Madras High Court
Neethirajan vs State Through on 17 April, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)Nos.288, 293, 457, 786, 807
and 832 of 2022
and 159 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.03.2025
Pronounced on : 17.04.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)Nos.288, 293, 457, 786, 807 & 832 of 2022
and 159 of 2023
Crl.A(MD)No.288 of 2022
Neethirajan .. Petitioner/Accused No.6
Vs.
State through
The Inspector of Police,
South Gate Police Station,
In Crime No.336 of 2014 ...Respondent/Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of the Code of
Criminal Procedure, against the conviction and sentence dated 22.03.2022
passed in S.C.No.361 of 2017 by the learned VI Additional Sessions Judge,
Madurai.
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Crl.A(MD)Nos.288, 293, 457, 786, 807
and 832 of 2022
and 159 of 2023
For Appellant : Mr.G.Karuppasamy Pandiyan
for Mr.B.Ashok
For Respondent : Mr.A.Thiruvadikumar,
Additional Public Prosecutor,
Mr.G.Thalaimutharasu,
to assist APP (in all cases)
COMMON JUDGMENT
Dr.G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
The batch of seven Criminal Appeals are against the judgment
dated 22.03.2022 rendered in S.C.No.361 of 2017 on the file of IV
Additional Sessions Court at Madurai.
Brief facts:
2.V.Muthuramalingam(PW-1), gave a complaint to the Therkuvasal
Police on 08.06.2014 at about 21.30 hrs reporting that while he along with
his daughter Dhanalakshmi and his son-in-law Alagarsami were waiting at
Keelveli Veedhi Mission Hospital Bus Stop, at about 21.00 hrs, a gang of 7
known and few unknown persons armed with arruval and iron pipe came in a
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and 832 of 2022
and 159 of 2023
Auto. On seeing them his son in law tried to fled from the place, but he was
surrounded by the members of the gang in front of Vetrivel Medicals few
feet away from the bus stop and they attacked his son-in-law Alzagarsami
with aruval and iron pipe, causing instant death. The complaint was scribed
by Manikandan ( PW-10) who was also an witness to the occurrence.
3.Maruthalakshmi (PW-6) the Sub-Inspector of Police attached to the
Therkuvasal Police received the complaint(Ex.P-1) from PW-1 and
registered the FIR in Cr.No.336 of 2014 under sections 147, 148, 341and
302 IPC and forwarded the copy of the FIR to the Judicial Magistrate
through Panaraj(PW-7). She also placed the FIR for the perusal of Inspector
of Police.
4.Ganesan(PW-24), the Inspector of Police, on getting intimation
about the crime went to the place of crime and found the body of Alagarsami
severely wounded over his chest, limbs and head. After taking photographs
of the body and scene of crime he sent the body to Rajaji Government
Hospital for post mortem. From the scene of crime he collected suspected
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and 832 of 2022
and 159 of 2023
evidences, prepared rough sketch, observation mahazar and recorded
statements of witnesses. In the course of investigation gathered information
that one of the assailant by name Niranjan sustained injuries at the hands of
co assailant by name Nithiyananth(A-2) and died two days later in the
hospital. From the confession of the accused persons, the weapons and the
vehicle used by them for the crime were recovered.
5.After arrest of the accused persons , recovery of suspected materials
used for committing the crime, recording the statements of the doctors who
conducted post mortems of Alagarsami and Niranjan, Doctor who recorded
the accident register for Niranjan, P.W.24 completed the investigation and
filed the filed his final report before the Magistrate court as against 9 persons
and case against a juvenile was sent to Juvenile Justice Board.
6.The Judicial Magistrate after serving the copies to the accused
persons, committed the matter to the court of sessions at Madurai. The VI
Additional Sessions Judge, Madurai to whom the case was made over,
framed charges under sections 120 B, 148. 341 and 302 IPC. Later, in the
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and 832 of 2022
and 159 of 2023
course of the trial, the 4th charge under sections 302 IPC against A-1 to A-5
and A-7 to A-9) was altered to 302 r/w 149 IPC.
7.The accused were put to trial for the charges as below:-
S.No Name of the Accused Charges
1 Vijayalingam 120 B , 148 and 302 r/w 149 IPC
2 Nithyanandh 120 B , 148, 302 r/w 149 and 304 (ii)
IPC
3 Solairaja 120 B , 148, 341 and 302 r/w 149 IPC
4 Ramasamy 120 B , 148 and 302 r/w 149 IPC
5 Alexpandian s/o Mookian 120 B , 148, 341 and 302 r/w 149 IPC
6 Neethirajan 120 B IPC
7 Alexpandian s/o Pandi @ 120 B , 148 and 302 r/w 149 IPC
Thadipandi.
8 Muniyasamy @ Sendu 120 B , 148 and 302 r/w 149 IPC
Muniyasami
9 Ranjith kumar. 120 B , 148 and 302 r/w 149 IPC
8.To prove the above charges, 24 witnesses, 26 documents and 18
material objects were marked on the side of the prosecution. No oral and
documentary evidence placed in defence.
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and 832 of 2022
and 159 of 2023
9.The trial court on considering the evidence, held the charges under
sections 120 B IPC, 148 IPC and 302 r/w 149 IPC as against A-1 to A-5, A-7
to A-9 are proved. Charge u/s 120 B IPC as against A-6 proved. Charge
under Section 304(ii) IPC as against A-2 proved. However, the charge under
Section 341 IPC against A-3 and A-5 had not proved.
10.The sentence imposed on them for the charges proved are as
below:-
120- B IPC A- 1 to A-9 Life imprisonment and
fine of Rs 10,000/- each.
In default 6 months
Simple Imprisonment.
148 IPC A-1 to A-5 and A-6 to A-9 3 years RI and fine of Rs
10,000/- each. In default
3 months SI
302 r/w 149 A-1 to A-5 and A-6 to A-9 Life imprisonment and
IPC fine of Rs 10,000/- each.
In default 6 months
Simple Imprisonment.
304 (ii) IPC A-2 ( for causing death of Nirajan- 10 years RI and fine of
co assailant) Rs 10,000/- in default 6
months SI.
