Madras High Court
M. Sellamuthu vs 3 S. Velmurugan on 5 April, 2022
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 13.04.2022
DELIVERED ON 08.06.2022
CORAM:
THE HON’BLE MR. JUSTICE. P.N. PRAKASH
and
THE HON’BLE MR. JUSTICE A.A. NAKKIRAN
R.T. No. 4 of 2021
&
Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
R.T. No. 4 of 2021:
The Deputy Commissioner of Police
District Crime Branch
Chennai Complainant
v
D. Marudhupandiyan Respondent/A2
Crl.A. No.483 of 2021:
M. Sellamuthu Appellant/A15
v
1 The State by the Deputy Superintendent of Police
CBI/SCB/Chennai
Chennai
(RC3(S)/2004/CBI/SCB/Chennai)
2 C. Samikannu
1
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
3 S. Velmurugan Respondents
(RR 2 & 3 impleaded as per order dated 05.04.2022 in
Crl.M.P. No.4579 of 2022 in Crl.A. No.483 of 2021)
Crl.A. No.504 of 2021:
D. Marudhupandiyan Appellant/A2
v
1 The State by
Deputy Superintendent of Police
CBI/SCB/Chennai
Chennai
(RC3(S)/2004/CBI/SCB/Chennai)
2 C. Samikannu
3 S. Velmurugan Respondents
(RR 2 & 3 impleaded as per order dated 05.04.2022 in
Crl.M.P. No.4580 of 2022 in Crl.A. No.504 of 2021)
Crl.A. No.522 of 2021:
1 K. Ramadoss
2 N. Chinnadurai Appellants/AA 12 & 13
v
1 The State by
Deputy Superintendent of Police
CBI/SCB/Chennai
Chennai
(RC3(S)/2004/CBI/SCB/Chennai)
2
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
2 C. Samikannu
3 S. Velmurugan Respondents
(RR 2 & 3 impleaded as per order dated 05.04.2022 in
Crl.M.P. No.4582 of 2022 in Crl.A. No.522 of 2021)
Crl.A. No.523 of 2021:
1 C. Duraisamy
2 D. Rangasamy
3 G. Kanthavel
4 G. Jothi
5 G. Venkatesan
6 R. Mani Appellants/AA 1,3 & 5-8
v
1 The State by
Deputy Superintendent of Police
CBI/SCB/Chennai, Chennai
(RC3(S)/2004/CBI/SCB/Chennai)
2 C. Samikannu
3 S. Velmurugan Respondents
(RR 2 & 3 impleaded as per order dated 05.04.2022 in
Crl.M.P. No.4578 of 2022 in Crl.A. No.523 of 2021)
Crl.A. No.524 of 2021:
1 R. Dhanavel
2 V. Anjapuli Appellants/AA 10 & 11
3
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
v
1 The State by
Deputy Superintendent of Police
CBI/SCB/Chennai, Chennai
(RC3(S)/2004/CBI/SCB/Chennai)
2 C. Samikannu
3 S. Velmurugan Respondents
(RR 2 & 3 impleaded as per order dated 05.04.2022 in
Crl.M.P. No.4581 of 2022 in Crl.A. No.524 of 2021)
Crl.A. No.626 of 2021:
1 K.P. Tamilmaran Appellant/A.14
v
1 The State by the Deputy Superintendent of Police
CBI/SCB/Chennai
Chennai
(RC3(S)/2004/CBI/SCB/Chennai)
2 C. Samikannu
3 S. Velmurugan Respondents
(RR 2 & 3 impleaded as per order dated 05.04.2022 in
Crl.M.P. No.4575 of 2022 in Crl.A. No.626 of 2021)
Prayer in R.T. No.4 of 2021: Referred Trial under Section 366 Cr.P.C. on the
judgment and order dated 24.09.2021 passed in S.C. No.3 of 2019 on the file of
4
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
the Special Court for Exclusive Trial of SC/ST (PoA) Act Cases, Cuddalore,
Cuddalore District.
Common Prayer in all the criminal appeals: Criminal Appeal filed under
Section 374(2) Cr.P.C. seeking to set aside the judgment and order of conviction
and sentence dated 24.09.2021 passed in Sessions Case No.3 of 2019 on the file of
the Special Court for Exclusive Trial of SC/ST (PoA) Act Cases, Cuddalore,
Cuddalore District.
For complainant in the R.T. Mr. K. Srinivasan
Special Public Prosecutor for
CBI Cases
For respondent in the R.T. Mr.V. Gopinath, Sr. Counsel
for Mr. S.Sasikumar
For appellant in Crl.A. No.483/21 Mr. S. Doraisamy
For appellant in Crl.A. No.504/21 Mr.V. Gopinath, Sr. Counsel
for Mr. S.Sasikumar
st
For 1 appellant in Crl.A.No.522/21 Mr. V. Karthic, Sr. Counsel
for Mr. Adithya Varadarajan
nd
For 2 appellant in Crl.A.No.522/21 Mr.S.Prabakaran, Sr. Counsel
Mr. M.R. Jothimanian
For appellants 1,4,5 & 6 in Mr. V. Gopinath, Sr. Counsel
Crl.A.No.523/21 for Mr. K. Balu
For appellants 2 & 3 in Mr.S.Ashok Kumar, Sr.Counsel
Crl.A.No.523/21 for Mr. K. Balu
st
For 1 appellant in Crl.A. No.524/21 Mr.S.Ashok Kumar, Sr.Counsel
5
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
for Mr. M.R. Jothimanian
nd
For 2 appellant in Crl.A. No.524/21 Mr.S.Prabakaran, Sr. Counsel
Mr. M.R. Jothimanian
For appellant in Crl.A. No.626/21 Mr. S. Karthikeyan
For RR 2 & 3 in all the criminal appeals Dr. V. Suresh
---
COMMON JUDGMENT
P.N. PRAKASH, J.
Referred Trial No.4 of 2021 arises out of a reference made by the Special
Court for Exclusive Trial of SC/ST (PoA) Act Cases, Cuddalore (for brevity “the
trial Court”) under Section 366 of the Code of Criminal Procedure, 1973 (Cr.P.C)
for confirmation of the death sentence imposed on Marudhupandiyan (A.2), vide a
judgment and order dated 24.09.2021 passed in Sessions Case (S.C.) No.3 of
2019.
2 In addition, six criminal appeals have been filed by the other accused
assailing their convictions and sentences passed vide the judgment and order
referred to, supra, passed by the trial Court. In view of the commonality of issues
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
involved, this common judgment shall govern the decision in all the aforesaid
cases.
3 The facts present themselves as a complex web of four intricately
interwoven narratives. We begin by first setting out certain undisputed facts, and
facts that have been proved beyond a cavil.
4 This is a case of an unnatural and untimely death of a newly married
couple, Murugesan and Kannagi. The former was a Dalit and the latter belonged to
the Vanniyar caste. The place of occurrence is Pudukkoorapettai Village in
Cuddalore District. The principal players who were pitted against each other were
the Vanniyars and the Dalits.
5 It is common knowledge that the members of the Vanniyar
community are caste Hindus, who, in the Chathur Varna, trace their lineage to the
Agni Kulas of the Kshatriyas (for reference, see Castes and Tribes of Southern
India by Edgar Thurston, C.I.E., Volume-VI, Page 1, MJP Publishers), albeit, for
the purpose of reservation, they are classified as Most Backward Community vide
G.O.Ms.No.353, Industries, Labour and Cooperation Department dated
31.01.1957 read with G.O.Ms.No.242, Backward Classes Welfare, Nutritious
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Meal Programme and Social Welfare Department dated 28.03.1989. In fact, in
G.O.Ms.No.242, ibid., they are referred to as Vanniyakula Kshathriyas. Whereas,
the Dalits are kept out of Chatur Varna and are classified as the Panchamas. The
factual context in this case requires to be assessed in the backdrop of this social
milieu.
6 Duraisamy (A.1), his son Marudhupandiyan (A.2), Rangasamy (A.3),
Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Mani (A.8), Dhanavel (A.10),
Anjapuli (A.11), Ramadoss (A.12) and Chinnadurai (A.13) belong to Vanniyar
caste and are natives of Pudukooraipettai Village.
7 Duraisamy (A.1) was the President of the Pudukkooraipettai Village
Panchayat. Kannagi, the other deceased in this case, is the daughter of Duraisamy
(A.1). The fact that the accused referred to in paragraph 6 (supra) belong to
Vanniyar caste, has not been denied by them. Even in the preamble portion of their
statements recorded under Section 313 Cr.P.C., on the information provided by
them, the Court has recorded their caste as Vanniyar.
8 Samikannu (P.W.1), his deceased son Murugesan, Ayyasamy (A.4),
Ilayaperumal (died during trial), and Gunasekaran (A.9), who are Dalits, hailed
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
from Kuppanatham Village. A few months prior to the date of occurrence in this
case, owing to some problem in Kuppanatham Village, Samikannu (P.W.1)
relocated his family to the Dalit colony in Pudukkooraipettai Village. This colony
is on the outskirts of the village about two furlongs from where Vanniyars and the
other caste Hindus reside.
9 Murugesan was born to Samikannu (P.W.1) through his first wife
Ambika and after Ambika’s demise, Samikannu (P.W.1) married Ambika’s sister
Chinnapillai (P.W.49), through whom, he has four sons and three daughters,
notably, Velmurugan (P.W.2), Palanivel (P.W.3) and Tamilarasi (P.W.15).
Mayavel (P.W.20) is the husband of Tamilarasi (P.W.15). Ayyasamy (A.4) and
Ilayaperumal are the brothers of Samikannu (P.W.1). Amaravathy (P.W.16) is the
sister of Samikannu (P.W.1), Ayyasamy (A.4) and Ilayaperumal.
10 Murugesan was an Engineering graduate from Annamalai University,
Chidambaram and Kannagi was a B.Com. graduate from the same university.
Seemingly, during their college days, they fell in love with each other, which fact
has been proved via the love letters (Exs.P.3 and 4 series) as well through the
evidence of Samikannu (P.W.1) and Venkatachalapathy (P.W.8).
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
11 Since they knew that there would be stiff opposition to their marriage
from their respective families, they had their marriage solemnized in Sri Vinai
Theertha Vinayagar Temple, Manjakuppam, Cuddalore, on 05.05.2003,
unbeknownst to anyone and also had it registered in the office of the Marriage
Registrar, Cuddalore, vide marriage certificate (Ex.P.1). After the marriage, they
quietly went to their respective homes and continued to lead their lives normally
as if nothing had happened.
12 Sometime in the first week of July 2003, Murugesan and Kannagi
went missing from their respective homes. We propose to stop the narration of the
subsequent facts as they are not undisputed and would refer to them in the course
of this judgment at the appropriate juncture. For the present, suffice to state that
Murugesan and Kannagi died on 08.07.2003 and the prosecution version is that it
was an honour killing, whereas, the defence theory is that they committed suicide
because of differences of opinion between themselves.
13 However, the bodies of the Murugesan-Kannagi duo were cremated
and not buried, in hot haste, and without intimation to the police, on 08.07.2003.
While Murugesan’s body was burnt in the bank of the village stream, Kannagi’s
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
body was burnt in the crematorium meant for caste Hindus. Thus, in death, as in
life, the caste-driven citizenry of the village gave the couple a differential
treatment.
14 That something amiss had happened in Pudukooraipettai Village and
that the death of Murugesan and Kannagi was being hushed up by influential
persons in the village was spread by word of mouth. The fourth estate got wind of
the incident and the Dalit leader Mr. Thirumavalavan cried foul in a Press meet.
15 As alluded to above, the first narrative, proffered by Duraisamy (A.1)
and his group was that the Murugesan - Kannagi duo committed suicide because
of irreconcilable differences and therefore, he cremated his daughter’s body and
Samikannu (P.W.1) cremated his son’s body.
16 The second narrative is that of Samikannu (P.W.1) and other Dalits
that the Vanniyars had brought both Murugesan and Kannagi, by deceit and force,
to Pudukkooraipettai Village and murdered them.
17 Then began the third narrative by the local Vriddhachalam police.
According to them, Duraisamy (A.1) appeared before Ashokan (P.W.32), V.A.O.
on 17.07.2003 at 2.00 p.m. and voluntarily gave an extrajudicial confession stating
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
that Murugesan and Kannagi got acquainted with each other and fell in love;
Kannagi went missing on 03.07.2003 and so, he asked Samikannu (P.W.1) and his
brother Ayyasamy (A.4) to locate and bring them; accordingly, they were brought
to the village around 5.00 a.m. on 08.07.2003; seeing them together, he
(Duraisamy) felt ashamed and so, he poured Nuvacron (insecticide) in a stainless
steel tumbler, gave it to his son Marudhupandiyan (A.2) and asked him to make
Kannagi drink it; Kannagi took the tumbler and drank the insecticide and fell
down dead; on seeing this, Samikannu (P.W.1) tried to give the left over
insecticide in the same tumbler to Murugesan for consumption, but, the latter
initially resisted; however, Ayyasamy (A.4) and Ilayaperumal, brothers of
Samikannu (P.W.1), forcibly administered the insecticide to Murugesan and soon,
Murugesan also died; after that, he (Duraisamy) took the body of his daughter
Kannagi and cremated it and likewise, Samikannu (P.W.1) and Ayyasamy (A.4)
took the body of Murugesan and cremated it; since a feeling of guilt was haunting
him, he had decided to confess and unburden himself.
18 Ashokan (P.W.32), V.A.O., recorded the confession statement of
Duraisamy (A.1), which has been marked as Ex.P.9 and produced Duraisamy
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
(A.1) along with the confession statement (Ex.P.9) before the Vriddhachalam
Police Station along with a special report (Ex.P.11). At the Vriddhachalam Police
Station, at the relevant point of time, Tamilmaran (A.14) was the Sub Inspector
and Sellamuthu (A.15) was the Inspector.
19 Based on the special report (Ex.P.11) of Ashokan (P.W.32), V.A.O.,
Tamilmaran (A.14), Sub Inspector, registered a case in Vriddhachalam P.S.
Cr.No.356 of 2003 on 17.07.2003 at 4.30 p.m. under Sections 147, 302 and 201
IPC against eight persons, viz., Duraisamy Padayachi, Marudhupandiyan,
Rangasamy, Anbalagan, Ilayaperumal, Kannadasan, Ayyasamy and Samikannu
and prepared the printed FIR (Ex.P.10). We may point out here that the scribe of
the printed FIR (Ex.P.10) is one Dhanapal (P.W.44), who was the Sub Inspector in
Aavinangudi Police Station, which is close to Vriddhachalam Police Station.
20 Investigation of the case was taken over by Sellamuthu (A.15),
Inspector, Vriddhachalam Police Station, who arrested Duraisamy (A.1),
Marudhupandiyan (A.2), Ayyasamy (A.4), Anbalagan (P.W.29), Kannadasan
(P.W.33) and Ilayaperumal on 17.07.2003 and Samikannu (P.W.1) on 18.07.2003.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
21 Sellamuthu (A.15) recorded the police confessions of Duraisamy
(A.1) and Ilayaperumal and on his request, had the same attested by Jayaraman
(P.W.34), V.A.O. and one Siva Perumal, Village Assistant (not examined).
22 Based on the admissible portion of the police confession of
Duraisamy (A.1), Sellamuthu (A.15) recovered a 250 ml. plastic container with the
label “Monocrotopos 36% Nuvacron” (M.O.1) and a stainless steel tumbler
(M.O.2 series) under the cover of a mahazar (Ex.P.25) attested by Jayaraman
(P.W.34) and Siva Perumal.
23 Based on the admissible portion of the police confession of
Ilayaperumal, Sellamuthu (A.15) seized one stainless steel tumbler (M.O.2 series)
under the cover of a mahazar (Ex.P.27) in the presence of Jayaraman (P.W.34) and
Siva Perumal.
24 Based on the information provided by the arrested accused about the
places where Murugesan and Kannagi were cremated, Sellamuthu (A.15) went
there and collected some bone fragments (M.O.3) and ash (M.O.4) from the place
where Kannagi was cremated, under the cover of a mahazar (Ex.P.29) attested by
Jayaraman (P.W.34) and Siva Perumal.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
25 Likewise, from the place where Murugesan was cremated, Sellamuthu
(A.15) collected some bone fragments (M.O.5) and ash (M.O.6) under the cover of
a mahazar (Ex.P.31) attested by Jayaraman (P.W.34) and Siva Perumal.
26 The seized items, viz., bone fragments (M.Os. 3 & 5) and ash (M.Os.4
& 6) were sent through the Judicial Magistrate No.1, Vriddhachalam, to the
Forensic Sciences Department, for examination and report. The forensic science
report (Ex.P.36) reads as follows:
“We have carefully examined the items 1 to 4 described above and based
on the observations the following opinion is offered.
OPINION:
1. Among the pieces of fragmentary bones in item 1, a left mandibular condyle
revealing anatomical characteristics consistent of human origin was found.
The conspicuously small size of condyle indicates that it could have belonged
to a female individual. The available portion of condyle is insufficient for as-
sessing the age. The anatomical identity of the other bones could not be estab-
lished.
2. Among the pieces of fragmentary bones in item 2, a portion of distal end of
humerus, a portion of proximal end of tibia and portions of vertebrae indicate
anatomical characteristics consistent of human origin. The available bones are
insufficient for assessing the sex or age. The anatomical identity of the other
bones could not be established.
3. The charcoal described in item 2 and 4 do not reveal detectable bony ash.”
Thus, a reading of the above shows that the bone fragments (M.Os. 3 & 5),
supposed to have been collected from the place where Kannagi was cremated,
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
showed that they belong to a female, whereas, the bone fragments qua Murugesan
were inconclusive. What must also be stated is that both the bodies were cremated
on 08.07.2003, but the Vriddhachalam police effected the recoveries only on
18.07.2003. The report of the Forensic Sciences Department (Ex.P.36) also does
not throw much light on the identity of the deceased. Of course, it is nobody’s case
that Murugesan and Kannagi are alive and well. The point at issue is whether the
duo’s death was a suicide or an honour killing and therefore, the forensic science
report (Ex.P.36) is not of much use in determining the facts in issue in this case.
27 The arrest of Samikannu (P.W.1), Ilayaperumal, Kannadasan and
Ayyasamy (A.4) who are all Dalits and close relatives of the deceased Murugesan,
stirred a hornet’s nest since the Dalits believed that they were, in no way, involved
in the murders and that the murders were engineered by the Vanniyars to avenge
their lost honour.
28 Therefore, the Dalits approached one P. Rathnam, Advocate, who,
though not a Dalit by birth, espoused their causes. It appears that the said
Rathnam and a team of lawyers from Chennai went to PudukkooraipettaiVillage,
prepared a report dated 26.07.2003 and sent it to the Home Secretary, Director
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
General of Police, District Collector, Cuddalore and Superintendent of Police,
Cuddalore.
29 While the eight accused (4 Vanniyars and 4 Dalits) were languishing
in jail, a bail application was filed in Crl.M.P.No.5031 of 2003 in the Principal
Sessions Court, Cuddalore, by Duraisamy (A.1) for himself and also on behalf of
the other accused, which was dismissed on 29.07.2003.
30 Sellamuthu (A.15), Inspector of Police, moved an application before
the Chief Judicial Magistrate, Cuddalore, for recording the confession statements
of Samikannu (P.W.1), Duraisamy (A.1) and Ilayaperumal under Section 164
Cr.P.C., in which, an order was passed directing the District Munsif-cum-Judicial
Magistrate, Tittakudi, to record the statements. Accordingly, Samikannu (P.W.1),
Duraisamy (A.1) and Ilayaperumal were produced before the District Munsif-cum-
Judicial Magistrate, Tittakudi, on 30.07.2003. On that day, the said District
Munsif-cum-Judicial Magistrate, cautioned them and gave them 24 hours
reflection time and they were directed to be produced on 31.07.2003, on which
day, Samikannu (P.W.1), Duraisamy (A.1) and Ilayaperumal gave statements to
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
him. These statements were found in the records of the trial Court but were not
marked as exhibits during trial.
31 We called for the records and read those statements in order to
understand the line of investigation by the Vriddhachalam police. The statements
of the aforesaid trio are exculpatory in nature and do not amount to confessions.
32 Samikannu (P.W.1), in his Section 164 Cr.P.C. statement to the
Magistrate, has stated that he was threatened by Marudhupandiyan (A.2) to bring
Murugesan and Kannagi to Pudukkooraipettai Village and so, he went in search of
them and found them in his relative’s house and dropped the girl in the village; on
the next day, his son went missing from his relative’s house; fearing that he would
be in trouble, he did not return to Pudukkooraipettai Village and later, he learnt
that Murugesan and Kannagi were brought to the village and murdered.
33 Duraisamy (A.1), in his statement recorded under Section 164
Cr.P.C., has stated that Kannagi went missing on 03.07.2003 and they were
searching for her everywhere, but in vain; on 08.07.2003, he was told that two
bodies were floating in the Ponneri pond and when he went there, he found one of
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
them to be that of his daughter’s; the parents of Murugesan also came there and
after discussing with them, they decided to cremate the bodies and did so.
34 As alluded to above, the statements of Samikannu (P.W.1) and
Duraisamy (A.1) that were recorded under Section 164 Cr.P.C. were at variance
and totally different from the case projected by the Vriddhachalam police.
35 To recapitulate, according to the Vriddhachalam police, Duraisamy
(A.1) surrendered before Ashokan (P.W.32), V.A.O. on 17.07.2003 and gave an
extrajudicial confession (Ex.P.9) stating that Murugesan and Kannagi were
brought to Pudukkooraipettai Village and that his son Marudhupandiyan (A.2)
administered Nuvacron (insecticide) to Kannagi and Samikannu (P.W.1)
administered Nuvacron (insecticide) to his son Murugesan.
36 Thus, as on 31.07.2003, there were three narratives, viz., the first by
Duraisamy (A.1), the second by Samikannu (P.W.1) and the third by the
Vriddhachalam police.
37 We make it very clear that we are not using the aforesaid Section 164
Cr.P.C. statements as substantive piece of evidence, but, are using them only for
the limited purpose of recording the sequence of events in this case.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
38 Subsequently, it transpires that another bail application in
Crl.M.P.No.5683 of 2003 was moved by an Advocate V.R.Dhandapani of
Cuddalore, for all the eight accused, in the Principal Sessions Court, Cuddalore.
Acting on the representation of the trial Court Public Prosecutor that the
investigation has been substantially completed, bail was granted on 11.08.2003 to
all the eight accused, i.e., within 23 days of the occurrence. The reasoning given
by the Principal Sessions Court, Cuddalore, for grant of bail appears bizarre and
shocking and the same is as under:
“Learned PP now represented that substantial part of the investigation has
been completed in this case.
