(Appeals filed under section 374(2) Cr.P.C., against the conviction and sentence passed by the Court of Principal Sessions Judge, Ramanathapuram District against the appellants by the judgment dated 04.11.2003 made in S.C.No.66 of 1992.)

Common Judgment: (T. Sudanthiram, J.)

All the appellants are the accused in S.C.No.66 of 1992 on the file of the learned Principal Sessions Judge, Ramanathapuram. The appellants in Crl.A.No.1776 of 2003 are arrayed as A1,A2,A4,A6 to A8,A10 to A15, A17 to A20. The appellant in Crl.A.No.1865 of 2003 is arrayed as A16. They are found guilty by the Trial Court under sections 302 read with 34 and 302 read with 149 IPC and sentenced to undergo life imprisonment and imposed a fine of Rs.10,000/- on each of them, in default to undergo six months rigorous imprisonment for each of the accused. The Trial Court also found the accused guilty under sections 148,324 read with 34, 324 read with 149 IPC and section 25(1)(a) read with section 3 of the Indian Arms Act. No separate punishments were awarded in respect of conviction under other charges. Against the said convictions and sentences, the appellants have preferred these appeals.

2. The case of the prosecution in brief is that ten months prior to the date of occurrence, due to the rivalry between two communities, viz., Thevars and Naickers, with regard to the President Post of Neeravi Agricultural Society, one Raja Thevar was murdered by a person belonging to Naicker community. Due to ill-feeling that existed between Thevars of Karisalkulam and Naickers of Keezhamarathupatti, the Thevars wanted to take revenge for Raja Thevars death.

(b) P.W.1 Chinnamuthu is the resident of Keezhamarathupatti village and doing agricultural work. P.W.2 is the younger brother of P.W.1. P.W.1 and his family is having 40 acres of Nanja and Punja lands. P.W.1 had deposed that he knows all the accused persons. On 14.07.1990, at about 09.30 a.m., P.W.1, P.W.2 and one Kannayiram had taken the trash thrice through bullock carts to his lands and unloaded them. They were returning home to take the trash for the fourth time. At that time, P.W.1s elder brothers wife Lakshmi, her daughter Sarasu and P.W.1s daughter by name Ramalakshmi were plucking vegetables. All the accused persons formed themselves in an unlawful assembly armed with deadly weapons, came towards P.W.1 and others. A1 told to other accused not to leave P.Ws.1,2 and the said Kannayiram alive. On hearing this, P.Ws.1 and 2 leaving the cart ran towards southern side. At that time A2 and A3 had thrown something on them due to which P.W.1 had sustained injuries. The said Kannayiram ran towards eastern side. After running 50 feet, both P.Ws.1 and 2 turned back and saw A4, A5, A6 and A13 attacking Lakshmi by using deadly weapons. P.W.1 also saw A9, A7, A15, A8, A17 and A18 attacking his daughter by using deadly weapons and A10, A11, A12 and A14 chased Kannayiram and attacked him by using deadly weapons. After the occurrence the accused ran towards northern side. After some time, P.Ws.1,2, one Sarasu and one Raju came to scene of occurrence and saw Lakshmi, Ramalakshmi and Kannayiram lying dead.

(c) After the occurrence, P.W.1 went to Kamudhi Police Station along with his brother by name Ponnusamy and P.W.14, the Sub Inspector of Police obtained a statement from P.W.1 and got his thumb impression. Ex.P.1 is the complaint given by P.W.1. P.W.14 sent P.W.1 to hospital with a police memo.

(d) P.W.2, Ponnusamy, is the brother of P.W.1. He had deposed about the occurrence in the same manner as spoken by P.W.1. P.W.3, is the resident of Keezhamarathupatti, and he is having 50 goats. On the date of occurrence, he along with one Poochaiah were grazing their goats at Poyyankulam Kanmoi. At that time, they saw all the accused armed with deadly weapons proceeding towards southern side and subsequently hiding near the trees. Since already there was a communal clash in the village, assuming that something is going to happen, P.W.3 and the said Poochaiah went to the village to inform the villagers about the unlawful assembly of the accused with deadly weapons. After sometime, they heard the sound of explosion. On returning back to the village, P.W.3 came to know that Lakshmi, Ramalakshmi and Kannayiram were murdered by the accused persons.