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and 832 of 2022
and 159 of 2023
11.The sentences passed against each accused for each offences was
ordered to run concurrently and the period of imprisonment already
undergone was set off. The details of the Criminal appeals and the
appellants:-
(i).Crl.A(MD)No.288 of 2022 is by Neethirajan(A-6) as against the
conviction and sentence under section 120B IPC. This appellant is an
Advocate by profession He was held guilty for conspiracy with the other
accused to murder Alagarsami. In addition to the grounds mostly common in
all the appeals, one of the ground which exclusively pleaded by this
appellant is :
“On 07.05.2011, A1's wife lodged complaint against the
deceased and 6 others before Keeraithurai Police Station and
the same was registered in Crime No.529 of 2011 under
Section 307 IPC, later the deceased close relative one
Kanagaraj name was deleted in the charge sheet, so A6 filed
Crl.O.P(MD)No.807of 2014 before this Court to change of
investigation and the same was dismissed with the direction to
challenge before the concern trial Court, later the A6
appeared on behalf A1's wife before the learned Ist Sub Judge,
Madurai in S.C.No.285 of 2013 under Section 307 IPC on
10.01.2014(trial date) filed a petition to reinvestigate the case
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and 832 of 2022
and 159 of 2023
in Cr.M.P.No.146 of 2014 against the deceased for which he
trial was collapsed so the deceased family falsely implicated
A6 in the present case. It is pertinent to note that the A6 name
was found along with his senior name in the above Crl.O.P
petition and Crl.M.P petition.”
(ii).Crl.A(MD)No.293 of 2022 is by Ranjithkumar(A-9) as against
the conviction and sentence under sections 120 B, 148 , 302 r/w 149 IPC.
This appellant name not specifically mentioned in the FIR but later based on
the information collected particularly from the confession of the other
accused, arrayed as 9th accused. The specific and exclusive ground raised in
this appeal is that:-
“The trial Court failed to consider the evidence of
investigation officer(PW24) who categorically admitted the name
of the appellant neither finds in the FIR nor finds in the 161(3) of
Cr.P.C statements of P.W.1 and P.W.2 nor finds in the inquest
report (Ex.P.20). Further, the appellant's name was inserted in
the further statement under Section 161(3) of Cr.P.C of P.W.1
and P.W.2 dated 09.08.2014. However, that statements reached
the Court much belatedly on 25.05.2015. The investigation
officer stated that the section of law alteration report reached the
Court on 11.05.2015 which contains the name of the appellant.
This itself shows the name of the appellant had been deliberately
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and 832 of 2022
and 159 of 2023
inserted in the case.”
(iii).Crl.A(MD)No.457 of 2022 is by Solairaja(A-3) and
Ramasamy(A-4) as against the conviction and sentence under sections 120
B, 148 , 302 r/w 149 IPC. These two appellants are brothers. Apart from
impeaching the credibility of PW-1, PW-2 and PW-10 as interested
witnesses. Alteration in the FIR, the delay in forwarding the forwarding the
statements of witnesses to the court, hostility of the witnesses to prove
conspiracy, failure to prove the motive for the crime and failure to probe the
injuries on the accused ( Nirajan) are the grounds raised in the appeal.
(iv).Crl.A(MD)No.786 of 2022 is by Alex Pandian, S/o.Pandi @
Thadi Pandi ( A-7) as against the conviction and sentence under sections
120B, 148, 302 r/w 149 IPC. This appellant claims that his name not found
in the FIR nor in the first statement of PW-1 and PW-2 who were alleged to
have been present and witness the crime. He was added later based on the
further statement of PW-1 and PW-2 and based on the inadmissible portion
of the statement of accused 1, 2 and 8 given to the police during the custody.
(v).Crl.A(MD)No.807 of 2022 is by Alex Pandian,
S/o.Mookaian(A-5) as against the conviction and sentence under sections
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and 832 of 2022
and 159 of 2023
120 B, 148, 302 r/w 149 IPC. This appellant attack the trial court judgment
for the following reasons:-
“(i)Even according to the prosecution documents and
evidence there is a strong contradiction about the occurrence
place.
(ii)The statements of the witnesses have been sent to the
Court after a long time gap and they were prepared with after
thought to fit in all the accused in this case.
(iii)P.W.1 is residing at Kannarpatti, Kamudhi Taluk,
Ramanathapuram District and there would be no chance to see
the occurrence as stated by the prosecution.
(iv)P.W1, P.W2, P.W10 are very close relative to the
deceased and there is no independent witness to support the
prosecution.
(v)It is submitted P.W.4, P.W5, P.W9 have turned hostile
and they have not come forward to give false evidence.
(vi)The evidence of P.W8 and P.W11 are doubtful one they
had given evidence only due to the pressure given by the police.
(vii)Except P.W1 father-in-law, P.W.2 wife, P.W10
brother-in-law of the deceased. Other witnesses P.W6, P.W7,
P.W12, P.W13, P.W14, P.W17, P.W18, P.W24 are the
Government servants as such they have supported the
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and 832 of 2022
and 159 of 2023
prosecution without any other go.
(viii)P.W20, P.W21, P.W23 are the medical evidence,
which are actually supporting the defense case.”
(vi).Crl.A(MD)No.832 of 2022 is by Muniyasamy @ Chendu
Muniyasamy (A-8) as against the conviction and sentence under sections
120 B, 148, 302 r/w 149 IPC. The contention of this appellant is that the
delay in forwarding the records to the Magistrate is in violation of the dictum
laid by this court in Karunakaran Jabamani Case. There is no independent
witness to corroborated the prosecution case. The witnesses for prosecution
were all close relatives of the deceased and interested witnesses having
animosity against this appellant and others. The contradictions in their
evidence not properly considered by the trial Court.
(vii).Crl.A(MD)No.159 of 2023 is by Vijayalingam(A-1) and
Nithiyananth (A-2). These two appellants are father and son. A-1 convicted
and sentenced for offences under sections 120 B, 148 , 302 r/w 149 IPC. A-2
in addition to Sections 120B, 148 , 302 r/w 149 IPC also convicted and
sentenced for causing the death of Niranjan a co assailant. The grounds
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and 832 of 2022
and 159 of 2023
raised in their appeal is almost verbatium of the grounds raised by the 8 th
accused in CA (MD) No: 832/2022.
12.The Learned Counsel for this appellant argued that the evidence
placed by the prosecution clearly proves that injuries sustained by Niranjan
was at Munichalai Road and it was a road accident. The place of crime as per
the prosecution is near the Mission Hospital Bus Stop. PW-24 had not
investigated the case properly and filed the final report without probing the
un- natural death of Niranjan but falsely implicating A-2 by registering FIR
regarding the death of Niranjan after 2 days mentioning the place and time of
occurrence falsely.
13.According to the Learned Counsel for A-1 and A-2, the death of
Niranjan is not arising out of same transaction. Hence it should have been
investigated separately and tried separately. Clubbing the occurrence which
is subject matter of Cr No: 336/2014 dated 08/08/2014 and the subject matter
of Cr.No; 337/2014 dated 10/08/2014 is violation of procedure established
under law. These two FIR’s with consecutive numbers but registered after
gap of two days is an evidence for its manipulation.