It is the case of the petitioners in Crl.M.P.5683/2003 that the first
petitioner being the President of Pudukooraipettai village is in judicial custody for
the past 23 days and if he continues to be in judicial custody exceeding 30 days,
he will incur disqualification of his President post as per S.45 and 47 of the Tamil
Nadu Panchayats Act, 1994.
The learned PP has no serious objection and submitted before the Court as
a special case in view of substantial part of investigation has already been
completed, petitioners may be released imposing condition.
Considering that the substantial part investigation has already completed
and further detention of first petitioner in Crl.M.P.5683/2003 is likely to incur
disqualification of holding the post of village President by the first petitioner, this
Court is inclined to grant bail to the petitioner imposing condition.
Hence, the petitioners 1 to 7 in Crl.M.P.5683/2003 and the petitioner in
Crl.M.P.5451/2003 are ordered to be released on bail on their each executing a
bond for Rs.5,000/- together with two sureties each for a like sum to the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
satisfaction of J.M.I, Vriddhachalam and on further condition that they shall
appear before the I.O. at 10.30 a.m. until further orders.”
39 Now, reverting to our narration of the facts, after all the eight accused
were released on bail, Samikannu (P.W.1), Ilayaperumal, Kannadasan and
Ayyasamy, approached this Court under Section 482 Cr.P.C. in Crl.O.P.No.31572
of 2003 seeking CBI investigation of the case in Vriddhachalam P.S.Cr.No.356 of
2003 and payment of compensation to them. They also filed an application in
Crl.O.P.No.31850 of 2003 seeking cancellation of bail that was granted to
Duraisamy (A.1), Marudhupandiyan (A.2), Rangasamy (A.3) and Anbalagan
(P.W.29) and Crl.O.P.No.31581 of 2003 seeking quashment of the prosecution
against them in Vriddhachalam P.S.Cr.No.356 of 2003.
40 While the aforesaid petitions were pending before this Court,
Sellamuthu (A.15), Inspector, Vriddhachalam Police Station, completed the
investigation in Cr.No.356 of 2003 and filed a charge sheet (final report) in
Ex.P.55 before the Judicial Magistrate No.I, Vriddhachalam on 16.09.2003 for the
offences under Sections 147, 302 and 201 IPC against eight persons, viz.,
Duraisamy Padayachi, Marudhupandiyan, Rangasamy and Anbalagan (all
Vanniyars) on the one hand and Ilayaperumal, Kannadasan, Samikannu and
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Ayyasamy (all Dalits), on the other. The Magistrate took the case on file as
P.R.C.No.18 of 2003.
41 In the meantime, the criminal original petitions filed by Samikannu
(P.W.1) and others seeking CBI investigation and compensation, cancellation of
bail and quashment of the prosecution in Vriddhachalam P.S.Cr.No.356 of 2003,
were finally heard by a learned single Judge of this Court. In the said petitions,
Duraisamy (A.1) filed a counter affidavit, the relevant portion of which has been
extracted in the order of the learned single Judge and the same reads thus:
“28. … … The second respondent’s daughter Kannagi had finished
her diploma in M.G.R. Co-operative Training Centre and for further
education, she had joined B.Com in Correspondence course in Annamalai
University, Chidambaram. She used to go to Chidambaram Annamalai
University to attend the seminars, which is conducted normally once in a
month. On 3.7.2003, his daughter was missing from his house and he was
informed that his daughter was taken away by one Murugesan, the son of
the petitioner. One Ayyasamy, the brother of the petitioner had also
informed him that his daughter and the petitioner’s son have eloped and that
they and also searching for the petitioner’s son. Considering the family
situation and the future of his two other daughters, who are yet to be
married, the second respondent was in search of his second daughter in
Chidambaram, Cuddalore and in his relatives houses, but he was not able to
trace her.
29. On 08.07.2003, the second respondent was informed by some of
the villagers that two bodies were lying at Ponneri Kulakuttai. Immediately,
he went to the place and saw his daughter lying dead along with the said
Murugesan. The petitioner and his family members were also present in the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
place and the villagers also gathered there in large numbers. The second
respondent shocked and stunned on seeing his daughter dead and he was
not able to comprehend the situation. Having lost his daughter and without
knowing what to do and on considering the future of his other two
daughters, after discussing with the petitioner and his family members and
the elder members of the village, he had taken the body of his daughter and
performed the funeral of his daughter. The petitioner had also taken his son
and performed the funeral of his son.
30. Subsequently, on 17.07.2003, the first respondent had taken the
respondents 2 to 5 to the police station and there, the petitioner,
Ilayaperumal and Ayyasamy, the brothers of the petitioner and one
Kannadsan, the brother-in-law of the petitioner were also present. The
Village Administrative Officer was also present in the police station. The
second respondent was asked to sign in some blank papers. The second
respondent and others were detained in the station on that day. The police
informed him that they registered a case against him and seven others in
Crime No.356 of 2003 for alleged offence under Sections 201, 147, 302
I.P.C. in respect of the death of his daughter and the son of the petitioner.”
Thus, according to the counter affidavit filed by Duraisamy (A.1), his daughter
Kannagi and Murugesan eloped on 03.07.2003; later, he found their bodies on
08.07.2003 in Ponneri pond; thereafter, he cremated Kannagi’s body and likewise,
Samikannu (P.W.1) also cremated his son Murugesan’s body.
42 This narrative of Duraisamy (A.1) is in sync with his statement under
Section 164 Cr.P.C. However, Duraisamy (A.1) has repudiated the case of the
Vriddhachalam police that he gave an extrajudicial confession to Ashokan
(P.W.32), V.A.O. on 17.07.2003 and instead, he has taken a stand that the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Vriddhachalam police fabricated the extrajudicial confession (Ex.P.9) and foisted
a case on him.
43 However, the learned single Judge did not buy the tall tales of
Duraisamy (A.1) and the Vriddhachalam police and therefore, he cancelled the
bail of Duraisamy (A.1) and ordered investigation by the CBI vide order dated
22.04.2004. To be more precise, it may be necessary to extract the operative
portion of the order dated 22.04.2004 that was passed by the learned single Judge
in Crl.O.P.Nos.31572, 31850 and 31851 of 2003:
“47. From the decisions cited above, it is clear that in cases where the
credibility of police investigation is shaken and undermines the faith of common
man and police acted in a partisan manner, in the interest of justice, it is necessary
to get fresh investigation made through an independent authority so that truth may
be known. In a given situation of the facts of this case, to do justice between the
parties and to instill confidence in the public mind, it has become necessary to
request the Central Bureau of Investigation to make further investigation in the
above case.
48. Therefore, charge sheet filed in crime No.356 of 2003 on the file of the
third respondent, which was taken on file as P.R.C. No.18 of 2003 on the file of
the Judicial Magistrate, Vriddhachalam, is to be further investigated by the
Central Bureau of Investigation, who shall file an application before the
concerned Magistrate seeking permission for further investigation and to conduct
investigation and file a final report according to law. With these observations, the
above Crl.O.Ps. are closed.” (emphasis supplied)
44 We have found it necessary to extract the operative portion of the
order dated 22.04.2004, inasmuch as, an argument was advanced at the bar by the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
defence that, what was ordered by the learned single Judge was not a de novo
investigation, but was only a further investigation and therefore, the entire trial
pursuant to the investigation made by the CBI stood vitiated. We will answer this
argument at the appropriate time.
45 Pursuant to the order dated 22.04.2004 passed by the learned single
Judge, the CBI took up the investigation of the case in Vriddhachalam
P.S.Cr.No.356 of 2003 and filed an application in Crl.M.P.No.885 of 2004 under
Section 173(8) Cr.P.C. seeking further investigation before the Judicial Magistrate
No.1, Vriddhachalam, which was allowed on 19.05.2004 in view of the order
dated 22.04.2004 passed by the High Court. Accordingly, the CBI re-registered
the case in Vriddhachalam P.S.Cr.No.356 of 2003 as RC 3(S) dated
21.05.2004/CBI/SCB and investigation was initially conducted by Subbian
(P.W.50), Inspector of Police, CBI.
46 As the Chief Judicial Magistrate, Chengalpet, was the designated
Court for CBI Cases, an application was filed for transfer of the records from the
file of the Court of the Judicial Magistrate No.I, Vriddhachalam, to the file of the
Chief Judicial Magistrate Court, Chengalpet.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
47 After the transfer of records to the Court of the Chief Judicial
Magistrate, Chengalpet, during the course of investigation by Subbian (P.W.50),
Inspector of Police, it came to light that offences under the Scheduled Castes &
Schedules Tribes (PoA) Act (for brevity “the SC/ST Act”) also had been
committed and therefore, vide order dated 14.07.2004 (Ex.P.64) of the
Superintendent of Police, CBI, the investigation of the case was handed over to
Nandakumar (P.W.51), Deputy Superintendent of Police, with a direction to
Subbian (P.W.50), Inspector of Police, to assist Nandakumar (P.W.51), Deputy
Superintendent of Police, in conducting the investigation.
48 Since the bail of Duraisamy (A.1) was cancelled by this Court vide
order dated 22.04.2004, the CBI re-arrested him on 29.05.2004. Apart from
Duraisamy (A.1), the CBI also arrested Kanthavel (A.5), Jothi (A.6) and
Venkatesan (A.7) on 20.07.2005, Mani (A.8) on 07.10.2005, and Gunasekaran
(A.9), Dhanavel (A.10), Anjapuli (A.11), Ramadass (A.12) and Chinnadurai
(A.13) on 20.07.2005.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
49 At the request of the CBI, the statements of around 10 witnesses were
recorded by Mr.Rajendran (P.W.45), Judicial Magistrate No.1, Chengalpet, under
Section 164 Cr.P.C.
50 At the request of the CBI, Mr.Ravindran (P.W.46), Judicial
Magistrate, Tambaram, conducted a test identification parade for the witnesses,
Saroja (P.W.23) and Indrani (P.W.24), to identify Marudhupandiyan (A.2),
Kanthavel (A.5), Venkatesan (A.7), Mani (A.8), Gunasekaran (A.9),
Dhanavel (A.10), Anjapuli (A.11) and Chinnadurai (A.13).
51 We feel that it may not be necessary to discuss who all these two
Dalit witnesses (P.Ws.23 & 24) identified in the test identification parade, for,
they turned completely hostile and did not identify any accused in the dock.
52 After completing the investigation, Nandakumar (P.W.51), Deputy
Superintendent of Police, filed a final report (charge sheet) on 14.10.2005 in the
Court of the Chief Judicial Magistrate, Chengalpet, against 15 accused, including
Tamilmaran (A.14), Sub Inspector, Vriddhachalam Police Station and Sellamuthu
(A.15), Inspector, Vriddhachalam Police Station.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
53 To be noted, it was these two officers, viz., Tamilmaran (A.14), who
had initially registered the FIR in Vriddhachalam P.S.Cr.No.356 of 2003, and
Sellamuthu (A.15), who had completed the investigation and filed the final report
(charge sheet) against 8 accused before the Judicial Magistrate No.I,
Vriddhachalam, about which, we have discussed in detail above.
54 Now, let us examine the fourth narrative, viz., the CBI’s narrative in
the present charge sheet, as is disclosed therein which reads thus:
“The investigation conducted by CBI disclosed that, Murugesan
S/o.Samikannu, a schedule caste youth and Kannagi, D/o.Duraisamy, a
Vanniyar girl, while living in village Pudukoorapettai, developed an intima-
cy and clandestinely entered into the wedlock at Registrar Office, Cuddalore
on 05.05.03. However, they continued to stay with their respective parents
till 03.07.03, the date on which Murugesan and Kannagi left the village.
When the missing of his daughter came to the notice of Duraisamy (A1), he
entered into a criminal conspiracy on or before 08.07.2003 with Marutha-
pandiyan (A2), D.Rangasamy (A3), Ayyasamy (A4), Kandhavelu (A5),
Jothi (A6), G.Venkatesan (A7), Mani (A8), Gunasekaran (A9), Dhanavel
(A10), Anjapuli (A11), K.Ramdass (A12) and N.Chinnadurai (A13) with
intention to cause death of Murugesan and Kannagi as they brought bad
name to Vanniyar community, and in furtherance of the said criminal con-
spiracy, the accused formed an unlawful assembly with common object to
kill both Murugesan and Kannagi, secured the presence of Murugesan
through Ayyasamy (A4), uncle of Murugesan at Pudukoorapettai on
07.07.03 evening. Murugesan was then wrongfully confined/illegally de-
tained undressed, tied and tortured by Duraisamy (A1), Maruthapandiyan
(A2), D.Rangasamy (A3), Ayyasamy (A4), Kandhavelu (A5), Jothi (A6),
G.Venkatesan (A7), Mani (A8), Gunasekaran (A9), Dhanavel (A10), An-
japuli (A11), K.Ramdass (A12) and N.Chinnadurai (A13) to get the infor-
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
mation of whereabouts of Kannagi which may facilitate the commission of
offence. Unable to bear the torture, Murugesan informed that Kannagi was
available in the house of Smt.Saroja, a relative, at Moongilthuraippattu. On
getting this information, Duraisamy (A1) arranged a TATA sumo vehicle
bearing registration No.TN-23-C-5282 and Ayyasamy (A4), Kandhavelu
(A5), Jothi (A6), G.Venkatesan (A7), Mani (A8), Gunasekaran (A9),
Dhanavel (A10) and Anjapuli (A11) on 07.07.03 night proceeded to
Moongilthuraippattu with an intention to abduct her and cause death of
Kannagi and brought Kanngai by force from the house of Smt.Saroja to
Pudukoorapettai around 5.30 a.m. on 08.07.03. Till such time, Murugesan
was wrongfully confined/illegally detained, undressed, tied and tortured by
Duraisamy (A1), Maruthapandi (A2), D.Rangasamy (A3), Ramdass (A12)
and Chinnadurai (A13). They committed atrocities against Murugesan
knowing fully well that he belongs to scheduled caste community. On
reaching Pudukoorapettai on 08.07.03 early hours, Kannagi was taken to a
cashew grove, opposite to Pudukoorapettai Village. Murugesan was also
taken to the said grove by the accused persons. In furtherance to the said
conspiracy and with an intention to cause death of Murugesan and Kannagi
by administering poison, Duraisamy brought 'Nuvacron', a pesticide and a
steel tumbler to the cashew grove. He went near Kannagi and spat on her
face stating that she is unfit to live. Thereafter, Duraisamy (A1) handed over
the poison along with the steel tumbler to his son Maruthupandi (A2).
Maruthupandi poured the poison in the tumbler and administered the same
to Kannagi and caused death of Kannagi. Thereafter, Maruthupandian (A2)
took the poison to Murugesan who was wrongfully confined and detained
by Ayyasamy (A4) and Gunasekaran (A9) and after pouring the same in the
tumbler, handed it over to Ayyasamy with a direction to administer the same
to Murugesan. Ayyasamy did so and caused death of Murugesan. There-
after, the deadbodies of Murugesan and Kannagi were disposed off by the
accused persons on 08.07.03 morning itself to cause disappearance of evi-
dence with the intention of screening the offender form legal
punishment…”
55 In their final report, the CBI have stated that they were not able to
gather incriminating materials against four accused, viz., Anbalagan, Ilayaperumal,
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Kannadasan and Samikannu, who were named in the final report (Ex.P.10) filed
by the Vriddhachalam police.
56 A précis of the CBI’s final report (fourth narrative) is that Murugesan
and Kannagi eloped; Murugesan was brought to Pudukkooraipettai Village by his
junior paternal uncle Ayyasamy (A.4) on the direction of Marudhupandiyan (A.2);
Murugesan was tortured by Duraisamy (A.1) and his group to reveal the
whereabouts of Kannagi; he revealed that Kannagi was in Moongilthuraipattu
Village in the house of Saroja (P.W.23), the mother-in-law of Ayyasamy (A.4);
Kannagi was thereafter brought to Pudukkooraipettai Village in the early hours of
08.07.2003; Duraisamy (A.1) directed his son Marudhupandiyan (A.2) to give
poison to Kannagi; accordingly, Marudhupandiyan (A.2) did so; Duraisamy (A.1)
directed Ayyasamy (A.4) to give poison to Murugesan; accordingly, Ayyasamy
(A.4) did so; the couple died after consuming the poison and they were cremated.
57 Though the final report was filed by the CBI on 14.10.2005, the case
was committed to the Court of Session only on 15.03.2010 (after a lapse of over 4
years) and the trial Court was able to frame 15 charges and question the accused
only on 14.07.2017 (after a lapse of over seven years since committal). The
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
reason for this inordinate delay is the filing of several petitions on behalf of the
accused like petitions for discharge under Section 227 Cr.P.C. and filing of
petitions on the side of the victims seeking cancellation of the bail of some of the
accused for intimidating witnesses. Noteworthy it is that in the trial Court
judgment, the trial Judge has meticulously set out in the preamble portion, all the
required details, including the petitions that were filed in the High Court. Upon
examining the trajectory of the case in the trial Court, we are reminded of the
following observation of a Constitution Bench of the Supreme Court in Hardeep
Singh v State of Punjab and others [(2014) 3 SCC 92]:
“19. ….. The desire to avoid trial is so strong that an accused makes
efforts at times to get himself absolved even at the stage of investigation or
inquiry even though he may be connected with the commission of the
offence.”
58 It is seen from the preamble portion of the trial Court judgment that
Ramadass (A.12) and Chinnadurai (A.13) filed a petition in Crl.M.P.No.6056 of
2012 under Section 227 Cr.P.C. seeking discharge from the prosecution and the
same was not pressed on 23.08.2013. Thereafter, they once again filed a fresh
application for discharge in Crl.M.P.No.2870 of 2014, which was dismissed by the
trial Court on 18.04.2015. Challenging the same, they preferred a revision in
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Crl.R.C.No.716 of 2015 in the High Court, which was dismissed on 01.06.2017
with a direction to the trial Court to complete the trial within a period of four
months.
59 The trial Court, initially, framed 15 charges as under:
Charge No. Description of charge
1 Under Section 120-B IPC read with Section 302 IPC (2 counts)
against AA 1 to 13 conspiring to commit the murders of Murugesan
and Kannagi.
2 Under Section 147 IPC against AA 1 to 13 for forming an unlawful
assembly on 07.07.2003 in Pudukkooraipettai Village with the common
object of causing the death of Murugesan and Kannagi.
3 Under Section 347 IPC against AA 1 to 13 for illegally confining
Murugesan on 07.07.2003, torturing him by tying his legs and lowering
him upside down in a deep bore well to make him disclose the
whereabouts of Kannagi.
4 Under Section 364 IPC against AA 4 to 11 for going by Tata Sumo car
bearing Regn.No. TN 23 C 5282 (M.O.7) on 07.07.2003 to the house of
Saroja (P.W.23) at Moongilthuraippattu for abducting Kannagi
therefrom to Pudukkooraipettai Village on 08.07.2003 and torturing
her.
5 Under Section 364 IPC read with Section 149 IPC against AA 1 to 3,
A12 and A.13 in respect of the fourth charge.
6 Under Section 3(1)(x) of the SC/ST Act against AA 1 to 3, AA5 to 8
and AA10 to 13 for torturing Murugesan knowing full well that he is a
Dalit, by tying his hands and legs and lowering him upside down, into a
deep bore well, for extracting information from him about the
whereabouts of Kannagi.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
7 Under Section 302 IPC against Marudhupandiyan (A.2) for
administering poison, viz., Nuvacron– insecticide, in a stainless
steel tumbler to his sister Kannagi on the directions of his father
Duraisamy (A.1) around 5.30 a.m. on 08.07.2003.
8 Under Section 302 IPC read with Section 149 IPC against AA 1 &
3 to A.13.
9 Under Section 302 IPC against Ayyasamy (A.4) for administering
poison, viz., Nuvacron – insecticide, to Murugesan, on the
directions of Duraisamy (A.1).
10 Under Section 302 IPC read with Section 149 IPC against AA 1 to
3 and AA 5 to 13 in continuation of Charge 9.
11 Under Section 3(2)(v) of the SC/ST Act against AA 1 to 3, AA 5
to 8 and AA 10 to 13 for causing the death of Murugesan on the
ground that being a Dalit, he had fallen in love with Kannagi, a girl
belonging to Vanniyar caste.
12 Under Section 302 read with Section 201 IPC (2 counts) against
AA 1 to 13 for cremating the dead bodies of Murugesan and
Kannagi, thereby causing disappearance of evidence.
13 Under Section 217 IPC against AA 14 and 15 for not registering a
case on 08.07.2013 on the complaint of Chinnapillai (P.W.49),
mother of Murugesan and thereafter, registering a case only on
17.07.2003 in Vriddhachalam P.S.Cr.No.356 of 2003 (i.e., after 8
days from the date of the occurrence)
14 Under Section 218 IPC against AA 14 and 15 for fabricating
records, viz., recording the confession statement of Ilayaperumal,
preparing a mahazar as if a steel tumbler was recovered based on
his disclosure in order to screen the actual offenders.
15 Under Section 4 of the SC/ST Act against AA 14 and 15 for not
registering a case on the complaint of Chinnapillai (P.W.49)
knowing full well that she is a Dalit and the mother of Murugesan.
60 During the course of the trial, an additional charge, viz., Charge 16
was framed by the trial Court on 15.12.2020 under Section 3(2)(i) of the SC/ST
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Act against AA 14 and 15 for falsely implicating Ilayaperumal, Kannadasan and
Samikannu as accused in Vriddhachalam P.S.Cr.No.356 of 2003 for the offence
under Section 302 IPC, knowing full well that they were Dalits, which would have
resulted in life imprisonment for them.
61 All the accused pleaded “not guilty” to the charges.
62 To prove the case, the prosecution examined 51 witnesses and
marked 64 exhibits and 7 material objects.
63 When the accused were questioned under Section 313 Cr.P.C. on the
incriminating circumstances appearing against them, they denied the same. No
witness was examined from the side of the accused nor was any document marked
in furtherance of their case.
