{"id":110124,"date":"2007-03-28T00:00:00","date_gmt":"2007-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/annadurai-vs-state-represented-by-on-28-march-2007"},"modified":"2014-10-20T07:09:00","modified_gmt":"2014-10-20T01:39:00","slug":"annadurai-vs-state-represented-by-on-28-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/annadurai-vs-state-represented-by-on-28-march-2007","title":{"rendered":"Annadurai vs State Represented By on 28 March, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Annadurai vs State Represented By on 28 March, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\nDATED: 28\/03\/2007\nCORAM\nTHE HON'BLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR\nCRL.A.Nos.109 of 2003 and 15 of 2006\n\n1.Annadurai\n2.Durai Raj\n3.Sollamuthu\n4.Muthukutti\n5.Madasamy\n6.Sudalaimani\n7.Raj\n8.Mani alias Suddalai\t\t.. Appellants in\n\t\t\t\t   C.A.109 of 2003\n\nAlbert\t\t\t\t.. Appellant in\n\t\t\t\t   CA 15 of 2006\n\nvs\n\nState represented by\nThe Inspector of Police\nSpecial CB CID\nTirunelveli\nCrime No.147 of 95 on the\nfile of Kadambur\nPolice Station)\t\t\t.. Respondent<\/pre>\n
\t\t\t\t  in both appeals<\/p>\n
\tC.A.No.109 of 2003 preferred under Sec.374 of Cr.P.C. against the judgment of
\nthe District and Sessions Judge for Communal Clash Cases of Southern District at
\nMadurai in S.C.No.37 of 2000 dated 20.12.2002.\n<\/p>\n
\tC.A.No.15 of 2006 preferred under Sec.374 of Cr.P.C. against the judgment of
\nthe District and Sessions Judge for Communal Clash Cases of Southern District at
\nMadurai in S.C.No.11 of 2004 dated 9.12.2005.\n<\/p>\n
!For Appellants in\t:  Mr.Gopinath, Senior Counsel,
\nCA 109 of 2003
\n\t\t\t   for Mr.P.Andiraj
\n\t\t\t   for A-1, A-2, A-6, A-7 & A-8
\n\t\t\t   Mr.Shanmugasundaram
\n\t\t\t   Senior Counsel
\n\t\t\t   for Mr.K.S.Ramachandran
\n\t\t\t   for A-3 and A-4<\/p>\n
\t\t\t   Mr.Ashok Kumar
\n\t\t\t   Senior Counsel
\n\t\t\t   for Mr.G.Sankaran for A-5<\/p>\n
For Appellant in\t:  Mr.T.Lajapathy Roy
\nCA 15 fo 2006\t\t<\/p>\n
^For Respondent\t\t:  Mr.V.Kasinathan
\n\t\t\t   Additional Public Prosecutor<\/p>\n
:COMMON JUDGMENT<\/p>\n
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)<\/p>\n
\tThis judgment shall govern these two appeals in C.A.Nos.109 of 2003 and 15
\nof 2006.\n<\/p>\n
\t2.A-1 to A-8, the appellants in C.A.109\/2003, who stood charged, tried and
\nfound guilty by the Special Court for Communal Clash Cases at Madurai in
\nS.C.No.37\/2000, and also A-1, the appellant in C.A.15\/2006, whose case was split
\nup and separately tried along with A-2 in S.C.No.11\/2004 by the same Court and
\nwho was found guilty as per the charges, have brought forth these two appeals.
\nA-2 in S.C.No.11\/2004 was acquitted by the trial Court.\n<\/p>\n
\t3.The charges, the conviction and the sentence awarded by the trial Court
\nare as follows:\n<\/p>\n
A-1 to A-8 in C.A.109\/2003:\n<\/p>\n
I. Under Sec.120-B of I.P.C. – convicted.\n<\/p>\n
II. Under Sec.148 of I.P.C. – convicted and sentenced to 3 years Rigorous
\nImprisonment.\n<\/p>\n
III. Under Sec.341 read with 120-B and 149 of I.P.C. – convicted and sentenced
\nto 1 month Simple Imprisonment.\n<\/p>\n
IV. Under Sec.302 read with 120-B and 149 of I.P.C. – convicted.
\nA-1 to A-8 were sentenced to life along with a fine of Rs.10,000\/- and default
\nsentence under Sections 120-B and 302 read with 120-B and 149 of I.P.C.
\nA-1 in C.A.No.15\/2006:\n<\/p>\n
I. A-1 and A-2 – Under Sec.120-B of I.P.C.  A-1 was convicted.
\nII. A-1 and A-2 – Under Sec.148 of I.P.C.   A-1 was convicted and sentenced to 3
\nyears Rigorous Imprisonment.\n<\/p>\n
III. A-1 and A-2 – Under Sec.341 read with 120-B and 149 of I.P.C. – A-1 was
\nconvicted and sentenced to 1 month Simple Imprisonment.
