Velmurugan, Thirumavalavan and Kannan vs State

S. Ashok Kumar, J.—This is a petition for grant Anticipatory Bail. The gist of the petition is as follows:-

The petitioners apprehend arrest by the respondent Police for an alleged offence u/s 147, 148, 448, 120(B) and 302 IPC. The occurrence is said

to have taken place on 22.8.2004 at about 21.45 hrs. The first petitioner is a sitting MLA and other two petitioners are his brothers. According to

the prosecution case the petitioners and five others are said to have gone to the house of the deceased the first petitioner asked the complainant

Saraswathi about her husband, deceased Venkatesan and at that time Venkatesan jumped from the upstairs and ran away to one Shanthi''s house

for shelter, the petitioners chased him and attacked him all over his body with deadly weapons and the deceased died on the spot. The petitioners

submit that they are in no way connected with the alleged offence and the case has been politically foisted against the petitioners. ON 22.8.2004 at

about 7.30 pm., to 10.00 pm., the first petitioner participated in the District Level Volley Ball Tournament held at Kolakkudi Village and also he

distributed the prize to the Teams and the respondent Police also are well aware of these official programme which was already intimated to them.

Hence after thorough enquiry the respondent knows that these petitioners were not involved in this case. But the present Superintendent of Police

changed the earlier Investigating Officer and appointed one Sundaravadivelu, Inspector of Police as a Special Investigation Officer in this case and

they trespassed into the petitioners'' house and damaged the household articles and took away Rs. 11,500/= cash in the name of investigation.

About this incident, a complaint was filed by the petitioners'' father before the Human Rights Commission on 6.10.2004 and the State Human

Rights Commission issued a notice to them. Further, the private Human Rights Organization called ""People Watch"" went to the house of the

petitioners and enquired the petitioners'' father and other villagers about the atrocity committed by the Police. At that time, the Superintendent of

Police and the respondent Police arrested the members of the said People Watch Organization. According to the petitioners it is purely a politically

foisted case and the petitioners will abide by any conditions imposed by this court and also they will produce sufficient sureties for their release.

The Investigating Officer Mr. Sundaravadivel has filed a counter affidavit, the gist of which is as follows:-

One Venkatesan who was then a PMK District Panchayat Councilor was alleged to have cross voted to the AIADMK candidate in the District

Panchayat Chairman by-election in which the AIADMK candidate was elected as the Chairman. Keeping this in mind the petitioners along with

other accused demanded Rs. 3 lakhs from the said Venkatesan to pardon him for the mistake committed by him. This demand was turned down

by Venkatesan and his family members. Hence the petitioners and other accused not able to digest the attitude of the said Venkatesan went to the

house of the said Venkatesan on 22.8.2004 at about 21.45 hrs and formed into an unlawful assembly with deadly weapons viz., Veechu Aruval,

iron pipes and Wooden logs went came to the house of Venkatesan and questioned his wife as to the whereabouts of Venkatesan and at the time

when the wife was answering them Venkatesan was pushed by the petitioners and other accused. Venkatesan was chased till he ran inside the

house of one Shanthi of the adjoining street for shelter and murdered.

One Srinivasan, S/o.Murugesan who was the Organiser of the function has stated that the District Level Volley Ball Tournament held at

Karaikudi Village on 22.8.2004 was a day light match which ended as early as at 6.30 p.m., on that day and further the prize distribution of the

said match was also completed by 7.00 p.m., and thus the first petitioner had his dinner by 7.30 pm., and later the first petitioner left to his

residence situated at Panruti by 8.00 p.m., The second and third petitioners did not participate in the said function. The distance between the place

where the tournament was held and place of occurrence is about 25 kilometers. The petitioner has purposely created an alibi to escape from the

clutches of law.