64 After considering the evidence on record and hearing either side, the
trial Court, vide judgment and order dated 24.09.2021 in S.C.No.3 of 2019,
acquitted Ayyasamy (A.4) and Gunasekaran (A.9) of all the charges and convicted
and sentenced the remaining accused as under:
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Provision under
Name of the accused Sentence
which convicted
Section 120-B r/w. Life imprisonment for each count and fine of
302 IPC (2 counts) Rs.50,000/- each for each count
2 years rigorous imprisonment and fine of Rs.5,000/-
Duraisamy (A.1) Section 147 IPC
each
Marudhupandian (A.2)
Rangasamy (A.3)
Kanthavel (A.5) 3 years rigorous imprisonment and fine of Rs.10,000/-
Section 347 IPC
Jothi (A.6) each
Venkatesan (A.7)
Mani (A.8) Section 3(1)(x) SC/ST 5 years rigorous imprisonment and fine of Rs.10,000/-
Dhanavel (A.10) (POA) Act each
Anjapuli (A.11)
Ramadass (A.12)
Chinnadurai (A.13) Section 3(2)(v) SC/ST Life imprisonment and fine of Rs.50,000/- each for each
(POA) Act (2 counts) count
Section 302 r/w. 7 years rigorous imprisonment and fine of Rs.20,000/-
201 IPC (2 counts) for each count
Duraisamy (A.1)
Rangasamy (A.3)
Kanthavel (A.5)
Jothi (A.6)
Section 302
Venkatesan (A.7) Life imprisonment and fine of Rs.50,000/- each for each
r/w. 149 IPC
Mani (A.8) count
(2 counts)
Dhanavel (A.10)
Anjapuli (A.11)
Ramadass (A.12)
Chinnadurai (A.13)
Section 302 r/w.
Life imprisonment and fine of Rs.50,000/-
149 IPC (1st count)
Marudhupandian (A.2)
Section 302 IPC
Death sentence and fine of Rs.1,00,000/-
(2nd count)
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Duraisamy (A.1)
Marudhupandian (A.2)
Rangasamy (A.3) Section 364 read
Life imprisonment and fine of Rs.50,000/- each
Anjapuli (A.11) with 149 IPC
Ramadass (A.12)
Chinnadurai (A.13)
Kanthavel (A.5)
Jothi (A.6)
Venkatesan (A.7) Section 364 IPC Life imprisonment and fine of Rs.50,000/- each
Mani (A.8)
Dhanavel (A.10)
2 years rigorous imprisonment and fine of
Section 217 IPC
Rs.10,000/- each
3 years rigorous imprisonment and compensation of
Rs.3,00,000/- each to Samikannu (P.W.1),
Section 218 IPC
Tamilmaran (A.14) Kannadasan (P.W.33) and the family of
Chellamuthu (A.15) Ilayaperumal (since deceased)
Section 4 1 year rigorous imprisonment and fine of Rs.5,000/-
SC/ST (POA) Act each
Section 3(2)(i)
Life imprisonment and fine of Rs.1,00,000/- each
SC/ST (POA) Act
65 As for Duraisamy (A.1), Marudhupandian (A.2), Rangasamy (A.3),
Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Mani (A.8), Anjapuli (A.11),
Ramadass (A.12), Chinnadurai (A.13), Tamilmaran (A.14) and Chellamuthu
(A.15), the sentences imposed on them were ordered to run concurrently. It was
further ordered that in the event of the said accused committing default qua
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
payment of fine, their properties attached by the Court would be proceeded against
to recover the same.
66 Since Marudhupandiyan (A.2) was sentenced to death by the trial
Court, the case was referred to this Court for confirmation under Section 366 Cr.P.C.
and was taken on file as R.T.No.4 of 2021, as alluded to in the opening paragraph.
67 Challenging their respective conviction and sentences, the accused
have preferred six appeals, the details of which are as under:
Name of accused Crl.A. No.
C. Duraisamy (A.1) 523 of 2021
D. Rangasamy (A.3)
G. Kanthavel (A.5)
G. Jothi (A.6)
G. Venkatesan (A.7)
R. Mani (A.8)
D. Marudhupandiyan (A.2) 504 of 2021
R. Dhanavel (A.10) 524 of 2021
V. Anjapuli (A.11)
K. Ramadoss (A.12) 522 of 2021
N. Chinnadurai (A.13)
K.P. Tamilmaran (A.14) 626 of 2021
M. Sellamuthu (A.15) 483 of 2021
68 The CBI have not challenged the acquittal of Ayyasamy (A.4) and
Gunasekaran (A.9).
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
69 Heard Mr.K.Srinivasan, learned Special Public Prosecutor for the
CBI, who commenced the arguments in R.T.No.4 of 2021 followed by
Mr.V.Gopinath, learned Senior Counsel appearing for Duraisamy (A.1),
Marudhupandiyan (A.2), Jothi (A.6), Venkatesan (A.7) and Mani (A.8);
Mr.S.Ashok Kumar, learned Senior Counsel appearing for Rangasamy (A.3),
Kanthavel (A.5) and Dhanavel (A.10); Mr.S.Prabakaran, learned Senior Counsel
appearing for Anjapuli (A.11) and Chinnadurai (A.13); Mr.V.Karthic, learned
Senior Counsel appearing for Ramadass (A.12); Mr.S.Karthikeyan, learned
counsel for Tamilmaran (A.14); and Mr.S.Doraisamy, learned counsel for
Sellamuthu (A.15).
70 Since the criminal miscellaneous petitions of Samikannu (P.W.1) and
Velmurugan (P.W.2) filed under Sections 15-A(3) and 15-A(5) of the SC/ST Act
read with Sections 374 and 482 Cr.P.C. seeking to be heard in this batch of cases
were allowed by this Court on 05.04.2022, his counsel Dr.V.Suresh advanced
arguments on behalf of the family of the deceased Murugesan for sustaining the
trial Court judgment.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
71 At the outset, we notice that this case has had a roller coaster ride
which is apparent from the aforesaid four narratives. The double murder had
taken place in the year 2003 and the trial had begun with the examination of
Samikannu (P.W.1) on 28.08.2017, i.e., nearly 14 years later, and this explains
why 32 prosecution witnesses, including some Vanniyars as well Dalits, and some
local policemen attached to the Vriddhachalam Police Station, who had retired
from service by then, had turned hostile. The caste composition of the witnesses
as disclosed in their deposition shows that 18 witnesses belonging to Vanniyar
caste, had turned hostile and 10 witnesses belonging to Dalit community, had
turned hostile.
72 What nagged us was as to why the Dalits turned hostile. We found the
answer to this question in the petition in Crl.M.P.No.3747 of 2013 that was filed
by the trial Court Public Prosecutor to cancel the bail of the accused on the ground
that they were intimidating the witnesses, both Vanniyars and Dalits, from
deposing against them. In fact, it appears that one witness by name Selvaraj
(L.W.26) committed suicide after he received summons to give evidence in this
case. In connection with the suicide of Selvaraj (L.W.26), a case in Cr.No.642 of
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
2017 was registered on 01.09.2017 by the Vriddhachalam Police under Section
174 Cr.P.C. However, the trial Court dismissed Crl.M.P.No.3747 of 2013 on the
ground that those witnesses who earlier complained that they were intimidated,
came to the Court and stated that they were not intimidated. Further, the
Additional Superintendent of Police, CBI, has averred as under in the counter
affidavit filed in Crl.M.P.No.4111 of 2017 that was filed by Samikannu (P.W.1)
under Section 311 Cr.P.C. seeking to examine Chinnapillai (P.W.49) as a witness:
“During investigation, it was revealed that being poor and reserved
community the people belong to Scheduled Caste were subjected to
harassment by the higher and dominant community, i.e., Vanniyar which
resulted in the murder of Murugesan and Kannagi. Even after the murder
of Murugesan and Kannagi also, the higher community dominated the
reserved community people who are the victims in the case by the way of
threatening and intimidating them to depose in their favour before this
Hon’ble Court.”
This Court cannot be impervious to these events that transpired before the trial
Court and go about appreciating the evidence of the witnesses in a pedestrian
manner with blinkers.
73 The prosecution case mainly rests on the testimony of Samikannu
(P.W.1), Velmurugan (P.W.2), Palanivel (P.W.3), Tamilarasi (P.W.15) and
Chinnapillai (P.W.49). It is true that Samikannu (P.W.1) and Chinnapillai
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
(P.W.49) are the parents of Murugesan; Velmurugan (P.W.2) and Palanivel
(P.W.3) are Murugesan’s younger brothers; and Tamilarasi (P.W.15) is
Murugesan’s sister. Therefore, the defence strenuously contended that these five
witnesses are interested witnesses and they have not implicated Ayyasamy (A.4)
and Gunasekaran (A.9) at all and hence, their evidence is not worthy of acceptance
and should be rejected lock, stock and barrel. They also drew the attention of this
Court to the contradictions in the inter se testimony of these witnesses as well the
contradictions in their individual testimony qua their police statements.
74 The defence further contended that what was directed by the High
Court vide order dated 22.04.2004 in Crl.O.P.Nos.31572, 31850 and 31851 of
2003 was only “further investigation” under Section 173 (8) Cr.P.C. and instead of
doing that, the CBI had done “re-investigation” and therefore, the entire trial
stands vitiated.
75 To appreciate this argument, we carefully perused the order dated
22.04.2004. The admitted fact remains that on 08.07.2003, Murugesan and
Kannagi had an unnatural death. According to Vriddhachalam police, whose
station is just 3 kms. from Pudukkooraipettai Village, they were blissfully
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
ignorant of the occurrence on 08.07.2003. At this juncture, let us give them the
benefit of doubt that they did not know anything about the incident that occurred
on 08.07.2003. According to them, they woke up only on 17.07.2003 after
Duraisamy (A.1) surrendered before Ashokan (P.W.32), V.A.O. and gave an
extrajudicial confession (Ex.P.9) implicating himself and Samikannu (P.W.1).
The arrest by the Vriddhachalam police of the four Dalits, along with 4 persons of
Vanniyar caste, and their release from prison on bail within 23 days of the arrest,
triggered Samikannu (P.W.1) to approach this Court and seek CBI investigation.
76 As stated supra, the learned single Judge did not fall for the story
proferred by the Vriddhachalam police and in paragraph 47 which has been
extracted in paragraph 43 (supra), it could be seen that the learned single Judge
has used the expressions “fresh investigation” and “further investigation”. In other
words, the learned single Judge wanted an independent agency to investigate into
the matter to unravel the truth.
77 Normally, further investigation would be done only by the police who
had conducted the initial investigation. In this case, there had been a change of
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
investigation agency itself and the CBI was directed to conduct further
investigation.
78 Under such circumstances, the argument of the defence that the CBI
should have continued with the investigation that was done till then by the
Vriddhachalam police and that the CBI should not have gone about collecting
materials afresh, cannot be countenanced. After all, the definition of the word
“investigation” as defined under Section 2(h) Cr.P.C., 1973, is wide enough to
enable the CBI to go about collecting evidence. In the course of collecting
evidence, if they stumble upon fresh materials which run contra to the story of the
Vriddhachalam police, it is their bounden duty to investigate the same.
79 The principal accused, viz., Duraisamy (A.1) and Marudhupandiyan
(A.2) also did not build up their case based on the FIR registered by the
Vriddhachalam police, because, it would have been suicidal to them had they done
so, since the said FIR was predicated on the extrajudicial confession (Ex.P.9) of
Duraisamy (A.1), wherein, it is stated that since his daughter Kannagi eloped with
a Dalit boy, he felt ashamed and so, he had them brought before him and directed
his son Marudhupandiyan (A.2) to administer poison to Kannagi.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
80 At this juncture, we would like to answer yet another argument that
was advanced by the defence, in that, they contended that even in the order dated
22.04.2004 of the learned single Judge, it has been observed that offences under
the SC/ST Act appear to have been committed and therefore, after the case was
transferred to the CBI, Subbian (P.W.50), Inspector of Police, ought not to have
conducted the investigation, inasmuch as, offences under the SC/ST Act could be
investigated only by an officer not below the rank of a Deputy Superintendent of
Police.
81 We find that the Investigating Officers have been questioned by the
defence on this aspect in the cross-examination also. On a careful reading of the
order dated 22.04.2004 passed by the learned single Judge, we find that only the
contentions of both parties have been extracted therein, in that, Samikannu
(P.W.1) had contended that the provisions of the SC/ST Act would stand attracted,
whereas, the Vriddhachalam police had contended that their investigation did not
reveal about the commission of an offence under the SC/ST Act. The learned
single Judge has not returned a finding that the provisions of the SC/STAct stood
attracted in this case at all, because, what was dealt with in those petitions was,
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
whether investigation that was being done by the Vriddhachalam police was
proceeding on the right lines or not and whether the bail of the accused should be
cancelled.
82 Assuming for a moment that, in the course of the discussion, an
observation had been made by the learned single Judge to the effect that the
provisions of the SC/ST Act would stand attracted, that cannot be binding on the
Investigating Officer, because, the Investigating Officer is required to collect
evidence, assess the evidence so collected and form an independent opinion
therefrom. In this case, the Vriddhachalam police had not included the provisions
of the SC/ST Act in their FIR and charge sheet. Therefore, when the case was
transferred to the CBI, the investigation was entrusted to Subbian (P.W.50),
Inspector of Police, who went about collecting evidence. During such collection,
he came to know that the provisions of the SC/ST Act could be triggered.
Thereupon, he reported the matter to the Superintendent of Police of the CBI, who
passed an order directing Nandakumar (P.W.51), Deputy Superintendent of Police,
to conduct the investigation with a further direction that Subbian (P.W.50), should
assist him.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
83 The issue of an incompetent officer conducting an investigation and
the results flowing therefrom has been set at rest by the Supreme Court in
H.N.Rishbud and Inder Singh v State of Delhi [AIR 1955 SC 196], the relevant
portion of which reads thus:
“9. ……We are, therefore, clearly, also, of the opinion that where the
cognizance of the case has in fact been taken and the case has proceeded to
termination, the invalidity of the precedent investigation does not vitiate the
result, unless miscarriage of justice has been caused thereby.”
The defence was not able to place any material before this Court to show that they
had suffered prejudice because of Subbian (P.W.50), Inspector of Police, going
about recording the statements of some witnesses at the initial stage.
84 The learned defence counsel took this Court through the charge sheet
filed by the CBI and submitted that the CBI have stated as under:
“As far as the accused A. Anbalagan (A16), Ilayaperumal (A17),
Kannadasan (A18) and Samikannu (A19) are concerned, no evidence has
come forth to establish the involvement in the commission of the offences.
As such, they may be discharged from the commission of the offences.”
85 The learned defence counsel contended that it is not open to the CBI
to say that the aforesaid persons should be discharged and that it is for the
Magistrate to accept or reject the final opinion of the CBI. They also contended
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
that the names of the aforesaid four persons have been included as part of the
profile of the accused persons and also in the memo of evidence as prosecution
witnesses. All these, according to the defence, vitiated the trial.
86 We carefully perused the final report filed by the CBI. According to
the final report filed by the Vriddhachalam Police Station, Anbalagan,
Ilayaperumal, Kannadasan and Samikannu (P.W.1) were arraigned as accused by
them. According to the CBI, these four persons were falsely implicated by
Sellamuthu (A.15). Therefore, the CBI have stated so in the above quoted
paragraph. Just because they have used the expression “may be discharged”, that,
by itself, would not vitiate the entire case of the prosecution. It would be a
travesty of justice if the wrong usage of an English expression by the investigating
agency in the charge sheet were to vitiate a trial. Such extreme propositions must
be treated as being stated only to be rejected.
87 As regards the profiles of the said four persons that have been given
along with the charge sheet, a careful examination shows that the CBI have clearly
stated in the heading “Not charge sheeted”. The fact that the Chief Judicial
Magistrate, Chengalpet, took cognizance of the offences disclosed in the final
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
report under Section 190 Cr.P.C. and issued process under Section 204 Cr.P.C. to
AA 1 to 15 and not to the aforesaid four persons itself, shows that the Chief
Judicial Magistrate, Chengalpet, has accepted the opinion of the Investigating
Officer that there are materials only against AA 1 to 15 to be prosecuted and not
against the aforesaid four persons. Hence, this argument of the defence fails.
88 Yet another peripheral complaint that was articulated before us was
that the CBI had recorded the statements of witnesses in English and not in Tamil.
When this question was put to Nandakumar (P.W.51), Deputy Superintendent of
Police in the cross-examination, he stated that since superior officers of the CBI in
Delhi do not know Tamil, they normally record the statements of witnesses in
English for their benefit. We are at a loss to understand as to how, this could, in
any manner, cause prejudice to the accused. In any event, a statement recorded by
a police offcer has no evidentiary value at all and it can, at the most, be used for
contradicting the witnesses during cross-examination whilst they are in the witness
box. The police statements that are supplied to the accused under Section 207
Cr.P.C. are intended to put the accused on prior notice as to what a particular
witness is likely to depose in the trial. Even if the police had not recorded the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
statement of a person, he can still be examined as a witness during trial. [See
Dayal Singh v State of Maharashtra [(2007) 12 SCC 452]. Further, in Zahira
Habibullah H. Sheikh and another v State of Gujarat and others [(2004) 4
SCC 158], the Supreme Court has very clearly held that it is not necessary for the
police to record the statement in the language known to the giver. What the Court
is required to analyse is, not the statement recorded by the police under Section
161 Cr.P.C., but, the testimony of the witness in the witness stand. Therefore, we
have to assess the intrinsic worth of the evidence of Samikannu (P.W.1),
Velmurugan (P.W.2), Palanivel (P.W.3), Tamilarasi (P.W.15) and Chinnapillai
(P.W.49).
89 The contention that Samikannu (P.W.1), Velmurugan (P.W.2),
Palanivel (P.W.3), Tamilarasi (P.W.15) and Chinnapillai (P.W.49) are unworthy of
credit as they are interested witnesses, suffers from the usual fallacy that a witness
must be branded as interested merely because he is related to the deceased. This is
a regular plea that the defence normally take, for which, Vivian Bose, J., has
provided an answer five decades ago in Dalip Singh and 3 others v State of
Punjab [AIR 1953 SC 364] in the following words:
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
“26. A witness is normally to be considered independent unless he or
she springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused, to
wish to implicate him falsely. Ordinarily, a close relative would be the last
to screen the real culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for such a criticism and
the mere fact of relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any sweeping
generalisation. Each case must be judged on its own facts.Our observations
are only made to combat what is so often put forward in cases before us as a
general rule of prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts.”
(emphasis supplied)
90 One more feature in this case is that though the CBI re-registered the
case after taking over the investigation from the Vriddhachalam police, they had
not registered a fresh FIR. They only went about collecting materials in order to
find out how the death of Murugesan and Kannagi had occurred.
91 Now, let us analyse the evidence of Samikannu (P.W.1), Velmurugan
(P.W.2), Palanivel (P.W.3), Tamilarasi (P.W.15) and Chinnapillai (P.W.49).
92 Samikannu (P.W.1) is the father of Murugesan who was born to him
through his first wife Ambika. After Ambika’s demise, Samikannu (P.W.1) got
married to Ambika’s sister, Chinnapillai (P.W.49) and through her, he has three
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
daughters and four sons, of whom, in this case, Velmurugan (P.W.2), Palanivel
(P.W.3) and Tamilarasi (P.W.15) were examined.
93 In his testimony, Samikannu (P.W.1) has stated that his eldest son
Murugesan was a Chemical Engineer from Annamalai University, Chidambaram,
and was employed in Bangalore; about 1 ½ years prior to the demise of
Murugesan, he (P.W.1) relocated his family owing to some quarrel, from
Kuppanatham Village to Pudukkooraipettai Village, where, Duraisamy (A.1) was
the Panchayat President; 5 days prior to the death of Murugesan,
Marudhupandiyan (A.2), armed with a sword, came to his house around 5 p.m.,
looking for Murugesan; Marudhupandiyan (A.2) stated that Murugesan had
borrowed Rs.10,000/- and if he is not brought, he would hack him (P.W.1) to
death; so, he (P.W.1) went in search of Murugesan and found him in the house of
his sister-in-law, Dhanavalli, in Raasaapalayam; there, he also saw a girl with
Murugesan and when enquired, Murugesan told him that she is Kannagi, daughter
of Duraisamy (A.1); so, he advised Murugesan to send Kannagi back to her
parents’ house, because, they (PW1’s family) are Dalits; Murugesan agreed to that
and so, he (P.W.1) returned to his village; again, Marudhupandiyan (A.2) came to
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
his house looking out for Murugesan and so, he once again, went to
Raasaapalayam in search of Murugesan, but, did not find him there; on his return,
he was shocked to learn from his wife Chinnapillai (P.W.49), Maharani (daughter)
and Amaravathi (P.W.16-sister) that in the interregnum, Murugesan and Kannagi
were brought to the village and murdered. Rest of his evidence relating to how
Murugesan and Kannagi were done to death, is hearsay.
94 Samikannu (P.W.1) has further stated that on the next day, when he
wanted to go to the police station, he was abducted by Duraisamy (A.1) and
Marudhupandiyan (A.2) and their men, taken to Rangasamy School in Periyar
Nagar and was threatened to remain silent saying that the matter can be
compromised. They also brought an advocate by name Palanivel and wrote out a
memorandum of compromise. A day later, Duraisamy (A.1) called him to the
police station and when he went there along with his brother Ayyasamy (A.4),
both of them were placed under arrest along with Duraisamy (A.1) and sent to
judicial custody. After his release on bail, he (P.W.1) filed an application in the
High Court seeking CBI investigation.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
95 The defence counsel contended that in the cross-examination,
Samikannu (P.W.1) admitted that he gave a statement to the Judicial Magistrate,
Tittakudi, in which, he had stated that after he was threatened, he went in search of
his son and found him along with a girl in his relative’s house; to this extent, the
previous statement of Samikannu (P.W.1) given under Section 164 Cr.P.C.
corroborates his testimony in the Court; however, when Samikannu (P.W.1) was
asked as to whether he brought the girl and dropped her in Pudukkooraipettai
Village, he denied the same. The defence counsel confronted him with his
statement under Section 164 Cr.P.C., wherein, he has stated that he dropped
Kannagi in Pudukkooraipettai Village and argued that hence, his evidence is not
credible. However, it was suggested to Samikannu (P.W.1) by the defence that
Murugesan and Kannagi committed suicide by consuming poison on account of
some differences of opinion. This is precisely the narrative of Duraisamy (A.1). If
Samikannu (P.W.1) had indeed brought Kannagi back to Pudukkooraipettai
Village leaving Murugesan in his relative’s house, the story of the couple entering
into a suicide pact and committing suicide in Pudukkooraipettai Village defies
common sense and logic. The fact that Samikannu (P.W.1) was intimidated by
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Marudhupandiyan (A.2) demanding production of Murugesan for having
borrowed Rs.10,000/-, has been corroborated by Palanivel (P.W.3) and
Chinnapillai (P.W.49). Thus, from the evidence of Samikannu (P.W.1), it has been
established satisfactorily by the prosecution that Murugesan and Kannagi went
missing and sensing that they had eloped, Marudhupandiyan (A.2), in order to get
hold of Murugesan, contrived a story as if Murugesan had borrowed Rs.10,000/-
from him and demanded his production. Fearing the threat of Marudhupandiyan
(A.2), Samikannu (P.W.1) went in search of Murugesan and saw him with
Kannagi in his relative’s house in Raasaapalayam and persuaded Murugesan to
send Kannagi back to her house.
