BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/07/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Criminal Appeal (MD) No.360 of 2009 1.Soma Sundaram 2.Sundara Pandian 3.Sankar 4.Murugan @ Velmurugan 5.Muthu Raman 6.Muthu Raj ... Appellants Vs The State represented by, The Inspector of Police, Thattaparai Police Station, Thoothukudi District. (Crime No.185 of 2003) ... Respondent Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional Sessions Judge cum Fast Track Court No.II, Thoothukudi in S.C. No.170 of 2007 dated 23.06.2009. !For Appellants ... Mr.R.Anand ^For Respondent ... Mr.P.N.Pandidurai, Addl. Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by
M.CHOCKALINGAM, J.)
Challenging the judgment of the Additional Sessions Judge, Thoothukudi
passed in S.C. No.170 of 2007 on 23.06.2009, whereby the appellants / accused 1
to 6 stood charged, tried, found guilty and awarded punishment as under, the
present Criminal Appeal has been filed.
Accused Charges under Finding Punishment
Section
A1 to A6 148 IPC Found guilty A1 to A6 were sentenced to
undergo 3 years R.I. each.
A1 to A6 302 r/w
34 IPC Found guilty A1 to A6 were sentenced to undergo
(3 counts) life imprisonment each for three counts
and to pay a fine of Rs.1000/- each
towards each count in default, to
undergo 1 year S.I. each,for each count.
A1 to A6 449 IPC Found guilty A1 to A6 were sentenced to undergo
10 years R.I. each and to pay a
fine of Rs.1000/- each in default
to undergo 1 year S.I. each.
A1 307 IPC Found guilty A1 was sentenced to undergo 10 years
(2 counts) on one count R.I. and to pay a fine Rs.1000/-
in default to undergo 1 year S.I.
A1 to A6 435 IPC Found guilty A1 to A6 were sentenced to undergo
7 years R.I. each and to pay a fine of
Rs.1000/- each in default to undergo
1 year S.I. each.
2. The short facts that are necessary for the disposal of this appeal can
be stated as follows:-
a) The accused / appellants and all the three deceased belonged to the
same place, within the jurisdiction of the respondent-Police Station. The first
deceased-Mayajohn @ John is the brother of the second deceased-Anthony and
P.W.1. The second deceased-Anthony is another brother of P.W.1. The third
deceased-Dinesh is the son of the second deceased. P.W.4-Saroja, the wife of
the second deceased, was injured in the occurrence and she died subsequent to
the occurrence. P.W.5-Suresh is another son of the second deceased. The first
deceased-Mayajohn developed illicit intimacy with P.W.3-Chithiralekha, the wife
of one Nagaraj. Apart from that, the first accused-Soma Sundaram and the first
deceased-Mayajohn were on inimical terms on different counts.
b) On 14.05.2003, at about 9.30 p.m., P.W.6-Nikson went to the house of
the deceased Mayajohn to invite him for a function. When he enquired about
Mayajohn, he was informed that Mayajohn was in front of a Mariamman Temple
situate in Kakkan Nagar. Thereafter, P.Ws.1, 2, 6 and the said Mayajohn were
chatting in front of the temple. At that time, the first accused, along with
some others, came over there with deadly weapons and attacked Mayajohn
indiscriminately, as a result of which he died instantaneously. Thereafter, they
went to the house of Anthony and knocked at the back door of the house. Since
the back door was not opened, they went to the house through the front door. The
first accused asked the second deceased-Anthony to lit the match box since it
was dark at that time. When the second deceased lit on fire, all the accused
attacked him, his wife-PW4 and also their son, the third deceased-Dinesh and in
that process, both Anthony and Dinesh died on the spot. P.W.4 was taken to the
Government Hospital, Thoothukudi where she was examined by P.W.13-Doctor and
Ex.P.11-Accident Register copy was issued to that effect.
c) On receipt of intimation, P.W.20-Inspector of Police, Thattaparai
Police Station, proceeded to the place of occurrence at 11.00 p.m., made
inspection and recorded the statement under Ex.P1 from one Seemon and on the
strength of Ex.P1, P.W.20 registered a case in Crime No.185 of 2003. Ex.P16-
Express F.I.R. was prepared and despatched to the Court. Thereafter, P.W.20
prepared Exs.P2, P3 and P4-Observation Mahazars at 1.00 hours, 2.00 hours and
2.30 hours respectively on 15.05.2003 and Exs.P21, P22 and P23-Rough Sketches.