Thiru Sundaravadivel was appointed as Special Investigation Officer by the then Superintendent of Police of Cuddalore District by order dated

24.8.2004, he took charge on 25.8.2004, and hence the allegation of the petitioners are denied. The allegation that the Inspector of Police

damaged the household articles and took away Rs. 11,500/= in the name of investigation is false and it is denied. With regard to the petition sent to

Human Rights Commission, a detailed report was sent to the said Commission by the Investigation Officer through Superintendent of Police. The

accused were arrested on 25.8.2004 and two more accused surrendered before the Judicial Magistrate No. 1, Vridhachalam on 3.9.2004. The

deadly weapons which were used in the said occurrence were recovered and also the TATA Sumo vehicle bearing Registration No: TN W 7272

was seized from the surrendered accused and sent to the concerned court. During the course of investigation it came to light that one another

vehicle which was involved in the commission of offence is yet to be seized from the first petitioner and further the involvement of some more

accused persons would come to light if the petitioners are arrested and interrogated. The second petitioner who is the elder brother of the first and

third petitioners is a life convict in Kullanchavadi Police Station Cr. No. 390/94 under Sections 147, 148, 341 and 302 IPC and he was released

on bail by this court. The investigation is at its crucial stage and at this juncture if the petitioners are released on Anticipatory Bail, great prejudice

would be caused to the prosecuting agency to conduct further investigation. The involvement of the petitioners in the crime is clearly established by

the statements of the wife, mother and two minor daughters of the deceased. The two children have specifically deposed even the dress worn by

the petitioners at the time of commission of the offence in their statements recorded under 164 Cr.P.C., by the learned Judicial Magistrate No. 1,

Cuddalore. Number of independent witnesses have deposed about the involvement of the petitioners in the offence. The deceased was brutally

murdered by the petitioners along with the other accused due to political vendetta. If the petitioners are released on Anticipatory Bail, they will

tamper with the entire evidence. The petitioners 1 and 2 are involved in Cr. No. 1730 of 1999 u/s 147, 148, 452, 440, 324 read with 109 IPC on

the file of R.1 Mambalam Police Station and the same is pending trial in C.C. No. 1573 of 2001. The third respondent is also involved in two

criminal cases on the file of the respondent police station.

The learned senior counsel for the petitioners has filed seven affidavits sworn by, P.Santhoshkumar, K.Iyappan, G.Jsgan, D.Anbalagan,

N.D.Mohan, M.Srinivasan, Organiser of the Volley Ball Tournament and Ramalingam, President of the Kollakudi Village Panchayat, where the

Volley Ball Tournament was conducted. The gist of these affidavits is as follows:-

The District Level Volley Ball Tournament was conducted at Kollakudi sponsored by the Kollakudi V.F.Voley Ball Sangam and it was held on

21.8.2004 and 22.8.2004. The Tournament was inaugurated by Mr. Selvakumar, Inspector of Police, Vadalur Police Station. On 22.8.2004 the

sitting Panrutti MLA, Velmurugan, the first petitioner came to the function at about 7.30 pm., immediately the final match started and ended at 8.00

p.m., Followed by this, the prize distribution function started and several others including the first petitioner who spoke as the last speaker who

completed his speech by 9.30 pm., Then the first petitioner distributed the prizes to the winner teams and the function ended at 10.00 p.m., and

after dinner the first petitioner and others left the venue after 10.30 pm, on that day"".

The learned senior counsel for the petitioners also produced photographs taken during the function and also the pamphlets issued for the

Tournament and the function. The Grave Crime Report No. 10/2004 sent by the Deputy Superintendent of Police, Neyveli, available in the Case

Diary file was not signed. On 2.11.2004, while hearing the arguments, this court ordered the Inspector of Police and Superintendent of Police to

produce the GCR sent by the Deputy Superintendent of Police, Neyveli and they agreed to produce the same on 4.11.2004 when the case was

posted for further hearing. But the respondent and the Superintendent of Police did not produce the original signed GCR report sent by the Deputy

Superintendent of Police, Neyveli on 4.11.2004. The explanation offered by the learned Public Prosecutor on instructions from the present

Investigating Officer on 4.11.2004 is that the GCR report was prepared by the Inspector of Police who investigated the case earlier and hence it

was not signed by the Deputy Superintendent of Police, Neyveli. Such explanation is patently false.