96 The next vital piece of evidence is that of Velmurugan (P.W.2), the
younger brother of Murugesan, who was studying in XI standard and was 17 years
old when the incident occurred in the year 2003. He was examined as a witness in
this case on 28.08.2017. A free English translation of the chief-examination of
Velmurugan (P.W.2) runs thus:
“At present, I am working as a Social Worker in Trichy. P.W.1 is
my father. My siblings are totally 8 persons. 5 males and 3 females. My
elder brother, deceased Murugesan is the son of Ambika, the first wife of
my father. My elder brother Murugesan had done B.E. Mechanical
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Engineering in Annamalai University, Chidambaram. My elder brother was
done to death by administering poison. My elder brother Murugesan, before
his death, was working in Bangalore. Two days prior to the death of my
elder brother Murugesan, i.e., on 7/7/2003 at around 11:00 am, while I was
coming from Virudhachalam to Pudukooraipatti, Marudhupandian and his
friends, intercepted me, at the ground near water tank, and asked as to
where my brother was. The witness identifies A2 and says that he is
Marudhupandian. They said that my elder brother had borrowed money and
asked as to where he was. They told that if my elder brother did not turn up,
we would not be left alive and that they would not let our family inside the
village. Further, since I did not give proper reply to the questions posed by
Marudhupandi, they locked me up in the store room located below the
Pudukooraipatti water tank. They undressed me and searched the items that
I had kept. Then, they took away the bus ticket that I had kept. Then at
around 4 pm, some unidentified persons released me stating that my elder
brother was traced out. Then, I left for my mother’s house at
Pudukooraipatti. At that time, my mother informed me that my junior
paternal uncle Ayyasamy had brought my elder brother and that I need not
worry. Then, my mother said that my elder brother was kept in the
sugarcane grove of Duraisamy. Then, when I went to sugarcane grove of
Duraisamy, in search of my elder brother, my elder brother was found with
A1-Duraisamy and A4-Ayyasamy, my junior paternal uncle. Then, while
they were talking, within a few minutes, Marudhupandian, A2,
S/o.Duraisamy and his relative A7- Venkatesan, arrived there. They asked
my elder brother Murugesan as to where he was keeping, Kannagi, the
daughter of Duraisamy. Once they had left, my brother Palanivel arrived
there. At that time, my junior paternal uncle Ayyasamy asked Duraisamy as
to why he was taking his elder brother’s son alone on the allegation of
missing of a girl, when he had stated to bring him on the complaint that he
had borrowed money from him. For that, Duraisamy replied that only if it is
stated that he has to give money, he would bring him and that is why he had
stated so. Duraisamy further promised that my brother would be released,
once the girl arrives. Then, my brother Palanivel and I returned home.
Then, while we were at home, at around 7 pm, it was informed by the
villagers that my brother Murugesan had been beaten up, in front of a
temple, where he was put to tether. When I went home, my mother, elder
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
sister Tamilarasi and aunt Amaravathi, were present at home. Then, I, along
with my relatives, elder sister and brothers went to Mariamman temple in
search of him. At that time, my elder brother Murugesan’s hands were
found tied at backside and each one was beating him. At that juncture, all
the accused present now, in the Court, were present. The witness
specifically states that Marudhupandian, Jothi, Kanthavel, Venkatesan,
Gunasekaran, Dhanavelu and Anjapuli were present. Further, more than
100 villagers were present over there. Then, my junior paternal uncle
Ayyasamy asked Duraisamy and his accomplice, as to why they were
torturing him. When my elder brother was beaten up, since he did not come
up with proper reply to the questions posed by them, they tortured him and
by tying up his legs with rope, lowered him into the deep bore well situated
near the tank near the temple, upside down, asking him to reveal the truth.
After my brother agreed to reveal the truth, they removed the rope tied in
his hand. My brother begged for his life and stated that Kannagi has been
kept in the custody of his uncle’s (Chithappa) mother-in-law Saroja’s
residence, at Moongilpatty. Thereafter, within a few minutes, a white colour
TATA SUMO car, driven by one Jayatharasan, arrived there and 6 to 7
unknown persons (once again the witness says 6 to 7 persons, whose names
not known), by saying we should go to Moongilthurai, immediately, left in
that car. Kanthavelu, Jothi, Mani, Dhanavel, Gunasekaran, Venkatesan,
having threatened my uncle (Chithappa), had taken him also in that vehicle
and left. They made my brother Murugesan sit in front of the temple.
Maruthupandi, Duraisamy and his men were put to escort him.
Maruthupandi and Duraisamy insisted us to leave for home saying that my
brother would be released at once, if the girl arrives. Then, my sister
Tamilarasi, aunt Amaravathi, brother Palanivel and I had left for home.
Thereafter, thinking that it would become a problem if the girl could not be
traced out, my brother Palanivel and I proceeded to my uncle’s motor shed,
at 8.30 p.m. Thereafter, we went home in the morning. At that time, no one
was available at home. When I was in search of them, the villagers
informed that my brother and the girl, whom he married, were done to death
by giving them poison and they were set ablaze. While I was proceeding in
search of my mother and younger sister, I found them coming on the main
road, crying. I enquired them as to what had happened. They also informed,
as stated by the general public, that my brother and that girl were set ablaze,
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
while alive, by giving poison. (The learned counsel for A1 to A3, A5, A6,
A9 to A11 has raised an objection that the above evidence is a hearsay
evidence and therefore, the same is recorded subject to objection).
Thereafter, being frightened, we went to our native village Kuppanatham,
the next night. The police enquired me in this regard.”
97 Velmurugan (P.W.2) was subjected to stiff cross-examination by the
defence. In the cross-examination, he has inter alia stated that he went along with
his mother to the police station around 8 a.m., but the police did not record what
they had stated. To a specific suggestion, he has stated that while he alighted from
the bus and was going towards the water tank, he was threatened by
Marudhupandiyan (A.2) and was asked about the whereabouts of Murugesan. He
has, in the cross-examination, further, inter alia, stated that his house was around
500 metres away from the place where Murugesan was kept tied and beaten. He
has also admitted that there were about 100 people who had gathered at the place
where Murugesan was kept tied. It was suggested to this witness that after the
incident, Dalit leader Mr.Thirumavalavan issued a statement and the Nakkiran
magazine published a news item, for which, he has answered in the affirmative.
He has also admitted that his elder brother Palanivel (P.W.3) gave a representation
to the Chief Minister and other higher officials in this regard.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
98 The evidence of Samikannu (P.W.1) and Velmurugan (P.W.2) have
been substantially corroborated by Palanivel (P.W.3), who has stated that
Marudhupandiyan (A.2) threatened his father Samikannu (P.W.1) to bring
Murugesan saying that Murugesan had borrowed money from him and therefore,
his father Samikannu (P.W.1) went in search of Murugesan; thereafter,
Marudhupandiyan (A.2) threatened Ayyasamy (A.4) also to bring Murugesan to
the village; before Ayyasamy (A.4) left in search of Murugesan, his brother
Velmurugan (P.W.2) was kept in confinement in the Panchayat office and he was
released only after Ayyasamy (A.4) brought Murugesan to the village; thereafter,
Murugesan’s hands and legs were tied and he was lowered upside down in a deep
bore well near the water tank and was asked to disclose the whereabouts of
Kannagi; at that time, Marudhupandiyan (A.2), Kanthavel (A.5), Jothi (A.6),
Venkatesan (A.7), Malayan, Gunasekaran (A.9) and Ramadass (A.12) were also
there; there were about 50 persons gathered there; Murugesan stated that he would
disclose where he had kept Kannagi and so, a white colour Tata Sumo car (M.O.7)
driven by Jayatharasan (P.W.22) was brought, in which, six or seven persons went
to Moongilthuraippattu Village and they were Ayyasamy (A.4), Kanthavel (A.5),
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Jothi (A.6), Venkatesan (A.7), Malayan, Gunasekaran (A.9) and Dhanavel (A.10);
after that, he (P.W.3) and his brother Velmurugan (P.W.2) left the place and spent
the night in the fields; on the next day, he learnt that Murugesan and Kannagi were
murdered.
99 In the cross-examination by the counsel for Ayyasamy (A.4),
Palanivel (P.W.3) has stated that Ayyasamy (A.4) did not go in the Tata Sumo car
(M.O.7) to Moongilthuraippattu Village to fetch Kannagi. Therefore, on this score,
the trial Court Public Prosecutor prayed for declaring Palanivel (P.W.3) hostile
and cross-examined him by suggesting that Ayyasamy (A.4) had indeed gone in
the Tata Sumo car (M.O.7) along with the others to bring Kannagi. Palanivel
(P.W.3) denied the said suggestion.
100 Thus, from a cumulative analysis of the evidence of Samikannu
(P.W.1), Velmurugan (P.W.2) and Palanivel (P.W.3), we find that the prosecution
has proved the following facts:
i. Murugesan and Kannagi went missing from Pudukkooraipettai Village;
ii. 5 days prior to the death of Murugesan and Kannagi, Marudhupandiyan
(A.2) threatened Samikannu (P.W.1) to bring Murugesan saying that he had
borrowed a sum of Rs.10,000/- from him;
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
iii. Samikannu (P.W.1) went in search of Murugesan and found the Murugesan-
Kannagi duo in his relative’s house in Raasaapalayam and after advising
Murugesan to send back Kannagi to her parents’ house, he quietly came
back to the village;
iv. Murugesan and Kannagi shifted places;
v. One day prior to the occurrence, once again, Marudhupandiyan (A.2)
threatened Samikannu (P.W.1) to bring Murugesan and so, Samikannu
(P.W.1) went to Raasaapalayam Village in search of Murugesan, but, did
not find him there; however, he did not return to the village and remained
elsewhere fearing reprisal if he returned empty-handed.
vi. Marudhupandiyan (A.2) threatened Ayyasamy (A.4) to bring Murugesan
and kept Velmurugan (P.W.2) as a hostage;
vii. Ayyasamy (A.4) went and brought Murugesan back to Pudukkooraipettai
Village on the same evening (07.07.2003);
viii. On the return of Murugesan, Velmurugan (P.W.2) was released;
ix. Around 7.00 p.m., Murugesan was undressed except for his underwear; his
hands and legs were tied and was beaten near the village temple demanding
the whereabouts of Kannagi;
x. When Murugesan was not relenting, he was lowered upside down in a deep
borewell till he revealed the whereabouts of Kannagi;
xi. Murugesan eventually relented and revealed the whereabouts of Kannagi;
xii. A white colour Tata Sumo car (M.O.7) driven by Jayatharasan (P.W.22)
was brought in which 7 persons left the village to bring Kannagi;
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
101 According to Velmurugan (P.W.2) and Palanivel (P.W.3), Murugesan
was kept near the village temple and beaten. Even according to these witnesses, a
group of persons had gathered there for witnessing the occurrence. Now, the
question is, could all this be a figment of imagination of Velmurugan (P.W.2) and
Palanivel (P.W.3).
102 To satisfy ourselves, we pored over the testimony of the hostile
witnesses and found that Srinivasan (P.W.6), Ashok Kumar (P.W.7) and Ashokan
(P.W.9) have stated that they are from Pudukkooraipettai Village; they belong to
Vanniyar caste; they know Murugesan and Kannagi; Kannagi belongs to Vanniyar
caste; Murugesan is a Dalit; at the time of Murugesan’s death, Duraisamy (A.1)
was the Panchayat President; a day prior to the death of Murugesan, there were
special poojas in the Mariamman temple in the village; when they went to attend
the poojas, they happened to see a crowd near the village water tank; towards the
evening, there was a noisy crowd gathered near the water tank which was next to
the temple.
103 Ashok Kumar (P.W.7) has further stated that one person was kept
tied. Since Ashok Kumar (P.W.7) had stated in the earlier part of his chief-
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
examination that he knew Murugesan, the trial Judge had put the following
question to him:
Court Question:
Since you know Murugesan earlier, were you able to identify
the person who was kept bound near the temple?
For the aforesaid question, Ashok Kumar (P.W.7) has replied that since it was
dark, he did not know the person who was kept tied. Pertinent it is to point out that
to the question put by the Court, Ashok Kumar (P.W.7) did not state that the
person whose hands and legs were kept tied, was not Murugesan, but had only
stated that he was unable to identify the person since it was dark.
104 Thus, the testimony of these three hostile witnesses provide a broad
corroboration to the testimony of Velmurugan (P.W.2) and Palanivel (P.W.3) that
one day prior to the death of Murugesan, he was brought to the village, his hands
and legs were bound and he was tortured near the village temple.
105 Of course, we also have the evidence of Tamilarasi (P.W.15) and
Chinnapillai (P.W.49) to corroborate Velmurugan (P.W.2) and Palanivel (P.W.3)
who have spoken to about the torture that was meted out to Murugesan. We are
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
not discussing their evidence here, because, much argument was advanced at the
bar by the defence contending that the evidence of these two witnesses should be
rejected. This criticism requires to be answered in detail and therefore, we will
advert to the testimony of Tamilarasi (P.W.15) and Chinnapillai (P.W.49) in detail
at a later juncture.
106 According to the CBI, after Murugesan revealed Kannagi’s
whereabouts, Duraisamy (A.1) arranged a white colour Tata Sumo car (M.O.7)
bearing Regn. No.TN 23 C 5282 (M.O.7) driven by Jayatharasan (P.W.22) in
which Ayyasamy (A.4), Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Mani
(A.8), Gunasekaran (A.9), Dhanavel (A.10) and Anjapuli (A.11) were despatched
on the night of 07.07.2003 to the house of Saroja (P.W.23), mother-in-law of
Ayyasamy (A.4), in Moongilthuraippattu Village and they brought Kannagi in the
early hours of 08.07.2003 to Pudukkooraipettai Village, where, on the directions
of Duraisamy (A.1), Marudhupandiyan (A.2) administered Nuvacron (insecticide)
to Kannagi and Ayyasamy (A.4) was directed to administer the same to
Murugesan.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
107 In paragraph 100 (supra), we have recorded that the prosecution has
proved the fact of the torture meted out to Murugesan, his eventual disclosure
about the whereabouts of Kannagi, summoning of a white colour Tata Sumo car
driven by Jayatharasan (P.W.22) and seven persons, including Ayyasamy (A.4)
being sent to bring Kannagi. Though Jayatharasan (P.W.22) turned hostile, he has
admitted the following facts:
He is a resident of Pudukkooraipettai Village;
He knows AA 1 to 13;
Except Ayyasamy (A.4) and Gunasekaran (A.9), other accused belong
to Vanniyar caste;
He also belongs to Vanniyar caste;
Duraisamy (A.1) was the President of the Village Panchayat in 2003;
He knows Kannagi; and
In 2003, he was driving a white colour Tata Sumo car (M.O.7) which
the CBI police seized and have produced it before the Court.
Of course, he did not say that he went along with the other accused and brought
Kannagi to Pudukkooraipettai Village and therefore, he was declared hostile. The
admission of Jayatharasan (P.W.22) that he was driving a white colour Tata Sumo
car (M.O.7) in 2003, which the CBI had seized and produced before the Court, is
compatible with the evidence of Velmurugan (P.W.2) and Palanivel (P.W.3) that
Jayatharasan (P.W.22) was the driver of the Tata Sumo car (M.O.7). Tata Sumo
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
car has been marked as M.O.7 and its R.C. book which has been marked as
Ex.P.59, bears the name and photograph of Jayatharasan (P.W.22). From the
evidence of Velmurugan (P.W.2) and Palanivel (P.W.3), it has been established
that Ayyasamy (A.4), Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Mani (A.8),
Gunasekaran (A.9) and Dhanavel (A.10) went by Tata Sumo car (M.O.7) driven
by Jayatharasan (P.W.22) to fetch Kannagi. Though the CBI recorded the
statements of several persons to testify to the fact that Kannagi was brought from
the house of Saroja (P.W.23) in Moongilthuraipattu to Pudukkooraipettai Village,
where, insecticide was administered to her and Murugesan, they turned hostile,
except Chinnapillai (P.W.49), Murugesan’s mother, who has stated that it was
Marudhupandiyan (A.2) who forcibly administered the poison to Murugesan.
108 The defence counsel submitted that in the charge sheet filed by the
CBI, Chinnapillai (P.W.49) was not included in the list of witnesses. When
Nandakumar (P.W.51), Deputy Superintendent of Police, was asked as to why he
had not included the name of Chinnapillai (P.W.49) in the memo of evidence, he
has stated that he had not included her, because, she was giving conflicting
statements and so, he thought that she would not be a reliable witness.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
109 Placing reliance upon the judgment of the Supreme Court in
Vadivelu Thevar and another v State of Madras [AIR 1957 SC 614], the
defence contended that where a witness is wholly unreliable, no amount of
corroboration could cure the vice of unreliability and therefore, the evidence of
such a witness deserves to be ignored.
110 The trial Court records show that the trial Court Public Prosecutor
and Samikannu (P.W.1) had filed petitions in Crl.M.P.Nos.4100 and 4111 of 2017
respectively, under Section 311 Cr.P.C. before the trial Court to examine
Chinnapillai (P.W.49) as a witness. The trial Court had allowed the petition filed
by the trial Court Public Prosecutor and consequently, dismissed the petition that
was filed by Samikannu (P.W.1). Then, the question arose as to whether
Chinnapillai (P.W.49) should be examined as a prosecution witness or a Court
witness. This issue came up to the High Court in Crl.O.P.No.22051 of 2017 in
which, the High Court, vide order dated 27.10.2017, eventually held that
Chinnapillai (P.W.49) should be examined as a prosecution witness. Accordingly,
Chinnapillai was examined as P.W.49.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
111 We may point out that at the instance of the CBI, the statement of
Chinnapillai (P.W.49) was recorded by the Magistrate under Section 164 Cr.P.C.
and the same has been marked as Ex.P.48. Just because the Investigating Officer
was of the opinion that Chinnapillai (P.W.49) would not be a reliable witness,
that, by itself, cannot make her evidence unreliable. The fact remains that the trial
Court had felt that her evidence is relevant and necessary for the case and had,
therefore, allowed the application of the trial Court Public Prosecutor under Sec-
tion 311 Cr.P.C. to examine Chinnapillai (P.W.49) as a prosecution witness. The
matter had even come up to the High Court, as stated above, of course, at the
instance of Samikannu (P.W.1) and the learned single Judge had directed that
Chinnapillai (P.W.49) should have to be examined not as a Court witness, but, as a
prosecution witness. Once the trial Court has held that the evidence of
Chinnapillai (P.W.49) is essential to the just decision of the case as required under
Section 311 Cr.P.C., the opinion of the Investigating Officer that she would not be
a reliable witness is really of no consequence.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
112 While marshalling evidence, the Court must scan the testimony of
Chinnapillai (P.W.49) and weigh it in the balance for its intrinsic value and not
proceed on the presupposition that she is an unreliable witness.
113 Chinnapillai (P.W.49) who is the second wife of Samikannu (P.W.1)
and the stepmother of Murugesan, is an illiterate Dalit peasant, as could be seen
from the fact that she has affixed her thumb impression in the deposition. Her
statement under Section 164 Cr.P.C. was recorded by the Judicial Magistrate No.I,
Chengalpet, at the request of the CBI on 02.07.2004. She was examined-in-chief
in the trial Court on 08.12.2017 which is almost 14 years after the date of
occurrence. Noteworthy it is to state here that there is a Section 161(3) Cr.P.C.
statement of Chinnapillai (P.W.49) that was recorded by the Vriddhachalam
police, a Section 161(3) statement of hers recorded by the CBI and a Section 164
Cr.P.C. statement of hers recorded by the Judicial Magistrate No.I, Chengalpet, as
stated above.
114 For the sake of convenience, we give below the free English
translation of the chief-examination of Chinnapillai (P.W.49):
“At present, I am residing at Kuppanatham. I have 7 children, in all.
The deceased Murugesan is my elder sister’s child. After the death of my
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
elder sister, I married my elder sister’s husband for fostering the child. The
child born next to Murugesan, is Palanivel, the next child’s name is
Velmurugan, next to him is Maharaja, next to him is Sundharapandian. The
names of the daughters are Tamilarasi, Mahalakshmi and Maharani.
Murugesan had studied BE, before his death. On completion of his BE
Course, he went to Bangalore for work. Murugesan died in the year 2003.
Since there was an issue in the village, 1 ½ years prior to the death of
Murugesan at Kuppanatham, we migrated to Kooraipettai from
Kuppanatham. A2 – Marudhapandi threatened us with a knife stating that,
my son Murugesan had borrowed Rs.10,000/- and gone and if I did not
repay the amount, he will set all of us ablaze along with house. My husband
went in search of Murugesan. Later, he had told A4 - Aiyaswamy that his
elder brother’s son had borrowed Rs.10,000/- and went and had asked him
to bring his elder brother’s son Murugesan. He had said as such, a day prior
to the death of my son Murugesan. My husband, who went in search of my
son, had not returned. A4 Aiyaswamy brought my son from the house of my
daughter Tamilarasi at Vannankudikadu. The accused Aiyaswamy had
taken away my son to the motor shed owned by A1 Duraisamy, once
darkness fell. Duraisamy, Marudhapandiyan and Aiyaswamy are all present
in this Court, now. When my son was brought, we, viz., my daughter
Tamilarasi, my sons Palanivel, Velmurugan and I were all at home. Having
been beaten and dragged out from the motor shed, my son had been tied and
beaten up near Mariamman temple. Maruthapandi, Ramadoss, Thangavel,
Rangasamy, Molaiyan and Mani assaulted my son. Now, all of them are
present before this Court. They assaulted him asking, “where you had kept
the girl, we will kill you if do not say the place where you had kept the
girl”. The girl’s name is Kannagi. They assaulted by using abusive words,
stating that, ‘para pundaikku vanniyar pundai kekkudha’. My sister-in-law -
Amaravathi and my daughter Tamilarasi, came from the village, and said
that, her elder brother was tied and beaten up. When I saw my son, he was
left barely with an underwear. His hands and legs were tied. They lowered
my son, upside down, with his hands and legs tied, into a bore pipe
measuring 10 inches. Once he was lowered and lifted up as such, my son
told them that he had kept Kannagi in the house of Aiyasamy’s mother-in-
law. The above said occurrence was seen by me, my sister-in-law
Amaravathi, my daughter Tamilarasi and my sons Velmurugan and
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Palanivel. Later on, accused Jothi, Venkatesan, Marudhapandi, Ramadass,
Thangavel and Mani having assaulted my brother in law Aiyasamy, took
him in a SUMO Car, stating that the girl is in his mother-in-law’s residence
only. During that time, they tied my son nearby Mariamman Temple, placed
him under the custody of two persons and went. They chased me out,
without allowing me to see my son. We went home. My daughter and I
stayed in sister-in-law’s house. Being afraid, both my sons, slept in the
backyard, near the village. In the early morning, while my sister-in-law, my
daughter and I went and saw, my son Murugesan was not found near the
temple. At that time, talks have been prevailing among the villagers that,
my son is going to be killed, by giving poison. At that time, my sister-in-law
and I rushed through the Aiyanar Temple, in search of my son. A
passage would pass through the Aiyanar Temple. We went searching
through that path. While we were going, we heard an alarm. My son was
found to have been tied around a tree at a cashew grove, near the Aiyanar
Temple. Accused Aiyasamy was found to be tied with a tree. The accused
who are present were all present there. Except A14 and 15, all the other
accused were present there. When we saw, my son was made to be laid with
his head on the western direction and his legs on the eastern direction. His
hands and legs were tied. Marudhapandi poured the poison into my son’s
mouth. Since my son did not open his mouth, one Rangasamy cut my son’s
mouth, with a knife. Accused Jothi and Mani caught hold of my son’s
hands. The Accused Ramadass sat upon the chest of my son. It is only the
thing that had happened. They gave poison. I intercepted. They restrained
me. I lost my consciousness, on seeing poison being fed to my son. My
sister-in-law gave me water. Immediately, we rushed to the Police Station.
