Chellappan and 5 Others vs State by Inspector of Police, Vadamaduh Police Station, Anna District

M. Karpagavinayagam, J.—The appellants/A-1 to A-6 were tried, convicted and sentenced for various offences in S.C. No. 111 of 1987, on the file of Sessions Judge, Anna District, Dindigul, for having committed the holocaust of triple murder.

Since the appellants 1 to 3/A-l to A-3 were sentenced to death by hanging, Reference has been made by the learned Sessions Judge, Dindigul, for the confirmation of death before this Court in R.T.No.3 of 1988. All the appellants A-l to A-6 also have preferred an appeal in C.A.No.241 of 1988, challenging the legality of the convictions and sentences imposed upon them.

The facts in brief are as follows :-

(a) The 1st deceased (D-l) Rangasamy is the son of 3rd deceased (D-3) Palaniappa Gounder, who were residing in Managaram Village. P.W.I, Chinnammal is the wife of D-l Rangasamy. P.W.2 Thandapani is brother of P.W.I. D-2 Muniappa Gounder is the father of P.W.I Chinnammal and P.W.2 Thandapani. P.W.2 and D-2 are hailing from the nearby village called Muthunaickenpatti.

(b) A-l Chellappan, A-2 Kanthasamy and D-l Rangasamy are the sons of D-3 Palaniappa Gounder. Apart from these three sons, D-3 had one more son by name Ramasamy, who died ten years before. During the life time of the said Ramasamy, partition took place in the family, and in that partition, 1st appellant/A-1 Chellappan and his brother Ramasamy got their shares in the family properties, and began to live separately in the same village. After the death of Ramasamy, his wife Thangammai succeeded to his estate.

(c) Five years thereafter, the 2nd appellant/A-2 Kanthasamy, D-l Rangasamy and their father D-3 Palaniappa Gounder again partitioned the remaining properties, by dividing into equal shares and began to enjoy them separately.

(d) The 6th appellant/A-6 Velathal is the wife of 2nd apellant/A-2 Kanthasamy. The 3rd appellant/A-3 Rengasamy is the junior paternal uncle of A-6 Velathal. The 4th appellant/A-4 Chellamuthu is the brother of A-6 Velathal. The 5th appellant/A-5 Karuppusamy is the son of A-l Chellappan. The 3rd appellant/A-3 and the 4th appellant/A-4, relations of A-6 are the native of Ramagoundanpudur village.

(e) There was a common well in the lands in S.No.511/2 in Managaram village, belonging to A-2 Kanthasamy, Thangammal wife of Ramasamy and D-l Rangasamy. The 1st deceased Rangasamy purchased a portion of land in S.No.497/1, situate at the western side of the common well, from his father D-3 Palaniappa Gounder.

(f) On 15-5-1984, D-l Rangasamy was ploughing the land purchased from his father D-3, with the help of tractor. The appellants 1, 2 and 5/A-l Chellappan, A-2 Kanthasamy and A-5 Karuppusamy, trespassed into the said land and obstructed the ploughing of the land, claiming a right therein. Therefore, D-l Rangasamy went to Vadamadurai Police station on 16-5-1984, and gave a complaint to P.W.14-Manoha-ran, Sub-Inspector of Police, who in turn registered the case in Cr.No.130 of 1984, for the offences under Sections 341 and 447 I.P.C, against them. Ex.P13 is the copy of F.I.R., in that case. After investigation, P.W.14 filed charge sheet on 31-5-1984 in C.C.No.21 of 1984, in the Court of Special Judicial Second Class Magistrate, Vedachandur. After trial, these accused (A-l, A-2 and A-5) were convicted for offences under Sections 341 and 447 I.P.C, and sentenced to pay a fine of Rs.200/- each by order dated 24.11.1984. Ex.P24 is the Calendar extract.

(g) On 22-11-1986, D-l Rangasamy, in order to augment the water supply for irrigating his lands, started digging a new well in his land situate very near to the common well. While the coolies engaged by him began digging operations for a new well, the 1st appellant Chellappan threatened the said coolies with aruval and asked them not to dig the well, and go away. When D-l Rengasamy questioned this act, the 1st appellant attempted to attack him with aruval. Therefore, on the same day, D-l went to Vadamadurai police station, and gave a petition - Ex.P25. P.W.15, Grade I Police Constable, registered the petition as petition No.254 of 1986. P.W.21, Sub-Inspector of Police, attached to the said police station, conducted enquiry on 25-11-1986, and obtained an undertaking from the 1st appellant Chellappan, to the effect that he would not interfere in the future with the digging operations of the well by D-l in his field. Ex.P31 is the said undertaking, in which the 1st appellant had signed.

(h) Thereafter, the digging operation of the well began and continued for about five months. P.W.2 Dhandapani, a resident of Muthunaickenpatti and brother of P.W.I Chinnammal, came to the house of D-l and stayed there for about ten days, as a guest. D-2 Muniappa Gounder also came to their house to pay a courtesy call, a day prior to the occurrence.

(i) On 23-4-1987, the workers including P.W.3 Kalimuthu, engaged in the digging operation of the well, finished their day''s work at 6.00 P.M. Then they were taking their food by sitting under a margoza tree situate in the same land. At that time, D-l Rengasamy was also present there. The house of D-l was also situate very near to the place of occurrence. At that time, the 1st appellant/A-1 Chellappan came there, and shouted at the workers stating that they should not dig the well and asked them to leave the village immediately. D-l retorted saying that he had no business to interfere with the digging operation of the well in his land and that they would certainly dig the well as they were employed by him. A wordy altercation ensued between the 1st appellant and D-l. In the meantime D-3, the father of D-l and A-l came there. A-2 was also present there. A-l with the soori knife (M.O.I) in his hand aimed at D-l and attempted to stab him. D-l warded off the same, with the result, M.O.I fell down. The 2nd appellant/A-2 threatened D-l, and so saying, he went towards east.

(j) In a short while, he came back to the scene along with appellants 3 to 6/A-3 to A-6, carrying with weapons. A-2 with ferruled rice pounder-M.0.2, A-3 with kutheetti-M.0.3, A-4 with aruval-M.0.4, A-5 with rice pounder-M.0.5, and A-6 with stick-M.0.6, appeared in the scene. On seeing all the accused coming towards him with weapons, D-l Rengasamy started running towards his house. While he was so running, the 3rd appellant/A-3 stabbed him with M.0.3 kutheetti on his hip thrice. The 2nd appellant attempted to beat D-l with M.0.2 ferruled rice pounder. At that time, D-3 Palaniappa Gounder, the father shouted and attempted to prevent the 2nd appellant from beating. Therefore, the beating aimed at D-l by A-2 with M.0.2, fell on the head of D-3. Again A-2 beat D-3 on his head with M.0.2. On receipt of these injuries, D-3 fell down on the ground. A-2 then got over on his body and trampled on his chest. A-4 with M.0.4-aruvaI gave two cuts on the head of D-l. A-l with M.O.I soori knife stabbed on the neck, chest and right flank of D-l, indiscriminately. A-3 also again stabbed D-l repeatedly. At that time, D-2 Muniappa Gounder, father-in-law of D-l, who was inside the house came out. The 3rd appellant stabbed D-2 on his chest thrice, and stabbed twice on his back with M.0. 3 kutheetti. A-4 gave two cuts with M.0. 4 aruval on the head of D-2. A-l with M.O.I soori knife inflicted stabs on his chest, neck, right shoulder and other parts of the body repeatedly. D-2 Muniappa Gounder, on receipt of injuries stumbled walked into the house, fell down and died. Likewise, D-l also died at the spot in front of his house. D-3, father of D-l was gasping for breath.

(k) P.W.1 Chinnammal, wife of D-l screamed, on seeing the ghastly incident. A-5 gave a hit on her head with M.0.5 rice pounder. The 6th appellant Velathal beat P.W.I with M.0.6 stick on her left palm. A-4 cut P.W.I with M.0.4 aruval on her forehead and back. A-l stabbed her with M.O.I soori knife on the elbow of both her hands, back, shoulder and left middle finger. P.W.I also fell down. During the course of occurrence, the 4th appellant also sustained certain injuries on his hand, while the accused persons attacked the deceased persons and P.W.I.

(1) Both P.W.I and D-3 Palaniappa Gounder were writhing painfully, lying down on the ground. Thereafter, all the accused ran away, carrying the weapons in their hands, except A-2 and A-6 who dropped the weapons-M.Os.2 and 6 in the scene of occurrence itself. This occurrence was witnessed by P.W.I, the injured, P.W.2 Dhandapani, the brother of P.W.I and the workers, including P.W.3 Kalimuthu, engaged in the digging operation of the well.

(m) P.W.2 Dhandapani, rushed to P.W.5, who is the family friend of D-l at Thirukkan village, and informed about the incident at 7.30 p.m. P.W.5 and one Nallaperumal Thevar procured a taxi and came to the scene and took P.W.I and D-3 whose lives were lingering, to the Government Hospital, Dindigul.

