BAIL SLIPThe v. State rep. byInspector of PoliceKudaivasal Police Station

For Respondent: Mr. K.Duraisami, PP assisted by Mr. S.Jayakumar, APPJUDGMENT(JUDGMENT OF THE COURT WAS DELIVERED BY N.DHINAKAR, J.)The appellants are A-1 to A-6, A-8 to A-14, A-17 to A-21and A-24. They were tried before the learned Addl. SessionsJudge, Nagapattinam, along with seven others, who were arrayedas A-7, A-15, A-16, A-22, A-23, A-25 and A-26. The learnedtrial Judge, on the evidence adduced, while acquitting A-7, A-15, A-16, A-22, A-23, A-25 and A-26, found the above appellantsin this appeal alone guilty under various charges, which wereframed against them. In this appeal, for the sake ofconvenience, the acquitted accused, whom we have referred toabove and the appellants in this appeal will be referred as A-1to A-26 in the same order as they were arrayed before thelearned Addl. Sessions Judge.

The allegation against A-1 to A-26 is that at 1.15 p.m.on 10.9.94, they formed themselves into an unlawful assembly andthat A-1 to A-23 were armed with dangerous weapons and infurtherance of the common object of the said unlawful assembly, they caused the death of the first deceased Rajamanickam (forshort D-1), the second deceased Venkatachalam (for short D-2)and the third deceased Balasubramanian (for short D-3) andduring the course of the same transaction they also causedinjuries to P.W.s 2 and 3.

The first charge was framed against A-24 to A-26 under Section 147 IPC. The trial Judge found A-24 alone guilty underthe said charge and sentenced him to one year rigourousimprisonment, while he acquitted A-25 and A-26.

The 2nd charge was framed under Section 148 IPC againstA-1 to A-23. While the trial Judge found A-1 to A-6, A-8 to A-14, A-17 to A-21 guilty and sentenced each one of them to twoyears rigourous imprisonment, acquitted A-7, A-15, A-16, A-22and A-23 under the said charge.

The 3rd charge was framed against A-1 to A-26 under Section 341 IPC for wrongfully restraining D-2, but the trialJudge convicted A-1 to A-6, A-8 to A-14, A-17 to A-21 and A-24alone and sentenced each one of them to one month simpleimprisonment, while he acquitted the other accused under thesaid charge.

The 4th charge framed against A-1 to A-26 under Section356 IPC ended in conviction of the appellants alone and theallegation in the said charge is that they assaulted D-1 to D-3.On being convicted, each of the appellant was sentenced torigourous imprisonment for three months. https://hcservices.ecourts.gov.in/hcservices/

The 5th charge was framed under Section 324 IPC againstA-1 to A-12, A-14 to A-19 and A-21 to A-26. The allegation inthe said charge is that they caused injuries to D-1 to D-3 andP.W.s 2 and 3. The learned trial Judge, while finding A-2, A-4,A-14, A-17 to A-19 and A-21 guilty under Section 324 IPC,whereas found A-1, A-3, A-5, A-12, A-13 and A-24 guilty under Section 324 read with 149 IPC and on being found guilty, eachone of them was sentenced to two years rigourous imprisonment.A-6 and A-8 to A-11, though were found also guilty under Section324 read with 149 IPC, the learned trial Judge, adopting adifferent and illogical standard, did not award any sentence. He also did not realise that those accused who were convictedunder this charge with the aid of Section 149 IPC were not atall charged under the section as Section 149 IPC is anindependent offence.

A-13 and A-20 were charged under Section 324 read with149 IPC under charge No.6 and the learned trial Judge, whileconvicting A-13 under Section 324 read with 149 IPC, found A-20guilty under Section 324 IPC simplicitor and each of the accusedwas sentenced to two years rigourous imprisonment under the saidcharge.

The 7th charge framed under Section 326 IPC against A-7,A-13, A-15, A-16, A-20, A-22 and A-23 was on the allegation thatA-13 cut P.W.3 with an aruval on the left hand fingers and A-7,A-15, A-16, A-22 and A-23 attacked D-1 and A-2 attacked D-3 withdangerous weapons respectively. The learned trial Judge, whileconvicting A-13 under Section 326 IPC simplicitor as charged, found A-20 guilty under Section 326 read with 149 IPC, thoughthere was no specific charge under Section 149 IPC against theaccused and each one of them was sentenced to three yearsrigourous imprisonment and each one of them was directed to paya fine of Rs.500/= with a default sentence of six monthsrigourous imprisonment, while all the other accused wereacquitted.

Charge No.8 under Section 326 read with 149 IPC wasframed against A-1, A-3 to A-6, A-8, A-9 to A-12, A-14, a-17 toA-19, A-21, A-24 and A-26 and the allegation in the said chargeis that they were members of the unlawful assembly when theother accused caused injuries to D-1 to D-3 and the witnesses. The trial Judge found A-12, A-17, A-18, A-21 alone guilty underthe said charge and sentenced each one of them to three yearsrigourous imprisonment and each one of them was directed to paya fine of Rs.500/= with a default sentence of six monthsrigourous imprisonment, while A-1, A-3 to A-6, A-8 to A-12, A-14and A-19 were acquitted under the said charge.

