{"id":230044,"date":"2010-07-05T00:00:00","date_gmt":"2010-07-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/soma-sundaram-vs-the-state-represented-by-on-5-july-2010"},"modified":"2015-07-09T16:30:14","modified_gmt":"2015-07-09T11:00:14","slug":"soma-sundaram-vs-the-state-represented-by-on-5-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/soma-sundaram-vs-the-state-represented-by-on-5-july-2010","title":{"rendered":"Soma Sundaram vs The State Represented By on 5 July, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Soma Sundaram vs The State Represented By on 5 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 05\/07\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE M.DURAISWAMY\n\nCriminal Appeal (MD) No.360 of 2009\n\n1.Soma Sundaram\n2.Sundara Pandian\n3.Sankar\n4.Murugan @ Velmurugan\n5.Muthu Raman\n6.Muthu Raj\t\t\t\t\t\t  ... Appellants\n\nVs\n\nThe State represented by,\nThe Inspector of Police,\nThattaparai Police Station,\nThoothukudi District.\n(Crime No.185 of 2003)\t\t\t \t\t  ... Respondent\n\n\nCriminal Appeal filed under Section 374 of Cr.P.C. against the judgment of\nthe Additional Sessions Judge cum Fast Track Court No.II, Thoothukudi in S.C.\nNo.170 of 2007 dated 23.06.2009.\n\n!For Appellants  ... Mr.R.Anand\n^For Respondent  ... Mr.P.N.Pandidurai,\n\t\t     Addl. Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by
\nM.CHOCKALINGAM, J.)<\/p>\n
\tChallenging the judgment of the Additional Sessions Judge, Thoothukudi
\npassed in S.C. No.170 of 2007 on 23.06.2009, whereby the appellants \/ accused 1
\nto 6 stood charged, tried, found guilty and awarded punishment as under, the
\npresent Criminal Appeal has been filed.\n<\/p>\n
Accused   Charges under   Finding           Punishment\n            Section\n\n\nA1 to A6    148 IPC     Found guilty   A1 to A6 were sentenced to\n                                       undergo 3 years R.I. each.\nA1 to A6    302 r\/w\n            34 IPC       Found guilty  A1 to A6 were sentenced to undergo\n            (3 counts)                 life imprisonment each for three counts\n                                       and to pay a fine of Rs.1000\/- each\n                                       towards each count in default, to\n                                       undergo 1 year S.I. each,for each count.\n\n\nA1 to A6     449 IPC     Found guilty  A1 to A6  were sentenced to undergo\n                                       10 years R.I. each and to pay a\n                                       fine of Rs.1000\/- each in default\n                                       to undergo 1 year S.I. each.\n\nA1          307 IPC     Found guilty   A1 was sentenced to undergo 10 years\n           (2 counts)   on one count   R.I. and to pay a fine Rs.1000\/-\n                                       in default to undergo 1 year S.I.\n\n\nA1 to A6     435 IPC    Found guilty   A1 to A6  were sentenced to undergo\n                                       7 years R.I. each and to pay a fine of\n                                       Rs.1000\/- each in default to undergo\n                                       1 year S.I. each.\n\n<\/pre>\n
\t2. The short facts that are necessary for the disposal of this appeal can
\nbe stated as follows:-\n<\/p>\n
\ta) The accused \/ appellants and all the three deceased belonged to the
\nsame place, within the jurisdiction of the respondent-Police Station. The first
\ndeceased-Mayajohn @ John is the brother of the second deceased-Anthony and
\nP.W.1. The second deceased-Anthony is another brother of P.W.1. The third
\ndeceased-Dinesh is the son of the second deceased.  P.W.4-Saroja, the wife of
\nthe second deceased, was injured in the occurrence and she died subsequent to
\nthe occurrence.  P.W.5-Suresh is another son of the second deceased. The first
\ndeceased-Mayajohn developed illicit intimacy with P.W.3-Chithiralekha, the wife
\nof one Nagaraj.  Apart from that, the first accused-Soma Sundaram and the first
\ndeceased-Mayajohn were on inimical terms on different counts.\n<\/p>\n
\tb) On 14.05.2003, at about 9.30 p.m., P.W.6-Nikson went to the house of
\nthe deceased Mayajohn to invite him for a function.  When he enquired about
\nMayajohn, he was informed that Mayajohn was in front of a Mariamman Temple