In the Police Station, we were assaulted and chased out stating ‘parachikku
padayatchi ponnu kekkudha’ (Is the girl from upper caste padayatchi
required for a boy hailing from pariah caste). Thereafter, we came home.
Later, my husband returned home. At that time, accused Rangasamy and
others had arrived, stating that, they had given poison and set him ablaze.
At once, my husband, my daughter and I, all went to the crematorium.
There, my son was on pyre. A ring was there in my son’s finger. We took
that and came. Later on, we shifted our residence to Kuppanatham. I have
testified regarding this occurrence in Chengalpet Court, also.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Permission was sought for on the prosecution side to cross
examine the witness, permission granted.
Accused Aiyasamy was at home, when my son was kept tied near
the temple. Aiyasamy was taken from his residence by the men belonging to
Padayatchi caste. They took him to the place where my son was present. I
do not admit the suggestion that I am making a false testimony as if my
brother-in-law Aiyasamy was dragged and brought from his residence by
Padayatchi men, while my son was tied and beaten. I do not admit the
suggestion that, Aiyasamy was present along with that gang only. I do not
admit, similarly, the suggestion that I am making a false testimony as if the
other accused had assaulted, dragged and taken Aiyasamy in a TATA Sumo
vehicle to the place where Kannagi was kept. I have not noticed anyone in
the place where my son and Aiyasamy were tied and kept. Accused
Gunasekaran was present in the said place. Accused Gunasekaran also went
in the Sumo vehicle. I do not admit the suggestion that Maruthapandi gave
the poison to Aiyasamy stating that, “I had killed my younger sister by
giving poison and hence, you should kill Murugesan” and in turn, Aiyasamy
having given the poison to Murugesan, Murugesan who refused at first,
later, had received the poison kept in tumbler, drank, due to the compulsion
of Aiyasamy, and died.
Adjourned for hearing as to whether the government advocate has
rights to cross examine this witness, in this case.
LTI of Chinnapillai”
115 The defence mounted a strident attack on the testimony of
Chinnapillai (P.W.49) by contending that:
i. in her statement under Section 164 Cr.P.C., she had
implicated several others, viz., Kodandapani,
Kaliyaperumal, Aranganathan, Balu, Kaattu Raja, et al.,
who have not been arrayed as accused in the case;
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
ii. she has ruled out the presence of Velmurugan (P.W.2),
Palanivel (P.W.3) and Tamilarasi (P.W.15) when
Murugesan was allegedly tortured near the village
temple by saying in the cross-examination that when
she went home, her two sons were there and after that,
they all slept;
iii. her evidence is against charge no.9, in that, she has
stated that it was Marudhupandiyan (A.2) who had
administered poison to Murugesan, whereas, charge
no.9 states that it was Ayyasamy (A.4) who had
administered poison to Murugesan.
116 The learned counsel for the defence contended that the prosecution
should have a definite case and cannot blow hot and cold and when the evidence
adduced by the prosecution falls short of the necessary proof required for proving
the charge, the Court must extend the benefit of doubt to the accused.
117 Before adverting to the aforesaid submission, it may be relevant to
allude to the definition of the word “proved” in Section 3 of the Evidence Act.
For ready reference, the said provision is extracted:
“Proved” .—A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or considers its existence so
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists.
(emphasis supplied)
In the above definition, two expressions, viz., “considering the matters before it”
and “its existence so probable that a prudent man”, require emphasis.
118 Sir James Fitzjames Stephen, who was the principal architect of this
legislation, has carefully used the expression “considering the matters before it”
instead of “considering the evidence before it”. Though the word “evidence” has
been defined, the word “matters” has been deliberately left undefined. The
Evidence Act has, therefore, left it to the discretion of the Court to appreciate the
evidence and decide whether a fact has been proved or not, from the standpoint of
a prudent man. At this juncture, it is felicitous to refer to the judgment of the
Supreme Court in State of Maharashtra v Mohd. Yakub and others [AIR 1980
SC 1111], wherein, it was held as under:
“12. At the outset, it may be noted that the Evidence Act does not
insist on absolute proof for the simple revision (sic reason) that perfect
proof in this imperfect world is seldom to be found. That is why under
Section 3 of the Evidence Act, a fact is said to be “proved” when, after
considering the matters before it, the court either believes it to exist, or
considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
exists. This definition of “proved” does not draw any distinction between
circumstantial and other evidence. Thus, if the circumstances listed above
establish such a high degree of probability that a prudent man ought to act
on the supposition that the appellant was attempting to export silver from
India in contravention of the law, that will be sufficient proof of that fact in
issue.” (emphasis supplied)
119 In India, the situation is even more peculiar, because, by the time a
witness comes to testify in a Court of law, passage of time adds to his loss of
memory which fuels his imagination and consequently, leads to embellishments
and exaggerations in his testimony.
120 Let us take the present case. Due to the elopement of a Dalit boy with
a caste Hindu girl, the whole village was in pins and needles, especially, when the
girl turned out to be the daughter of the President of the Village Panchayat. There
were active participants as well inquisitive onlookers who did not have the
courage to intervene. From the evidence of Velmurugan (P.W.2), Palanivel
(P.W.3), Srinivasan (P.W.6), Ashok Kumar (P.W.7) and Ashokan (P.W.9), we are
able to infer that only after 7.30 p.m. on 07.07.2003, when Murugesan could not
withstand the torture any more, he divulged the whereabouts of Kannagi.
Thereafter, a group of accused, owing allegiance to Duraisamy (A.1), went along
with Ayyasamy (A.4) in a Tata Sumo car (M.O.7) driven by Jayatharasan (P.W.22)
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
to the house of the mother-in-law of Ayyasamy (A.4), viz., Saroja (P.W.23) in
Moongilthuraippattu Village. The next day, by sunrise, two bodies were found
cremated. In this charged atmosphere, the family members of Murugesan, viz.,
Samikannu (P.W.1), Chinnapillai (P.W.49), Palanivel (P.W.3), Tamilarasi
(P.W.15), et al, would have been in a state of emotional trauma not knowing what
would happen the next moment. In such a situation filled with tension, there are
bound to be distortions in their ability to perceive, register and recall the events
sequentially.
121 Taking all such social factors into consideration, the principle “falsus
in uno, falsus in omnibus” has been made inapplicable to India by several
authoritative pronouncements of the Supreme Court. Suffice to refer to the
judgment in Laxman and Others v State of Maharashtra [(1974) 3 SCC 704],
where, the Supreme Court refers to a test that was conducted in America in which
persons who had witnessed an incident, gave different versions of the same, when
they were asked to narrate very shortly after the incident, what they saw.
122 In this case, the defence had the benefit of the Section 161(3) Cr.P.C.
statements that were recorded by the Vriddhachalam police to suit their narrative;
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
the Section 161(3) Cr.P.C. statements recorded by the CBI to conform to their
theory; and the Section 164 Cr.P.C. statements of the witnesses that were recorded
later. When all these previous statements are put to an illiterate witness like
Chinnapillai (P.W.49) whilst she is in the witness box, naturally, she would be
flummoxed.
123 To be noted, her examination-in-chief was on 08.12.2017 and the
cross-examination was on 18.12.2017. In the cross-examination, she has stated
that when she gave the statement before the Judicial Magistrate, Chengalpet, she
was in a certain frame of mind and that on that day (the day on which she testified
in the trial Court), on seeing the faces of the accused standing in the dock, she was
able to recollect the incident and give evidence. This answer which was invited by
the defence counsel in the cross-examination cuts the very umbilical cord of the
defence attack on her testimony. When the statement of a witness is recorded by a
Magistrate under Section 164 Cr.P.C., the accused will not be present in the Court.
The witness would have to recall the incident based on his/her sheer memory and
narrate the same. The ability to register and recall matters, differs from person to
person. Perhaps, for Chinnapillai (P.W.49), when she saw the accused in the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
dock, her memory would have got triggered and the overt acts of the accused
would have come graphically before her mind’s eye which she would have been
able to place before the Court. Therefore, the contention of the defence that she
has contradicted Velmurugan (P.W.2), Palanivel (P.W.3) and Tamilarasi (P.W.15)
deserves only outright rejection in the facts and circumstances of the case and we
have no reason to discard her testimony in toto.
124 That said, even in her Section 164 Cr.P.C. statement, Chinnapillai
(P.W.49) had stated that it was Marudhupandiyan (A.2) who had administered
poison to Murugesan, which story she stuck to in her evidence before the Court.
Of course, it is the CBI’s case that on the directions of Duraisamy (A.1),
Ayyasamy (A.4) handed over the poison to Murugesan and made him drink it.
The 9th charge was framed on this basis. But, when Chinnapillai (P.W.49) did not
subscribe to this theory of the CBI even at the time of giving statement under
Section 164 Cr.P.C., the CBI thought it fit to exclude her from the memo of
evidence appended to the final report and only at the instance of the trial Court
Public Prosecutor, was she examined as P.W.49. In our opinion, the evidence of
Chinnapillai (P.W.49) is in consonance with the evidence of Samikannu (P.W.1),
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Velmurugan (P.W.2) and Palanivel (P.W.3) with regard to the facts that there was
a manhunt for Murugesan after he eloped with Kannagi, resulting in
Marudhupandiyan (A.2) threatening Samikannu (P.W.1) and Ayyasamy (A.4) to
bring Murugesan or face dire consequences, leading to Ayyasamy (A.4) bringing
Murugesan to the village, followed by torture of Murugesan by Duraisamy (A.1)
and his henchmen, for eloping with a caste Hindu girl and for making him reveal
her whereabouts. The fact that Murugesan revealed the whereabouts of Kannagi
pursuant to which Ayyasamy (A.4) was taken by Duraisamy’s (A.1’s) men in a
Tata Sumo car (M.O.7), driven by Jayatharasan (P.W.22) to fetch Kannagi, has
been proved beyond reasonable doubt. Thereafter, as many witnesses who were to
speak about the poison being administered to Kannagi and Murugesan had turned
hostile, we are left with only the evidence of Chinnapillai (P.W.49) who also
speaks only about the poison being administered by Marudhupandiyan (A.2) to
Murugesan and does not speak a word about the murder of Kannagi. Should this
Court throw up its hands and hold that, after the proof of such relevant facts,
Murugesan and Kannagi must have committed suicide in the presence of the
whole village, as lamely contended by Duraisamy (A.1)?
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
125 Let us, for a moment, extend the benefit of this doubt to Duraisamy
(A.1) and proceed further to analyse if the theory of suicide proffered by him is
probable.
126 Duraisamy (A.1) is not an unlettered peasant, as is evident and
manifest from his signature in his statement given under Section 313 Cr.P.C. At
the relevant point of time, he was the President of the Pudukkooraippettai Village
Panchayat, which he has admitted in the answer to Question No.41 that was put to
him with regard to the evidence of Arumugam (P.W.21), a resident of
Pudukkooraipettai Village. The Vriddhachalam Police Station is located just 3
kms. away from Pudukkooraippettai Village. Had Murugesan and Kannagi
committed suicide, his natural conduct as Kannagi’s father and as the President of
the Village Panchayat would have been to inform the police immediately, lest, the
blame should fall on his shoulders. Instead, both bodies were hastily cremated on
08.07.2003 and thereafter, when Dalit leaders and the fourth estate raised a hue
and cry, the Vriddhachalam police panicked and commenced a farcial
investigation on 17.07.2003. In his statement under Section 313 Cr.P.C.,
Duraisamy (A.1) has not whispered a word as to the circumstances under which
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
the body of his daughter was cremated even sans postmortem. Though it may not
be necessary for the accused to prove a fact beyond reasonable doubt,
nevertheless, a burden is cast upon him under Section 106 of the Evidence Act to
prove facts which are exclusively within his knowledge. This evidentiary burden
can be discharged by offering a plausible explanation or by a preponderance of
probability. The accused cannot maintain a stoic silence by not coming forward to
explain to the Court as to why the two bodies were disposed of hastily by
cremating them. It is not the case of the accused (the father-son duo) that Kannagi
had perished of a heart attack and so, they cremated her as per their custom.
127 In the cross-examination of the witnesses, the accused have suggested
that Murugesan and Kannagi had committed suicide by consuming poison as they
had differences of opinion. Thus, even according to the principal accused in this
case, the deaths of Murugesan and Kannagi were owing to consumption of poison.
The evidence produced by the prosecution has proved, beyond reasonable doubt,
the following facts:
(a) Murugesan was forcibly brought to PudukkooraippettaiVillage;
(b) Murugesan was beaten black and blue in public to disclose the
whereabouts of Kannagi;
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
(c) Murugesan yielded to the torture and disclosed the
whereabouts of Kannagi, following which, a team had gone to
Moongilthuraippattu Village to bring Kannagi;
(d) The bodies of Murugesan and Kannagi were cremated and
disposed off in hot haste.
128 In the light of the aforesaid proved facts, the dictates of common sense
would state that the theory of suicide set up by the defence is clearly a red herring.
The inference, which is strengthened by the unnatural conduct of Duraisamy (A.1)
in keeping silent after cremating the body of his daughter, that can be safely drawn
is that the couple was brought to the village and murdered by the group, led by the
accused (father - son duo). Such an inference is permissible if the definition of the
word “proved” is read with Section 114 of the Evidence Act and we are fortified
in drawing such an inference from the statement of law propounded by a three
Judge Bench of the Supreme Court in M.Narasinga Rao v State of Andhra
Pradesh [(2001) 1 SCC 691].
“15. The word “proof” need be understood in the sense in which it is defined
in the Evidence Act because proof depends upon the admissibility of evidence. A
fact is said to be proved when, after considering the matters before it, the court ei-
ther believes it to exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition
that it exists. This is the definition given for the word “proved” in the Evidence
Act. What is required is production of such materials on which the court can rea-
sonably act to reach the supposition that a fact exists. Proof of the fact depends
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
upon the degree of probability of its having existed. The standard required for
reaching the supposition is that of a prudent man acting in any important matter
concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal
Co. Ltd. [(1911) 1 KB 988 : 1911 WN 53] observed like this:
“Proof does not mean proof to rigid mathematical demonstra-
tion, because that is impossible; it must mean such evidence as
would induce a reasonable man to come to a particular conclusion.”
16. The said observation has stood the test of time and can now be followed as
the standard of proof. In reaching the conclusion the court can use the process of
inferences to be drawn from facts produced or proved. Such inferences are akin to
presumptions in law. Law gives absolute discretion to the court to presume the ex-
istence of any fact which it thinks likely to have happened. In that process the
court may have regard to common course of natural events, human conduct, public
or private business vis-à-vis the facts of the particular case. The discretion is clear-
ly envisaged in Section 114 of the Evidence Act.
17. Presumption is an inference of a certain fact drawn from other proved
facts. While inferring the existence of a fact from another, the court is only apply-
ing a process of intelligent reasoning which the mind of a prudent man would do
under similar circumstances. Presumption is not the final conclusion to be drawn
from other facts. But it could as well be final if it remains undisturbed later. Pre-
sumption in law of evidence is a rule indicating the stage of shifting the burden of
proof. From a certain fact or facts the court can draw an inference and that would
remain until such inference is either disproved or dispelled.”
(emphasis supplied)
129 At this juncture, we must also advert to the evidence of Velmurugan
(P.W.2), Palanivel (P.W.3) and Tamilarasi (P.W.15), who have stated that on the
next day, when they went in search of Murugesan, the villagers told them that
Murugesan and Kannagi were murdered and burnt. This evidence of the trio, in
our opinion, is relevant and admissible under the category of res gestae, relevant
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
under Section 6 of the Evidence Act, as an exception to the inadmissibility of
hearsay evidence. As a matter of fact, Illustration (a) appended to Section 6, ibid.,
clinches the issue. The fact that the villagers had gathered when all these were
happening from the previous day, has been established beyond doubt not only
through the evidence of Velmurugan (P.W.2), Palanivel (P.W.3), Tamilarasi
(P.W.15) and Chinnapillai (P.W.49), but also through the evidence of hostile
witnesses like Srinivasan (P.W.6), Ashok Kumar (P.W.7) and Ashokan (P.W.9).
The fact that the villagers were saying that Murugesan and Kannagi were
administered poison and done to death is not, by itself, a fact in issue in this case.
However, this becomes a relevant fact as it is connected with the fact in issue, viz.,
administering of poison to Murugesan and Kannagi by Duraisamy (A.1) and
Marudhupandiyan (A.2) and their group in Pudukkooraipettai Village around the
same time so as to form part of the same transaction.
130 It is true that Chinnapillai (P.W.49) has not stated anything about
who had administered poison to Kannagi and she has only stated that it was
Marudhupandiyan (A.2) who had administered poison to Murugesan. The defence
contended that this evidence of Chinnapillai (P.W.49) goes against the case of the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
prosecution and therefore, her testimony deserves to be discarded. In a case of
this nature, when witnesses who are supposed to speak about several relevant facts
and on the facts in issue, are won over and as a sequel, turn hostile, a duty is cast
upon the Court to remove the chaff from the grain to arrive at the truth. At this
juncture, it would be profitable to quote Sir James Stephen from his book, “The
Evidence Act, with an introduction on the Principles of Judicial Evidence”
(Macmillan & Company), wherein, in Chapter II, he says:
“In so far as it can be acquired at all, it is to be acquired only by
experience, for the acquisition of which the position of a judge is by no
means peculiarly favourable. People come before him with their cases ready
prepared, and give the evidence which they have determined to give. Unless
he knows them in their unrestrained and familiar moments, he will have
great difficulty in finding any good reason for believing one man rather than
another. The rules of evidence may provide tests, the value of which has
been proved by long experience, by which judges may be satisfied that the
quality of the materials upon which their judgments are to proceed is not
open to certain obvious objections; but they do not profess to enable the
judges to know whether or not a particular witness tells the truth or what
inference is to be drawn from a particular fact. The correctness with which
this is done must depend upon the natural sagacity, the logical power, and
the practical experience of the judge, not upon his acquaintance with the
law of evidence.
The grounds for believing or disbelieving particular statements made
by particular people under particular circumstances may be brought under
three heads,-those which affect the power of the witness to speak the truth;
those which affect his will to do so; and those which arise the nature of the
statement itself and from surrounding circumstances. A man’s power to
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
speak the truth depends upon his knowledge and his power of expression.
His knowledge depends partly on his accuracy in observation, partly on his
memory, partly on his presence of mind; his power of expression depends
upon an infinite number of circumstances, and varies in relation to the
subject of which he has to speak.
A man’s will to speak the truth depends upon his education, his
character, his courage, his sense of duty, his relation to the particular facts
as to which he is to testify, his humour for the moment, and a thousand
other circumstances, as to the presence or absence of which in any
particular case it is often difficult to form a true opinion.
The third set of reasons are those which depend upon the probability
of the statement.
Many discussions have taken place on the effect of the improbability
of a statement upon its credibility in cases which can never fall under
judicial consideration. It is unnecessary to enter upon that subject here.
Looking at the matter merely in relation to judicial inquiries, it is sufficient
to observe that whilst the improbability of a statement is always a reason,
and may be, in practice, a conclusive reason for disbelieving it, its
probability is a poor reason for believing it if it rests upon uncorroborated
testimony. Probable falsehoods are those which an artful liar naturally tells;
and the fact that a good opportunity for telling such a falsehood occurs is
the commonest of all reasons for its being told.” (emphasis supplied)
131 In this case, the witnesses did not have the will to speak against the
accused, because, they lacked the requisite courage to testify against the members
of the dominant community. Witnesses turning hostile on account of sociological
factors in the village are not a new phenomenon. The Courts cannot afford to
remain ignorant of the power dynamics in the social strata of the villages in this
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
country which largely influences the way evidence is given in law Courts. In
Ramesh v State of Haryana [(2017) 1 SCC 529], the Supreme Court approvingly
referred to two articles by the social anthropologist Daniela Berti. The Court
observed as under:
“49. In this regard, two articles by Daniela Berti delve into a sociological
analysis of hostile witnesses, noting how village compromises (and possibly peer
pressure) are a reason for witnesses turning hostile. In one of his articles [ Daniela
Berti, “Courts of Law and Legal Practice”, pp. 6-7.] , he writes:
“For reasons that cannot be explained here, even the people
who initiate a legal case may change their minds later on and
pursue non-official forms of compromise or adjustment.
Ethnographic observations of the cases that do make it to the
criminal courtroom thus provide insight into the kinds of tensions
that arise between local society and the State judicial
administration. These tensions are particularly palpable when
witnesses deny before the Judge what they allegedly said to the
police during preliminary investigations. At this very moment they
often become hostile. Here I must point out that the problem of
what in common law terminology is called “hostile witnesses” is,
in fact, general in India and has provoked many a reaction from
Judges and politicians, as well as countless debates in newspaper
editorials. Although this problem assumes particular relevance at
high-profile, well-publicised trials, where witnesses may be
politically pressured or bribed, it is a recurring everyday situation
with which Judges and prosecutors of any small district town are
routinely faced. In many such cases, the hostile behaviour results
from various dynamics that interfere with the trial's outcome —
village or family solidarity, the sharing of the same illegal activity
for which the accused has been incriminated (as in case of cannabis
cultivation), political interests, family pressures, various forms of
economic compensation, and so forth. Sometimes the witness
becomes “hostile” simply because police records of his or her
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
earlier testimony are plainly wrong. Judges themselves are well
aware that the police do write false statements for the purpose of
strengthening their cases. Though well known in judicial milieus,
the dynamics just described have not yet been studied as they
unfold over the course of a trial. My research suggests, however,
that the witness's withdrawal from his or her previous statement is
a crucial moment in the trial, one that clearly encapsulates the
tensions arising between those involved in a trial and the court
machinery itself.”
