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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1168-1171 OF 2009

MEERA MYDEEN ETC. ETC. .....APPELLANT(S)

VERSUS

STATE OF TAMIL NADU .....RESPONDENT(S)

J U D G M E N T A.K. SIKRI, J.

The appellants in this appeal, who were Accused Nos. 1, 2 and 4

in the trial court, and were prosecuted along with four other accused (in

all 8 accused persons) have been convicted of offences under Sections

302 r/w Sections 149 and 120B, of the Indian Penal Code (hereinafter

referred to as 'IPC') and sentenced to undergo a life imprisonment and

to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment

(RI) for three years.  A-1 to A-3 were also convicted and sentenced to

undergo RI for two years for the offences punishable under Section 147

of IPC and to undergo imprisonment for life and also pay a fine of Rs.

1,000/- each, in default to undergo RI for three years on each count.  A-3

was  convicted  for  the  offence  under  Section  341  and  sentenced  to

undergo  simple  imprisonment  for  one  month.   A-2  to  A-4  were  also

convicted and sentenced to undergo RI for three years for the offences

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punisbale under Section 148 of the IPC.  All the sentences were directed

to run consequtively.  The conviction recorded by the Sessions Court

and the aforesaid sentences thereupon have been upheld by the High

Court, resulting into dismissal of the appeals which were filed by these

appellants against the judgment of the trial court.   

Insofar as Accused Nos. 5 to 8 are concerned, they were acquitted

by the trial court.  State had challenged their acquittal by filing appeals

before the High Court.  By common impugned judgment, the High Court

has upheld the acquittal of Accused Nos. 5 to 8, resulting into dismissal

of appeals of the State.  Insofar as State is concerned, it has accepted

verdict of the High Court and, therefore, acquittal of Accused Nos. 5 to 8

is not challenged by it.  However, insofar as Accused Nos. 1 to 4 are

concerned, they are not satisfied with the outcome of the trial and the

appeal  preferred  by  them  in  the  High  Court  and,  therefore,  have

challenged their conviction and sentence in the instant appeals.   

2) The case of the prosecution, in brief, was that the accused persons had

committed the murder of Manicka Nadar (hereinafter referred to as the

'D-1') and Selvaraj (hereinafter referred to as the 'D-2') in retaliation of

the murder of one Md. Kasim, of which deceased Manicka Nadar was a

suspect.  It was alleged that the deceased Manicka Nadar was the state

Executive  member  of  the  B.J.P. and  the  deceased Selvaraj  was  the

District Convener of the B.J.P. Dindigul and they were Hindu activists.  It

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so  happened  that  on  October  10,  1994,  the  Hindu  Munnani  Leader

Rajagopalan was brutally murdered at Madurai and on the same day

evening at 6.00 p.m., one Mohammed Kasim, a Muslim Hazarath was

brutally murdered by Hindu fanatics near D-1's house at Dindigul.  The

Investigating Officer in Mohammed Kasim's case had taken D-1 to the

police station for enquiry in that case but let him go after finding that he

was not involved in that occurrence.  But newspaper carried news as if

D-1 was arrested in that case.

3) In order to take revenge, on January 10, 1997 at about 21.30 hours, A1

to A8 and the deceased accused Rifayudden formed themselves into an

unlawful assembly with the common object of murdering D-1 and D-2 at

Thiruvalluvar Salai, 11th Cross Road Junction, Dindigul.  A2 to A8 were

armed with lethal weapons, i.e., Vettaruval and Knives and caused the

death of Manicka Nadar and Selvaraj.

4) As per the prosecution, P.W. 1 (not an eye-witness) immediately after

knowing the occurrence went to the spot and ascertained the death and

then he went to the police station and lodged the complaint  Ex.  P.1.

According to the Prosectuion, P.Ws. 2 to 4 are the eye-witnesses.  P.W.

1 – Raja lodged the complaint (Ex. P.1), stating that P.W. 2-Muthukumar,

who is an auto driver and who knew the deceased Manicka Nadar and

Selvaraj and also A-1, took his customers at 09.30 p.m., on January 10,

1997 from Dindigul  Bus  Stand and dropped them at  Raja  Rajeswari

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Hospital.  His customers requested him to wait.  Therefore, he parked

his  auto  some  distance  from  the  hospital  gate.   At  that  time,  one

Srinivasa Perumal and P.W. 3 – Saravanan came along with Bus Stand

road and were standing near the flower market.   Then, both of them

conversing with each other crossed the road and went to the opposite

place near the sugar cane crusher.  There A-1, who was an employee of

D-1, was standing with a T.V.S. Moped.  Next to him, three persons were

talking to him.  They looked like college students about 20 to 25 years of

age.  One of them was smoking a cigarrete.  One of the other three

pulled  out  something  from  behind.   The  object  was  wrapped  in  a

newspaper and it was a sword.  Another person drew out an object from

his right waist and flung it wouthwards. That was a knife.  Then, A-1 and

the three men went and stood by the fence, at  the place near D-1's

house.  At that time, D-2 came in his Avanti motor cycle and D-1 sat on

the pillion seat. When D-1 and D-2 were approaching the place where

A-1 was standing, A-1 gave a signal to the three persons with his right

hand.  Immediately, the person, who was smoking the cigarette stopped

D-2, who was driving the motor cycle, by holding his left shoulder and

uttered the following threatening words “These are the B.J.P. men; cut

them, stab them....” Thereupon, the other two started attcking D-1 and

D-2.  Four persons came from north with knife and arival and they also

attacked D-1 and D-2.  An auto driver was standing in front of P.W. 2.