\nsituate in Kakkan Nagar. Thereafter, P.Ws.1, 2, 6 and the said Mayajohn were
\nchatting in front of the temple. At that time, the first accused, along with
\nsome others, came over there with deadly weapons and attacked Mayajohn
\nindiscriminately, as a result of which he died instantaneously. Thereafter, they
\nwent to the house of Anthony and knocked at the back door of the house. Since
\nthe back door was not opened, they went to the house through the front door. The
\nfirst accused asked the second deceased-Anthony to lit the match box since it
\nwas dark at that time. When the second deceased lit on fire, all the accused
\nattacked him, his wife-PW4 and also their son, the third deceased-Dinesh and in
\nthat process, both Anthony and Dinesh died on the spot. P.W.4 was taken to the
\nGovernment Hospital, Thoothukudi where she was examined by P.W.13-Doctor and
\nEx.P.11-Accident Register copy was issued to that effect.\n<\/p>\n
\tc) On receipt of intimation, P.W.20-Inspector of Police, Thattaparai
\nPolice Station, proceeded to the place of occurrence at 11.00 p.m., made
\ninspection and recorded the statement under Ex.P1 from one Seemon and on the
\nstrength of Ex.P1, P.W.20 registered a case in Crime No.185 of 2003.  Ex.P16-
\nExpress F.I.R. was prepared and despatched to the Court. Thereafter, P.W.20
\nprepared Exs.P2, P3 and P4-Observation Mahazars at 1.00 hours, 2.00 hours and
\n2.30 hours respectively on 15.05.2003 and Exs.P21, P22 and P23-Rough Sketches.
\nThen, he conducted inquest over the body of the first deceased-Mayajohn in the
\npresence of witnesses and panchayatars and prepared Exs.P24, P25 and P28-Inquest
\nReports. Ex.P24 pertains to the inquest made on the dead body of the first
\ndeceased and Ex.P25 and Ex.P28 pertains to the inquest made on the right and
\nleft legs of the first deceased respectively. P.W.20 also conducted inquest over
\nthe dead bodies of the second deceased-Anthony and third deceased-Dinesh in the
\npresence of witnesses and panchayatars and prepared Inquest Reports marked as
\nExs.P26 and P27 respectively.  He recovered the blood-stained earth and sample
\nearth from the place of occurrence and sent the dead bodies to the hospital for
\nconducting autopsy.\n<\/p>\n
\td) The dead bodies of the deceased were subjected to autopsy by P.W.14,
\nthe Doctor attached to the Government Hospital, Thoothukudi and he issued
\nExs.P13, P14 and P15-Post Mortem Reports, pertaining to the deceased Mayajohn,
\nAnthony and Dinesh respectively, wherein he opined that all the deceased would
\nhave died out of haemorrhage and shock due to injuries of the vital organs and
\nmultiple injuries and the death would have occurred 12 to 24 hours prior to
\nautopsy.  After completion of the post mortem, the material objects were
\nrecovered from the respective bodies of the deceased.\n<\/p>\n
\te) Pending the investigation, the Investigator came to know that the
\naccused 1 and 3 surrendered before the Judicial Magistrate Court, Ambasamudram
\non 19.05.2003. The investigator filed a requisition in the Court for getting
\ntheir custody and examining them. The first accused gave a confessional
\nstatement voluntarily in the presence of witnesses.  The admissible portion of
\nthe confessional statement of the first accused is Ex.P7.  On the basis of
\nEx.P7, M.O.18-blood-stained aruval, M.O.19-blood-stained Vettaruval and Ex.P20-
\nblood-stained knife, were recovered under a cover of Ex.P8-Seizure Mahazar. On
\n24.05.2003, the second accused was arrested before north Silukkanpatti Kovil, in
\nthe presence of witnesses.   The second accused gave a confessional statement
\nand the same was recorded in the presence of witnesses. Ex.P29 is the admissible
\nportion of the confessional statement of the second accused. On 07.06.2003, the
\nsixth accused-Muthu Raj was arrested in the presence of witnesses. He also gave
\na confessional statement voluntarily in the presence of witnesses. Ex.P31 is the
\nadmissible portion of the confessional statement of A6. On the basis of Ex.P31,
\nthe fifth accused-Muthu Raman, was arrested. The fifth accused produced M.O.21-
\nKnife  and the same was recovered under a cover of Ex.P32-Seizure Mahazar.