“In my fieldwork experiences, witnesses become
“hostile” not only when they are directly implicated
in a case filed by the police, but also when they are
on the side of the plaintiff's party. During the often
rather long period that elapses between the police
investigation and the trial itself, I often observed,
the party who has lodged the complaint (and who
becomes the main witness) can irreparably
compromise the case with the other party by means
of compensation, threat or blackmail.”
132 There is one common thread running in the narratives of the
Vriddhachalam police and the CBI. Both subscribe to the theory that poison was
administered to Kannagi by Marudhupandiyan (A.2) and the Dalits had
administered poison to Murugesan.
133 According to the Vriddhachalam police, Samikannu (P.W.1)
voluntarily administered poison to his son Murugesan, whereas, according to the
CBI, on the directions of Duraisamy (A.1), Ayyasamy (A.4), a Dalit and the junior
paternal uncle of Murugesan, administered poison to Murugesan. We cannot
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
blindly say that the narrative of the CBI on this aspect is unfounded. Given the
weak, both physical and social structure of the Dalits, the members of the
dominant community would have just commanded them to obey their dictum and
they too would have meekly acquiesced.
134 We can take judicial notice of certain notorious facts that obtain in
our country in terms of Sections 56 and 57 of the Evidence Act. When a baby is
born in this country, its caste gets determined first even before it is named. Caste
consciousness is so deeply embedded in our social consciousness that its
manifestation in the countryside is almost tyrannical in form. This, perhaps,
prompted Dr. Ambedkar to remark in his opening address on 04.11.1948 in the
Constituent Assembly as “What is the village but a sink of localism, a den of
ignorance, narrow-mindedness and communalism.” We would like to put it more
pithily by saying that in a 100 metre dash race, the starting line for a Dalit is 25
metres behind and he is required to run a hurdle race, when others are required to
merely sprint. The Dalits, whose colony is always in the outskirts of a village,
have to eke out their livelihood by working as farm hands in the lands of the upper
caste people. If they dare to testify against the upper caste people, an innocuous
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
fatwa by the upper caste not to employ the Dalits from a particular colony as farm
hands, would be enough to drive them to starvation.
135 Based on a study that was published in the journal “Population and
development review”, a news item entitled “Longevity depends on caste - a
study”, was published in the Times of India on 23.04.2022, wherein, it is reported
that the life expectancy of upper caste is about 4 to 6 years more than the men and
women from the Scheduled Castes and Scheduled Tribes. What the Dalits want is,
not merely reservation in some Government jobs and education, but emotional
assimilation into the fabric of our society and to be treated as equals.
136 At the risk of repetition, the witnesses, who were examined by the
CBI during the investigation in order to prove the fact that Marudhupandiyan
(A.2) administered poison to his sister Kannagi and Ayyasamy (A.4) administered
poison to Murugesan on the directions of Duraisamy (A.1), turned hostile in the
trial. Chinnapillai (P.W.49), right from the stage of recording of her Section 164
Cr.P.C. statement, has been maintaining that poison was administered to
Murugesan by Marudhupandiyan (A.2) and she was not subscribing to the CBI
theory that it was Ayyasamy (A.4) who had administered poison to Murugesan on
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
the directions of Duraisamy (A.1). Since she did not subscribe to this view of the
CBI, the CBI did not include her as a prosecution witness in the memo of
evidence. As alluded to above, she was examined as P.W.49 only on the
application of the trial Court Public Prosecutor. Therefore, we cannot say that she
is completely an untruthful witness just because she did not subscribe to one part
of the CBI’s theory, viz., administration of poison to Murugesan.
137 The learned defence counsel attacked the evidence of Tamilarasi
(P.W.15) by contending that her husband Mayavel (P.W.20) has stated in the
cross-examination that Tamilarasi (P.W.15) was in the house taking care of her
infant. To examine this contention, we are required to analyse the evidence of
Tamilarasi (P.W.15), Mayavel (P.W.20), Saroja (P.W.23) and Indrani (P.W.24),
daughter of Saroja (P.W.23).
138 To recapitulate, it is the case of the CBI that after
Marudhupandiyan(A.2) threatened Ayyasamy (A.4) to produce Murugesan,
Ayyasamy (A.4) went to the house of Tamilarasi (P.W.15), Murugesan’s sister, at
Vannangudikkadu and brought him back to Pudukkooraipettai Village and handed
him over to Duraisamy’s (A.1’s) group one day prior to his death. Tamilarasi
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
(P.W.15), in her evidence, has stated that her brother Murugesan was in her house
in the morning (she did not say that Ayyasamy (A.4) came to her house and picked
up Murugesan) and later, in the evening, when she felt that something was going
amiss, she left her village and came to Pudukkooraipettai Village and witnessed
the torture that was meted out to her brother Murugesan.
139 Mayavel (P.W.20), in the chief-examination, has stated that his wife
Tamilarasi (P.W.15) left for Pudukkooraipettai Village in the evening around
6 p.m. But, in the cross-examination, he has stated that on that day, his wife was in
the house taking care of her infant. In our opinion, this stray statement of Mayavel
(P.W.20) in the cross-examination cannot have the effect of completely
demolishing the evidence of Tamilarasi (P.W.15) with regard to the fact that her
brother Murugesan was in her house at that time and on that evening, she came to
Pudukkooraipettai Village sensing some trouble and witnessed the torture that was
meted out to Murugesan. As held by the Supreme Court in State of Uttar
Pradesh v M.K. Anthony [AIR 1985 SC 48], after all, “cross-examination is an
unequal duel between a rustic and a refined lawyer”.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
140 Likewise, it is the case of the CBI that Murugesan had left Kannagi in
the house of Saroja (P.W.23) at Moongilthuraippattu and that he revealed it when
he was subjected to torture; since Saroja (P.W.23) is the mother-in-law of
Ayyasamy (A.4), Duraisamy (A.1) sent Ayyasamy (A.4), along with his men, in a
Tata Sumo car (M.O.7) to bring Kannagi back to Pudukkooraipettai Village. To
this extent, we have the evidence of Velmurugan (P.W.2) and Palanivel (P.W.3).
141 However, Saroja (P.W.23), a Dalit and her daughter Indrani (P.W.24)
eventually turned hostile and stated that they do not know anyone by name
Murugesan which on the face of it, is too big a pill for us to swallow. We do
understand the societal compulsions of the two Dalit women, viz., Saroja (P.W.23)
and her daughter Indrani (P.W.24), for turning hostile.
142 Bearing in mind the sapient counsel of Sir James Stephen extracted in
paragraph 130 (supra), we are bringing to the fore, our logical power, natural
sagacity and practical experience while appraising the evidence of Velmurugan
(P.W.2), Palanivel (P.W.3), Tamilarasi (P.W.15) and Chinnapillai (P.W.49). The
fact remains that the death of Kannagi was in Pudukkooraipettai Village (the fort
of AA 1 & 2 group) and therefore, we are perfectly justified in drawing the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
inference that the team deployed by Duraisamy (A.1) in the Tata Sumo car
(M.O.7) had brought Kannagi to Pudukkooraipettai Village. When there is
satisfactory evidence to show that both Murugesan and Kannagi came into the
clutches of the group of Duraisamy (A.1), then, their deaths soon thereafter should
have been caused only by them and none else, unless they had come forward to
probabilise a different theory and thereby, discharge the burden under Section 106
of the Evidence Act. We are fortified in arriving at such an inference with the aid
of the decision of the Supreme Court in State of West Bengal v Mir Mohammad
Omar and others [(2000) 8 SCC 382]. Ergo, we have no hesitation in inferring
that the deaths of Murugesan and Kannagi were not owing to suicide but owing to
honour killing perpetrated by Duraisamy (A.1) and Marudhupandiyan (A.2) and
their henchmen.
143 The trial Court has acquitted Ayyasamy (A.4) and Gunasekaran (A.9),
both Dalits. The CBI have not appealed against their acquittal. Now, the daunting
task of fixing criminal liability on the remaining convicted accused has to be
undertaken by us. There is no difficulty in fixing criminal liability on Duraisamy
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
(A.1) and Marudhupandian (A.2) as they were the dramatis personae in this
sordid story right from the very beginning.
144 As regards the remaining convicted accused, the defence counsel
submitted that even according to the prosecution witnesses, the whole village had
gathered at the place as mere onlookers and therefore, the other accused cannot be
convicted. In this case, the trial Court has convicted and sentenced the other
accused with the aid of Section 149 IPC. We are legitimate in invoking Section 34
IPC also with or without the aid of Section 8(b) of the SC/ST Act, which reads as
follows:
“8. Presumption as to offences:- In a prosecution for an offence
under this Chapter, if it is proved that:
(a) ….
(b) a group of persons committed an offence under this Chapter and
if it is proved that the offence committed was a sequel to any
existing dispute regarding land or any other matter, it shall be
presumed that the offence was committed in furtherance of the
common intention or in prosecution of the common object.”
145 Mr. V. Gopinath, learned Senior Counsel, contended that Section 8,
ibid. can be invoked only if the prosecution proves that the group members had
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
committed the murders of Murugesan and Kannagi and in the absence of any
evidence as to who had actually administered poison to the deceased duo, the
question of invoking Section 8, ibid., does not arise at all.
146 We have carefully considered the aforesaid submission. There is no
direct evidence to show as to who had administered poison to Kannagi.
Nevertheless, there is direct evidence to show that Marudhupandiyan (A.2) had
administered poison to Murugesan via the evidence of Chinnapillai (P.W.49). To
be noted, a fact can be proved not only by direct evidence but also via
circumstantial evidence. This is a case predicated on both forms of evidences, viz.,
direct and circumstantial. Keeping aside the evidence of Chinnapillai (P.W.49) for
a moment, we have the direct evidence of Samikannu (P.W.1), Velmurugan
(P.W.2), Palanivel (P.W.3) and Tamilarasi (P.W.15), through whom, the following
facts stand proved:
i. Marudhupandiyan (A.2) was looking out for Murugesan and was
demanding his production from Samikannu (P.W.1) and Ayyasamy (A.4);
ii. Samikannu (P.W.1) found Murugesan and Kannagi in Raasaapalayam in the
house of his relative Dhanavalli;
iii. Murugesan was brought to Pudukkooraipettai Village by Ayyasamy (A.4);
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
iv. Murugesan was tortured in public gaze to reveal the whereabouts of
Kannagi;
v. On Murugesan revealing Kannagi’s whereabouts, a group went by Tata
Sumo car (M.O.7) to Moongilthuraipattuto fetch Kannagi to
Pudukkooraipettai Village; and
vi. On the next day, Murugesan and Kannagi were murdered and their bodies
cremated.
147 Now, let us examine thoroughly the scope of Section 8(b) of the
SC/ST Act. This provision appears to draw its strength from Section 6, ibid.,
because Section 8(b), ibid., uses the expressions “common intention” and
“common object”. Section 2(f), ibid., telescopes the definitions in Cr.P.C. and IPC
into the SC/ST Act. Though the expression “common intention” has not been
defined as such in the IPC, the expression “unlawful assembly”, which is the
genus of the species under Section 149 IPC, has been defined in Section 141 IPC.
The third clause in Section 141 IPC uses the expression “other offence”. This
means, if five or more persons gather with the common object of committing an
offence, such a gathering is defined as an unlawful assembly. What is an offence?
The word “offence” has been defined in Section 40 IPC, which is as under:
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
“40. Offence - Except in the Chapters and sections mentioned
in clauses 2 and 3 of this section, the word "offence" denotes a thing
made punishable by this Code.
In Chapter IV, Chapter VA and in the following sections,
namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116,
117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327,
328, 329, 330, 331, 347, 348, 388, 389 and 445, the words "offence"
denotes a thing punishable under this Code, or under any special or
local law as hereinafter defined.
And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the
word "offence" has the same meaning when the thing punishable
under the special or local law is punishable under such law with
imprisonment for a term of six months or upwards, whether with or
without fine.”
In the third clause of Section 40 IPC, which relates to offences punishable under
special or local laws, Section 141 IPC finds a place. Thus, if five or more persons
gather with the common object of committing an offence punishable with
imprisonment for a term of six months or more prescribed by a special law, then
Section 141 IPC will apply. The SC/ST Act is a special law and Section 3(2)(v),
ibid., for which A1 to A13 were charged, prescribes a punishment of life
imprisonment which is obviously more than the imprisonment stipulated in the
third clause of Section 40 IPC. The upshot of the above discussion is, if five or
more persons gather with the common object of committing an offence under
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Section 3(2)(v) of the SC/ST Act, they can be punished under Section 141 r/w
Section 143 IPC. If a member of such an unlawful assembly were to commit an
offence, the others could be made liable with the aid of Section 149 IPC.
148 Now, let us go to the application of Section 34 IPC. It is trite that
Section 34 IPC does not create an offence but is only a rule of evidence. It is for
this reason that Section 34 does not use the word “offence” and instead, the
expression “criminal act” has been employed. The expression “criminal act” like
the expression “illegal act” is wide enough to include an offence. In other words,
all offences are illegal acts and not vice versa. Thus, if two or more persons share
the common intention to commit an offence under Section 3(2)(v) of the SC/ST
Act, they can be convicted and sentenced accordingly with the aid of Section 34
IPC.
149 At this juncture, it may be relevant to state here that Section 34 IPC
and Section 149 IPC are not two mutually exclusive provisions. An assembly of
five or more persons may have a common object and may also share a common
intention to commit an offence. Thus, these two provisions can overlap in a given
case, as in this case, and hence, both Sections 34 and 149 IPC can be invoked
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
albeit the absence of Section 34 IPC in the charges. [See Karnail Singh v State of
Punjab (AIR 1954 SC 204) and Nallabothu Venkaiah v State of Andhra
Pradesh [(2002) 7 SCC 117].
150 Now, reverting to the discussion on Section 8(b) of the SC/ST Act,
the same would be incomplete without an expatiation of Section 6, ibid. Section
6, ibid. reads as under:
“6. Application of certain provisions of the Indian Penal Code.
—Subject to the other provisions of this Act, the provisions of section
34, Chapter III, Chapter IV, Chapter V, Chapter VA, section 149 and
Chapter XXIII of the Indian Penal Code (45 of 1860), shall, so far as
may be, apply for the purposes of this Act as they apply for the
purposes of the Indian Penal Code.”
151 Section 6, ibid. makes it clear that, Sections 34 and 149 IPC would
apply in all their fours to a prosecution under the SC/ST Act. In our opinion, in
the light of the discussion in paragraphs 145 to 147 (supra), even without the aid
of Section 6, ibid. Sections 34 and 149 IPC can be applied to a prosecution under
Section 3(2)(v) of the SC/ST Act. Thus, Section 6 of the SC/ST Act appears to
have been introduced, ex abundanti cautela, qua Sections 34 and 149 IPC.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
152 Section 8(b) of the SC/ST Act uses the expression “a group of
persons”. A group could be two or more persons. The word “group” has been
used in order to make the presumption applicable both to common intention
(Section 34 IPC) and common object (Section 149 IPC). Section 8(b) of the SC/ST
Act would apply to offences relating to any “existing land dispute or any other
matter”. The expression “any other matter” would undoubtedly encompass an
“Honour Killing”. The object of Section 8(b), ibid., is to relieve the prosecution of
its evidentiary burden to prove that each member in the group shared the common
intention or had a common object. It reverses the onus and casts it on a member to
show that he or she neither shared the common intention nor had the knowledge
about the common object of the group. In normal circumstances, in an IPC
prosecution, the onus is on the prosecution to show that the accused shared the
common intention or had knowledge about the common object of the assembly for
convicting him with the aid of Sections 34 or 149 IPC, as the case may be. This
would be established by proving the overt acts of the accused based on which the
Court would draw the necessary inference. Offences under the SC/ST Act are
normally perpetrated on the Dalits on account of cultural and deep-rooted prejudice
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
that the non-Dalits harbour against them. So, on the slightest pretext, a whole
community of non-Dalits would go about on a rampage burning the houses of
Dalits with the refrain, “these fellows should be taught a lesson”. Therefore, in the
wisdom of the Parliament, Section 8(b) of the SC/ST Act was introduced to shift
the onus on the accused to show that they neither shared the common intention nor
had any knowledge about the common object of the group.
153 A fortiori, once an offence under Chapter II of the SC/ST Act is
proved to have been committed by a group, the presumption under Section 8(b),
ibid., would come into play. Presumptions, as was colourfully explained by the
American Judge Lamm, J. “are like bats, flitting in the twilight but disappearing
in the sunshine of facts.”(See Mackowik v Kansas City St. James & CBR Co.
[(1906) 94 SW 256]. The legislature, in its wisdom, was conscious of the fact that
in matters involving atrocities on Scheduled Castes and Scheduled Tribes, the
evidence would mostly be in the twilight zone and in the absence of a statutory
presumption, the perpetrators would escape in the shadow of the fading light.
154 In this case, the evidence is so watertight that, we are afraid, we need
not labour hard to invoke Section 8(b), ibid. and instead, we take into aid Section
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
34 IPC simpliciter along with Section 149 IPC to sustain the conviction of most of
the accused for the honour killing. As stated in paragraph 143 (supra), we have
no difficulty in fixing criminal liability on Duraisamy (A1) and Marudhupandiyan
(A2) in the torture of Murugesan, abduction of Kannagi and murder of both. Now,
let us examine the evidence against the others.
155 Velmurugan (P.W.2), in his evidence, has stated that all the accused
in the dock were present when Murugesan was tortured. However, he has
specifically stated that Marudhupandiyan (A.2), Kanthavel (A.5), Jothi (A.6),
Venkatesan (A.7), Gunasekaran (A.9), Dhanavel (A.10) and Anjapuli (A.11) were
present; of these persons, Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Mani
(A.8),Gunasekaran (A.9) and Dhanavel (A.10) went along with Ayyasamy (A.4) in
the Tata Sumo car (M.O.7) driven by Jayatharasan (P.W.22) to fetch Kannagi.
156 The above evidence of Velmurugan (P.W.2) is generally corroborated
by Palanivel (P.W.3), who has identified the presence of Marudhupandiyan (A.2),
Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Gunasekaran (A.9), Ramadass
(A.12) and Malayan (accused standing in the last). He has also stated that
Ayyasamy (A.4), Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Mani (A.8),
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Gunasekaran (A.9) and Dhanavel (A.10) went by Tata Sumo car (M.O.7) to bring
Kannagi.
157 Chinnapillai (P.W.49), in her evidence, has identified
Marudhupandiyan (A.2), Rangasamy (A.3), Kanthavel (A.5), Mani (A.8) and
Malayan as the persons who have tortured Murugesan. She has further stated that
Marudhupandiyan (A.2), Kanthavel (A.5), Jothi (A.6), Venkatesan (A.7), Mani
(A.8) and Ramadass (A.12) assaulted Ayyasamy (A.4) and went along with him to
bring Kannagi.
158 On a careful analysis of the evidence of Samikannu (P.W.1),
Velmurugan (P.W.2), Palanivel (P.W.3) and Chinnapillai (P.W.49), we find that
the presence of Rangasamy (A.3), which has been spoken to by Chinnapillai
(P.W.49), has not been spoken to by either Velmurugan (P.W.2) or Palanivel
(P.W.3). That apart, the assertion of Chinnapillai (P.W.49) that Rangasamy cut the
mouth of Murugesan when Marudhupandiyan (A.2) administered poison to him, is
not compatible with charge no.9. Therefore, we are of the view that Rangasamy
(A.3) deserves to be acquitted of all the charges.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
159 As regards Chinnadurai (A.13), his name has not been stated by
Samikannu (P.W.1), Velmurugan (P.W.2), Palanivel (P.W.3) and Chinnapillai
(P.W.49), but, there is a reference to one Malayan in the evidence of Palanivel
(P.W.3). In the absence of materials to show that Chinnadurai (A.13) was referred
to as Malayan, it may not be safe to sustain his conviction.
160 Therefore, dehors Section 8 of the SC/ST Act, we hold that Kanthavel
(A.5), Jothi (A.6), Venkatesan (A.7), Mani (A.8), Dhanavel (A.10), Anjapuli
(A.11) and Ramadass (A.12) shared the common intention with Duraisamy (A.1)
and Marudhupandiyan (A.2) in the torture of Murugesan for revealing the
whereabouts of Kannagi; on Murugesan spilling the beans, forcibly bringing
Kannagi to the village; thereafter, murdering both and quietly cremating them.
Similarly, Duraiswamy (A.1), Marudhupandiyan (A.2), Kanthavel (A.5), Jothi
(A.6), Venkatesan (A.7), Mani (A.8), Dhanavel (A.10), Anjapuli (A.11) and
Ramadass (A.12) were part of the unlawful assembly whose common object was
to get rid of Murugesan and Kannagi for falling in love and getting married.
161 Coming to the charge of conspiracy, it is trite that it is not necessary
for the prosecution to prove that the conspirators met at a secret place and in a
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
hushed up voice, conspired to commit the offence in question. Conspiracy, like
any other offence, can be established by the process of inference with the aid of
Section 10 of the Evidence Act. In the instant case, Duraisamy (A.1) and his son
Marudhupandiyan (A.2), entertained the idea of eliminating Murugesan and
Kannagi for falling in love with each other and eloping. To disguise their evil
intention, Marudhupandiyan (A.2) told Samikannu (P.W.1) and Ayyasamy (A.4)
that Murugesan had borrowed Rs.10,000/- from him and commanded them to
bring Murugesan to the village. When Ayyasamy (A.4) innocently brought
Murugesan, the sacrificial lamb for slaughter, Kanthavel (A.5), Jothi (A.6),
Venkatesan (A.7), Mani (A.8), Dhanavel (A.10), Anjapuli (A.11) and Ramadass
(A.12) joined the bandwagon and started torturing Murugesan, until he disclosed
the whereabouts of Kannagi, after which, this group went by Tata Sumo car
(M.O.7) driven by Jayatharasan (P.W.22) and accomplished the mission of
bringing Kannagi to Pudukkooraipettai Village. Thus, the charge of conspiracy
also stands proved against them.