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and 832 of 2022
and 159 of 2023
14.Per contra, the Learned Additional Public Prosecutor for the State
submitted that, the complaint by Muthuramalingam(PW-1) was investigated
and found that the murder of Alagarsami was the outcome of prior enmity
and executed in furtherance of conspiracy involving 10 persons, out of which
one was a juvenile. The crime of murder by known and unknown persons
armed with weapons, established through the evidence collected in th course
of investigation which includes the voluntary confession made by the
accused persons. Hence, on completion of the investigation, final report filed
as against 9 persons for causing the homicidal death of Alagarsami, in
pursuant to the conspiracy.
15.To prove the charges, the prosecution examined 24 witnesses,
marked 26 documents as exhibits and 18 material objects.
16.The charge of conspiracy proved through the testimony of PW-8
and PW-11. While PW.8-Muthu had deposed about the congregation of
conspirators a week before the occurrence at the house of A-1 and the
utterance of A-6 to A-1, “somehow to finish the problem” along with the
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and 832 of 2022
and 159 of 2023
evidence of PW.11-Suresh Pandian, who had deposed that on 05.08.2014,
when he went to the house of Nithyananth(A-2) on his invitation, he saw A-6
in the house of A-2. A-6 incited him to murder Alagarsami, and assured he
will take care of the Court case. However, he refused to his offer.
17.The occurrence and overt act of the accused persons seen by PW-1,
PW-2 and PW-10. No doubt, PW-1 is the father-in-law of the deceased,
PW-2 is the wife of the deceased and PW-10 is the brother-in-law of the
deceased, but that cannot be a reason to ignore the testimony when their
presence with the deceased waiting at the bus stop is proved through
unassailable evidence. These witnesses have deposed the reason for being
with the deceased. Their evidence is natural and stands un-impeached. Minor
discrepancies mentioned by the defence counsels does not discredit the
prosecution case. The evidence of eyewitnesses about the overt act and the
evidence of PW-12 PW-13, PW-17, PW-18 and PW-19 about the events
subsequent to the occurrence clearly establishes the chain of event without
any break. The place of occurrence been spoken by the witnesses PW-4,
PW-5 and PW-6, who are all carrying on business near the Mission Hospital
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and 832 of 2022
and 159 of 2023
Bus stop. Though PW-4 and PW-5 were treated hostile, their admission
about the occurrence is sufficient to reject the defence plea about the place of
occurrence.
18.Regarding the allegation of delay in registering the FIR and
suppression of earlier FIR, the Learned Additional Public Prosecutor
submitted that, the occurrence on 08.08.2014 at 21.00 hrs near Mission
Hospital Bus stop informed to the police by Muthuramalingam(PW-1) at
about 21.30 hrs. Immediately, it was registered and investigation
commenced. The FIR copy was forwarded forthwith to the Judicial
Magistrate and received by the in-charge Magistrate at 5.45 am in his
residence. PW-7, had clearly deposed that the FIR copy handed over to him
by PW-6 at about 22.15 hrs and he took the FIR copy along with passport
and reached the Judicial Officers Quarters. After knowing that the Judicial
Magistrate is on leave and as per the information, went to the residence of
the In-charge Magistrate and delivered the FIR Copy. The delay explained
by PW-7 not disputed or disproved through any evidence.
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and 832 of 2022
and 159 of 2023
19.Heard the learned counsels on either side.
20.The case of the prosecution is, the first accused and the deceased
are related to each other and both hail from the village by name
Pammanenthal at Ramanathapuram District. Regarding Karuvelam tree
contract, there was enmity between them. Few months ago, a criminal case
for attempt to murder the first accused was registered by Keerathurai Police
Station against the deceased and pending on the date of occurrence. A week
before the occurrence, at A-1 house the accused persons assembled and on
the advice of Neethirajan(A-6), the conspirators decided to murder
Alagarsami. In pursuant to the said conspiracy, on 08.08.2014 at about 9.00
pm, on knowing that the deceased is near Mission Hospital Town Bus stop,
A-1 to A-5, A-6 to A-9 and Balakrishnan a Juvenile in conflict with law,
went to the spot carrying weapons in a share Auto bearing Registration
No.TN-64-D-1796. On seeing the assailants, the deceased tried to escape.
However, A-3 and A-5 directed the others to chase Alagarsami, round him
and chop to death. (xltplhjPq;flh Rj;jp tisr;rp btl;o js;Sq;flh)
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and 832 of 2022
and 159 of 2023
21.Alagarsami was rounded up near Vetrivel Medical Shop. A-2-
Nithyananth with aruval cut his left leg below knee, back of the scalp near
the left ear frontal region and left forearm, left fingers. The other accused by
name Niranjan (sustained injury during the fight and died subsequently due
to the injuries) cut the right wrist. A-7-Alex Pandian stabbed on the left side
of the chest, Muniyasami @ Chendu Munisamy stabbed at the middle of the
chest with knife, The juvenile conflict with law repeatedly hit Algarsami
with a iron pipe, A-1 attacked Alagarsami with aruval on the left side of the
chest, left shoulder and left wrist. Alagarsami died on the spot. The case of
Alagarsami's murder is the subject matter in FIR in Cr.No.336 of 2014 dated
08.08.2014.
22.Nithyanath(A-2) inadvertently attacked Niranjan on the limbs,
while Niranjan was holding Alagarsami and preventing him from fleeing.
The injured Niranjan was taken to the hospital by Nithyanath(A-2). He got
Niranjan admitted in the hospital stating falsely that, near Munichalai at
about 9.00 p.m, while they were travelling in his two wheeler, Niranjan was
hit by an unknown vehicle. Thereby, A-2 not only had created an alibi for his
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and 832 of 2022
and 159 of 2023
presence elsewhere, also it is extended further to argue that the place of
incident is not opposite to Vetri Medical, near Mission Hospital bus stop but
it was near Munichalai and rely on the Accident Register-Ex.P.17.
Nonetheless, the injured had spelt the truth which is recorded in the FIR. The
Post Mortem report of Niranjan is marked as Ex.P-16 which apparently
disclosed the cut injuries of radial arteries and fracture these injuries
apparently were not caused in a road accident.
23.The evidence collected and placed before this Court, we find that
immediately on admitting Niranjan in the hospital as inpatient, intimation
given to the South Gate Police Station and CSR No.317/2014 registered as a
road accident case. When the police came to the hospital and enquired
Niranjan about the cause of injuries, he admitted about his involvement
along with other accused persons in the crime of murdering Alagarsami near
Vetri Medical Shop, Mission Hospital town bus stop. Also attributed the
injuries found on him to Nithyananth. Two days after the incident Niranjan
died. His statement to the police Ex.P-19 is the source of information to the
FIR Ex.P-23 registered in Cr.No:337 of 2014. The FIR was registered only
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and 832 of 2022
and 159 of 2023
after receiving death intimation from the hospital. Ex.P-19 being a statement
by an accused to the police, the major portion of the statement are in the
nature of confession and not admissible in view of the embargo under
Section 25 of the Indian Evidence Act (section 23(1) of BSA, 2023).