Charge No.9, which was framed under Section 326 readwith 149 IPC (2 counts) was framed against A-2, who was foundnot guilty under the said charge.

Charge No.10 was framed under Section 326 read with 149IPC (3 counts) against A-25, but he was found not guilty under https://hcservices.ecourts.gov.in/hcservices/ the said charge.

The 11th charge was framed against A-3 and A-12 under Section 302 IPC simplicitor for causing the death of D-2 and D-3. The learned trial Judge found A-3 and A-12 guilty andsentenced each one of them to imprisonment for life under thesaid charge, but also strangely found A-1 guilty under the saidcharge and sentenced him to imprisonment for life for causingthe death of D-1, though no charge was framed against him forthe murder of D-1 under the said charge.

The 12th charge under Section 302 read with 34 IPC wasframed against A-1 to A-3, A-5, A-6, A-8 to A-12, A-13, A-21 andA-24 to A-26. The allegation against the accused in the saidcharge is that A-1 to A-3, A-5, A-6, A-8 to A-12 and A-21attacked D-3 and caused his death and that A-24 attacked D-1while A-13, A-25 and A-26 attacked D-2. Charge No.13 was alsoframed under Section 302 read with 34 IPC (2 counts) against A-4, A-14, A-17 and A-18. The learned trial Judge, without givinga separate finding under charge Nos. 12 and 13, gave a commonfinding that A-1 to A-6, A-8 to A-11, A-13, A-14, A-17, A-18 andA-21 are guilty of the said offences and sentenced each one ofthem to imprisonment for life without specifically statingwhether the said conviction is under charge No.12 or chargeNo.13, forgetting the contents of the charge under charge No.12,which was framed against the accused mentioned in the saidcharge, that they have attacked D-1 to D-3, whereas under chargeNo.13, the allegation is that the accused mentioned in the saidcharge have attacked and murdered D-2 and D-3.

Charge No.14 framed under Section 302 read with 149 IPCwas against A-2, A-4 to A-18, A-22, A-23 and A-25. The learnedtrial Judge did not give any finding and law is well settledthat if there is no finding, it means implied acquittal.

Similarly, A-21, though was charged under Section 302read with 149 IPC (2 counts) under charge No.15 for sharing thecommon object of the other accused for causing the death of D-1and D-3, no finding was given by the learned trial Judge againsthim under the said charge and, thereby, acquitting him byimplication.

Charge No.16 framed under Section 302 read with 149 IPC(3 counts) was framed against A-19, A-20, A-24 and A-26 on theallegation that they shared the common object in murdering D-1to D-3, but the learned trial Judge found A-19 and A-20 aloneguilty under Section 302 read with 34 IPC for which each one ofthem was sentenced to imprisonment for life.

Charge No.17 was framed under Section 114 IPC againstA-24 to A-26 for abetting the other accused without mentioningthe nature of the offence, which they have abetted, and thelearned trial Judge strangely convicted A-24 alone guilty under Section 302 read with 114 IPC as if the said charge is for the https://hcservices.ecourts.gov.in/hcservices/ abetment of murder against A-24 even though there is no suchallegation against A-24 under the said charge. On being foundguilty, A-24 was sentenced to imprisonment for life. However,A-25 and A-26 were acquitted under the said charge.

Charge No.18 which was framed under Section 25 (1-B)(b) read with Section 4 of the Arms Act was framed against A-2,A-14 and A-21 on the allegation that they used the weaponvelkambu. On being found guilty as charged, each one of themwas sentenced to two years rigourous imprisonment and each oneof them was directed to pay a fine of Rs.500/= and in default toundergo rigourous imprisonment for six months.

By the present appeal, the appellants, who were foundguilty by the learned trial Judge and convicted for variousoffences as noted above, challenge their conviction andsentence.

The facts, which led to the framing of charges andultimate conviction of the appellants and the acquittal of someof the accused are based on the following facts, which wereunfolded by the prosecution before the trial court :-The appellants and the prosecution party were residents of Neikuppai village falling within Kudaivasal Taluk. They wereagriculturists by profession. The appellants are Dalits and theprosecution witnesses are caste Hindus. A person by nameMurugaiyan, belonging to the Dalit community, was murdered inthe year 1993-94 on account of his illicit relationship with Lakshmi, who was the wife of Swaminathan, a dobhi by profession. During Pongal, in the year 1994, the caste Hindus used toprevent their cattles from getting into the fields of the Dalitson account of which quarrels used to arise. On account of thisthere was animosity between the two groups. The Dalits neverused to be called for work by the caste Hindus in the village. In connection with the murder of Murugaiyan, which we havementioned earlier, a criminal case was filed against 27 accused, who were caste Hindus, and the same was pending trial on theunfortunate date of incident.