\nIV. A-2 – Under Sec.506(ii) of I.P.C. – acquitted.\n<\/p>\n
V.A-1 and A-2 – Under Sec.302 read with 120-B and 149 of I.P.C. – A-1 was
\nconvicted.\n<\/p>\n
A-1 was sentenced to life imprisonment along with a fine of Rs.3,000\/- and
\ndefault sentence under Sections 120-B and 302 read with 120-B and 149 of I.P.C.\n<\/p>\n
\t4.Briefly the facts of the prosecution case as culled out from the
\nevidence adduced by the prosecution in S.C.No.37\/2000, can be stated thus:\n<\/p>\n
\t(a) P.W.1 is the son of the deceased Guruswamy Thevar.  The deceased was
\nserving as Village Administrative Officer at Koththalai Village and was residing
\nat Veerapandi Pulikulam.  P.W.1 was residing in a nearby village called
\nThennampatti.  One day prior to the date of occurrence, that was on 2.12.1995,
\nhe visited his father at Veerapandi Pulikulam village.  On that day, a
\nconspiracy was hatched up between A-2 and A-4 that they should finish off the
\nVillage Administrative Officer, the deceased.  This conspiracy, which was
\nhatched up, was actually witnessed by P.W.19, a native of Kadambur, and also
\nP.W.20, a villager of that place, at about 7.00 A.M.  On the date of occurrence,
\nnamely 3.12.1995, P.W.1 accompanied his father, and they went to Kadambur.  They
\npurchased groceries and medicines for the child of P.W.1.  After the purchase
\nwas over, both of them went to the Bus Stand, Kadambur. P.W.13, a resident of
\nThalaiyiyuthu, went to Kadambur for purchasing provisions.  After the purchase,
\nhe also went to the Bus Stand at about 11.00 A.M.  He also met the deceased.
\nP.Ws.1, 2, 5, 15 and also A-1 to A-4 were waiting for the bus at Kadambur Bus
\nStand.\n<\/p>\n
\t(b) At about 11.00 A.M., a bus belonging to Kattabomman Transport
\nCorporation and bearing Registration No.0127, stopped at the Bus Stand.  The
\ndeceased along with P.Ws.1, 2 and 5 to 10 boarded the bus.  A-1 to A-4 also
\nboarded the bus.  When the bus was proceeding to Koththalai and when the bus
\ncrossed Izhavelkal Vilakku and Railway Station Road, the bus was stopped, and
\nimmediately, two persons, who stopped the bus, got into the bus, and they were
\narmed with aruvals.  They came near the deceased, and one of the persons shouted
\n“cut the deceased”.  Immediately, A-2 cut the deceased with an aruval on the
\nleft side of the neck.  A-3 cut the deceased repeatedly with an aruval.  While
\nthe deceased warded off by his hand, his wrist was almost severed.  A-4 cut the
\ndeceased on his right hand with an aruval.  A-1 stabbed the deceased above his
\nright flank with a knife.  A-5 is the person among two persons who stopped the
\nbus and boarded.  A-5 pulled the deceased from the seat and cut him on his back
\nside.  A-6 cut the deceased on his right cheek with an aruval.\n<\/p>\n
\t(c) On seeing the occurrence, all the passengers made alarm and also got
\ndown from the bus.  They were running hither and thither and raising hue and
\ncry.  One of the accused shouted at A-1 saying that the deceased died.  All the
\naccused got down from the bus.  One of the accused shouted to cut the passenger
\nwho belonged to Thevar community.  Immediately, one of the passengers examined
\nas P.W.15, ran away from the place of occurrence, and he was chased by four
\npersons.  Out of the two persons who were originally ranked as A-9 and A-10 and
\nagainst whom the case was split up and tried, one stopped the bus.  They were
\nthe two accused who chased P.W.15.\n<\/p>\n
\t(d) P.W.12, a resident of Thalaiyuthu and P.W.29, at about 11.00 A.M. or
\n12.00 P.M., on seeing the KTC bus halted away from the bus stop, went near the
\nbus and saw the absconding accused Kennedy, who is A-2 in the other case,
\nthreatening the bus driver, and another absconding accused Albert, A-1 in the
\nother case, and A-7 and A-8 chased P.W.15.  As P.W.15 was wearing saffron dress,
\nA-1 informed the other accused not to attack him.  Therefore, he was left, and
\nall of them fled away from the place of occurrence.\n<\/p>\n
\t(e) P.W.1 immediately proceeded to his village and informed  to his mother
\nabout the occurrence.  Then, he proceeded to Kadambur Police Station and gave a
\ncomplaint.  P.W.30, the Inspector of Police, who was on duty on 3.12.1995 at
\nabout 2.00 P.M., reduced the oral complaint given by P.W.1, into writing, which
\nis marked as Ex.P1.  On the strength of Ex.P1, the complaint, a case came to be
\nregistered in Crime No.147\/95 under Sections 147, 148 and 302 of I.P.C.  He
\nprepared Ex.P26, the First Information Report, and sent it to the Court through
\nP.W.27, the Police Constable.  Thereafter, he went to the scene of occurrence,
\nmade an inspection in the presence of witnesses and prepared Ex.P2, the
\nobservation mahazar, and Ex.P27, the rough sketch.  He recovered M.O.1, a HMT
\nwatch, M.O.2, a register, and M.O.3, a pair of plastic cheppals, under a
\nmahazar, Ex.P3.  He also conducted inquest on the dead body of Guruswamy in the
\npresence of witnesses and panchayatdars and prepared Ex.P28, the inquest report.