P.W. 2 moved away.  Later, on enquiry P.W. 2 learnt that the said auto

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driver was Kasilla.  One amongst the group showed the knife to the auto

driver and asksed him to run away.  Immediately, Kasilla took his auto

and drove away towards South.  The assailants ran eastwards through

the old flower market side.  Another person came near D-1's house and

joined the group of assailants and ran away.  Immediately, P.W. 2 went

and  informed  P.W.  1.   Both  of  them  came  back  to  the  scene  of

occurrence in 10 minutes.  When they came back, D-1's wife, P.W. 16 –

Kelaiselvi was weeping there.  D-1 and D-2 were lying down in a pool of

blood.  There was a huge crowd.  Near the transformer, D-1 and D-2

were lying dead. There were many blood stained wounds on them.  P.W.

2 being an auto driver, he went in P.W. 2's auto to Dindigul Town North

Police Station and there, he gave the written complaint (EX. P.1).  He

sent away P.W. 2 since he was agitated.  The names and particulars of

the accused were not mentioned in the FIR.

5) P.W. 32 took up the investigation and went to the scene of crime and

prepared the observation Mahazar.  He also drew a rouch sketch  Ex.

P26.  He requested the Finger Print Expert and the Photographer – L.

Sugumaran (P.W. 25) to go to the scene of occurrence where sniffer dog

was also taken.  He proceeded to the scene of occurrence along with

P.W. 1.  He prepared the Observation Mahazar (Ex. P. 18; and Rough

Sketch (Ex. P.26). P.W. 25 the Photographer, took photos at the scene of

occurrence.  The photos were marked as Ex. P. 19 series.  At about

12.30  a.m.,  in  the  presence  of  V.R.O.-R.  Durairaj  (P.W.  26),  he

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recovered M.Os. 20 to 30 under Ex. P. 19.  He conducted the Inquest

over the dead body of D-1 between 01.20 a.m. and 03.00 a.m. and the

Inquest Report which is Ex. P.27.  He recorded the statements of P.Ws.

1, 2, 16 and one Narayanasamy. He conducted the Inquest on the dead

body of D-2 between 03.00 a.m. and 05.00 a.m.  The Inquest Report is

Ex. P.28.  During the Inquest, he recorded the statement of P.W. 15 –

Shanthi, wife of D-2 and others.  In order to ascertain the real cause of

death, he sent the dead body of D-1 and D-2 through P.W. 24 – Bose

P.C.,  and  P.W.  12-  Sundaram,  Constable  respectively  along  with

requisitions in Exs. P.12 and 13.  P.W. 9 – Dr. Anandan, who was the

Doctor  on  duty  in  the  Government  Hospital  received  Ex.  P.12  and

conducted the autopsy on the dead body of D-1 between 08.30 a.m.,

and 10.30 a.m.  on January  11,  1997.   Ex.  P-13  is  the Post-Mortem

Certificate in respect of D-1.  On receipt of Ex. P.14, requisition memo,

P.W. 9 conducted the autopsy on the deadbody of D-2. Ex. P-15 is the

Post-Mortem Certificate in respect of D-2.  The injuries noticed by P.W.

9, the Post-Mortem Doctor in respect of  D-1 are as follows:-

1. A horizontal  incised  wound  extending  from the  upper  frenlum of  the upper lip to the right earlobe measuring about 15x2x2cms, cutting the facial muscles and exposing the oral cavity.

2. An oblique incised wound starting from the ala of the right nose and joinning  the  injury  No.  1  measuring  about  6x1x1  cm.,  exposing  the muscles of the face.

3. A punctured wound with clear cut margin extending from the right lateral, aspect of the neck at the level of Hyoid bone passing through the neck

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horizontally into the opposite side of the neck measuring about right side 3x1 cms and left side 2x1 cms.

On  dissection  the  carotid  vessel,  trachea  above  the  level  of  thyroid cartilage are cut and muscle of the neck of the right side is cut.

4. An elliptical punctured wound measuring about 3x1 cm overlying the 4 th intercostal space 2 cm away from the Iternum of the right side of the chest passing through thoracic cavity.

5. A punctured elliptical wound measuring about 4x1 cm passing through the thoracic cavity over lying the 6TM intercostal apace on the anterior axillary line of the left side passing into thoracic cavity.

6. A punctured elliptical wound just below the axillary fold overlying the 7 th intercostal  apace  of  the  left  side  cheat  measuring  about  4x1  cms. Wound passes throkugh the thoracic cavity.

On opening the toraz 700 ml of clotted bleed found on the both pleural cavity.  The pleura is cut corresponding to the injury Nos. 3, 5 and 6.

The middle lobe of the Highs lung is punctured measruing about 2.5x1x3 cms citting the lung tissue.  This lung injury corresponds to the external injury No. 4.  The lower lobw (left) lung is punctured on the lateral aspect measruing about 3.5x1x1 cms. This injury corresponds to the Injury No. 5.

A punctured wound over the lateral and posterior aspect of the lower lobe  of  the  left  lung  measuring  about  3.5x1x3  cms.  This  injury corresponds to the Injury No. 6.

7. An incised wound starting from the back of  the neck in  the mid-line extending  to  the  lateral  aspect  of  the  left  side  of  neck  cutting  the muscles and tissues mesasuring about 10x2x1 cms.  On exploration the underlying muscles and tissues alone are cut.