(e) P.W.14, who was the Sub Inspector of Police of Kamudhi Police Station during the relevant period had deposed that on 14.07.1990, at 11.45 a.m., while he was in duty, P.W.1 came to the Police Station and gave a statement and recording the complaint, he came to know that the occurrence had taken place within the jurisdiction of Mandalamanickam Police Station. So, he took the complaint and went to Mandalamanickam Police Station by a motor cycle and handed over it to P.W.15, the Head Constable of the station at 2.30 p.m. Before proceeding to Mandalamanickam Police Station, he had sent P.W.1 to Kamudhi Government Hospital with a memo for treatment. He was in Mandalamanickam Police Station till 2.30 p.m. and after the First Information Report being prepared by P.W.15, he got the copy of the First Information Report and went and handed over it to the Inspector of Police.

(f) P.W.15, who was the Head Constable of Mandalamanickam Police Station during the relevant period, received the statement of P.W.1 from P.W.14 and registered a case in Crime NO.79 of 1990 under sections 147,148,307 and 302 IPC and section 5(1) of the Indian Explosives Substances Act and prepared the First Information Report, Ex.P.33.

(g) P.w.17, who was the Inspector of Police as per the order of the Superintendent of Police, Ramanathapuram went to Neeravikarisalkulam at 1.00 p.m. for Bandobust duty during the relevant period. On 14.07.1990, he received the copy of the First Information Report from P.W.14 at about 4.15 p.m. Thereafter, he took up the investigation and prepared Ex.P.2-the Observation Mahazar and Ex.P.34-the rough sketch in the presence of witnesses at the scene of occurrence. He recovered M.O.12-the blood stained earth and M.O.13-sample earth from the place where the dead body of Ramalakshmi was found, under the cover of Mahazar Ex.P.3. He also recovered M.O.14-the blood stained earth and M.O.15-sample earth from the place where the dead body of Lakshmi was found, under the cover of Mahazar Ex.P.4. He further recovered M.O.16-the blood stained earth and M.O.17-sample earth from the place where the dead body of Lakshmi was found, under the cover of Mahazar Ex.P.5. The Investigating Officer recovered M.Os.18 and 19-two unexploded bombs under the cover of Mahazar Ex.P.6. From 6.45 p.m. to 9.45 p.m. he held inquest on the dead body of the deceased Lakshmi in the presence of witnesses and prepared Ex.P.35-the Inquest Report. From 10.00 p.m. to 00.00 hours and from 00.00 hours to 2.30 a.m. he held inquest on the dead bodies of the deceased Ramalakshmi and Kannayiram in the presence of witnesses and prepared Exs.P.36 and P.37-the Inquest Reports respectively. He also sent the dead bodies for postmortem examination along with the requisitions.

(h) P.W.5, the Assistant Medical Officer of Kamudhi Government Hospital was on duty on 14.07.1990. At about 1.45 p.m., he had examined P.W.1 who had come with a police memo. He gave Ex.P.7-the Wound Certificate, wherein he found the following injuries:

"1. Irregular shaped lacerated injury 3cm x 2cm x 1/2cm on the dorsal aspect on the 1st Phalanx of right middle finger.

2. Irregular shaped lacerated injury 2cm x 1cmx1/2cm on the dorsal aspect of the 1st Phalanx of the right ring finger.

3. Contusion 4cmx3cm on the dorsam of the right foot with an abrasion 1cmx1cm on the middle of the contusion."

He had opined that the injuries are simple in nature.

(i) P.W.6, the Assistant Medical Officer of Ramanathapuram Government Hospital, on receipt the requisition under Ex.P.8 from Inspector of Police on 15.07.1990 at 1.45 p.m., conducted autopsy on the dead body of the deceased Lakshmi. Ex.P.9 is the Postmortem Certificate wherein, P.W.6 has found the following injuries:

"EXTERNAL INJURIES:-

1.A cut injury over the back of neck at the level of C4 extending from one side to another side of the neck. Size of wound 11x4 cm. Whole of tissues underneath were severed from skin muscles. Cervical vertebra spinal cord. Oesophagus upto trachea clotted blood was present in both ends of cut injury.