\nThe dead body was sent to the Government Hospital along with a requisition,
\nEx.P4, for the purpose of autopsy.\n<\/p>\n
\t(f) P.W.22, the Doctor, attached to the Government Hospital, Kayathar, on
\nreceipt of the said requisition, conducted autopsy on the dead body of Guruswamy
\nand found 15 injuries.  The Doctor has issued a postmortem certificate, Ex.P5,
\nwith his opinion that the deceased would appear to have died of injury No.1 and
\ndue to shock and haemorrhage due to other injuries.\n<\/p>\n
\t(g) P.W.30 proceeded with the further investigation.  On 3.12.1995, he
\nexamined P.Ws.3 to 11, 13, 17 and 27 and recorded their statements.  On
\n4.12.1995 at about 5.00 P.M., he arrested   A-2 to A-6 at Malaipatti near the
\nfield of A-2.  At about 5.15 P.M., he recorded the confessional statement given
\nby A-2.  The admissible part is marked as Ex.P29.  In the presence of witnesses,
\nA-2 produced M.O.9, aruval, which was recovered under Ex.P34, the mahazar.  At
\nabout 6.15 P.M., he recorded the confessional statement of A-4.  The admissible
\npart is marked as Ex.P30.  Pursuant to the confessional statement, the
\nInvestigator recovered M.O.10, aruval, from A-4 under a mahazar, Ex.P35.  At
\nabout 7.00 P.M., the Investigator recorded the confessional statement of A-3.
\nThe admissible part is Ex.P31.  In the presence of the same witnesses, he
\nrecovered M.O.11, aruval, under a mahazar, Ex.P36.  At about 7.45 P.M., he
\nrecorded the confessional statement of A-5.  Ex.P32 is the admissible part.  In
\nthe presence of the same witnesses, he recovered M.O.12, aruval, and M.O.14,
\nbloodstained shirt, under a mahazar Ex.P37.  At about 8.30 P.M., the
\nInvestigator recorded the confessional statement of A-6.  The admissible part is
\nEx.P33.  In the presence of the same witnesses, he recovered M.O.13, aruval, and
\nM.O.15, bloodstained shirt, under a mahazar, Ex.P38.  P.W.25, the Village
\nAdministrative Officer, was the mahazar witness.  On 5.12.1995, the Investigator
\nexamined P.Ws.14, 16 and 25 and recorded their statements.\n<\/p>\n
\t(h) On 23.1.1996, A-1 surrendered before the Judicial Magistrate,
\nNanguneri, which came to the knowledge of the Investigator.  Then, he filed a
\nmemo to take him to police custody.  Accordingly, it was ordered.  At about 9.30
\nP.M., the Investigator recorded the confessional statement of A-1, which was
\nvoluntarily given by him, in the presence of witnesses.  Ex.P22 is the
\nadmissible part.  Following the same, A-1 took the police party to a place where
\nhe threw the knife.  The Investigator did not recover anything; but, he prepared
\nan observation mahazar in respect of that place.  Further, on 31.1.1996, the
\nInvestigator examined P.Ws.12 to 15 and 29 and recorded their statements.  On
\n1.2.1996, the Investigator examined the other witnesses and recorded their
\nstatements.\n<\/p>\n
\t(i) On 8.2.1996, the Investigating Officer sent a requisition, Ex.P6, to
\nthe Judicial Magistrate, Vilathikulam, to conduct an identification parade.
\nAccordingly, an identification parade was conducted in the Central Prison by
\nP.W.23, the Judicial Magistrate, Vilathikulam.  P.Ws.1, 3, 4, 12, 15, 16 and 29
\nwere summoned and asked to identify the accused.  P.W.1 identified A-1 and A-6.
\nP.Ws.3 and 4 did not identify the accused.  P.W.12 identified A-1 alone.  P.W.16
\nidentified A-1 and A-6.  P.W.29 identified A-1 and A-2.  Ex.P7 is the report as
\nto the identification parade proceedings.  Thereafter, the Investigator examined
\nP.Ws.1, 12, 15 and 20 and recorded their further statements.  On 23.2.1996, he
\nexamined P.W.4 and recorded his statement.\n<\/p>\n
\t(j) All the material objects recovered from the place of occurrence and
\nfrom the dead body, and the material objects recovered from the accused, were
\nsubjected to chemical analysis by the Forensic Sciences Department, which
\nresulted in two reports namely Ex.P10, the Chemical Analyst’s report, and
\nEx.P11, the Serologist’s report.  On completion of investigation, the
\nInvestigating Officer filed the final report on 29.3.1996.\n<\/p>\n
\t5.The case in respect of the absconding accused, two in number, was split
\nup, and the case in respect of A-1 to A-8, was committed to Court of Session.