About a fortnight before the date of incident, A-24 toA-26 were seen talking with each other near a sluice and thiswas witnessed by P.W.1, who heard them telling each other thatcaste Hindus must be murdered. P.W.1, after attending to hiswork, returned to the village and informed the villagers; butthe villagers did not give importance to the conversation of A-24 to A-26, which was heard by P.W.1 and which in turn wasconveyed to them. P.W.1 also came to know that the accusedparty was convening a secret meeting. On 10.9.94 P.W.s 1, 10and Karthikeyan were proceeding towards their house. They, infront of the house of A-24, saw all the accused standing withweapons. P.W.1 crossed the house of A-24 and, thereafter, hidhimself and was watching at the accused as to what they proposedto do. A-1 and A-3 were each armed with veech aruval; A-5 to A-13, A-15 and A-16 were having aruvals; A-2 and A-14 were havingvelsticks; A-4 was having a sulukki and A-19 to A-23 were havingiron rods. A-24 to A-26 did not have any weapons in their https://hcservices.ecourts.gov.in/hcservices/ hands. While P.W.1 was watching them, the accused dividedthemselves into two groups; one group proceeded towardsKoradacheri and the other group proceeded towards Poongavur. A-12, A-13, A-17 to A-20 and A-24 to A-26 proceeding towardsKoradacheri were heard talking among themselves that they haveto finish of Venkatachalam (D-2). The other accused, who wenttowards Poongavur were seen shouting that they have to murderatleast ten persons on that day. P.W.1 asked Karthikeyan toinform the villagers and P.W.s 1 and 10 proceeded throughanother road to inform others. When they were crossing achannel, they saw the accused group, which earlier proceededtowards Poongavur. A-1 was seen cutting D-1 with an aruval onhis neck by saying that the persons who have murdered Murugaiyanmust be done to death. D-1 fell down in the field. A-2, A-4and A-14 stabbed him with velsticks on various parts of hisbody. When P.W.2 intervened, he was cut by A-3 on the headfollowed by A-14, who stabbed him with a velstick. This was at1.30 p.m.

The accused, who went towards Koradacheri, namely, A-12and A-24 to A-26 returned to the place and were seen telling theother accused that they have already murdered D-2. Then all theaccused left the place saying that they have to murder D-3.P.W.1, out of fear, ran away from the place. The accused groupwent and surrounded Balasubramanian (D-3), while he was at hisfield, supervising agriculture work. He was surrounded by theaccused and A-24 instigated the other accused not to leave him.A-1 with a veech aruval cut him on the left cheek and D-3 felldown. When P.W.8 tried to intervene, A-21 threatened him torun away from the place. A-14 beat him with a velstick on hisleft hand. P.W.8 ran and hid himself in the field of Swamikannu. He saw A-3 cutting D-3 on the right neck two orthree times followed by A-5, A-6, A8, A-9, A-11, A-12 and A-15,who cut D-3 indiscriminately. The attack on D-3 was witnessedby P.W.9 apart from P.W.8. After the accused left the place, the witnesses went near D-3 and found him dead. Thereafter, the witnesses ran to the village where they were informed thattwo other persons were also murdered and that P.W.s 8 and 9informed the other villagers that D-3 was cut to death. All thevillagers went to the place where the dead bodies were lying.

P.W.1 left the scene of occurrence for Kudaivasalpolice station. P.W.1 reached Kudaivasal police station andgave an oral complaint to P.W.13, the head constable at 3.45p.m. P.W.13 reduced the complaint into writing and the saidcomplaint is Ex.P-1. On the complaint, Ex.P-1, P.W.13registered a case in crime No.462 of 1994 against 26 accusedunder Sections 147, 148 and 302 IPC. Ex.P-11 is a copy of theprinted first information report. He despatched the expressreports to higher officials and handed over Ex.P-1 as well as hecopy of the printed first information report, Ex.P-11 to P.W.18,a police constable with a direction that those two documentsmust be handed over to the learned Magistrate. He also sentinformation over wireless to the Inspector of Police. https://hcservices.ecourts.gov.in/hcservices/

P.W.19, who was the Circle Inspector, Nanilam, and whowas holding additional charge of Kudaivasal police station, onreceipt of information over wireless, informed the policeofficials of Kudaivasal police station to go over to the sceneof occurrence with a copy of the printed first informationreport. He proceeded to Neikuppai village and reached it at4.55 p.m. A copy of the printed first information report wasgiven by a police constable and investigation was taken up byhim. At 5.05 p.m., he prepared an observation mahazar, Ex.P-8as regards the place where the dead body of Venkatachalam (D-2)was lying. A rough sketch, Ex.P-16 was also drawn. The inquestover the dead body of D-2 commenced at 6.00 p.m. and was over by8.00 p.m. At the time of inquest, P.W.s 1, 8 and 9 wereexamined and their statements were recorded. Ex.P-17 is theinquest report. After the inquest, the dead body was handedover to a police constable with a requisition to the doctor forconducting autopsy.