Then, he conducted inquest over the body of the first deceased-Mayajohn in the
presence of witnesses and panchayatars and prepared Exs.P24, P25 and P28-Inquest
Reports. Ex.P24 pertains to the inquest made on the dead body of the first
deceased and Ex.P25 and Ex.P28 pertains to the inquest made on the right and
left legs of the first deceased respectively. P.W.20 also conducted inquest over
the dead bodies of the second deceased-Anthony and third deceased-Dinesh in the
presence of witnesses and panchayatars and prepared Inquest Reports marked as
Exs.P26 and P27 respectively. He recovered the blood-stained earth and sample
earth from the place of occurrence and sent the dead bodies to the hospital for
conducting autopsy.
d) The dead bodies of the deceased were subjected to autopsy by P.W.14,
the Doctor attached to the Government Hospital, Thoothukudi and he issued
Exs.P13, P14 and P15-Post Mortem Reports, pertaining to the deceased Mayajohn,
Anthony and Dinesh respectively, wherein he opined that all the deceased would
have died out of haemorrhage and shock due to injuries of the vital organs and
multiple injuries and the death would have occurred 12 to 24 hours prior to
autopsy. After completion of the post mortem, the material objects were
recovered from the respective bodies of the deceased.
e) Pending the investigation, the Investigator came to know that the
accused 1 and 3 surrendered before the Judicial Magistrate Court, Ambasamudram
on 19.05.2003. The investigator filed a requisition in the Court for getting
their custody and examining them. The first accused gave a confessional
statement voluntarily in the presence of witnesses. The admissible portion of
the confessional statement of the first accused is Ex.P7. On the basis of
Ex.P7, M.O.18-blood-stained aruval, M.O.19-blood-stained Vettaruval and Ex.P20-
blood-stained knife, were recovered under a cover of Ex.P8-Seizure Mahazar. On
24.05.2003, the second accused was arrested before north Silukkanpatti Kovil, in
the presence of witnesses. The second accused gave a confessional statement
and the same was recorded in the presence of witnesses. Ex.P29 is the admissible
portion of the confessional statement of the second accused. On 07.06.2003, the
sixth accused-Muthu Raj was arrested in the presence of witnesses. He also gave
a confessional statement voluntarily in the presence of witnesses. Ex.P31 is the
admissible portion of the confessional statement of A6. On the basis of Ex.P31,
the fifth accused-Muthu Raman, was arrested. The fifth accused produced M.O.21-
Knife and the same was recovered under a cover of Ex.P32-Seizure Mahazar.
Then, he sent all the above accused for judicial remand.
f) Thereafter, the investigator sent all the material objects to the
Forensic Lab for conducting chemical examination with a requisition under
Ex.P33, followed by another requisition by the concerned Judicial Magistrate
Court under Ex.P34. Three reports were received. They are Exs.P35 and P39-
Chemical Analyst’s Reports and Ex.P36-Serologist’s Report.
g) Thereafter, P.W.21-Inspector of Police took up the case for further
investigation. He arrested the fourth accused-Murugan @ Velmurugan and sent him
for judicial remand. Then, P.W.22-Inspector of Police took up the case for
further investigation. After completing the investigation, he filed final report
on 15.09.2004 against the accused / appellants before the concerned court,
which in turn committed the case to the Court of sessions and necessary charges
were framed.
h) In order to substantiate the charges, at the time of trial, the
prosecution examined 22 witnesses and relied on 41 exhibits and 21 M.Os. On
completion of the evidence adduced on the side of the prosecution, the
accused/appellants were questioned under Section 313 of Cr.P.C. as to the
incriminating circumstances found in the evidence of prosecution witnesses. They
denied them as false. No defence witness was examined. After hearing the
arguments of the counsel and looking into the available materials, the Trial
Court took the view that the prosecution has proved the case beyond reasonable
doubt and found the accused guilty and awarded the punishments as referred to
above. Under these circumstances, this criminal appeal has arisen at the
instance of the accused/appellants.