\nThen, he sent all the above accused for judicial remand.\n<\/p>\n
\t  f) Thereafter, the investigator sent all the material objects to the
\nForensic Lab for conducting chemical examination with a requisition under
\nEx.P33, followed by another requisition by the concerned Judicial Magistrate
\nCourt under Ex.P34.  Three reports were received.  They are Exs.P35 and P39-
\nChemical Analyst’s Reports and Ex.P36-Serologist’s Report.\n<\/p>\n
\tg) Thereafter, P.W.21-Inspector of Police took up the case for further
\ninvestigation. He arrested the fourth accused-Murugan @ Velmurugan and sent him
\nfor judicial remand. Then, P.W.22-Inspector of Police took up the case for
\nfurther investigation. After completing the investigation, he filed final report
\non 15.09.2004 against the accused  \/ appellants before the concerned court,
\nwhich in turn committed the case to the Court of sessions and necessary charges
\nwere framed.\n<\/p>\n
\th) In order to substantiate the charges, at the time of trial, the
\nprosecution examined 22 witnesses and relied on 41 exhibits and 21 M.Os. On
\ncompletion of the evidence adduced on the side of the prosecution, the
\naccused\/appellants were questioned under Section 313 of Cr.P.C. as to the
\nincriminating circumstances found in the evidence of prosecution witnesses. They
\ndenied them as false.  No defence witness was examined. After hearing the
\narguments of the counsel and looking into the available materials, the Trial
\nCourt took the view that the prosecution has proved the case beyond reasonable
\ndoubt and found the accused guilty and awarded the punishments as referred to
\nabove. Under these circumstances, this criminal appeal has arisen at the
\ninstance of the accused\/appellants.\n<\/p>\n
\t3. Advancing arguments on behalf of the accused \/ appellants, the learned
\ncounsel would submit that the occurrence took place at about 9.30 p.m. on
\n14.05.2003, in which three persons namely, Mayajohn, Anthony and his son Dinesh
\nwere murdered and in order to prove the charges with regard to the first part of
\nthe incident, the prosecution relied on the evidence of P.Ws.1 and 6 and insofar
\nas the second part is concerned, it relied on the evidence of P.Ws.4 and 5. The
\nlearned counsel further added that even according to the prosecution at about
\n9.30 p.m. on the date of occurrence, it was utter darkness and also the
\noccurrence took place inside the house.  He further stated that P.Ws.1 and 6
\nhave categorically stated that about 4 to 5 persons came with deadly weapons and
\nthat they knew only A1 and they have not stated anything about the other
\naccused. He further submitted that insofar as the second part of the incident is
\nconcerned, P.W.4 has not spoken anything about A2 or any other accused and
\ninsofar as P.W.5 is concerned, he could not have been present in the scene of
\noccurrence at all, because P.W.5 stated in his evidence that immediately on
\nhearing the message that the first deceased was attacked, he went to the
\nopposite house.  Therefore according to the learned counsel, the evidence of
\nP.W.5 shows that he was not at all present in the scene of occurrence and hence
\nhe could not have seen the occurrence.\n<\/p>\n
\t4. Learned counsel for the accused \/ appellants has pointed out that the
\nFirst Information Report states only the names of A1, A2 and one Nagaraj and the
\nnames of the other accused are not mentioned, but in the instant case, there are
\nsix accused, which would show that they are falsely implicated in the case.