A perusal of the GCR would reveal that the GCR is given a serial No. 10/2004 which could be available only with the Deputy Superintendent of

Police office. If really the Inspector of Police prepared the GCR, to be sent by the Deputy Superintendent of Police, it is totally against the rules

and procedures. There is no explanation on the part of the prosecution as to how this report was given a serial number as 10/2004. The GCR

contains all particulars about the number of persons examined and name of the real accused and it is written as follows:-

5.Examination of the witnesses:-

W.1, the complainant, has stated about the enmity in between the deceased and PMK party members. She has also stated that one Suresh,

Rajmohan, Balamurugan, Ramachandran, Kandavel, Sundar have chased her husband and committed murder on the criminal conspiracy of one

Arumugham, PMK, Kuruinchipadi Union Secretary and Mathi @ Mathabalan. She has also stated that she did not see one Velmurugan, MLA,

Thirumavalavan and Kannan, brothers of Velmurugan at the S.O.C.

W.2, mother in law of W.1. W.3 to W7 have stated about that they are witness to the occurrence in which one Suresh, Rajmohan, Balamurugan,

Ramachandran, Kandavel, Sundar have involved and they escaped in the TATA Sumo vehicle belongs to Arumugham on the criminal conspiracy

of Arumugham and Mathi @ Mathibalan. W8 and W9 are observation mahazar and seizure mahazar of clue materials witnesses. W10, is the

Medical Officer who conducted autopsy on the dead body of the deceased Venkatesan and he has reserved his opinion as to the cause of death

awaiting for C.E''s reports.

Investigation:

Investigation revealed that it is a genuine case. On examination of the witnesses one of the 7 witnesses including the complainant who eye

witnessed the occurrence did not speak about the involvement of the accused Velmurugan, MLA, Thirumalvalavan and Kannan. Hence they were

deleted from the case.

The real accused involved in this case are 1. Suresh, 2.Rajmohan, 3.Kandavel, 4. Mathi @ Mathibalan, 5.Sundar, 6. Balamurugan, 7.

Ramachandran and 8. Arumugham. Of whom, except A.7 and A8 all others have been arrested and remanded to Judicial Custody. On the

confessional statements of A.1 and A.2 the weapons used in the occurrence have been seized. Case is under investigation for securing the

absconding accused and for want of C.Es reports.

Inspector of Police, Kullanchavadi P.S., is instructed to:-

(i) Secure the absconding accused early.

(ii) Obtain the C.E''s reports early, get final opinion from the Medical Officer as to cause of death and lay charge sheet in this case without causing

any unnecessary delay.

(iii)Prosecute the case successfully.

Before preparing the GCR, ten witnesses viz., Saraswathi, wife of deceased Venkatesan, Anjalai, Elavarasan, shanthi, Udayakumar,

Amirthalingam, Balasubanmugham, Krishnamoorthi, Velmurugan and Dr.R.Subramanian have been examined. If really, the Inspector of Police

prepared the GCR report, para 7 in the report which contains the instructions to the Inspector of Police cannot find a place. The instructions (to

repeat) are:

Inspector of Police, Kullanchavadi P.S., is instructed to:-

(i) Secure the absconding accused early.

(ii) Obtain the C.E''s reports early, get final opinion from the Medical Officer as to cause of death and lay charge sheet in this case without causing

any unnecessary delay.

(iii)Prosecute the case successfully.