3. Advancing arguments on behalf of the accused / appellants, the learned
counsel would submit that the occurrence took place at about 9.30 p.m. on
14.05.2003, in which three persons namely, Mayajohn, Anthony and his son Dinesh
were murdered and in order to prove the charges with regard to the first part of
the incident, the prosecution relied on the evidence of P.Ws.1 and 6 and insofar
as the second part is concerned, it relied on the evidence of P.Ws.4 and 5. The
learned counsel further added that even according to the prosecution at about
9.30 p.m. on the date of occurrence, it was utter darkness and also the
occurrence took place inside the house. He further stated that P.Ws.1 and 6
have categorically stated that about 4 to 5 persons came with deadly weapons and
that they knew only A1 and they have not stated anything about the other
accused. He further submitted that insofar as the second part of the incident is
concerned, P.W.4 has not spoken anything about A2 or any other accused and
insofar as P.W.5 is concerned, he could not have been present in the scene of
occurrence at all, because P.W.5 stated in his evidence that immediately on
hearing the message that the first deceased was attacked, he went to the
opposite house. Therefore according to the learned counsel, the evidence of
P.W.5 shows that he was not at all present in the scene of occurrence and hence
he could not have seen the occurrence.
4. Learned counsel for the accused / appellants has pointed out that the
First Information Report states only the names of A1, A2 and one Nagaraj and the
names of the other accused are not mentioned, but in the instant case, there are
six accused, which would show that they are falsely implicated in the case.
Apart from that, according to the learned counsel, the only motive that has been
projected by the prosecution is that the first deceased-Mayajohn developed
illicit intimacy with P.W.3, who is the wife of the said Nagaraj and insofar as
the other deceased are concerned, the accused had got no motive and even as per
the prosecution case, as could be seen from the F.I.R., no motive has been
established.
5. Counsel for the appellants / accused has further added that a
requisition for conducting Identification Parade was made on 12.12.2003 and
subsequently an Identification Parade was conducted and it is quite clear that
the Investigating Officer has entertained certain suspicion over the conduct of
the Identification Parade. P.W.22-Inspector of Police has stated that even in
the Identification Parade conducted, no identification was made and the document
pertaining to the Identification Parade was also not included in the charge
sheet. While the matter stood so, it would be a false case and insofar as the
other accused are concerned, no motive has been established by the prosecution
in the manner known to law.
6. Added further the learned counsel for the accused / appellants that in
the instant case, the witnesses were found in their respective places and they
were not examined in the place of occurrence. Therefore, according to the
learned counsel, the statements were not taken from the place of occurrence, and
hence it is quite clear that the statements could not have been recorded at all.
7. Added further the learned counsel for the accused / appellants that the
evidence of the investigator is imperfect and that even in the complaint the
names of the other accused were not mentioned, and in the absence of the names
of the other accused, the prosecution has included their names, which would be
clearly indicative of the fact that they are falsely implicated in the case. He
further submitted that the witnesses have stated that they did not know A1, A2
and other accused and in such circumstance, all the accused are entitled for
acquittal in the hands of this Court and accordingly, the judgment of the Trial
Court has got to be set aside.
8. The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and also
scrutinised the materials available.
9. It is not in controversy that in an incident that had taken place at
9.30 p.m. on 14.05.2003, 3 persons, namely Mayajohn, Anthony and Dinesh were
murdered indiscriminately. Following the inquest made by P.W.20-Investigating
Officer, the dead bodies were subjected to post mortem by P.W.14-Doctor, who had
given a categorical opinion that all the deceased would have died of shock and
haemorrhage due to injuries of the vital organs and multiple injuries and the
death would have occurred 12 to 24 hours prior to autopsy. These facts were
never disputed by the appellants before the Trial Court and hence the Trial
Court had no legal impediment in recording so.