8. An elliptical punctured wound below the costal margin on the anterior axillary line obliquely placed with direction upwards, measuring about 5x2 cms in the right side.  The omentum is protuding through the wound. On dissection the periotoneal cavity contains 300 ml of clotted blood. The underlying peritoneum and muscles are cut.  On dissection, the liver right lobe is found cut on the inferior surface upto middle of the right lobe measuring about 3x1.5x6 cms.

9. An elliptical punctured wound overlying the abdomen 5 cm above the amblicus in the midline measuring about 5x2 cms. Small intestine and

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omentoim protruding through the wound.  Peritoneum and muscles are cut.  No visceral injury corresponding to this injury.

10. An elliptical incised wound overlying the right loin region just above the right illiac crest measuring about 3x1x2 cms.  On dissection, no deeper structure are cut except the muscles and tissues.

11. An elliptical incised wound 7 cm above th3e illiac crest on the left loin measuring about 3x2x2 cms. On dissection, no deeper tissue are cut except muscles and underlying tissue.

12. An incised wound over the nor erninace of the right  hand measuring about 2x^xH cms. Making cut of the muscles and tissue.

13. An incised wound overlying the left hand cutting the muscles into two halves in between the II and III space measuring about 6x1x1 cm.

14. An elliptical oblique incised wound on the anterior aspect; of the right upper arm ovesrlying the deltoid muscle measuring 2x1/2 cms making only tissue and muscle.

15. An  oblique  elliptical  incised  wound  2  cm  below  the  Injury  No.  14 measuring  about  2x1/2x1  cms.  Only  underlying  muscles  are  cut  on exploration.

16. The pinna of the left ear is cut into 2 halves measuing 3x1/2x1/4 cms vertically.

17. The abrasions each measuring about 6x5 cms on the lateral aspect of the middle of the left arm.

The opinion of the Doctor as to the cause of death is as follows:

“The deceased would appear to have died of shock and haemorrhage due to injury to carotid vessels and vital organs lungs and liver.”

               The inuries noticed by the Post-Mortem Doctor in respect of D-2 are as

follows:

1. An oblique incised wound opverlying the anterior aspect of need in the midline  just  below the  thyroid  cartilage  measuring  about  5x2x3  cms. exposing the trachea.

2. An elliptical incised wound 5 cm below the angle of mandible left side measuring about 5x2x3 cms. cutting the major vessels common carotid

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vessels and jugular veins of left side of the neck. The blood suffused into the surrounding tissues of injury.

3. An oblique incised wound overlying the nape of neck on the right sidle 5 cm  below  dthe  occipital  protuberance  measuring  about  4k2x2  cms underlying the muscles and tissues were cut.

4. An elliptical p0uncuted wound overlying the aerola of the nipple on the right  side  on  the  4”1 intercostal  space  measuring  about  5x2xpasses inside the thoracic cavity.  On dissection the wound enters vertically into the middle lobe of the anterior surface of the right lung.  The parietal pluera and the thoracic muscles are cut.  The pleural cavity contains 500 ml of clotted blood.  The injury on the lung measures about 4x1x5 cum.

5. An incised owund overlying the anterior fold of the auxilla and the lateral aspect of the right side of the chest wall measuring about 12 cmsx5x3 cms with clear cut margins, cutting the muscles on the anterior auxiliary fold and no other deeper structures are involved.

6. An elliptical horizontal punctured wound below the inferior angle of the scapula the overlying 8th intercostal space on teh hack measuring about 4x1.5xpasses  internally.  Okn  dissection  the  posterior  surface  of  the lower lobe of the right lung measruing about 3x1x5 cms. Muscles and pleura and ocoer thorz are cut.

7. An oblique incised wound overlying the medial aspect of the right leg 2 cm below the patella measruing about 5x1x1 depth.  The opinion of the Doctor as to the cause of the death is as follows:

“The  deceased  would  appear  to  have  died  of  shock  and hemorrhage  due  Co  the  injuries  to  the  neck  vessels  and lung.”

   6) P.W. 12, the first grade constable at Dindigul Town North Police Station

at the relevant point of time, who handed over the body of D-2 along

with the requisition to the Doctor, handed over the wearing apparels of

D-2 (M.Os.  10 to 13)  to  P.W. 32.   P.W. 23,  the Ghead Constable at

Dindigul  Town  North  Police  Station,  who  handed  over  the  wearing

apparels of D-1 (M .Os. 15 to 18) to P.W. 32.

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7) P.W. 32 continued the investigation and recorded the statement of some

more witnesses, at 10.00 a.m., he recovered the wearing apparels of

D-1 (M.Os. 15 to 18) and the wearing apparels of D-2 (M.Os. 10 to 13).

He also recorded the statement of Post-Mortem Doctor (P.W. 9).

8) P.W. 32 also recovered an umbrella, leather chappals, rubber chappals,

knife etc.  P.W. 32 held inquest over the dead body of the Selvaraj in the

presence of Panchayatdars and witnesses between 3.00 to 5.00 a.m.

and  prepared  the  inquest  report.   He  sent  the  dead  bodies  for

postmortem  examination  with  the  requistitions  through  P.W.  12

Sundaram and P.W. 24 Bose the constables.

9) On January 16, 1997, P.W. 32 handed over the investigation to P.W. 33

Mahendran,  Inspector  of  Police  C.B.C.I.D.  P.W.  33  took  up  further

investigation in this case on January 17, 1997.  On January 25, 1997, he

arrested  A-1  Meera  Mydeen.   A-3  Mohammed  Subair  who  was  in

custody  in  Cr. No.  151/98  of  Coimbatore  Bazaar  Police  Station  was

brought on P.T. Warrant and remanded to judicial custody in this case on

March 01, 1999.