P.W.19 proceeded to the place where the dead body of Rajamanickam (D-1) was lying. He prepared an observationmahazar, Ex.P-9 at 8.30 p.m. A rough sketch Ex.P-18 was drawn. The inquest over the dead body of D-1 commenced at 9.15 p.m. andended at 11.15 p.m. The inquest report stands marked as Ex.P-19. During inquest, the witnesses, who were earlier examinedwere again examined and their statements were recorded. Afterthe inquest, he handed over the dead body of D-1 to a policeconstable with a requisition to the doctor for conductingautopsy.

At 11.45 p.m., he proceeded to the place where the deadbody of Balasubramanian (D-3) was lying. He prepared anobservation mahazar, Ex.P-10 and drew a rough sketch, Ex.P-20.Inquest was conducted over the dead body of D-3 between 0030hours on the night of 10/11.9.94 and 0230 hours in the presenceof panchayatadars. Ex.P-21 is the inquest report. As thewitnesses who were examined at the time of inquest had no newmaterial to offer, their statements were not recorded. Afterthe inquest, he handed over the dead body of D-3 to a policeconstable with a requisition to the doctor for conductingautopsy.

On receipt of the requisition, P.W.5, the Civil Surgeonattached to the Government Headquarters Hospital, Kudaivasal, conducted autopsy on the body of Rajamanickam (D-1) and found onthe body the following injuries :-"1) An incised wound 2 cms x 1 cm x 1 cm over theright cheek. Muscles cut corresponding to theinjury.2) A punctured wound 2 cm x 1 cm x 1 ½ cm over theleft side neck 1 cm from the middle line at thelevel of the cricoid cartilage. Muscles of theneck cut.3) A punctured wound 2 cms x 1 cm x 1 ½ cms overthe left side neck 2 cms below the injury number(2). Muscles cut. https://hcservices.ecourts.gov.in/hcservices/ 4) A punctured wound 2 cms x 1 cm x 2 cms over theleft side neck 5 cms from the midline. Musclescut.5) An incised wound 15 cms x 8 cms x 6 cms overthe back of the right side neck and right shoulderblade. Muscles of the neck on the back rt.sidecut. 7th cervical vertebra cut and the spinalcolumn cut at the 7th cervical vertebra.6) An abrasion 1 cm x ½ cm over the left ear lobe.7) An incised would 5 cms x 2 cms x 2 cms over theoccipital region of the scalp and the left sidemuscles cut.8) A punctured wound 2 cm x 1 cm x 1 ½ cm over theleft side chest at the 7th left space in theanterior axillary line. Muscles cut.9) A lacerated injury 5 cms x 3 cms x 2 cm overthe left knee.10) A punctured wound 2 cms x 1 cm x 1 cm over theback at the level of the right lower end ofscapula. Muscles cut.11) A punctured wound 2 cm x 1 cm x 1 cm over theback 1 cm below the injury number (10). Musclescut.12) A punctured wound 2 cm x 1 cm x 1 ½ cm overthe right iliac crest muscles cut. "The doctor issued Ex.P-5, post-mortem certificate, with hisopinion that death was on account of shock and haemorrhage dueto the injury to spinal cord and that death would have occurredabout 18 to 24 hours prior to autopsy.

The same doctor, P.W.5, on receipt of requisition fromthe investigating officer, conducted autopsy on the body of Venkatachalam (D-2) and found on his body the following injuries:-"1) An incised wound lying horizontally 25 cms x10 cms x 10 cms extending from the right side ofthe neck, front of the neck, below the cricoidcartilage, to the left side neck. The woundposteriorly extends from the right, to the back ofthe neck, to the left side of the neck. The two ends of the wound is separated by 5 cms. The carotids arteries on both sides, jugular veinson both sides, trachea, oesophagus are cut. Muscles of the neck are completely cut andlacerated. Spinal cord and vertebral column iscut at the level of the 5th cervical, vertebra andvagus nerves and other nerves are cut.2) An incised wound 5 cms x 2 cms muscle deep overthe chin regular margins. One end of the injuryjoins with injury no.1 on the right side.3) An incised wound lying horizontally over thelower end of the back of the right arm 5 cms x 3cms bone deep. Muscles cut.4) An incised wound 2 cms x 1 cm x 1 cm over theright hypochondrium in the mid clavicular line.5) An abrasion 1 cm x ½ cm over the abdomen 1 cm https://hcservices.ecourts.gov.in/hcservices/ over the umbilicus.6) An incised wound 2 cms x 1 cm x 1 cm over the3rd left intercostal space in the mid clavicularline just above the left nipple.7) An incised wound 5 cms x 3 cms x 2 cms over theback of the left elbow, muscles cut.8) An incised wound 2 cms x 1 cm x 1 cm over theback of the chest just below the lower end of theleft scapula.9) An incised wound 3 cms x 2 cms x 1 cm over theright side chest over the 9th right intercostalspace in the anterior axillary line. "The doctor issued Ex.P-4, post-mortem certificate with hisopinion that death was on account of shock and haemorrhage dueto injury to carotid vessels, jugular veins, vagus veins, vagusnerve and spinal cord and death would have occurred about 18 to24 hours prior to autopsy.

