In Re: Chandrahasan, Prisoner (Accused No. 2)

Rengasami, J.—The reference R.T. No. 1/96 and C.A. 128/96 arise from the conviction and sentences imposed by the learned Sessions

Judge, Kanyakumari at Nagercoil in S.C. No. 89/91 for the offences under Sections 418, 302, 302 read with 149 and Section 3 of the Explosive

Substances Act.

The learned Sessions Judge, convicted the appellants viz. the appellants 1 to 5 each u/s 148, I.P.C. and sentenced to undergo R.I. for two

years, and to pay a fine of Rs. 5,000/- in default to undergo R.I. for 6 months, appellants 3 to 5 each u/s 302 (2 counts) I.P.C. and sentenced to

undergo life imprisonment and also to pay a fine of Rs. 10,000/- in default to undergo R.I. for 18 months on each count 2nd appellant u/s 302,

IPC, and sentenced to death and also to pay a fine of Rs. 15,000/- in default to undergo 18 months R.I. subject to the confirmation of the High

Court, appellants 1 and 2 each u/s 3 of the Explosive Substances Act and sentenced to undergo 6 months R.I. and to pay a fine of Rs. 10,000/- in

default to undergo 3 months R.I., 1st appellant u/s 302 read with 149 (3 counts) IPC, and sentenced to imprisonment for life and to pay a fine of

Rs. 10,000/- in default to undergo R.I. for 18 months, for each count 2nd, appellant u/s 302 read with 149 (2 counts) I.P.C., and sentenced to

undergo imprisonment for life and to pay a fine of Rs. 10,000/- in default to undergo R.I. for 18 months for each count and appellants 3 to 5 each

u/s 302 read with 149, I.P.C. and sentenced each of them to undergo imprisonment for life and also to pay a fine of Rs. 10,000/- in default to

undergo R.I. for 18 months, with a direction for the sentences to run concurrently. The learned Sessions Judge fixed a compensation of 25%

payable to the legal heirs of each of the three carnage victims from out of the fine amount.

The brief facts as spoken by the witnesses examined on the prosecution side are as follows :-

The appellants and the three deceased were residents of Karkadu village within the police limits of Suseendiram in Kanyakumari District. They

belonged to Hindu Sambavar Community, and the first deceased Sornappan was acting as the President of this community till the time of his death.

The community President used to collect a subscription from the community men, for the purpose of celebrating the temple festival and also for the

common expenditure in the village. These appellants who are the sons of one Arulanandham, were not paying the subscription. Two years before

this occurrence, which took place on 7-10-1989 the said Arulanandham died and the first deceased Sornappan refused to allow the said

Arulanandham being cremated in the cremation ground for the reason that his family had refused to pay the subscription to the community

association. But the appellants some how, got the permission of the President Sornappan to cremate the body, on the assurance that they would

pay the subscription after the cremation was over. But, contrary to their promise, subsequently also they failed to pay the subscription. The 4th

appellant/4th accused requested the President Sornappan to issue a community certificate for which the President refused to issue. Therefore, they

had grievance against the first deceased Sornappan. Because of the affront attitude of the appellants to pay the subscription for the welfare of the

community on 19-6-1988, a meeting was convened under the Presidentship of Sornappan and these appellants were outcasted from participating

any of the affairs of their community in Karkadu village, Exhibit P11 is the resolution passed by them. Therefore, there was enmity between these

appellants and the first deceased Sornappan.

On 7-10-1989 at about 12.30 Noon, P.Ws. 1, 2, 3 and one Velu were standing east of Muthalamman koil in Karkani (sic) when he came near

the place, where the appellants were standing, appellants 1 and 2 took out the country bomb concealed in their waist and appellants 3 to 5 took

out the aruvals which were concealed within the folded dhotis above the Knees. The 3rd appellant shouted at the first deceased Sornappan that he

would finish him on that day, and attached him with aruval on his face. The 4th appellant cut him on his left thigh and also on the back with M.O. 1

aruval. The 5th appellant cut him on his chest. When the deceased fell down, these three appellants viz., appellants 3 to 5 cut him indiscriminately

with the aruvals in their hands. The deceased No. 2 Ponnayyan and deceased No. 3 Esakkimuthu came running from southern side, shouting not to

cut Sornappan. Appellants 1 and 2 threatened them with the Country bombs in their hands. They two seeing these persons with lethal weapons

and afraid of them, began to run away. First they ran towards south and then west. But, these appellants chased them and appellants 1 and 2 threw

country bombs towards them. The bombs fell near them exploded and Ponnayyan the second deceased, who was running after Esakkimuthu fell

down in the shock. When he attempted to get up, the 5th appellant cut him in the fore head with the aruval in the hand. The 4th appellant cut him

on his left thigh with M.O. 1 aruval. The 3rd appellant cut him on both the hands indiscriminately. The third deceased Esakkimuthu, who was

running ahead, turned back and shouted not to cut Ponnayyan. Immediately, the second appellant threw a country bomb at Esakkimuthu, which

exploded at his neck, causing fatal injuries. He fell down and died there itself. P.Ws. 1 to 3 and Velu, who were running after the appellants

shouting at them would see Sornappan struggling for his life. In the meanwhile, all the appellants ran towards western side from there. P.Ws. 1 to 3

found Ponnayyan and Esakkimuthu lying dead on the spot itself. They wanted to save Sornappan and therefore stopped a taxi, which was coming

in the main road and took him to Nagercoil Government Head Quarters Hospital, where PW 4, the Medical Officer attached to the said hospital,

admitted him at 1.20 p.m.

