Kitchan Buhari and Others vs State

D. Murugesan, J.—Both the appeals arise from the judgments of conviction and sentence in Sessions Case Nos. 725 and 726 of 2001

respectively on the file of Additional Sessions Judge, Fast Track Court No. I, Tirunelveli.

In Sessions Case No. 725 of 2001 on the file of the Additional Sessions Judge, Fast Track Court No. I, Tirunelveli, there were totally 13

accused put on trial on the following charges:

-------------------------------------------------------------------------------

Charge No. Accused Charged Under Section

-------------------------------------------------------------------------------

1 A1 to A13 u/s 120(B) of IPC

-------------------------------------------------------------------------------

2 A1 to A9 u/s 148 of IPC

-------------------------------------------------------------------------------

3 A10 to A13 u/s 147 of IPC

-------------------------------------------------------------------------------

4 A1 to A9 u/s 449 of IPC

-------------------------------------------------------------------------------

5 A10 to A13 u/s 449 r/w 149 of IPC

-------------------------------------------------------------------------------

6 A1 to A9 u/s 341 of IPC

-------------------------------------------------------------------------------

7 A10 to A13 u/s 341 r/w 149 of IPC

-------------------------------------------------------------------------------

8 A1 to A9 u/s 302 r/w 149 of IPC

-------------------------------------------------------------------------------

9 A10 to A13 302 r/w 149 of IPC

-------------------------------------------------------------------------------

2.1. The learned Additional Sessions Judge, FTC No. I, Tirunelveli, after full trial found A1 to A6 and A8 convicted and sentenced them under

various offences as detailed below:

-------------------------------------------------------------------------------

Accused Conviction Sentence

-------------------------------------------------------------------------------

A1 to A6 and A8 u/s 148 of IPC each of them to under go

rigorous imprisonment for

3 years

-------------------------------------------------------------------------------

A1 to A6 and A8 u/s 449 of IPC each of them to undergo

rigorous imprisonment

for 10 years

A1 to A6 and A8 u/s 341 of IPC each of them to undergo

simple imprisonment for

1 month

--------------------------------------------------------------------------------

A1 to A6 and A8 u/s 302 r/w 34 of IPC each of them to undergo

imprisonment for life

--------------------------------------------------------------------------------

* A1 to A6, A8 were found not guilty u/s 120(B) of IPC and they were acquitted from the charge u/s 120(B) of IPC alone.

** A7, A9 to A13 were found not guilty of any of the charges and they were acquitted from all the charges leveled against them.

2.2 Challenging the above said conviction and sentence recorded in S.C. No. 725 of 2001, the convicts A1 to A6 and A8 preferred Criminal

Appeal No. 420 of 2007.

Crl.A. No. 420 of 2007:

The appellants in Crl.A.No.420 of 2007 viz., A1 to A6 and A8 were put on trial along with other accused on the following prosecution case:

(i) All the accused are residents of Melapalayam Village. They founded a Sangam viz., Muslim Youth Sangam. A1 is the leader of the said

Sangam. The said Sangam had close contact with a banned organization viz., Al-Umma. The members of the Sangam frequently met and they

were closely watching the activities of the active members of R.S.S. and also Hindu Front. They had a common object to attack the members,

who were acting against Muslims. With the above common object in mind, they met in secrecy at Masthan Pallivasal located in Thaicka Street,

Melapalayam Village and collected Rs. 100/- from each of the members of the Sangam, hired a Tata Sumo bearing Regn. No. TN 72 B 9191 and

went to Courtalam, where they purchased 6 Bill-hooks and 4 Knives for a total sum of Rs. 1750/- and returned to Melapalayam Village. On

returning to the village, they concealed the above deadly weapons in the said Pallivasal. Again they met in secrecy in the same pallivasal and

hatched conspiracy to murder the supporters of R.S.S. in retaliation of murder of Immam Karishman at Chennai. with the above common object at

about 9.00 p.m. on 11.08.1997, A1 to A16, whose names are shown in the charge sheet went to the Flower Shop at Anna Street, run by one

Kannan (since deceased viz., D1) of Melapalayam; all the accused surrounded the shop and at the instigation of A1 and A2, the other accused

viz., A3 to A10 surrounded the deceased Kannan; A1 cut the deceased with bill-hook on his left hand; A2 cut him on his chest, left thigh, left joint

and also on his back; A5 cut the deceased on his mouth; A6 cut the deceased on his leg; A7 cut the deceased on his fore head; A3 cut the

deceased on his cheek with knife, A8 cut the deceased with knife on his left cheek; A9 cut the deceased on his left chest with knife; as all the

accused indiscriminately cut the deceased, the deceased succumbed to injuries on the spot. A5 threw the blood stained aruval used for the

commission of the offence of murder on the body of the deceased Kannan; and after committing the brutal murder, they left the scene of

occurrence.

(ii) P.W.1 the brother of the deceased on witnessing the occurrence, rushed to the police station and lodged Ex.P.1 Complaint to P.W.26 the

Head Constable attached to Melapalayam Police Station, who in turn registered the same in Cr. No. 233 of 1997 for the alleged offence u/s 147,

148, 341 and 302 of IPC, prepared Ex.P.10 Printed FIR. He made arrangements to send the Original Express FIR to the Jurisdictional

Magistrate and copies to his higher officials through P.W.27 Grade I, Police Constable attached to Melapalayam Police Station.

(iii) On receipt of copy of Express FIR, P.W.29, the Inspector of Police at about 23.10 hours on 11.08.1997 rushed to the place of occurrence at

about 23.15 hours, inspected the scene of occurrence; prepared Observation Mahazar Ex.P.18 and Rough Sketch Ex.P.19; summoned

panchayatars, held inquest on the body of the deceased and prepared Ex.P.20 Inquest Report. He sent the body to Government Medical College

Hospital, Tirunelveli through P.W.28 Head Constable along with Ex.P.2 Letter requesting post-mortem.

(iv) P.W.4 Doctor Mani, tutor in Forensic Medicine attached to Tirunelveli Medical College, Tirunelveli on 12.08.1997 at about 1.00 p.m. upon

identification by the Head Constable P.W.28 and on the basis of Ex.P.2 request, conducted autopsy on the body of the deceased and noticed the

following ante-mortem injuries:

1) chop gaping cut injury 10 x 6 cm x bone deep on the right parietal and temporal region. The underlying parieto temporal bone found cut and

brain tissues exposed.

2) 7 x 2 cm x bone deep cut injury on the left fronto � parietal region

3) 8 x 1 cm cut injury muscle deep on the left cheek to left tempo region;

4) gaping cut injury 3 x 2 cm x Bone deep just below the left nostril with uprooting of the 1st premolar noted

5) cut injury 2 x 1 cm x muscle deep on the left angle of mouth;

6) 2 x 1 cm muscle deep cut injury on the center of chin;

7) 6 x 2 cm x Bone deep cut injury with a failing of 3 cm downwards upper part of center of chest on dissection, the under lying sternum found cut

at site

8) Chop cut injury 7 x 2 cm x muscle deep on the outer aspect of back of lower part of right forearm.

9) cut injury 8 x 1 cm x muscle deep just below the right knee;

10) chop cut injury 15 x 9 cm x muscle deep on the inner aspect of middle of left leg;

11) gaping chop cut injury 9 x 2 cm x Bone deep on the outer aspect of left knee joint. The underlying muscle patella found cut.

12) chop cut injury gaping 15 x 12 cm x muscle deep in front of lower part of left thigh. The underlying muscles vessels and nerves found cut at

site.

13) Cut injury 4 x 2 cm x visceral deep on the lower part of middle of left side of chest.

14) Cut injury, 1 x 1 cm x muscle deep on the left side of chest close to nipple.

15) cut injury 1 x 1 cm x muscle deep seen on the upper part of left side of chest.

16) cut injury 2 x 2 cm x visceral deep on the outer aspect of right mid back. ON dissection, lower part of right lobe of lung found cut.

17) defence cut injury on the left middle to litter finger terminal part of little and ring finger found missing terminal phalanx of middle finger found cut

at site.

18) on dissection of scalp � it was found bruising 3 x 3 cm on the back of left parietal region. The vault of skull found cut in the mid frontal and

mid parietal region to a length of 15 cm; Brain found cut in the frontal and parietal region on the mid-line marked sub-dural and sub-arachnoid

hemorrhage on mid frontal and mid parietal region and diffuse sub-dural and sub-arachnoid hemorrhage on remaining part of brain tissues.

19) on dissection of thorax and abdomen; retro sternal bruising seen on left upper upper and mid part of sternum.

He opined that the deceased would appear to have died 17 to 19 hours prior to post-mortem due to shock and hemorrhage due to multiple heavy

cut injuries sustained by him and issued Ex.P.3 Post-mortem Certificate to that effect.

