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2003 DIGILAW 249 (MAD)

Pauvan Raj & Others v. State

2003-02-20

K.GNANAPRAKASAM, M.KARPAGAVINAYAGAM

body2003
Judgment :- COMMON JUDGMENT: (The Judgment of the Court was delivered by M.KARPAGAVINAYAM, J.) The massacre in which four persons of a single family were done to death in day light in their house, is the subject matter of the prosecution in these appeals. 2. Originally, A1 to A14 were charged for having committed murder of four persons. Before commencement of trial, five accused died. Therefore, A1 to A9 alone were tried for the murder of four persons. Ultimately, A9 has been acquitted and others have been convicted for the offences Under Sections 147, 148, 449, 302, 324 read with 114, 302 r/w 149 and Sections 25(1B) and 27 of Fire Arms Act and sentences imposed upon them are as follows: A9 was acquitted in respect of the charges framed against him. 3. Challenging the conviction and sentence imposed upon them, A1 has filed Crl.A.No.886 of 1999; A2, A5 and A8 have filed Crl.A.No.889 of 1999; and A3, A6 and A7 have filed Crl.A.No. 773 of 2000. A4 has not chosen to file any appeal against the conviction and sentence imposed upon him. 4. The short facts leading to the conviction, are as follows: "(a) Chandrakasan, the third deceased is the husband of Pappathi, the fourth deceased. Their two sons are Saivarasu, the first deceased and Rathinam, the second deceased. PW1 Dhanam @ Dhanalakshmi is the wife of the first deceased Saivarasu. PW.2 Indira Gandhi is the sister of PW1. She got married to one Dhanapal, who is another son of the third and fourth deceased. PW3 Chellam is the wife of the second deceased Rathinam. All were residing in the same house as a joint family. (b) The accused also were residing in the same village. A2, A3, and A4 are brothers. They are the sons of one Perumal @ Belt Perumal, who was originally arrayed as the accused, but, who died later. A6 Karnan and A7 Dharmaraj are brothers . A1, A5 and A8 are close relatives to them. ¸ There was a long standing enmity between the families of Belt Perumal and the deceased. Ten years prior to the date of occurrence, the brother of the second deceased Karumbayiram was done to death by one Chellaiyan, the brother of Belt Perumal. In that murder case, Chellaiyan was convicted and sentenced to undergo life imprisonment. ¸ There was a long standing enmity between the families of Belt Perumal and the deceased. Ten years prior to the date of occurrence, the brother of the second deceased Karumbayiram was done to death by one Chellaiyan, the brother of Belt Perumal. In that murder case, Chellaiyan was convicted and sentenced to undergo life imprisonment. (d) There was also enmity between the family of the deceased and the family of the accused in exercising the right of lease in the Coconut Thope and right of Fishing in the tank. The family of the deceased successfully obtained the lease right and due to this, the family of the accused developed jealous attitude towards the family of the deceased. In the current year also, the deceased Chandrakasan had taken the lease of tank in the village for fishing, even though the accused tried to get the same. (e) On 9.4.1994 at about 4.30 p.m., the first deceased Saivarasu was standing outside the house and all the others viz., the second deceased Rathinam, the third deceased Chandrakasan, father and the fourth deceased Papathi, mother were inside the house. PW1 Dhanalakshmi, the wife of the first deceased, PW2 Indira Gandhi, the wife of Dhanapal, another son of the third deceased and PW3 Chellam, the wife of the second deceased were also inside the kitchen. At that point of time, all the accused came with dangerous weapons, such as aruvals and pointed poles(kuthukole). On seeing the first deceased Saivarasu standing outside, A1 Pauvanraj and A4 Ekambaram attacked Saivarasu and caused his death and thereafter, went inside the house and began to cut all the other deceased. The second deceased Rathinam and the third deceased Chandrakasan died on the spot. Papathi, the fourth deceased, after sustaining injuries, fell down on the ground gasping for breath. When PW1 Dhanam @ Dhanalakshmi, the wife of the first deceased, requested the accused not to cut the deceased, some of the accused attacked PW1 also and caused injury on her head. In the mean time, Dhanapal, another son of the third deceased, who concealed himself in a room, escaped from the house by removing the tiles of the roof and ran away from the scene of occurrence. In the mean time, Dhanapal, another son of the third deceased, who concealed himself