\nApart from that, according to the learned counsel, the only motive that has been
\nprojected by the prosecution is that the first deceased-Mayajohn developed
\nillicit intimacy with P.W.3, who is the wife of the said Nagaraj and insofar as
\nthe other deceased are concerned, the accused had got no motive and even as per
\nthe prosecution case, as could be seen from the F.I.R., no motive has been
\nestablished.\n<\/p>\n
\t5. Counsel for the appellants \/ accused has further added that a
\nrequisition for conducting Identification Parade was made on 12.12.2003 and
\nsubsequently an Identification Parade was conducted and it is quite clear that
\nthe Investigating Officer has entertained certain suspicion over the conduct of
\nthe Identification Parade. P.W.22-Inspector of Police has stated that even in
\nthe Identification Parade conducted, no identification was made and the document
\npertaining to the Identification Parade was also not included in the charge
\nsheet. While the matter stood so, it would be a false case and insofar as the
\nother accused are concerned, no motive has been established by the prosecution
\nin the manner known to law.\n<\/p>\n
\t6. Added further the learned counsel for the accused \/ appellants that in
\nthe instant case, the witnesses were found in their respective places and they
\nwere not examined in the place of occurrence.  Therefore, according to the
\nlearned counsel, the statements were not taken from the place of occurrence, and
\nhence it is quite clear that the statements could not have been recorded at all.\n<\/p>\n
\t7. Added further the learned counsel for the accused \/ appellants that the
\nevidence of the investigator is imperfect and that even in the complaint the
\nnames of the other accused were not mentioned, and in the absence of the names
\nof the other accused, the prosecution has included their names, which would be
\nclearly indicative of the fact that they are falsely implicated in the case.  He
\nfurther submitted that the witnesses have stated that they did not know A1, A2
\nand other accused and in such circumstance, all the accused are entitled for
\nacquittal in the hands of this Court and accordingly, the judgment of the Trial
\nCourt has got to be set aside.\n<\/p>\n
\t8. The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions made and also
\nscrutinised the materials available.\n<\/p>\n
\t9. It is not in controversy that in an incident that had taken place at
\n9.30 p.m. on 14.05.2003, 3 persons, namely Mayajohn, Anthony and Dinesh were
\nmurdered indiscriminately. Following the inquest made by P.W.20-Investigating
\nOfficer, the dead bodies were subjected to post mortem by P.W.14-Doctor, who had
\ngiven a categorical opinion that all the deceased would have died of shock and
\nhaemorrhage due to injuries of the vital organs and multiple injuries and the
\ndeath would have occurred 12 to 24 hours prior to autopsy.  These facts were
\nnever disputed by the appellants before the Trial Court and hence the Trial
\nCourt had no legal impediment in recording so.\n<\/p>\n
\t10. In order to prove the charges framed against the accused \/ appellants,
\nthe prosecution has projected its evidence by marching P.Ws.1 and 5 as to the
\nfirst part of the incident in which the first deceased-Mayajohn was cut and
\nmurdered, and for the second part in which Anthony and Dinesh were killed, it
\nrelied on the evidence of P.Ws.4 and 5. As could be seen from the evidence of
\nthose witnesses, it is quite clear that insofar as the first part of the
\nincident is concerned, the prosecution had the evidence of P.Ws.1 and 6 only.  A
\nperusal of the evidence of P.Ws.1 and 6 would show that they have given a
\ncategorical statement to the effect that out of the persons who had attacked
\nMayajohn, they knew only A1 and not the other accused.  Insofar as the second
\npart of the incident is concerned, no evidence is available.  Thus, insofar as
\nA1, there is no reason whatsoever to disbelieve the evidence adduced on the side
\nof the prosecution, in the instant case.  Insofar as the second part is
\nconcerned, the prosecution relied on the evidence of P.Ws.4 and 5. As rightly
\npointed out by the learned counsel for the appellants \/ accused, evidence of
\nP.W.5 was not available for the prosecution for the simple reason that according
\nto P.W.5, immediately on coming to know about the first occurrence, under the
\ngrip of fear, he ran away to the opposite house and he saw through the window.