10) On October 12, 1999, the investigation was handed over to PW-34. He

examined P.W. 2 and P.W. 3 and recorded their further statements.  He

also examined P.W. 4 and other witnesses and recorded their  further

statements.

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11) P.W. 35 took up further investigation on March 17, 2001.  A-4 who was in

custody  in  Kodangaiyur  Police  Station,  case  was  brought  on  P.T.

Warrant  and  remanded  to  judicial  custody  on  the  requisition  of  the

Investigating  Officer.   He  was taken  into  police  custody  on  April  05,

2001.  After completing the investigation, he laid charge-sheet agaisnt

the accused A-1 to A-8 and one Rifayudden (deceased accused).

12) The  charges  were  framed  by  the  Trial  Court  for  the  offences  under

Section 120 as against the Accused Nos. 1 to 8; under Section 147 IPC

as  against  A1;  under  Section  148  IPC  as  against  A2  to  A8;  under

Section 341 IPC as against A2 to A4; under Section 302 (2 counts) IPC

as against A2, A4, A5 to A8 and under Section 302 R/w. 149 IPC as (2

counts) against A1 and A3.  To prove the case of the prosecution, the

prosecuting agency examined 35 witnesses and marked 4 exhibits and

30 material objects on their side.

 13) It may be mentioned at this stage that investigation was handedover to

PW-33 by PW-32 on the instruction of Deputy General of Police.  When

PW-33 took up further investigation on January 17, 1997, he continued

the same till October 12, 1999.  On the basis of the statement recorded

from Kasilla, he learnt that A-1 was involved in the murder and Kasilla

also indentified A-2.  On January 18, 1997, P.W. 3 – Soundarajan and

P.W. 6 – Perumal identified A-2, A-4 and A-3.  On January 19, 1997, he

recorded the statement of P.W. 11 – V. Krishnan.  On January 20, 1997,

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he recorded the statement of P.W. 5 – Malleswaran, who identified A-3.

On  January  25,  1997  at  about  10.30  p.m.,  he  arrested  A-1  in  the

presence of witnesses at his residence.  Then, on January 26, 1997, he

remanded him to judicial custody.  On February 12, 1997, he gave a

requisition to send the articles for chemical analysis.  P.W. 29 - Kasthuri

is  the head clerk through whom the recovered objects were sent  for

chemical analysis.  The Chemnical Analysis Report is Ex. F.22 and the

Serological Report is Ex. P.23.  When P.W. 33 learnt that A-2 had been

arrested  in  connection  with  Crime  No.  381  of  1997  on  the  file  of

Kodungaiyur  Police  Station,  he  obtained  P.T.  warrant  from  learned

Judicial Magistrate No. II, Dindigul and remanded A-2 in this case – He

gave a requisition to the learned Chief Judicial Magistrate for conducting

Test Identification Parade.  He took A-2 under police custody from May

15,  1997  to  May  19,  1997.   P.W.  7  –  P. Kulamani  is  the  Judicial

Magistrate No. III at the relevant: point of time.  He issued orders for

conducting test identification parade in respect of A-2 on April 07, 1997.

The test identification parade is Ex. P.3. P.W. 8 – L. Thamburaj, Judicial

Magistrate recorded the statements of P. Ws. 2, 3, Srinivasa Perumal,

P.W. 4 and one Natarajan under Section 164(5) Cr.P.C. and they are

Exs. P.4 to P.8.  He asked to conduct the test identification parade with

regard  to  A-3,  A-4,  A-5,  A-6  and  A-8.   But,  the  accused  refused  to

participate in the test identification parade on the ground of delay of four

years and the publicity given in the newspapers.  The request for test

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identification  parade  is  Ex.  P. 10  and  the  Report  is  Ex.  P.11 series.

When P.W. 33 learnt that A-3 was remanded in conncection with Crime

No. 151 of  1998 on the file of Coimbatore Bazaar Police Station,  he

obtained P.T. warrant from the Judicial Magistrate  No. 11, Dindigul and

remanded A-3 in this case.  On April 09, 1999, he took A-3 under police

custody and recorded his statements.  P.Ws. 3, 4 and 5 identified A-3.

On April  20, 1999, he recorded the statement of other witnesses and

concluded  the  investigation  and  filed  the  Charge-Sheet  against  the

accused on July 30, 1999.

14) It may also be recorded at this stage that P.W. 3 – Soundarajan belongs

to Vellodu village.  He is an L.I.C. agent.  His statement is that he knew

D-1 and D-2. He had gone to Dindigul Bazaar in the morning on January

10, 1997 to meet P.W. 11, who is his friend.  P.W. 11, V. Krishnan  asked

P.W. 3 if he knew any good doctor, for treatment of his stomach ailment.

P.W. 3 told him that he had work in the morning and asked P.W. 11 to

come near Raja Rajeswari Hospital at about 09.30 p.m. At 09.00 p.m.,

on  a  cycle,  he  was  proceeding  from  Railway  Station  road  through

Thiruvalluvar Salai to reach the Raja Rajeswari Hospital.  There, he saw

A-1,  the employee of  D-1 and three others.   He went near the Raja

Rajeswari Hospital and stopped there.  He identified Meera Mohideen

as  the  first  accused present  in  the  Court.   When  he  went  near  the

hospital,  an auto was parked on the northern side and another  auto

came near the hospital and dropped its customers and stood near the

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auto.  A-1 on his moped went near the sugar cane crusher and from that