162 Insofar as Marudhupandiyan (A.2), he has been convicted for the
murder of Kannagi under Section 302 r/w Section 149 IPC. We are confirming
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
this conviction additionally with the aid of Section 34 IPC. The life imprisonment
and fine Rs.50,000/- that have been imposed on him by the trial Court therefor are
confirmed. That apart, Marudhupandiyan (A.2) has been convicted for the murder
of Murugesan also under Section 302 IPC and has been imposed death sentence
therefor, besides a fine of Rs.1 lakh. It may not be proper for this Court to confirm
the same, as it is predicated on the uncorroborated testimony of Chinnapillai
(P.W.49), insofar as it relates to the issue of administering poison to Murugesan,
and the same is also not in consonance with charge no.9. However, we are
confirming his conviction along with others [except Rangasamy (A.3) and
Chinnadurai (A.13)] for various substantive offences, with the aid of Sections 149
and 34 IPC, apart from confirming his conviction under Section 120-B IPC read
with Section 302 IPC. Thus, when all the other accused are sentenced to various
terms of imprisonment, except death sentence, by applying the principle of parity,
death sentence should not be imposed on Marudhupandiyan (A.2) alone. Ergo,
the death sentence imposed on Marudhupandiyan (A.2) is reduced to one of im-
prisonment for life, but, the sentence of fine imposed by the trial Court is con-
firmed.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
163 As the evidence against Rangasamy (A.3) and Chinnadurai (A.13) is
scanty, as alluded to in paragraph nos.158 and 159 (supra), we are extending the
benefit of doubt to them. Accordingly, the judgment and order of the trial Court
convicting and sentencing them is set aside, and they stand acquitted of all the
charges. As a corollary, their appeals are allowed.
Case against Tamilmaran (A.14) and Sellamuthu (A.15):
164 Admittedly, Tamilmaran (A.14) was the Sub Inspector and
Sellamuthu (A.15) was the Inspector at the Vriddhachalam Police Station at the
relevant point of time. There are three main allegations against Tamilmaran (A.14)
and Sellamuthu (A.15). The first allegation against them is that, on 08.07.2003,
after knowing about the incident, though they went to Pudukooraipettai Village,
they did not register any case when Chinnapillai (P.W.49) came to the police
station and complained. The second allegation is that, they fabricated and
manufactured records on 17.07.2003, more particularly, the police confession of
one Ilayaperumal and followed it up by a make-believe seizure of a stainless steel
tumbler (M.O.2) allegedly on the disclosure statement of Ilayaperumal under the
cover of mahazar (Ex.P.43) attested by one Jayaraman (P.W.34) and his assistant
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Sivaperumal. The 15th charge against Tamilmaran (A.14) and Sellamuthu (A.15) is
under Section 4 of the SC/ST Act for not entertaining the complaint of
Chinnapillai (P.W.49) knowing full well that she is a Dalit. The third allegation
(16th charge) is that knowing full well that Ilayaperumal, Kannadasan and
Samikannu were Dalits, they were falsely implicated for murder in the final report
filed by the Vriddhachalam police and thereby, they are punishable under Section
3(2)(i) of the SC/ST Act.
165 Before discussing the evidence against Tamilmaran (A.14) and
Sellamuthu (A.15), we propose to deal with the preliminary legal issues that were
raised on their behalf at the bar.
166 Mr. Karthikeyan submitted that there has been a misjoinder of
charges, in that, Tamilmaran (A.14) and Sellamuthu (A.15) ought not to have been
tried along with AA 1 to 13. In this regard, he placed reliance on a Division Bench
judgment of this Court in Solaiappa Gounder and others v State [(2003) 4 CTC
78]. The answer to the above lies in Section 223(d) Cr.P.C. which states that
persons accused of different offences committed in the course of the same
transaction can be charged and tried together. In this case, AA 1 to 13 were
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
charged for the offences of abduction, torture and murder of Murugesan and
Kannagi and Tamilmaran (A.14) and Sellamuthu (A.15) were charged for not
entertaining the complaint of Chinnapillai (P.W.49), for disobeying a direction of
law with intent to save a person from punishment (Section 217 IPC) and for
framing incorrect records to save a person from punishment (Section 218 IPC).
167 Now, the question is whether the two sets of offences, viz., the
offences for which AA 1 to 13 were charged and the offences for which
Tamilmaran (A.14) and Sellamuthu (A.15) were charged, occurred in the course of
the same transaction or not.
168 The expression “same transaction” used in Section 223 (d) Cr.P.C.
has not been defined anywhere and therefore, it had always vexed the Courts of
law. Sir James Stephen has employed this expression in Section 6 of the Indian
Evidence Act, 1872, as well as in Article 3 of his work - A digest of the Law of
Evidence, 5th Edition (London), McMillan and Co., 1887. Article 3 reads as
follows:
“Relevancy of facts forming part of the same transaction as the facts in
issue.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
A transaction is a group of facts so connected together as to be
referred to by a single legal name, as a crime, a contract, a wrong or any
other subject of inquiry which may be in issue.
Every fact which is part of the same transaction as the facts in issue
is deemed to be relevant to the facts in issue, although it may not be
actually in issue, and although if it were not part of the same transaction it
might be excluded as hearsay.
Whether any particular fact is or is not part of the same transaction
as the facts in issue is a question of law upon which no principle has been
stated by authority and on which single judges has given different
decisions.
When a question as to the ownership of land depends on the
application to it of a particular presumption capable of being rebutted, the
fact that it does not apply to other neighbouring pieces of land similarly
situated is deemed to be relevant.”
169 In connection with Section 235 of the Code of Criminal Procedure,
1898, (Section 220 under the present Code), the Joint Committee of 1922 said:
“We think it would be dangerous, if not impossible, to
attempt any definition of the phrase ‘in the course of the same
transaction.’ An exhaustive definition is not feasible, and if the
phraseology is altered, the courts would be deprived of the
guidance which they now have from a long series of rulings on
the point. We do not find that there has been any pronounced
conflict of opinion, the reason being that the courts, instead of
attempting to lay down general principles, as a rule discuss each
case on its merits.”
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
170 In this context, the judgment of Cuming, J. of Calcutta High Court in
Tamezkhan @ Tamejuddin & Others v Rajjabali Mir and another (AIR 1927
Cal 330) is worth referring to. Speaking for the Bench, Cuming, J. observed as
under:
“…..What does or does not form part of the same transaction may be
considered to be a question of fact in each particular case. Certain tests have
been laid down in various cases by which it may be determined whether
certain acts do or do not form part of the same transaction. In some cases it
has been held that acts may be considered to form part of the same
transaction if there are between these acts proximity of time, community of
intention and continuity of action…..” (emphasis supplied)
171 Taking a cue from the aforesaid judgment, the Supreme Court, in
State of Andhra Pradesh v Cheemalapati Ganeswara Rao and another [AIR
1963 SC 1850], further expatiated on the expression “same transaction” and held
as under:
“25…….What is meant by “same transaction” is not defined anywhere
in the Code. Indeed, it would always be difficult to define precisely what the
expression means. Whether a transaction can be regarded as the same would
necessarily depend upon the particular facts of each case and it seems to us to
be a difficult task to undertake a definition of that which the Legislature has
deliberately left undefined. We have not come across a single decision of any
Court which has embarked upon the difficult task of defining the expression.
But it is generally thought that where there is proximity of time or place or uni-
ty of purpose and design or continuity of action in respect of a series of acts, it
may be possible to infer that they form part of the same transaction. It is, how-
ever, not necessary that every one of these elements should co-exist for a trans-
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
action to be regarded as the same. But if several acts committed by a person
show a unity of purpose or design that would be a, strong circumstance to indi-
cate that those acts form part of the same transaction. The connection between
a series of acts seems to us to be an essential ingredient for those acts to consti-
tute the same transaction and, therefore, the mere absence of the words “so
connected together as to form” in clauses (a), (c) and (d) of Section 239 would
make little difference…..” (emphasis supplied by us)
172 Bearing the aforesaid legal principle in mind, now, it has to be
decided, at which point of time, the Court is required to consider the issue of who
all could be jointly tried under Section 223(d) Cr.P.C.
173 The obvious answer to this question is that the Court would be
required to decide the issue at the time of framing of charges [See Nasib Singh v.
State of Punjab [(2022) 2 SCC 89]. In this case, at the time of framing of
charges, the trial Court had before it, the charge sheet filed by the CBI, Section
161(3) Cr.P.C. statements and Section 164 Cr.P.C. statements of various
witnesses.
174 It is the specific case of the CBI that Murugesan was brought to
Pudukkooraipettai Village on 07.07.2003 and tortured for finding out the
whereabouts of Kannagi; on Murugesan’s disclosure, Kannagi was forcibly
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
brought to Pudukkooraipettai Village; both of them were administered poison on
08.07.2003; after their death, their bodies were cremated; within a few hours,
Tamilmaran (A.14) and Sellamuthu (A.15) knew of the incident and they came to
the place of occurrence; Chinnapillai (P.W.49) went to the police station along
with Amaravathi (P.W.16) on 08.07.2003 and gave a complaint seeking police
intervention, but they were driven away; Tamilmaran (A.14) and Sellamuthu
(A.15) were protecting the group of Duraisamy (A.1) only; when the matter went
out of control, Sellamuthu (A.15) contrived a plan to record an extrajudicial
confession, purportedly given by Duraisamy (A.1) to Ashokan (P.W.32), V.A.O.,
based on which, they registered a case in Cr.No.356 of 2003, manufactured further
records by arresting eight persons and filing a charge sheet in consonance with
their narrative.
175 Thus, the CBI placed before the trial Court, a chain of events
intricately linked to one another, which prima facie showed that the offences
committed by AA 1 to 13 and the offences committed by Tamilmaran (A.14) and
Sellamuthu (A.15), were all done in the course of the same transaction, though
they were offences of two different genres.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
176 Hence, the trial Court was right in framing charges against AA 1 to
15 by pressing into service Section 223(d) Cr.P.C. Tamilmaran (A.14) and
Sellamuthu (A.15) did not object to being tried together and participated in the
trial by cross-examining the witnesses without any demur or complaining of any
prejudice. However, during trial, most of the witnesses turned hostile and the
evidence on record appears disjointed. That cannot be an excuse now to say that
Tamilmaran (A.14) and Sellamuthu (A.15) ought not to have been tried together
with the remaining accused, viz., AA 1 to 13. Section 464 Cr.P.C caters to such a
situation and says that no finding, sentence, or order shall be deemed to be invalid
on the ground of irregularity in the charge, including any misjoinder of charges,
unless, in the opinion of the Court of appeal, a failure of justice has, in fact, been
occasioned thereby. In this case, there is absolutely no room for this Court to hold
that failure of justice has occasioned by the trial Court trying Tamilmaran (A.14)
and Sellamuthu (A.15) along with AA 1 to 13.
177 The learned counsel for Tamilmaran (A.14) and Sellamuthu (A.15)
contended that the trial Court ought not to have framed the 16th charge under
Section 3(2)(i) of the SC/ST Act on the petition filed by Samikannu (P.W.1) under
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Section 216 Cr.P.C. It is true that Samikannu (P.W.1) filed a petition in
Crl.M.P.No.5601 of 2017 (re-numbered as Crl.M.P.No.13 of 2020) under Section
216 Cr.P.C. for framing a charge against Tamilmaran (A.14) and Sellamuthu
(A.15) for the offences under Section 3(2)(c) of the SC/ST Act and after hearing
both sides, the said petition was allowed by the trial Court on 18.12.2017, which
was not challenged by the accused in the High Court. In Anant Prakash v State
of Haryana [(2016) 6 SCC 105], the Supreme Court has held that on a petition
filed by the victim, the charge can be altered. The Code of Criminal Procedure
was amended by the Central Act 5 of 2009 with effect from 07.01.2009 by which
the word “victim” has been defined in Section 2(w)(a) and certain rights have been
provided to the victims. If this provision is read with Section 15-A of the SC/ST
Act, which are procedural in nature and therefore retrospective, the application for
alteration of charge that has been filed by Samikannu (P.W.1) under Section 216
Cr.P.C. cannot be said to be not maintainable, in the facts and circumstances of the
case. We may also point out that in a very recent judgment in Jagjeet Singh v
Ashish Mishra @ Monu (Crl.A. No.632 of 2022 decided on 18.04.2022), the
Supreme Court has held that the victim has an unbridled participatory right from
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
the stage of investigation, till the stage of appeal/revision.
178 After the 16th charge was framed, the accused were given opportunity
to recall any witness they want, pursuant to which, Tamilmaran (A.14) and
Sellamuthu (A.15) recalled Ashokan (P.W.32), V.A.O. and Jayaraman (P.W.34),
V.A.O. and further cross-examined them. In this backdrop, it is impossible to
contend, with any degree of seriousness, that Tamilmaran (A.14) and Sellamuthu
(A.15) had suffered any real prejudice during trial.
179 We will now examine as to whether the prosecution has proved
charge nos.13 to 16 that were framed against Tamilmaran (A.14) and Sellamuthu
(A.15).
180 Charge no.13 (u/s 217 IPC) and Charge No.15 (u/s 4 of the SC/ST
Act) would go together. The crux of these two charges is that, Tamilmaran (A.14)
and Sellamuthu (A.15), knowing full well that Chinnapillai (P.W.49) was a Dalit,
did not register a case on 08.07.2003 on her complaint and they registered the case
in Vriddhachalam P.S.Cr.No.356 of 2003 only on 17.07.2003.
181 Many Constables who were attached to the Vriddhachalam Police
Station at the relevant point of time, but, who had retired during the trial,
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
conveniently, turned hostile, perhaps, to protect Tamilmaran (A.14) and
Sellamuthu (A.15). Judgments of the Supreme Court on the proposition that the
testimony of a hostile witness need not be completely brushed aside are a legion.
Suffice to refer to Koli Lakhmanbhai Chanabhai v State of Gujarat [(1999) 8
SCC 624]. In fact, Section 154(2) of the Evidence Act clearly states that a person
who has been permitted to cross-examine his witness can rely on any part of the
evidence of such a witness.
182 Tamilarasi (P.W.15) has stated that after the death of Murugesan, she,
along with her aunt Amaravathy (P.W.16) and Chinnapillai (P.W.49), went to
Vriddhachalam Police Station where they were driven away by the police hurling
casteist slur, the English translation of which we do not want to set out here, lest it
be construed as indecorous. Of course, Amaravathi (P.W.16) turned hostile.
However, Chinnapillai (P.W.49) has stated that she, after the death of Murugesan,
went to the police station, along with Amaravathi (P.W.16) and gave a complaint,
but, the policemen refused to entertain her and drove them away hurling casteist
invectives.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
183 The defence submitted that Tamilarasi (P.W.15) did not accompany
Chinnapillai (P.W.49) because in her statement to the CBI, she has stated that she
came to know from Amaravathi (P.W.16) that her mother (P.W.49) and
Amaravathy (P.W.16) went to the police station and that they were chased away.
184 Even if we keep aside the testimony of Tamilarasi (P.W.15) on this
aspect, we have no reasons to disbelieve the testimony of Chinnapillai (P.W.49).
Even in her Section 164 Cr.P.C. statement (Ex.P.48), she has stated about this fact
and therefore, her testimony in the Court stands corroborated by her previous
statement.
185 The defence further contended that Chinnapillai (P.W.49) has not
pointedly stated that she met Tamilmaran (A.14) and Sellamuthu (A.15) and that
they refused to entertain her complaint. True it is that Chinnapillai (P.W.49) has
not stated so specifically, much less in clear terms. But, on that score alone, can
the Inspector of Police and the Sub Inspector of Police who are persons in-charge
of the police station, escape criminal liability?
186 Now, let us examine the evidence of Anthonysamy (P.W.40) and
Rajendran (P.W.47).
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
187 It is common knowledge that in the State police apparatus, police
personnel attached to the Special Branch, which directly works under the District
Superintendent of Police, operate unobtrusively at the village level in order to
gather ground intelligence. Anthonysamy (P.W.40) and Rajendran (P.W.47) were
Sub Inspector and Head Constable respectively attached to the Special Branch
CID. At the time of giving evidence, they had retired from service and therefore,
they had turned hostile. But, we are culling out certain portions from their
evidence which are in consonance with the prosecution case.
188 Rajendran (P.W.47), Head Constable, has stated that while he was on
duty on 08.07.2003 in connection with the funeral of the father-in-law of
‘Nakkiran’ Gopal in a nearby village, he heard that two persons had committed
suicide in Pudukkooraipettai Village; he informed this to Anthonysamy (P.W.40),
Sub Inspector, over phone and in turn, Anthonysamy (P.W.40) asked him to go to
Pudukkooraipettai Village and enquire about it and report; therefore, he (P.W.47)
went to Pudukkooraipettai Village, but, none was coming forward to give any
information and he reported this to Anthonysamy (P.W.40); after some time, he
left the village.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
189 As stated above, he was declared hostile and from the suggestions
that were put to him by the trial Court Public Prosecutor, one could infer that he
had told the CBI that he went to the cremation ground, by which time, everything
was over and he returned to Vriddhachalam Police Station where he was told by
Tamilmaran (A.14) that the police received calls and so, he (A.14) went to the
place, but, none came forward to give complaint. Of course, this suggestion cannot
take the place of proof of those facts.
190 Anthonysamy (P.W.40), Sub Inspector of Special Branch CID, has
stated that Rajendran (P.W.47), Head Constable, Special Branch CID, informed
him that two lovers got burnt to death in Pudukkooraipettai Village and so, he
asked him to go there, enquire and report; later, Rajendran (P.W.47) called him
and told him that he went to the place, but, there was no sign of any such incident;
when he (P.W.40) asked him (P.W.47) as to whether any case had been registered,
he (P.W.47) stated that none had come forward to give complaint.
191 This witness (P.W.40) was also declared hostile as he had retired by
the time he came to testify. However, in the cross-examination by the trial Court
Public Prosecutor, this witness has admitted that at the time of the incident,
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Tamilmaran (A.14) was the Sub Inspector and Sellamuthu (A.15) was the
Inspector in the Vriddhachalam Police Station and that he told them that two
persons have been burnt and asked them to take action, but they stated that since
they had not received any complaint, they could not proceed further. Thus, from
the above evidence, it is limpid that the Special Branch CID and Tamilmaran
(A.14) and Sellamuthu (A.15) had come to know even on 08.07.2003 itself that
there had been two deaths in Pudukkooraipettai Village and that the persons who
had died were Murugesan and Kannagi.
192 In the above factual matrix, now, let us examine the duties of a police
officer as set out in Section 21 of the Tamil Nadu District Police Act, 1859, which
reads as under:
“Every police officer shall, for all purposes in this Act contained, be
considered to be always on duty and shall have the powers of a police
officer in every part of the General Police District. It shall be his duty to
use his best endeavours and ability to prevent all crimes, offences and
public nuisances; to preserve the peace; to apprehend disorderly and
suspicious characters; to detect and bring offenders to justice; to collect and
communicate intelligence affecting the public peace; and promptly to obey
and execute all orders and warrants lawfully issued to him.”
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
193 Collecting intelligence and bringing offenders to justice is a part of a
policeman’s duty. In this case, the Special Branch CID gathered intelligence and
communicated the same to the Vriddhachalam Police Station, but, the latter did
not bring the offenders to justice and thus, failed in their duty. Their plea that
none came forward to give any complaint and therefore, they could not register a
case sounds puerile and amounts to clear dereliction of duty.
194 Next, we have the evidence of Sundarapandian (P.W.38) who was
working as a Head Constable in the Vriddhachalam Police Station at the relevant
point of time. In his evidence, he has stated that on 08.07.2003, the police station
received information that Murugesan and Kannagi had committed suicide, in
connection with which, he learnt that Tamilmaran (A.14) went to the place of
occurrence. In the cross-examination, this witness has stated that none came to the
police station to give any complaint and there is no entry in the station records to
show that Tamilmaran (A.14) went to Pudukkooraipettai Village.
195 Ramamoorthy (P.W.39) who was also working as Head Constable in
the Vriddhachalam Police Station at the relevant point of time, in his evidence, has
stated that he collected the various seized articles in Vriddhachalam
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
P.S.Cr.No.356 of 2003, took them to the Court of the Judicial Magistrate No.I,
Vriddhachalam and thereafter, handed them over to the forensic laboratory for
examination and got back the remnants. However, in the cross-examination, he has
stated that on 07.07.2003 and 08.07.2003, he was on duty in Vriddhachalam
Police Station and at that time, none came there to give any complaint.
196 The defence counsel drew the attention of this Court to the cross-
examination of Sundarapandian (P.W.38) and Ramamoorthy (P.W.39) who have
stated that none had come to the police station to give complaint and thus, the
evidence of Chinnapillai (P.W.49) stands pitted against the evidence of the retired
policemen Sundarapandian (P.W.38) and Ramamoorthy (P.W.39). We are inclined
to believe the assertion of the former, viz., Chinnapillai (P.W.49) and not that of
Sundarapandian (P.W.38) and Ramamoorthy (P.W.39), because, one cannot
expect the Head Constables to say that Chinnapillai (P.W.49) came to the police
station to give complaint, but, it was not entertained by them and thereby, dig their
own graves.
197 The contention of the learned counsel for the accused that
Chinnapillai (P.W.49) did not say that she met Tamilmaran (A.14) and Sellamuthu
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
(A.15) in the police station and they chased her away cannot hold water, because,
Chinnapillai (P.W.49) would have been in a state of trauma after having witnessed
the ghastly events and the policemen in the sentry duty would not have permitted
her to meet the Inspector.
198 From a conspectus of the aforesaid facts, we are able to draw the
following inferences without any hesitation:
i. On 08.07.2003, unnatural deaths of Murugesan and Kannagi occurred in
Pudukkooraipettai Village;
ii. Around 8.00 a.m. on 08.07.2003 itself, information had come to
Vriddhachalam Police Station which is hardly 3 kms. from
Pudukkooraipettai Village that an untoward incident had taken place there;
iii. Tamilmaran (A.14) and Sellamuthu (A.15) knew the names of the dead, viz.,
Murugesan and Kannagi and also their castes;
iv. Tamilmaran (A.14) had gone to the place of occurrence on 08.07.2003.
v. Chinnapillai (P.W.49), a Dalit, had gone to the Vriddhachalam Police
Station to give a complaint but the police did not entertain her and drove her
away;
vi. FIR was registered on 17.07.2003, that too, on the alleged extrajudicial
confession of Duraisamy (A.1).
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
199 Therefore, we hold that the prosecution has proved Charges 13 and
15 beyond an iota of doubt and as a corollary, the conviction and sentence of
Tamilmaran (A.14) and Sellamuthu (A.15) for the offences under Section 217 IPC
(Charge 13) and Section 4 of the SC/ST Act (Charge 15) are confirmed.