P.W. 4 the Doctor found on Sornappan the following injuries :-

A vertical incised wound right side face extending from the right arbital margin upto the angle of mandible 4"" x 2"" x 1"" in dimension;

An oblique incised wound from the anterior of iliac spine up to the 10th rib over the right side of the region of the abdomen 10"" x 2"" x 1"" in

dimension;

An oblique incised wound on the centre of the chest 4"" x 1 1/2"" x 1"" in dimension. A portion of the lung was protruding out;

A transverse incised wound 1"" above the right elbow joint 2"" x 4"" x 1/4"" in dimension at the anterior aspect;

A transverse incised wound just below the right Olecranon process 5"" x 1"" x 1"" in dimension. Tendens cut end bone deep;

An oblique incised wound at his left middle of thigh 5"" x 1"" x 1"";

An incised wound over the left scapula of the back 5"" x 1"" x 1/2"" muscles cut;

An incised wound cut on the right supra clavicular region 1"" x 1/2"" x 1/4"";

An incised wound on the left shoulder 1/4"" x 1/4"" x 1/4"";

Contusion over the posterior aspect of middle of left fore arm;

Right Humerus bone was found fractured;

A transverse incised wound over the secroiliac joint both sides 12"" z 2"" x 1/2"".

Exhibit P.2 is the copy of the accident Register. He sent intimation to Nagercoil Police Station.

P.W. 1 after admitting the first deceased Sornappan in the hospital went along with P.W. 2 to Suseendiram Police Station, where he gave the

complaint, Exhibit 1 to the Sub Inspector of Police P.W. 16 for the occurrence. P.W. 16 registered the complaint in Crime No. 282/89 under

Sections 147, 148, 341, 307, 302 and also u/s 5 of the Explosive Substances Act. He prepared the express report Exhibit P.27. Which was

forwarded to the Court. In the meanwhile, P.W. 15 the Head Constable attached to Kottar Police Station received the injury message Exhibit

P.26 sent from the hospital and transmitted the same to Suseendiram Police Station as the Jurisdictional Police limits was Suseendiram. But, he

received a message from Suseendiram Police Station that already a complaint had been registered for the said occurrence. Therefore, P.W. 16 did

not proceed to record the statement from the first deceased Sornappan.

P.W. 18 the Judicial Magistrate, Nagercoil received the requisition Exhibit P.38 from the Medical Officer attached to the Head Quarters

Hospital at 3.15 p.m. to record the dying declaration of Sornappan. On the same day he proceeded to the hospital and identified the injured

person through the Doctor and recorded the statement of Sornappan under Exhibit P. 39.

P.W. 19 the Inspector of Police attached to Kanyakumari Circle received the wireless message with regard to the occurrence in Karkadu

village and after registering the first information report in the Police Station he proceeded to the scene of occurrence at 3.30 p.m. He prepared a

rough sketch Exhibit P-40 and prepared the observation mahazar Exhibit P-12 in the presence of P.W. 9. He conducted the inquest on the body

of Ponnayyan in the presence of the Panchayatdars and prepared the inquest report Exhibit P-41. He also conducted the inquest on the body of

the third deceased Esakkimuthu in the presence of the Panchayatdars and prepared the inquest report Exhibit P-42. The body of Ponnayyan was

handed over to P.W. 12 for taking to the hospital for post mortem and the body of Esakkimuthu was handed over to P.W. 13 for the same

purpose. In the presence of P.W. 9 and another, he seized blood-stained cement slab M.O. 7, sample slab M.O. 8 in the place, where the body

of Ponnayyan was lying under Exhibit P-13 and in the place where the body of Esakkumuthu was lying, he seized blood stained cement slab M.O.

9 and the sample slab M.O. 10, the blood stained paddy grains M.O. 11, sample paddy grains M.O. 12, the blood stained stones M.O. 13,

sample stones M.O. 14, cloth pieces M.O. 15 and the blood stained towel M.O. 16 under Exhibit P-14. In the place where Ponnayyan''s body

was lying, he seized the slab M.O. 17, which contained the mark of the explosive substances and a sample slab M.O. 18 under Exhibit P-15. He

also seized the slabs containing the marks of explosive substances in the place where Esakkumuthu was lying, viz., M.Os. 19 to 25 under Exhibits

P-16 to P-19.

P.W. 7, the Medical Officer attached to Nagercoil Government Headquarters Hospital, received the requisition Exhibit P-6 from the Inspector

of Police P.W. 19 on 8-10-1989 at 1.30 a.m. to conduct the autopsy of the body of the second deceased Ponnayyan. He conducted the post

mortem on 8-10-1989 at 9.30 a.m. and found the following injuries on the body of the deceased Ponnayyan.

An incised injury 28 cm. x 3 cm. starting from the lateral end of right eye, running right across the right eye, medial end of right upper eye lid,

fore head and left side of the scalp 4 cm. above the left ear. The skull bone was found out throughout the length of the injury. The brain matter was

also found cut to the depth of 1 c.m. throughout the injury.

An incised injury 2 c.m. x 1/2 c.m. x 1/2 c.m. on the back of right fore arm near the wrist;

An incised injury on the lateral aspect of mid third of the left thigh 11 c.m. x 5 c.m. x 7 c.m. cutting through the muscles and reaching up to the

bone;

An incised injury 5 c.m. x 1/2 c.m. x 1/2 c.m. on the extensor aspect of the left wrist.

The doctor was of the opinion that the deceased had died due to shock and haemorrhage due to the injury to the skull and brain and also the

multiple injuries, 10 to 20 hours prior to the post mortem. Exhibit P-7 is the post mortem certificate issued by him. After autopsy, P.W. 12

recovered the shirt M.O. 2 and dhoti M.O. 3 of the deceased Ponnayyan and handed over at the Police Station.

P.W. 7 received another requisition Exhibit P-8 from the Inspector of Police to conduct the post mortem on the body of the third deceased

Esakkimuthu on the same day. On 8-10-1989 at 11.00 a.m. the post mortem commenced on the body of Esakkimuthu and he found on him the

following injuries :-

A lacerated injury 16 c.m. x 11 c.m. on the left side of the neck with burnt out edges and floor. The oesophagus and the trachea were severely

contused. Major blood vessels carotid artery, jugular veins were found damaged. Fracture dislocation of atlanto azial joint with damage to the

spinal cord;

Lower half of the left pinna (ear) found missing.

The remaining part had burnt edges :

Nothing abnormal in the internal organs, except the blood clots found on the right and left side of the brain. The hair from the scalp and the injured

area of the skin and the tissues were preserved in formalin for expert opinion. P.W. 7 was of the opinion that the deceased should have died of

shock and haemorrhage due to the neck injury and also the injury to brain and spinal cord 16 to 20 hours prior to the post mortem examination.

