Rajan v. State

Asst. Solicitor General of India.andMr.G.Masilamani, Advocate General assisted by Mr.K.VijayakumarJ U D G M E N TV. PERIYA KARUPPIAH, J.The reference in R.T.No.3 of 2007 is by the learned PrincipalSessions Judge, Thiruvannamalai seeking confirmation of the deathsentence imposed on A1 in S.C.No.1 of 1993 dated 25.6.2007.2.Crl.A.Nos.607 of 2007, 613 of 2007 and 653 of 2007 arefiled by Accused Nos.5, 4 & 1 in S.C.No.1 of 1993 respectivelychallenging the conviction and sentence passed against them. 3.A criminal miscellaneous petition in M.P.No.2 of 2007 isfiled by A1/Appellant in C.A.No.653 of 2007 seeking permission toraise additional grounds. 4.In the Sessions Case, totally 12 accused were chargesheeted and the case against A2, A3 and A8 was split up inS.C.No.58 of 1997. Similarly, the case against A9 to A11 was splitup even at the preliminary case stage and assigned with P.R.C.No.8of 1989. The case against A7 and A12 stand abated, since they diedduring the pendency of the case before the trial Court. Theremaining accused A1, A4, A5 and A6 were tried by the learnedPrincipal Sessions Judge, Thiruvannamalai in S.C.No.1 of 1993 afterframing charges against A1 under Sections 120-B, 395, 353, 506(ii)and under Section 302 (3 counts) and 307(4 counts) I.P.C. andunder Section 3 r/w 25(1-A) and 27(2)(3) and 28 of the Arms Act;against A4 under Sections 120-B, 419, 450, 395, 353, 506(ii), 302r/w 149 and 307 r/w 149 I.P.C.; against A5 & A6 under Section 120-BI.P.C.5.The trial Court convicted A1, A4, A5 and acquitted A6,after holding a full-fledged trial by examining P.Ws.1 to 52 andadmitted documentary evidence Exs.P.1 to P.81 and material objects1 to 57. The defence side also examined D.Ws.1 & 2. After trial,the learned Sessions Judge, Thiruvannamalai had convicted theaccused as under: https://hcservices.ecourts.gov.in/hcservices/ AccusedConvicted underSectionsSentenceA1395 I.P.C.R.I. for 7 years302 I.P.C. (3 counts)A combined capital sentence ofhanging till death. 307 I.P.C.(4 counts) Life imprisonment on each count.3 r/w 25(1-A) of theArms ActFive years R.I.27(3) of the Arms ActCapital sentence of hanging tilldeathA4andA5395 I.P.C.Seven years R.I. each and to pay afine of Rs.10,000/- each, indefault to undergo one year R.I.each.419 I.P.C.One year R.I. each302 r/w 149 I.P.C.(3 counts)Life imprisonment and to pay afine of Rs.50,000/- each on eachcount, in default to undergo fiveyears R.I. each.Section 307 r/w 149I.P.C. (4 counts)Life imprisonment and to pay a sumof Rs.25,000/- each on each count,in default to undergo three yearsR.I. each.A6 was not found guilty under Section 120-B I.P.C., and wasacquitted.6.The accused were put on trial on the followingallegations:(a)The appellants herein viz., A1, A4, A5 along with nineother accused totalling 12 of them, on 27.7.1998, with an intentionto commit the offence of dacoity, had hatched a criminal conspiracyand in pursuance of the said conspiracy, A5 - Sekar arranged aMaruti Omni Van bearing Regn.No.TSI-4550 from one Srinivasan atChennai and handed over the same to A3 viz., Joseph Sebastian, whotook the van, collected A4-Mohan, A8-Daniel, A12-Moorthi at Chennaiand proceeded to Echanpatti, Salem District, they collected A9-Chinnanathan and A11-Bavan from the house of one Periyasami,proceeded to Malliyakarai, Salem District to the house of A6-Shanmugam and had then went to the house of A7-Ponnusamy atPanchalai Nagar and thereafter, they collected A1-Rajan, A2-Juduand A10-Periyanathan. On 27.7.1988 at around 20.30 hours all theseaccused went to Reddiyarpalam and had earmarked the house of thecomplainant for committing robbery and accordingly, they reached https://hcservices.ecourts.gov.in/hcservices/ the house of the complainant, posed themselves as Income TaxOfficers and looted money by committing robbery to the tune ofRs.21,900/- from the complainant and escaped. (b)In the escaping bid, they proceeded in the Maruti Van toThandrampet and on hearing the message that the accused personswere fleeing from the scene of crime, Thandrampet Police and publichad organised a hurdle on the road by putting benches across theroad and at that time, A1 who had the gun with him had fired at thecrowd and in the said firing three persons viz., Ramasamy, Ravananand Panchalai died of bullet injuries and other four personsJayaraman (P.W.9), Subburayan (P.W.10), Kuppammal (P.W.11) andAnbazhagan (P.W.26) were seriously injured and in the said meleeall the accused escaped in the same Maruthi Van and it was laterabandoned in a nearby place and the accused had escaped from thescene of crime.7.The case as spoken by the prosecution witnesses are asfollows:(a)P.W.1 is the victim in the offence of robbery committedby the accused. On 27.7.1988 at 7.00 p.m. the husband of P.W.1viz., Pitchaikara Gounder (since deceased) returned home from hisRice Mill. Thereafter, both P.W.1 and her husband had their foodand went for sleep after locking the iron gate. At that time,P.W.1 hearing that someone was calling from outside came and wokeup her husband who was sleeping outside the room of P.W.1. WhenPitchaikara Gounder opened the door, a person came saying that heis the Income Tax Officer and asked him to sit in a chair, enquiredhim. One another person stood near the iron gate with a bag, oneperson stood near the room of P.W.1 with a bag and two otherpersons was inside the room. Two other persons searched the houseand took the cash bag brought by Pitchaikara Gounder from the RiceMill and then all of them left the place. Thereafter, P.W.1 and herhusband came out and shouted. P.W.2, brother of P.W.1, enquired oneof the accused inside the Blue Colour Maruti Van as to who arethey. For that he replied that the Income Tax Officers are checkingthe house of Pitchaikara Gounder and he told P.W.2 to ask theperson who stood near the iron gate with a gun. He also replied thesame. When he was talking with that person, five persons came outof the house of Pitchaikara Gounder and among them one of theperson was having a black bag and they boarded the Maruti Van andleft. Thereafter, P.W.1 and her husband came out shouting that theaccused were taking away their money. Immediately, P.W.2 requestedP.W.6 the Messenger of Indian Bank to inform the Police, who inturn informed to Thanipadi Police Station. (b)Prior to the above occurrence, the accused enquired P.W.7at 5.00 p.m. who was on the way to his house as to who is the richman in Reddiyarpalayam, who could donate. For that P.W.5 pointedPitchaikara Gounder. Thereafter, at 8.15 p.m. when P.Ws.3 and 30were talking in the road while proceeding to Aroor, the accused https://hcservices.ecourts.gov.in/hcservices/ asked whether Pitchaikara Gounder was available in the house. Forthat they replied that he had just arrived from the Rice Mill.P.Ws.3 and 30 were talking there for some time. After some time,they came to know that somebody looted the house of PitchaikaraGounder and left in a van. (c)P.W.39-Sub Inspector of Police on receipt of theinformation from P.W.6, alerted the police and made arrangement toblock the road in order to stop the Maruti Van. A Constable (2151)placed his bike across the road to stop the Van. In spite of that,the Van escaped. P.W.39 then directed the Head Constable and PoliceConstable-2151 to chase the Van after handing them over a gun andbullets. He also gave information to Thandarampet Police Stationthat a van was coming towards Thandarampet after looting money atthe house of Pitchaikara Gounder at Reddiarpalayam. Thereafter,P.W.39 came to the scene of occurrence, viz., the house of P.W.1and enquired. At that time, Pitchaikara Gounder preferred acomplaint-Ex.P.1 stating that a sum of Rs.22,000/- was robbed off.P.W.39 on the basis of the complaint, registered a case inCr.No.104 of 1988 for the offence under Section 395 I.P.C and theF.I.R. is Ex.P.47. He sent the complaint and the FIR to the higherofficials and to the Court.