(v) P.W.28 the Head Constable who was in charge of the dead body after post-mortem examination recovered M.O.6 Shirt, M.O.7

Lunghi,M.O.8 Banian, M.O.9 Jatty and M.O.10 Waist Cord from the body of the deceased and thereafter handed over the dead body to the kin

of the deceased.

(vi) P.W.29 the first Investigation Officer from the local police station in continuation of his investigation at about 5.45 p.m. he recovered M.O.1

from the scene of crime; a blood stained brick piece dig out from the earth and another unstained brick piece M.Os.2 and 3 respectively in the

presence of P.W.8 under the cover of Ex.P.21 seizure Mahazar. He examined the witnesses P.W.1, P.W.2, P.W.8 and some others. On

13.08.1997 he examined some other witnesses. On 19.08.1997 at about 5.00 p.m., he arrested Ayub Khan and Mushiboor Rahman and

subjected them to judicial remand. In continuation of his investigation, P.W.29 on 20.08.1997, 28.09.1997 and also on 09.10.2007 examined

some other witnesses including Village Administrative Officer and his assistant. Thereafter, on 23.11.1997 as per the order the Director General of

Police dated 06.10.1997 in memo under reference in R.C. No. 5(1)/191664/97 forwarded by letter under reference in R.C. No. C-

1/420/2120/1997 dated 14.10.1997 of the Additional Director General of Police (Crime), the further investigation was transferred to C.B.C.I.D.,

Tirunelveli.

(vii) P.W.30 the Inspector of Police on 23.11.1997 took up further investigation. On 24.11.1997 and 26.11.1996 he examined witnesses P.W.1

and some others. On 26.11.1997 he moved an application for formal remand of A5 and two others in the case concerned in Cr.No.234 of 1997.

He made arrangements to send the material objects seized in this case for chemical examination through the Judicial Magistrate concerned.

Ex.P.22 is the request and the Judicial Magistrate in turn sent those material objects under the cover of letter Ex.P.23 to the Forensic Science

Department for chemical examination. Ex.24 is the Chemical Analysis Report and Ex.P.25 is the Serology Report.

(viii) In continuation of his investigation, P.W.30 on 28.09.1997 at about 10.00 a.m. arrested Kalilur Rahaman in the presence of P.W.14 and his

assistant and recorded the voluntary confession statement of the accused. Pursuant to Ex.P.26 Admissible portion of the confession of the accused

(A7) he recovered M.O.11 Aruval in the presence P.W14 under the cover of Ex.P.27 Seizure Mahazar. He also made arrangements to record

the statements of witnesses u/s 164 of Cr.P.C. P.W.33 the Judicial Magistrate recorded the statements of the witnesses. During investigation,

P.W.30 came to under stand that few of the accused were already in remand in connection with other cases and as such he made arrangements for

formal remand of those accused. Upon completion of his investigation on 09.10.1998, he laid the final report u/s 120(B), 147, 148, 341, 449,

109, 302 r/w 149 & 34 of IPC.

Crl.A. No. 422 of 2007:

In Sessions Case No. 726 of 2001 on the file of the Additional Sessions Judge, Fast Track Court No. I, Tirunelveli, there were totally 13

accused put on trial on the following charges:

---------------------------------------------------------------------------------

Charge No. Accused Charged Under Section

---------------------------------------------------------------------------------

1 A1 to A13 u/s 120(B) of IPC

---------------------------------------------------------------------------------

2 A1 to A4 and

A6 to A9 u/s 148 (Two counts) of IPC

---------------------------------------------------------------------------------

3 A5 and A10 to A13 u/s 147 (2 counts) of IPC

---------------------------------------------------------------------------------

4 A1 to A9 u/s 449 of IPC

---------------------------------------------------------------------------------

5 A10 to A13 u/s 449 r/w 149 of IPC

---------------------------------------------------------------------------------

6 A1 to A4 and u/s 302 r/w 34 (2 counts)

A6 to A9 of IPC

---------------------------------------------------------------------------------

7 A5 and A10 to A13 u/s 302 r/w 149 (2 counts)

of IPC

---------------------------------------------------------------------------------

8 A1 to A6 and A7 u/s 326 of IPC

---------------------------------------------------------------------------------

9 A5 and A8 to A13 u/s 326 r/w 149 of IPC

---------------------------------------------------------------------------------

10 A1 to A14 u/s 427 r/w 149 of IPC

---------------------------------------------------------------------------------

The learned Additional Sessions Judge, FTC No. I, Tirunelveli, after full trial found A1 to A6 and A8 convicted and sentenced them under

various offences as detailed below:-

---------------------------------------------------------------------------------

Accused Conviction Sentence

---------------------------------------------------------------------------------

A1 and A2 u/s 148 of IPC each of them to under go

rigorous imprisonment for

3 years

u/s 449 of IPC each of them to undergo

rigorous imprisonment for

10 years

u/s 302 r/w 34

(2 counts) of IPC each of them to undergo

imprisonment for life on

each count

---------------------------------------------------------------------------------

A1 u/s 326 r/w 149

of IPC undergo rigorous imprison-

ment for 10 years

---------------------------------------------------------------------------------

A2 u/s 324 r/w 149

of IPC undergo rigorous imprison-

ment for 3 years

---------------------------------------------------------------------------------

A3 to A6 and

A8 u/s 147 of IPC each of them to undergo

rigorous imprisonment for

2 years

u/s 449 of IPC each of them to undergo

rigorous imprisonment for

10 years

u/s 302 r/w 149

(2 counts) of IPC each of them to undergo

imprisonment for life on

each count

u/s 326 r/w 149

of IPC each of them to undergo

rigorous imprisonment for

10 years

u/s 324 r/w 149

of IPC each of them to undergo

rigorous imprisonment

for 3 years

---------------------------------------------------------------------------------

* A1 to A6, A8 were found not guilty u/s 120(B) of IPC and they were acquitted from the charge u/s 120(B) and 427 r/w 149 of IPC alone.

** A7, A9 to A13 were found not guilty of any of the charges and they were acquitted from all the charges leveled against them.

The appellants in Crl.A. No. 422 of 2007 viz., A1 to A6 and A8 were put on trial along with other accused on the following prosecution case:

(i) The accused involved in Sessions Case No. 725 of 2001 soon after the commission of first occurrence and in furtherance of the unlawful

assembly formed themselves, had proceeded to one Tailoring shop run by one Shankar (D2) and situated at Anna Street, Melapalayam which is

very near to the place of occurrence in the first sessions case. A1, A2, A4, A7 and A8 proceeded with blood stained aruvals; A3, A6 and A9

with blood stained knives; while A5, A10 to A16 being the members of unlawful assembly accompanied A1 to A4, A6, A7, A8 and A9 and

entered into the shop of the deceased (D2); A1 cut the deceased on his neck, when the deceased attempted to prevent the attack, he sustained cut

injury on his left neck, right hand, left cheek and also right thigh; A2 cut him on his right hand and left leg; A4 cut him on his neck; A7 cut him on his

right shoulder and right leg; A8 attacked on his chest; and in view of all the above indiscriminate attack, the deceased succumbed to cut injuries on

the spot. The accused also inflicted injuries on witnesses P.Ws.2 and 3. Thereafter, they proceeded to the Clinic situate in the very same street

which was run by one Dr. Selvakumar with the very same weapons and the accused who were armed with deadly weapons went inside the clinic,

by that time one Egiya came out of the clinic and the accused indiscriminately cut the deceased. The above two incidents were witnessed by

P.W.1, the brother of the deceased Shankar (D2). He immediately rushed to the police station and lodged Ex.P.1 Complaint.

(ii) P.W.29, the Head Constable attached to Melapalayam Police Station, who was on duty at the relevant point of time on 11.08.1997 at about

10.30 p.m. on receipt of the complaint from P.W.1, registered a case in Cr.No.234 of 1997 for the alleged offence u/s 147, 148, 341, 307 and

302 of IPC and prepared Ex.P.18 Printed FIR. He made arrangements to send the Express FIR to the Judicial Magistrate No. VI, Tirunelveli

through P.W.31 the Grade-I Police Constable and copies to the higher police officials including the Inspector of Police, Perumalpuram through the

Grade-I Police Constable for investigation.

(iii) P.W.10 Doctor, attached to Tirunelveli Medical College Hospital, on 11.08.1997 at about 10.45 attended to P.W.3 Muthu Krishnan and

noticed the following injuries:

incised wound middle of right forearm 8 x 4 x 3 cm

two incised wounds in left palk 4 x 1 x 1 cm and 6 x 1 x 1 cm

writ drop right

incised wound over left knee 1 x 1 x 1 cm

lacerated injury on the left arm near the elbow 4 x 2 x 1 cm

He opined that injuries 1 and 3 are grievous and others are simple in nature and issued Ex.P.10 Wound Certificate to that effect. He further opined

to a suggestion that Knives and Aruvals are enough to cause those injuries.