Notwithstanding the embargo, a portion of the statement which are
disclosure about the injuries which is the cause for his death, that portion of
the statement is admissible in evidence under section 32 of the Evidence Act.
(Section 26 of BSA,2023). This Court is conscious of the law that the
portion of the statement though admissible, but a weak piece of evidence and
requires strong corroboration which is substantial in nature.
24.Dr.Panneerselvam(PW-23), the duty doctor at casualty ward of
Rajaji Government Hospital, Madurai had deposed that on 08.08.2014 at
about 09.30 pm Niranjan with injuries on his left wrist and left forearm was
brought to the hospital by Nithyananth. Niranjan was conscious but drunk.
Based on the information given by Niyananth, he had registered it as road
accident case occurred near Munichalai. He was told by A2 that an unknown
vehicle hit them while proceeding in a two wheeler. PW-23 had deposed that
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and 832 of 2022
and 159 of 2023
he went to Munichalai and made a spot enquiry and ascertained that there
was no accident at Munichalai at that point of time.
25.The post mortem report-Ex.P-16 indicates that Niranjan sustained
cut injuries measuring 9 x 1 cm bone depth over the posterior aspect of right
forearm, 7 cm above from right wrist. On the dissection of forearm and
hand, lower 1/3rd of radial bone found cut through and through, cut of
adjoining radial artery partially and Haematoma measuring 4 x 4 cm. The
base of the second metacarpal bone found cut through and through. In
addition, external injuries like cut injuries 9 x 1 cm bone depth on dorsal
aspect of left wrist, cut injuries 1x1 cm size on left and right wrist were
noted. PW-21-Dr.Chandrasekar, who conducted the autopsy had opined that
the deceased (Niranjan) would appear to have died of cut injury of hand and
its complications thereof”.
26.The nature of injuries and the site of the injuries clearly rules out
road accident. The suggestion put to PW-21 in the cross examination does
not provide any impression that the cut injuries on both the wrists and right
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and 832 of 2022
and 159 of 2023
forearm together is highly improbable in a accident fall from a moving
vehicle. To disbelieve the version of the defence, we also take note of the
fact that the particulars about the vehicle or the vehicle which hit the two
wheeler in which the deceased Niranjan and Nithynanth(A-2) travelled are
facts within the knowledge of A-2, but not placed before this Court.
27.PW-16 is the wife of Niranjan. She turned hostile and was cross
examined by the prosecuton. She in her chief had deposed that on hearing
that her husband met with an accident and admitted in the hospital, she went
to the hospital and saw her husband injured on his head and hands. He was
not conscious and died later. In the Accident Register copy or in the post
mortem report, we find no head injury noted. But this witness speaks about a
non existing injury only to embellish the case of the defence that her husband
died in a road accident.
28.In the statement of Niranjan Ex.P-19, which is the source for
registering the complaint in Cr.No.337of 2014, the thumb impression of
Niranjan is obtained. The injured was conscious as per the evidence of
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and 832 of 2022
and 159 of 2023
PW-23 the duty doctor at Causality ward. The information furnished by the
said Niranjan about the circumstances of the transaction which resulted in his
death is relevant whether it is in writing or oral. Therefore, the fact that
Niranjan died due to the injuries caused by Nithyananth and they both were
present and were part of the unlawful assembly which gathered at Mission
Hospital Bus stop on 08.08.2014 at about 9.00 pm is proved beyond any pale
of doubt.
29.Cr.No.336 of 2014 and Cr.No.337 of 2014 are the two FIRs
registered in respect of the incident occurred during the same transaction.
The second FIR in Cr.No.337 of 2014 with narration by one of the accused
against another accused of the first FIR in Cr.No.336 of 2014. It is not a case
and case in counter. The Investigating Officer, after collection of the
evidence, found the second FIR came to be registered in the course of the
attempt to convert a crime into motor accident case. Therefore, the trial
Court has rightly framed charge against A-2 under Section 304(ii) IPC for
the distinct and separate crime arising out of the same transaction. Therefore,
having proved the charge beyond any doubt, the conviction and sentence on
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A-2 for the offence under Section 304 (ii) IPC stands confirmed.
Conspiracy:
30.Conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the same. The offence can be proved largely from
inference from the act or illegal omission committed by the conspirators in
performance of the common design. To prove the offence of conspiracy, the
prosecution need not necessarily prove that the perpetrator expressly agreed
to do an illegal act. Such agreement may be proved by necessary implication
also.
31.In Kehar Singh & Ors –vs- State (Delhi Administration) reported
in 1988 (3) SCC 609, the Hon’ble Supreme Court has held :-
“generally, a conspiracy is hatched in secrecy and it may be
difficult to adduce direct evidence of the same. The
prosecution will often rely on evidence of acts of various
parties to infer that they were done in reference to their
common intention. The prosecution will also more often rely
upon circumstantial evidence. The conspiracy can be
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undoubtedly proved by such evidence direct or
circumstantial. But the Court must enquire whether the two
persons are independently pursuing the same end or they
have come together to the pursuit of the unlawful object. The
former does not render them conspirators, but the latter is. It
is however, essential that the offence of conspiracy requires
some kind of physical manifestation of agreement. The
express agreement, however, need not be proved. Nor actual
meeting of two persons is necessary. Nor it is necessary to
prove the actual words of communication. The evidence as to
transmission of thoughts sharing the unlawful design may be
sufficient.”
32.The law of conspiracy is well settled by the Hon'ble Supreme Court
in above terms. Hence, through the prism of the above judgment, the
evidence available in the instant case has to be examined whether the charge
of conspiracy is made out against these appellants.
33.The prosecution harps on the evidence of PW-8 and PW-11 to
prove the charge of conspiracy which is framed against all the 9 accused. It
is to be borne in mind that the FIR(Ex.P-2) is the earliest document in this
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case. It got registered at 21.30 hrs on 08.08.2014 and it reached the Judicial
Magistrate Court at about 5.45 am on 09.08.2014. In the FIR,
Vijayalingam(A-1) his two sons Nithyananth(A-2) and
Balakrishnan(juvenile conflict with law), his brothers Solairajan(A-3) and
Ramasamy(A-4), his son-in-law Alex(A- 5 ) and Niranjan (Friend of A2 who
sustained injuries caused by A-2 unintentionally and died two days later) are
the accused named, as persons present and the members of the unlawful
assembly armed with weapons along with few other unknown persons. The
name of the 9th accused Ranjith Kumar is not in the FIR. The 6 th accused
Neethirajan though a named accused in the FIR, he was not present along
with the other accused persons when the incident took place. He is charged
solely for the offence under Section 120 B IPC.