(d)In the meantime, P.W.40, Head Constable of ThandaramPolice Station with the help of Grade-I Constable-2874 and thepublic gathered near Palaniappan Juice shop viz.,P.Ws.9,10,11,14,15 and 26 and others blocked the road by puttingbenches and chairs across the road. At that time, the van whichwas coming at a high speed stopped there. When P.W.40 and othersattempted to catch them, a person sitting behind the driver openedfire at the crowd. In that firing, one Ramasamy died on the spot.Ravanan, Panchalai, Anbazhagan (P.W.26), Jayaraman (P.W.9),Subbarayan (P.W.10) and Kuppammal (P.W.11) also sustained bulletinjuries. Among them Ravanan died on way to the hospital andPanchalai was initially taken to Thiruvannamalai GovernmentHospital and there she was treated by P.W.34. There, P.W.47recorded dying declaration-Ex.P.68 from Panchalai. Later she wastaken to Vellore Government Hospital for further treatment, whereonce again, P.W.48 recorded the dying declaration of Panchalai andthe same is marked as Ex.P.69.(e)Dr. Sundari, P.W.34 attended on P.W.26, P.W.9, P.W.10 andP.W.11 and issued wound certificates Exs.P.31, 33, 32 & 34respectively. The bullet injuries sustained by the injured personsare mentioned in their respective wound certificates. She referredP.W.26 and P.W.9 to Stanley Hospital, Chennai. P.W.45 recovered theblood stained shirt-M.O.11 from P.W.26 under Form 95-Ex.P.12. (f)P.W.40 posting some constables at the scene of occurrencecame to Thandarampet Police Station and gave his Special Report –Ex.P.48 to the S.I. of Police (P.W.41), who in turn registered acase in Cr.No.131 of 1988 for the offence under Section 302 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ The F.I.R. is marked as Ex.P.49. Thereafter, P.W.41 gave intimationto Sankarapuram Police Station through VHF that some accused arecoming in a blue colour Maruti Van No.TSI 4550 after committingrobbery. On receipt of the information P.W.44 started checking thevehicles coming towards Thiruvannamalai by halting a tractor acrossthe road. Then the Van bearing Regn.No.4550 came and stopped 100ft. away and immediately it took backwards. On seeing that the saidVan bore the number TSI-4550, P.W.44 Inspector and the S.I. chasedthe van. But they did not catch it. Thereafter, P.W.45, CircleInspector of Thiruvannamalai, on intimation, went to Vanapuram. Thepeople available there also confirmed that the said Van was goingtowards Vanapuram. So P.W.45 went upto Ilayankanni along with partywith rifles, but they could not find the van. Therefore, P.W.45returned to Thanipadi Police Station and took up the case inCr.No.104 of 1988 for investigation, went to the house of P.W.1 atReddiyarpalayam, prepared observation mahazar-2, rough sketches-Exs.P.50 & 51 in the presence of P.W.3 and P.W.30. He examined thewitnesses viz., P.Ws.1 to 3,5,6,7 & 30 and others and recordedtheir statements.(g)At 1.00 a.m. on 28.7.1988, P.W.45 went to the place offiring at Thandarampet - Thanipadi Junction Road, held inquest overthe body of Ramasamy. The inquest report of Ramasamy is Ex.P.52. Herecovered blood stained earth-M.O.3, sample earth-M.O.4, emptybullet catridge – M.O.5 in the presence of P.W.11 and onePachaiappan under the cover of mahazar Ex.P.8. In the presence ofsame witnesses, he prepared observation mahazar-Ex.P7 and roughsketches Exs.P.53 and 54. He sent the body of Ramasamy forpostmortem along with requisition Ex.P.37 through P.W.43.(h)On receipt of the requisition, P.W.35 Dr. Govindarajuluconducted autopsy on 27.7.1988 at 10.40 p.m. and the postmortemcertificate of Ramasamy was marked as Ex.P.38, in which theinjuries sustained by the deceased Ramasamy and cause of death wereincorporated. P.W.43 handed over the personal apparels (M.Os.18 and19) of the deceased Ramasamy, after the postmortem, to P.W.45. (i)On 28.7.1988 at 4.15 a.m. P.W.45 went to Ilayankanni,where the Van involved in the case was stationed. He preparedobservation mahazar-Ex.P.3 and recovered driving licence of A3-M.O.5 and the road tax receipt-M.O.6 paid for the said vehicle inthe presence of P.W.4 and Mariappan under the Mahazar Ex.P.4. At4.45 a.m., he recovered empty bullet – M.O.12 shot at the tyre tostop the Maruti Van under Ex.P.55. He examined P.W.4 and otherwitnesses and recorded their statements. (j)On the same day at 6.00 a.m., P.W.45 went toThiruvannamalai Government Hospital and held inquest over the bodyof Ravanan in the presence of panchayatars and witnesses. Theinquest report of Ravanan is marked as Ex.P.56. He examined thewitnesses and recorded their statements then and there. He gaverequisition – Ex.P.39 to conduct postmortem on the body of Ravanan https://hcservices.ecourts.gov.in/hcservices/ through P.W.42 and accordingly, P.W.35, Dr. Govindarajulu conductedpostmortem on the body of Ravanan and issued postmortem certificateEx.P.40, in which the bullet injuries sustained by the deceasedRavanan and the cause of death are incorporated. The personalapparels (M.Os.16 and 17) of the deceased Ravanan produced byP.W.42 after the post mortem were recovered by P.W.45 under Form 95(Ex.P.59).(k)P.W.45 examined the injured witnesses and recorded theirstatements. On 29.7.1988, he examined P.W.44 and other officialwitnesses and recorded their statements. On 30.7.1988 on receipt ofinformation at 8.00 a.m. that the injured Panchalai died in theVellore Government Hospital, he went there and held inquest overthe body of Panchalai in the presence of panchayatars and witnessesand the inquest report is Ex.P.57. He gave requisition Ex.P.41 toconduct postmortem on the body of Panchalai and accordingly,Dr.Kalaiselvi, P.W.36 conducted autopsy on the body of the deceasedPanchalai and issued Ex.P.42, in which the bullet injuriessustained by the deceased Panchalai and the cause of death arementioned. (l)P.W.45 examined P.W.21 and other witnesses. He also recoveredM.Os.6 to 8 viz., blood stained dresses of P.W.10 produced by hiswife, P.W.19 under Ex.P9; M.O.9-dhoti of P.W.9 produced by P.W.20under Ex.P.10 and M.O.10-saree of P.W.11 produced by P.W.29 underEx.P.11. He recovered the pellets (M.Os.13 to 15) removed from theinjured witnesses as produced by the doctor under Form 95- Ex.P.58.Thereafter, he sent all the recovered objects to Court and gaverequisition Exs.P.20 to 22 to send the same for chemicalexamination, which was carried out by the Judicial Magistrate,Chengam under Exs.P.23 to 25. The reports received from P.W.33 aremarked as Exs.P.28 to P.30. P.W.43 also produced the dresses of thedeceased Ravanan, which were recovered by P.W.45 under Form 95-Ex.P.60. On 30.7.1988, he recovered the dresses (M.Os.29 and 21) ofthe deceased Panchalai under Ex.P.61. Thereafter, P.W.45 handedover the files to P.W.46, the Inspector of Police, Thiruvannamalai.