(n) At 9.50 P.M., A-4 who sustained injuries during the course of occurrence, directly went to the Government Hospital, Dindigul, and got himself admitted. P.W.8, Doctor Ramakrishnan, examined him and found the following injuries:-

An incised wound on the right hand dorsum extending from metacarpal phalangial joint of little finger obliquely to the middle of the proximal phalanx of middle finger dividing the extension of tendon, dividing the capula and exposing the joint size 7 x 2 x 1 cm.

Incised wounds on the dorsum of terminal phalanx 2 x 1/2 x 1/2 cm. dividing the extensor expansion with fracture of terminal phalanx.

The wound certificate is Ex. P11. P.W.8 -Doctor sent intimation-Ex.P26 about the admission of A-4 in the Hospial, to North Police Station, Dindigul, at about 11.45 P.M.

(o) P.W.16, the Police Constable received the said intimation and went to the Government Hospital, and obtained a statement from A-4. Thereafter, he came back to Police Station and prepared a memo on the next day early hours at 2.15 A.M. He handed over the said complaint- Ex.P29 to Sub-Inspector of Police, of North Police Station, Dindigul.

(p)In the meantime, at 10.50 P.M., on 22-11-1986, D-3 Palaniappa Gounder was admitted in the Government Hospital, Dindigul. P.W.9-Doctor Mohan, gave emergency treatment to him. He found an incised injury scalp with aversion of the skin in fronto parietal region about 10 x 2 x 1 cm. exposing the bone bleeding. Ex. P 10 is the accident register extract.

(q) At 11.05 P.M., on the same day, P.W.8- Doctor examined P.W.I and noted down the following injuries:

Transverse incised injury on the forehead about 7 x 2 x 1 cm.

Transverse incised injury 1 1/2" above the first injury 8 x 2 x 1 cm.

Incised injury on the upper 1/3rd of right ear 3 x 1/2 x 1/2 cm.

Incised injury right elbow 3 x 1 x 1 cm.

Lacerated injury on the base of middle phalanx of middle finger left side 3 x 1/2 x 1/2 cm. Movement is painful.

An incised injury on the occipital region 5 x 2 x 1 cm.

Incised wound on the back of right elbow 3 x 2 x 1 cm.

Incised wound on the middle and ring finger 2 x 1 x 1 cm.

Incised wound on the middle of back near 5th thoracic vertebra spine 3 x 2 cm.

Ex.P9 is the wound certificate. P.W.10-Radiologist took X-ray film and found out depressed fracture of bone of skull on right side. M.O.20 series are the X-rays. P.W.8 sent intimation to the police as well as to the Magistrate.

(r) In the early hours of 12.20 A.M., i.e. about 00.20 A.M. on 22/23- 11-1986, P.W.17-Police Constable, attached to Dindigul North Police Station, received intimation-Ex.P27 about the admission of P.W.I and D- 3 in the Government Hospital. Immediately he rushed to the Government Hospital, and found that both P.W.I and D-3 were not in a condition to speak. So, at 00.45 hours, P.W.I7-Police Constable intimated this through phone to Vadamadurai jurisdiction police, to P.W.21-Sub Inspector of Police.

(s) At 1.30 A.M., on receipt of intimation from Doctor, attached to Government Hospital, Dindigul, the Judicial Magistrate at Dindigul, rushed to the Hospital and recorded the statement from P.W.I. Ex. Dl is the statement.

(t) On receipt of the telephonic message, P.W.21, Karumalaipandian, Sub-Inspector of Police, Vadamadurai Police Station, rushed to North Police Station, Dindigul and received Ex.P27-intimation sent by doctor. He also received a cover containing the statement of A-4 recorded by P.W.I6-Police Constable. From there, he went to the Government Hospital at 2.15 A.M. At that time, P.W.I was found conscious. P.W.21, obtained a oral statement from her, which was reduced into writing and her signature was obtained thereon. The statement is Ex.Pl. Then he came to Vadamadurai Police Station at 3.30 A.M., and registered the case in Cr.No.128 of 1987, for the offences under Sections 147, 148, 324 and 302 I.P.C., against A-l to A-6. Ex.P28 is the printed F.I.R. He sent both the documents to the Court as well as to the senior officials.

(u) At 4.00 A.M., P.W.21 opened the cover, which was handed over by P.W.16 at North Police Station, and took out the statement given by A- 4 to P.W.16 and registered a case in Cr.No.129 of 1987, for the offence u/s 324 of I.P.C., against D-l Rengasami. Ex.P30 is the printed F.I.R.

(v) At 4.30 A.M., P.W.22, Inspector of Police, Vadamadurai Police Station, on receipt of F.I.R., went to the spot, At 4.45 A.M., on 23-11-1986, prepared Ex.P2-observation mahazar, attested by P.W.4 and another. He drew rough sketch-Ex.P32. He caused the photographs of the same to be taken by P.W.7, the photographer. M.Os.18 and 19 series are the photographs and negatives of the scene.

(w) P.W.22, then held inquest over the dead body of D-l between 5.30 A.M. and 7.30 A.M. Ex.P33 is the inquest report. He handed over the dead body of D-l to P.W.18-Police Constable along with Ex.P13- requisition for the purpose of autopsy. Between 7.30 A.M., and 9.00 A.M., he held inquest over the body of D-2. Ex.P34 is the inquest report. He handed over the dead body of D-2 to P.W.19-Police Constable along with Ex.P15-requisition for post-mortem. During the course of inquest on their two dead bodies, he examined P.Ws.2 and 3. At 9.15 A.M., he seized M.O.2- rice pounder, M.O.6 stick, M.0.9-mat, M.O.10- bloodstained earth, M.O.I 1-sample earth, M.0.12-bloodstained karai, M.0.14-dhoti, M.0.15- a pair of chappals and M.O.16 another pair of chappals, under Ex.P4.

(x) At 7.55 A.M. D-3 died at the Hospital. So, P.W.I 1-Doctor Subash sent death intimation - Ex.P12 through P.W.20-Police Constable. At 11.00 A.M., P.W.22-Inspector of Police, on receipt of death intimation, altered the case into Section 302 I.P.C., (three counts), and sent express F.I.R., to the concerned officials. Ex.P36 is the altered F.I.R.

(y) Between 11.30 A.M. and 1.00 P.M., P.W.22, conducted inquest over the dead body of D-3. Ex.P35 is the inquest report. He handed over the dead body of D-3 to P.W.20-Police Constable with Ex.P17-requisition for postmortem. At 2.15 P.M., P.W.22 examined P.W.I in the Government Hospital at Dindigul, and seized from her M.0.7-bloodstained saree and M.0.8-bloodstained jacket under Ex.P5. He also examined A-4 in the hospital.

(z) P.W.12-Doctor Nagarajan, conducted autopsy on the dead body of D-l at 2.30 P.M., on 24-4-1987, and found the following injuries :-

A lacerated wound just above the forehead on right side of size 3 cm x 1 cm x bone depth situated vertically.

A lacerated wound over the middle of the scalp of size 3 cm x 1 cm x bone depth.

A lacerated wound over the left side of back of the scalp of size 2 cm x 1/2 cm x bone depth.

A lacerated wound over the back of the scalp over the occiput of size 2 cm x 1/2 cm x bone depth.

An incised wound situated 2 cm above left collar bone horizontally of size 3 cm x 1 cm x 1 cm.

An incised wound over the front of left shoulder of size 5 cm x 2 cm x bone depth exposing the shoulder joint.

A punctured wound over the right side of the front of the chest measuring 2 cm x 1/2 cm x depth entering the thoracic cavity.

A punctured wound of size 3 cm x 1 cm x depth entering the peritoneal cavity situated over the lower back on right side horizontally.

A punctured wound of size 3 cm x 1 cm x depth entering the peritoneal cavity situated 3 cm. below wound No.5 horizontally.

A punctured wound of size 3 cm x 1 cm x depth entering the peritoneal cavity situated over the lower back on left side horizontally.

A lacerated wound situated over the middle of the back of the chest vertically of size 3 cm x 1 cm x 2 cm.

An incised wound situated over the back of left elbow of size 3 cm x 1 cm x 1 cm.

On internal examinations :-

Heart : 250 G. chambers - empty

Lungs : Rt. Lung :250 G - A punctured wound 1 cm. breadth x 4 cm. in depth over the right lower lobe on the anterior aspect. Surrounding area of the injury: congested. Lt. Lung : 200 G pale.

Stomach : 200 G. partially digested rice particles present.

Liver

Spleen, and

Kidneys were pale.

A blood clot of 100 g. wt. found behind the transverse colon and right kidney.

A blood clot of about 25 G. found underneath the scalp, corresponding to external injury No. l.

A depressed fracture of right parietal bone of size 6 cm. curved in shape.

Brain - 1350 G congested.

Ex. P14 is the post-mortem certificate.