Exhibit P-9 is the post mortem certificate. After the report received from the Forensic Laboratory with regard to the hair of the scalp and the skin,

he issued the final report Exhibit P-10 stating that the deceased should have died of shock and haemorrhage due to the neck injury, brains, spinal

cord probably caused by the explosive substances. P.W. 13 recovered the lungi M.O. 4, shirt M.O. 5 and Jetti M.O. 6 of the deceased

Esakkimuthu and handed over them at the Police Station.

On 12-10-1989, P.W. 10, who heard about the place of hiding of these appellants in Marundhuvazh hill informed the Police about the

appellants. P.W. 19 came with his men to the village and P.W. 10 accompanied them to the hill. They found appellants 1, 2 and 4 in hill and P.W.

19 arrested them at 7.00 a.m. on 12-10-1989. On interrogation the 4th appellant gave a confession statement, the admissible portion of which is

marked as Exhibit P-20 and he led the police party to a nearby rock from where he took out M.O. 1 arruval from the crevice of the rock, and it

was seized under Exhibit P-21 mahazar, the first appellant also gave a confession, the admissible portion of which is marked as Exhibit P-22 and

he took the police party and P.W. 10 to the house of one Selladurai. Within the compound of the said Selladurai, he pointed out a place in the

open and he also took out an unexploded country bomb kept within a tin container and it was seized under Exhibit P-23 mahazar.

P.W. 19 dipped the unexploded bomb into a bucket of water M.O. 28 to diffuse the bomb. He arrested appellants 1, 2 and 4 and remanded

them to judicial custody.

On 12-10-1989 at 8.30 a.m. Sornappan, who was undergoing treatment in the hospital died. P.W. 5, the Doctor attached to the hospital, sent

the death intimation Exhibit P-3 to the Police Station. P.W. 16, the Sub-Inspector of Police, Suseendiram after the receipt of Exhibit P-3

intimation, prepared the special report, Exhibit P-28 altering the offence u/s 302, I.P.C. for the death of Sornappan.

P.W. 19 the Inspector of Police on intimation held the inquest on the body of Sornappan on the same day and prepared the inquest report,

Exhibit P-43. He handed over the body with a requisition Exhibit P-4 to P.W. 14 for handing over it to the Doctor to hold autopsy.

P.W. 6, the Doctor attached to the Government Hospital, Nagercoil, received the requisition Exhibit P-4 from the Inspector of Police P.W. 19

to conduct the post mortem. He commenced the autopsy on the body of Sornappan on 12-10-1989 at 4.30 p.m. He found all the injuries in all the

areas mentioned in Exhibit P-2 but in the sutured form, apart from a sutured injury in the left ankle created during the time of surgery. The internal

examination revealed the cutting of maxilla on the right side and also the cutting of the humerus bone corresponding to in Injury No. 5. The sternum

also was found cut corresponding to injury No. 7, in addition to the injuries to the ribe 3, 4 and 5. The left illac bone and sacrum were found cut,

corresponding to injury No. 11. The scapula was found cut corresponding to injury No. 12. He also was of the opinion that the deceased would

have died of shock and haemorrhage due to the multiple injuries. Exhibit P-5 is the post mortem certificate issued by him.

On 12-10-1989 the Inspector of Police sent the requisition Exhibit P-29 to the Judicial Magistrate, Nagercoil to cause the sending of the

articles seized by him to the Forensic Laboratory for forensic examination. The Judicial Magistrate No. 3, Nagercoil sent those materials under a

covering letter Exhibit P-30 to the Forensic Laboratory. On 12-10-1989 the Inspector sent a requisition Exhibit P-31 to send the hair taken from

the scalp and the flesh taken from the body of Esakkimuthu to Forensic Laboratory for chemical examination. The Judicial Magistrate No. 3,

Nagercoil forwarded them under the covering letter, Exhibit P-32 to Forensic Laboratory. The Inspector sent another requisition Exhibit P-33 to

send the blood stained cement slabs, tar portion and also the exploded pieces for forensic examination and the Judicial Magistrate No. 3

forwarded them also under Exhibit P-34 covering letter. Exhibits P-35, P-36 and P-37 are the reports received from the Forensic Laboratory. As

P.W. 19 Inspector was transferred, his successor P.W. 20 took up the investigation on 10-12-1989 and he continued the investigation. He sent a

requisition Exhibit P-24 to P.W. 11 the Assistant attached to the Forensic Laboratory, Kanyakumari District to disintegrate the unexploded bomb

seized under Exhibit P-23. He opened it and separated the jute cord, cotton pieces, small pebbles, waste papers and also the explosive

substances. M.O. 26 series are the materials he removed from the bomb. The materials were handed over to the Inspector of Police, and they

were kept in a plastic container. M.O. 27 Exhibit P-25 is the report prepared by him for separating the materials from the unexploded bomb. As

P.W. 20 also was transferred, P.W. 21 his successor took up the investigation. He obtained the sanction from the Collector of Kanyakumari

District against appellants 1 and 2 to prosecute them u/s 3 of the Explosive Substances Act, Exhibit P-44 is the draft sanction issued by the

Collector and the copy of the same is Exhibit P-45.

After completing the investigation, P.W. 21 filed the final report against the appellants for the offences under Sections 147, 148, 341, 302 (3

counts) I.P.C., and also u/s 3 of the Explosive Substances Act.

The Judicial Magistrate committed the case to the Sessions Court.

The learned Sessions Judge, Kanyakumari framed as many as eight charges against these appellants for the offences under Sections 148, 302,

302 read with Section 149 and also u/s 3 of the Explosive Substances Act and when these appellants were questioned, they pleaded not guilty.