\nNecessary charges were framed against A-1 to A-8 in S.C.No.37\/2000.\n<\/p>\n
\t6.In respect of the other two accused, out of whom A-1 is the appellant in
\nC.A.15\/2006, the case was taken up in S.C.No.11\/2004, and necessary charges were
\nframed against them.\n<\/p>\n
\t7.In order to substantiate the charges framed in S.C.No.37\/2000, the
\nprosecution examined 30 witnesses and also relied on 37 exhibits and 16 material
\nobjects.  On completion of the evidence on the side of the prosecution, the
\naccused were questioned under Sec.313 of Cr.P.C. as to the incriminating
\ncircumstances found in the evidence of the prosecution witnesses, which they
\nflatly denied as false.  On their side, D.Ws.1 and 2 were examined and 3
\ndocuments were marked.\n<\/p>\n
\t8.In order to establish the charges framed in S.C.No.11\/2004, the
\nprosecution examined 25 witnesses and also relied on 28 exhibits and 17 material
\nobjects.  On completion of the evidence on the side of the prosecution, the
\naccused were questioned under Sec.313 of Cr.P.C. as to the incriminating
\ncircumstances found in the evidence of the prosecution witnesses, which they
\nflatly denied as false.  On their side, D.W.1 was examined and 4 documents were
\nmarked.\n<\/p>\n
\t9.The trial Court heard the arguments advanced on either side, took the
\nview that the prosecution has proved the case beyond reasonable doubt in respect
\nof A-1 to A-8 in S.C.No.37\/2000, and A-1 in S.C.No.11\/2004, found them guilty as
\nper the charges and awarded punishment as referred to above.  Hence, these two
\nappeals at the instance of the appellants before this Court.\n<\/p>\n
\t10.Advancing his arguments on behalf of A-1, A-2 and A-6 to A-8, the
\nlearned Senior Counsel would submit that in the instant case, the prosecution in
\norder to prove the charges levelled against them, examined P.Ws.1 to 11 and 15
\nas eyewitnesses; that so far as P.Ws.2 to 11 and 15 are concerned, they have
\nturned hostile; that the only witness available for the prosecution was P.W.1;
\nthat though the prosecution has miserably failed to prove the conspiracy part,
\nthe lower Court has accepted the case of the prosecution; that the witnesses
\nexamined in that regard, were P.Ws.19 and 20, out of whom P.W.20 has turned
\nhostile; that the only witness available was P.W.19; that according to the
\nprosecution, a conspiracy was hatched up on the previous day that was on
\n2.12.1995, and on that day, in a nearby village, A-2 was telling A-4 that they
\nmust finish off the Village Administrative Officer, the deceased, as decided by
\nA-1; that this conspiracy was actually made in a public place; that apart from
\nthat, P.W.19 did not belong to that village; that he belonged to some other
\nvillage; that according to the prosecution, the conspiracy was hatched up at
\n7.00 A.M.; that it is highly improbable that a person like P.W.19, who belonged
\nto some other village, visited the village, where A-2 and A-4 were coming to an
\nagreement to hatch up a conspiracy as decided by A-1 and that too, in a public
\nplace adjacent to the house property; and that the way in which it has been put
\nforth would clearly indicate that this could not have happened at all.\n<\/p>\n
\t11.Added further the learned Senior Counsel that there are circumstances
\nto reject the case of the prosecution; that according to the prosecution, the
\noccurrence has taken place on 3.12.1995, and the conspiracy was hatched up on
\nthe previous day that was  on 2.12.1995; but, both P.Ws.19 and 20 were examined
\nby the Investigator on 1.2.1996 i.e., after two months; that this would go to
\nthe root of the matter; that apart from that, nowhere this conspiracy part is
\nstated in the earliest document, Ex.P1; that all would go to show that the
\nprosecution has miserably failed to prove the case for conspiracy.\n<\/p>\n
\t12.The learned Senior Counsel would further submit that as far as the
\noccurrence part is concerned, the lower Court should have rejected the case
\noutright for more reasons than one; that the case of the prosecution in gist,
\nwas that P.W.1 accompanied the deceased, and they along with the eyewitnesses
\nboarded a bus belonging to KTC, and the bus was proceeding from the Bus Stand,
\nand A-1 to A-4 also got into the bus, and on the way, the bus was stopped, and
\ntwo other accused also got in; that it is pertinent to point out that the
\ndescription of the entire case in the F.I.R. was only against six accused; that
\nP.W.1 would claim that he already knew A-1 and A-6; but, the F.I.R. does not
\nreveal any description of the names of any of the accused; that it would contain
\nonly the name of A-1, but would mention five known persons; that the charge
\nsheet was filed, and it was for eight persons; that under the circumstances, two
\npersons have been introduced; that even the FIR does not speak about the whole
\noccurrence; that it speaks about the fact that six persons were available, and
\nfive were armed with aruvals, and one had a knife in hand; that in the instant
\ncase, P.Ws.12, 13, 15 and 29 were all examined only on 31.1.1996, while the
\noccurrence has taken place on 3.12.1995; that it is further pertinent to point
\nout that the statements of these witnesses were recorded by the Investigator
\nunder Sec.161 of Cr.P.C. after a period of two months; that they reached the
\nCourt after a period of two months thereafter; that all would indicate that
\nthese witnesses have nothing to do with the occurrence in question; and that
\ntheir statements have been recorded in such a way to suit the convenience of the
\nprosecution case.\n<\/p>\n
\t13.The learned Senior Counsel would further add that the inquest was
\nconducted by the Investigator on 3.12.1995 between 4.00 P.M. and 6.00 P.M.; that
\nno one of the witnesses’ names are mentioned therein; that it is pertinent to
\npoint out that the inquest report though it bore the names of the accused with
\ndescription, also reached the Court only after two days; and that it would be
\nquite clear that the inquest report has been prepared with all manipulation
\npossible in order to rope in the accused, who have nothing to do with the
\noccurrence at all.\n<\/p>\n
\t14.Added further the learned Senior Counsel that in the instant case, an
\nidentification parade was actually conducted; that the evidence adduced by the
\nprosecution in respect of the identification parade, has got to be rejected
\noutright for the simple reason that the occurrence has taken place on 3.12.1995;
\nthat the accused persons namely A-2 to A-6, except A-1, were all arrested on