34.Muthu(PW-8) is one of the witnesses for prosecution, who speak
about meeting of the accused persons prior to the occurrence for committing
the illegal act of murder. As far as the evidence of PW-8, he had partially
deposed about the gathering at the house of A-1, a week before the incident.
He had deposed that on that day seeing crowd at the house of the first
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accused, he slowed his vehicle and overheard A-6 saying to A-1, “finish the
problem soon.” Except A-1 and A-6, he did not know who all were present
in that crowd. The next day when he met Algarsami told him about what he
heard on the previous day and advised Alagarsami to settle the problem
amicable, without fighting with the relatives. He was treated hostile by the
prosecution, since his previous statement to the police contains disclosure of
the accused name spresent during the conspiracy meeting held at the
residence of A- 1 and he saw them when he went inside the house of A-1 to
deliver provisions.
35.PW-11 had deposed that Nithyananth(A-2) called him to his house
on 05.08.2014. When he went to the house of A-2, he saw A-6 in the house
of A-2 who asked him to join them to murder Alagarsami and he will take
care of the Court cases. The witness refused and left the place. In the cross
examination, PW-11 admitted that the deceased Alagarsami is his maternal
uncle. He and the deceased are in good terms. He never had any intention to
murder Alagarsami. His family and the first accused family are not in good
terms. Manikandan(PW-10) who is one of the eye witness to the occurrence
is his brother.
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36.To discredit the evidence of PW-11, the defence emphasis that he is
an interested witness and a family member of the deceased. No person with
prudence wants to murder Alagarsami will call his own sister's son to join
them in the act of murdering the maternal uncle, unless the prosecution could
establish, like other accused, PW-11 also had the intention to eliminate
Alagarsami for any reason. PW-11 is the brother of PW-10. Both these
witnesses are being relative of the deceased, their evidence is not worth
relying.
37.While analyzing the evidence on the charge of conspiracy, it is just
necessary to test the evidence of the hostile witness PW-8. For the said
purpose, it is profitable to take the guideline of the Hon’ble Supreme Court
rendered in judgments like Rameshbhai Mohanbhai Koli Vs. State of
Gujarat wherein the Hon'ble Supreme Court has held :-
“It is well settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross examine
him. The evidence of such witnesses cannot be treated as
effaced or washed off the record altogether but the same can be
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accepted to the extent their version is found to be dependable
on a careful scrutiny thereof. ( vide Bhagwan Singh Vs. The
State of Haryana AIR 1976 SC 202)”.
38.In State of UP –vs- Ramsh Prasad Misra and Anr(AIR 1996, SC
2766), the Apex Court held that the evidence of a hostile witness would not
be totally rejected if spoken in favour of the prosecution or the accused but
required to be subjected to close scrutiny and that portion of the evidence
which is consistent with the case of the prosecution or defence can be relied
upon. A similar view has been reiterated in Subbu Singh Vs. State, (2009) 6
SCC 462.
39.Thus, it is clear that the evidence of P.W-8 cannot be washed off in
toto, but to be scrutinized carefully. This witness is a partly reliable witness.
He had deposed that a week before the incident, there was a gathering at the
house of A-1. Among the members gathered he saw A-1 and A-6. He also
heard A-6 saying to A1 ‘finish the problem’. If he had stopped with this
alone, his testimony may not be of any worth referring. He had further
deposed that the next day when he met Alagarsami(the deceased), he advised
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him not to fight with the relative, but to settle the problem amicable. For
which, Alagarsami retorted and told to be quite. He is not a person to get
scared of all these threat.
40.This may be not verbatim of what he said to the police during
investigation in his Section 161 CrPC statement. However, one cannot loose
right to the fact that the substance of his evidence is not controverted through
cross examination. The meeting at A-1 house discussing about the problem
with Alagarsami and the participation of A-6 along with others (those names
mentioned in the previous statement but not before the court) and prompting
A1 to finish the issues. More particularly his caution to Alagarsami to settle
the dispute with A-1 amicable and the retortion of the deceased putting a
brave face but got scared and confide with his wife (PW-2)about this in his
house on 8th morning are to be considered as crucial and relevant . This is to
be read with the evidence of PW-1(the father-in-law of the deceased), who
have deposed that, the deceased was worried about the threat he was facing
from A-6 and the deceased was contemplating to give police complaint in
this regard.
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41.In Suresh Chandra Bahri –vs- State of Bihar reported in 1995
SCC (Cri) 60, the Hon’ble Supreme Court has reiterated that the essential
ingredient of criminal conspiracy is the agreement to commit an offence.
After referring to the judgments in Noor Mohammad Yusuf Momin-vs-
State of Maharashtra reported in (1970) 1 SCC 696 and V.C.Shukla v.
State (Delhi Admn.) reported in (1980) 2 SCC 665, held that,
“96.In the above context we may refer to the provisions
of Section 120-A of the Indian Penal Code which defines
criminal conspiracy. It provides that when two or more
persons agree to do, or cause to be done, (1) an illegal act or
(2) an act which is not illegal by illegal means, such
agreement is designated a criminal conspiracy; provided that
no agreement except an agreement to commit an offence shall
amount to criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in
pursuance thereof. Thus, a cursory look to the provisions
contained in Section 120-A reveals that a criminal conspiracy
envisages an agreement between two or more persons to
commit an illegal act or an act which by itself may not be
illegal but the same is done or executed by illegal means.
Thus the essential ingredient of the offence of criminal
conspiracy is the agreement to commit an offence. In a case
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where the agreement is for accomplishment of an act which by
itself constitutes an offence, then in that event no overt act is
necessary to be proved by the prosecution because in such a
fact situation criminal conspiracy is established by proving
such an agreement. In other words, where the conspiracy
alleged is with regard to commission of a serious crime of the
nature as contemplated in Section 120-B read with the proviso
to sub-section (2) of Section 120-A of the IPC, then in that
event mere proof of an agreement between the accused for
commission of such a crime alone is enough to bring about a
conviction under Section 120-B and the proof of any overt act
by the accused or by any one of them would not be necessary.