200 Charge 14 (u/s 218 IPC) and Charge 16 (u/s 3(2)(i) of the SC/ST Act)
against Tamilmaran (A.14) and Sellamuthu (A.15) are somewhat inter-related.
The crux of these two charges is that Tamilmaran (A.14) and Sellamuthu (A.15)
fabricated records and falsely implicated three Dalits, viz., Ilayaperumal,
Kannadasan (P.W.33) and Samikannu (P.W.1) in the murder of Murugesan. The
specific allegation in charge 14 (u/s 218 IPC) is that, a police confession (Ex.P.39)
purported to have been given by Ilayaperumal was manufactured, based on which
a make-believe recovery of a stainless steel tumbler (M.O.2) under the cover of a
mahazar (Ex.P.43) was effected by Tamilmaran (A.14) and Sellamuthu (A.15).
Now, let us examine the evidence against Tamilmaran (A.14) and Sellamuthu
(A.15) for these two charges.
201 According to the Vriddhachalam police, even after the Press and Dalit
leaders started crying hoarse from rooftops that honour killing has happened in
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Pudukkooraipettai Village, they were in deep official slumber and that they woke
up only on 17.07.2003 when Ashokan (P.W.32), V.A.O., brought Duraisamy (A.1)
along with the extrajudicial confession (Ex.P.9) to the police station.
202 Ashokan (P.W.32) in his evidence, has stated that he was the V.A.O.
of several villages, including Pudukkooraipettai Village; he was under suspension
from 02.07.2003 to 24.07.2003 under the Tamil Nadu Essential Services
Maintenance Act; on 16.07.2003, he was directed by the Tahsildar to meet the
Deputy Superintendent of Police of Vriddhachalam and when he met the Deputy
Superintendent of Police, Vriddhachalam, he was asked to meet the Inspector of
Police, Vriddhachalam Police Station; accordingly, on 17.07.2003, he went to
Vriddhachalam Police Station and met Sellamuthu (A.15); Sellamuthu (A.15) gave
something written in two papers and asked him to copy and record the same in his
handwriting; accordingly, he recorded the same and affixed his signature;
Duraisamy (A.1) also signed in those papers. This statement, purportedly an
extrajudicial confession of Duraisamy (A.1), was marked as Ex.P.9. Based on this
statement, an FIR in Cr.No.356 of 2003 was registered by Vriddhachalam Police
Station and in the printed FIR, the signature of Ashokan (P.W.32), V.A.O. was
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
obtained in the column meant for complainant. He was also asked to give a special
report in writing and the said special report was marked as Ex.P.11. He has
further stated that in that special report, he had written matters relating to the death
of one Kannagi, D/o Duraisamy and one Murugesan, S/o Samikannu, by
consuming poison.
203 As far as accused 1 to 13 are concerned, there was no serious cross-
examination of this witness, because, they have repudiated the alleged
extrajudicial confession of Duraisamy (A.1) to Ashokan (P.W.32), V.A.O. The
cross-examination of Ashokan (P.W.32) was mainly done by the counsel who ap-
peared for Tamilmaran (A.14) and Sellamuthu (A.15). The witness withstood the
cross-examination without ducking any question. It was suggested to the witness
that the extrajudicial confession of Duraisamy (A.1) was not manufactured in the
police station, but, it was given by Duraisamy (A.1) to him (P.W.32) and he
produced Duraisamy (A.1) along with the extrajudicial confession, gave a special
report also, only on which, the case in Vriddhachalam P.S.Cr.No.356 of 2003 was
registered and investigation taken up. Ashokan (P.W.32) denied the suggestion.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
204 As stated above, after the 16th charge was framed, Ashokan (P.W.32)
was recalled by the accused and was further cross-examined by them on
03.03.2021 and the defence was not able to make any substantial gain therefrom.
205 We are convinced that, when public opinion reached a crescendo in
this case, the Vriddhachalam police developed cold feet and had to respond in
order to save their skin. Therefore, they contrived a plan by which they
manufactured an extrajudicial confession purported to have been given by
Duraisamy (A.1) and registered an FIR in Cr.No.356 of 2003 against eight persons
(four Vanniyars and four Dalits) and arrested them and within 23 days of the
arrest, they ensured that all of them were granted bail by the Principal Sessions
Court, Cuddalore, by giving specious instructions to the District Public
Prosecutor, about which, we have discussed in detail in paragraph 38 (supra).
206 In our considered opinion, the extrajudicial confession and the FIR
were not the only documents fabricated by the Vriddhachalam police, but also the
police confessions of the arrested accused. This fact has been proved through the
evidence of Jayaraman (P.W.34) who was also a V.A.O. at the relevant point of
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
time. Jayaraman (P.W.34) was examined-in-chief on 18.09.2017 and on that day
itself, his first round of cross-examination by the accused was done.
207 Jayaraman (P.W.34), in his evidence, has stated that in the year 2003,
he was working as V.A.O. in Vriddhachalam; he and his assistant Siva Perumal
(not examined) were called to the Vriddhachalam Police Station by Sellamuthu
(A.15) on 17.07.2003; they went there; at that time, Sellamuthu (A.15) was there;
they were asked to sign as witnesses in the police confession of Duraisamy (A.1),
Ilayaperumal and Samikannu (P.W.1); his signature and the signature of Siva
Perumal in those police confessions were marked as Exs.P.13 to P.18. He has
further stated that they were asked to sign in the observation mahazar and seizure
mahazar that were kept ready in the police station and accordingly, they signed.
208 Now, we are mainly concerned with charge no.14 which relates to the
alleged seizure of a stainless steel tumbler based on the disclosure statement of the
arrested accused, Ilayaperumal (since died). Ilayaperumal, who was cited as a
prosecution witness, was not alive when the trial began. However, the fact that
Sellamuthu (A.15) arrested Ilayaperumal along with Samikannu (P.W.1),
Anbazhagan (P.W.29) and Kannadasan (P.W.33) in Vriddhachalam P.S.Cr.No.356
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
of 2003 and sent them in judicial custody is borne out by records and is not in dis-
pute at all. In fact, it is the assertion of Sellamuthu (A.15) that he had properly
conducted the investigation and effected the arrest of the eight accused in this
case.
209 Jayaraman (P.W.34) has identified his signature as well the signature
of his assistant Siva Perumal in the mahazar (Ex.P.43) that was prepared by
Sellamuthu (A.15) for the alleged seizure of a stainless tumbler on the alleged
confession of Ilayaperumal. The signatures of Jayaraman (P.W.34) and his assis-
tant Siva Perumal have been marked as Exs.P.27 and P.28 respectively. Thus, ac-
cording to Jayaraman (P.W.34), Sellamuthu (A.15) manufactured these seizure
mahazars in the police station and he and Siva Perumal were asked to come and
sign there.
210 On 18.09.2017, Jayaraman (P.W.34) was superficially cross-exam-
ined by the group of Duraisamy (A.1) since he was supporting their narrative as
against the narrative of the Vriddhachalam police.
211 This witness was extensively cross-examined on 18.09.2017 by the
counsel for Tamilmaran (A.14) and Sellamuthu (A.15) and it was suggested to him
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
that the confession statements and the recovery mahazars were not prepared in the
police station as testified by him, but were prepared at the respective places
mentioned therein, which suggestion he denied. However, after the 16th charge was
framed on 15.12.2020, the trial Court gave an option to the accused to recall any
witness and accordingly, Jayaraman (P.W.34) was recalled and was further cross-
examined on 03.03.2021, i.e., three years after he testified. In the first portion of
the cross-examination on 03.03.2021, Jayaraman (P.W.34) supported the case of
Sellamuthu (A.15). Therefore, the trial Court Public Prosecutor declared him
hostile and cross-examined him. After the trial Court Public Prosecutor
cross-examined Jayaraman (P.W.34), he was cross-examined further by the
counsel for Tamilmaran (A.14) and Sellamuthu (A.15) and in that
cross-examination, he destroyed the case of Sellamuthu (A.15). Thus, it is obvious
that an attempt was made to tamper Jayaraman (P.W.34) and hence, we are not
placing any serious reliance on the evidence adduced by him on 03.03.2021.
212 From an analysis of the above, we are able to draw the following
inferences without any hesitation:
i. From 08.07.2003 to 16.07.2003, the Vriddhachalam police did not move
even their little finger to register a case and bring the guilty to book.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
ii. On 17.07.2003, Sellamuthu (A.15) began manufacturing records as if
Duraisamy (A.1) surrendered before Ashokan (P.W.32), V.A.O. and gave an
extrajudicial confession statement implicating himself and Samikannu
(P.W.1);
iii. Based on the fabricated extrajudicial confession, a case in Vriddhachalam
P.S.Cr.No.356 of 2003 was registered against four Vanniyars and four
Dalits;
iv. Sellamuthu falsely implicated three Dalits, viz., Samikannu (P.W.1),
Kannadasan (P.W.33) and Ilayaperumal (since deceased) in the murder of
Murugesan, arrested them and recorded false police confessions (Ex.P.39 &
Ex.P.40)
v. More specifically, Sellamuthu (A.15) fabricated a false police confession of
Ilayaperumal (Ex.P.39) and created a mahazar (Ex.P.43) as if a stainless
steel tumbler (M.O.2) was discovered pursuant to his disclosure;
vi. When the Section 164 Cr.P.C. statements of Samikannu (P.W.1) and Du-
raisamy (A.1) that were recorded by the Judicial Magistrate, Tittakudi, at
the instance of Vriddhachalam Police Station on 31.07.2003 while they
were in custody revealed different narratives, Sellamuthu (A.15) did nothing
further to unravel the truth.
vii. The Vriddhachalam police permitted the arrested accused to be released on
bail within 23 days of the incident and Sellamuthu (A.15) filed a charge
sheet (Ex.P.55) falsely implicating Samikannu (P.W.1), Anbalagan,
Kannadasan and Ilayaperumal for murder.
213 In view of the above, we unhesitatingly hold that Sellamuthu
(P.W.15) knew about the unnatural deaths of Murugesan and Kannagi on
08.07.2003 and did not take steps to register a case even after Chinnapillai
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
(P.W.49) came to the police station to complain. Sellamuthu (A.15) manufactured
an extrajudicial confession (Ex.P.9) purported to have been given by Duraisamy
(A.1) to Ashokan (P.W.32), V.A.O., based on which, he arrested Ilayaperumal,
manufactured a police confession of Ilayaperumal and followed it up by preparing
a seizure mahazar (Ex.P.43) attested by Jayaraman (P.W.34) and his assistant
Sivaperumal, as if on the disclosure of Ilayaperumal, a stainless steel tumbler
(M.O.2) was seized. Knowing full well that Samikannu, Ayyasamy and
Ilayaperumal were Dalits, he foisted a murder case on them by filing a final report
(Ex.P.55) for the offence under Section 302 IPC for the murder of Murugesan, for
which, the three Dalits would have been sentenced to imprisonment for life.
Therefore, we hold that the prosecution has satisfactorily proved charge nos.14
and 16 against Sellamuthu (A.15).
214 Mr.S.Doraisamy, learned counsel for Sellamuthu (A.15) placed a
catena of rulings in support of their contention that a sanction under Section 197
Cr.P.C. is required for prosecuting a public servant for the offences committed by
him in the discharge of his official duty. One can have no two opinions on the
rulings cited at the bar with great vehemence. But, to be noted, in none of the
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
judgments, the Supreme Court has held that a public servant would be entitled to
protection under Section 197 Cr.P.C. for the offences committed by him which he
is not required to commit in the discharge of his duty. Also, it is not stated in any
of the judgments that a public servant would be entitled to the protection under
Section 197 Cr.P.C. for committing crimes using the opportunity of being a public
servant. The locus classicus on the question of sanction is the judgment of the
Federal Court in Dr.Hori Ram Singh v The Crown [AIR 1939 FC 159], which
has been adverted to by Vivian Bose, J. in Shreekantiah Ramayya Munipalli v
State of Bombay [AIR 1955 SC287] by holding as under:
“17. What this argument overlooks is that the stress in the passage
quoted is on the word “necessarily” which we have underlined. A later
passage at p. 187 explains this:
“I would observe at the outset that the question is
substantially one of fact, to be determined with reference to the
act complained of and the attendant circumstances; it seems
neither useful nor desirable to paraphrase the language of the
section in attempting to lay down hard and fast tests.”
With that we respectfully agree. There are cases and cases and each must be
decided on its own facts.”
215 It is also apropos to point out that in Choudhury Parveen Sultana v
State of West Bengal and another [(2009) 3 SCC 398], the Supreme Court has
held as follows:
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
“18. The direction which had been given by this Court, as far back as
in 1971 in Bhagwan Prasad Srivastava case [(1970) 2 SCC 56 : 1970 SCC
(Cri) 292 : (1971) 1 SCR 317] holds good even today. All acts done by a
public servant in the purported discharge of his official duties cannot as a
matter of course be brought under the protective umbrella of Section 197
CrPC. On the other hand, there can be cases of misuse and/or abuse of
powers vested in a public servant which can never be said to be a part of the
official duties required to be performed by him. As mentioned in Bhagwan
Prasad Srivastava case [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1
SCR 317] the underlying object of Section 197 CrPC is to enable the
authorities to scrutinise the allegations made against a public servant to
shield him/her against frivolous, vexatious or false prosecution initiated
with the main object of causing embarrassment and harassment to the said
official. However, as indicated hereinabove, if the authority vested in a
public servant is misused for doing things which are not otherwise
permitted under the law, such acts cannot claim the protection of Section
197 CrPC and have to be considered dehors the duties which a public
servant is required to discharge or perform. Hence, in respect of prosecution
for such excesses or misuse of authority, no protection can be demanded by
the public servant concerned.” (emphasis supplied)
216 It is no part of the public duty of an Inspector of Police to hush up a
crime, protect criminals, fabricate records and implicate innocent persons in the
crime. In the instant case, the evidence on record shows that Sellamuthu (A.15)
has done only this in this case and therefore, he is not entitled to any protection
under Section 197 Cr.P.C., for, it is no part of his public duty to do this. He, in
fact, has misused his uniform to commit the aforesaid offences.
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
217 Mr.S.Doraisamy contended that for attracting Section 3(2)(i) and 4 of
the SC/ST Act, the prosecution should have first established that Sellamuthu
(A.15) is not a Dalit and in the absence of any evidence that he is not a Dalit, he
cannot be charged under Section 3(2)(i) and 4 of the SC/ST Act.
218 Sellamuthu (A.15) is not an illiterate village peasant. At the relevant
point of time, he was the Inspector in the Vriddhachalam Police Station. He
would have dealt with many a case under the SC/ST Act and therefore, it should
be presumed that he knew that a Dalit cannot be prosecuted under Section 3(2)(i)
and 4 of the SC/ST Act. In the final report filed by the CBI, the caste of
Sellamuthu (A.15) has been shown as Other Backward Caste. He received the
charge sheet under Section 207 Cr.P.C. He did not suggest to any witness that he
is a Dalit and not an OBC. In his Section 313 Cr.P.C. statement, the caste of
Sellamuthu (A.15) has been shown as “Gounder”. This caste is, concededly, a non
Dalit caste. That apart, caste being a fact which is to the exclusive knowledge of a
person, the burden under Section 106 of the Evidence Act, is on him to show that
he belongs to a particular caste, on account of which, he cannot be prosecuted for
a certain offence which is predicated on caste identity. Therefore, there are
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
sufficient materials on record to show that Sellamuthu (A.15) is not a Dalit and
therefore, his prosecution under Sections 3(2)(i) and 4 of the SC/ST Act cannot be
said to be illegal.
219 In fine, we hold that all the four charges framed against Sellamuthu
(A.15) have been proved beyond an iota of doubt and hence, the conviction and
sentence imposed on him by the trial Court, as set out in paragraph 64 (supra)
stand confirmed. The compensation component as against Sellamuthu (A.15) is
also confirmed.
220 Coming to the case of Tamilmaran (A.14) qua charges 14 and 16, we
feel that it would be apt to quote the following observations of Lord Atkin in
Dwarkanath Varma and Gaya Prasad v The King Emperor (AIR 1933 PC
124):
“In India, as elsewhere, a charge of murder is not left to the discre-
tion of a Sub-Inspector of Police. The Superintendent and the Deputy Su-
perintendent investigate for themselves, check the report of the Sub-In-
spector, and the Superintendent or some higher official determines what
charge is to be made.”
221 It is manifest that the fabrication had begun in the morning of
17.07.2003 itself by Sellamuthu (A.15) with the knowledge of his Deputy
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Superintendent of Police. Only thereafter, Tamilmaran (A.14) registered the case
and prepared the printed FIR. Ashokan (P.W.32) and Dhanapal (P.W.44), Sub-
Inspector, Avinankudi Police Station, have stated that on 17.07.2003, they were
directed by the Deputy Superintendent of Police, Vriddhachalam, to go over to
Vriddhachalam Police Station and accordingly, when they went there, Dhanapal
(P.W.44) was asked to be the scribe for preparing the printed FIR (Ex.P.47).
222 It is indeed strange as to why the buck stopped with Sellamuthu
(A.15) and the CBI did not go above the level of the Inspector of Police to
investigate into the involvement of superior officers in hushing up the crime. The
evidence on record shows that it was only Sellamuthu (A.15), with the knowledge
of his Deputy Superintendent of Police, who had falsely implicated Samikannu
(P.W.1), Kannadasan (P.W.33) and Ilayaperumal, all Dalits, in this case, arrested
them, recorded their police confessions and effected make-believe seizures. There
is no evidence against Tamilmaran (A.14) on these aspects. In our opinion, had
Tamilmaran (A.14) engaged a counsel separately for himself in the trial Court, as
has been done before us now, he could have got himself delinked from Sellamuthu
(A.15), because, the FIR in Cr.No.356 of 2003 was registered by him on
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
17.07.2003 only after the extrajudicial confession (Ex.P.9) of Duraisamy (A.1)
was manufactured by Sellamuthu (A.15).
223 For all the above reasons, we extend the benefit of doubt to
Tamilmaran (A.14) and acquit him of charge 14 (u/s 218 IPC) and charge 16 (u/s
3(2)(i) of the SC/ST Act) and consequently, the compensation component therefor
is set aside.
224 During the hearing of this case, we found it very difficult to find out
who were all the accused who were present in the trial Court and who were all the
accused who were granted exemption from appearance, when a witness was
examined. Therefore, we had to frequently call for the daily adjudication particu-
lars from the trial Court in this regard. To obviate this, we suggest to the trial
Courts to record in the preamble portion of the deposition of a witness, the names
and ranks of the accused present in the Court and also the names and ranks of
those absent. The Registry is directed to issue a circular to all the trial Courts in
this regard after getting approval from the Hon’ble Chief Justice.
225 We place on record our appreciation to the trial Judge for lucidly
setting out the trajectory of the case in the preamble portion of the impugned
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
judgment and order itself, in compliance with the High Court Circular dated
07.04.2021 in R.O.C. No.814/2020/RG/F1 (P.Dis.No.36/2021). We direct the
Registry to send a copy of the preamble portion alone of the trial Court judgment
in this case, to the Director, Tamil Nadu State Judicial Academy, for use during
training programmes.
226 We also place on record our commendation to Mr.P.Rathnam,
Advocate, and his legal team for taking up the cause of the Dalits at great personal
risk and peril, if not for which, the story of Murugesan-Kannagi would have been
buried as yet another case of suicide by dejected lovers.
227 Before bringing the curtains down, it is apt to quote Mahakavi
Subramanya Bharathiyar:
Meaning:
There are no castes, dear child.
Identifying persons on the basis of
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
upper caste and lower caste is a
sin.
Alas! Even after almost a century of his demise, these lines of the Mahakavi seem
to remain only in the primary school textbooks and nowhere else. If all the
political parties in this country were to arrive at a consensus and ensure that there
is a common cremation/burial ground for non-Dalits and Dalits in the countryside,
it would be a baby step for the annihilation of castes in this country. Whether they
would risk giving up their vote banks for this cause, is a million dollar question.
In the upshot:
R.T.No.4 of 2021 is answered in terms of paragraph 162 (supra);
Crl.A.No.504 of 2021 preferred by Marudhupandiyan (A.2) is partly
allowed by modifying the death sentence as one of life imprisonment and
confirming all the other sentences, including the sentence of fine,
imposed by the trial Court;
Crl.A.No.523 of 2021 is allowed qua Rangasamy (A.3) and dismissed
qua other appellants, viz., Duraisamy (A.1), Kanthavel (A.5), Jothi (A.6),
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
Venkatesan (A.7) and Mani (A.8); Rangasamy (A.3) is directed to be
released forthwith, provided he is not required in connection with any
other case. Fine amount, if any, paid by him shall be refunded.
Crl.A.No.524 of 2021 preferred by Dhanavel (A.10) and Anjapuli (A.11)
is dismissed.
Crl.A.No.522 of 2021 stands dismissed as regards Ramadass (A.12) and
stands allowed as regards Chinnadurai (A.13). Consequently,
Chinnadurai (A.13) is directed to be released forthwith, provided he is not
required in connection with any other case. Fine amount, if any, paid by
him shall be refunded.
Coming to Crl.A.No.626 of 2021 preferred by Tamilmaran (A.14), he is
acquitted of the charges under Sections 218 IPC and 3(2)(i) of the SC/ST
Act and the fine amount, if paid, shall be refunded. The conviction and
sentence imposed on Tamilmaran (A.14) by the trial Court for the
offences under Section 217 IPC and Section 4 of the SC/ST Act stand
confirmed. Accordingly, Crl.A. No.626 of 2021 stands partly allowed.
Crl.A. No.483 of 2021 preferred by Sellamuthu (A.15) stands dismissed;
(P.N.P., J.) (A.A.N., J.)
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
08.06.2022
cad
To
1 The Deputy Commissioner of Police
District Crime Branch, Chennai
2 The Special Judge for Exclusive Trial of
SC/ST (PoA) Act Cases
Cuddalore, Cuddalore District
3 The Public Prosecutor
Madras High Court, Chennai - 600 104
4 The Superintendent
Central Prison, Cuddalore District
5 The Registrar (Judicial), Madras High Court
6 The Director, Tamil Nadu State Judicial Academy, Chennai - 28
https://www.mhc.tn.gov.in/judis
R.T. No. 4 of 2021 & Crl.A. Nos.483, 504, 522, 523, 524 & 626 of 2021
P.N. PRAKASH, J.
and
A.A. NAKKIRAN, J.
cad
R.T. No. 4 of 2021
&
Crl.A. Nos.483,504, 522, 523, 524 & 626 of 2021
08.06.2022
https://www.mhc.tn.gov.in/judis