(m)On 3.8.1988, P.W.46 took up the case for furtherinvestigation. He arrested A3 in a bus stand in the presence ofP.W.25 and one Manimaran. At that time, A3 gave a confessionstatement and also produced Rs.150/-, the remaining amount from hisshare of looted money. The said money-M.O.22 is recovered underEx.P.62. Form 95 prepared to send the recovered money-M.O.22 toCourt is Ex.P.63. He examined the doctors and recorded theirstatements. On 4.8.1988, he examined Srinivasan P.W.22, the ownerof the vehicle and recorded his statement. On 5.8.1988, he arrestedA4 to A6 at Anusuya Mandapam near Saidapet Bridge. They gave theirvoluntary confession statements, which were recorded by P.W.46separately in the presence of P.W.31 and one Balakrishnan. Theadmissible portion of the confession statement of A4 is marked asEx.P.66. Pursuant to the said statement, A4 took P.W.46 to P.W.23'shouse and from him, he handed over his share of looted money https://hcservices.ecourts.gov.in/hcservices/ Rs.5000/- (M.O.23) and the same was recovered under Ex.P.65. Heexamined P.W.23 and other witnesses and recorded their statements.Then he took the arrested accused to A10's house at Echampatti.There he prepared observation mahazar Ex.P.67 and searched thehouse and recovered nine letters-Ex.P.70 series, a red colour book-Ex.P.71, an identity card showing A.10 as a Srilankan Refugee, aRexin bag-M.O.4, a cloth bag-M.O.25, shirt-M.O.26 and a dairy ofthe year 1988-M.O.27, an identity card of Tamil Elam LiberationFront given to one Kumar-M.O.28, half-sleeve shirt-M.O.29, pant-M.O.30 under Ex.P.73. Then he handed over the material objects tothe Judicial Magistrate, Chengam. On 5.8.1988, he searched thehouse of A6 at Malliakarai, Salem and recovered a rope used forcleaning the gun with metal balls-M.O.31, Indian Passport-M.O.32,white shirt-M.O.33, Airbag – M.O.34 and Identity card of oneP.Jagan, N. Shankar and Anandan given by Tamil Eelam LiberationFront (M.Os.35 to 37), black shirt-M.O.38 and an underwear and bedsheet – Ex.P.39 series in the presence of P.W.31 and Balakrishnanunder Ex.P.75. He then produced A10 and A4 and the recoveredmaterial objects before the Court and also examined P.W.31,Balakrishnan and other witnesses and recorded their statements. On7.8.1988, he examined some of the witnesses at Echampatti andrecorded their statements. On 8.8.1988, he examined P.W.24 andother witnesses and recorded their statements at Athur. He gaverequisition-Ex.P.43 to the Judicial Magistrate, Vellore to conductidentification parade of A3 & A4. (n)Accordingly on 17.8.1988 at 3.00 p.m. P.W.37 conductedidentification parade of A3 and A4. The proceedings of theidentification parade is marked as Ex.P.44. On 10.8.1988, oninformation, he took P.Ws.27 and 28 to arrest A1 & A2 to Salem. Hearrested A1 and A2 who were standing in front of Sundar Lodge inthe presence of the above witnesses at 10.30 a.m. At that time boththe accused gave their confessional statements, which were recordedby P.W.46. The admissible portion of the confession statement of A1is Ex.P.76, pursuant to which, he produced a sum of Rs.170/-,(M.O.40 series) the remaining amount from his share of the lootedamount, which was recovered under Ex.P.13. A1 had then taken P.W.46and witnesses to Palaniappa Nagar where he was residing andproduced Rs.1,465/- (M.O.41 series) which he had concealed and thesame was recovered under Ex.P.14. Then at 2.00 p.m., P.W.46searched the house of the accused and recovered the empty catridge(M.O.42) concealed under a wooden box. The search list is Ex.P.77.On information at 4.00 p.m., he came to Arur and arrested A7 whowas standing in front of passengers waiting hall in the presence ofP.Ws.27 and 28. A7 also gave his confession statement and theadmissible portion of which is marked as Ex.P.78. Pursuant to thesaid statement, he took P.W.46 and the witnesses to Panjali Nagar,where he produced an empty catridge-M.O.43 concealed under ahaystack and some letters viz., Exs.P.16 to 19, which wererecovered under Mahazar Ex.15. P.W.46 searched the house of A7 from6.00 p.m. to 7 p.m. in the presence of the witnesses and recovereda pair of canvas shoes of Chinnanathan (M.O.44) and the Rexin shoes https://hcservices.ecourts.gov.in/hcservices/ of A2 (M.O.45), Brown Colour Rexin Bag (M.O.47), a pant ofChinnanathan (M.O.47), Dark Blue Pant (M.O.48), white half-sleevesshirt (M.O.49), light blue shirt (M.O.50), checked Nylon shirt(M.O.51), Full-sleeve shirt (M.O.52), Sandal colour Nylon shirt(M.O.53), a wood (M.O.54), weight lifts six Nos. (M.O.55 series)and 2 Nos. weight lights with cements balls (56 series). The searchlist is Ex.P.79. Thereafter, P.W.46 examined some of the witnessesand recorded their statements. At 10.00 p.m. on the same day,P.W.46 brought the accused and the recovered properties toThandaram Police Station. From 13.8.1988 to 16.8.1988, he examinedsome of the witnesses and recorded their statements. Then he gaverequisition to conduct identification parade of A1 and A2 to theJudicial Magistrate, Vellore. Accordingly, P.W.37 conductedidentification parade at 3.00 p.m. on 25.8.1988 and the proceedingsare marked as Ex.P.46.(o)On 26.8.1988 also he examined some of the witnesses viz.,the complainant, P.Ws.1 to 3, 30 and other witnesses and recordedtheir statements. On 19.10.1988 P.W.46 remanded A8, who wasarrested by the Deputy Superintendent of Police (P.W.49). Theconfession statement of A8 was recorded by P.W.49 in the presenceof P.W.30 and one Ponnusamy. The admissible portion of theconfession statement is Ex.P.80. Pursuant to the said statement, A8took P.W.49 and the witnesses to the house of P.W.12, from whom herecovered 2 Nos. Rs.50/- currency notes (M.O.57) under MahazarEx.P.81. P.W.49 examined the mahazar witnesses and recorded theirstatements. P.W.46 gave requisition to take A8 under police custodyfor enquiry and he was granted a day i.e. on 22.10.1988 for enquiryof A8 and accordingly, P.W.46 took A8 to his house atRamanayakkanpatti and searched his house in the presence of oneBalan and Thangavel. But he did not recover anything. On the sameday, he produced A8 before the Judicial Magistrate, Chengam. Heexamined the witnesses and recorded their statements. On 7.2.1989he sought permission from the Collector to register the case underthe Arms Act. Since P.W.46 was transferred, he handed over thefiles to P.W.49. (p)On 13.4.1989, P.W.50 Inspector of Police perused thefiles and filed final report against A1 to A12 for the offencesunder Sections 419, 457, 392, 394, 396, 397 r/w 392, 302 (3counts), 307 (4 counts), 353 of I.P.C. and Sections 3, 25(1)(A), 27(2) & (3) of the Arms Act. 8.When the accused were questioned under Section 313Cr.P.C. with regard to the incriminating materials available inevidence, they denied the same as false.9. Heard Mr.V. Gopinath, learned senior counsel appearing forA1, Mr. R. Sankarasubbu, learned counsel appearing for A4, Mr. G.Pugazhendi, learned counsel appearing for A5 and the learnedAdditional Public Prosecutor, Mr. P. Kumaresan. https://hcservices.ecourts.gov.in/hcservices/

10.The learned Senior Counsel Mr. V. Gopinath appearing forA1, who was punished with death sentence by the learned PrincipalSessions Judge, Thiruvannamali, who made reference to this Court,would submit in his argument that the first incident was at 8.30p.m. on 27.7.1988 relating to the robbery at the house ofPitchaikara Gounder, the husband of P.W.1 and thereafter, thesecond incident was at 9.00 p.m. on the same day in which the deathof Ramasamy, Ravanan and Panchalai had occurred and seriousinjuries had been caused to four witnesses viz., Anbazhagan,Jayaraman, Subbarayan and Kuppammal. The complaint was given byPitchaikara Gounder at 9.30 p.m. in respect of the first incidentto the S.I. of Police (P.W.39) of Thanipadi Police Station and onthat day itself a case was registered in Cr.No.104 of 1988 underSection 395 I.P.C. and the printed F.I.R. is Ex.P.47. He wouldfurther submit in his argument that the prosecution witnesses, whospoke about the first incident viz., Robbery are P.Ws.1,2,3,7 & 30and the evidence so produced are contradictory in nature. Further,P.W.1 did not implicate A1. However, she had spoken about A4 & A5and though P.W.2 identified A1 and A4, he had wrongly identifiedM.O.2-weapon available with P.W.38 as that of belonging to A1.P.W.3 who is said to have identified A1 and A4 is related to thecomplainant Pitchaikara Gounder. Even though the evidence of P.W.7shows that he saw A1 and talked with him already, when he came toReddiyarpalayam for collecting donation and enquired aboutPitchaikara Gounder, yet he did not identify A1 in the Court, inspite of his identification of A1 in T.I.parade. He would furthersubmit in his argument that the witnesses examined by theprosecution in respect of the 1st incident had identified theaccused before the Magistrate because they