(aa) At 3.30 P.M., P.W.12-Doctor conducted autopsy on the body of D-2 and found the following injuries :-

A lacerated wound of size 4 cm x 1/2 cm x bone depth situated over the right of the scalp, parietal area horizontally.

A lacerated wound of size 5 cm x 1 cm x bone depth situated over back of the scalp occipital area longitudinally.

An abrasion of size 5 cm x 1 cm. situated just lateral to right eye horizontally.

An incised wound of size 3 cm x 1 cm x 1 cm. over the back of right forearm.

An incised wound of size 1 1/2 cm x 1/2 cm x 1 cm. situated over the front of right arm.

A punctured wound of size 3 cm x 1 cm x 5 cm. over the left side of the front of the chest situated horizontally.

A punctured wound of size 3 cm x 1 cm x 5 cm over the front of chest on left side, 2 cm lateral to the midline situated obliquely.

An incised wound of size 2 cm x 1 cm x 1 cm. over the back of left forearm.

An incised wound of size 5 cm x 1 cm x 2 cm over the right side of the back of the chest.

On internal examination :

Heart : 250 G chambers empty.

A punctured wound over the right atrium situated anteriorly of size 1 cm entering the cavity; surrounding area of the heart wall congested;

Lungs : Rt. Lung - 300 G Lt. Lung - 250G. Left lung punctured of size 1 cm x 2 cm. depth over left upper lobe. Another puncture situated 1 cm below the first puncture of size 1 cm x 2 cm depth; surrounding areas of the lung congested.

Stomach : 450 G partially digested rice present.

Liver

Spleen, and

Kidneys were pale

Brain : pale."

Ex.P16 is the post-mortem certificate.

(ab) At 4.30 P.M., P.W.12-Doctor conducted post-mortem over the dead body of D-3, and found the following injuries :-

A sutured wound of size 15 cm. situated over the middle of the scalp on either side of midline. On removal of the sutures, the wound was found to be of bone depth.

A sutured wound of size 6 cm. situated 4 cm. behind wound No. 1 on the left side of the scalp. On removal of the sutures, the wound was found to be of bone depth.

An abrasion of size 1 cm x 1 cm. situated just lateral to right eye.

An abrasion of size 2 cm x 1 cm situated close to the left side of the nose.

A lacerated wound of size 1 cm x 1/2 cm x 1/2 cm. over the right side of the lower lip.

A sutured wound of 2 cms. in length situated over the medial malleolus of the right ankle.

A raddish discoloration over the right side of the front of the chest of size 15 cm x 8 cm.

On internal examination :

Heart : 250 G Chambers - empty, pale.

Heart : Rt. Lung - 400 G. Lt. Lung - 350 G.

Rt. Lung : An irregular tear on the anterior aspect of lower lobe measuring 3 cm. in length x 2 cm in depth. Surrounding area of the lung congested.

Stomach : 350 G. Dark brown partially digested food present.

Liver

Spleen and

Kidneys were pale

Skull : An irregular depressed fracture right parietal bone, extending on to the right temporal bone of size 15 cm.

Another crack fracture found extending from right parietal bone into the occipital bone. An extra dural haemotoma of about 100 G. found underneath the above mentioned fracture.

A tear in the brain membranes of about 5 cm. in length over the right temporal region through which brain matter is protruding out.

Another tear in the brain membranes over right parietal area of about 2 cm. in length through which brain matter is protruding out. Brain matter over right parietal and temporal areas crushed.

right ribs : 1 to 4 found fractured on the anterior aspect.

Hyoid bone - intact.

Ex. P18 is the post-mortem certificate in respect of D-3. The Doctor was of the opinion that D-l to D-3 would appear to have died of haemorrhage, shock and injuries to vital organs.

(ac) On 25-4-1987, P.W.22 seized from P.W.5, his shirt-M.O.17, in which blood was stained, while he was taking P.W.I and D-3 to Government Hospital, under Ex.P6 mahazar. At 1.00 P.M., he arrested A-4 and sent him for judicial custody. On 26-4-1987, A-l, A-2, A-3 and A-5 surrendered before the Judicial Second Class Magistrate, Palani. On 30- 4-1987, P.W.22 filed a petition for A-l''s custody, and obtained the same.

(ad) On 14-5-1987, A-l, while in police custody gave confession, the admissible portion of which is Ex.P7, which led to the recovery of M.Os. l, 3 to 5, which were kept concealed inside the hay rick of the house of A-2 under Ex.P8-mahazar. P.W.7 took photographs of the hay rick.

(ae) On 17-5-1987, P.W.22 sent requisi-tion-Ex.P19, to Court for sending the M.Os. to the forensic science laboratory. P.W.13-Court Clerk sent the M.Os. for chemical analysis with the covering letter of the Judicial Magistrate-Ex.P20. Exs.P21 and P22 are the chemical analyst''s report and serologist''s report respectively.

(af) On 23-6-1987, P.W.22 referred the counter complaint given by A-4 in Cr.No.129 of 1987, as mistake of fact. After completing the investigation in Cr.No.128 of 1987, P.W.22 filed the charge sheet under Sections 147,148,324,326,307,302, 302 read with 34 and 307 read with 34 I.P.C. against A-l to A-6 before Judicial Second Class Magistrate, Vedachandur.

Upon committal, the learned Sessions Judge framed charges as against the accused 1 to 6 as detailed below:-

Charge No.

Section of IRC.

Against whom

First

148

Accused 1 to 5

Second

147

Accused 6

Third

302

Accused 1 to 4 for causing the death of D-i

Fourth

302

Accused 1,3 and 4 for causing the death of D-2

Fifth

302

Accused 2 - for causing the death of D-3

Sixth

307

Accused 1,4,5 and 6 for attempting to commit murder of P.W.I.

Seventh 302 read with 34 Accused 1 and 3 to 6 for causing the death of D-3 in furtherance of common intention

Eighth 302 read with 34 Accused 5 and 6 for causing the death of D-1 in furtherance of common intention

Ninth 302 read with 34 Accused 2,5 and 6 for causing the death of D-2 in furtherance of common intention

Tenth 307 read with 34 Accused 2 and 3 for attempting to commit murder of P.W.I in furtherance of common intention

Accused, when questioned as respects the charges framed against them, denied the same and claimed to be tried.

In proof of the charges, the prosecution examined P.Ws. l to 22, filed Exhibits PI to P36 and marked M.Os. l to 26.

The accused, when questioned u/s 313 Cr. P.C. as respects the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. They did not choose to examine any witness on their side. However, they marked Ex. Dl, statement of P.W.I, recorded by the Judicial Second Class Magistrate, Dindigul, and Ex,D2, a file containing the proceedings of police custody of accused 1 between 30-4-1987 and 14-5-1987.

The learned Sessions Judge, on penisal of the evidence placed before him and on hearing the arguments of the learned Public Prosecutor and the learned Counsel for the defence found accused 1 to 6 guilty of various offences, convicted them thereunder and sentenced to various terms of imprisonment and fine as detailed below:-[Please see next page-Page 499]

Aggrieved over these findings, the appellants approached this Court through this appeal. The Sessions Court also sent reference for confirmation of death sentence imposed upon Appellants 1 to 3/A-l to A- 3.

This Court on hearing the counsel for both, by its Judgment dated 23-12-1988, on consideration of the entire materials available in this case acquitted all the appellants of all the charges, by setting aside the conviction and sentence imposed upon them by the trial Court. Against this Judgment, though there was no appeal by the State, P.W.I- Chinnammal filed an appeal before the Apex Court.

On consideration of the submissions made by both the parties, and on perusal of the Judgment and other records, the Apex Court, on 20-11-1996, allowed the appeal by setting aside the impugned Judgment of this Court, and remanded the matter to this Court for fresh disposal of the appeal in accordance with law. That is how this appeal and Referred Trial have again come up before this Bench.

Charge Number

Against Whom

Finding and conviction under which section of Indian Penal Code

Sentence

First

A-l to A-5

Guilty u/S.148 (A-l to A-5)

No separate sentence was imposed on A-l to A-4. A-5 � One year R.I.