The provisions in such a situation do not require that
each and every person who is a party to the conspiracy must
do some overt act towards the fulfilment of the object of
conspiracy, the essential ingredient being an agreement
between the conspirators to commit the crime and if these
requirements and ingredients are established the act would
fall within the trapping of the provisions contained in Section
120-B since from its very nature a conspiracy must be
conceived and hatched in complete secrecy, because otherwise
the whole purpose may be frustrated and it is common
experience and goes without saying that only in very rare
cases one may come across direct evidence of a criminal
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conspiracy to commit any crime and in most of the cases it is
only the circumstantial evidence which is available from which
an inference giving rise to the conclusion of an agreement
between two or more persons to commit an offence may be
legitimately drawn. “
42.It is also worth to refer, the earlier judgement of the Hon'ble
Supreme Court in Noor Mohammad Mohd. Yousaf Momin v. The State of
Maharashtra (cited supra) in which the Hon'ble Supreme Court has held that,
a conspiracy from its very nature is generally hatched in secret. It is,
therefore, extremely rare that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested quarters or from utter strangers. But,
like other offences, criminal conspiracy can be proved by circumstantial
evidence. The Apex Court has observed that:-
"7. So far as Section 34, Indian Penal Code is
concerned, it embodies the principle of joint liability in
the doing of a criminal act, the essence of that liability
being the existence of a common intention. Participation
in the commission of the offence in furtherance of the
common intention invites its application.
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Section 109, Indian Penal Code on the other hand
may be attracted even if the abettor is not present when
the offence abetted is committed provided that he has
instigated the commission of the offence or has engaged
with one or more other persons in a conspiracy to
commit an offence and pursuant to that conspiracy some
act or illegal omission takes place or has intentionally
aided the commission of an offence by an act or illegal
omission. Turning to the charge under Section 120-B,
Indian Penal Code criminal conspiracy was made a
substantive offence in 1913 by the introduction of
Chapter V-A in the Indian Penal Code. Criminal
conspiracy postulates an agreement between two or more
persons to do, or cause to be done an illegal act or an act
which is not illegal, by illegal means. It differs from other
offences in that mere agreement is made an offence even
if no step is taken to carry out that agreement. Though
there is close association of conspiracy with incitement
and abetment the substantive offence of criminal
conspiracy is somewhat wider in amplitude than
abetment by conspiracy as contemplated by Section 107,
I.P.C. A conspiracy from its very nature is generally
hatched in secret. It is, therefore, extremely rare that
direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested quarters or from
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utter strangers. But, like other offences, criminal
conspiracy can be proved by circumstantial evidence.
Indeed, in most cases proof of conspiracy is largely
inferential though the inference must be founded on solid
facts. Surrounding circumstances and antecedent and
subsequent conduct, among other factors, constitute
relevant material.
In fact because of the difficulties in having direct
evidence of criminal conspiracy, once reasonable ground
is shown for believing that two or more persons have
conspired to commit an offence then anything done by
anyone of them in reference to their common intention
after the same is entertained becomes, according to the
law of evidence, relevant for proving both conspiracy
and the offences committed pursuant thereto.”
43.In the light of the above precedents, the evidence of PW-11 has to
be tested. This witness is cousin of the deceased. He is the brother of another
prosecution witness PW-10. For that reason a serious doubt is raised by the
defence counsels whether the perpetrators of the crime would have called
him to assist them to murder Algarsami. Since conspiracy is a crime by itself
and mostly hatched in secrecy, the Courts need not search for direct evidence
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to prove conspiracy. The law expects act or word indicating sharing of
common intention/meeting of mind to do an illegal act or legal act through
illegal means.
44.Through PW-8 and PW-11, the prosecution is able to prove that
there was meeting at the house of A-1 and they discussed about bringing an
end to the dispute with the deceased Alagarsami. The manner in which they
want to bring the issue to an end not spoken by PW-8 or PW-11, except A-6
assurance that he will take care of the consequence, ie., the Court cases. A-6
assurance is not as a professional but as the cousin of A-1. The subsequent
conduct of the accused persons has brought to light that by murdering
Alagarsami, the issue has come to a halt for the present. Therefore, the
ingredient of meeting of mind to do an illegal act by illegal means to attract
conspiracy charge against A1 to A9 witnesses had deposed that A1 to A5,
A7 to A9 along with Niranjan were present and attacked Alagarsami is well
made out in this case through the witnesses. Execution of the crime or
physical presence at the time of execution is not required to punish a person
for the offence under section 120 B IPC.
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Motive:
45.The case under consideration, we find that the witnesses to the
prosecution has invariably and consistently deposed about the bad blood
running between A-1 and the deceased. Earlier an attempt on the life of A-1
by the deceased failed. A-1 was survived after medical intervention. The
deceased was arrested and later, let out on bail. Both were mustering strength
to settle the score. On 08.08.2014 was the day for A-1. PW-1 had come to
the house of the deceased to meet the Advocate. Before meeting the
Advocate, they along with PW-2/the wife of the deceased had decided to buy
some dress for the daughter of the deceased who celeberated her birthday
few days ago. Thus, all three were together near the Mission Hospital Bus
Stop. On receiving information from the team members, the assailants have
moved to the spot in the Auto Bearing Registration No:TN-64-D-1796. This
vehicle was in rented to Alex Pandian, S/o.Thadi Pandian who was plying it
as share Auto. Later, this auto along with weapons were recovered under the
Mahazar, Ex.P-9 based on the confession given by A-2.
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46.In Suresh Chandra Bahri –vs- State of Bihar case cited supra, the
Hon’ble Surpeme court has observed :-
“sometimes motive plays an important role and becomes a
compelling force to commit a crime and therefore motive behind
the crime is a relevant factor for which evidence may be
adduced. A motive is something which prompts a person to form
an opinion or intention to do certain illegal act or even a legal
act but with illegal means with a view to achieve that intention.
In a case where there is clear proof of motive for the commission
of the crime it affords added support to the finding of the court
that the accused was guilty of the offence charged with. But it
has to be remembered that the absence of proof of motive does
not render the evidence bearing on the guilt of the accused
nonetheless untrustworthy or unreliable because most often it is
only the perpetrator of the crime alone who knows as to what
circumstances prompted him to a certain course of action
leading to the commission of the crime.”
47.In the complaint, we find the names of A-1( Vijayalingam), his
sons A-2(Nithyananth) and Balakrishnan(juvenile), brothers of A-1
Solairajan (A-3) and Ramasamy(A-4) and his son-in-law Alex Pandian(A-5).
Along with these named persons, the complainant had mentioned that few
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others also came in the auto along with them armed with weapons. Only
during the course of investigation, including the confession statements of
A-1, A-2 and A-8, the informations about the conspiracy, in which the role
of Neethirajan-A-6(Nephew of A-1), Alex Pandi, S/o.Thadi Pandi(A-7),
Munisamy @ Chandu Muniyasamy(A-8) and Ranjith kumar(A-9) had come
to light. Though these disclosure of fact was within the knowledge of the
makers, the inculpatory statement of co-conspirator against himself and other
conspirators who were tried together, has to be tested with the aid of
Sections 10 and 30 of the Indian Evidence Act.