When this Court passed an order to produce the GCR from the office of the Superintendent of Police, it was agreed by the prosecution to

produce the same on 4.11.2004. At that time it was not represented by the prosecution that the GCR was prepared by the Inspector of Police,

who earlier investigated the case, but not signed by the Deputy Superintendent of Police of Neyveli. This statement of the Public Prosecutor on

instruction by the Inspector of Police, viz., the Investigation Officer is false because (i) Thiru Logaiyan, Inspector of Police of Kullanchavadi Police

Station conducted the Investigation only upto 24.8.2004 and at that time, none of the accused were arrested. The present Inspector of Police

Thiru.Sundaravadivel took up investigation on 25.8.2004 and he has arrested six accused, A-1, Suresh, A-2, Rajmohan, A-3, Kandavel, A-4,

Mathi @ Mathibalan, A-5, Sundar, and A-6 Balamurugan on 25.8.2004. In paragraph 6 of the GCR it is stated that ""The real accused involved in

this case are 1. Suresh, 2.Rajmohan, 3.Kandavel, 4. Mathi @ Mathibalan, 5.Sundar, 6. Balamurugan, 7. Ramachandran and 8. Arumugham. Of

whom, except A.7 and A8 all others have been arrested and remanded to Judicial Custody. On the confessional statements of A.1 and A.2 the

weapnos used in the occurrence have been seized. Case is under investigation for securing the absconding accused and for want of C.Es reports.

It is Thiru Sundaravadivel, the present Inspector of Police, who arrested the accused on 25.8.2004. Therefore this GCR should have been

prepared after 25.8.2004 and before 3.9.2004 on which date the two other accused viz., Ramachandran and Arumugham surrendered before the

Judicial Magistrte No. 1, Vridhachalam. Apart from giving a clean chit to the petitioners in the GCR, at para 6 it is mentioned as follows:-

Investigation revealed that it is a genuine case. On examination of the witnesses one of the 7 witnesses including the complainant who eye

witnessed the occurrence did not speak about the involvement of the accused Velmurugan, MLA, Thirumalvalavan and Kannan. Hence they were

deleted from the case."" Therefore, all the contentions of the prosecution with regard to GCR No. 10/2004 are false. That is why the GCR

available with the Superintendent of Police is not produced before the Court.

There are other materials to show that the prosecution has attempted to implicate the petitioners only after the assumption of office by the

present Superintend of Police. In the Section 161 Cr.P.C., statement recorded during inquest, Sarawathi, wife of the deceased and Anjalai,

mother of the deceased have mentioned that some one told them that the petitioners were standing on the road near the place of occurrence and

they are not able to say who is the person who informed them. In the inquest report in Column 9 ""Reasons for the Death of the deceased"" and

Column 10 ""If the death was caused due to violence by which weapons"" and in Column 15, ""The cause of death as per the opinion of the

Panchayatdars, the presence of the petitioners at the place of occurrence is not mentioned, whereas the complicity of the other 8 persons are

mentioned.

It is pertinent to note that in the 161(3) Statements of the other eye witnesses, namely who are said to be independent witnesses, Elavarasan,

Amirthalingam, Balashanmugham, Shanthi and Udayakumar also did not implicate the petitioners, about their presence in the place of occurrence.

After arrest of A.1 and A.2, confessional statements were recorded by the Investigating Officer and the said confessional statements of A-1 and

A-2 implicate all the other accused, except the petitioners. After two other accused viz., Arumugham and Ramachandran surrendered in Court on

3.9.2004 before the Judicial Magistrate No. 1, Vridhachalam, an application was filed by the present Inspector of Police, requesting Police

custody for ten days of the said two accused. In para 2 of the affidavit, the Investigating Officer has stated as follows:-""I submit that on 22.8.204 at

about 21.45 hrs at Kullanchavadi, the above noted accused along with six others conspired themselves to murder one Venkatesan,