Second

A-6

Guilty u/S.147 � A6

A fine of Rs.200/- i.e. to undergo R.I. for three months

Third

A-l to A-4

A-l & A-4 guilty u/S.302 (for causing the death of D-l) A-3 guilty u/S.302 read with 34 A-2 not guilty

A-l and A-3 sentenced to death A-4 Sentenced to imprisonment for life Acquitted

Fourth

A-l, 3 and A-4

A4 guilty u/S.302 (for causing the death of D-2) A-l and A-3 u/S.302 read with 34

A-l and A-3 sentenced to death A-4 sentenced to imprisonment to death

Fifth

A-2

Guilty u/S.302 (for causing the death of D-3)

sentenced to death

Sixth

A-l, A-4, A-5 & A-6

A-l, A-4 and A-5 guilty u/S.307 (for attempting to cause the death of P.W.I) A-6 guilty u/S.323

A-l and A-4 - no separate sentence was imposed. A-5 � seven year R.I. A-6 � fine of Rs.200/- i.e. to undergo R.I. for three months

Seventh

A-l, A-3 to A-6

A-l, A-3 and A-4 guilty u/S.302 r/w 34 (for causing the death of D-3 in furtherance of common intention) A-5 and A-6 Not guilty

A-l and A-3 �sentence to death A-4 � imprisonment for life Acquitted

Eighth

A-5 & A-6

Not guilty u/S. 302 r/w 34 (for causing the death of D-l in further of common intention

Acquitted

Ninth

A-2, A-5 and A-6

A-2 guilty u/S.302 r/w 34 (for causing the death of D-2 in furtherance of common intention) A-5 & A6 not guilty

A-2 � Sentenced to death Acquitted

Tenth

A-2,& A-3

Guilty u/S.307 r/w 34 (attempting to commit murder of P.W.I in furtherance of common intention)

Nc separate sentence was imposed on A-2

Mr. N. Natarajan, learned senior counsel took us through the entire evidence and elaborately dealt with various circumstances in favour of the appellants. The following is the gist of various submissions made by learned counsel for the appellants:-

(i) P.W. l-Chinnammal is not a reliable witness, since her statement- Ex. Dl made before the Judicial Magistrate materially contradicts her statement Ex.Pl given to police.

(ii) P.W.2, another eye witness is not a truthful witness. If he had seen the occurrence, he would have also intervened and sustained injuries, like P.W.I. Though in the occurrence, aruval, rice pounder, kutheetti and stick were used, P.W.2, the alleged eye witness informed to P.W.5, who took the victim to the Hospital, that aruval alone was used. On that basis, P.W.5, who accompanied the victim informed the Doctor, that the weapon of the offence was aruval. So, P.W.2 could not have seen the occurrence.

(iii) P.W.3, another eye witness is also not reliable. His name had not been mentioned in the F.I.R. If he had worked for five months in digging work, P.W.I would have mentioned his name in the F.I.R. His conduct, in not preventing the accused persons from attacking the deceased persons and in not taking steps to take the victims to the hospital, and leaving the occurrence place immediately after the occurrence to a nearby village, and coming back to the scene village only next day morning, would make his testimony doubtful.

(iv) The evidence of ocular witnesses, viz. P.Ws. 1 to 3 is contradictory to the medical testimony adduced by Drs.P.Ws.8,9 and 12 etc.

(v) P.W.5, a friend of D-l had accompanied P.W.I and D-3 in the taxi to Hospital. At that time, P.W.I alone was able to speak. D-3 who was also taken to the hospital, in the same taxi was unconscious. Therefore, P.W.5 must have tutored P.W.I to implicate all the accused persons in this case, in her statements made to the Judicial Magistrate, as well as to the police.

(vi) Though there are vital variations in between Ex. Dl, the statement made by P.W.I, before the Judicial Magistrate and in Ex.Pl, the statement made by P.W.I, before the Sub-Inspector of Police, P.W.21, the investigating of-ficer/P.W.22-Inspector of Police, failed to investigate on those aspects, by further interrogating P.W.I, and examining the Judicial Magistrate and Doctor, who gave certificate that P.W.I was conscious, while Ex. Dl was recorded. This failure would amount to faulty investigation which would go to the root of the matter, affecting the credibility of the prosecution case.

(vii) Various important materials given in the deposition before the Court were omitted to be mentioned in F.I.R. This would show that there are lot of improvements, stage by stage in the prosecution case.

(viii) Ex. Dl, the statement made by P.W.I, before the Judicial Magistrate was recorded at 1.30 A.M./midnight. Ex.Pl, the complaint given by P.W.I, to the Sub-Inspector of Police was recorded only at 2.15 A.M. Since Ex. Dl contains the allegation constituting cognizable offence, it must be taken to mean, that the investigation had already commenced on receipt of Ex. Dl. So, Ex.Pl is not admissible as it is hit by Section 162 Cr. P.C.

(ix) P.W.I would admit that drip was given through her hand, when Ex.Pl was recorded by Sub-Inspector of Police. But, signature of P.W.I is found in Ex.Pl, whereas in Ex. Dl, only thumb impression is available. So, Ex.Pl would not have been prepared at the time alleged by the prosecution and the same should have been fabricated only at a later point of time by the police, after consultation and confabulation only on visiting the spot and after seeing the sites of the injuries on the bodies of the deceased, in order to suit the prosecution case.

By way of reply, learned Public Prosecutor, made the following submissions:-

P.Ws.1 to 3 are reliable witnesses. There is no material difference between Ex. Dl and Ex.Pl. The prosecution case cannot be thrown out, merely because there are some minor variations in these two documents. Ex. Dl is not admissible u/s 32 of the Evidence Act, since P.W.I is alive. However, it is admissible only when the conditions incorporated in Section 145 of the Evidence Act are complied with. If those conditions have not been complied with, then Ex. Dl would loose its admissibility. Though Ex. Dl may be taken as a prior statement, as per Section 157 of the Evidence Act, the same could not be considered to be the substantive evidence. At the most, Ex. Dl could be used for limited purpose, for corroborating or contradicting the depositions made by the witnesses before the Court. The evidence of independent witness, P.W.3, who is a temporary worker engaged in the digging operation by D-l, would corroborate the evidence of P.W. 1, and P.W.2. Their evidence is fully in consonance with the medical evidence. Ex.Pl statement recorded by the Sub-Inspector of Police at 2.15 A.M., was received by the Judicial Magistrate at 5.00 A.M., on the same date itself. The trial Court, elaborately considered all the materials, meticulously by taking into consideration the demeanor of the witnesses also, and gave acceptable and rational reasoning to hold the accused guilty.

Before analysing the merits of the case, in the light of the submissions made by both the counsel, let us now refer to the relevant portions of the Judgment of the Apex Court, in which, important guidelines have been given for the appreciation of evidence in this case, which are as follows:-

On perusal of the impugned judgment we find that the principal reason which weighed with the High Court in setting aside the convictions of the accused/respondents is that the statement (Ext. Dl) made by the appellant (who also claimed to have been assaulted by the accused persons during the incident) before a Magistrate which was initially recorded as her dying declaration but was subsequently treated as a statement recorded u/s 164 Cr. P.C. in view of her survival and the report (Ext.Pl) that she lodged with the police (which was treated as the "First Information Report) contradicted each other materially. In our considered view, this approach of the High Court in dealing with the evidence was patently wrong. It is trite that a case has to be decided on the basis of the evidence adduced by the witnesses during the trial and any previous statement made by any of such witness can be used by the defence for the purpose of only contradicting and discrediting that particular witness in the manner laid down in Section 145 of the Evidence Act. Under no circumstances can such previous statements be treated as substantive evidence as has been treated by the High Court in the instant case. In view of these well settled principles of law, the High Court was first required to consider the statements made by the prosecution witnesses during trial and decide for itself whether those statements should be relied upon in view of their contradictions (if any) with their earlier statements, provided those contradictions had been brought on record u/s 145 of the Evidence Act. The other patent infirmity in the impugned judgment is that the High Court discarded the evidence of the witnesses who gave ocular version of the incident with a sweeping observation that they were artificial and unnatural and that it was not possible to place any reliance upon their testimonies, without referring, much less discussing the same.

For the foregoing discussion we set aside the impugned judgment and remand the matter to the High Court for disposal of the appeal in accordance with law. Since the matter is long pending, the High Court is requested to dispose of the appeal as expeditiously as possible, preferably within a period of two months from the date of communication of this order. The accused-respondents, who are on bail, will continue to remain so till disposal of the appeal by the High Court.

Now we shall enter into the arena of discussion in the process of analysis of the credibility of the prosecution case by referring various points raised by learned senior counsel for the appellants one by one in the light of the guidelines given by the Apex Court, as referred above.

(A) The main attack made by learned senior counsel for the appellants is the contents of Ex. Dl, which would materially contradict Ex.Pl and make the testimony of P.W.I, an injured witness unreliable. Before considering the reliability of P.W.I, in the context of Ex. Dl, we shall now endeavour to go into the question as to what extent Ex. Dl could be acted upon.

(i) It is relevant to note at this stage, that the very same ground had been urged before this Court on the earlier occasion, on the basis of which all the accused have been acquitted. In the appeal filed before the Apex Court, the Supreme Court considered this aspect and observed that the consideration of the material contradiction between Ex.Pl and Ex. Dl to throw out the prosecution case was patently wrong, that this previous statement-Ex. Dl could not be treated as a substantive evidence, and that this Court was first required to consider the statement made by the prosecution witness during trial and decide whether the deposition made before Court should be relied upon in view of the contradictions, if any, with her earlier statement, provided that those contradictions have been brought on record as per Section 145 of the Evidence Act.

(ii) In the light of those observations, this Court has to necessarily consider two things:-

(1) To find out whether the contradictions between the deposition of P.W.I and Ex. Dl, had been brought on record, while P.W.I was examined, by fulfilling the conditions mentioned in Section 145 of the Evidence Act.