\n4.12.1995; but, the identification parade was conducted on 14.2.1996, and thus,
\nthere was an enormous delay; that even according to the accused, they were shown
\npreviously; that there was sufficient interval in that regard; that if to be so,
\nin the absence of any explanation acceptable and convincing, the identification
\nparade conducted by the Judicial Magistrate, is of no significance and legal
\nconsequence at all; that though in the F.I.R., six accused are shown, at the
\ntime of charge sheet, 10 accused were shown; that even at the time of the
\nidentification parade, the prosecution witnesses who are taken for
\nidentification parade, could not identify the accused properly; that as could be
\nseen from the proceedings as to the identification parade, marked as Ex.P7, all
\nthese P.Ws.1, 3, 4, 12, 15 and 29 were summoned; that they have participated in
\nthe identification parade, in which P.W.1 has identified A-1 and A-6, P.Ws.3 and
\n4 did not identify any of the accused, and P.W.12 identified A-1 alone, and
\nP.W.16 identified   A-1 and A-6, and P.W.29 identified A-1 and A-2; that though
\nsix persons are shown as accused in the F.I.R., even it is claimed by P.W.1 that
\nhe knew A-1 and A-6; that under the circumstances, the identification parade, in
\nwhich P.W.1 who knew A-1 and A-6, was able to identify them, was not at all
\nnecessary; that so far as others are concerned, they could not identify as
\nstated above; that even at the earliest point of time, the identification parade
\nwas conducted, and they could not identify the assailants; that under the
\ncircumstances, no question of identifying the assailants before the Court would
\narise, and no evidentiary value could be attached to the evidence of the
\nwitnesses.\n<\/p>\n
\t15.Added further the learned Senior Counsel that in the instant case,
\nthough it was actually like a communal clash, no evidence is available at all;
\nthat in view of the same, the prosecution case must fail; that the evidence of
\nthe eyewitnesses could not be believed, and for all these reasons, they are
\nentitled for acquittal in the hands of this Court.\n<\/p>\n
\t16.Advancing his arguments on behalf of A-5, the learned Senior Counsel
\nwould submit that as far as A-5 was concerned, there is no mention of his name
\nin Ex.P1; that if to be so, there should have been an identification parade;
\nbut, no identification parade was conducted; that apart from that, even on
\n3.12.1995, P.W.1 did not know A-5 earlier; that if to be so, identification
\nparade becomes necessary in that regard, but not done so; that P.W.12 was
\nanother eyewitness; and that he did not speak about the presence of A-5 at the
\ntime of occurrence.  Added further the learned Senior Counsel that as regards A-
\n5, he was a student doing his course; that he was staying in the hostel; that
\nD.W.2 is the Warden, through whom all the records pertaining to the date of
\noccurrence, were summoned and produced; that D.W.2 has spoken to the fact that
\nA-5 was very well available in the hostel on that day; that at this juncture, it
\nis pertinent to point out that when the Investigator was examined regarding this
\naspect of the matter, he has categorically deposed that he came to know that A-5
\nwas a student, and he examined the authorities in the College and in the hostel;
\nbut, he did not either record their statements or recover any of the documentary
\nevidence; that all would go to show that the Investigating Officer even after
\ncoming to know that there is no involvement of A-5 in the crime, merely because
\nof the reason that his name is added, instead of dropping him, has proceeded
\nwith the case and filed the final report against him; that on the contrary,
\nthere is evidence to show that he was available in the hostel on the day of
\noccurrence; that under the circumstances, the case against A-5 was not at all
\nbrought home, and hence, he is entitled for acquittal.\n<\/p>\n
\t17.The learned Senior Counsel appearing for A-3 and A-4 would submit that
\neven in the FIR, their names have not been shown; that at the time of the
\nidentification parade, A-3 and A-4 were not identified by any one of the
\nwitnesses; that as far as A-4 was concerned, his name is Narayanan, son of
\nChollamuthu; that for that purpose, D.W.1, the Village Administrative Officer,
\nhas been examined; that in the case papers, A-4’s name is shown as Muthukutti;
\nthat under the circumstances, question of identify also would arise; but, the
\nprosecution did not explain the same; that it can be well stated that there is
\ncompletely bereft of evidence, and hence, they are entitled for acquittal.\n<\/p>\n
\t18.The learned Counsel for the appellant in C.A.15\/2006 would submit that
\nin the instant case, the gist of the case of the prosecution, was that A-1, the
\nappellant herein, was chasing P.W.12, and it was A-2 who stopped the bus at the
\nthat time; that two witnesses were examined namely P.Ws.12 and 13 in
\nS.C.No.11\/2004; that P.W.12 was the witness, who was examined in the other case
\nas P.W.15; but, he has turned hostile; that so far as P.W.13 was concerned, he
\ndid not speak anything about the act of chasing; that in the instant case,
\nP.W.25 has not also given any explanation as to why the earliest statements
\ngiven by both were not to that effect; that according to the prosecution case,
\nA-1 was chasing, and A-2 stopped the bus; but, A-2 was acquitted by the lower
\nCourt; that even as per the prosecution case, chasing was the only act; but, it
\nwas not proved by any evidence as required by law, and under the circumstances,
\nhe is entitled for acquittal; but, the lower Court was carried away by the fact
\nthat he was absconding; and that the other case ended in conviction and also
\nmore relied on the evidence adduced in the other case and found him guilty, and
\nthus, he is entitled for acquittal in the hands of this Court.\n<\/p>\n
\t19.The Court heard the learned Additional Public Prosecutor on all the
\nabove contentions put forth by the learned Senior Counsel and paid its anxious
\nconsideration on the submissions made.\n<\/p>\n
\t20.It is not a fact in controversy that the deceased Guruswamy who was
\nserving as Village Administrative Officer, Koththalai, and the father of P.W.1,
\nwas done to death in an incident that took place in a running bus belonging to
\nKTC, on 3.12.1995.  Following the incident, P.W.1 proceeded to the respondent
\nPolice Station and gave an oral complaint, which was reduced into writing.