(iv) P.W.10 Doctor further attended to P.W.2 Janarthanan at about 10.40 p.m. and noticed the following injuries:

incised wound over dorsum of right hand extending from the index finger to litter finger at MCP joint with fracture of the metacarpals 2, 3, 4 and

5.

two incised wounds one at the left shoulder 4 x 2 x 2 cm another at supra scapular region 3 x 2 x 1 cm

lacerated injury over the right occipital region 4 x 2 x 1 cm

X-Ray = Fracture Phalanx of little finger distended of 3rd metacarpal bone. Fracture Acromion process of left scapula.

He opined that injuries 1 and 2 are grievous and the 3rd simple in nature and issued Ex.P.11 Wound Certificate to that effect. He further opined to

a suggestion that Knives and Aruvals are enough to cause those injuries.

(v) P.W.11 Doctor attached to the very same Hospital on 11.08.1997 made X-ray to be taken on P.Ws.2 and 3. M.O.15 and M.O.16 are X-

Ray (series 4 Nos.) relating to P.Ws.2 and 3 respectively. On examination of M.O.15 X-Ray (series) he found fracture on the right hand �

fracture proximal phalanx of little finger and distal end of 3rd metacarpal bone; right shoulder � scapula � fracture acromian process of left

scapula; skull region � no body injury and issued Ex.P.12 Radiology Report to that effect. Further on examination of X-Ray M.O.16 series he

found no bony injuries on both forearm of P.W.3 and issued Ex.P.13 Radiology Report to that effect.

(vi) P.W.34 the Inspector of Police, Perumalpuram on 11.08.1997 at about 11.00 p.m. on instructions took up investigation and rushed to the

place of occurrence. He visited the place of occurrence, prepared Ex.P.27 Observation Mahazar and Ex.P.26 Rough sketch in the presence of

attesting witnesses. On information, he rushed to the Hospital where the injured P.Ws.1 and 2 were taking treatment and examined them. He again

rushed to the place of occurrence, where the Sankar (D-2) was done to death, held inquest on the body of the deceased Sankar (D-2) and

prepared Ex.P.28 Inquest Report. Then he visited the place of occurrence where D-3 Dr. Selvakumar was done to death, prepared Ex.P30

Observation Mahazar and Ex.P.29 Rough Sketch. He held inquest on the body of the deceased in the presence of the panchayatars and prepared

Ex.P.31 Inquest Report. He made arrangements to take photographs with the help of P.W.20 Photographer. M.O.17 Photographs(series). Then,

he sent the dead bodies of both the deceased Dr. Selvakumar and Sankar through Police Constable along with Letters Exs.P.14 and 16

respectively to Government Medical College Hospital, Tirunelveli requesting post-mortem.

(vii) P.W.31 Police Constable handed over the Express First Information Reports along with the complaints in both Cr.No.234 and 234 of 1997

of Melapalayam police station to the Judicial Magistrate at about 1.30 a.m. on 12.08.1997.

(viii) In continuation of his investigation, P.W.34 Investigating Officer from local police station on 12.08.1997 at about 5.30 a.m. rushed to the

place of occurrence where the D-2 was done to death and recovered Blood stained cement flooring piece M.O.12, Ordinary cement flooring

piece M.O.13, blood stained broken show-case glass pieces M.O.9, ordinary broken show-case glass pieces M.O.10, and broken tube light

glass pieces M.O.11 recovered from the front side of doorstep of G.V. Tex Tailors under the cover of Ex.P.32 in the presence of P.W.5 Village

Administrative Officer. Again he rushed to the spot where D-3 was done to death and at about 6.30 a.m. On 12.08.1997 he recovered a blood

stained cement slab M.O.7, ordinary cement slab M.O.8, a pair of chappal M.o.14 under the cover of Ex.P.33 Seizure Mahazar in the presence

of P.W.5 Village Administrative Officer.

(ix) P.W.12 Doctor Mani upon identification by the Police Constable and Ex.P.14 Request, on 12.08.1997 at about 2.20 p.m. conducted autopsy

on the dead body of Dr. Selvakumar and noticed the following anti-mortem injuries:

Abrasion: multiple linear abrasions over an area of 10 x 10 cm upper part of right side of chest; 1 x 1/2 cm; 1 x 4/3 cm, 1 x 1/2 cm one below

the other on the upper part of right side of abdomen 5 x 1 cm; 2 x 1 cm one below the other seen on the front of left shoulder and left arm; 4 x 1/2

cm back of middle of left forearm;

chop cut injury 5 x 2 cm x bone deep on the right forehead. The underlying frontal bone found cut at site.

''Z'' shaped 24 x 1 cm cut injury muscle deep on the right cheek;

gaping chop cut injury 18 x 4 cm x bone deep extending from lower part of right chin to the back of right side of Head. The underlying muscles

vessels nerves and traches found cut and C4 vertebra found cut on the right side

cut injury 5 x 3 cm x muscle deep with a tailing of 4 cm towards body upper part of outer aspect of right side of chest.

curved cut injury 6 x 1 cm x muscle deep on the right side of chest close to mid line of sternum

chop defence cut injury 12 x 5 cm x bone deep gaping seen on the dorsum of right hand close to writ. The underling all the carpal bones and

metracarpal bones were found cut

cut injury 3 x 1 cm x visceral deep on right side of abdomen close to the umbilicus

7 x 2 cm x visceral deep cut injury gaping on upper part of left side of abdomen through which coils of intestine found protruding cut small

intestine found cut in three places and mesentery found cut at place.

cut injury 5 x 1 cm x bone deep on the back of left parietal region. The underlying bone found cut at site.

cut injury 7 x 1 cm x bone deep on the left temporal region, upper part of left external ear and left temporal bone found cut at site

7 x 2 cm x bone deep cut injury gaping on the left angle of mouth and cheek. The underlying muscles, vessels , nerves and mandible found cut

at site.

cut injury 3 x 1 cm x muscle deep, 2 x 1 x muscle deep; 4 x 1 x muscle deep; on below the other on the left side of chin and neck

4 x 2 cm x muscle deep 4 x 2 cm x muscle deep one below the other cut injury on the upper part of left side of chest

cut injury 3 x 2 cm x muscle deep on the left dorsum of hand close to the root of index finger

defence cut injury 5 x 2 x bone deep on the inner aspect of root of left index finger 2nd metacarpal bone found cut at site

cut injury 3 x 2 cm x bone deep on the root of left middle finger. The proximal phalanx of left middle finger found cut at site.

on dissection of thorax and abdomen: abdominal cavity contained 250 ml of fluid blood

on dissection of scalp: bruising 4 x 2 cm right frontal region

He opined that the deceased would appear to have died of heavy cut injuries in the region of neck and abdomen and the death would have

occurred about 17 to 19 hours prior to the post-mortem. He issued Ex.P.15 Post-mortem Certificate to that effect. He further opined to a

suggestion that Knives and Aruvals are enough to cause those injuries.

(x) P.W.12 Doctor Mani also conducted post-mortem on the dead body of deceased Sankar at about 3.45 p.m. On 12.08.1997 on the basis of

Ex.P.16 Request from the Inspector of Police, Perumalpuram and noticed the following ante-mortem injuries:

abrasions: 8 cm long linear abrasion on the lower part of left chest 6 x 3 cm outer aspect of upper part left leg.

multiple irregular gaping 27 x 6 cm x bone deep chop cut extending from left angle of mandible to the occipital region. The underlying muscle

vessels, nerves, the mandible and maxilla occipital bone found cut

gaping cut injury 11 x 3 cm x bone deep on the right side of neck. The underlying muscles, vessels and nerves and hyoid bone found cut

x 1 cm x muscle deep cut injury on the back of angle mandible on the right side

gaping cut injury 4 x 2 cm x muscle deep on the root right side of neck

chop cut injury 9 x 6 cm x bone deep on the right shoulder and upper part of right arm. The collar bone and humerus found cut on outer aspect

and upper part

7 x 3 cm x bone deep cut injury on the outer aspect of lower part of right arm. The underlying muscles vessels nerves and lower part of shaft of

humerus found cut at site

4 x 2 cm x muscle deep cut injury on outer aspect of lower part of back of right forearm

defence cut injury 11 x 2 cm x bone deep on the palmar aspect of right hand. It has cut the 5th metacarpal bone at site. Muscles, vessels and

nerves found cut at site

defence cut injury 5 x 3 cm x bone deep on the root of middle, right and little finger. The distal part of metacarpal 3rd , 4th and 5th found cut

at site. The muscles , vessels and nerves also found cut

gaping cut injury 10 x 4 cm x bone deep on the back of middle of right leg, the underlying muscles , vessels , nerves and bone viz., fibula found

cut at site

5 x 3 cm x bone deep cut injury on the outer aspect of lower third of left leg. The underlying fibula found cut at site, muscles, vessels , nerves

also found cut

5 x 2 cm x muscle deep cut injury on the outer aspect of middle of left thigh

cut injury 5 x 2 cm x bone deep outer aspect of upper part of left thigh. The neck of femur found cut at site. The muscles , vessels and nerves

also found cut

2 x 2 cm x muscle deep cut injury dorsum of left hand close to the roof of left index finger

cut injury 4 x 3 cm x muscle deep root of left thumb

gaping cut injury 9 x 4 cm x bone deep on the lower part of left forearm. The underlying muscles, vessels, ulna found cut at site

cut injury 3 x 3 cm x muscle deep on the outer aspect of left elbow

injury 4 x 3 cm x muscle deep on the back of lower part of left leg

on dissection of scalp: 6 x 3 cm bruising on left temporal region

on dissection of neck: cervical vertebra C2 found cut on the left side with surrounding bruising

He opined that the deceased would appear to have died of shock and hemorrhage due to heavy cut injuries to the region of head and neck and the

death would have occurred about 17 to 19 hours prior to post-mortem. He issued Ex.P.17 Post-mortem Certificate to that effect. He further

opined to a suggestion that Knives and Aruvals are enough to cause those injuries.