The learned Sessions Judge conducted the trial and examined all the witnesses produced before him. After the examination of the witnesses, he

also questioned the appellants u/s 313 of Cr.P.C. At the time of argument, it appears that the learned Sessions Judge felt that the sanction Exhibit

P-44 issued by the office of the Collectorate was not a valid order and therefore, he thought that he could not proceed with the case further. As he

felt that the trial was illegal and relying upon the decision in Gopal Krishna Pal Vs. The State, , the learned Sessions Judge quashed the entire

proceedings relating to the trial of the case by his order dated 3-3-1994 and directed for obtaining the proper sanction to prosecute the appellants

u/s 3 of the Explosive Substances Act, to enable the Court to proceed with the trial of the case.

Therefore, a fresh sanction was obtained under Exhibit P-46 from the Collector, Kanyakumari and the fresh trial commenced before the

Successor Sessions Judge.

The learned Sessions Judge examined as many as 21 witnesses afresh. After the evidence on the prosecution side for the second time the

accused were questioned u/s 313, Cr.P.C. calling upon them to explain the incriminating circumstances found against them in evidence of the

prosecution witnesses. All the appellants simply denied their complicity in the crime and had stated that they had been falsely implicated in the case.

They examined two witnesses, viz., the retired Tahsildar D.W. 1 to speak about the issue of the community certificate to the 4th appellant marked

as Exhibit D-1 and the Editor of the Tamil Daily Malai Malar (D.W. 2) to speak about the publicity of a news column in the Malai Malar issue

dated 7-10-1980, and marked, Exhibits D-1 to D-18 on their side from the previous deposition of the prosecution witnesses.

The learned Sessions Judge, after considering the entire evidence available on record, found these appellants are guilty of the offences under

Sections 148, 302 (3 counts) and 302 read with 149 and Section 3 of the Explosive Substances Act and dealt with them in the manner we have

stated above. Hence the reference for the death sentence against the second appellant as well as the appeal by the appellants have come before

together.

Before we proceed to consider the merit of the prosecution case of the soundness of the findings of the learned Sessions Judge. We entertain a

very serious doubt as to the sanity of the learned Sessions Judge is order dated 3-3-1990 quashing the trial of the entire proceedings, for the

reason that sanction was not obtained for trying the offence under the Explosive Substances Act. The learned Sessions Judge has not referred to

any provision of law as to his competency for quashing the proceedings relating to the trial conducted before him. But he had referred to a decision

reported in Gopal Krishna Pal Vs. The State, wherein the accused was tried exclusively for the offence under the Explosive Substance Act. As

sanction was not obtained u/s 7 of the said Act, the learned Assistant Sessions Judge in that case quashed the proceedings. The High Court of

Patna had approved the action of the lower Court in quashing the proceedings, as sanction was not obtained for the trial of the case. But,

unfortunately, the learned Sessions Judge in this case had failed to note the marked distinction, viz., the case before him was not purely for the

offence under the Explosive Substances Act, but also under the various provisions of the Indian Penal Code, which do not require any sanction for

trial. Except for the charge No. 5 relating to the offence u/s 3 of the Explosive Substances Act for which sanction u/s 7 of the said Act is required,

all the other charges were framed by the learned Sessions Judge, under the Indian Penal Code. When the offences are combined both triable

without sanction and with sanction, the learned Sessions Judge could have considered whether it was proper on his part to quash the entire trial

including for the offences relating to the Indian Penal Code which he was competent to try without anybody''s sanction. There are catena of

decisions holding that even if the prosecution had failed for want of sanction, it will not amount to acquittal and there will be no bar to proceed

against the accused after obtaining a valid sanction. In Baij Nath Prasad Tripathi Vs. The State of Bhopal, , the Apex Court while quashing the trial

for the offence under the Prevention of Corruption Act, for want of sanction has held that the previous trial does not bar a subsequent trial of the

accused under the provisions of the Corruption Act read with S. 161, I.P.C., after obtaining the proper sanction.

This Court also in J. Muthukrishnan and Another, etc. Vs. The State, (rendered by one of us, i.e., Janarthanam, J.) has held that a previous

trial without the requisite sanction is no bar to a fresh trial with sanction for the same offence and on the same facts. Therefore, when the position is

so, the learned Sessions Judge ought not to have quashed the entire trial of the case for the reason that sanction was not obtained for the offence

under the Explosive Substances Act. So far as the trial relating to the offences under the Indian Penal Code, it cannot be stated that the trial was

not valid as he was fully competent to try the offences. Therefore, the learned Sessions Judge could have applied his mind and rendered the verdict

in so far as the charges relating to the offences under the Indian Penal Code were concerned; and either discharged or closed the trial in so far as

the charge No. 5 relating to the Explosive Substances Act, for want of sanction and also could have directed for a fresh trial in so far as that

offence was concerned. Unfortunately, without any foresight, he had quashed the entire trial, putting the prosecution to such an ordeal for a second

trial that too after a lapse of six years. By a little bit application of mind, he could have avoided this ex facie illegal order and saved the previous

time of the Court and the witnesses. As we find no provision under the Code, empowering the learned Sessions Judge himself to quash the valid

proceedings on his own file, we are unable to support the order of the learned Sessions Judge, quashing the proceedings. Any how, the position is

clear now, that the quashing of the trial in so far as relating to the offence under the Indian Penal Code is not valid and therefore, the subsequent

trial is only an unnecessary repetition of the same work once again putting the same witnesses in the box, who have repeated their testimony in

spite of the handicap of loss of memory due to lapse of six long years. However, the evidence recorded by the learned Sessions Judge, before

quashing of the proceeding still remains to be the substantive evidence in this case.