place, he gave a sign.  As soon as he gave the sign, three persons

came and  stood  near  A-1.   At  that  time,  P.W. 4  and  one  Srinivasa

Perumal came from the bus stand side and was standing near the road,

which goes to the flower market.  Near the sugar cane crusher, Sodium

Vapour lamp was burning and just opposite to D-1's vacant site, tube

light was burning.  It was at about 09.30 p.m., in the night,  D-2 came in

his Avanti Moped and D-1 sat on the pillion.  When they were nearing

Sugar cane crusher, one of the three, who was smoking the cigarette

went and stopped D-2, the other two pulled out the sword and cut D-1

and D-2.  The other pulled out the knife near his waist and cut D-1 and

D-2.  The entire events would not have taken more than 10 seconds.  By

that time, from the north i.e., from the bus stand side, four other came

with Arival and sword and other deadly weapons.  They also cut D-1 and

D-2.  P.W.3 full of fear saw  D-1 and D-2, who were lying in a pool of

blood.  At that time, one of the assailants pulled out the sword from his

waist  and  showed it  towards  the  auto  driver,  who  ran  away.  P.W.3

identified A-3 as the person, who stabbed D-2.  P.W.3 identified A-3 as

the person, who was talking to A-1 and thereafter attacked D-1 and D-2.

One more person came and joined these persons and thereafter A-1 ran

towards the south and others ran eastwards.

15) P.W. 4 – Saravanan is a tailor.  He deposed that he also knew D-1 and

D-2.  Two years after the occurrence, the C.B.C.I.D., enquired him about

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the occurrence that took place on January 10, 1997.  According to him,

he and Srinivasa Perumal  would meet every night  near  Dindigul  bus

stop.  On January 10,  1997 also,  after  meeting at  the bus stand and

having  taken  tea,  they  walked  along  Thiruvallur  Salai.   P.W.  5  –

Malleswarazi works in a tyre shop in Dindigul Spencer compound. About

two days prior to the date of occurrence, one person was standing in

front of his shop between 06.00 p.m. and 06.30 p.m. He had a rexin bag

in his hand.  He was watching his shop for half  an hour.  So, P.W.5

asked the reason.  Then, the person started moving and running.  P.W.5

chased him.  The slippers in P.W.5's foot fell off. Before he could run, the

person  mingled  in  the  crowd,  and  escaped.   Two  days  later,  the

occurrence took place.  About 10 days thereafter, P.W.33 enquired him

about the person, who he was chasing.  He was shown 50 photographs,

in which he picked up one and said that is the person, who has escaped.

The said photo is M.O.9 and marked No.3.  The witness identified A-3 in

the Court.  P.W.6 – Perumal is a machine operator in Dindigul Industrial

Company.  D-1 and D-2 are known to him.  About two days prior to the

date of occurrence, after witnessing the show at 06.30 p.m., at Ganesh

Theatre, he was going towards his village.  At about 09.15 p.m., when

he was approaching the Raja Rajeshwari Hospital via Thiruvallut Street,

he saw A-1 and three others near the sugar cane crusher.  They were

pointing out the spot towards the West and saying that, that would be

the  appropriate  spot,  A-1  was  telling  the  others  that  if  the  act  is

Page 16

completed there, no one will get any suspicion.  The other three agreed.

Thereafter, P.W.6 took the bus and went to the village.  Two days later

he learnt from the newspaper that D-1 and D-2 were murdered at the

same spot.  P.W.33 recorded his statement about eight days after the

occurrence i.e., on January 16, 1997.  P.W.6 informed him all that he

had seen.  About 50 photographs were shown to him and he was asked

whether  any  of  the  person  whom  he  had  seen  was  there  in  the

photograph.  He pointed out M.Os.3, and 5.  He identified A-2, A-3 and

A-3 in the Court.  About three months later, he was asked to identify the

suspects in the identification parade.  He and P.W.3 asked for police

escort.  They went to Palayamkottai prison.  In the identification parade,

P.W.6 identified A-2.

16) P.W.10 – Smt.  Jothimani  is  the Assistant  Engineer  in  Dindigul  Nagal

Nagar.  She has deposed with regard to the power distribution and the

power  connection  in  the  name  of  N.  Susila  and  G.  Navaneetha

Srishman.  P.W.11-V. Krishnan is a weaver, who is a friend of P.W.3.

Because of his stomach ache, he asked P.W.3 for advice regarding a

good doctor.  But, on that day, he did not go.  P.W.13-Venkateawaran

was working in D-1's shop.  On January 10, 1997, which is Friday, they

performed the pooja as usual.  At that time, he, one Ramamoorthy, A-1,

D-1 and D-2 were there.  Thereafter, at about 12.30 a.m., he received

information  from A-1  that  some one  killed  D-1  and  D-2.   Five  days

thereafter, P.W.21 – Satheesh Kumar, the son-in-law of D-1 carried on

Page 17

the  business.   According  to  this  witness,  A-1  did  not  report  to  duty

thereafter.   P.W.1  S. Thangavelu  is  the  Municipal  Officer  in  Dindigul

Municipality,  who  was  examined  with  regard  to  the  encroachment.

P.W.15 is the wife of D-2.  On January 10, 1997, after lunch, D-2 went

on his Avanti Motor Cycle to see D-1.  P.W.15 identified M.O.14.  Her

husband  did  not  return  even  after  10.30  p.m.   At  10.30  p.m.,  one

Jagadeesan came to her residence, said something to her father-in-law

and took him over one hour and thereafter, she was informed that her

husband was killed.  P.W.16 is the wife of D-1.  She identified A-1 as the

person, who was working in her husband's shop.  At about 10 p.m., she

was  informed  that  her  husband  was  killed.   She  thought  it  was  an

accident.  It is only thereafter, she realised that her husband was killed.