On receipt of the requisition, P.W.6, the AssistantSurgeon attached to the Government Headquarters Hospital, Nagapattinam at Kudaivasal, conducted autopsy on the body of Balasubramanian (D-3) and on the body the doctor found thefollowing injuries :-"1) Incised wound left side of the neck and lefthalf of front of neck 14 cm x 4 cm x vertebradeep. Trache and oesophagus are completely cutbelow the cricoid cartilage – common carotidartery – veins are completely cut. All themuscles and nerves are cut.2) Incised wound left side of the neck 1 cm abovethe wound no.1 – 10 cm x 3 cm x vertebra deep. Muscles, vessels and nerves are completely cut.3) Incised wound right side of the neck just abovethe right clavicle to the midline on the back 14cm x 3 cm vertebra deep. Common carotid artery –veins – muscle and nerves are completely cut.4) Incised wound top of the left shoulder 14 cm x6 cm oblique acromin present and head of humerousare exposed.

In the meantime, P.W.s 2 and 3, who were also presentalong with P.W.1 when he gave the complaint, Ex.P-1, werereferred to the hospital by P.W.13, the head constable as theyhad injuries on their person. They appeared before P.W.5 at4.00 p.m. on 10.9.94 and P.W.5 examined P.W.2 and found thefollowing injuries on his person :- "1) A lacerated injury 2 cms x 1 cm x 1 cm overthe centre of the forehead.2) An abrasion ½ x ½ cm over the left clavicle.3) A contusion 5 cm x 2 cm over the back in thecentre.4) A contusion 3 cm x 1 cm over the back on theleft side. "The doctor issued Ex.P-2, wound certificate with his opinionthat the injuries are simple in nature.

At 4.15 p.m., P.W.3 was examined by P.W.5 and onexamination, he found the following injuries, which is foundnoted in Ex.P-3, wound certificate :-"1) A lacerated injury 5 cms x 3 cms x 2 cms bonedeep, muscles cut over the back of the leftforearm.2) A lacerated injury 3 cms x 2 cms x 1 cm overthe left shoulder blade.3) A lacerated injury 3 cm x 1 cm x muscle deepover the left middle finger and index fingertendons out at the level of proximalinterphalangeal joint.4) A lacerated injury 2 cm x 1 cm x ½ cm over theright ring finger front. "According to the doctor, injury No.3 is grievous in nature. AsP.W.3 had grievous injuries, he was referred to Tanjore MedicalCollege Hospital, where he was admitted and treated by P.W.7.Ex.P-7 is the copy of the accident register issued by P.W.7which shows that the injured was admitted at Tanjore MedicalCollege Hospital at 7.20 p.m.

P.W.19, in the meantime, continuing with hisinvestigation, made arrangements to take photographs of thescene of occurrence and formed a special party to search for theaccused and arrest them. The houses of the accused were foundlocked. On 11.9.94 he questioned witnesses and recorded theirstatements. On the same day, the clothes which were on the deadbodies of D-1 to D-3, on being produced by the respectiveconstables, who were present at the time of autopsy, were seized https://hcservices.ecourts.gov.in/hcservices/ under Exs.P-22 to P-24 (Form-95). On 12.9.94 he questioned thedoctors and recorded their statements. On 18.9.94 a requisitionwas sent to the court to forward the material objects foranalysis.

At 8.00 p.m. on 19.9.94 he arrested A-7, who wasbrought to the police station and sent to court for remand. On21.9.94 at 9.00 a.m. he arrested A-11, A-13, A-16 to A-18 and A-20. They were brought to the police station at 11.00 a.m. andsent to court for remand on the same day. On 22.9.94 at 10.00p.m. he arrested A-1, A-3, A-4, A-6, A-10, A-12, A-14, A-15, A-19, A-21 and A-23 at Neelakudi village and they were sent tocourt for remand on the same day. On 25.9.94 at about 10.00p.m. at Sathyavadi village, A-2, A-8, A-9 and A-22 were arrestedand they were brought to the police station and on the next daythey were sent to court for remand. The officer came to knowthat the other accused have surrendered before the court. On26.9.94 he questioned witnesses, including the police constableand recorded their statements. After the completion ofinvestigation final report was filed against the accused on28.8.95 under various sections including Section 302 IPC as wellas under Section 25 (1-B) (b) of the Indian Arms Act, 1959.

The accused were questioned under Section 313 Cr.P.C.on the incriminating circumstances appearing against them. Theydenied all the incriminating circumstances. They did notexamine any witness on their side nor filed any writtenstatement.