had seen the news papersin which the photographs and news items were published andtherefore, the identification of A1, A4 and A5 made by theprosecution witnesses before T.I.parade cannot be relied upon. 11.In respect of the 2nd incident, in which the murder ofthree persons and serious injuries for four persons were caused dueto bullet injuries, the learned senior counsel appearing for A1would submit that the witnesses examined on the side of theprosecution viz., the injured witnesses - P.Ws.9 to 11 and P.W.26,do not implicate any of the accused and P.W.8 who was present atthe time of occurrence does not also implicate any of the accusedin the second incident. The evidence of P.W.8 would at best go toshow that the persons inside the van had indiscriminately shot atthe crowd as a result of which he also sustained injuries.Similarly, he would submit that the evidence of P.W.13 does notimplicate any of the accused in the said commission of murders.Despite P.W.14 identified A1 as the person, who was in possessionof the machine gun inside the van, he could not provideidentification marks of A1 and the evidence of P.W.15 is also tothe effect that A1 was also one of the persons inside the van andfire was opened from the Van aiming at the crowd. He does not saythat A1 was in possession of the rifle at that time. He wouldfurther submit in his argument that there is no other evidence to https://hcservices.ecourts.gov.in/hcservices/ show the presence of the accused in the place of occurrence and theevidence produced by the prosecution as to the involvement of theaccused in both the incidents are not sufficient and A1 isconvicted only on the bleak evidence, which is against law andcannot be sustained.12. Mr.V.Gopinath, learned Senior Counsel appearing for theappellant/A1 has further submitted that the appellant has filed apetition in M.P.No.2 of 2007 seeking permission to raise additionalgrounds in the appeal. According to the learned Senior Counsel,the death sentence has also been imposed on the appellant for theoffence under Section 27 (3) of the Arms Act. By that Section, whoever uses any prohibited arms or prohibited amunition or does anyAct in contravention of Section and such use or act results in thedeath of any other person, shall be punishable with death.13. The learned Senior Counsel would further submit that thedescription of the death sentence, without there being anyalternative sentences for the Court to consider and imposedepending upon the circumstances of each case would beunconstitutional. Hence, the learned Senior Counsel would submitin the wake of the challenge to the provision of Section 27 (3) ofthe Arms Act should be declared as unconstitutional. In support ofthe said submision, the learned Senior Counsel would rely upon thejudgment of the Supreme Court reported in 1983 (2) SCC 277 MuthuVs. State of Punjab, etc. wherein the Constitution Bench of theApex Court had declared Section 303 of I.P.C. is unconstitutionalbeing violative of Articles 14 and 21 of the Constituion of India.14. The learned counsel for the appellant in Crl.A.No.613 of2007 (A4) Mr. R. Sankarasubbu would submit in his argument that theprosecution witnesses viz., P.Ws.1 to 3 are strangers to A4 and inthe test identification parade attended by P.Ws.1 & 3, A4 was shownand the test identification parade is a farce and unacceptableone. The identity of A4 was shown to the witnesses in the policestation and A4 also objected the same when he was in the policecustody and therefore, the identification of A4 by the witnessescannot be relied upon. It is further argued by the learned counselthat the serious doubts clouded against the fairness of testidentification parade have not been cleared by the prosecution andtherefore the legality of the identification parade is underquestion and it vitiates the prosecution case. The identificationof A4 during the trial without any corroboration is not sufficientto fasten criminal liability on A4. Mere presence of A4 with othersin an unlawful assembly cannot render the said person liable and itcould be possible when common intention of unlawful assembly isperformed and therefore, there is no question of implicating A4 forthe commission of offence under Section 149 I.P.C. The inaction ofa person in an unlawful assembly cannot warrant convicting of aperson who was docile at the time of unlawful assembly and itcannot be proved with the alleged crime nor could be convicted withthe help of 149 I.P.C. He had further submitted in his argument https://hcservices.ecourts.gov.in/hcservices/ that A4 was working as a Draftsman in a reputed company and wasdrawing a salary of more than Rs.10,000/- per month and therefore,no criminal intention would have been hatched in the mind of A4 tocommit such an offence.15.The learned counsel appearing for A5 Mr. G. Pugazhendiwould submit in his argument that A5 was convicted under Section395, 419, 302 r/w 149 I.P.C. (3 counts), 307 r/w 149 (4 counts) andwas acquitted from Sections 120-B, 450, 353 and 506(ii) I.P.C.despite the charge framed against A5 was only under Section 120-BI.P.C. and even the trial Court had acquitted A5 from the chargeframed under Section 120-B I.P.C. and therefore, conviction couldnot be imposed upon him under any other Sections, since there wasno charge framed against A5. He would further submit in hisargument that the presence of A5 was not spoken in either of theoccurrence and therefore, the conviction passed against him underSection 149 I.P.C. is illegal. He would further submit in hisargument that P.W.1 had not identified A5 in the testidentification parade and no T.I. Parade was conducted with A5. Buthowever, P.W.1 had identified A5 as a participator in the firstoccurrence to which A5 was not already known to P.W.1 andtherefore, her identification before Court cannot be sustained.Apart from the evidence of P.W.1, there is no other evidenceproduced by the prosecution against A5 and therefore, theconviction passed against A5 is not sustainable in law.16.The learned Additional Public Prosecutor, Mr. P.Kumaresanappearing on behalf of the State would submit in his argument that,that the first incident was in respect of looting the house ofPitchaikara Gounder with an active conspiracy hatched in betweenthe accused and the 2nd occurrence was in respect of the shootingincident which took place subsequent to the 1st incident on the wayof fleeing from the 1st incident in which three persons died andfour persons were seriously injured on the shooting out with themachine gun at the crowd by A1. He would further submit in hisargument that three accused viz., A1, A4 and A5 were clearlyidentified by the prosecution witnesses viz., P.Ws.1 to 3 and 7 andtheir evidence corroborated the circumstantial and documentaryevidence. Undoubtedly, P.W.1 identified A4 and A5. P.W.2 who wasstanding nearby the house of Pitchaikara Gounder identified A1 andA4 and said that A1 was present with the said gun. P.W.3 identifiedA1 and A4 out of whom A1 was present with the gun and P.W.7 hadidentified A1 at the first scene of occurrence. He would furthersubmit in his argument that the commission of looting by posingthemselves as Income Tax Officers and by threatening the inmatesof the house with dire consequences thereby relieving off thecomplainant Pitchaikara Gounder with Rs.21,900/- would certainlyincriminate the accused A1, A4 and A5 in the first incident andtherefore, it is not correct to say that the accused could not haveparticipated in the first occurrence of looting the house ofPitchaikara Gounder. Therefore, A1, A4 and A5 are proved to beguilty of committing dacoity at the house of Pitchaikara Gounder. https://hcservices.ecourts.gov.in/hcservices/ He would further submit in his argument that the informationregarding the first incident was given to the police by P.W.6. onseeing that the