10. In order to prove the charges framed against the accused / appellants,
the prosecution has projected its evidence by marching P.Ws.1 and 5 as to the
first part of the incident in which the first deceased-Mayajohn was cut and
murdered, and for the second part in which Anthony and Dinesh were killed, it
relied on the evidence of P.Ws.4 and 5. As could be seen from the evidence of
those witnesses, it is quite clear that insofar as the first part of the
incident is concerned, the prosecution had the evidence of P.Ws.1 and 6 only. A
perusal of the evidence of P.Ws.1 and 6 would show that they have given a
categorical statement to the effect that out of the persons who had attacked
Mayajohn, they knew only A1 and not the other accused. Insofar as the second
part of the incident is concerned, no evidence is available. Thus, insofar as
A1, there is no reason whatsoever to disbelieve the evidence adduced on the side
of the prosecution, in the instant case. Insofar as the second part is
concerned, the prosecution relied on the evidence of P.Ws.4 and 5. As rightly
pointed out by the learned counsel for the appellants / accused, evidence of
P.W.5 was not available for the prosecution for the simple reason that according
to P.W.5, immediately on coming to know about the first occurrence, under the
grip of fear, he ran away to the opposite house and he saw through the window.
It is pertinent to note that the occurrence took place at 9.30 p.m. and at that
time, there was darkness and therefore, P.W.5 could not have seen the occurrence
at all. Insofar P.W.4 is concerned, she has given a categorical statement that
she was inside the house and that when the accused got into the house, they
asked for a matchbox and when the second deceased lit the match box, all the
accused attacked the second and third deceased and in that process, she was also
attacked.
11. As rightly pointed out by the learned counsel for the appellants /
accused, P.W.4 has not spoken anything about A2 when she was interrogated by the
Investigating Officer. Insofar as A1 is concerned, P.W.4 has given a clear
evidence. P.W.4 was an injured witness. It is settled proposition of law that
in a given case, if any witness happened to be an injured witness, the Court
should not discard the testimony of the injured witness, unless and until
reasons are brought about, or circumstances are noticed by the Court. In the
instant case, P.W.4, who was the wife of the second deceased Anthony, has stated
that A1 was very well available and he asked for a match box since there was
darkness and at that time, when her husband lit the match box, A1 attacked him
and she also sustained injuries in the same transaction. P.W.4 was examined by
P.W.13-Doctor and the statement given by her to P.W.13 was also recorded under
Ex.P11-Accident Register copy. In the Accident Register copy, she has stated
the name of A1 and Nagaraj, but the name of A2 was not available.
12. The contention put forth by the learned counsel for the accused /
appellants that since it was total darkness at the time of occurrence, all the
witnesses are false witnesses and hence the entire case of the prosecution must
fail, cannot be accepted in view of the explanation given by P.W.4 as to how she
happened to be a witness. Insofar as the other accused are concerned, no motive
has been put forth on the side of the prosecution. The only motive that has
been put forth by the prosecution is that the first deceased-Mayajohn developed
illicit intimacy with P.W.3, the wife of the said Nagaraj.
13. The contention of the learned counsel for the accused / appellants
that the said Nagaraj had a main role to play for which there was no proper
explanation given on the side of the prosecution and hence A1 has been falsely
implicated, cannot be countenanced, since P.Ws.1 and 6 have given evidence to
the effect that A1 committed the crime for the first part and P.W.4 has given
evidence as to the role played by A1 with regard to the second part, in causing
the death of the second and third deceased.
14. In such circumstances, insofar the first accused is concerned, the
conviction and sentences imposed on him by the Trial Court, are liable to be
confirmed and accordingly confirmed, and all these sentences shall run
concurrently. Insofar as the appellants 2 to 6 are concerned, the judgment of
conviction and sentences passed by the Additional Sessions Judge cum Fast Track
Court No.II, Thoothukudi in S.C.No.170 of 2007, dated 23.06.2009, is set aside
and they are acquitted of all the charges levelled against them. The appellants
2 to 6 are directed to be released forthwith, unless their presence is required
in connection with any other case. The fine amounts if any paid by them shall be
refunded to them.
15. In the result, this Criminal Appeal is partly allowed.
KM
To
1.The Additional Sessions Judge cum Fast Track Court No.II,
Thoothukudi.
2.The Inspector of Police,
Thattaparai Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.