\nThereafter, Ex.P1, the complaint, came into existence, on the strength of which
\na case came to be registered, and the investigation was taken up.  P.W.30, the
\nInvestigating Officer, conducted an inquest on the dead body.  Following the
\nsame, the dead body was subjected to postmortem by P.W.22, the Doctor, who has
\nopined in Ex.P5, the postmortem certificate, that the deceased would appear to
\nhave died of injury No.1 and due to shock and haemorrhage due to other injuries
\nsustained.  The fact that Guruswamy died out of homicidal violence was never
\nquestioned by any of the appellants at any stage of the proceedings.  Hence,
\nwithout any impediment, it can be safely recorded so.\n<\/p>\n
\t21.In order to substantiate the accusations made against these accused
\nthat there was a conspiracy hatched up on the previous day that was on
\n2.12.1995, at about 7.00 A.M. at Malaipatti Village, the prosecution has marched
\nonly two witnesses namely P.Ws.19 and 20, out of whom P.W.20 has turned hostile.
\nHence, his evidence was not useful to the prosecution case.  But, the
\nprosecution had the evidence of P.W.19.  As far as P.W.19 was concerned, this
\nCourt is afraid whether it could accept his evidence to come to a conclusion
\nthat there could have been a conspiracy.  According to P.W.19, he did not belong
\nto that village, and the conspiracy was hatched up in the nearby village at
\nabout 7.00 A.M., and when he was just proceeding in the village nearby a house
\nproperty, A-2 and A-4 were talking to each other, and A-2 was actually telling
\nA-4 that as decided by A-1, they should finish off the Village Administrative
\nOfficer, the next day.  At this juncture, it is pertinent to point out that
\nwhether such a conspiracy could be hatched up in a public place and that too, by
\n7.00 A.M., and whether it would have been heard by P.Ws.19 and 20.  The strong
\ncircumstances against the prosecution in regard to the conspiracy, are two in
\nnumber.  Firstly, it is doubtful whether P.W.19 could have been in the place
\nwhere the conspiracy is said to have been hatched up.  Secondly, P.W.19 was
\nexamined by the Investigator only on 1.2.1996, when the occurrence has taken
\nplace on 3.12.1995.  Had it been true that a villager like P.W.19, came to know
\nabout the conspiracy in the previous day, a reasonable prudent conduct of a
\nperson would be to disclose the same and not to keep quiet for a period of two
\nmonths.  Therefore, the case of the prosecution that P.W.19 was examined by the
\nInvestigator on 1.2.1996, and the statement was also recorded as to the
\nconspiracy, is highly doubtful.  In short, it can be stated that the prosecution
\nhas not proved the conspiracy part, and thus, it failed miserably.\n<\/p>\n
\t22.So far as the occurrence was concerned, according to the prosecution,
\nit was spoken to by the eyewitnesses, who were P.Ws.1 to 11, 12, 15 and 29.  Out
\nof these witnesses, as could be seen, P.Ws.2 to 11 and 15 have turned hostile.
\nThus, the witnesses who were available for the prosecution, were P.Ws.1, 12 and\n<\/p>\n
29.  So far as these witnesses are concerned, the prosecution has claimed that
\nthey were all eyewitnesses.  As regards P.Ws.12, 13, 14 and 29 are concerned,
\nthey were all examined by the Investigator only on 31.1.1996.  Once the
\noccurrence has taken place in a village like that, on 3.12.1995 and once the
\nprosecution came forward to project a case that these witnesses happened to be
\neyewitnesses to the occurrence in a running bus, they were examined only on
\n31.1.1996.  That apart, the statements of these witnesses also reached the Court
\nonly on 2.4.1996.  All would go to show that the evidence of P.Ws.12, 13, 14 and
\n29 cannot be accepted.  The delay is also noticed not only at the time when they
\nwere examined by the Investigator after a period of two months from the time of
\noccurrence, but also at the time when the statements reached the Court after two
\nmonths thereafter in the month of April.  No explanation was tendered by the
\nprosecution at all.  Even in a case where the prosecution comes forth with an
\nexplanation, a duty is cast upon the Court to carefully analyse the explanation.