(xi) On 13.08.1997, he arrested Sahul Hameed, Samsudhin and Ibrahim and remanded them to judicial custody. Thereafter, as per the directions

of the Higher Police Official over wireless message, he handed over further investigation to the Investigating Officer from C.B.C.I.D.

(xii) P.W.2 and P.W.3 were admitted as inpatients in a private hospital for further treatment. P.W.15 Doctor Mohandoss, Susuroosa Hospital,

Nagercoil who treated the witnesses for the injuries sustained by them discharged them on 24.08.1997 and 31.08.1997 respectively. P.W.1 even

after his discharge taken treatment as out patient.

(xiii) P.W.35 the Deputy Superintendent of Police, C.B.C.I.D. who took up further investigation, on 25.08.1997 examined the witnesses; on

26.08.1997 took A12 and one Shahul Hameed under police custody and enquired them; on 27.08.1997 he took A11 under police custody and

examined him; 25.09.1997 he made arrangements for formal arrest and remand of the accused Mahibur Rahman and Ayubkhan who were already

remand in connection with Cr.No.233 of 1997; on 28.09.2997 he arrested A7 in the presence of P.W.6, recorded his voluntary confession;

pursuant to Ex.P.46 Admissible portion of the voluntary confession of A7 he recovered M.O.6 Blood stained aruval measuring about 52 cm under

the cover of M.O.34 Seizure Mahazar; he further recovered 7 other items at the instance of A7 under the cover of Ex.P.35 Seizure Mahazar; On

08.10.1997 he took accused Ayub khan under police custody and examined him; on 09.10.1997 he arrested A10 in the presence of P.W.5,

recorded his voluntary confession; pursuant to the Admissible portion of his confession statement, P.W.35 recovered one iron knife and a leather

knife cover under the cover of Ex.P.37 Seizure Mahazar; on 20.10.1997 P.W.35 arrested A5 in the presence of P.W.5; recorded his voluntary

confession and pursuant to Ex.P.38 Admissible portion of confession of A5, at about 3.30 p.m. he recovered 21 objects including M.O.24 Aruval

under the cover of Ex.P.39 Seizure Mahazar; further on the same day at about 4.30 p.m. He recovered M.O.23 Aruval measuring 43 cm under

the cover of Ex.P.40 Mahazar; P.W.35 subjected the accused to judicial remand and produced all thematerial objects in the Court.

(xiv) In continuation of his investigation, P.W.35 on coming to know that A3, A6 and A8 who were already in judicial custody in connection with

Cr.No.135 of 1998 of Tiruvaur Police Station, were produced before the Judicial Magistrate No. VI, Tirunelveli, he approached the Judicial

Magistrate and to took them under police custody and enquired them. He made arrangements to produced the witnesses Chekkammal and few

others before the Judicial Magistrate No. V, Tirunelveli for recording their statements u/s 164 of Cr.P.C. P.W.33 the Judicial Magistrate recorded

the statements of the witnesses u/s 164 of Cr.P.C. He also made arrangements to send the material objects for chemical examination through

Court and gave Ex.P.42 Request. The learned Judicial Magistrate in turn forwarded those material objects under Ex.P.43 Letter. Ex.P.44 is the

Chemical Report. Ex.P.45 is the Serology Report. P.W.35 after completion of his investigation laid final report against the accused u/s 120(B),

147, 148, 449, 452, 342 and 302 r/w 149, 427, 324, 326 and 34 of IPC.

The prosecution, in order to prove its case in S.C. No. 725 of 2001, examined 30 witnesses, marked 27 exhibits and produced 8 material

objects, 6 documents and in order to prove its other case in S.C. No. 726 of 2001, the prosecution examined 33 witnesses, marked 46

documents and produced 24 material objects.

When Accused were questioned u/s 313 of the Criminal Procedure Code as to the incriminating materials appearing against them, they denied

each and every incriminating material as false. On their side, they examined 4 witnesses and marked 6 documents in S.C.No.725 of 2001 and

examined 3 witnesses and marked 6 documents. However, after having considered both the oral and documentary evidence adduced, the learned

trial Judge had recorded his findings on each case separately and found respective accused viz., A1 to A6 and A8 in both the cases as referred to

above, convicted and sentenced them for the offence as stated earlier, but acquitted the rest of the accused from the charges set out in the earlier

part of this common judgment.

In the above circumstances, the present appeals are preferred by A1 to A6 and A8. The appellants in both the appeals were arrayed as A1 to

A6 and A8 respectively and all the three murders had taken place in furtherance of the common object. Even though two separate complaints

came to be in existence and initially two different police officers from the local police station took up investigation, subsequently, PW30 & P.W.35

the Dy. Superintendent of Police, C.B.C.I.D. respectively in Sessions Cases, took up investigation simultaneously in both the cases and laid charge

sheets and also considering the fact that arguments were advanced in common, we are proposed to deal with both the appeals in this common

judgment. For convenience, the respective appellants will be hereinafter referred to according to the array of accused before the trial Court in

common. Further, the persons viz., (1) Kannan, the deceased concerned in S.C.No.725 of 2001and (2) Shankar and (3) Dr. Selvakumar

concerned in S.C.No.726 of 2001 were hacked to death for which two different complaints have been lodged and for convenience and clarity, the

deceased persons in both the cases will be referred to as D1, D2 and D3 respectively.

Mr. N. Natarajan, learned Senior Counsel represented A1; Mr. K. Jagan Mohan, learned Counsel represented A2; Mr. S.T.K. Thirumalai

Raj, learned Senior Counsel represented A3 to A5; and Mr. V.S. Balakrishnan, learned Counsel represented A6 and A8 in both the appeals; and

Mr. V. Kasinathan, learned Additional Public Prosecutor represented on behalf of the respondent State in both the appeals.

10.1 Mr. N. Natarajan, learned Senior Counsel would attack the judgment of conviction and sentence on the following grounds:

The genesis of the FIR is doubtful. He would submit that insofar as accused in Criminal Appeal No. 420 of 2007 are concerned, Complaint

Ex.P.1, was lodged by none other than the brother of the deceased Kannan. He is spoken about the motive and he claims to have witnessed the

occurrence and also sustained injury. He had specifically implicated A1 to A6 and A8 but and nothing whispered about the presence of the other

accused. The charge sheet was laid in all against 13 accused in S.C. No. 725 of 2001. In his complaint, he has alleged specific overt acts only

against A1 and A2 for causing cut injuries on the deceased Kannan (D1) and implicated A5 for having thrown blood stained aruval on the body of

the deceased. He also claims that the other accused surrounded the shop, so that the deceased could not escape.

10.2. P.W.1 concerned in S.C.No.726 of 2001 by name Manikandan lodged Complaint Ex.P.1, which was in turn registered at 10.00 p.m. on

11.08.1997 and in the said complaint he implicates only A1 to A6 and A8. With regard to specific overt acts on the first deceased Sankar (D2) in

S.C. No. 726 of 2001, he implicates again only A1 and A2. Insofar as the injuries on D2 are concerned, he again implicates only A1 and A2 for

having cut the deceased. The above complaint was lodged immediately after the alleged occurrence and in their statement u/s 161 of Cr.P.C. they

have reiterated all that they have stated in their respective complaints. Strangely, when they were examined after lapse of 8 months from the date of

occurrence by the Investigating Officer from C.B.C.I.D. they have not only implicated all other accused but also stated that all the accused were

armed with deadly weapons like Aruval, Knives and sticks. The improvement made by them in their subsequent statement would falsify their

complaints said to have given to the police immediately after the occurrence.