in a room, escaped from the house by removing the tiles of the roof and ran away from the scene of occurrence. He straight away went to the police station at about 6.00 p.m. on 9.4.1994 and gave Ex.P27 complaint to PW14 Head Constable and PW14 registered a case in Crime No.131 of 1994 for the offences under Sections 147, 148, 149, 448, 324 and 302 IPC. Then he sent a message to the superior Police Officer PW15, Inspector of Police. On receipt of a copy of Ex.P26 FIR, PW15 rushed to the scene of occurrence and found the dead bodies of the deceased 1 to 3. On noticing that the fourth deceased Papathi and PW1 Dhanalakshmi sustained injuries, both were sent to the Government Hospital, Thanjavur for treatment. He prepared Ex.P13 observation mahazer and Ex.P28 rough sketch. (f) PW10 Doctor, attached to the Thanjavur Hospital admitted the fourth deceased Papathi as an in-patient at about 11.00 p.m. and gave treatment to her. He issued Ex.P10 Accident Register. On seeing that her condition was very serious, PW10 Doctor sent Ex.P11 requisition to the learned Judicial Magistrate No.I, Thanjavur to record dying declaration. On the same day at about 11.20 p.m., PW10 Doctor admitted PW1 Dhanam @ Dhanalakshmi as an in-patient and gave treatment to her. He gave Ex.P12, Accident Register, noticing the injuries found on the body of PW1. (g) In the mean time, PW15 Inspector of Police conducted inquest at the scene on the three dead bodies. Exs.P29 , P30 and P31 are the inquest reports of the respective dead bodies. Then he made arrangements for sending the dead bodies for post-mortem. (h) On 10.4.1994 at about 10.30 a.m., on receipt of Ex.P6 requisition, PW8 Dr. Ilangani conducted post mortem on the body of the first deceased Saivarasu and found as many as 8 injuries. Ex.P7 is the post mortem Certificate. He opined that the first deceased would appear to have died of injuries sustained. (i) PW6, Dr. Ganesan, on receipt of Ex.P2 requisition, conducted post-mortem on the dead body of the second deceased Rathinam at 12.35 p.m. and found as many as 11 injuries. Ex.P3 is the post mortem certificate issued by the Doctor. He opined that the deceased would appear to have died due to injuries sustained on the vital parts. (i) PW6, Dr. Ganesan, on receipt of Ex.P2 requisition, conducted post-mortem on the dead body of the second deceased Rathinam at 12.35 p.m. and found as many as 11 injuries. Ex.P3 is the post mortem certificate issued by the Doctor. He opined that the deceased would appear to have died due to injuries sustained on the vital parts. (j) PW9 Dr.Balasanjeevi, another Doctor on receipt of Ex.P8 requisition, commenced the post-mortem on the body of the third deceased Chandrakasan and found as many as 12 injuries. Ex.P9 is the post-mortem certificate issued by the Doctor. He opined that the deceased would appear to have died due to shock, haemmorhage, due to the injuries and loss of blood. (k) Then, on receipt of the requisition from the Doctor, Judicial Magistrate No.I, Thanjavur on 10.4.1994 at about 3.00 p.m., went to the hospital and recorded the dying declaration of the fourth deceased Papathi under Ex.P36, attested by PW16 Doctor Perumal. (l) On the same day at about 6.45 p.m., the fourth deceased Papathi died. PW5 Dr. Thirunavukarasu sent the death intimation under Ex.P1 to PW15 Inspector of Police. PW15 Inspector of Police, on receipt of the intimation, went to the hospital, conducted inquest on 11.4.1994 at about 8.00 a.m., and prepared Ex.P32 inquest report. He sent the dead body for post mortem to find out the cause of death. PW7 Dr. Ravi Sankar received requisition Ex.P4 and conducted post-mortem on the body of the fourth deceased at 2.35 p.m. He found seven injuries and issued Ex.P5, the post-mortem certificate. He opined that the deceased would appear to have died of stab injuries. (m) PW15, Inspector of Police then took steps to arrest the accused. On 14.4.1994 at about 8.15 a.m., he arrested A5 Murugesan and A6 Karnan. On the confession of A6 Karnan, he recovered M.Os.1 to 4 aruvals and 5 to 7, pointed poles (Kuthu kole) under mahazar Ex.P16. No recovery was made from the other accused. (n) On 21.4.1994 at 5.00 p.m. PW15 Inspector of Police arrested A8 Ravi and recovered M.O.15 Cloth bag and M.O.16 Country made gun. On 25.4.1994 at about 6.45 a.m. PW15 Inspector of police arrested A9 Ramasamy and A2 Murugesan and obtained confession. In the mean time, PW15 came to know that all the other accused surrendered before the Court. He examined other witnesses. On 25.4.1994 at about 6.45 a.m. PW15 Inspector of police arrested A9 Ramasamy and A2 Murugesan and