Learned senior counsel appearing for the appellantssubmits that there is inordinate delay in the complaint, Ex.P-1and the printed first information report, Ex.P-11 reaching thehands of the Magistrate and the explanation offered by theprosecution through the evidence of P.W.18 is thoroughlyunsatisfactory and according to him, the said complaint, Ex.P-1must have been prepared after much deliberation on account ofthe enmity, which was in existence between Dalits and casteHindus in the village. He further submits that there areseveral contradictions in the evidence of the eye witnesses andthese contradictions are only on account of the fact that thosewitnesses would not have been present to witness the incidentand have been projected by the prosecution at a later point oftime to buttress the prosecution case. He further submits thatthough P.W.s 2 and 3 were also present at the time when P.W.1allegedly gave a complaint, the averments made in the complaint, Ex.P-1 are at variance with the present evidence given in court. He further submits that the trial Judge messed up the wholeprocedure of framing charges by charging certain persons for aparticular offence, but convicted other accused under thecharges, though no charge was framed against them under the saidcharge. He submits that though the trial Judge has framed acharge under Section 114 IPC, he did not even mention in thesaid charge as to the nature of abetment made by the accused onaccount of which the accused were totally prejudiced and on thisground alone the accused are entitled for an acquittal. https://hcservices.ecourts.gov.in/hcservices/

On the above contentions we have heard the learnedPublic Prosecutor and perused the recorded evidence, both oraland documentary.

The cause of death of D-1 to D-3 stands establishedthrough the evidence of the doctors, P.W.5 and P.W.6, whoconducted autopsy on D-1 to D-3 and the post-mortemcertificates, Exs.P4 to P-6. The cause of death of D-1 to D-3was not disputed by the appellants before the trial court nor itis disputed before this Court. On the medical evidence we holdthat D-1 to D-3 died on account of homicidal violence.

The prosecution, before the trial court, examined sevenwitnesses as persons, who witnessed the incident. They wereexamined as P.W.s 1 to 3 and 8 to 11 and of them, according tothe prosecution, P.W.s 2 and 3 have suffered injuries on thedate when D-1 to D-3 also suffered fatal injuries.

We will now take up the first contention as regards thedelay in the first information report reaching the court.P.W.18, the police constable, was examined to explain the delayin the complaint, Ex.P-1 and the first information report, Ex.P-11, reaching the court belatedly. P.W.18 in his evidence hasstated that the complaint, Ex.P-1 and the printed firstinformation report, Ex.P-11, were handed over to him by P.W.13at 3.45 p.m. and that since 10.9.94 was a holiday, he went tothe residence of the Magistrate at Thiruvarur, which was foundlocked. According to him, he enquired with the neighbours andhe was asked to wait for the arrival of the Magistrate. He hasstated that he waited till 9.00 p.m. at the residence of the Magistrate, but the learned Magistrate did not turn up. According to him, thereafter, he went to Thiruvarur policestation, where he was informed that the Magistrate at Thiruthuraipoondi was in-charge of Thiruvarur court and, therefore, he left for Thiruthuraipoondi, which he reached atmidnight. According to him, on reaching Thiruthuraipoondi atmidnight, he was informed that the in-charge Magistrate is at Nagapattinam and as there were no transport facilities from Thiruthuraipoondi to Nagapattinam, he boarded a lorry andreached the place of the Judicial Magistrate-I at 3.30 a.m. on11.9.94 and handed over the complaint, Ex.P-1 and the printedfirst information report, Ex.P-11 to the Judicial Magistrate-I,Nagapattinam.

P.W.18 was cross-examined and a suggestion was put tohim that even at Thiruvarur he was informed that the in-chargeMagistrate is at Nagapattinam and that he has suppressed thesaid fact and had come out with a false explanation for thedelay. We, on going through the evidence of P.W.18, are notsatisfied with the explanation given by the prosecution, throughthe evidence of P.W.18, for the inordinate delay in the firstinformation report reaching the Magistrate. The prosecution didnot mark the passport, which was given to him at the policestation for taking the complaint and the printed firstinformation report. If the prosecution had marked the passportgiven to the police constable, P.W.18, then the said passport https://hcservices.ecourts.gov.in/hcservices/ would have shown whether he was directed to go to Thiruvarur or Thiruthuraipoondi or Nagapattinam. The prosecution convenientlyomitted to mark the said document, which would have supportedthe evidence of P.W.18, if it is true. Though P.W.18 has alsoadmitted that at Thiruvarur police station he was informed that Thiruthuraipoondi Magistrate is in-charge and he has noted thatin his pocket notebook, the prosecution did not produce thepocket notebook, though according to P.W.18, it is very muchavailable at the police station.

The two important documents, which were in possessionof the prosecution and which would have supported the oralevidence of P.W.18 have been withheld from the court. If theimportant documents are not produced and marked to support theoral evidence of P.W.18, especially when there is an inordinatedelay in the complaint and the printed first information reportreaching the court, then the court cannot but draw an adverseinference against the prosecution that the two documents do notsupport the present version of P.W.18.

In this background when we look at the evidence ofP.W.14, the court clerk attached to the Judicial Magistrate'sCourt, Thiruvarur, it becomes clear that on the date of incidentKudaivasal police station knew that the in-charge Magistrate isat Nagapattinam, since she has admitted that the said fact wasknown to the police officers of Kudaivasal police station. Ifthat be the case, it is difficult to accept the present versiongiven by P.W.18 that he was informed by the police officials at Thiruvarur that the in-charge Magistrate to whom the complaintand the printed first information report have to be handed overis at Thiruthuraipoondi and later at Thiruthuraipoondi he wasasked to go to Nagapattinam Magistrate. It is therefore clearthat the present evidence of P.W.18 was only to get over thedelay in the first information report reaching the Magistrateand the said evidence is highly unsatisfactory and also notsupported by any document. Hence, this Court is unable toaccept the explanation offered by the prosecution through P.W.18in view of our above discussion and finding.