\nIn the instant case, no explanation was offered at all either through the
\nwitnesses or through the Investigator, P.W.30. Under the circumstances, without
\nany hesitation, the evidence adduced by the prosecution through P.Ws.12, 13, 14
\nand 29 have got to be rejected outright.  Thus, the only evidence put forth by
\nthe prosecution was that of P.W.1.  Now, this Court is mindful of the caution
\nmade by law and the rulings of the Apex Court that when the eyewitnesses
\nhappened to be the close relations of the deceased, their evidence on that
\nground, cannot be rejected, but has got to be accepted, after exercising the
\nrule of careful scrutiny.  In the instant case, despite the exercise of the
\nrule, this Court is of the considered opinion that the evidence of P.W.1 has
\ninspired the confidence of the Court.\n<\/p>\n
\t23.As far as P.W.1 was concerned, according to him, he went to the place
\nof his father, and both of them started from there, and they came to Kadambur,
\nand they purchased provisions and medicines, and they were waiting for the bus,
\nand they got into the bus, and both of them seated, and at that time, they saw
\nfour persons getting into the bus, and the bus was moving, and on the way, the
\nbus was stopped, and two persons got in, and the occurrence has taken place in
\nwhich five persons armed with aruvals, and one person armed with a knife,
\nstabbed his father.  Immediately P.W.1 and all other passengers got down and
\nthey made distressing cry.  It is the further evidence of P.W.1 that he went to
\nthe village, informed to the mother, proceeded to the Police Station and gave
\nEx.P1, the report, which has resulted in the FIR coming into existence.  Now, at
\nthis juncture, no doubt would arise that six persons have actually participated
\nin the crime.  But, at the same time, it has to be seen whether the prosecution
\nhas brought home its case against A-1 to A-6 before the Court.  The earliest
\ndocument is Ex.P1.  In Ex.P1, only six assailants are mentioned to have
\nparticipated in the crime.  When Ex.P1 is perused, the name of A-1 alone is
\nfound and none else.  As far as the other five persons are concerned, when their
\nnames and descriptions are not found in the FIR, the Court would naturally
\nexpect their identification that has got to be made clear. A-2 to A-6 were
\narrested on 4.12.1995, and an identification parade was conducted on 14.2.1996.
\nSo far as the identification parade in respect of A-2 to A-6, is concerned, it
\ncannot in any way advance the case of the prosecution.  They were arrested on
\n4.12.1995.  The identification parade was actually conducted on 14.2.1996 after
\na long period. In such circumstances, naturally an explanation has got to be
\ntendered by the prosecution why there was such a huge and inordinate delay in
\nconducting the identification parade.  It is well settled proposition of law
\nthat in a case where the identification parade was conducted with a delay, the
\nlegal consequence would be not to give any evidentiary value.\n<\/p>\n
\t24.Apart from the above, it is pertinent to point out that even that
\nidentification parade with such a huge and inordinate delay did not support the
\nprosecution case for the simple reason that at the time of the identification
\nparade, P.Ws.1, 3, 4, 12, 15 and 29 were summoned.  Out of these witnesses
\nbefore the Court, P.Ws.1, 12 and 29 were the persons, who spoke about the
\nprosecution case.  P.W.1 was able to identify A-1 and A-6.  P.Ws.3 and 4 did not
\nidentify any accused.  P.W.12 identified A-1 alone, and P.W.29 identified A-1
\nand A-2.  As rightly pointed out by the learned Senior Counsel for A-3, A-4 and
\nA-5, as far as A-5 was concerned, he was not actually taken for identification.
\nAs regards A-3 and  A-4, they were not identified by any one of these witnesses.