Members of unlawful assembly – offence committed in prosecution of
common object:
48.The size of the armed mob as per the complaint-Ex.P-1 was 7
known by name and few other unknown persons. Before the Court, PW-1,
the de-facto complainant had mentioned about the presence of all the
accused, except A-6 as the members of the unlawful assembly. Like wise,
PW-2 also mentioned all the accused, except A-6 being present at the spot
armed with weapons and contributing their overt act in the attack on
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Alagarsami. PW-10 (Manikandan) is the other witness who had seen the
occurrence and corroborated the evidence of PW-1 and PW-2. Doubt about
the presence of this witness at the time of occurrence in the spot is raised
because he is not with PW-1 and PW-2 at the time of occurrence, but was
standing in a Tea shop opposite to the bus stop. His house is about 1 ½ km
away from the KelVeli Veethi. He has come to that street to have Tea.
49.The Apex Court in Rajesh Yadav & Anr. Etc.,-Vs-State of U.P.,
has held that, "A chance witness is the one who happens to be at the place of
occurrence of an offence by chance, and therefore, not as a matter of course.
In other words, he is not expected to be in the said place. A person walking
on a street witnessing the commission of an offence can be a chance witness.
Merely because a witness happens to see an occurrence by chance, his
testimony cannot be eschewed though a little more scrutiny may be required
at times”.
50.This witness(PW-10) is the sister's son of the deceased. He speaks
about the presence of all the accused except A-6. He is the scribe of the
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complaint-Ex.P-1 which was received by the Police at 21.30 hrs on
08.08.2014. He had seen the occurrence from a different place and was not
along with the deceased or PW-1 and PW-2. His presence at the occurrence
place is by chance and properly explained. His evidence is for the purpose of
corroboration.
51.The time gap between the occurrence(9.00 pm) and the complaint
(9.30 pm) is only 30 minutes. The FIR has reached the Judicial Magistrate's
residence on 09.08.2014 at 5.45 am. The argument that there was delay in
registering the FIR and manipulation of facts does not carry any merit in
view of the explanation given by PW-7.
52.The inclusion of A-7 to A-9 whose name not found in the
complaint cannot be of any advantage to these appellants since they are not
the persons previously known to PW-1, PW-2 and PW-10. The FIR is also
not an encyclopedia. When the offence is committed in furtherance of a
conspiracy which is a crime hatched in secrecy, the law does not expect
names of all the accused be mentioned in the FIR.
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53.In Mizaji v. State of U.P., AIR 1959 SC 572, the scope of Section
149 I.P.C. is explained in the following manner :
"The first part of Section 149 IPC means that the
offence committed in prosecution of the common object
must be one which is committed with a view to accomplish
the common object. It is not necessary that there should be
a preconcert in the sense of a meeting of the members of
the unlawful assembly as to the common object; it is
enough if it is adopted by all the members and is shared by
all of them. In order that the case may fall under the first
part, the offence committed must be connected immediately
with the common object of the unlawful assembly of which
the accused were members. Even if the offence committed is
not in direct prosecution of the common object of the
assembly, it may yet fall under Section 149 if it can be held
that the offence was such as the members knew was likely
to be committed. The expression 'know' does not mean a
mere possibility, such as might or might not happen.
Though it can be said that when an offence is committed in
prosecution of the common object, it would generally be an
offence which the members of the unlawful assembly knew
was likely to be committed in prosecution of the common
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object that does not make the converse proposition true;
there may be cases which would come within the second
part but not within the first. The distinction between the
two parts of Section 149 Indian Penal Code cannot be
ignored or obliterated. In every case it would be an issue to
be determined whether the offence committed falls within
the first part of Section 149 as explained above or it was an
offence such as the members of the assembly knew to be
likely to be committed in prosecution of the common object
and falls within the second part."
54.In Ranbir Yadav-vs-State Of Bihar reported in 1995 AIR 1219, the
Hon’ble Supreme Court has explained the scope of section 149 IPC as
under:-
“Section 149 makes every member of an unlawful
assembly at the time of committing of the offence guilty of
that offence. Thus this section created a specific and distinct
offence. In other words, it created a constructive or vicarious
liability of the members of the unlawful assembly for the
unlawful acts committed pursuant to the common object by
any other member of that assembly. However, the vicarious
liability of the members of the unlawful assembly only to the
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acts done in the pursuance of the object of the unlawful
assembly, or to such offences as the members of the unlawful
assembly knew to be like to be committed in prosecution of
that object. Once the case of a person falls within the
ingredients of the section the question that he did nothing
with his own hands would be immaterial. He cannot put
forward defence that he did not with his own hands commit
the offence committed in prosecution of the common object of
the unlawful assembly or such as the members of the
assembly knew to the likely to be committed in Prosecution of
that object. Everyone must be taken to have intended the
probable and natural results of the combination of the acts in
which he joined. It is not necessary that all the persons
forming an unlawful assembly must do some overt act. When
the accused persons assemble d together, armed with lathis,
and were parties to the assault on the complainant party, the
prosecution is not obliged to prove which specific overt act
was done by which of the accused. This section makes a
member of the unlawful assembly responsible as a principal
for the acts of each, and all merely because he is a member of
an unlawful assembly. While over act and active
participation may indicate common intention of the person
perpetrating the crime, the mere presence in the unlawful
assembly may fasten victoriously criminal liability under S.
149. It must be noted that the basis of the constructive guilt
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under S. 149 is mere membership of the unlawful assembly,
with the requisite common object or knowledge. "
Conclusion:
55.While highlighting the defects in the prosecution case, the learned
counsels for the appellants brought the following facts:
1)The contradiction between the evidence of PW-1, PW-2 and PW-10
regarding the description of weapons used by each of the accused.
2)The delay in forwarding the records to the Court. The further
statement of the witnesses recorded on 09.08.2014 which was forwarded to
the court on 11.052015.
3)The failure to investigate the death of Niranjan, which is the subject
matter of a different FIR arising from different transaction.
4)The testimony of the interested witness not corroborated by the
independent and public witness to support the case of the prosecution.
5) Only the close relatives of the decease like PW-1, PW-2, PW-10,
PW-11, PW-14 and PW-15, who are the interested witnesses and the official
witnesses had supported the prosecution. Even for confession and recovery
the police had called only the relatives of the deceased from far off place and
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not any respectable persons from the locality.
6) Crucial witnesses like PW-4, PW-5, PW-8 and PW-9 had turned
hostile. This had exposed the weakness in the prosecution case.