S/o.Veerappan, new Street of Kullanchavadi and in furtherance of the conspiracy, they gathered together into an formed an unlawful assembly,

armed with deadly weapons like Veecharuvals, iron pipes and wooden sticks, chased the deceased Venkatesan, criminally trespassed in to the

house of one Shanthi, caught hold of the deceased and murdered the said deceased Venkatesan by cutting with Veecharuvals and assaulting him

with iron pipes due to political enmity at 21.45 hrs on 22.8.2004 and after the commission of offence they escaped by a TATA Sumo car bearing

registration No. TN/22W-7272. In this affidavit filed by the Inspector of Police, he has fixed only 8 accused and has not mentioned anything about

these petitioners. If the petitioners are also included the total number of accused is Eleven. Police Custody was ordered for the two surrendered

accused, Arumugham and Ramachandran and in their confessions also, recorded by the Inspector of Police, there is no mention about the

complicity of these petitioners. When the names of the petitioners are mentioned in the FIR it is natural for any Investigating Officer interrogating

the accused about the complicity of these three persons. But nothing has been asked about the complicity of these petitioners from A7 and A8,

who were interrogated and confession statements were recorded on 9.9.2004 and also when A.1 and A.2 were interrogated and their confession

was recorded on 25.8.2004. On 26.8.2004, 13 witnesses have been examined out of which 11 are residents near the scene of occurrence and

they do not implicate the presence of the petitioners. Therefore, the records would clearly reveal that from 22.8.2003 till 9.9.2004, the petitioners''

names were not implicated in any document, except the FIR which generally speaks that the petitioners along with others committed the murder of

the deceased.

The contention of the learned senior counsel for the petitioners is that when the earlier Superintendent of Police was transferred and new

Superintendent of Police was appointed and assumed office on 9.9.2004, the earlier investigation changed and attempts were made to implicate

the petitioners.

On 12.9.2004, the Inspector of Police has further examined Saraswathi, the wife of the deceased, Anjalai, mother of the deceased and

Mathivadhani and Mathivani daughters of the deceased and Elavarasan, who have implicated the complicity of the petitioners in the occurrence.

Thereafter an application has been filed before the Chief Judicial Magistrate on 13.9.2004 to record 164 Cr.P.C., Statement of the above

witnesses and the same was recorded on 29.9.2004. Thereafter on 24.9.2004, three witnesses John, Arivu, and Sankar, Chance Witnesses

whose 161 Cr.P.C., statements were recorded on 22.9.2004 alleging themselves to be eye witnesses were produced before the Judicial

Magistrate and their 164 Cr.P.C., statements were also recorded.

Therefore, there is force in the contention of the learned senior counsel for the petitioners that the earlier investigation revealed innocence of the

petitioners and after the present Superintendent of Police assumed office on 9.9.2004, the entire investigation was changed in such a way to

implicate the petitioners by recording further statements and recording 164 Cr.P.C., statements. Normally, Section 164 Cr.P.C., statements are

recorded from the witnesses who are suspected to turn hostile at the time of trial. Normally the statements of witnesses who are either closely

connected with the accused or related with the accused are recorded u/s 164 Cr.P.C., and the Supreme Court and the High Courts have

repeatedly held that statements recorded under this section should be approached with caution because such witnesses feel tied to their previous

statement and prosecution for perjury is the price for freedom to depart from the earlier version. There is no proper explanation on the part of the

prosecution as to why Section 164 Cr.P.C., statements were recorded from the Wife, mother and children of the deceased.

The learned senior counsel for the petitioners would put forth a strong plea that the first petitioner Thiru Velmurugan, MLA., was attending a

function at Kollakudi. It is admitted by the prosecution also that a District Level Volley Ball Tournament was conducted in the said Village and one

Mr. Selvakumar, Inspector of Police, Vadalur inaugurated the Tournament. Final match was conducted on 22.8.2004 evening and a function was

also followed in which the first petitioner participated and distributed cash prizes to four teams and after the function he attended the dinner. The

Inspector of Police has produced statement of one Srinivasan, Organiser of the Tournament, according to which the function was over by 7.30

pm., and the first petitioner left from the place by 8.30 pm., This statement though is said to have been recorded on 5.9.2004 has never reached

the court. At the bottom of the statement, in the C.D.file before the date ""5"" date ""2"" is added in a different ink to show as if the statement was

recorded on ""25"".9.2004. Other persons who participated in the function including the Panchayat President of the said village and donors who

gave the cash awards to the Teams and the Organiser of the function have filed affidavits before this court wherein they have categorically stated

that the first petitioner arrived for the function at about 7.30 pm., and finals was conducted in the night, it was over around 8.00 pm., Followed by

a prize distribution function in which several persons including the first petitioner spoke upto 9.30 p.m., thereafter they distributed prizes to the four

winning teams and the function ended at 10.00 pm., and thereafter the first petitioner Thiru Velmurugan, MLA and others had a dinner and they left

the place only at 10.30 p.m., on 22.8.2004. The occurrence took place at 9.45 pm., in another village which is admittedly about 25 k.m., away.