\nNeedless to say, in a given case, the law make it a must to conduct
\nidentification parade for the reason that the earliest opportunity should be
\ngiven to the witnesses to identify them in order to ascertain the participation
\nof the accused in a given occurrence.  But, in the instant case, as far as all
\nthese witnesses are concerned, they identified only A-1; but, they were not able
\nto identify the other accused.  In such circumstances, if they could not
\nidentify any one of the accused except A-1, their identification in Court in
\nrespect of the other accused, was of no avail.  Therefore, the evidence in
\nrespect of the other accused, was not at all available.  What is available for
\nthe prosecution is the evidence in respect of A-1.\n<\/p>\n
\t25.In the instant case, as rightly pointed out by the learned Senior
\nCounsel, the F.I.R. did not contain the names of A-2 to A-8.  The statements of
\nthe witnesses were recorded only on 31.1.1996 after two months, and it also
\nreached the Court two months thereafter.  Therefore, the identification parade
\nconducted is of no use for the prosecution.  In such circumstances, it cannot be
\nstated that the prosecution has brought home the guilt of A-2 to A-6.  As
\nregards A-7 and A-8, their names have been included, and even in the FIR, the
\nnames of A-7 and A-8 are not made mention.  Even as per the prosecution case,
\nonly six persons have participated.  Taking into consideration the evidence of
\nP.W.1, the case what is available for the prosecution in respect of A-1, is
\nconsistent from the very beginning.  Even in Ex.P1, the name of A-1 is
\nmentioned.  As regards A-1, he was not arrested; but, he actually surrendered
\nbefore the Judicial Magistrate, Nanguneri, on 23.1.1996, and the identification
\nparade was conducted on 14.2.1996 where all these witnesses have clearly
\nidentified A-1 and have also identified him in Court.  Thus, the fact that A-1
\nwas armed with weapon, and he also participated in the crime causing the death
\nof the deceased, is proved. The evidence of P.W.1 in this regard stood fully
\ncorroborated by the medical evidence also.  Hence, all the circumstances are
\npointing to the participation of A-1 in the crime.  When the evidence is
\nmarshalled and considered properly, the evidence of P.W.1 and all other
\ncircumstances would be pointing to the guilt of A-1.  It can be well stated that
\nas regards A-1, his participation in the crime and his complicity are proved by
\nthe prosecution.  As far as A-2 to A-8 in C.A.109 of 2003 are concerned, it is
\nhighly doubtful whether this Court can sustain a conviction on the evidence
\nwhich is shrouded with suspicion and doubts as narrated above.  Hence, A-2 to A-
\n8 are entitled for acquittal.\n<\/p>\n
\t26.So far as the appellant in C.A.15\/2006 is concerned, originally, two
\nmore persons were also shown as A-9 and A-10 in the case.  Since they were
\nabsconding, the case was split up, and the trial went on.  A-2 was acquitted by
\nthe trial Court.  A-1 was the only appellant in the above appeal who was found
\nguilty.  According to the prosecution, there are two witnesses examined as
\nP.Ws.12 and 13 in S.C.No.11\/2004.  P.W.12 turned hostile in the other case.  The
\ngist of the case of the prosecution was that A-1 was actually chasing P.W.12;
\nbut, P.W.12 has turned hostile in the other case.  Thus, P.W.13 is the only
\nwitness available.  But, he did not speak anything at the time of the
\ninvestigation that A-1 was chasing.  He has also not spoken about the said fact
\nbefore the Court.  Under the circumstances, it would be quite clear that as far
\nas A-1 was concerned, the lower Court was carried away by the conviction and
\nsentence given in the other case.  In view of these reasons, as regards the
\nappellant in C.A.15\/2006, it can be well stated that there is bereft of
\nevidence.  Therefore, he cannot be found guilty at all.  Under the
\ncircumstances, he is entitled for acquittal.\n<\/p>\n
\t27.As could be seen above, as far as A-1 in C.A.109\/2003 is concerned, A-1
\nhas got to be found guilty under Sec.302 of I.P.C.,  and the life sentence along
\nwith fine and default sentence has got to be sustained in his regard.
\nAccordingly, the conviction of A-1 in C.A.No.109\/2003 under Sec.302 read with
\n120-B and 149 of I.P.C. is modified, and instead, he is convicted under Sec.302
\nof I.P.C.  The sentence awarded by the trial Court in that regard, is sustained.\n<\/p>\n
\t28.So far as A-1 in C.A.No.109\/2003 is concerned, the case of the
\nprosecution for conspiracy fails, and hence he is acquitted of the charge under
\nSec.120-B of I.P.C.  In respect of the other charges as regards A-1 and in
\nrespect of all the charges as regards the other accused namely A-2 to A-8, in
\nC.A.109\/2003, the prosecution has not proved the case, and they are entitled for
\nacquittal in that regard, and accordingly, acquitted.  The fine amounts if any
\npaid by A-2 to A-8 in C.A.109\/2003, will be refunded to them, and the bail bonds
\nexecuted by them, shall stand terminated.\n<\/p>\n
\t29.As regards the appellant in C.A.15\/2006, he is acquitted of all the
\ncharges levelled against him.  The fine amount if any paid by him, will be
\nrefunded to him.\n<\/p>\n
\t30.In the result, C.A.No.109\/2003 is partly allowed.  It is reported that
\nA-1 is on bail.  Hence, the Sessions Judge shall take steps to commit him to
\nprison to undergo the period of sentence.\n<\/p>\n
\t31.In the result, C.A.No.15\/2006 is allowed.\n<\/p>\n
Nsv\/<\/p>\n
To:\n<\/p>\n
1.The District and Sessions Judge for
\n\tCommunal Clash Cases of Southern District
\n    Madurai\n<\/p>\n
2.The Inspector of Police
\n   Special CB CID
\n   Tirunelveli
\n   (Crime No.147\/95 on the
\n   file of Kadambur Police Station)\n<\/p>\n
3.The Public Prosecutor
\n   Madurai Bench of Madras High Court<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Annadurai vs State Represented By on 28 March, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28\/03\/2007 CORAM THE HON’BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON’BLE MR.JUSTICE P.R.SHIVAKUMAR CRL.A.Nos.109 of 2003 and 15 of 2006 1.Annadurai 2.Durai Raj 3.Sollamuthu 4.Muthukutti 5.Madasamy 6.Sudalaimani 7.Raj 8.Mani alias Suddalai .. Appellants in C.A.109 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-110124","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAnnadurai vs State Represented By on 28 March, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/annadurai-vs-state-represented-by-on-28-march-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Annadurai vs State Represented By on 28 March, 2007 - 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