10.3. The complaint as to the first occurrence that took place at about 9.00 a.m. on 11.08.1997 was registered at 10.00 p.m. and the other

complaint with regard to the second occurrence that took place immediately after the first occurrence, was registered at 10.30 p.m. and both the

complaints reached the jurisdictional criminal Court by 1.30 a.m. on 12.08.1997. Of course, the FIR is only a piece of information to the police to

set the law in motion and the delay in reaching the FIR in the Court by itself cannot be a sole ground to disbelieve the FIR. However, in the given

case, unexplained delay throws a serious doubt as to whether the FIRs were registered as projected by the complainants. He would also submit

that a careful perusal of both the Complaints that too given by two different individuals at different point of time and to different police officials

contained verbatim of the allegations regarding the involvement of A1 to A6 and A8 viz., possession of weapons and the injuries inflicted to the

deceased persons. He would also submit that the procedure adopted in taking cognizance of the complaints in this case is not known to law and

the same throws a serious doubt about the origin of the FIR itself. When the first occurrence was stated to have registered at 10.00 p.m. by one

police, the second complaint as to the subsequent occurrence was registered at later point of time in a separate crime number in the very same

police station unfortunately by a different police constable. Further, the investigation of the cases were taken up by two different police officers on

the matter involving chain of events. He would further submit that though it can also be called as procedural irregularity on the fact of the given

case, such irregularity assumes significance especially, when the genuineness of the FIR itself is questioned.

10.4. P.W.26, the Head Constable who recorded FIR in the first case speaks of maintenance of General Diary. It is his case that the FIR Serial

Number in respect of Crime Number 233 of 1997 was registered under Serial Number 279020. He has also admitted that the complaint as to the

second occurrence was registered in the immediate next Crime Number viz., Cr. No. 234 of 1997 under FIR Serial Number 279023. He has also

admitted that six sheets provided in the FIR book for registration of every crime for making copies. Admittedly in between the first crime and

second crime registered in the FIR book, there were 12 sheets set apart and there is no explanation, as to how the second complaint was

registered setting apart 12 sheets unfilled. He would also submit that he has entered the receipt of complaint in General Diary and duration of his

working time. He has also stated that he had entrusted the duty to the relieving Head Constable by name Mr.Vellaichamy (P.W.30 in S.C. No.

726 of 2001) who registered the second complaint. He would therefore, submit that in order to find out the fact that as to whether P.W.26 Head

Constable had made any entry as to the time of receipt of the first complaint; whether he had handed over the charge to the relieving Police Head

Constable (P.W.30 in S.C. No. 726 of 2001); whether the other Constable by name Mr. Vellaichamy had taken over charge from the relieved

police officer; whether he was in the police station; and whether he had registered the complaint as tot he second occurrence reported to have

taken place at 10.30 p.m. on 11.08.1997, the General Diary is vital. When an application was made in this regard, the Investigating Officer of the

local police station in both the cases had not only failed to produce but also, claimed that they had handed over the same to the Dy. Superintendent

of Police, C.B. C.I.D., and consequently, the General Diary has not been produced in the Court. Surprisingly, the Inspector of Police, C.B. C.I.D.

also claimed that he has not received General Diary from the Inspector of Police of local Police Station. He has also expressed his inability to

produce the General Diary in the Court. He would also submit that the investigating officers from the local police station in both the cases have also

not taken any steps to point out in the Court that such entries are available in the General Diary. Adding to that they have also claimed that the

General Diary is missing. The above throws serious doubt as to the very existence of the FIR. Therefore, an adverse inference could be drawn u/s

114(g)of the Indian Evidence Act.

10.5. He would also submit that though originally 7 accused were implicated in both the complaints, later on the complainants themselves, added

as many as 16 accused persons in their statement u/s 161 of the Code of Criminal Procedure before P.W.30 and P.W.35, the Dy. Superintendent

of of Police, C.B. C.I.D., respectively in Sessions Cases, after 6 months of the occurrence which were reached the court 8 months thereafter.

10.6. He would further submit that similarly all the eye witnesses had implicated only A1 to A6 and A8 before the Investigating officer from local

police station. After the investigation was transferred and taken over by the Deputy Superintendent of Police, C.B.C.I.D., strangely and uniformly,

they had implicated all the other accused in their statement u/s 161 of Cr.P.C. after 6 months of the occurrence. Therefore, the learned Senior

Counsel would submit that if the above circumstances are considered together, it would falsify the very origin and genesis of the FIR implicating the

accused and the truth will come to light that the witnesses have not only throw coloured version to the Investigating Officer as to the occurrence but

also in the Court.

11.1. Mr. K. Jegan Mohan, learned Counsel appearing for A2 in both the appeals adopted the arguments of Mr. N. Natarajan, learned Senior

Counsel. He would also cite a judgment of this Court reported in 2001 (1) L.W. (Cri.) 416 in support of his argument in regard to the challenge on

the Serial Number in the FIR Book.

Mr. S.T.K. Thirumalai Raj, learned Senior Counsel appearing for A3 to A5 in both the appeals would advance his argument on the very same

line as Mr. N. Natarajan, learned Senior Counsel argued. He would further add that going by the entire case of the prosecution, the eye-witnesses

could not all have been present in the scene of crime and they have been made to depose falsely implicating the accused. Insofar as first complaint

is concerned, first informant is none other than the brother of D1 and as regards second complaint also, the first informant is none of than the

brother of D2. When the occurrence alleged to have taken place in the public street having number of shops, no other independent witnesses were

examined to speak about the alleged involvement of the accused. P.W.2 and P.W.3 though claims that they witnessed the occurrence, during the

course of their cross examination they would say that they were hiding when the occurrence had taken place. Therefore, they cannot believed and

the evidence that injured witnesses had gone to the Government Hospital, Nagercoil throwing a serious doubt as to whether they had sustained

injuries in the manner and time as stated by them. He would also submit that on the same set of evidence, when the trial Court disbelieved the

evidence of the prosecution witnesses and acquitted them from all the charges, it had committed committed grave error in believing the very same

evidence in respect of the rest of other accused and convicting them for the offence of murder among other offences.

12.1 He would further submit that when the witnesses examined to prove the motive in both the cases were disbelieved, the very foundation of the

prosecution alleging motive for the accused to commit the murder is shattered. Further, when the extra judicial confession said to have given by the

accused and the consequent recoveries of material objects were disbelieved; the alleged eye witnesses P.Ws.17 and 20 turned hostile; P.Ws.12

and 13 are only hearsay witnesses; and P.Ws.13 and 14 examined in the second case to establish that the accused had purchased the weapons at

Courtalam were disbelieved, the trial court had committed grave injustice in convicting the accused solely on the basis of the complaints and the

evidence of P.Ws. 1 and 3 before the Court especially when there were lot of discrepancies between the complaint and their evidence and

considerable improvements were also made in the Court.

13.1. Mr. V.S. Balakrishnan, learned Counsel appearing for A6 and A8 in addition to the above submissions, placed reliance on the judgment

reported in 1980 SCC (Cri.) 985 for the proposition of fabrication of FIR and inordinate delay in FIR reaching the Court and the 1975 SCC

(Cri.) 742 for the proposition that when the substratum of the prosecution case itself is false, the conviction cannot be sustained. He would further

submit that between the investigation by the local police and the C.B. C.I.D. there are lot of discrepancies. Quantitatively, in the complaint,

originally 7 accused were implicated and later on, when the investigation was taken over by the Dy. Superintendent of Police, C.B.C.I.D. the

number of accused was boosted to 16. Similarly, before the local police 3 aruvals were alone mentioned and it was increased to 16 before the

C.B.C.I.D. viz., 6 aruvals; 4 knives; and 6 sticks. Further, before the local police there were 3 overt acts alone attributed against the accused,

whereas before the C.B.C.I.D. overt acts were increased as against 8 accused. Such a grave variations and improvements would certainly show

that there was no fair investigation. Qualitatively, before the local police it was alleged that only A1, A2 and A5 had entered into the premises and

others guarded the premises, whereas before the C.B.C.I.D. it was stated that 10 accused entered into the premises and the rest of others guarded

the premises. It would show that the investigating officer might have made the above improvements only in order to distribute the injuries on the

deceased among all the accused. Therefore, he would submit that the investigation was not properly and effectively carried on by the prosecution

to find out the actual assailants and the innocent persons viz., the appellants had been falsely implicated, only to have the early disposal of the

investigation.

14.1. Mr. V. Kasinathan, learned Additional Public Prosecutor would on the other hand submit that though the occurrences had taken place in a

short span of 15 minutes in the same locality, two separate complaints by two different informants were lodged to the two different police

constables, who were in charge of the police station at different points of time. Hence, two FIRs came to be registered and at the directions of the

Deputy Superintendent of Police, those complaints were investigated by two different Investigating Officers. The investigation taken over by the

two different police officers into two separate complaints with regard to the occurrences that took place with a short span of 15 minutes, one

followed by another, wherein the accused are one and the same and the places of occurrence are adjacent, may utmost be termed as irregularity,

which would not in any way affect the case of the prosecution.

