additional Public Prosecutor has submitted that there was a huge noise
in the scene of occurrence and also there was panic on everybody and in such a
panic condition, one cannot explain whether it is the sound of a rifle or a
bomb. They are all villagers and they cannot be expected to say accurately in
such a panic situation. This small discrepancy is not a ground to reject the
case of the prosecution.
29. The next ground raised by the learned counsel for the appellants /
accused is that all the witnesses spoke differently about the time of reaching
the hospital. It is true that all the witnesses gave slight variations regarding
the time of reaching the hospital. The occurrence took place in the year 1997,
but the evidence were recorded only in the year 2007. As rightly pointed out by
the learned Additional Public Prosecutor, there bound to be some variations in
the witnesses due to lapse of memory. The evidence are clear, cogent and
acceptable. A careful perusal of the evidence would show that they are speaking
truth. Therefore, these slight variations will not shake the case of the
prosecution.
30. The next ground raised by the learned counsel for the appellants is
that P.Ws.2 to 5 spoke that there was no fence in the scene of occurrence, but
on the other hand, Ex.P39-Sketch would show that there is a fence in the Reddiar
field. No doubt, the sketch would show that there is a fence. P.W.1 admitted
that due to the accident he lost his control over the vehicle and therefore he
drove the vehicle into the land of Reddiar. As already pointed out, due to lapse
of memory, they are bound to commit some errors in their evidence. The sketch
would show that the vehicle went into the land of another person and the
photographs would reveal that the vehicle was damaged. So, the claim of the
defence in this respect, is not correct.
31. Learned Senior Counsel appearing for the second accused vehemently
argued that there are no burn injuries due to the accident, and therefore the
case of the prosecution is bound to fail. The injuries sustained by the
witnesses have been clearly spoken to by P.W.21-Dr.Rajmohan. The Doctor was of
the opinion that it is possible to sustain injuries in such an accident.
Admittedly, it is seen from the evidence on record that the bombs used by the
accused are country bombs. A country bomb is different from a regular bomb.
Even the recovery of bombs would show that nails were obtained from the place of
occurrence. The photographs also would show that glass pieces were smashed. The
evidence of the Doctor also would show that there were presence of ceramic
particles over the wounds sustained by the victims. It is also evident from the
post mortem reports that there were glass particles over the bodies of the
deceased. P.W.23 examined the bombs and found that there were nails, glass
pieces and other chemical substances. These nails and glass pieces are used to
cause damage to the victims and because of the throwing of the bombs by the
accused, the victims sustained injuries. So, the stand of the defence that since
there was no burn injuries the case of the prosecution is bound to fail, is not
acceptable.
32. The next ground raised on the side of the defence is that P.W.6 spoke
only about two accused and not the other accused. P.W.6 was examined on
27.07.2007 for chief examination and he was examined on 16.11.2007 for cross
examination. In the chief examination, he asserted the presence of A1 and A2,
but he claimed that other witnesses have also participated, but later on, he
turned hostile. He is not a relative to the deceased Udayar. Though he turned
hostile, his evidence need not be brushed aside. His evidence would disclose the
overt act of A1 and A2 and the other accused who had involved in the offence.
So, it is clear that all the accused had involved in the occurrence and their
presence had been established clearly. So, the claim on the side of the defence
in this respect, is not correct.
33. At this stage, the learned counsel for the appellants have submitted
that P.W.1 had different versions about the number of accused persons, namely,
6, 15 and 12. Evidence of P.W.1 would show that there were 6 named witnesses
and 15 unnamed witnesses. A thorough scanning of the evidence of P.W.1 would
show that he gave different numbers due to tension. It is the case that his own
father was murdered in front of his eyes. It is also clear from his evidence
that he gave 6 names of the accused. So, the slight variations in the number of
accused persons, is not at all a ground to reject the case of the prosecution.
34. Further, it is the stand of the prosecution that P.W.1 was not having
driving license to drive the vehicle, but he was driving the vehicle on the date
of occurrence. Non-possession of driving license is not a ground to reject the
case of the prosecution. A person who is not having license can drive better
than a person having license. The non-possession of driving license will attract
only the Motor Vehicles Act. Therefore the non-possession of driving license is
not at all a ground to reject the case of the prosecution.
35. Learned counsel appearing for the appellants have argued that the name
of the third accused is Churchil Anantha Rabilper and not Robin and relied on
the evidence of D.W.1 and D.W.2 and also Ex.D1 to D5. D.W.2-Dr.Thangamani was
working in the AVM Hospital, Thoothukudi. He spoke about the treatment given by
the hospital to the third accused. Ex.D1 is the certificate showing that one
Samuvel John studied courses in Ayurvedic, Siddha and Allopathy. Ex.D2 is the
Transfer Certificate issued to one Churchil Anantha Rabilper, S/o Samuvel John.
Ex.D3 is the pass book issued by Tamil Nadu State Apex Co-operative Bank in the
name of Churchil Anantha Rabilper. Ex.D4 is the pass book issued by Canara Bank
in the name of Churchil Anantha Rabilper. Ex.D5 is the Date of Birth Certificate
given by Corporation of Chennai to one C.Allen James, S/o Churchil Anantha
Rabilper.
36. Ex.D6 is the copy of Admission Register of the hospital. In that
document, the name was given as Robin. So, the third accused gave the name as
Robin and the same is admitted by D.W.2-the Doctor. The evidence of D.W.2
coupled with Ex.D6 would go to show that the third accused was called also as
Robin. So, the plea that the name of the third accused is different, is not
correct.
37. Learned Senior Counsel appearing for the second accused stated that
the second accused was roped in the case purposely and that on 20.01.1997, he
was participating in a marriage function and he produced Ex.D8-Marriage
Invitation to that effect. Admittedly, the marriage invitation was given by his
brother-in-law, but his brother-in-law was not asked to depose. Therefore, the
contention of the learned Senior Counsel that the second accused was roped in
the case purposely, is not correct.
38. Learned counsel for the appellants have stated that the First
Information Report reached the Court belatedly. The occurrence took place on
20.04.1997 at about 11.30 a.m. The F.I.R. reached the Court on the next day 10’O
clock. The learned Trial Judge relied on the 161 statement to hold that there is
no delay, which is not correct. It is a holiday. The Investigating Officer spoke
that Chelliah, First Grade Constable-1119, had given explanation for the delay.
The evidence of the Investigating Officer would show that the said Chelliah gave
satisfactory explanation for the delay in reaching the FIR to the Court. We are
of the considered view that the explanation given by the Investigating Officer
is correct. Moreover, in this case, all the victims went to the hospital
immediately after the occurrence and P.W.21-Doctor has also made entries with
regard to the timings of giving treatment. There is no reason for P.W.21 to make
false entries. The delay of the FIR reaching the Court is properly explained by
the Investigating Officer. So, the ground relied on by the learned counsel for
the appellants that the FIR reached the Court belatedly, falls to the ground.
39. In view of all the reasons stated supra and a careful scanning of the
evidence on record, this Court is of the considered view that the case of triple
murder has been properly established by the prosecution in the manner known to
law and it has been amply supported by the evidence on record. The Trial Court
has analysed the evidence on record carefully and arrived at the correct
conclusion in convicting the appellants / accused 2 to 4 and we find no reason
to differ with the findings of the Trial Court. Therefore, the conviction and
sentences imposed on the appellants / accused 2 to 4 are liable to be confirmed
and accordingly they are confirmed and the Criminal Appeal(MD)Nos.224, 313 and
398 of 2008 are dismissed.
km
To
1.The Additional Sessions Judge-cum-
Fast Track Court No.1,
Tuticorin.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.