Now coming to the merit of the prosecution case, three eye-witnesses have been examined to speak about the occurrence and the

participation of these accused persons in the crime. It was contended by the learned Senior Counsel Mr. Vanamamalai that though the evidence

reveals that there were some more persons present in the place of occurrence, the prosecution has chosen to examine only the close relatives of

the deceased persons and as these witnesses cannot be treated as independent witnesses, it has to be taken that the prosecution has suppressed

the evidence of the independent witnesses without examining them. The evidence of P.Ws. 1 to 3 disclose that apart from them, one Velu also was

present, but Velu is none else than the father of P.W. 1. Therefore, he also is a relative of the deceased, because P.W. 1 is the nephew of the first

deceased Sornappan and brother in law of the third deceased Esakkimuthu. The second deceased is the uncle to P.W. 1. P.W. 2 is the brother of

the 3rd deceased Esakkimuthu. But there is no evidence to hold that P.W. 3 is related to any of the victims. Even though P.W. 2 in his evidence

would state that when he and other witnesses were running behind the appellants/accused one Bhagavathi Ammal and Samy also came after them,

that will not be a proof to accept that those two persons also witnessing the occurrence from the beginning, because they came only subsequently

and were running behind P.W. 2 and others. P.W. 1 in his evidence would say that he and others when went near Ponnayyan and Esakkimuthu,

they found them dead and this was witnesses by Balamurugan, Samy and Harichandran (P.W. 3). We have already mentioned about P.W. 3 and

Samy, who were present along with P.W. 1 from the beginning. But Balamurugan''s name is not mentioned for his presence from the beginning. So,

he must have come only subsequently. That is why P.W. 1 has mentioned his name only when he referred to the death of Ponnayyan and

Esakkimuthu. From these circumstances, it is very clear that Balamurugan and Bagavathiammal should have come only subsequently. Any how, the

fact remains that P.W. 3 is not related to any of the victims and therefore, there is no reason to reject his testimony on the ground of any

relationship. P.Ws. 1 to 3 have uniformly stated that when the first deceased Sornappan was coming from South and came near the appellants,

appellants 3 to 5 taking out the aruvals which were concealed within the folded dhotis, pounced upon him and cut Sornappan one after another

indiscriminately. These three witnesses have stated the parts of the body on which the injuries were inflicted by appellants 3 to 5. The occurrence

was by about 12.30 noon as spoken by the witnesses and there was nothing strange for the presence of these witnesses because all these

witnesses are residents of the same village, having their houses nearby and therefore, nothing could be said for their presence in the scene of

occurrence. As the second deceased and third deceased were also residing at some distance from the scene of occurrence, naturally they might

have come of the scene of occurrence on hearing the alarm voice raised by Sornappan. The evidence of P.Ws. 1 to 3 shows that when those two

persons, viz., Ponnayyan and Esakkimuthu came there shouting not to cut Sornappan, appellants 1 and 2 threatened them with the country bombs

in their hands and they also chased them. Therefore, it appears to save their lives of both of them ran towards south and thereafter towards west,

where there is a lane and the appellants 1 and 2 following them had thrown the country bombs, which were in their hands. All the three witnesses

have narrated that three bombs were hurled at them, but they did not injure Ponnayyan and Esakkimuthu. Ponnayyan, who was running behind

Esakkimuthu fell down in the shock when he saw a bomb exploding close to him. The evidence reveals that when he attempted to get up, the 5th

appellant first cut him on his fore head followed by appellants 3 and 4 cutting on his left thigh and hands. As Esakkimuthu, who tried to escape,

happened to see these appellants cutting Ponnayyan, he seems to have shouted not to cut Ponnayyan and this has enraged the appellants, making

the second appellant to hurl a country bomb directly on his body causing the fatal injury on the neck. The body of Ponnayyan was lying in front of

the house of one Kamal and the body of Esakkimuthu was lying in front of the house of one Muthu Krishnan. These three eye-witnesses, though

they were afraid of intervening in the pernecious actions of the appellants, as they were having dangerous weapons in their hands, they were able to

see each and every part played by these appellants till the last event when they took out the life of Esakkimuthu. These eye witnesses were cross-

examined both before the quashing of the proceedings and also subsequently elaborately and no blemish worth mentioning in the evidence of these

witnesses has been brought to light to suspect their testimony, except certain contradictions which we would refer now. It was elicited from P.W. 1

that he did not state in the previous trial that P.W. 2 also accompanied him to the Police Station and that he did not say that he went to the Police

Station in the same taxi in which Sornappan was taken to the hospital. As mentioned above, the previous evidence remains still as substantive

evidence and on a perusal of the evidence of P.W. 1 in the previous trial it is not as if P.W. 1 had not stated that P.W. 2 did not come to the Police

Station. In the previous deposition it has been stated that P.W. 2 was on the way to the Police Station and when P.W. 1 was coming in the taxi, he

did not stop the taxi but proceeded to the Suseendiram Police Station straight where P.W. 2 had joined him. Therefore, it makes clear that though

P.Ws. 1 and 2 did not go to the Police Station together from the hospital, the evidence reveals that P.W. 1 first went in a taxi and P.W. 2

subsequently joined him in the Police Station. No doubt, P.W. 2 in the previous trial has stated that he did not go to the hospital along with P.W. 1

and others, who took Sornappan to the hospital. But in subsequent trial, he has stated that P.W. 1, Samy and himself took Sornappan in a taxi to

the hospital. Even though the original evidence of P.W. 2 was that he did not join with P.W. 1 and Samy to take Sornappan to the hospitals, there

is possibility for P.W. 2 to go subsequently and probably thinking it in his mind, in the second trial he might have stated that he also went to the

hospital along with others. It cannot be stated that he would not have gone to the hospital at any time subsequently when especially they are all

closely related. As the second trial was conducted six years after the occurrence, he might have stated that he accompanied Sornappan along with

others, though he might have gone to the hospital subsequently. P.W. 2 has also stated in the evidence of the previous trial that he went to the

Sunseendiram Police Station and when P.W. 1 gave the complaint, he was also present and he attested it, though it was suggested to him that the

complaint was recorded only in the village. On a perusal of the contradictions elicited from P.Ws. 1 and 2 with regard to the testimony given by

them in the previous trial, we find that they are very minor and flimsy and they cannot be taken as material contradictions affecting the case of the

prosecution. Therefore, we find no reasons to reject or disbelieve the evidence of P.Ws. 1 to 3.

The evidence of the eye-witnesses show how all the appellants were standing together and how they reacted when the first deceased

Sornappan was coming from south and the participation of the appellants 1 and 2 by throwing the country bombs, while the other appellants were

cutting the deceased 1 and 2, by lethal weapons. Therefore, this conduct of the appellants bring out the common object of the appellants to murder

Sornappan and subsequently this common object has developed on seeing the deceased Ponnayyan and Esakkimuthu as they came to the rescue

of the first deceased Sornappan.