2. Another cut injury 2cm above the first one 10x2 cm size extending from the right lateral side of neck upto the oral cavity bone depth. Blood clot was present in the wound.

3. A cut injury of 10x3 cm size present over the external side of right arm. Bone depth. Underneath muscles were injured. Clots present in the wound.

4. A cut injury of about 5x2cm in size present over the left shoulder, muscles depth. Blood clot was present in the wound."

She opined that the deceased Lakshmi would appear to have died of Haemorrhage and shock due to injuries sustained in the spinal cord and neck and died about 24 to 32 hours prior to postmortem examination.

(j) P.W.7, the Assistant Medical Officer of Ramanathapuram Government Hospital, on receipt the requisition from Inspector of Police on 15.07.1990 at 7.00 a.m., conducted autopsy on the dead body of the deceased Ramalakshmi at 2.50 p.m. on the same day. Ex.P.10 is the Postmortem Certificate wherein, P.W.7 has found the following injuries:

"EXTERNAL INJURIES:-

1.A deep cut injury at the back of the neck extending to the front, with only skin intact, vertebral column cut at the level of 1 cervical vertebra. Trachea and Oesophagus, great vessels cut across.

2. Incised wound over occipital area of scalp 3"x1/2"x1/2".

3. A deep cut injury over left shoulder 6"x4"x3".

4. A lacerated injury over the left forearm with fracture of bone.

5. A deep cut injury over right shoulder with fracture humerus.

6. A cut injury over right shoulder blade 3"x2".

7. A cut injury over right forearm 2"x1.

8&9) Abrasions over right forearm 2"x2" each."

She opined that the deceased Ramalakshmi would appear to have died of shock and Haemorrhage due to the extensive injuries especially injury No.1 about 30 hours prior to postmortem examination.

(k) P.W.8, the Assistant Medical Officer of Ramanathapuram Government Hospital, on receipt the requisition under Ex.P.9 from Inspector of Police on 15.07.1990 at 1.35 p.m., conducted autopsy at 3.30 p.m. on the dead body of the deceased Kannyiram. Ex.P.12 is the Postmortem Certificate wherein, P.W.8 has found the following injuries:

"ANTEMORTEM INJURIES:-

1.A large deep oblique incised wound on the neck 15"x2"x5" starting from left side posterior aspect on the right paratertebral muscles to the left side of neck to front on the right side dividing the structures from left to right. Skin, fascial externla jugualr vein neck muscles nuro vascular bendle carotid artery, internal jugular vein trachea, oesophagus, fracture of 4th cervical vertebral body, spinal cord and muscles, nurovascular bendle on the right side of neck leaving a bridge of skin. Clotted blood on the muscle surfaces and subcutaneous tissue present. Muscles dark in colour. Purification started.

2. An oblique incised wound on mid thigh of postero lateral aspect of left thigh 6"x4"x bone depth dividing the muscls and chip fracture of femur present teeth."

He opined that the deceased Kannayiram would appear to have died of shock and Haemorrhage and injury to vital organs 30 to 32 hours prior to postmortem.

(l) P.W.17, the Investigating Officer, continued his investigation and on 18.07.1990 he arrested A2,A5 to A8,A11 to A13, A15 and A19. He also recorded the confessional statements of the accused on the same day, the admissible portions of which are marked as Exs.P.13,38 to 45, pursuant to which he recovered the material objects under the cover of Mahazars which are marked as Exs.P.14 to 22. The accused were sent for judicial remand. The material objects recovered from the place of occurrence, from the dead body of the deceased and the material objects recovered pursuant to the confessional statements of the accused were all subjected to chemical analysis under the requisitions, Exs.P.25 and P.27 respectively, which resulted in four reports, viz., Exs.P.29 to 31-the Chemical Analysts Report and Ex.P.32-the Serologist Report. The Superintendent of Police had given a letter to the District Collector under Ex.P.23, for giving necessary permission to prosecute against the accused under the Indian Arms Act and the order passed thereon had been marked as Ex.P.24. The Investigating Officer also examined the other witnesses and recorded their statements.