looters viz., A1, A4, A5 along with other accusedfleeing away from the scene of occurrence and immediately,Thanipadi Police with the help of the public had put benches ashurdles in the road so as to prevent the accused from escaping inthe Maruthi Blue Colour Omni Van. But the 1st accused who was withgun inside the Van had indiscriminately shot at public assembledthere for preventing them from fleeing away and in the said attackmade by A1, three persons viz., Ramasamy, Ravanan and Panchalaidied and four persons viz., Anbazhagan, Jayaraman, Subbarayan andKuppamal were seriously injured with the bullets. The said secondincident was spoken to by P.Ws.14 and 15 and they have identifiedA1 as the person who indiscriminately shot at the public with themachine gun. P.Ws.8 and 40 had spoken about the occurrence ingeneral and the injured witnesses viz., P.Ws.9,10,11 and 26 hadspoken to the effect of sustaining injuries. Apart from that thedying declaration given by Panchalai Ammal in Exs.P.68 and 69 andthe medical evidence would go to show that she sustained bulletinjuries above her right hip with the blast shot from the Van. Hewould further submit that all these witnesses would go a long wayto show that the 2nd occurrence had taken place at the place ofoccurrence where Thandrampet Police organised for the apprehensionof the accused by putting hurdle in the road in which A1 had shotat the public with machine gun with him and the bullet injuries hadmade three persons dead and four persons seriously injured. Hewould also submit in his argument that the pellets available at thescene of occurrence and the bullets taken from the bodies of thedeceased persons and the injured persons were identical with thebullets seized from the house of A1 and therefore, the said reportof the Forensic Department as spoken by P.W.33 would certainly ropeA1 with the heinous crime of committing three murders. He wouldalso further submit that the medical evidence adduced by thedoctor-P.W.34 in respect of the examination of injured persons andthe issuance of AR Copies and the postmortem doctors viz., P.Ws.35and 36 who did autopsy of the deceased persons would alsocorroborate the overt acts of A1 against the deceased persons andthe injured witnesses viz., P.Ws.9,10,11 & 26. 17. He would further submit in his argument that the combinedcrime of dacoity at Pitchaikara Gounder's house and the shootingwith gun at innocent persons and killing of three persons areserious crimes, which would certainly affect the social set up andback ground of the society and therefore, the learned PrincipalSessions Judge of Thiruvannamalai had awarded the death sentenceunder Section 302 I.P.C. to A1 as a rarest of rare case and alsoawarded death sentence under Section 27(3) of the Arms Act andsentenced A4 and A5 appropriately and therefore, he prays for theconfirmation of conviction and sentence passed against A1, A4, A5and prayed for the dismissal of the appeals. https://hcservices.ecourts.gov.in/hcservices/

18. Insofar as the petition to raise additional grounds,Mr.V.T.Gopalan, learned Additional Solicitor General would submitthat in the absence of any challenge taken before the trial court,the appellant/A-1 cannot be permitted to raise the same before thiscourt in the appeal. Further, the petitioner has filed a petitiononly to raise additional grounds and in that petition theconstitutional validity of Section 27(3) of the Arms Act cannot begone into. In any case, the ratio decided in Mithu's case cannotbe made applicable to the provisions of Section 27 (3) of the ArmsAct, as the imposition of the mandatory capital punishment isprovided under the said section , keeping in mind the growingterrorism/terrorist activities by using unauthorised arms andamunitions. Hence, the learned Additional Solicitor General wouldsubmit that the challenge to the provisions of Section 27 (3) ofthe Arms Act must be rejected.19. Mr.G.Masilamani, learned Advocate General would submitthat the appellant/A-1 has not raised this objection before thetrial court. That apart, the appellant is not entitled to questionthe constitutional validity of the provisions of Section 27(3) ofthe Arms Act, by invoking the provisions under Article 226 of theConstitution of India and such a power cannot be exercised by theHigh Court while sitting as Appellate Court to judge the legalityof the conviction and sentence imposed by the trial court on theappellant. Even on merits, the learned Advocate General wouldsubmit that contrary to the provisions of Section 303 of I.P.C.relating to a murder committed by a life convict while servingsentence, mens rea shall be read into the provisions of Sec.27(3) of the Arms Act and even in the absence of any mens rea and bymere fact that a person who uses any prohibited arms and prohibitedammunition or does any act contrary to the Section 7 and such useor act results in death of any other person, shall be punishablewith death. 20.We have given our anxious thought and consideration tothe arguments advanced by either side and perused the oral anddocumentary evidence carefully.21.The case of the prosecution is that the accused 1 to 8and four other persons have indulged in the offence of dacoity atthe house of Pitchaikara Gounder, husband of P.W.1 and from theplace of occurrence viz., Pitchaikara Gounder's house, they havedecamped with the money of Rs.21,900/- in a Blue Maruti Omni VanTSI-4550 and on the way they were intercepted by the police puttinghurdles in the road near Thandrampet Police Station and the 1staccused who had the machine gun at his hand in order to escape fromthe place opened fire indiscriminately and had caused death tothree persons and seriously injured four persons and in the meleethey escaped from the second scene of occurrence also. It isfurther stated that conspiracy was hatched between the accused forthe commission of such dacoity and the same was executed by them.Among the said 12 accused, accused 9 to 12 were absconding and https://hcservices.ecourts.gov.in/hcservices/ therefore, the proceedings are pending still at the stage ofcommittal. Among the remaining accused 1 to 8, A7 died and the caseagainst A2, A3, A8 were split up and a separate number was assignedin S.C.No.58 of 1997 and is pending before the Sessions Court. Thepresent case in S.C.No.1 of 1993 was tried against A1, A4, A5 andA6, in which the learned Sessions Judge had examined P.Ws.1 to 52and had admitted Exs.P.1 to P.81 and M.Os.1 to 57 and examinedD.Ws.1 & 2 on the side of the defence and had acquitted A6 andconvicted A1, A4 & A5 and imposed sentence as stated supra.22.The first incident viz., the dacoity at PitchaikaraGounder's house on 27.7.1988 was spoken to by P.W.1, the wife ofthe complainant Pitchaikara Gounder. The said Pitchaikara Gounderdied in the meantime and therefore, he could not be examined. Thecomplaint given by him was produced by P.W.1. In support of herevidence, P.W.2, P.W.3, P.W.7 were examined. The evidence of thesaid prosecution witnesses would show that on 27.7.1988, fivepersons had come to the house of Pitchaikara Gounder and one amongthem was standing in the gate and one of the persons who knocked atthe door said that they were Income Tax Officers and he had taken achair and put it before him and directed Pitchaikara Gounder to sitand was enquiring him about his family and was asking for the keyand two of them had made P.W.1 to stand leaning over the wallsearched inside the house and taken the money brought by P.W.1 fromhis Rice Mill, which was hanged in a stand and immediately all ofthe accused left the house and went away in a Blue Maruti Omni Van.At that time, P.W.3 one Sulaiman and Govindaraj came. The officerat the bank had immediately informed about the incident toThanipadi Police Station. These witnesses had spoken about theoccurrence which took place on 27.7.1988 