14.2. Insofar as left over portion of two Sl. Nos. 279021 and 27902 in the FIR Book in between registration of two crimes viz., Cr. Nos. 233

and 234 of 1997 on the file of Melapalayam Police Station is concerned, it was a mistake committed by the Head Constable P.W.30 in the

second case who registered the subsequent case, due to oversight. Here again, it may utmost be termed as procedural irregularity, which cannot be

a ground to doubt the very prosecution case itself.

14.3 As regards the eye witnesses are concerned, the learned Additional Public Prosecutor would submit that P.Ws.1 to 3 have spoken cogently

and consistently as to the involvements of the accused in both the occurrences. There is nothing to show that their evidence should be discarded or

disbelieved. The investigation in the case concerned in Cr.Nos.233 and 234 of 2007 of Melapalayam Police Station, the investigation were initially

carried on by the Inspectors of Police, Melapalayam and Perumalpuram viz., P.W.29 in the first case and P.W.34 in the second case respectively

and subsequently at the directions of the Superior Police Officer, both the cases were transferred to C.B.C.I.D. Tirunelveli and accordingly,

investigation was taken over by the Deputy Superintendent of Police, Tirunelveli who has been examined as P.W.30 in the first case and P.W.35 in

the second case. All the investigating officers have deposed the implication of all the accused for the commission of the offence. The discrepancies

between the statements of the eye-witnesses before the Investigating Officers of the local police station and the C.B.C.I.D. cannot at any stretch of

imagination be considered as improvement in their case. The Court in such circumstances could convict the accused on the basis of the earlier

consistent statements of the witnesses ignoring the subsequent improvements. He would also submit that except P.W.1 in both the cases, all other

eye-witnesses viz., P.Ws.2, 3, 4 and 7 in the second case are independent witnesses. Insofar as the specific overt acts are concerned, P.Ws.1 to 4

have spoken about the overt acts on D2 and P.Ws.7 and 10 have spoken about the injuries implicating the accused with specific overt acts on D2.

P.Ws.2 and 3 are in fact injured eye-witnesses. Exs.P17 and 15 respectively would show as many as 17 cut injuries on the body of the deceased.

He would further submit that it is a pre-planned brutal murders, wherein three persons were done to death cruelly at two different places in the

very same vicinity. Therefore, the trial court was right in convicting all the accused and the findings of the trial may not require any interference by

this Court.

We have carefully considered the rival submissions.

16.1. Before we delve upon the challenge as to the conviction and sentence, at the outset, it may be stated that the State had proceeded to

prosecute the Appellants/A1 to A6 and A8 on the ground that the deceased are sympathizers of R.S.S. and the accused belonging to Muslim

Youth Sangam having close connection with one of the banned organizations called ""Al-umma"". Therefore, the accused had conspired together

and committed murder of 3 persons.

16.2. As far as the motive is concerned, the trial Court itself had disbelieved the prosecution case. In this context, the evidence of P.Ws.7 and 9 in

respect of the first occurrence and P.Ws.13 and 14 in respect of the second occurrence for purchasing of aruvals and knives by the accused from

Courtalam were disbelieved.

16.3. The case of the prosecution as to the conspiracy, the trial Court discarded the evidence of P.Ws.5 and 6 in respect of the first occurrence

and P.Ws.8 and 9 in respect of the second occurrence.

16.4. One more circumstance relied upon by the prosecution was extra judicial confession of A7-Kalilur Rahaman. P.Ws.12 and 13 have spoken

about the extra judicial confession said to have given by A7 in respect of the first occurrence and the trial Court discarded the extra judicial

confession of A7. A7 in fact got acquitted by the trial Court from all the charges by giving benefit of doubt.

16.5. As regards, the commission of offence, the prosecution has come forward with the case that the accused had purchased weapons viz.,

aruvals and knives from Courtalam. In this regard, the prosecution examined witnesses to speak about the purchase of deadly weapons by the

accused persons. Insofar the evidence as to the purchase of materials objects viz., 6 aruvals and four knives by the accused from Courtalam and

the consequent recovery at the instance of the accused were also disbelieved by the trial Court.

16.6. It must also be referred to that P.Ws.17 and 20 in the first case, who were examined to speak about the first occurrence and P.Ws.21 to 25

in the second case, who were examined to speak about the second occurrence were treated hostile. P.Ws.12 and 13 in the first case, who were

examined as witnesses to speak about the first occurrence are only hear-say witnesses of the first occurrence. Similarly, P.Ws.26 to 29 in the

second case, who were examined to speak about the second occurrence are also hearsay witnesses.

16.7. Having found that motive, conspiracy, purchasing of aruvals and knvies, extra judicial confession said to have given by A7 and the recovery

pursuant to the confession of the accused not proved by the prosecution, the trial Court had proceeded to convict the accused solely on the basis

of the evidence of eye-witnesses coupled with medical evidence.

On the above back-drop of the factual position, the rival contentions should be carefully and cautiously examined to find out whether the

prosecution has established its case beyond all reasonable doubt solely on the basis of evidence of eye-witnesses coupled with medical evidence.

18.1. The first and foremost attack on the prosecution case is that the FIRs in both the cases are doubtful. The first occurrence took place at 9.00

p.m. on 11.08.1997, complaint was lodged at 9.30 p.m. and the same was registered at 10.00 a.m. By the time the FIR came to be registered, the

second occurrence in the same locality of course and within 1 furlong of distance took place at 9.15 p.m. The complaint in respect of the second

occurrence was given and the same was registered at 10.30 p.m. in the same police station. The first complaint was given by one Muthukrishnan

P.W.1 and the same was registered by one Sudalaikannu, P.W.26 the Head constable attached to Melapalayam Police Station. The second

complaint was given by one Manikandan P.W.1 and the same was registered by one Vellaichamy P.W.30 in the second case on the file of the

very same police station. When these two occurrences had taken place at two different points of time and at different places, in the absence of any

reference about the second occurrence at the time of lodging complaint as to the first occurrence by P.W.1, it must be inferred that he might have

not been aware of the second occurrence. Nevertheless, a perusal of both the complaints would show verbatim reproduction of contents in respect

of array of the accused, possession of the weapons at the hands of the accused and the specific overt acts attributed to the accused and also the

manner in which A1, A2 and A5 allegedly entered into the premises and other accused guarded the premises. In between registration of two

complaints in respect of first occurrence by P.W.26 Head Constable in the first case at 10.00 and second occurrence by P.W.30 Head Constable

in the second case at 10.30 p.m. on 11.08.1997, there was a short gap of 30 minutes. Of course, the prosecution has made fervent attempt to

explain that the complaints were registered by two different police constables of the same police station by placing reliance upon the General Diary

maintained in the usual course transaction in the police station. While P.W.26 in the first case speaks about the entry in respect of taking charge of

duty, remaining in duty in the police station till 10.00 p.m. and handing over charge to the relieving police constable by name Mr. Vellaichamy

P.W.30 in the second case, it is pertinent to note that even when a petition was filed for production of General Diary, the same was not produced.

The evidence of P.W.30 in the second case is that he had entered the time when he had assumed the charge of the police station at 10.00 p.m. and

he registered the complaint in respect of the second occurrence. The First Information Reports are attacked on the ground that they are fabricated

and doubtful. While such an attack is made on the FIRs, it would only be appropriate for the Court to ascertain as to whether such entries were in

fact made in the General Diary and the production of the General Diary alone may establish the presence of both P.W.26 in the first case and

P.W.30 in the second case in the police station at the relevant point of time when they allegedly recorded the respective complaints separately as

put forth by the prosecution.

18.2. In Kalpnath Rai Vs. State (through CBI), , the Apex Court while dealing with the production of General Diary in para 92, has observed thus:

No doubt daily diary is a document which is in constant use in police station. But no prosecution is expected to produce such diaries as a matter of

course in every prosecution case for supporting the police version. If such diaries are to be produced by prosecution as a matter of course in every

case, the function of the police station would be greatly impaired. It is neither desirable nor feasible for the prosecution to produce such diaries in

all cases. Of course it is open to the defence to move the court for getting down such diaries if the defence wants to make use of it.

Though the prosecution cannot be expected to produce such diaries in all cases and it is neither desirable nor feasible for the prosecution to

produce the same, nevertheless, the Apex Court had observed that it is always open to the defence to move the court for production such diaries if

the defence wants to make use of it.

18.3. In Shamshul Kanwar Vs. State of U.P., , the Apex Court has observed that entries in the police diaries neither substantive nor corroborating

evidence and the same cannot be used by or against any other witness than police officer and can only be used to the limited extent to cross

examine the police officer.