56.In this context, it is worth referring the judgment of the Supreme
Court rendered in Bharwada Bhoginbhai Hirjibhai-vs-State Of Gujarat
reported in 1983 AIR 753, wherein a pragmatic approach laid while
appreciating oral evidence;
“We do not consider it appropriate or permissible to enter
upon a reappraisal or re-appreciation of the evidence in the
context of the minor discrepancies painstakingly highlighted by
learned counsel for the appellant. Over much importance cannot
be attached to minor discrepancies. The reasons are obvious:
(1)By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It
is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the occurrence
which so often has an element of surprise. The mental faculties
therefore cannot be expected to be attuned to absorb the details.
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and 832 of 2022
and 159 of 2023
(3) The powers of observation differ from person to
person. What one may notice, another may not. An object or
movement might emboss its image on one person's mind whereas
it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of the
conversation.It is unrealistic to expect a witness to be a human
tape recorder.
(5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their estimates
by guess work on the spur of the moment 1.1 at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it depends
on the time- sense of individuals which varies from person to
person.
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross
examination made by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up
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and 832 of 2022
and 159 of 2023
details from imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so operates on account
of the fear of looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the occurrence
witnessed by him-Perhaps it is a sort of a psychological defence
mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter
and shake the basic version of the witnesses therefore cannot be
annexed with undue importance. More so when the all important
"probabilities-factor" echoes in favour of the version narrated
by the witnesses.
57.The murder of Alagarsami by a mob on 08.08.2014 at about 9.00
pm near the Vetri Medical Shop is a fact proved through the prosecution
witnesses, including the witnesses, who have turned turtle and declared as
hostile witness. The shop owners in that place have shut their doors in panic
and watching the event helplessly, so the relatives of the victim. The
presence of A-1 to A-5, A-6 to A-9 Juvenile Balakrishnan and
Niranjan(deceased) at the occurrence place with weapons is proved through
PW-1, PW-2 and PW-10. The death of Niranjan due to the injuries, he
sustained at the hands of A-2, when he aimed at Alagarsami indicates that
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and 832 of 2022
and 159 of 2023
even among the assailants, who all formed unlawful assembly with common
object pursuant to the conspiracy had lost focus and suffered identity crisis in
the mele. While so, expecting a photographic demonstration of the event
before the Court after fours years is not possible. Minor discrepancies is
bound to happen and contradictions among the eye witnesses, on minor
aspects will not affect the overall evidence incriminating the accused. When
about 10 persons surround a man and attack indiscriminately, the witnesses
cannot correlate each one of the accused to the injuries and the weapons they
were using to cause the injuries.
58.The post mortem report of Alagarsami marked as Ex.P-15 reads as
below:-
“11.An oblique cut injury measuring 10 cm x 3 cm x muscle
deep noted on front of inner aspect of left upper arm.
12.An oblique cut injury measuring 10 cm x 4 cm x muscle
deep noted on front of inner aspect of middle of left forearm.
13.An oblique cut injury measuring 5 cm x 1 cm x muscle deep
noted on middle 1/3rd of outer aspect of left forearm.
14.An oblique cut injury measuring 2 cm x 1 cm x muscle deep
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and 832 of 2022
and 159 of 2023
noted on lower 1/3rd of back of left forearm.
15.An oblique cut injury measuring 12cm x 4cm x muscle deep
noted on palm of left hand.
16.An oblique cut injury measuring 3cm x 2cm x bone deep
noted on palmar aspect of left middle finger.
17.An oblique cut injury measuring 2cm x 1cm x bone deep
noted on palmar aspect of left index finger.
18.An oblique cut injury measuring 15cm x 2cm x 2cm along
the muscle plane noted on back of middle of left side of chest.
19.An oblique cut injury measuring 06cm x 2cm x muscle
deep noted on back of middle 1/3rd of left thigh.
20.An oblique cut injury measuring 10cm x 2cm x muscle deep
noted on outer aspect of middle 1/3rd of left thigh.
21.An oblique cut injury measuring 12cm x 4cm x bone deep
noted on dorsal aspect of right index finger.
22.An oblique cut injury measuring 12cm x 4cm x bone deep
noted on outer aspect of left knee.
23.An oblique cut injury measuring 6cm x 1cm x muscle deep
noted on back of upper 1/3rd of right forearm.
24.An oblique cut injury measuring 15cm x 6cm x bone deep
noted on inner aspect of lower 1/3rd right forearm.”
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and 832 of 2022
and 159 of 2023
59.These injuries were caused by 10 persons. One accused who
masterminded the crime stayed. Out of the accused, one is a juvenile and one
died. Rest of the 8 accused are here as appellants. Their presence with
weapon is spoken by PW-1, PW-2 and PW-10, however with minor
variations about the descriptions. Nonetheless the sharing of mind and
common object to murder Alagarsami is proved.
60.These three witnesses P.W.1, P.W.2 and P.W.10 been cross
examined extensively but could not impeach. Particularly, the chief
examination of PW-1 commenced on 07.04.2018. The cross-examination
commenced after 10 days and continued for nearly 4 months and after
incised and lengthy cross-examination on 17.04.2018, 08.06.2018,
11.06.2018 and 29.08.2018 by different counsels for the accused completed
only on 29.08.2018. The contradictions are trivial in nature and the
omissions on the part of the Investigation Officer which are only procedural
lapses fails to upset the overwhelming evidence against the appellants who
had committed the crime of brutal murder in retaliation and also lost one of
their associate in the anxiety to murder Alagarsami.
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and 832 of 2022
and 159 of 2023
61.The trial Court has rightly altered the charge from section 302 IPC
to 302 r/w 149 IPC and after affording adequate opportunity to the accused
persons had concluded that A-1 to A-5, A-7 to A-9 are liable for the
homicide death of Alagarsami and guilty of offence punishable under
Section 302 r/w 149 IPC. The conspiracy meeting held a week earlier to do
the illegal act had manifested into action on 08.08.2014. Among the
conspirators, except A-6, all were found assembled unlawfully, at the scene
of crime, carrying weapons sharing common object. A week earlier, the
presence of A-6 along with the co-conspirators and scheming for the crime is
positively spoken by PW-8 and PW-11.
62.As a result, the charges against these appellants found proved
beyond doubt.
63.In fine, we confirm the judgment of the trial Court and dismiss the
appeals Crl.A(MD)Nos.288, 293, 457, 786, 807 & 832 of 2022 and 159 of
2023. The bail bond executed by the appellants shall stand cancelled. The
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and 832 of 2022
and 159 of 2023
appellants to be secured forthwith and committed to prison for them to
undergo the remaining period of sentence.
[G.J.,J] & [R.P., J]
17.04.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
To
1.TheVI Additional Sessions Judge,
Madurai.
2.The Inspector of Police,
South Gate Police Station.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to:
The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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and 832 of 2022
and 159 of 2023
DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
Ns
Predelivery Judgement made in
Crl.A(MD)Nos.288, 293, 457, 786, 807 & 832 of 2022
and 159 of 2023
17.04.2025
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