at 8.30 p.m. at the houseof Pitchaikara Gounder. In the complaint Ex.P.1, the complainantPitchaikara Gounder had mentioned that a sum of Rs.21,900/- waskept by him and the same was taken away by the said neighbours, whovisited his house. The evidence of P.Ws.2, 3 and 7 would go a longway to show that those persons who came to the house of PitchaikaraGounder and decamped with Rs.21,900/- had come in a blue MarutiOmni Van TSI 4550 and they have also gone away in the same van.23. Now we have to see whether the appellants herein viz., A1,A4, A5 along with other accused had indulged in committing robberyat the house of Pitchaikara Gounder on 27.7.1988 by 8.30 p.m. bystealing away Rs.21,900/- from the said house and while they werereturning in the Blue Omni Van whether they had killed threepersons and caused serious injuries to four persons by firing withthe machine gun in their hands when they were intercepted nearThandaram Police Station and thereby they are guilty of the saidcharges framed against them. 24.So far as the 1st occurrence is concerned, the involvementof the accused were spoken by P.Ws.1 to 3 and 7. The testidentification parade was organised and P.W.37, the JudicialMagistrate had conducted the same on two occasions. In the test https://hcservices.ecourts.gov.in/hcservices/ identification parades conducted by P.W.37 on 17.8.1988, A3 and A4were shown to 10 witnesses mixed with 14 other persons with similarphysical appearance and the said 10 witnesses had almost identifiedA3 and A4 without any hesitation. Thereafter, on 25.8.1988 anotheridentification parade was conducted in the Central Prison, Vellorein respect of A1 and A2 and 10 witnesses were brought foridentifying them. The test identification parade was conducted byP.W.37 by mixing 14 other similarly physically appearing person andthe witnesses had identified A1 and A2. The said testidentification parade reports were produced as Exs.P.44 and 46. Therequisitions for conducting such test identification parades werealso produced as Exs.P.43 and P.45 respectively. In the first testidentification parade, P.W.1, P.W.2 & P.W.3 had participated theyhave identified A3 and A4. In the 2nd identification parade also,P.Ws.1 to P.W.3 participated and they identified A1 and A2.25.It is argued that the identification of A1 to A4 in thesaid two identification parades by the witnesses could at best be apiece of evidence and cannot be conclusively decided on the basisof the identification of the accused in the test identificationparade. It is also argued that the identification was done by thewitnesses after seeing the photographs and tutoring of the policebefore going to identification parade and the photographs were alsopublished in the news papers which were admitted by the witnessesin the cross examination and therefore, the said identification ofthe accused A1 to A4 in the two test identification parades held byP.W.37 cannot even be taken as a piece of evidence. They wouldcite an authority reported in (1970 SCC (Crl.) 343 Budhsen and Anr.v. State of U.P.) to the effect that the conviction cannot be basedsolely upon the identification of witnesses by test identificationparade since the identification of the accused in the testidentification parade is only a piece of evidence. However, in ourview, the judgment of the Apex Court reported in 1998 SCC (Crl.)1276 (Shaikh Umer Ahmed Shaik v. State of Maharashtra) to theeffect that if the suspects were already shown to the witnessesbefore T.I. Parade, their identification in Court becomesvalueless. The relevant passage runs as follows:"No doubt, the evidence of identification paradeis not a substantive evidence, but its utility isfor purposes of corroboration. In other words, itis utilised for corroboration of the sworntestimony of witnesses in court as to the identityof the accused who are strangers to them. The realand substantive evidence of the identity of theaccused comes when witnesses give statement in thecourt, identifying the accused." 26.On a careful perusal of the judgment of the Apex Court,we could see that though the identification of the accused in testidentification parade is not a substantial piece of evidence, butit could be accepted when the witness speaks about theidentification in Court as well and supported by other https://hcservices.ecourts.gov.in/hcservices/ incriminating materials. So far as this case is concerned, P.Ws.1to 3 had spoken about the identification of A1 to A5 in theirevidence also. On a careful perusal of their evidence, they didnot admit that they have seen the photographs of the accused priorto the test identification parade either shown by police or fromthe news papers and identified the accused. A mere admission ofP.W.2 to the effect that the news have come in papers before 10days and the facts have also come in the papers will not in any waymean that he had seen the photographs of the accused and gothimself refreshing his memory. No specific questions had been putto P.W.2 by the defence that he had seen the photographs publishedin the paper and refreshed his memory as to the identity of theaccused and thereafter, he identified the accused in theidentification parade. Therefore, the evidence of P.Ws.1, 2 & 3corroborated the identification of the accused 1 to 5 in the twotest identification parades held by P.W.37. Therefore, A1 to A5 hadparticipated in the first occurrence along with three other personsand had decamped with the money they robbed of from PitchaikaraGounder to the tune of Rs.21,900/-.27. As per the prosecution case, the 2nd occurrence had takenplace at about 8.50 p.m. on the same day when the accused personsfleeing away from Pitchaikara Gounder's house were intercepted inthe road near Thandaram Police station by putting benches in theroad and had also arranged for stopping the fleeing accused inorder to apprehend them. When the accused were about to cross thesaid hurdles placed by the police with the help of public, theyhave conceived the trap and immediately one of the accused in theMaruti Van opened fire in the meantime from the machine gun he hadin his hands and in the said incident totally seven personssustained injuries and out of them three persons died and fourpersons were treated for the serious injuries sustained by them inthe hospital. The accused had also escaped from the said secondscene of occurrence also and vanished after leaving the Maruti Vanin an unknown place. 28. The prosecution has examined P.W.38, P.W.40 and theinjured witnesses P.W.9 to 11, P.W.26 and the relatives of thedeceased persons P.W.17, P.W.21 and the relatives of the injuredpersons viz., P.W.19 and P.W.20. Among them P.W.38 and P.W.40 arethe police men who had organised the hurdles and attempted tointercept the accused even in front of the Police Station atThanipadi. The evidence of the injured witnesses and P.W.8 wouldgo a long way to show that the 2nd occurrence had happened at theroad near Thandarampet Police Station in which the accused hadfired from the Blue Maruti Omni Van produced as M.O.1 and theMachine Gun through which the witnesses P.Ws.9 to 11 and P.W.26sustained bullet injuries and one Ramasamy, Ravanan and Panchalaihad also sustained serious injuries and the said Ramasamy died onthe spot and Ravanan died on the way to hospital and Panchalai wasalive for 10 days and thereafter she succumbed to the injuriessustained by her. The injured witnesses were given treatment by https://hcservices.ecourts.gov.in/hcservices/ the doctors P.W.34 and wound certificate for the said witnesseswere also given by her. The evidence of P.W.34 and the woundcertificates – Exs.P.31 to 34 of the injured witnesses and thepostmortem certificates Exs.P.38, 40 & 42 of the deceased personsviz., Ramasamy, Ravanan, Panchalai would show that they were firedwith machine gun. The evidence of P.W.8 and