The first deceased Sornappan has given a dying declaration before the Judicial Magistrate, Nagercoil under Exhibit P-39 at 3-15 p.m. (sic) on

the date of the occurrence. In Exhibit P-39 he has stated that by about 12.30 noon on that day six persons attacked him due to the communal

dispute and he also has mentioned the names of accused 2, 3 and 4 first as the persons who attacked him and thereafter, mentioned the names of

three persons, viz., accused 1, 5 and one Suriyan. It was argued by the learned Senior Counsel Mr. Vanamamalai that even though the prosecution

case is that only these appellants, who are five in number had participated in the occurrence, the first deceased Sornappan had mentioned six

names including the name of the Suriyan exposing that he wanted to implicate all the sons of Arulanandham and therefore, the dying declaration

Exhibit P-39 cannot be given weight and from this expression of the deceased Sornappan in Exhibit P-39, there was a conspiracy to implicate all

the members of the family of Arulanandhan. No doubt, the name of one person, who was not present in the scene of occurrence also has been

mentioned in Exhibit P-39. But, we must understand the mental condition of the first deceased Sornappan both at the time of the occurrence and

also at the time of the dying declaration. He was coming from southern side towards northern side, without knowing what was going to happen to

him. The evidence discloses that these appellants suddenly pounced upon him when he was unaware of the situation and therefore, he might not

have even fully realised what was happening to him when he was indiscriminately cut by the appellants 3 to 5. As these five appellants were

standing together and three of them had attacked Sornappan, we cannot say now that the deceased ought to have correctly counted all those, who

were standing there, when he was attacked and given the correct numbers when he was giving dying declaration, at the time when he was in the

agony of death. Only in the flash of the moment he might have visualised the situation and knew that the sons of Arulanandhan were standing there.

Therefore, in the faint impression that all the sons of Arulanandham were standing there, he might have stated that the other son of Arulanandham

viz., Suriyan also was present there, though it was a mistake. However, this mistake can be excluded, because the eye-witnesses who were

present, were able to identify only these five appellants. Therefore, it cannot be stated that the prosecution had intended to rope in all the sons of

Arulanandham in this occurrence. As a matter of fact, when the first deceased Sornappan was taken to the hospital, he had stated to P.W. 4 that

known persons had cut him. Therefore, at the time of giving Exhibit P-39 dying declaration, he would not have omitted those known persons and

introduced the names of some others, who were not connected with the occurrence. Any how, though there is a mistake in the memory of the

deceased Sornappan, while mentioning the participants of the occurrence in Exhibit P-39 dying declaration, the description of the names of the five

appellants is sufficiently corroborated by the other testimony available on record. When the evidence of P.Ws. 1 to 3 and the dying declaration are

taken together, it is beyond doubt that these appellants were the perpetrators of the carnage.

The medical evidence also fully supports the ocular testimony. P.W. 4 in Exhibit P-2 has mentioned as many as 12 injuries and the injuries on

the face, left thigh, back and the chest are also mentioned. The injuries in these parts have been spoken by P.Ws. 1 to 3. The witnesses have

stated that after the cut in the chest by the 5th appellant, Sornappan fell down and thereafter, all the three again had cut him indiscriminately.

Therefore, this version also is amply corroborated by the medical evidence of P.W. 4 and also P.W. 6 the Doctor, who conducted the post

mortem. Similarly, P.W. 7, who did the post mortem on the body of Ponnayyan, has mentioned in his certificate Exhibit P-7 as many as four

injuries and the injury on the fore head causing damage to the brain was the fatal injury. All the three witnesses have spoken about the cutting of

Ponnayyan with an aruval by the 5th appellant on his fore head to the full length extending from left to right. These witnesses have spoken about the

cutting by the appellants 3 to 5 on his thigh and also on the hands. The injuries were found by P.W. 7 on these parts. Therefore, the ocular

testimony relating to the attack on Ponnayyan also has been amply corroborated by the medical evidence. P.W. 7 who did the post mortem of

Esakkimuthu also has stated in his final report Exhibit P-10 that Sodium and Nitrate Chemicals were detected in the hair taken from the body of

Esakkimuthu. He also has mentioned in Exhibit P-9 post mortem certificate that the lacerated injury found on the left side of the neck had burnt

edges and in the left ear also a portion of the ear was found missing and the remaining part had the burnt edges. Therefore, the nature of the injuries

found on Esakkimuthu with burnt cut edges and the presence of Sodium and Nitrate Chemicals in the injuries and also on the hair taken form the

scalp corroborate the evidence of P.Ws. 1 to 3 that the country bomb was thrown at the deceased Esakkimuthu and he died due to the explosion

of the country bomb in the vital part, viz., in the throat. The evidence of the three Doctors, viz., P.Ws. 4, 6 and 7 fully support the ocular testimony

of P.Ws. 1 to 3 as to the manner in which these three deceased, viz., Sornappan, Ponnayyan and Esakkimuthu were attacked by these appellants.

The evidence of P.W. 10 is that he gave information to the police as to the hiding place of the appellants 1, 2 and 4 in Marundhuvash hill and

on 12-10-1989 the Inspector of Police P.W. 19 arrested the said appellants at about 7 a.m. in the said hill and on interrogation, the first appellant

gave a confession statement, the admissible portion of which is Exhibit P-22 leading to the recovery of the unexploded bomb in the open space

within the compound wall of one Selladurai. P.Ws. 10 and 19 in their evidence would state that after the statement by the first appellant, he took

them to the house of one Selladurai in Karkadu village and took out a container burried in the open space within the compound wall of Selladurai

and that container contained a country bomb which was seized by the Inspector under Exhibit P-23 mahazar, P.W. 19 also had deposed that he

kept this bomb within a bucket of water to diffuse the same. Later on P.W. 11 was asked to examine the bomb and he after diffusing the bomb,

separated its parts containing the jute, cotton cloth, waste paper, small pebbles and explosive substances. M.O. 26 series are those materials

found within the unexploded country bomb. The Inspector P.W. 19 recovered M.O. 17, M.O. 19 and M.O. 21 the slabs containing the sample of

the explosive substance in different place, where Ponnayyan the second deceased was lying dead under Exhibits P-15, P-16 and P-17. The cotton

pieces Jute, paper, yarn and small pebbles M.O. 23 series also were recovered under Exhibit P-18 in the place were the body of Ponnayyan was

lying. The forensic report Exhibit P-35 reads that in some of these materials, Sodium and Nitrate were detected and in some items Aluminum