We are fully aware that the delay in receipt of thecomplaint and the printed first information report by the courtby itself will not affect the prosecution case and it depends onthe facts of each case. The case in hand is a case where therewas animosity between Dalits and caste Hindus and on an earlieroccasion a person belonging to Dalit community was murdered andthe present incident is only a sequel to the earlier murder. Inthe above background, this Court has to view the evidence of thewitnesses with great care and caution, as there will always be atendency for the witnesses to implicate as many persons aspossible on account of the caste factor.

Keeping this in mind, for example, when we look at theevidence of P.W.s 1, 2 and 10, we find that there arecontradictions as to who caused the death of D-1 and as to howP.W.2 suffered injury. According to P.W.2, when D-1 was cut, there was no one present and he alone was present to witness the https://hcservices.ecourts.gov.in/hcservices/ incident, which means that P.W.s 1 and 10 could not have seenthe attack on D-1. In the above background the admission ofP.W.2 that he alone was present when the occurrence took placeassumes importance. If P.W.2 alone was present when D-1 wascut, then P.W.s 1 and 10 could not have been present. Theevidence of P.W.2 is to the effect that D-1 was cut by A-3 andthereafter A-2 to A-4 and A-14 cut D-1 and that further P.W.2was attacked by A-1 and A-14. This evidence of P.W.2 is notsupported by P.W.1, since according to him it was A-1, who cutD-1 and caused his death and that P.W.2 was cut by A-3 and notby A-1 and A-14 as claimed by P.W.2. Though P.W.1 says he waspresent and witnessed the above acts of the above accused, hispresence at the scene of occurrence was not even spoken to byP.W.2.

Similarly, though P.W.2 claims that he informed P.W.1that he saw D-2 being murdered, P.W.1 in his evidence has statedthat he heard A-12 and A-24 to A-26 shouting that they havemurdered D-2 and thereby meaning that the information about themurder of D-2 was given to him not by P.W.2 and that he came toknow of the said murder of D-2 from the shouts of A-12 and A-24to A-26.

Similarly, P.W.10 has implicated A-1 as the person, whohas murdered D-1, which is totally contradictory to the evidenceof P.W.2, as according to P.W.2 it was A-3 who murdered D-1.According to P.W.10, A-2 and A-3 have cut P.W.2 whereas neitherP.W.1 nor P.W.2 have implicated A-2 for causing injury to P.W.2.

Similarly, though P.W.3 claims that he was attacked byA-13, A-17 and A-20, the evidence of P.W.11 is at variance withthe evidence of P.W.3, as according to P.W.11, it was A-19 andA-20 who caused injuries to P.W.3.

Similarly, though P.W.3 in his evidence has stated thatD-2 was cut by A-12, A-17 and A-18, P.W.11 has implicated notonly A-12, A-17 and A-18, but also A-13.

As regards D-3, P.W.8 claims that on the instigation ofA-24, A-1 to A-3, A-5, A-6, A-8, A-9, A-11, A-12, A-14, A-15, A-17 to A-19 and A-21 have attacked and caused his death; butP.W.9 did not implicate A-24. P.W.9 also had implicated A-4 andA-13, whereas A-4 and A-13, who were implicated by P.W.9 werenot implicated by P.W.8.

The above contradictions, which are serious, have to beviewed in the backdrop of the delay in the first informationreport reaching the court and the animosity, which was inexistence between the two rival factions in the village.

At this juncture, we cannot lose sight of the admissionmade by P.W.13, the head constable, who registered the firstinformation report. He has admitted that in the printed firstinformation report initially it is found written that theaccused are A-1 and 20 others and later it is altered as A-1 and25 others. The above facts create a suspicion in the mind of https://hcservices.ecourts.gov.in/hcservices/ the Court that whether the occurrence could have taken place inthe manner spoken to by the witnesses and it is possible thatthe prosecution has shaped the case at the instance of theprosecution witnesses, since three persons have died on the sideof the prosecution.

We have to now consider the prejudice caused to theaccused on account of the incorrect framing of the charges andthe findings given by the learned trial Judge. Though there arenumber of mistakes, omissions and non-mentioning of details inseveral charges, we feel that it is not necessary for us tomention all the details and it is suffice to mention only a fewinstances.

Charge No.11 was framed against A-3 and A-12 under Section 302 IPC. The allegation in the said charge is that A-3cut D-2 (Venkatachalam) and A-12 cut D-3 (Balasubramanian) andmurdered them. The learned trial Judge, though specifically inthe charge stated that A-3 cut D-2 and A-12 cut D-3, convictedA-3 for causing the death of D-3 and A-12 for causing the deathof D-2, which is totally against the allegations made in thesaid charge. The learned trial Judge, not stopping with themistake already committed by him, went on to commit anotherblunder by convicting A-1 under the said charge for causing thedeath of D-1 (Rajamanickam), though he was not even charged andno allegation was made against him under the said charge.