(2) To verify whether there are any material contradictions between the deposition of P.W.I and Ex. Dl.

(iii) In the context of consideration of these things, we shall first see the relevant sections v/z.,145, 155(3) and 157 of the Evidence Act, regarding the admissibility of the previous statement made by the witnesses.

(a) Section 145 of the Evidence Act reads thus:-

145 Cross-examination as to previous statements in writing:-

A witness may be cross-examined as to previous statements made by him in writing or reduced into waiting, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

(b) Section 155(3) of the Evidence Act runs as follows:-

Impeaching credit of witness:- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

(c) Section 157 of the Evidence Act deals with former statements of witness may be proved to corroborate later testimony as to same fact:-

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place or before any authority legally competent to investigate the fact, may be proved.

(iv) It is quite evident from the reading of Section 145 of the Evidence Act, that the prior statement of witness cannot be taken into consideration, in order to discredit him or to contradict his statement, unless such prior statement was put to the witness and his attention was duly drawn thereof. The object of Section 145 of the Evidence Act is to give the witness a chance of explaining the discrepancy or inconsistency and clear up the broad point of ambiguity or desire. Therefore, the condition of reading over the entire statement to the witness in extenso or the drawing of the attention of the witness to the contradiction of the various portions found in the previous statement is a must.

(v) u/s 155(3) of the Evidence Act, the credit of the witness could be impeached by proof of former statement by putting the question to the witness by proving the former statement inconsistent with any part of his evidence, which is liable to be contradicted.

(vi) u/s 157 of the Evidence Act, any former statement made by the witness could be used by a party to the case, only in order to corroborate the testimony of a witness.

(vii) In Binay Kumar Singh v. State of Bihar (1977 (1) S.C.C. 283), the Apex Court observed thus:-

The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown ''i him. Rut the second limb provides that "if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose for contradicting him. There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross- examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in court on that score would not be vitiated until the cross-examination proceeds to comply with the procedure prescribed in the second limb of Section 145.

In Bhagwan Singh case, Vivian Bose, J. pointed out in Para 25 that

during cross-examination of the witnesses concerned the formalities prescribed by Section 145 are complied with. The cross- examination in that case indicated that every circumstance intended to be used as contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses'' attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case that the procedure adopted was in substantial compliance with Section 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein.

So long as the attention of P.W.32 (Sukhdev Bhagat) was not drawn to the statement attributed to him as recorded by D.W.I9 (Nawal Kishore Prasad) we are not persuaded to reject the evidence of P.W.32 that he gave Ext. 14 statement at the venue of occurrence and that he had not given any other statement earlier thereto."

(viii) In the light of the guidelines enumerated in the above citation, in the instant case, Sections 145 and 155(3) of the Evidence Act, are quite relevant for deciding the issue of compliance of these Sections in order to find out, whether the statement-Ex. Dl could be used as against the prosecution case, by the defence. In other words, the contradicted portion found in the previous statement, which was drawn to the attention of the witness, while in the box, alone could be used in order to discredit the testimony of such a witness. Therefore, we shall now see whether the variations found in between the deposition of P.W.I and in Ex. Dl, her statement before the Judicial Magistrate, were specifically read out to her and her attention was drawn to the said variations.

(ix) According to the prosecution, as projected through the eye witnesses, P.Ws. 1 to 3, A-l with Soorikathi-M.O. l, A-3 with kutheetti M.0.3, A-4 with aruval-M.0.4 attacked D-l Rangasamy; PW. A- 2 with rice pounder-M.0.2, attacked D-3 Palaniappa Gounder, the father of D-l and trampled him on his chest. Thereafter A-l with M.O.I soorikathi, A-3 with M.0.3 Kutheetti, A-4 with M.0.4-aruval, attacked D-2 Muniappa Gounder, the father-in-law of D-l, who came to the scene at that time. When P.W.I Chinnammal, on seeing the incident cried and intervened, A-5 with rice pounder M.0.5, A-6 with stick-M.0.6, A-l with Soorikathi-M.O.1, A-4 with aruval-M.0.4, attacked and inflicted injuries on P.W.I.

(x) In Ex. Dl, the statement made by P.W.I, to the Judicial Magistrate, it is mentioned that A-2 with firewood stick attacked D-2, the father- in-law of D-l, whereas the same has not been stated in the deposition of P.W.I In Ex. Dl, it is mentioned that A-3 along with A-2 beat D-3, the father of D-l. But in the deposition of P.W.I, it is mentioned that A-2 alone beat D-3. In Ex. Dl, it is stated that A-3 attacked P.W.I with aruval, which is not mentioned in her deposition. It is also stated in Ex. Dl, that D-2, the father-in-law of D-l was tacked by A-2, A-4, A-5 and A-6, but in the deposition, P.W.I stated that D-2 was attacked by A-l, A-3 and A-4. In Ex. Dl, it is stated that D-2, the father-in-law of D-l, on his being attacked, went along with the children, after closing the door of the house. But, it is stated in the deposition of P.W.I, that D-2 after receipt of the injuries went towards the house by taking stumbling steps and fell down inside the house and died.

(xi)A perusal of the cross-examination of P.W.I would make it clear that these contradictions have not been put to P.W.I, and the attention of P.W.I had not been drawn to these contradictions. As the Apex Court observed, as referred, earlier, that the cross examination should indicate that every circumstance intended to be used as a contradiction had been put to the witness point by point and passage by passage. The reason for these passages to be drawn to the attention of the witnesses is that the witnesses must be afforded reasonable opportunity of explaining the contradictions, while the attention was drawn to the witness in a fair and reasonable manner.

(xii) No doubt it is true, P.W.I would admit in her cross-examination, that she did not remember, as to whether she mentioned in Ex. Dl, that A- 1 stabbed her father D-2, that A-5 and A-6 with rice pounder attacked P.W.I, that A-l and A-2 beat D-3 with stick, and that A-2, A- 4 to A-6 with rice pounder beat her father D-2. Except this, the contradictions as mentioned in the earlier paragraph in between the deposition of P.W.I and Ex. Dl had not been read over to her, point by point and passage by passage. In other words, her attention was not drawn to the various contradictions, which are pointed out before this Court by learned senior counsel for the appellants, as vital contradictions.

(xiii) Therefore, the alleged vital contradictions, in the light of the non-compliance of the conditions contemplated u/s 145 of the Evidence Act, in our view, would assume no significance. As pointed out by the Apex Court, these contradictions cannot be made use of to discredit the deposition of P.W.I under Sections 145 and 155(3) of the Evidence Act. However, Ex. Dl, as a former statement made by the witness, relating to the same fact, can very well be taken into consideration, in order to corroborate the testimony of the witness in the box u/s 157 of the Evidence Act, though Ex. Dl has been marked as a defence document, through P.W.I. This proposition of law is well settled by the Apex Court in Gentela Vijayavardhan Rao v. State of A.P. (1996 S.C.C.(Crl.) 1290), as follows:-

Though the statement given to a Magistrate by someone under expectation of death ceases to have evidentiary value u/s 32 of the Evidence Act if the maker thereof did not die, such a statement has, nevertheless, some utility in trials. It can be used to corroborate this testimony in Court u/s 157 of the Evidence Act which permits such use, being a statement made by the witness "before any authority legally competent to investigate." The word "investigate" has been used in the section in a broader sense. Similarly the words "legally competent" debate a person vested with the authority by law to collect facts. A Magistrate is legally competent record dying declaration "in the course of an investigation" as provided in Chapter XII of the Code of Criminal Procedure, 1973. The contours provided in Section 164(1) would cover such a statement also. However, such a statement, so long as its maker remains alive, cannot be used as substantive evidence. Its user is limited to corroboration or contradiction of the testimony of its maker.

(xiii-a)Therefore, let us see whether Ex. Dl could be used to corroborate the deposition given by P.W.I before the Court. The chart given below would be useful for the comparison of the relevant facts as detailed in the deposition of P.W.I with Ex. Dl, the earlier statement made to the Judicial Magistrate.

CHART

Deposition (of P.W. 1 before Court) Ex. Dl (statement made by P.W.I)

On Thursday, at about 6.00 P.M., the workers after finishing their well digging operation were sitting under a neam tree, and taking their food. A-l came there and shouted at the workers, asking them not to dig the well any more. At that time, my husband (D-l) who was present there, retorted to A-l saying "in my place the well is being dug, who are you to question? A-l with soorikathi attempted to stab my husband. But my husband warded off the attack, with the result the weapon fell down on the ground. The workers engaged in the work of digging the well were sitting in the ''kotram'' and were taking their food. A-l came there and asked the workers, to go away from the village. My husband was sitting in the cot at that time. My husband said "we will continue to dig the well, you can do whatever you like". Then A-l with soorikathi, came near my husband and attempted to stab him. But my husband snatched away the soori from his hands.