She  did  not  notice  who  was  there.   P.W.17  –  Muruganantham  @

Mookan is also an iron merchant, who has been examined to link the

T.V.S. moped with A-1.  P.W.18 – Muniyasamy is the onion merchant.

Three days prior to the accident, he and his friend Ravichandran were

drinking tea at Udayara tea stall.   The owner of Udayam Tea stall  is

P.W.19.  He was there and also one Ramanatnan, who worked in the tea

stall that time, A-1 ordered for tea and he was talking to three others.

Three  others  asked  him  “when  will  the  person  leave,  which  is  the

appropriate place”.  He identified A-1, A-2 and A-4 in Court.  According to

him, it is only when he read in the newspaper that A-1 was arrested, he

realised that A-2 to A-4 were planning the murder when he saw them

Page 18

near the tea stall, P.W.19 Vasudevan, who is the tea stall owner also is

an acquaintance of D-1.  According to him, A-1 would purchase tea and

cigarette worth about Rs.100 to 150/- and in the evening he would settle

the account.  On the date of occurrence, he learnt about the murder of

D-1, so he closed his shop and took part in the funeral ceremonies and

after that A-1 had not visited his shop.  A-21 is the son-in-law of D-1.  He

is carrying on business in Kovilpatti.  On receipt of the information about

the occurrence through phone, he proceeded to Dindigul.  According to

him,  A-1  did  not  come  to  the  shop  after  the  date  of  occurrence.

P.W.22-Irulappan  is  doing  finance  business.   He  knows

P.W.23-Govindarajan, who used to borrow money from him.  In the first

week of January, he went to the auto stand to meet him.  Since he was

not there, he went to the house at about 05.00 p.m., or 06.00 p.m.  He

introduced  A-3,  A-4  and  A-2,  who  were  tenants  in  the  next  house.

P.W.22 identified A-2 to A-4 in the Court.  On January 10, 1997, at about

06.00 p.m., he went to collect the interest from P.W.23.  He was not in

the auto stand.  Then, he went to his residence.  But, the house was

locked.  In the next house, there were 10 slippers and he thought that

P.W.23  might  be  there  and  slowly  opened  the  door.   He  heard  the

person  inside  saying  that  today  Nadar  must  be  done  away  with.

According  to  this  witness,  A-1  to  A-4  were  there  and  five  others.

According to him, P.W.23 told him two days later that A-2 to A-4 left the

place without even receiving the advance.  P.W.23 is an auto driver.  He

Page 19

also speaks of the loan transaction between him and P.W.22.  According

to him, on January 10, 1997, A-1 came to his place and brought three

persons.  He introduced them as Khan, Subair and Ajees and A-1 told

him that those three persons would sell old iron in employer's (D-1) shop

and that  they needed a house.  P.W.23 identified A2 to A4 in Court.

P.W.23 asked for advance of Rs.5,000/- and this was paid and it was

agreed to pay the monthly rent at Rs.500/-.  Within one week from the

date on which A-2 to A-4 moved to his house, he raid P.W.22 that they

were in a portion of his house, 15 days later, P.W.22 told him that A-1

has been arrested and only his tenants have murdered D-1 and D-2.  He

told P.W.22 that the door is kept locked.  He also said that out of the

advance amount, he had Rs.3,500/- balance still with him and that he

would pay to P.W.22.

17) After  examination  of  all  the  prosectuion  withesses  and  their

cross-examinations, the statements of accused persons were recorded

under  Section  313  of  the  Criminal  Procedure  Code.  Thereafter,

arguments  were  heard  and  it  culminated  into  the  pronouncement  of

judgment dated July 19, 2005 by the trial court convicting A-1 to A-4 and

acquitting remaining accused persons, as already pointed out above.

18) It is clear from the aforesaid narration that PW-2 is the eye-witness and

PWs 3 & 4 are other material witnesses.  PW-1 is the person who had

lodged the  complaint  on  the  basis  of  which  FIR was registered  and

PW-32 was the first  Investigating Officer.  The conviction is  primarily

Page 20

based  on  the  testimony  of  the  aforesaid  witnesses  who  were  found

reliable and creditworthy by the trial court as well as the High Court.

19) A perusal of the impugned judgment of the High Court would show that

the High Court reappreciated and re-examined the entire case from the

following angles:

(a) Hetching up of consipiracy by the appellant to murder the deceased

persons, holding that the prosectuion was able to prove that there was a

criminal conspiracy entered into by and between the accused persons

who commited the murder of the deceased persons.

(b) Presence of the accused at the scene of occurrence:   As per the

courts below, sufficient evidence, particularly, that of PWs  2, 3 and 4,

prove the presence of accused persons at the scene of crime.

(c) Conduct of  the accused persons :   The High Court  discussed the

testimonies  eveidence  of  certain  witnesses  in  detail  on  the  basis  of

which it affirmed the findings of the trial court that after the incident, all

the  accused  persons  did  not  turn  up  for  work  and  had  absconded

themselves  which,  according  to  it,  was  another  piece  of  evidence

pointing to the guilt of the accused persons.

(d) Belated examination of the witnesses:  It may be noted here that one

of the arguments of the defence was that some of the witnesses were

examined much belatedly which gave them sufficient opportunity to cook

up story by implicating the accused persons and, therefore, they should

Page 21

not have been believed.  High Court, under this heading, has discussed

this  submission of  the defence and negated the same by giving the

circumstances  justifying  the  recroding  of  their  statement  at  the  time

when it was recorded.