the injured witnesseswould go a long way to show that the firing from the Maruti OmniVan by one of the accused was the cause for the injuries for theinjured persons and the deceased persons. The prosecution hadcollected pellets from the scene of occurrence through observationmahazar in the presence of P.W.16. The said van which was abandonedin an unknown place was also seized by Thandrampet Police in thepresence of P.W.12. The said van is produced as M.O.1. Theseriously injured person Panchalai had given dying declaration toP.W.47, the Judicial Magistrate at 9.00 a.m. on 28.7.1988 and thesaid dying declaration was produced as Ex.P.68. However, yetanother dying declaration was recorded by yet another MagistrateP.W.48 on 28.7.1988 at about 3.50 p.m. and recorded the dyingdeclaration which was produced as Ex.P.69. In both the dyingdeclarations, we could see that the said Panchalai was injured bybullet came from the firing from the van. Therefore, we could seethat the injuries caused to the witnesses P.Ws.9 to 11 & 26 and tothe deceased persons have been caused by the bullets fired frommachine gun from the van M.O.1 by one of the accused. The body ofRamasamy was subjected to autopsy by doctor P.W.35. P.W.36 had donethe autopsy on the body of Ravanan and Panchalai. The postmortemcertificates are produced as Exs.P.40 and 42. On a careful perusalof the evidence of P.Ws.35 and 36 and the postmortem certificates,we could see that the death of the deceased persons would have beencaused by the bullet injuries received by them.29. The F.I.R. has been registered in respect of the firstincident on the complaint made by Pitchaikara Gounder to P.W.39. Sofar as the second occurrence is concerned, the F.I.R. wasregistered by P.W.41 and the investigation was done by P.W.45 andP.W.46 respectively and thereafter, both the crime numbers havebeen clubbed and further investigation was done by P.W.50. Duringinvestigation, the pellets found in the 2nd scene of occurrence werecollected in the presence of P.W.16 through the observation mahazarand seizure mahazar. The bullets from the injury of a person and asmall lead piece and a broken bullet were sent to Ballistic Expertfor comparison and for the report. Apart from M.O.1, 0.410 inchcaliber musket bearing No.W.21681 and a fired 0.410 inch calibercartridge case were also sent to them for examination and Exs.P.28and 29 reports were submitted by the Ballistic Expert and he wasexamined as P.W.33. Therefore, we could understand that the bulletswhich caused injuries to the injured persons P.Ws.9 to 11, 26 andthe three deceased persons were caused by the fire opened from thesame fire arm and they were fired from AK-47 rifle. Therefore, wecould understand that the injuries sustained by all these fourpersons and the three deceased persons were due to theindiscriminate firing from the van M.O.1 by one among the accused https://hcservices.ecourts.gov.in/hcservices/ and the death of three persons viz., Ramasamy, Ravanan andPanchalai were caused and serious injuries of four persons werecaused due to the said firing.30. The prosecution had examined P.W.28 in order to prove theconfession given by A-1 and the recovery of money in pursuance ofhis confession. He had also spoken to the effect that A-7 was alsoarrested and he had given a confessional statement leading torecovery and in pursuance of the said confessional statement, anempty cartridge and other important letters were identified by him.On a careful perusal of the evidence of P.W.28, we could see thatA-1 was arrested on the said date at 10.30 a.m., along with A-2 andboth of them have given confession in respect of the commission ofthe offence. Among them, A-1 had given a confession to the effectthat he would identify a sum of Rs.170/- being the remaining amounttaken from the house of Pitchakara Gounder, Thandrampet. The saidadmissible portion of the confessional statement was produced andin pursuance of the same, the mahazar prepared for the seizure ofRs.170/- is marked as Ex.P-13. Apart from that, A-1 had alsomentioned in his confession that a sum of Rs.1,465/- was concealedin the house of one J.E.Palaniappan at Palaniappa Nagar,Soolamangalam and in the said confession also, P.W.28 signed andthe seizure in pursuance of the confession was done as identifiedby A-1 and a sum of Rs.1,465/- was recovered. The concerned mahazaris produced as Ex.P-14. Apart from that, in Aroor, at about 4.00p.m., the Investigating Officer arrested A-7 and he had also givena confessional statement through which the empty cartridge andimportant letters were identified and discovered by A-7 and P.W.28had signed the mahazar, Ex.P-15 and the said seized letters areExs.P-18 & P-19. This evidence of P.W.28 would show that theaccused who were involved in the commission of dacoity atThandrampet village and also the shooting incident in front of thepolice station at Thandrampet had been confirmed by the seizure ofthe part of the money taken from Pitchakara Gounder's house and theempty cartridge used for shooting at the second place ofoccurrence. This would also corroborate the prosecution evidenceadduced for proving its case.31. The other evidence of P.Ws.1 to 3 and 7 would go a longway to show that they had fled away from the first scene ofoccurrence in M.O.1 Maruti Van. The evidence of P.W.38, who triedto intercept the said van near Thanipadi Police Station, even priorto the second scene of occurrence would speak to the effect thatthey had escaped from his trap and vanished in the same van.32.So far as the 2nd occurrence is concerned, we have alreadyseen it was spoken by P.W.40, P.W.8 and the injured witnesses viz.,P.Ws.9 to 11, 26. They have categorically spoken to the effectthat one of the accused had opened fire through machine gun fromM.O.1 van and 7 persons injured and out of them three persons died.P.W.8 in his evidence would speak to the effect of van incident.The evidence of P.Ws.1, 2 3 would show that the person who was https://hcservices.ecourts.gov.in/hcservices/ standing at the iron gate of their house was having a bag in whichthe gun was kept. The said person was identified by them as A1. Wehave already seen that A1 to A4 who participated in the robbery atthe house of Pitchaikara Gounder had fled away from the scene ofoccurrence in M.O.1 van. At the 2nd scene of occurrence, when theywere tried to be intercepted by the police and public, we could seethat fire was opened from the said Maruti Van indiscriminately fromthe machine gun. Therefore, the said fire ought to have been openedby A1 only which caused the injuries to seven persons and out ofthem three became dead. The other accused who were travellingalong with A1 were also seen assisted A1 to commit the said firingindiscriminately knowing fully well that it would cause death ofthe persons when the bullets injure them. Therefore, the evidenceadduced by the prosecution would also go a long way to show thatthe second occurrence was also proved by the prosecution. 33.However, the trial Court had come to a conclusion ofacquitting accused 1,4,5 & 6 under Sections 120-B I.P.C., accused 1under Sections 353 and 506(ii) I.P.C.; accused 4 under Sections450, 353, 506(ii) I.P.C. Accused 1, 4 & 5 were convicted by thelearned Principal Sessions Judge, Thiruvannamalai as stated suprain para-5. The charges framed against A5 would not show that he wasalso charged under Sections 395, 302 r/w 149 (3 counts) and 307 r/w149 (4 counts) I.P.C. However, the learned Sessions Judge hadconvicted A5 under the aforesaid Sections and imposed sentence ofimprisonment and also to pay a fine of Rs.50,000/- for each countand in default to undergo each five years R.I. and also to pay afine of Rs.25,000/- for each count and in default to undergo each 3years R.I. It is not given to understand that subsequently thetrial court has framed charges against A5 under Sections 395, 302r/w 149 (3 counts) and under Section 307 r/w 149 (4 counts) I.P.C.When the charges had not been framed and made known to the accusedconcerned, the conviction and sentence passed by the trial Courtagainst such accused is not sustainable in law. Therefore, onthese aspects, the conviction and sentence passed against A5 areliable to be set aside. 