A-2, who was present in the scene, exclaimed to my husband "wait, I will come and speak." So saying he went to the eastern side and brought A-3 to A-6, who came with weapons, M.0.3 to M.O.6. A-2 fled away from the scene towards garden and brought A-3 to A-5 to the spot. A-2 to A-5 took the sticks each.

My husband rushed towards our house, on seeing these accused coming with the weapons, in order to take a weapon But A-3 with M.O.3 kutheetti stabbed thrice at the back of the hip of my husband. A-3 with kutheetti stabbed on the chest of my husband. On receipt of stab injury my husband fell and rolled down upto the entrance of the house.

My father-in-law (D-3) Palaniappa Gounder intervened, when A-2 was about to attack D-l. So, the beating with rice-pounder M.O.2 by A-2 fell on the head of D-3. Again he attacked on the head. Then my father-in-law (D-3) fell down on the ground. A-2 and A-3 both beat my father-in-law (D-3) and made him to fall on the ground.

A-l with Soortikathi-M.O. l A-3 with kutheetti-M.O.3, and A-4 with aruval-M.O.4, attacked my father (D-2) My father (D-2) was attacked by A-5,A-2,A-6 and A-4 with rice- pounder.

My father D-2, after he was being attacked, stumbled and slowly went inside the house and died. My father on receipt of the injuries went along with the children after closing the door of the house.

A-5 with M.O.5 rice pounder beat on my head, A-6 with M.O,6-thadi beat on my hand, A-l with M.O.I soorikathi stabbed on my hands. A-4 with M.O.4 aruval attacked on my head and back. A-6 with rice pounder attacked on my back and head. A-3 with aruval attacked on my forehead and left hand.

After the attack was over and the accused sped away from the place, my brother P.W.2 Dhanda-pani, went to Thirukkan village and brought P.W.5 and one Nalla Perumal Thevar to the scene, from where myself and my father-in-law (D-3) were taken by them by taxi to the Government Hospital, Dindigul. My husband (D-l), my father-in-law (D-3) and myself lying down in the ground. My brother Dhada-pani went to Nallaman-narkottai village and brought family friends who came to the scene and took us to the hospital.

(xiii-b) A careful reading of the deposition of P.W. 1 with comparison of the relevant portions of Ex. Dl would disclose that there is a 1997 2 L.W. (Cri.) 7 general corroboration in the material particulars, though there are some variations. In Ex. Dl the earliest document, the presence of all the six accused with the weapons is mentioned. The particulars of the eye witnesses, viz., P.W.2 and the workers engaged in the digging operation of the well also have been mentioned. The details as to how the occurrence had started, and the fact of P.W.2 Dhandapani, having gone outside the scene village and brought the family friends to the spot, and taken the injured persons in a car also had been mentioned. Therefore, though Ex. Dl has been marked as a defence document, the prosecution could, as well, u/s 157 of the Evidence Act, use the same, as it generally corroborates the testimony of P.W.I.

(xiv) In other words, in the absence of the contradictions having been drawn to the attention of P.W.I, the defence could not make use of the statement to discredit the testimony of P.W.I, due to the non- compliance of the conditions of Section 145 of the Evidence Act, as indicated earlier. Therefore, by pointing out some contradictions between the deposition of P.W.I and Ex. Dl, it cannot be contended that the evidence of P.W.I has to be rejected in to. On the contrary, a reading of Ex. Dl, Ex.Pl and the deposition of P.W.I on the whole would very well disclose that the evidence of P.W.I is consistent and trustworthy.

(xv) The Apex Court, while dealing with the similar facts of the case, with reference to the contradictions relating to the overt acts, between the statement made before the Magistrate before the commencement of the investigation, and the deposition given in the Court, and the statement made to the police during the course of investigation, in Appabhai and Another Vs. State of Gujarat, , held as follows:-

On the second contention, the learned counsel highlighted many of the contradictions in the evidence of Devji (P.W.4) as against his previous statement: one recorded by the Executive Magistrate (Exh.66) and another by the police during the investigation. We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye-witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire "material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.

(xvi) As mentioned in the earlier paragraph and indicated in the chart, there may be some contradictions with reference to the overt acts. But, in our view, even assuming that Ex. Dl- could be used by the defence, despite the non-compliance of the requirements u/s 145 of the Evidence Act, the above discrepancies cannot be said to be vital, because the said discrepancies do not shake the basic version of the prosecution case. As pointed out by the Apex Court, in the citation referred to above, P.W.I, being the victim of the brutal attack, who is fortunately surviving, should be considered as the best eye witness. The contradictions pointed out by learned senior counsel for the appellants are purely due to the normal errors of presumption and observation, to which much importance need not be given.

(xvii) In view of what we have stated above, we consider that the evidence of P.W.I, is beyond reproach and above suspicion.

(B) It is urged by learned senior counsel for die appellants, that the evidence of P.W.2, the brother of P.W.I could not be relied upon, since there was no attempt on his part to prevent the attack made by the accused persons on the deceased, and admittedly he did not sustain injury, and therefore, his presence was doubtful.

(i) P.W.2 Dhandapani was only a boy of 18 years, at the time of occurrence. He came to the house of P.W.I, as a guest. Being an young boy, he would certainly get shocked, while all the three deceased were being brutally attacked by a group of persons with dangerous weapons. Probably, that may be the reason for his not having accompanied the injured to the hospital in the car, though he immediately rushed to the nearby village and informed about the incident to P.W.5, the family friend of D-l.

(ii) It is also relevant at this stage to note that he would admit that his shirt did not stain with the blood as he did not help in lifting the injured persons, and putting them in the car, whereas the shirt of P.W.5 got stained with blood, which was recovered from him by the investigating officer, since, according to P.W.5, he along with one Nallaperumal Thevar lifted the victims and put them in the car.

(iii) In this context, the Judgment of Supreme Court reported in Rana Partap and Others Vs. State of Haryana, , would give correct answer to the point raised by learned senior counsel for the appellants. The relevant observation is this:-

Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become "speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

(iv) In view of the above observation, the failure of P.W.2 to intervene in order to prevent the attack would not make the evidence of P.W.2 unreliable. As a matter of fact, as referred earlier, his name is mentioned both in Ex. Dl and Ex.PI, the earliest documents. Moreover, he was also examined during the course of inquest.

(v) Yet another submission made by learned senior counsel for the appellants with reference to the evidence of P.W.2 was that, if P.W.2 was present at the time of occurrence, he would have mentioned about the details of all the weapons used by the accused at the time of occurrence, for inflicting injuries on P.W.I and the deceased persons, to P.W.5 Tamilarasan.

(vi) P.W.5 Tamilarasan would say that P.W.2 came and informed him about the incident. He rushed to the scene after arranging for a car and took the victims to the hospital. Both D-3 and P.W.I were admitted in the Hospital, in the night at about 11.00 P.M., on 23-4-1987.

(vii) P.W.8-Doctor mentioned in Ex. P 10, the accident register extract, relating to D-3, that D-3 Palaniappa Gounder was accompanied by one Tamilarasan (P.W.5) for reporting as to certain injuries said to have been caused due to the attack with aruval. During the course of cross- examination, P.W.8-Doctor would admit that P.W.5 Tamilarasan, told him at the time of admission of D-3 Palaniappa Gounder that he was assaulted by aruval. On the strength of this admission, learned senior counsel for the appellants would vehemently contend, that P.W.2 had mentioned about only one weapon, viz., aruval to P.W.5, and that therefore, P.W.5 mentioned the same to P.W.8-Doctor, and as such, P.W.2, if really had been the occurrence, he would have mentioned about the details of all the weapons to P.W.5, and that this would reveal that P.W.2 did not see the occurrence, and he was a false witness. This submission in our view does not merit acceptance.

(viii) According to the prosecution, the victims were attacked by the accused persons, with aruval, rice-pounder, kutheetti, soorikathi and stick. When P.W.I was admitted in the Hospital, P.W.8 was informed by P.W.I, that she was assaulted by aruval and Velkambu. Therefore, the weapon aruval was mentioned by P.W.I also to Doctor. Morever, it was an occurrence, in which four persons were attacked by a group of persons, with different weapons, including aruval.

(ix) P.W.2, out of shock, due to his young age, would not have given all the details about the weapons to P.W.5, or he might have thought that those details were unnecessary to be informed to P.W.5. Therefore, the failure of P.W.5 in giving the details of other weapons, to Doctor- P.W.8, would not make the testimony of P.W.2 unreliable, especially aruval, one of the weapons used for the commission of the offence, was mentioned to Doctor by P.W.5, from the information given by P.W.2.

(x) In this context, a suggestion put by the accused in the cross examination of P.W.5 is quite relevant. When a suggestion was put to P.W.5, that while P.W.I was taken to Hospital, in a car, she was tutored by P.W.5, as to how the complaint should be given, P.W.5, emphatically denied that suggestion. If the said suggestion is true, P.W.5 himself would have given all the details of the weapons, which were used by the accused against the victims, to Doctor P.W.2, must have been anxious to inform about the incident to P.W.5, the family friend of D-l, in order to make arrangements for the victims to be taken to die hospital, to save their lives. In that tense situation, we cannot expect from P.W.5, to give minute details about the weapons used by the accused in the occurrence. Merely because, P.W.2 did not give details about the weapons to P.W.5, P.W.2 cannot be disbelieved. Morever, the evidence of P.W.2 fully corroborates the evidence of P.W.I, in all the material particulars, and as such, there is no valid reason to reject the evidence of P.W.2.