Similarly, charge No.12 was framed against A-1 to A-3,A-5, A-6, A-8 to A-13, A-21 and A-24 to A-26 under Section 302read with 34 IPC. The allegation in the said charge is that A-1to A-3, A-5, A-6, A-8 to A-12 and A-21 attacked D-3, A-24attacked D-1 while A-13, A-25 and A-26 attacked D-2. Thelearned trial Judge, under charge No.13, framed a charge under Section 302 read with 34 IPC (2 counts) against A-4, A-14, A-17and A-18 and the allegation in the said charge against them isthat they shared the common intention of the other accused forcausing the death of D-2 and D-3. Having framed two charges, one under Section 302 read with 34 IPC under charge No.12 forcausing the death of three persons (D-1 to D-3), he framedanother charge under two counts for causing the death of the twopersons (D-2 and D-3) against different accused, but convictedA-1 to A-6, A-8 to A-11, A-13, A-14, A-17, A-18 and A-21 withoutgiving any finding whether the said conviction is under chargeNo.12 or charge No.13.

We are at a loss to understand as to why the learnedtrial Judge, having framed a charge under Section 302 read with34 IPC under charge No.12 against the accused mentioned therein, decided to frame another charge under two counts against anotherset of accused under charge No.13 under Section 302 read with 34IPC and had chosen to convict some of the accused withoutindicating whether they are guilty under charge No.12 or chargeNo.13. It is to be remembered that charge No.12 is for themurder of D-1 to D-3 against the accused mentioned thereinwhereas charge No.13 is against the accused mentioned in the https://hcservices.ecourts.gov.in/hcservices/ said charge for the murder of D-2 and D-3 alone, but not for themurder of D-1.

The learned trial Judge under charge No.14 has framed acharge against A-2, A-4 to A-18, A-22, A-23 and A-25 under Section 302 read with 149 IPC on the allegation that they haveshared the common object of the other accused in committing themurder. But he did not mention in the said charge as to whosemurder they have shared the common object of the other accused. Having framed a charge under charge No.14, he framed anothercharge under charge No.15 against A-21 under Section 302 readwith 149 IPC (2 counts) on the allegation that he shared thecommon object of the other accused in murdering D-1 to D-3.Having framed two charges under Section 302 read with 149 IPCagainst one set of accused under charge No.14 and under Section302 read with 149 IPC against A-21 alone (2 counts) under chargeNo.15, the learned trial Judge omitted to give any finding forboth the charges, which means there is an implied acquittal ofthe accused under both the charges.

The learned trial Judge having framed a charge under Section 302 read with 149 IPC (2 counts) under charge No.14,strangely framed another charge under Section 302 read with 149IPC (3 counts) under charge No.16 against A-19, A-20 and A-24 toA-26 for sharing the common object of the other accused inmurdering D-1 to D-3 without specifically mentioning as to whoare the other accused, who murdered D-1, D-2 and D-3 and thathow they shared the common object of the other accused whomurdered them. Having framed such a charge under three countsagainst the accused, mentioned in charge No.16 above, under Section 302 read with 149 IPC, the learned trial Judge haschosen to convict A-19 and A-20 alone under Section 302 readwith 34 IPC.

The learned trial Judge, ultimately, did not glorifyhimself by framing a charge under Section 114 simplicitoragainst A-24 to A-26 without mentioning as to the nature ofabetment made by those accused and whom they have abetted. Having framed such a charge under Section 114 simplicitoragainst A-24 to A-26, he found A-24 alone guilty under Section302 read with 114 IPC, which means the trial Judge, withoutframing a charge alleging that A-24 has abetted the murder andwas also present at the time of the commission of the offence, has chosen to convict him for the said offence.

Charge No.18 was framed against A-2, A-14 and A-21under Section 25 (1-B) (b) read with Section 4 of the Arms Acton the allegation that they have used velkambu, which isprohibited by Government Order No.336 without mentioning thedate of notification and the department which has issued thenotification. After finding them guilty, he sentenced them totwo years rigourous imprisonment, though the prosecution did notmark the said notification. The trial Judge ought to have seenthat though a Government Notification is a public documentfalling within Section 74 of the Evidence Act, the prosecutionought to have marked it, for him to take cognisance of it though https://hcservices.ecourts.gov.in/hcservices/ it is not necessary for the prosecution to examine a witness toprove its contents. The prosecution not having marked thedocument and the trial Judge not having mentioned in the saidcharge as to the nature of notification issued in NotificationNo.336, the accused were certainly prejudiced in their defenceon account of the absence of material in the said charge, asthey were prejudiced in respect of the defence as regards theother charges, which we have mentioned earlier. The failure tomark the Government Notification No.336, in our view is bad inlaw, and our view is also strengthened by a judgment of aDivision Bench of this Court rendered in ADHIMOOLAM & OTHERS VS.STATE (1995 CRLJ 1051).