(m) P.W.18, the Inspector of Police of Kadalasdi Police Station, was on duty during the relevant period. He took up the further investigation in Crime No.79 of 1990. He arrested the other accused and recorded their confessional statements, pursuant to which the material objects were recovered. The accused were sent for judicial remand. After completing his investigation, on 05.03.1991, he laid the final report against the accused.

3. In order to prove its case, the prosecution examined 18 witnesses, marked 45 exhibits and produced 29 material objects.

4. The accused were questioned under Section 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses against them. They denied their complicity in the crime. No oral or documentary evidence had been adduced on the side on the side of the defence.

5. Mr. V. Gopinath, learned Senior counsel appearing for all the appellants, contended that P.Ws.1 to 3 are the interested witnesses and their evidence is contrary to each other. Ex.P.1 could not have come into existence as alleged by the prosecution and the police were at the scene even earlier to recording the First Information Report. The learned Senior counsel further submitted that Ex.P.33 came to be registered at about 2.30 p.m. but, it reached the Court only at 8.00 p.m. and the constable who took the First Information Report to the Court has not been examined as a witness to speak about the delay in submitting the First Information Report. He vehemently contended that there is doubt with regard to the preparation of Exs.P1 and P33 since Ex.P.1 though is said to have been prepared at Kamudhi Police Station, subsequently it was handed over to Mandalamanickam Police Station wherein Ex.P.33, the First Information Report was prepared, in which the thumb impression of P.W.1 is found. P.W.1 had stated that he never visited that Police Station. As Police Officers had already been present at the scene of occurrence, Exs.P1 and P33 ought to have been prepared much later.

6. The learned Senior counsel further submitted that the injuries on P.W.1 could not have been caused due to the bomb throw since the injuries are not corroborated. He also brought to our notice that in Ex.P.36 in column 4, the name of one Saraswathi, who had lastly seen the deceased Ramalakshmi alive is mentioned, but the said Saraswathi is not examined as a witness to the occurrence.

7. The learned Additional Public Prosecutor was heard with regard to the contentions raised by the learned Senior counsel for the appellants.

8. The learned Additional Public Prosecutor had submitted that though P.Ws.1 to 3 are interested witnesses, their evidence cannot be rejected for the reason especially when P.W.1 is an injured witness, his presence at the scene is established by the prosecution. Immediately after the occurrence, P.W.1 had gone to Kamudhi Police Station and given a complaint at 11.45 a.m. itself. P.W.14, the Sub Inspector of Police recorded the statement from P.W.1 and he had also sent P.W.1 for treatment to the doctor with a police memo. The learned Additional Public Prosecutor also submitted that there was a strong motive for the accused as communal rivalry to attack the deceased and the motive has been established by the prosecution.

9. We have gone through all the evidence and materials available in this case and carefully considered the rival submissions made by both parties.