(e) Identification of the accused:  The High Court also found that PWs 2,

3 and 4 had identified the accused persons and there was no infirmity or

contradictions  in  their  statements  on  this  score.   Therefore,  the

identification  of  the  accused persons  was another  piece  of  evidence

established by the prosecution.

(f) Interested witnesses :  The High Court, under this heading, rejected

the  argument  of  the  defence  that  evidence  of  PWs 2,  3  and  4  and

evidence of some other persons should not have been believed as they

were  interested  witnesses  inasmuch  as  they  were  either  BJP

sympathisers or  RSS Sympathisers or  the members of  the aforesaid

parties.  

20)  It becomes clear from the reading of the impugned judgment of the High

Court that the conviction is primarily based on the testimony of PW-2,

PW-3, PW-4, PW-6 and PW-18 and in  the process support  from the

depositions given by PW-1 (complainant), PW-32 and PW-33, who were

the investigating officers.  Conscious of this position, first attempt on the

part of Mr. Karpagavinagam, learned senior counsel appearing for the

appellants, was to demonstrate that these witnesses were unworthy of

reliance because of various infirmities in their depositions and, therefore,

Page 22

the Courts below should not have acted upon their depositions.  It was

next argued that there was abnormal delay in recording the statement of

main witnesses under Section 161 of the Code of Criminal Procedure by

the investigating officers which clearly showed that these witnesses are

either improved their statements or even introduced at a later date in

order to make a false acquisition against the appellants.  In this very

hue,  it  was  further  contended  by  the  learned  senior  counsel  that

piecemeal information was supplied by the witnesses from which it could

clearly be inferred that there was an improvement on their part about

their original version.  In nutshell, these arguments were advanced with

the purpose to discredit the testimony of the aforesaid witnesses.  We

are not reproducing the purported discrepencies which were pointed out

by  the  learned  senior  cousnel  for  the  simple  reason  that  this  very

exercise was undertaken by the counsel for the appellant even before

the High Court.  The High Court after taking note of such submissions

has dealt with them elaborately.  Brushing aside the said arguments, it

has concluded that the depositions of these witnesses are reliable.   

21) Scope of power of this Court under Article 136 of the Constitution is well

defined and explained by catena of judgments.  It is not necessary to

refer to all those judgments and the purpose would be served by citing

few judgments which bring out the width of the scope of scrutiny by this

Court in such matters.  In State of U.P. v. Babul Nath1, it was held that

1 (1994) 6 SCC 29

Page 23

under  Article  136  of  the  Constitution,  this  Court  does  not  normally

reappraise the evidence by itself and go into the question of credibility of

witnesses and the assessment  of  the evidence by the High Court  is

accepted  by  the  Supreme  Court  as  final  unless,  of  course,  the

appreciation of evidence and finding is vitiated by any error of law of

procedure or found contrary to the principles of natural justice, errors of

record and misreading of the evidence, or where the conclusions of the

High  Court  are  manifestly  perverse  and  unsupportable  from  the

evidence on record.

22) Likewise,  in  Ganga Kumar Srivastava  v.  State of  Bihar2,  the Court

explained  the  scope  of  exercise  of  power  under  Article  136  of  the

Constitution by stating the following principles:

(i)  The powers of this Court under Article 136 of the Constitution are

very wide but in criminal appeals this  Court does not interfere with

the concurrent findings of fact save in exceptional circumstances.

(ii)  It is open to this Court to interfere with the findings of fact given by the

High  Court,  if  the  High  Court  has  acted  perversely  or  otherwise

improperly.

(iii)  It is open to this Court to invoke the power under Article 136 only in very

exceptional  circumstances as and when a question of  law of  general

public  importance arises or  a  decision shocks the conscience of  the

Court.

2 (2005) 6 SCC 211

Page 24

(iv)  When the evidence adduced by the prosecution fell short of the test of

reliability and acceptability and as such it is highly unsafe to act upon it.

(v)  Where the appreciation of evidence and finding is vitiated by any error of

law of procedure or found contrary to the principles of natural justice,

errors  of  record  and  misreading  of  the  evidence,  or  where  the

conclusions  of  the  High  Court  are  manifestly  perverse  and

unsupportable from the evidence on record.

23) It  was  reiterated  in  Alamelu  and  Anr.  v.  State,  represented  by

Inspector  of  Police3 that  in  criminal  appeals,  this  Court  would  not

interfere with concurrent findings of fact save in very exceptional cases.   

24) We have keep in mind the aforesaid statement of law laid down by this

Court with regard to Article 136 of the Constituion.

25) We have gone through the judgment of the trial court as well as the High

Court and have also given the brief description of the manner in which

the High Court has structured its judgment and discuss various aspects.

As already pointed out, the High Court, in the first instance, discussed

the  issue  of  conspiracy  and  on  the  basis  of  testimony  of  certain

witnesses  and  material  produced  on  record,  it  has  come  to  the

conclusion  that  the  prosecution  has  produced  sufficient  evidence  to

establish existence of conspiracy.  In the process, the High Court has

discussed in detail the testimonies of PW-6, PW-22, PW-23, PW-27 etc.

Two Courts below have, thus, returned a finding, based on the evidence 3 (2011) 2 SCC 385

Page 25

produced on record, that conspiracy between the appellants to kill the

deceased stood established.  In the instant appeal which arises out of

special leave petition filed under Article 136 of the Constition, it is not for

this  Court  to  reappreciate  the  evidence,  unless  it  is  found  that  the

findings are totally perverse.  No attempt was made to demonstrate as

to  how the  High  Court  had  gone wrong  in  law while  arriving  at  the

conclusion on this aspect.   