Again in the said judgment in the light of Section 172 of the Code of Criminal Procedure, 1872, it has been held by the Apex Court that the

accused gets right to cross examine the police officer with reference to entries in case diary subject to the limitations of Sections 145 and 161 of

the Indian Evidence Act, 1872.

18.4. In Sevi and Another Vs. State of Tamil Nadu and Another, , the Apex Court has held as follows:

According to the suggestion of defence the original first information report which was registered was something altogether different from what has

now been put forward as the first information report and that the present report is one which has been substituted in the place of another which

was destroyed. To substantive their suggestion the defence requested the Sessions Judge to direct the Sub Inspector of Police to produce the first

information report book in the court so that the counterfoils might be examined. The Sub Inspector was unable to produce the relevant FIR book

in Court notwithstanding the directions of the court. The FIR book, if produced, would have contained the necessary counterfoils corresponding to

the FIR produced in court. The Sub Inspector of Police when questioned sated that he searched for the counterfoil book but was unable to find it,

an explanation which we find impossible to accept. We cannot imagine how any FIR book can disappear from a police station. Though, he

claimed that relevant entries had been made in the general diary at the station the Sub Inspector did not also produce the general diary in Court.

The production of the general diary would have certainly dispelled suspicion. In the circumstances we think that there is great force in the

submission of the learned Counsel for the accused that the original FIR has been suppressed and, in its place some other document has been

substituted. If that is so, the entire prosecution case becomes suspect. All the eye-witnesses are partisan witnesses and notwithstanding the fact that

four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case.

18.5. In Khatri and Others Vs. State of Bihar and Others, , again the Apex Court has held that the diary used by the police officer can be used in

criminal court for the purpose of contradicting such police officer in the enquiry or trial as accused would be entitled to see the particular entry in

the case diary, which has been referred to and if in the opinion of the Court production of diary is necessary to a full understanding of the particular

entry so used.

18.6. A careful analyze of the above judgment would go to show that though the Case Diary/Daily Diary/General Diary is not substantive evidence

nevertheless, in the event accused seeks to contradict the evidence of a police officer, certainly, he would be entitled to call for such Diary to be

produced before the Court. Adducing evidence in support of defence is a valuable right. The denial of that right amounts to denial of a fair trial.

18.7. In the given facts and circumstances of the case, the very registration of the FIRs in both the cases by P.W.26 in the first case and P.W.30 in

the second case are questioned on the ground that the FIRs are fabrication. Therefore, a serious doubt would arise about the manner in which both

the complaints were given and recorded in verbatim. In order to show that the above two police constables were in duty at the respective points of

time in the police station when the two complaints have been registered separately, the production of General Diary assumes much importance.

Though the prosecution is not bound to produce such General Diary in every case, in the present case even when the production of such Diaries

are sought for, the failure on the part of the prosecution to produce the General Diary throws a serious doubt over the very presence of both the

police constables who alleged to have recorded the FIRs in respect of both occurrence but at two different points of time. When an application for

production of case diary was filed, strangely, the Investigating Officers of Melapalayam and Perumal Puram claimed that they have not even

enquired about the existence of the General Diary till such time the investigation was transferred to the C.B.C.I.D. and they have pleaded

ignorance of the presence of the General Diary in the police station. What is more strange is that such General Diary was not even handed over to

the Investigating Officer from C.B.C.I.D. when the investigation was transferred and consequently, the Investigating Officer from C.B.C.I.D. had

also informed the Court that he was not in possession of such General Diary. In our considered opinion on the facts and circumstances of the case,

non production of the General Diary throws a very serious doubt as to the presence of both the Head Constable who claimed to have registered

the FIRs. The Court can reasonably draw an adverse inference as to the non production of the General Diary in favour of the defence and against

the prosecution in terms of Section 114(g) of the Indian Evidence Act, 1872 which reads as under:

Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened,

regard being had to the common course of natural events, human conduct and public and private business, in their relation to the fact of the

particular case illustrations

The Court may presume-

...

(g) That evidence which could and is not produced would, if produced, be unfavorable to him;

18.7. There is yet another aspect to doubt the very complaints themselves. It is an admitted case of P.W.26 in the first case and P.W.30 in the

second case that the first complaint was registered in Cr. No. 233 of 1997 under Sl. No. 279020 of FIR Book. It is also admitted case of the

prosecution that six sheets provided with the same serial numbers for getting original and five copies of First Information Reports on every crime

registered in the FIR Book and if one crime is registered under a particular serial number, the next immediate crime would be registered under the

next serial number. In the case on hand, the second complaint concerned in Cr. No. 234 of 1997 was registered under Sl. No. 279023 and in

between Sl. No. 279020 and 279023, there are twelve sheets left over unfilled and admittedly there was no crime registered in between the two

complaints in the case on hand. There is no explanation on the part of the prosecution, as to why those sheets were left over unfilled. When the

matter of registration of First Information Reports came up for consideration before the Division Bench of Principal Seat in P. Jothi and Ors. v.

State by Inspector of Police, Othakadai Police Station, Madurai, Madurai District 2002 1 L.W. (Cri) 416 in para 12, 13 and 14 of the judgment

in similar circumstances FIR was doubted and consequently the prosecution case itself was doubted. It is also evident from the evidence of D.W.1

in the first case who speaks about the provisions of 6 sheets in between one serial number and another serial number in the FIR Book.

19.1. Hence, we hold that the First Information Reports are doubtful on the following reasons:

Both the FIRs reached the Court at 1.30 a.m. on 12.08.1997 with a delay of 3 hours and the distance between the police station and the

residence of the Judicial Magistrate was hardly 4 kilo meter. We hasten to add that the delay in FIR reaching the Magistrate by itself cannot be a

ground to doubt the case of the prosecution, nevertheless, on the given facts and circumstances in the present case, when both the complainants

claimed that they have lodged the complaint immediately after the occurrence and the complaints were registered at 10.00 p.m. and 10.30 p.m.

respectively on 11.08.1997 and the residence of the Judicial Magistrate is situated just within 4 kilo meter from the police station, the FIRs in the

murder cases that too involving triple murders with a very strong motive behind it, the delay of 3 hours in FIR reaching the Judicial Magistrate

further adds to the doubt entertained by this Court as to the FIR on the other grounds.

19.2. Even on merits, we have doubts over the very complaints themselves. In the first case, the complaint was registered at 10.00 p.m. and in the

second case, the complaint was registered at 10.30 p.m. on 11.08.1997. The first occurrence took place at 9.00 p.m. and the second occurrence

took place at 9.10 p.m. It is the case of the prosecution that by the time when P.W.1 in the first case lodged the complaint in respect of first

occurrence, he was ignorant of the second occurrence like wise, when P.W.1 in the second case lodged the complaint in respect of second

occurrence, he was not aware of the first occurrence. Nevertheless, a casual perusal of both the complaints look like parrot version not only in

implicating all the accused attributing specific overt acts, mentioning the manner in which the occurrence took place viz., attributing overt acts to

A1, A2 and A5 for causing injuries on the deceased and other accused guarding the premises and possession of deadly weapons by the accused.

When the complaint in the first case do not know about the second occurrence and the complainant in the second was not having any knowledge

about the first occurrence, how could speak they about the manner in which the occurrence took place as that of each other.

19.3 We have a further reason to doubt the FIR when both the complainants lodged the complaints immediately after the occurrences, they had

implicated only A1 to A9 particularly, A1 and A2 for having possessed deadly weapons and others for having formed themselves into an unlawful

assembly. Astonishingly, after the investigation was taken up by C.B.C.I.D., the very same witnesses in their statements u/s 161 of Cr.P.C. had

implicated totally 16 accused. The implication of the accused was not only increased quantitatively but also their statements were qualitatively at

variance and considerable improvements were made in their statements before the C.B.C.I.D. Before the local police, both the complainants have

stated that the accused were found armed with 3 aruvals only, whereas before the C.B.C.I.D. Police in their statements u/s 161 of Cr.P.C. they

had stated that all the 16 accused were armed with deadly weapons. They could also say that 6 aruvals, 4 knives and 6 sticks. As far as the overt

acts are concerned, in their first statement before the local police, they had implicated only A1 and A2 for cutting the deceased and A5 for

throwing aruval on the deceased after he fell down and attributed 3 specific overt acts, whereas strangely when they had given statements u/s 161

of Cr.P.C. before the Dy. Superintendent of Police, C.B.C.I.D. they had implicated totally 8 accused for causing injuries on each of the deceased.

In their earlier statement they had stated A1, A2 and A5 went inside and the rest others guarded the premises, whereas before the C.B.C.I.D.