10. P.Ws.1 and 2 are the eyewitnesses to the occurrence. P.W.3 is a witness who speaks about the arrival of the accused near the scene of occurrence with weapons. P.Ws.1 and 2 had clearly deposed that ten months prior to the occurrence, there was a dispute between the two communities, Thevar and Naicker, due to which one Raja Thevar was murdered. Therefore, the Thevar community people wanted to take revenge. The motive aspect spoken by the prosecution has not been seriously challenged by the defence. With regard to the occurrence, as P.Ws.1 and 2 are related to the deceased Lakshmi and Ramalakshmi, their evidence with regard to the occurrence is to be carefully analyzed. The evidence of P.W.1 against the accused about the occurrence is to be considered on the basis whether P.W.1 could have been present at the scene and witnessed the occurrence or not. P.W.1 had stated that all the accused came to the scene of occurrence and A1 told the other accused not to leave P.Ws.1,2 and Kannayiram alive. Hearing this, P.Ws.1 and 2 leaving the cart, ran towards southern side. At that time, A2 and A3 thrown something on them due to which P.W.1 had sustained injuries. The deceased Kannayiram ran towards eastern side. After running 50 feet, both P.Ws.1 and 2 turned back and saw A4, A5, A6 and A13 attacking Lakshmi by using deadly weapons. P.W.1 also saw A9, A7, A15, A8, A17 and A18 attacking his daughter by using deadly weapons and A10, A11, A12 and A14 chased Kannayiram and attacked him by using deadly weapons. The occurrence is said to have taken place at 9.30 a.m. After the occurrence, on seeing the three person being done to death, P.W.1 along with others had gone to Kamudhi Police Station and gave a complaint, Ex.P.1 to P.W.14, the Sub Inspector of Police, though the place of occurrence may be within the jurisdiction of different police. P.W.1 was also sent to the doctor by P.W.14 along with a memo. The doctor, P.W.5, had seen P.W.1 with injuries on the same day at 1.45 p.m. and issued Ex.P.7-the Wound Certificate. The fact remains that after the occurrence P.W.1 had gone to the Police Station and he had been sent to the hospital with the police memo for treatment. The evidence of P.W.1 is corroborated by Ex.P.7-the Wound Certificate and therefore, the presence of P.W.1 at the scene of occurrence is established.

11. The contention of the learned Senior counsel that injuries on P.W.1 could not have been caused due to bomb throw, cannot be accepted in view of the opinion given by the doctor P.W.5 that the injuries No.1 to 3 on P.W.1 are possible due to explosion of the bomb. As such the version of P.W.1 with regard to the occurrence and about the presence of the accused and about the attack on him and the deceased are to be accepted. The evidence of P.W.1 is also corroborated by the evidence of P.W.2 who was also present at the scene of occurrence along with P.W.1. The presence of P.W.2 at the time and place of occurrence is mentioned in Ex.P.1, the complaint given by P.W.1. Therefore, it cannot be said that P.W.2 was not present at the scene of occurrence. The evidence of P.W.2 corroborates the evidence of P.W.1, the injured witness. Though P.W.3 is not an eyewitness to the occurrence, his evidence that he had seen the accused going with weapons towards scene of occurrence, establishes to the extent that the accused are the members of the unlawful assembly.

12. The contention of the learned Senior counsel that the thumb impression of P.W.1 in Ex.P.33 is mysterious since the complaint was given by P.W.1 at Kamudhi Police Station. But, Ex.P.33 was prepared at Mandalamanickam Police Station and P.W.1 had stated that he had never gone to Mandalamanickam Police Station and as such, his thumb impression in Ex.P.33 remains unexplained by the prosecution, is to be analyzed as to whether it affects the evidence of P.W.1 and the prosecution case. Though the First Information Report is registered in Mandalamanickam Police Station at 2.30 p.m., originally, the complaint had been given by P.W.1 at Kamudhi Police Station at 11.45 a.m. and he had gone to the hospital and he had seen the doctor by 1.45 p.m. itself. P.W.1s presence in the hospital by 1.45 p.m. with a police memo, establishes the fact that after the occurrence P.W.1 had gone to the Police Station and given a complaint and therefore, the delay in recording the First Information Report at 2.30 p.m. at Mandalamanickam Police Station does not affect the case of the prosecution.