26) Similarly,  the  Courts  below  have  given  convincing  reasons,  after

analysing the evidence of certain witnesses, that the presence of the

appellants at the scene of occurrence stood established.  Here again,

the only attempt was to discredit the testimony of these witnesses by

trying  to  point  out  certain  infirmities  without  raising  any  substantial

questions of law. We may record that the High Court has inter alia stated

that PW-2, PW-3 and PW-4 have corroborated each other with regard to

the presence of the appellants, thereby establishing the following factors

on record:

1)  The presence of Srinivasa Perumal and PW-4 is spoken to by PWs-2

and 3.  They have said that PW-4 was there with Srinivasa Perumal near

the flower market.  

2)  All the three have spoken of the presence of A-1 to A-4 near the

sugar cane crusher.  PWs-2 and 3 have referred to one of the other

three, smoking cigarette.

Page 26

3)  All the three witnesses have spoken of D-2 coming that way in the

Avanti two wheeler with D-1 in the pillion.

4)  PWs-2 and 3 have spoken of the fact that the man smoking cigarette

stopped D-2 by holding the left shoulder.  PW5 has deposed that A-3

had first stabbed D-2 by holding his shoulder.

5)  All the three referred to A-1 making a sign to other three.

6)  PW-2 was standing near the scene of occurrence with an auto and

he has mentioned the presence of an another auto near the spot.  The

driver is Kasillah, who has not been examined.  PW-3 had mentioned

the presence of the auto and so does PW-4.

7)  They also have spoken of the threat by A-2 to the auto driver, who

was standing there.

27) In the process, the High Court dealt with the arguments of the defence

and  has  given  cogent  reasons  in  not  accepting  the  same  with  the

conclusion that these witnesses was speaking the truth.  It is not at all

pointed out as to what was the legal error committed by the High Court

in arriving at the aforesaid conclusion.   

28) Even the argument of the belated examination of witnesses is dealt with

in  great  detail  and  the  High  Court  has  given  its  own  reasons  while

rejecting this submission, some of which is worthy of reproduction, as

under:  

“31.  Belated Examination of the Witnesses:- It was urged  on  behalf  of  the  appellant  that  many  of  the

Page 27

witnesses had come forward with their statements to the  police  belatedly  and  therefore  that  must  be viewed  with  suspicion.   In  this  regard,  we  must remember  what  is  the  case  of  the  prosecution  as regards  the  reason  for  this  double  murder.   There was a murder of one prominent person belonging to one  community  in  1994,  immediately  in  retaliation, there was a murder of another prominent person of the  other  community.   D1  was  interrogated  with regard  to  the  second  murder.   The  judgment  with regard  to  the  second  murder  was  about  to  be pronounced  at  the  time  of  the  occurrence. Therefore, it is the case of the Prosecution that the motive  for  this  double  murder  was  the  communal enmity.  When that is so, and when on account  of communal feeling people were killed, it is difficult to expect  witnesses  and  that  too  witnesses  such  as PW3, who had nothing to do with even the place of occurrence  to  come  forward  to  speak  about  the occurrence.   Moreover,  they  will  not  be  easily identified by the police until some evidence surfaces to link them or witnesses come forward to report to the police about what they had seen or heard.  That there was all round panic in Dindigul is spoken of not just by one witness, but many.  The atmosphere was tension-charged  and  it  is  exteremely  natural  for  a person,  who had witnessed something or who had knowledge  about  the  conspiracy  to  be  guarded before  disclosing  the  game  the  police.   PW2 was present at the time of Inquest.  It is only, when lie was examined by PW33, that he came out with what he had seen.  In this regard, he stated that soon after the occurrence, his uncle died and therefore, he went away to Periyakulam end stayed there 10 to 15 days. During this period the police had come to his house several times.  Therefore, his landlord asked him to vacate the house.  This is a very natural reaction.  In such  situation,  people  do  not  want  to  have  any connection  with  possible  chance  of  trouble.   This further strengthens the prosecution case that no one was readily  willing  to  give statement  to  the  police. The  tension  had to  die  down,  and  after  mustering courage,  people  slowly  started  giving  whatever information they had.  When the Special Investigating Team started  investigation,  they  assured PW2 that he  could  tell  them freely  and  frankly  whatever  he knew and it is thereafter, he had come forward with his statement.  He was shown an album with full of photograph and on 16.04.2011, he identified A-2 to R-6.  It is elicited in his cross-examination that he did

Page 28

not tell all  the details because he was scared.  “...I did not tell Dindigul police on 10.01.1997 night what I told  in  the  chief-examination.   I  was  afraid  and agitated because I had withered the murder.  I could not  speak  anything  at  that  time.   So I  did  tell  the police  anything  properly.   After  Dindigul  police enquiry,  I  wanted  to  say  all  that  I  said  in chief-examination, but because of fear, I did not...”

29) In the same manner, deposition of PW-3, PW-6 and other witnesses is

considered and convincing reasons are given for arriving at a conclusion

that the evidence given by these witnesses for not coming forward with

their statements at the early stage was quite understandable and natural

and the so called delay did not in any way discredit thier credibility.   The

High Court also relied upon the decision of this Court in Dr. Krishna Pal

and another v. State of U.P.4.   

30) We do not see any reason to interfere with the analysis and conclusion

of the High Court.  We, thus, are of the view that judgment of the Courts

below  does  not  call  for  any  intereference,  finding  no  merit  in  these

appeals and the same are dismissed.  

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; JULY  15, 2016

4 (1996) 7 SCC 194