obtained confession. In the mean time, PW15 came to know that all the other accused surrendered before the Court. He examined other witnesses. He also made arrangements for sending the material objects for chemical examination. After completion of investigation, he filed a charge sheet against the accused A1 to A14. Before framing charges, out of A1 to A14, five accused died. Therefore, charges were framed only as against A1 to A9. (o) During the course of trial, the prosecution examined PW1 to PW16, filed Exs.P1 to P36 and marked M.Os.1 to 21. (p) The accused were questioned under Section 313 Cr.P.C., with reference to the incriminating evidence as against them. They have stated that they had not participated in the occurrence and as such, they were innocent. (q) The trial Court, on a consideration of the entire materials available on record, found A1 to A8 guilty and convicted and sentenced them as referred to in para 2. 5. A1 Pauvanraj filed separate appeal in Crl.A.No.886 of 1999. A2 Panneer Selvam , A5 Murugesan and A8 Ravi had filed Crl.A.No.889 of 1999. A3 Chelladurai , A6 Karnan and A7 Dharmaraj had filed a separate appeal in Crl.A.No.773 of 2000. 6. When the matter was taken up for final disposal Mr.C.Deivasigamani, the counsel for the appellants in Crl.A.No.773 of 2000 was absent. Therefore, this Court appointed Mr.Sivakumar as Amicus Curiae to appear for A3, A6 and A7 in Crl.A.No.773 of 2000. 7. Learned counsel appearing in all the three appeals would make common submissions indicating that there are various infirmities which would make the prosecution case doubtful and as such, the accused are liable to be acquitted. 8. According to Mr.Padmanabhan, learned counsel appearing for A1 in Crl.A.No.886 of 1999, non-examination of the independent eye witnesses is a serious flaw on the part of prosecution and failure on the part of PW1 and the fourth deceased Papathi to mention that they were attacked by known persons to the Doctor is a very serious infirmity and the variations found in the evidence of PWs 1 to 4, the eye witnesses, would certainly indicate that the prosecution has not projected true version of the occurrence. 9. 9. Mr.Parthiban, learned counsel appearing for A2, A5 and A8 in Crl.A.No.889 of 1999 would also contend vehemently that the version given by PWs 1 to 4 with reference to the manner of occurrence is not consistent and there is no overt act attributed against A8. He would also submit that Ex.P36, dying declaration given by the fourth deceased Papathi to Judicial Magistrate No.I, Thanjavur cannot be acted upon as there were several suspicious features and the same has been disbelieved by the trial Court. He would further submit that from A8, there is no recovery of Aruval and as such, he is liable to be acquitted. 10. Mr.Sivakumar, learned counsel appearing for A3, A6 and A7 in Crl.A.No.773 of 2000 as amicus curiae took us through the entire evidence and pointed out various contradictions in the evidence of the eye witnesses. He would further submit that when the witnesses stated that the occurrence took place when the deceased and witnesses were taking food, the evidence of Doctor, who found partially digested rice in the stomach of the deceased would make those statements unreliable and there was no overt act as against A6 and as such, the accused are liable to be acquitted. 11. In reply to the above submissions, Mr.E.Raja, Additional Public Prosecutor, in justification of the reasonings given by the trial Court for convicting the accused, would submit that the evidence of PWs.1 to 4, the eye witnesses is trustworthy and the same has been corroborated by the medical evidence and the contradictions pointed out by the counsel for the appellants are only minor and as such, the conviction is liable to be confirmed. 12. He would also cite various authorities to show that the Prosecution need not prove the overt act of each and every accused especially when they came carrying weapons in hands with the common object of murdering the deceased. 13. We have carefully considered the inherent merits of the respective submissions made by the counsel for the parties and gone through the records. 14. There is no dispute in the fact that the four murders were committed in the house of the deceased at about 4.30 p.m. on 9.4.1994. Three persons died on the spot and one person died in the hospital, next day. To prove the occurrence, the Prosecution has examined four eye-witnesses. 