(c) It is next contended by learned senior counsel for the appellants that the conduct of P.W.3 Kalimuthu, a worker, engaged for digging operation, in not helping the others in taking them to the hospital, would make his testimony doubtful. It was also pointed out that P.W.3 abruptly left the scene of occurrence, came back only next day morning, and this conduct also would reflect on his credibility. Learned counsel would further say that his name is not mentioned either in Ex. Dl or in Ex.P1.

(i) No doubt it is true, that his name is not mentioned either in Ex. Dl or in Ex.Pl. But in both Ex.Pl and Ex. Dl, it has been specifically stated that at the time of occurrence, the workers after finishing their digging operation of the well, were taking their food at 6.00 P.M., by sitting on the ground at the scene of occurrence. In fact, the trouble started when A-l came to the scene, objected to the presence of the workers at the scene, and asked them to go out of the village immediately. This is also mentioned in the earlier documents- Exs.Pl and Dl. Non-mentioning of the name of P.W.3, in these documents might be due to the fact that he was working only for ten days, as deposed by P.W.3.

(ii) Moreover, even according to the suggestion put to P.W.3 by the defence, that P.W.3 and other workers were present at the scene at the time of occurrence. The relevant portion of his evidence is as follows:-

It is not correct to state that we the workers after digging out the well removed the sand from the well, and put the same in the pathway and that we indulged in the conversation in a filthy language, despite the presence of the women, and that therefore, we were reprimanded by A-2. This would make it clear, that the presence of P.W.3 has not been disputed at the time of occurrence.

(iii) Regarding the conduct, it cannot be stated, as held in the decision referred to earlier, reported in Rana Partap and Others Vs. State of Haryana, that the witness must necessarily prevent the attack. The reaction of each and every witness would differ from each other.

(iv) Moreover, P.W.3, a resident of some other village, by name Kodai Road Pallipatti, a cooly by profession, belonging to different caste, was working in the scene village ten days continuously prior to the date of occurrence, though the work started five months back. When the attack was made by a group of persons on the victims, P.W.3 who is a coolie, could not be expected to intervene, since he would have felt frightened that he would also be attacked, like P.W.I.

(v) The other factor is, he is not a local resident. Nothing had been elicited from him in his cross-examination, to infer that he had got any other interest in the victim or he had any motive to implicate the accused falsely in this case.

(vi) Immediately after the occurrence, P.W.3 left the scene village and went to Thirukkan Village, where he had stayed for the whole night. That was the reason as to why he admitted in his cross- examination, that he did not know as to whether the victims were brought to the hospital, after the occurrence. It is the natural conduct of P.W.3 to come back again to the scene village, on the next day morning, in order to know about the further developments, and the fate of the persons who were attacked in his presence, on the earlier day.

(vii) In this context, the decision reported in Appabhai and Another Vs. State of Gujarat, , is quite relevant. The relevant observation is as follows:-

The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner, nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.

(viii) In the light of this view expressed by the Apex Court, the evidence of P.W.3, an independent witness, who has no axe to grind against the accused, which is fully in consonance with the evidence of P.Ws.1 and 2, cannot be rejected, on the ground pointed out by learned senior counsel for the appellants. It is also relevant to note that he was examined by the investigating officer, during the course of inquest. Therefore, we have no hesitation to hold that P.W.3 is a witness of truth, and his evidence can be fully relied upon.

(ix) At this stage, we shall point out an authority of the Apex Court in State of U.P. Vs. M.K. Anthony, as to the mode of the approach to be adopted in the appreciation of the evidence of the eye witnesses. The While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

(x) In the light of the above principles, if we look at the evidence of eye witnesses, P.Ws. 1 to 3, we could very well come to the conclusion, that the evidence of these witnesses appears to be trustworthy and credible, as their testimony would fully corroborate with each other. Merely because, P.W.2 is the brother of P.W.I, his evidence cannot be discredited. The conduct of P.W.3 also, as indicated earlier, could not be said to be abnormal, more so, when the presence of P.W.3, at the time of occurrence was not disputed by the defence.

(D) It is further contended by the learned senior counsel for the appellants, that the medical testimony is contradictory to the ocular testimony tendered by P.Ws.1 to 3.

(i)To substantiate this submission, learned senior counsel cited a decision reported in Amar Singh and Others Vs. State of Punjab, , in which it is held as follows:-

If her evidence that all the accused inflicted injuries on the deceased with their respective weapons, has to be accepted, then there would be incised wounds all over the body of the deceased, but the medical report shows that not a single incised wound was found on the body of the deceased. Thus the evidence of P. W.5 is totally inconsistent with the medical evidence.... If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case.

(ii) Per contra, learned Public Prosecutor, cited a Judgment in the case of State of U.P. Vs. Krishna Gopal and Another, . The relevant observation is as follows:-

It is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses'' account would require a careful independent assessment and evaluation for their credibility which would not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

(iii) On the basis of these principles, laid down in the above decisions, we shall first endeavour to find out as to whether there is any contradiction between the ocular evidence and the medical evidence, and if there is so, how far it would affect the credibility of the prosecution case.

(iv) As far as D-l Rangasamy is concerned, A-3 stabbed D-l with M.0.3 kutheetti by stabbing thrice on his hip. A-4 gave cut with M.0.4 aruval on his head. A-l used soorikathi-M.O. l, and stabbed on his neck, chest and right flank repeatedly. A-3 again stabbed with M.0.3 kutheetti, on his left hand and back. A-4 again cut with aruval on his left shoulder.

(v) P.W.12, post-mortem Doctor stated that injury Nos.7,8,9 and 10, punctured wounds found on right side of the front of the chest, over the lower back on right side, 3 cm below the said wound, and over the lower back on left side, could have been caused by spear like M.O.3. He would further say, that injury Nos. l to 4 lacerated wounds found just above the forehead on right side, over the middle of the scalp, over the left side of the back of the scalp and over the back of the scalp over the occiput, could have been caused by a weapon like M.0.4- aruval, and that injury Nos.5,6 and 12 could have been caused by M.O.I soori knife.

(vi) Stabbing by A-3 on D-l with M.0.3-kutheetti, thrice on his hip and on his left shoulder and back, had the corresponding injury Nos.8,9 and 10. Stabbing by A-l with sooriknife, on the chest of D-l, has the corresponding punctured wound No.7, over the right side of the front of the chest. P.W. 12, found injury Nos.5,6 and 12 the corresponding injuries, for the stabbing by M.O.1 knife by A-l. The attack with aruval by A-4 had the corresponding injury Nos.1,2,and 4.

(vii) According to the prosecution, A-4 attacked D-l with aruval-M.0.4 on his head twice. P.W. 12, the Doctor, who conducted postmortem, found injury Nos. 1,2,3 and 4, viz., all the lacerated injuries on the head of D-l.

(viii) It is argued by learned senior counsel, that aruval could not cause lacerated injuries, since the post-mortem Doctor, P.W. 12, would say that M.0.4-aruval had a long shaped cutting edge, and that an aruval, which is not very sharp would cause lacerated injuries. It is to be noted that Doctor, even in his cross-examination, would say that injury Nos. l to 4, the lacerated injuries mentioned in Ex.P14 postmortem certificate could have been caused by a weapon like M.0.4- aruval. Though he would state, that M.0.4-aruval had a long shaped cutting edge, he did not admit that M.0.4 was a very sharp weapon and that it would not cause lacerated injuries.

(ix) Moreover, the nature of the injuries, whether it is lacerated or incised wound depend upon as to how aruval had been handled and used for inflicting injuries on the victims, by the persons concerned at the time of occurrence. Therefore, it cannot be stated that the medical evidence is inconsistent with the ocular testimony. In respect of other injuries on D-l, P.W. 12 Doctor would admit, that those injuries could have been caused by the other weapons like soorikathi- M.0.1, and M.0.3- kutheetti, in the manner alleged by the prosecution.

(x) As regards D-2 Muniappa Gounder, the ocular evidence is that A-3 stabbed with M.0.3 kutheetti on his chest thrice and on his back twice, A-4 with M.0.4 aruval gave cut on his head twice, and A-l stabbed with M.0.1 sooriknife on his chest, neck, right hand and other parts of the body.

(xi) As per the evidence of P.W. 12, Postmortem Doctor, the attack with M.0.4-aruval by A-4 had caused the corresponding injury Nos. 1,2 and 9 found over the right side of the scalp parietal area, over the back of the scalp-occipital area and over the right side of the back of the chest. The stabbing by A-l with M.0.1 soori knife had caused the corresponding injury Nos.3, 4, 5 and 8, just lateral to right eye, over the back of right forearm, over the front of right arm and over the back of left forearm. M.0.3 kutheetti used by A-3 had caused the corresponding injury Nos.6 and 7 over the left side of the front of the chest. Learned senior counsel for the appellants was not able to find out any variation between the ocular testimony and medical testimony, in respect of D-2.