When the first petitioner has made out a case for alibi, it is the duty of the prosecution to examine the persons who participated in the in the

function to find out whether the first petitioner was present in the place where the function was conducted and by what time he left the place. But

for reasons best known to him, the Investigating Officer has not examined any of the witnesses, except one Srinivasan, whose statement never

reached the court till 3.11.2004. Admittedly, the petitioners 2 and 3 (brothers of the first petitioner) did not attend the said function.

Normally in a case of murder, Anticipatory Bail is not granted, except in exceptional cases for cogent reasons. As far as this case is concerned,

the presence of the first petitioner, except bald allegation in the FIR, and 161 (3) Cr.P.C., statements of Saraswathy, Anjalai who have only stated

that some one told them that the petitioners were standing on the road at that time, till 9.9.2004 in all the documents including the statements of the

eye witnesses, confession statements of the accused, Inquest report etc., the petitioners'' names were not implicated and only after 9.9.2004, after

the assumption of office by the present Superintendent of Police, these petitioners are sought to be implicated by way of further 161(3) Cr.P.C.,

statements of the witnesses already examined and under Sec. 164 Cr.P.C., statements of the said witnesses.

The earliest report of GCR 10/2004 by the Deputy Superintendent of Police, Neyveli which was suppressed from producing before the court

clearly reveals that only 8 persons participated in the occurrence and these petitioners did not participate in the occurrence. In the affidavit dated

7.9.2004 filed by Investigating Officer before the Judicial Magistrate, No. 3 at Cuddalore, it is specifically stated that only 8 persons are involved

in the offence. The contention of the first petitioner is that he belongs to one of the main opposition parties (Pattali Makkal Katchi) in Tamil Nadu

and since the deceased has joined the ruling party in the presence of the Chief Minister, he is sought to be implicated due to political reasons and

for the said purpose the Superintendent of Police has been transferred and new Superintendent of Police has been placed in the said District and

only after his assuming office, the Investigation proceeds to implicate him and his brothers. The above averments cannot be simply brushed aside as

one without force in the light of the observations and factual circumstances discussed above. The presence of the first petitioner in the function held

at a village which is 25 k.m.,away from the scene of occurrence is more probable than the presence at the place of occurrence.

In the affidavit filed by the respondent-police, it is stated that the petitioners 1, 2 and 3 are involved in other criminal case in C.C.No:1573 of

2001 pending on the file of the XVII M.M.Court, Egmore, Chennai, investigated by CBCID, which is a trust mater in which the leader of the

PMK party Mr. G.K.Mani and other party functionaries are also arrayed as accused.

Therefore, the first petitioner is granted Anticipatory Bail on the following conditions (i) that in the event of his arrest, or surrender within two

weeks from the date of this order, he shall be enlarged on bail on executing a bond for Rs. 10,000/= with two sureties each for a like sum to the

satisfaction of the Judicial Magistrate No. III, Cuddalore, (ii) that he should sign before the Judicial Magistrate No. I, Coimbatore, daily at 10.30

a.m., (iii) that he should not leave the country without prior permission of this court, and (iv) that he should appear for interrogation whenever

called by the Investigating Officer. If the first petitioner fails to surrender within two weeks from today, the Anticipatory Bail granted shall stand

automatically cancelled.

Since the plea of ""alibi"" is not claimed by the second and third petitioners, this Criminal Original Petition petition is dismissed as against the

second and third petitioners.