14. There is no dispute in the fact that the four murders were committed in the house of the deceased at about 4.30 p.m. on 9.4.1994. Three persons died on the spot and one person died in the hospital, next day. To prove the occurrence, the Prosecution has examined four eye-witnesses. As a matter of fact, one Dhanapal, who concealed himself inside the house, escaped from the house after removing the tiles of the roof and rushed to the Kizhapazhur Police Station and lodged a complaint. The said Dhanapal is the first informant in the case. Only on the information given by the said Dhanapal, the Head Constable PW12 registered the case and sent the FIR to the Inspector of Police PW15. Unfortunately, Dhanapal was not alive when the trial was on. Therefore, the first informant has not been examined in this case and as such Ex.P27 complaint and Ex.P26 FIR were marked through PW12 Head Constable. The submission of the learned counsel is that in the absence of examination of the first informant Dhanapal, no importance should be given to the contents of the FIR. On the basis of this submission, we cannot reject Ex.P26 FIR which has been registered by PW12 on the basis of the complaint Ex.P27. 15. Immediately on receipt of the copy of the FIR, PW15 came to the spot and found three dead bodies of the deceased 1 to 3. On noticing that both Papathi, the fourth deceased and PW1 had sustained serious injuries, they were immediately taken to Thanjavur Hospital. The Doctor PW10, who attended both PW1 and the fourth deceased Papathi, gave treatment to them and they also issued copies of accident registers Exs.P10 and P12 respectively. The Doctor, who attended the fourth deceased on seeing her serious condition, sent requisition Ex.P11 to the Judicial Magistrate No.I, Thanjavur to record the dying declaration. Accordingly, Judicial Magistrate No.I, Thanjavur went to the hospital and recorded the dying declaration of the fourth deceased at about 3.30 p.m. on 10.4.1994 and the same was marked as Ex.P36. Since Judicial Magistrate No.I, Thanjavur, who recorded the dying declaration was not alive during the trial, the same has been marked through Doctor PW16, who attested the said dying declaration. PW1 was examined by PW15, while she was hospitalised on 11.4.1994. Since Judicial Magistrate No.I, Thanjavur, who recorded the dying declaration was not alive during the trial, the same has been marked through Doctor PW16, who attested the said dying declaration. PW1 was examined by PW15, while she was hospitalised on 11.4.1994. So, both in the dying declaration and the statement given by PW1, it has been clearly mentioned that the occurrence took place on 9.4.1994 at about 4.30 p.m. in the house of the deceased. Therefore, the mere non examination of Dhanapal, who is the first informant, would not affect the credibility of the case of the prosecution, which has been projected through the evidence of PW1, the injured eye witness and three other eye witnesses. 16. As a matter of fact, the presence of PW1 to 4 was mentioned in Ex.P26 FIR. The evidence of PW1 would clearly show that PW1 identified all the accused viz., A1 to A8 and stated that A1 to A8 came with dangerous weapons and A1 attacked the first deceased, who was standing outside the house and caused his instantaneous death and that thereafter, all the accused entered inside the house and gave indiscriminating cuts on the other deceased. Nothing has been culled out from her cross-examination that she was speaking falsehood against any of the accused. As a matter of fact, PW1 would state emphatically in the cross-examination that her family has no motive against any of the accused. 17. On the other hand, it has been established by the prosecution through the witnesses the accused party had grudge against the family of the deceased since the family of the deceased was successful in getting the lease right of Coconut Thope and fishing right in the tank. The deceased party became the successful bidders in the current year as well. According to the Prosecution, this is the immediate motive for the occurrence. It is true that PWs.2 and 3 would state that the occurrence took place when the deceased were taking food. Admittedly, the food plates were not recovered. The Doctors, who conducted post-mortem have also stated that they found partially digested rice in the stomach. Therefore, the occurrence must have taken place only some time later after taking food. It is noticed that PW1 did not state that the occurrence had taken place when the food was taken. Admittedly, the food plates were not recovered. The Doctors, who conducted post-mortem have also stated that they found partially digested rice in the stomach. Therefore, the occurrence must have taken place only some time later after taking food. It is noticed that PW1 did not state that the occurrence had taken place when the food was taken. So the evidence of PW2 and PW3 that the occurrence had taken while the deceased were taking food may not be given much importance. 