\nIt is pertinent to note that the occurrence took place at 9.30 p.m. and at that
\ntime, there was darkness and therefore, P.W.5 could not have seen the occurrence
\nat all.  Insofar P.W.4 is concerned, she has given a categorical statement that
\nshe was inside the house and that when the accused got into the house, they
\nasked for a matchbox and when the second deceased lit the match box, all the
\naccused attacked the second and third deceased and in that process, she was also
\nattacked.\n<\/p>\n
\t11. As rightly pointed out by the learned counsel for the appellants \/
\naccused, P.W.4 has not spoken anything about A2 when she was interrogated by the
\nInvestigating Officer. Insofar as A1 is concerned, P.W.4 has given a clear
\nevidence.  P.W.4 was an injured witness.  It is settled proposition of law that
\nin a given case, if any witness happened to be an injured witness, the Court
\nshould not discard the testimony of the injured witness, unless and until
\nreasons are brought about, or circumstances are noticed by the Court. In the
\ninstant case, P.W.4, who was the wife of the second deceased Anthony, has stated
\nthat A1 was very well available and he asked for a match box since there was
\ndarkness and at that time, when her husband lit the match box, A1 attacked him
\nand she also sustained injuries in the same transaction. P.W.4 was examined by
\nP.W.13-Doctor and the statement given by her to P.W.13 was also recorded under
\nEx.P11-Accident Register copy.  In the Accident Register copy, she has stated
\nthe name of A1 and Nagaraj, but the name of A2 was not available.\n<\/p>\n
\t12. The contention put forth by the learned counsel for the accused \/
\nappellants that since it was total darkness at the time of occurrence, all the
\nwitnesses are false witnesses and hence the entire case of the prosecution must
\nfail, cannot be accepted in view of the explanation given by P.W.4 as to how she
\nhappened to be a witness. Insofar as the other accused are concerned, no motive
\nhas been put forth on the side of the prosecution.  The only motive that has
\nbeen put forth by the prosecution is that the first deceased-Mayajohn developed
\nillicit intimacy with P.W.3, the wife of the said Nagaraj.\n<\/p>\n
\t13. The contention of the learned counsel for the accused \/ appellants
\nthat the said Nagaraj had a main role to play for which there was no proper
\nexplanation given on the side of the prosecution and hence A1 has been falsely
\nimplicated, cannot be countenanced, since P.Ws.1 and 6 have given evidence to
\nthe effect that A1 committed the crime for the first part and P.W.4 has given
\nevidence as to the role played by A1 with regard to the second part, in causing
\nthe death of the second and third deceased.\n<\/p>\n
\t14. In such circumstances, insofar the first accused is concerned, the
\nconviction and sentences imposed on him by the Trial Court, are liable to be
\nconfirmed and accordingly confirmed, and all these sentences shall run
\nconcurrently. Insofar as the appellants 2 to 6 are concerned, the judgment of
\nconviction and sentences passed by the Additional Sessions Judge cum Fast Track
\nCourt No.II, Thoothukudi in S.C.No.170 of 2007, dated 23.06.2009, is set aside
\nand they are acquitted of all the charges levelled against them. The appellants
\n2 to 6 are directed  to be released forthwith, unless their presence is required
\nin connection with any other case. The fine amounts if any paid by them shall be
\nrefunded to them.\n<\/p>\n
\t15. In the result, this Criminal Appeal is partly allowed.\n<\/p>\n
KM<\/p>\n
To<\/p>\n
1.The Additional Sessions Judge cum Fast Track Court No.II,
\n   Thoothukudi.\n<\/p>\n
2.The Inspector of Police,
\n   Thattaparai Police Station,
\n   Thoothukudi District.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Soma Sundaram vs The State Represented By on 5 July, 2010 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 […]<\/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-230044","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSoma Sundaram vs The State Represented By on 5 July, 2010 - 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\/soma-sundaram-vs-the-state-represented-by-on-5-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Soma Sundaram vs The State Represented By on 5 July, 2010 - 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