Sulphate, Arsenic and Sulphide were detected, though the residues of the explosion were not detected. Any how, the materials mentioned above

are chemical substances used to explode the bombs and therefore, it is proved that in the scene of occurrence, the country bombs were used. The

first appellant/first accused had country bomb in his possession though it was kept burried within the compound wall of the Selladurai as is evident

from Exhibit P-23. The learned senior counsel Mr. Vanamamalai contended that as the evidence of P.W. 19 discloses that the bomb was

recovered within the compound wall of Selladurai, the first appellant cannot be said to be the person in possession of the exploded bomb at that

time, and he also has commented upon for not arresting the said Selladurai. P.W. 19 in his evidence has stated that the said Selladurai had

absconded. Any how, as the first appellant was able to take out the country bomb, which was kept burried under the earth in a particular place, it

is certain that he was in the habit of handling the explosive substance. Therefore, the evidence of the eye-withesses P.Ws. 1 to 3 that the appellants

1 and 2 had thrown the bombs while chasing the deceased Nos. 2 and 3 gets fully corroborated from the medical evidence and the recovery of the

bomb under Ex. P-23.

30A. The learned Senior Counsel Mr. Vanamamalai contended that there was no provocation for the appellants to resort to this violence all of a

sudden on 7-10-1989 because even according to P.W. 8 the appellants were outcasted on 19-6-1988. When these appellants were not

provoked in 1988 when they were outcasted there was no reason for suddenly taking vengeance on Sornappan on 7-10-1989 and therefore,

there was no reason for these appellants to suddenly hatch out a conspiracy to do away with the first deceased Sornappan. The learned senior

counsel further argued that even though P.W. 8 would say that as the deceased Sornappan had refused to give community certificate to the 4th

appellant the enmity got aggravated, whereas, the evidence of D.W. 1 the Tahsildar and Exhibit P-17 show that the 4th appellant had obtained the

community certificate from Tahsildar even on 9-3-1989 and therefore, there could not have been any sudden urge for these appellants to finish

Sornappan. The learned senior counsel has also submitted that there was news column in Exhibit P-18 Tamil daily Dhina Malar publishing the news

that in the kodai festival on account of certain dispute, the country bombs were used and this news make it clear that the occurrence should have

happened on account of the dispute in the kodai festival and therefore, these appellant could not be responsible for the murder of the victims

deceased.

One more argument in this connection raised by the learned Senior Counsel is that there was a civil litigation between Sornappan and one

Bhame who claimed right in the vacant land that one Yesu Adimai and Anthonimuthu also had disputes and the houses of Yesu Adimai and

Anthonimutu were demolished by the President of the community Sornappan, causing provocation to them and therefore when there were so many

enemies for Sornappan, there was possibility for the attack on Sornappan by his other enemies. No doubt, Exhibit P-11 shows that the appellants

were outcasted even on 19-6-1986, which was about one year before the occurrence. P.W. 8 has also stated that the deceased Sornappan

refused to give community certificate to the 4th appellant. D.W. 1 the Tahsildar in his evidence would state that even though the Tahsildars used to

issue community certificate, some times they verified the community certificate issued by the Village President for the purpose of issuing community

certificate. Therefore, the 4th appellant might have requested Sornappan to issue the community certificate before he obtained Exhibit P-17. As he

was not given the community certificate and his family members also were completely outcasted as per the resolution passed on 19-6-1988,

naturally there must have been unhealing ill feelings for the members of the appellants'' family against the deceased Sornappan as he had even

refused to give permission to cremate the body of the appellants'' father Arulanandham in the cremation ground. After the resolution under Exhibit

P-11 dated 19-6-1988, the ill feelings must have been simmering in the mind of the appellants. Even thought there is no clear evidence for the

provocation of the appellants for their action on 7-10-1989, the simmering ill feelings burning in their heart, might have created an occasion for

wracking vengeance, even for any petty matters, which the deceased Sornappan might not have even noted and that must have known only to the

appellants, the affected parties. Therefore, it cannot be said that there was no occasion for these appellants to cause violence on 7-10-1989. The

paper publication in Exhibit P-18 that violence broke out in kodai festival is not authenticated news as admitted by P.W. 2 and he would say that

without verifying the news and some times the news they heard, irrespective of it''s correctness the same was published in the newspaper.

Therefore, the news column in Exhibit P-18 as though the occurrence took place in the kodai festival cannot replace the evidence of the eye-

witnesses. Any how, the motive has come out from the evidence of P.W. 1 and also P.W. 8 for the standing ill feelings for these appellants

throughout against the first deceased Sornappan.

31A. The learned senior counsel Mr. Vanamamalai contended that in the wound certificate Exhibit P-2, it was told to the Doctor that the

occurrence had taken place at 11.00 a.m. in Karkadu, but whereas now in the evidence it has been stated as though the occurrence took place

only at 12.30 Noon and to cook up the time and also to avoid the explanation for the delay in giving the complaint to the police at 2.15 p.m. the

prosecution has let in evidence as though the occurrence took place at 12.30 Noon and there is considerable delay in setting the law in motion. He

also would argue that no explanation has been offered by the prosecution for the delay in lodging the complaint at 2.15 p.m. though the occurrence

had taken place at 11.00 a.m. as per Exhibit P-2. If the occurrence had taken place at 11.00 a.m., there was no reason for admitting Sornappan in

the hospital at 1.20 p.m. The evidence discloses that soon after the occurrence as Sornappan was struggling for life, immediately a taxi which was

passing, through the village was stopped and he was taken to the hospital. There could not have been any reason for keeping Sornappan in the

village itself till 1.20 p.m. if the occurrence had taken place at 11.00 a.m. Therefore, it is very clear that some time before the deceased was

admitted in the hospital, the occurrence should have happened. The evidence of P.W. 2 discloses that Nagercoil hospital is at the distance of 6

K.Ms. from Karkadu village. This distance could have been crossed in a taxi within 20 or 25 minutes. Therefore, the prosecution version that the

occurrence had taken place by about 12.30 Noon appears to be more probable and acceptable. Probably at the time when Sornappan was

admitted in the hospital, he might have given the approximate time as 11'' clock and we need not give much weight to this time especially when it

was given by the victim, who was in the agony of pain due to the multiple injuries on him. Any how, the immediate conduct of these witnesses

taking Sornappan to the hospital establishes the truth that the occurrence could have happened only after 10 Noon.