Police, they had stated that 10 accused went inside and others guarded the premises. The improvements made by the eye-witnesses before the

subsequent Investigating Officer from C.B.C.I.D. also throws a serious doubt as to the credibility of their evidevce before the Court and casts a

doubt whether they could have given the complaint implicating the real accused in the manner and time as projected by the prosecution.

19.4. It has been argued by the learned Additional Public Prosecutor that even when there are contradictions in the statements of the respective

eye-witnesses, the subsequent contradictions made by way of improvements could be separated and the first statement could safely be relied

upon. Of course, the courts should keep in mind the principle of chopping of grain and separating chaff from the grain instead of rejecting the entire

case of the prosecution on the ground of improvements made in the Court and find out the truth to the extent possible when the witness makes

improvements, while deposing before the Court as against the implication of the accused in the statement u/s 161 of Cr.P.C. before the police. In

our considered view that principle may not be applicable to the present case and when there are lot of contradictions of vital importance, resulting

in improvement of the case between two statements of the same witnesses before two different Investigating Officers u/s 161 of Cr.P.C.

19.5. In S. Sudershan Reddy and Ors. v. State of A.P. (2006) 10 Supreme Court Cases 613, the Apex Court has held that it is the duty of the

Court to separate grain from the chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused

notwithstanding the fact that evidence of some of the witnesses has been found to be deficient.

19.6. The maxim ""Falsus in uno falsus in omnibus"" which means, false in one thing, false in all may not be applicable to the criminal jurisprudence.

When there are material contradictions in the statements of the witnesses, the same false the truthfulness of their statement and the credibility of

their evidence would cast a doubt. This is more so when the accused would be entitled to contradict their statements made before the investigating

officer at the time of cross examination in the course of trial. The improvements made before subsequent investigating officer from C.B.C.I.D. is

not minimal and the improvements are to the extent both quantitatively and qualitatively. In our considered opinion, it would be highly unsafe to rely

upon the complaints, FIRs and consequently the evidence of the eye-witnesses.

19.7. In Bhagirath v. State of Madhya Pradesh 1975 SCC (Cri) 742, the Apex Court while considering the reconstruction of the prosecution case

has observed as under:

The prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take the advantage of the

weakness of the defence. Nor can the Court, on its own, make out a case for the prosecution and convict the accused on that basis.

When the substratum of the evidence given by the eye-witnesses examined by the prosecution was found to be false, the only prudent course, in

the circumstances, left to the Court was to throw out the prosecution in its entirety against all the accused.

19.8. In Mohar Rai and Bharath Rai Vs. The State of Bihar, , the Apex Court has held that if the prosecution had suppressed the genesis and the

origin of the occurrence and has not presented true version of the occurrence, conviction on the basis of such prosecution is not safe.

19.9. We hasten to add one more aspect in respect of the statements recorded u/s 161 of Cr.P.C. After the investigation was handed over in the

first case on 25.08.1997 and in the second case on 11.07.1997 respectively, the statements of the witnesses u/s 161 of Cr.P.C. were recorded

nearly after 3 1/2 months of the occurrence and in between the period, none of the witnesses have implicated A10 to A16. These statements were

admittedly sent to the Court on 14.10.1998 nearly after lapse one year from the date of recording along with the charge sheet.

19.10. In Balakrushna Swain v. State of Orissa 1971 SCC (Cri.) 313, while considering the delay in examining the witnesses by the investigating

officer, the Apex Court has held that in the event there was no justifiable reason for the investigating officer, the failure to examine the witnesses for

a number of days, reliance cannot be placed on such evidence and consequently the accused are entitled to the benefit of doubt.

19.11. In the given case, a careful scrutiny of the statements given by the eye witnesses to the Investigating Officers who took up investigation in

the respective cases and the statements of the very same witnesses before the Investigating Officer from C.B.C.I.D. after the investigation was

transferred to the C.B.I.D. would go a long way to show that the witnesses are modulating their statement not only before the Court but also

before the Investigating Officers themselves. It is seen from their earlier statement that they had implicated A1 and A2 alone for causing cut injuries

and the specific overt acts also attributed by them to the accused but not corresponding to as many as 16 injuries on each of the deceased,

whereas in their subsequent given before the C.B.C.I.D. which were after the autopsy were conducted on 12.08.1997, only in order to

corroborate the medical evidence as to the injuries on the dead bodies, such improvements were made and the corresponding modulations in their

statements to suit the medical evidence. This would only lead to a conclusion that the witnesses are untrustworthy and they have not come with true

version of the occurrence and the implication of the accused are also false.

The above discussion would undoubtedly show that the prosecution has not come with true version of the case and the witnesses were also

found to be untrustworthy and their evidence lack credibility and confidence of the Court.

Added to this, the evidence of the complaints and the other eye-witnesses are attacked on the ground that they are partisan and interested

witnesses. Normally, the Court would not let go the real culprits free, though the possibility of roping in some more enemies cannot be ruled out

and if the foundation of the false implication is laid, the Court should carefully analyze the evidence and must scan the evidence with great care and

caution. The first and foremost requirement for the Court in such circumstances is to carefully scrutinize the evidence available on record and

found, is there any false implication. The evidence before the being ascribes to be trustworthy or capable of creating confidence, the Court should

consider the same upon proper scrutiny. Keeping the above principle of law in mind, we have carefully scrutinized the entire evidence particularly,

the evidence of the complainants in both the cases. Upon perusal of the same, we are of the considered view that the witneses had not implicated

the real culprits or probably they were ignorant of the actual assailants, as they had taken an extreme stand of implicating as many as 16 accused

contradictory to their earlier statements wherein they had implicated only 8 accused at the first instance.

We are therefore in agreement of the contention put forth by the learned senior Counsel and the Counsel for the respective appellants that the

FIRs themselves are doubtful and even on merits the prosecution has not proved the motive, conspiracy, purchase of aruvals and knives by the

accused, extra judicial confession statement said to have given by A7, recoveries made pursuant to the confession of the accused. As we have

already discussed supra, even the evidence of the eye-witnesses in both the cases cannot be believed and therefore such benefit of doubt should

be given to the accused.

We are conscious of the facts of the case that two occurrences took place wherein three persons were done to death cruelly, nevertheless, the

criminal jurisprudence in India portrays only innocence of the accused till such time the charges are proved beyond reasonable doubt. Right from

the inception of judicial system, it has been accepted that discovery and establishment of truth are the main purposes underlying the existence of

Court of Justice. Even if two possible views are possible one pointing to the guilt of the accused and the other pointing to his innocence, the view

which is favourable to the accused should be adopted. Even on facts, we do not find any such two different views can be taken in this case. We

must record our total disapproval and consequently dissatisfaction over the way in which the investigations were conducted in both the cases which

are very serious in nature, wherein lives of three persons were taken off by the assailants and the prosecution has miserably failed to prove as to

whether FIRs were registered in the police station. The investigating officers from the local police station have not even cared to preserve the

General Diary when triple brutal murder was reported, which in the normal course as per Police Standing Orders would be preserved for one

year. Only due to the total lapses on the part of the investigating officers from the local police station, the investigation in both the cases were

transferred to C.B.C.I.D. and even when the C.B.C.I.D. had taken charge of the investigation, different story of implicating as many as 16 accused

with specific overt acts and variance of numbers of weapons were put forth. Had the investigation been conducted with strict diligence and utmost

care and caution with little devotion, the prosecution could have brought the real accused before the court of law to receive the due punishment

and only because of lethargy and dereliction in the duty of the investigating officers a case of triple murder goes without culprits punished by the

court.

For all the reasons discussed, we have no other option except to accept the case of the appellants and consequently acquit all the accused on

the grounds answered above by giving benefit of doubt in favour of the accused.

In fine, both the Criminal Appeals are allowed and the judgment of conviction and sentence dated 25.07.2007 recorded against the

Appellants/A-1 to A-6 and A8 in Sessions Case Nos. 725 and 726 of 2001 respectively on the file of Additional Sessions Judge, Fast Track

Court No. I, Tirunelveli are set aside. The Appellants/A-1 to A-6 and A-8 are acquitted of all the charges leveled against them in both the cases.

They Appellants/A-1 to A-6 and A8 who are confined in prison are ordered to be set at liberty, if their custody is otherwise not required in

accordance with any other law.

ADVANCE ORDER

D. Murugesan and M. Sathyanarayanan, JJ.—Both the Criminal Appeals are allowed and the judgment of conviction and sentence dated

25.07.2007 recorded against the Appellants/A-1 to A-6 and A8 in Sessions Case Nos. 725 and 726 of 2001 respectively on the file of

Additional Sessions Judge, Fast Track Court No. I, Tirunelveli are set aside.

The Appellants/A-1 to A-6 and A-8 are acquitted of all the charges leveled against them in both the cases. Appellants/A-1 to A-6 and A8 who

are confined in prison are ordered to be set at liberty, unless their custody is required otherwise in accordance with any other law.