34.So far as the conviction against A1 under Sections 395,302 (3 counts), 307 (4 counts) I.P.C. and under Sections 3 r/w 25(1-A) and 27(3)of the Arms Act and against A4 under Sections 395,419, 302 r/w 149(3 counts), 307 r/w 149 (4 counts) I.P.C. areconcerned, they are confirmed.As far as the sentence againstA1 for the conviction under Section 302 I.P.C. (3 counts) and underSection 27(3) of the Arms Act, the trial Court had imposed thecapital sentence of hanging till death. The said imposing of deathsentence has not been explained by the trial Court that it had comeunder the rarest of rare cases. The 1st accused had possessed withthe machine gun along with other accused at the time of commissionof robbery in the 1st incident and thereafter they had escaped inMaruti Van M.O.1 and when they were intercepted in the 2ndoccurrence, the fire was opened from the Maruti Van against thepolice personnel and the public who had intercepted them. The said https://hcservices.ecourts.gov.in/hcservices/ action of firing from the Maruti Van was only for the purpose ofescaping from the said scene of occurrence. The prosecutionwitnesses did not speak to the effect that A1 has got down from thevan and wantonly shot at the police personnel and public in orderto commit the death of those persons. In these circumstances, thedecision reached by the trial Court that A1 should have beenawarded with capital sentence of hanging till death for the offenceunder Section 302 IPC cannot be considered to be one under rarestof rare cases.35. So far as the conviction under Section 27(3) of the ArmsAct is concerned, it is the caution given by the Apex Court to beexercised by the trial Court under Section 27(3) of the Arms Actthat before imposing punishment under the said section, it must beborne in mind as to whether the offence clearly falls under Section27(3) of the Arms Act as otherwise it would not be justified forthe Courts to invoke the said provision. It has been categoricallylaid down by the Apex Court in the judgment in Subhash RamkumarBind alias Vakil and another v. State of Maharashtra (2003 SCC(Crl.) 362) and the relevant passage would run as follows:-"Section 27(3) of the Arms Act prescribes a deathpenalty in the event the arm or weapon concernedstands out to be a prohibited arm, user of whichresults in a death –- a rather stringentprovision. On a comparative analysis of Section302 IPC, there is some amount of laxity involvedas regards the resultant death of a person byreason of a deliberate act of the accused –- it ison this score the legislature prescribes twopunishments, namely, imprisonment of life or death–- thus leaving it to the wisdom of the Court topass the sentence in accordance with the gravityof the nature of offence and the methodology usedto bring an end to the life of the assassin. Itis in this perspective that the law is settledenough to record that it is only in the rarest ofrare cases that the maximum penalty, namely, thedeath sentence ought to be levied since that wouldbe a barbarous act as that would run counter tothe civilised notion and concept of the justicedelivery system. The jurisprudential system hasdeveloped in the country on this backdrop and itis in this perspective this possible attraction ofSection 27(3) of the Arms Act shall also have tobe dealt with. The court must use the greatestamount of caution in the matter of exercise ofjurisdiction under Section 27(3) and unless, thatthe issue in question is covered in all itsperspective and no two opinions can be hadthereon, the court will not be justified to bringhome the charge under Section 27(3) of the ArmsAct. Liberty is precious but life is more precious https://hcservices.ecourts.gov.in/hcservices/ than liberty and the latter cannot possibly betaken away, if one does not cross the limits evenat the cost of unforensic language in judicialphraseology at "the drop of a hat" but one needsto bring home the attributes without any doubt asregards Section 27(3) of the Arms Act."In the light of the above guidance given by the Apex Court, wecould understand that the object of imposing punishment underSection 27(3) of the Arms Act should not carry away the generalprinciple that the death sentence should have been awarded underSection 302 IPC only in rarest of rare cases.36. Therefore, we are of the considered view that the capitalsentence of hanging till death for the offence under Section 302I.P.C. and for the offence under Section 27(3) of the Arms Act aremodified to that of life imprisonment. In other respects, theconviction and sentence imposed against A1 are maintained.Similarly, the conviction and sentence of A4 under Sections 395,419, 302 r/w 149 (3 counts) and under Section 307 r/w 149 (4counts) are also ordered to be maintained. Since the convictionand sentence passed against A5 are without framing of charges, theyare necessarily liable to be set aside.37. In view of our above finding, the only question remains tobe considered is the petition filed by the appellant/A1 to raiseadditional grounds challenging the constitutional validity of theprovisions of Section 27(3) of the Arms Act. By that section,whoever uses any prohibited arms or prohibited ammunition or doesany act in contravention of Section 7 and such use or act resultsin the death of any other person, shall be punishable with death.The mandatory capital punishment of death is questioned by way ofadditional grounds. In our opinion, on the facts and circumstancesof this case, as we have imposed only a sentence of lifeimprisonment on the appellant/A1 for the offence under Section 27(3) of the Arms Act, the challenge to the constitutional validityof the said section is only academic and need not be gone into inthe appeal. Hence we leave the said issue open for a decision inappropriate case. 38. In fine, the reference in R.T.No.3 of 2007 is answered andthe Crl.A.No.653 of 2007 filed by the appellant/A1 is dismissedmodifying the death sentence to one of life imprisonment on eachcount for the offence under Section 302 I.P.C. (3 counts) andSection 27(3) of the Arms Act. The conviction and sentence imposedon A1 for the other offences are confirmed. Likewise theconviction and sentence imposed on A4 by the trial Court areconfirmed and the Crl.A.No.613 of 2007 is dismissed. All thesentences imposed on A1 and A4 are ordered to run concurrently.Consequently, M.P.Nos.1 & 2 of 2007 in Crl.A.No.653 of 2007 arealso dismissed. https://hcservices.ecourts.gov.in/hcservices/

39. The conviction and sentence imposed on A5 are set asideand the Crl.A.No.607 of 2007 is allowed. The appellant/A5 shall bereleased forthwith, unless his custody is required in connectionwith any other case. Fine amount, if any, paid by him is orderedto be refunded.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kv/ssTo1. The District & Sessions Judge, Thiruvannamalai2. The Superintendent, Central Prison, Vellore3. The Superintendent, Central Prison, Puzhal 4. The Public Prosecutor, High Court, Madras5. The District Collector, Thiruvannamalai6. The Director General of Police, Chennai7. The Inspector of Police, CBCID (Crime), Thiruvannamalai Dist.8. The Inspector of Police, Rural Crime Branch, Thiruvannamalai District9. The Inspector of Police Thanipadi Police Station10. The Inspector of Police Thandrampet Police Station1 cc to Mr.L. Mahendran, Advocate, Sr. 105701 cc to Mr.R. Sankarasubbu, advocate, Sr. 10162INR.T.No.3 of 2007 & CRL.A.Nos.607, 613 & 653 of 2007JRG (CO)kk 3/3