P.W. 1 has spoken in his evidence that after admitting Sornappan the hospital, he returned back to Suseendiram and thereafter he gave the

complaint in the Police Station. No doubt, there is a discrepancy as to time at which it was given. P.W. 16 in his evidence had stated that P.W. 1

appeared before him at 2.45 p.m. on 7-10-1989 and gave the statement, Exhibit P-1. But in Exhibit P-1 the Sub-Inspector while making the

endorsement in the statement, has mentioned that statement was recorded by him on 7-10-1989 at 1.45 p.m. As his evidence is that P.W. 1

appeared before him at 2.45 p.m., there is no possibility for recording the statement Exhibit P-1 at 1.45 p.m. and therefore, the endorsement

mentioning the time is a mistake. However, at the foot of the endorsement, he has mentioned that Crime Number 282/89 was registered under the

relevant provisions at 2.15 p.m. Any how, from the evidence of P.W. 16 that the complaint was registered only at 2.45 p.m., it appears that P.W.

1 after admitting Sornappan in the hospital had taken some time to return to Suseendiram to lodge a complaint, Exhibit P-1. The F.I.R. also had

reached the Judicial Magistrate''s Court at Nagercoil at 4.30 p.m. on the same day. Therefore, we find that there is no delay in lodging the

complaint. The quick action of the witnesses and also the police in sending the F.I.R. to the Court without delay really confirm that what was

spoken to by P.Ws. 1 to 3 must be true and correct.

On a thorough consideration of the entire evidence available before us, we have no suspicion as to the prosecution case in respect of the

offences alleged under the Indian Penal Code.

But, so far as the offence u/s 3 of the Explositve Substances Act, there is no independent evidence as to the sanction granted by the District

Collector. The sanction Ex. P-46 has been marked through the Investigating Officer P.W. 21 and he did not know anything relating to the papers

perused by the Collector for granting the sanction Ex. P-46. Unfortunately, the prosecution had not chosen to examine any witness connected to

the sanction Ex. P-46 in the office of the Collectorate. A mere production of the sanction order by itself is not sufficient to hold that the sanctioning

authority had applied its mind and considered the reasons for giving such sanction. This aspect is completely lacking in this case and therefore, we

are unable to hold that Exhibit P-46 is a valid sanction granted by the Collector for the prosecution of the appellants 1 and 2. Therefore, we do not

propose to support the findings of the learned Sessions Judge with regard to the charge No. 5 finding the appellants 1 and 2 guilty of the offence

u/s 3 of the Explosive Substances Act. But in so far as the other offences are concerned, as mentioned above, the evidence is satisfactory, reliable,

convincing and more clinching. Under these circumstances, we fully agree with the learned Sessions Judge for holding the appellants guilt of the

offences for the other charges except charge No. 5 relating to the Explosive Substances Act.

With regard to the sentence, the learned Sessions Judge has imposed the death penalty and a fine of Rs. 15,000/- in default to undergo R.I. for

18 months on the second appellant for the offence u/s 302, I.P.C. for the reason that he had attacked the third deceased Esakkimuthu by using the

country bomb and according to the learned Sessions Judge, the bomb culture should be curbed and dealt with severely and therefore, he

considered that this is a rarest among the rare cases to award the death sentence. But we are unable to share this view of the learned Sessions

Judge to award death penalty for the use of the country bomb by the second appellant against the deceased Esakkimuthu. It is true that the cruel

act of these appellants had resulted in the loss of three valuable lives and this gory act of violence should have shaken the entire public of Karkadu,

as the brutal attack and resulted in the loss of three lives. But when the learned Sessions Judge had chosen to impose only the life imprisonment to

the other appellants for the offences u/s 302, I.P.C. we do not justify in awarding the death sentence for the second appellant alone for the reason

that he used the country bomb to attack the deceased Esakkimuthu. Therefore, we find that the death sentence can be modified into one of life

imprisonment. Further, for the offences under Sections 302 and 302 read with 149, I.P.C. against other appellants, the learned Sessions Judge has

imposed each life imprisonment, apart from the fine of Rs. 10,000/- in default to undergo R.I. for 18 months. Therefore, for the second appellant

also the same sentence of life imprisonment and fine of Rs. 10,000/- in default to undergo R.I. for 18 months are sufficient for the offence u/s 302,

I.P.C. relating to Charge No. 4. So far as the first charge for the offence u/s 148, I.P.C. the learned Sessions Judge has imposed the sentence of 2

years R.I. and a fine of Rs. 5,000/- in default to undergo 6 months R.I. We do not find any reason to modify these sentences.

In the result :

Appellants 1 and 2 are found not guilty of the offence u/s 3 of the Explosive Substances Act and thereby they are acquitted of the Charge No.

5;

The conviction of the second appellant u/s 302, I.P.C. is confirmed, but the sentence of death and a fine of Rs. 15,000/- in default to undergo

18 months R.I., imposed on the 2nd appellant under Charge No. 4 is modified into one of life imprisonment and a fine of Rs. 10,000/- in default to

undergo 18 months R.I.;

The conviction and sentence as had been imposed on the appellant for other offences under Charge Nos. 1 to 3 and 6 to 8 are confirmed;

The compensation of 25% payable to the legal heirs of each of the three carnage victims as fixed by the Court below is confirmed; and

The Referred Trial 1/90 and the appeal C.A. 128/96 are accordingly disposed of.

Order accordingly.