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