18. Similarly, PW4 would give the details about overt acts of each and every accused as if she had seen the occurrence when deceased 2 to 4 were attacked inside the house. But PW15, Inspector of Police would admit that she had seen the occurrence, which took place outside the house but she did not tell anything about the occurrence that took place inside the house. From the evidence it is clear that she saw the first occurrence when the first deceased was done to death outside the house. She witnessed the first occurrence because her house is situated opposite to the house of the deceased. Therefore, even assuming that the portion of the evidence of PW4 relating to the occurrence that took place inside the house when the other deceased were attacked cannot be accepted, the same will not affect the core of the prosecution spoken by the other witnesses. As indicated above, PW1 is the natural witness, who tried to prevent the attack and requested the accused not to attack the deceased and in that context, she went near the accused as a result of which, she sustained injury. The failure on the part of the fourth deceased to mention to the Doctor that she was attacked by known persons would not be a ground to throw the prosecution case. As a matter of fact the fourth deceased has given a detailed statement to Judicial Magistrate No .I, Thanjavur in the presence of the Doctor PW16, wherein she has mentioned about the clear details of the occurrence and given particulars about the names of some of the accused. 19. It is noticed that in Ex.P36 dying declaration she has stated about the motive also. It is true that seven weapons have been recovered from A6 alone and the Aruval was not recovered from A8. 19. It is noticed that in Ex.P36 dying declaration she has stated about the motive also. It is true that seven weapons have been recovered from A6 alone and the Aruval was not recovered from A8. But it is to be pointed out that some of the accused surrendered before the Court and only few of the accused were arrested. Therefore, mere failure of recovery of weapons from each and every accused would not be of any use to the defence. It was submitted that no overt act was attributed against A6 and A8. But factually, this submission is not correct since PW1 would categorically state that after attacking and causing death of the first deceased outside the house, all the accused came inside the house and gave indiscriminate cuts to the second, third and fourth deceased. 20. Even assuming that there are no details about the overt acts of each and every accused, it is settled law that the accused who was present with the weapons would also be liable to be convicted under Section 149 IPC. In this context, the observation of the Supreme Court in CHANDRA BIHARI GAUTAM AND OTHERS VERSES STATE OF BIHAR (2002 CRL.L.J. 2541) is relevant and the same is as follows. "The accused persons formed an unlawful assembly, the common object of which was to commit murder of the informant and his family members and in prosecution of the said common object six persons were killed. The appellants were also proved to have hired the services of some extremists for the purposes of eliminating the family of the complainant. The prosecution has established the existence of the common object of the unlawful assembly for attracting the applicability of Section 149 of the Indian Penal Code and the mere fact that no overt act has been attributed to each of the accused persons is not sufficient to hold that charge under Section 149 of the Indian Penal Code has not proved against them." 21. In the light of the above legal position and fact situation and having regard to the materials available on record, we are of the opinion that all accused A1 to A8 came with the common object to murder the deceased and accordingly murdered them and as such, the conviction imposed upon them by the trial Court cannot be said to be illegal. Consequently, the appeals have no merits and accordingly, they are dismissed, confirming the conviction and sentence imposed upon them by the trial Court. 22. Before parting with this case, this Court records its appreciation for the service rendered by Mr.Sivakumar, Amicus Curiae appearing for A3, A6 and A7. The Legal Services Authority is directed to pay a sum of Rs.1500/- (Rupees one thousand five hundred only) towards fees for the Amicus Curiae counsel.