13. The further contention of the learned Senior counsel that the Constable who had taken the Express First Information Report to the court had not been examined affects the prosecution case, also is to be rejected for the reason that as already stated above, the fact that P.W.1 had gone to Kamudhi Police Station immediately after the occurrence is established. The contention of the learned Senior counsel that the thumb impression of P.W.1 in Ex.P.33 is mysterious, is to be analyzed. On careful scrutiny of the evidence of P.W.1, it is to be seen that P.W.1 had admitted his thumb impression and it is not denied. As the First Information Report had reached the Magistrate Court on the very same day at 8.00 p.m., it cannot be said that P.W.1 had affixed the thumb impression in Ex.P.33 on any subsequent day. It is the evidence of P.W.14 that after the First Information Report being registered by P.W.15, the Head Constable of Mandalamanickam Police Station, he himself had taken the copy of the First Information Report and handed over it to the Inspector of Police. P.W.15, the Head Constable had stated that he sent the First Information Report to the learned Judicial Magistrate through the police constable 398, by name Pechimuthu. P.W.15 during the cross-examination had stated that he forwarded the original First Information Report to the Court at 3.15 p.m. through the Constable 398 and he had instructed the constable to get the thumb impression in the First Information Report from the concerned person. Probably the constable who had obtained the First Information Report, as a procedure, ought to have obtained the thumb impression from P.W.1 who was available at Kamudhi Police Station. It is true if the Constable has been examined by the prosecution, it could have thrown some light on that aspect. But still, mere non-examination of the Constable 398 who had taken the First Information Report to the Magistrate Court, would not affect the ocular evidence of P.Ws.1 and 2.

14. The contention of the learned Senior counsel that even before the preparation of First Information Report, the police had gone to the scene of occurrence is to be considered. On considering the evidence available, it is only to be concluded that the prosecution case is not affected. P.W.17, the Inspector of Police had gone to Neeravikarisalkulam as per the order of the Superintendent of Police of Ramanathapuram District at 1.00 p.m. for Bandobust and while he was in Bandobust, he received the First Information Report. In fact, Ex.P.1 had come into existence much earlier.

15. The contention of the learned Senior counsel that the non-examination of one Saraswathi whose name is mentioned in Ex.P.36-the Inquest Report of the deceased Ramalakshmi, and who had lastly seen the deceased Ramalakshmi alive affects the prosecution case, is not acceptable since the evidence of P.Ws.1 and 2 are suffice to prove the case of the prosecution. On considering the contention of the learned Senior counsel that P.Ws.1 and 2 were not knowing all the accused and therefore, their evidence should not be accepted, is to be held only that the prosecution case is not affected. All the accused belong to the same village. P.W.1 knows that all the accused belong to the same village and same community. According to his evidence, he identifies all the accused in the Court as that they were all present at the scene of occurrence. Only with regard to their names, he interchanges. The evidence given in the Court is merely two years after the occurrence. The names of all the appellants/accused are mentioned in the First Information Report. Only the name of the 21st accused is not mentioned in the First Information Report. But, he is not the appellant before us, since he had died even before the Judgment by the Trial Court. The minor discrepancies cannot be regarded as affecting the prosecution case especially where three persons have been done to death by a mob of persons belonging to one community.

16. Due to communal rivalry, ghastly and gruesome multiple murders have taken place. Among the three deceased, two are females and the deceased Ramalakshmi, was only 12 years old. An innocent young girl had been done to death for no fault of her. It is a very unfortunate instant. Though the occurrence said to have been taken place in the year 1990, after the trial the case having been ended in acquittal and the revision being preferred against the acquittal by the deceased party and the matter being remanded to the Trial Court and all the appellants/accused have been convicted. The appellants deserve to be punished. As such, we find no merit in the appeals.

17. We therefore hold that the prosecution had established its case beyond reasonable doubt through the evidence of P.Ws.1 to 3 that the accused had attacked P.W.1 and also the deceased and caused their death.

18. The reasons given by the Trial Court for convicting the accused/appellants are acceptable. Hence, we find no reason to interfere with the findings of the Trial Court. The conviction and sentence imposed on the appellant/accused by the Trial Court is confirmed.

19. After the occurrence in this case, on the very same day, the same accused have attacked another person at 10.00 a.m. and caused his death and for which they were tried by the same Court and convicted and sentenced to life imprisonment in S.C.No.34 of 1992 and the appeals preferred by them in that case also stand dismissed. Considering the long lapse of time from the date of occurrence, the sentence of life imprisonment imposed on the accused in S.C.No.34 of 1992 shall run concurrently with the sentence of life imprisonment imposed in this case, i.e., S.C.No.66 of 1992.

20. In the result, the criminal appeals are dismissed.