(xii) Regarding D-3 Palaniappa Gounder, the evidence is that A-2 with M.0.2 ferruled rice-pounder attempted to beat D-l, but when D-3 intervened, the blow landed on the head of D-3, and again A-3 beat D-3 on his head with M.0.2, and therefore, D-3 fell down, and that thereafter, A-2 got over his body and trampled on his chest with his legs.

(xiii) P.W.8-Doctor, who attended on D-3 found two incised injuries on his scalp. The first injury was about 10 x 2 x 1 cm. and the second injury was about 7x1x1 cm. Though P.W.8-Doctor had mentioned in his chief-examination that injury Nos. l and 2 could have been caused by beating with M.O.-ferruled rice pounder, he admitted in his cross- examination that M.0.2 was a blunt weapon with ferrule, and that if the blow was given on the head by a blunt weapon, like M.0.2, the edge of the wound would be torn and irregular, thereby the surrounding area also would be contused. When he was further cross examined, he would also admit that in injury Nos. l and 2, he did not find the edges of the injuries torn and irregular, and the surrounding tissues contused.

(xiv) P. W.12 post-mortem Doctor also would say that in injury Nos. l and 2, on the scalp of D-3 he found the sutured wound, and therefore, he could not find out the edge of the injury. He would further say that injury Nos. l and 2 could be caused by aruval also. On the strength of these admissions by P.W.8 and P.W.12, learned senior counsel for the appellants would vehemently contend that the medical evidence as against A-2 in so far as D-3 is concerned is directly contradictory to the ocular evidence.

(xv) But a careful scrutiny of the postmortem certificate- Ex.P18, relating to D-3, and the evidence of P.W.12 post-mortem Doctor, would clearly indicate that the medical testimony would lend ample support to the ocular testimony. The evidence of P.W.12 would show that there is a tear in the brain membranes of about 5 cm in length over the right temporal region through which brain matter was protruding out, and that there was another tear in the brain membranes over right parietal area of about 2 cm. in length through which also brain matter was protruding out.

(xvi) It is the further evidence of Doctor P.W.12, that the brain matter over right parietal and temporal areas crushed, and that the surrounding areas of the brain congested. As indicated earlier, though according to P.W.8, the two injuries found on the scalp were incised it should be noted that the depth of the injuries were only 1 cm. each, if actually aruval was used, the sharp edge of the aruval would cause more depth on the head of D-3. As per the post-mortem certificate, there was an irregular depressed fracture on the right parietal bone extending on to the right temporal bone of size 15 cm., and another crack fracture found extending from right parietal into the occipital bone.

(xvii) These factors would reveal that mere aruval which caused wound of the size only 1 cm depth, would not have caused this sort of heavy impact on the head, resulting in the depressed and crack fractures in the parietal, temporal and occipital bones, to the length of 15 cms. So, this would show, heavy force had been employed by the assailant. Therefore, there is no difficulty for us for coming to the conclusion that M.0.2 ferruled rice pounder alone should have been used for causing this sort of serious injury on the head.

(xviii) Furthermore, it is the case of the prosecution, that after D-3 fell down on the ground, A-2 stood over the chest and stamped him with his legs repeatedly. This also would find ample corroboration from the medical evidence. P.W.12 Doctor found external injury No.7, a reddish discoloration over the right side of the front of the chest of size 15 cm x 8 cm. In the internal examination, in injury No.2, he found an irregular tear on the anterior aspect of the lower lobe, measuring 3 cm in length and 2 cm in depth, surrounding area of lungs congested.

(xix) P.W.12, post-mortem Doctor, would further say that external injury No.7 could have been caused by kicking with legs, while lying on the ground. During internal examination, he found the 8th injury on right ribs 1 to 4, fracture on the anterior aspect. P.W.12, would furdier refer about the injury, that external injury No.7, found in the chest would cause the corresponding internal injury No.2, found on the lungs and the corresponding internal injury No. C found on the ribs. According to the Doctor, all the injuries are sufficient to cause the death of D-3, in the ordinary course of nature. Therefore, it cannot be contended that the evidence of ocular witnesses is not consistent with the medical testimony, in the light of the discussion of the evidence of P.Ws.8 and 12 with reference to D-3.

(xx) As regards injuries found on P.W.I Chinnammal, her evidence is that A-5 beat with M.0.5 rice pounder on her head, A-6 beat with M.0.6 stick, on her left palm, A-4 with M.0.4 aruval cut on her forehead and back, while A-l stabbed her with M.O.I soorikathi, on the elbow of both her hands, shoulder, back and left hand finger repeatedly.

(xxi) P.W.8 Doctor would say that injury No.6 found on the occipital region, injury No.7 found on the right elbow, injury No.9 found on the middle of back, could have been caused by stabbing with M.O.I soorikathi, which was used by A-l. Injury No.5 found on the base of middle phalanx of middle finger left side, could have been caused by beating with the edge of M.0.6 stick, which was used by A-6. Injury No. l found on her forehead and injury No.2 found near the first injuries could have been caused with M.0.5 rice pounder, used by A-5. According to Doctor, injury Nos. l and 2 are grievous and if P.W. 1 was not given immediate treatment, she would have collapsed. So, in respect of P.W.I, also we find corroboration for the evidence of eye witnesses from the medical testimony, as found in the evidence of P.W.8.

(xxii) In the light of the above discussion, we have to conclude that the citation brought to our notice by the learned senior counsel for the appellants, reported in AIR S.C.826 (Amar Singh v. State of Punjab) will be of no use, in favour of the defence. It is also worthwhile to mention in this context, as held in State of U.P. Vs. Krishna Gopal and Another, as indicated above, that the creditworthiness of the reliable eye witnesses cannot be brushed-aside, merely on the basis of the opinion evidence given by the Doctor.

(E) Next point of argument raised by learned senior counsel for the appellants is that P.W.I must have been tutored by P.W.5, who alone accompanied the victims to hospital in the taxi, to implicate all the accused.

(i) As discussed earlier, there is no enmity between P.W.5 and the accused persons. On the information given by P.W.2, the brother of P.W.I, P.W.5 came to the scene and took the victims to the hospital. P.W.5 who belong to Thirukkan village is a friend of D-l. D-l used to frequently visit the grocery shop of P.W.I. P.W.5 would admit that D-l informed him that A-l and A-2 were anemically disposed of towards him. Except this, nothing has been elicited in the cross-examination of P.W.5, to infer that he had enmity against any of the accused, and that he must have tutored P.W.I to implicate all the accused in the murder case. If that is true, as referred to earlier, he would not have mentioned the weapon aruval alone to Doctor.

(ii) Furthermore, if the alleged tutoring as referred to by the defence, had been done, while the victims were taken to hospital, there would not have been any variation at all between Ex. Dl and Ex.Pl, given by P.W.I to Judicial Magistrate and the Sub-Inspector of Police.

(iii) Moreover, P.W.5 did not say that while P.W.I was being taken to Hospital, he was enquiring about the incident with her. If actually, P.W.5 was in the background, he would, as well, say that P.W. 1 made an oral dying declaration to him, in order to lend assurance to the prosecution case. Furthermore, if actually P.W.5 wanted to implicate all the accused, he would have taken the victims immediately to the police station first, in order to get the case registered against them. But, on the contrary, P.W.5 being interested in saving the lives of the victims, immediately rushed to the Hospital, where D-3 and P.W.I were admitted.

(iv) It is also the evidence of P.W.5, that while he took the victims and put them in the car, in order to take them to Hospital, his shirt got stained with blood of the victims. The chemical analyst''s report Ex.P21 and the serologist''s report-Ex.P22, also would show that M.0.17- shirt of P.W.5 got stained with human blood ''B'' group.

(v) A reading of the deposition of P.W.5, on the whole would clearly indicate that he is a witness of trustworthiness, and was only interested in saving the lives of the victims for the sake of his friend, D-l. One more vital circumstance is that his name has been mentioned in Ex.Pl. Even in Ex. Dl, there is a reference about him, though he was not named.

(F) The next point that has been urged by learned senior counsel for the appellants is with reference to the alleged faulty investigation.

(i) It is argued by the learned senior counsel for the appellants, that though P.W.21 Sub-Inspector of Police would say that Ex.Pl was recorded by Police Constable, on his dictation, a perusal of the endorsement in Ex.Pl would show, as if, P.W.21 himself has recorded the same. The last portion of the wordings found in Ex.Pl would indicate "recorded by me on 24-4-1987."

(ii) Learned counsel for the appellants would also point out that P.W.22 Inspector of Police, though knew about the recording of the D-l, statement of P.W.I by the Magistrate on 24-4-1987 itself, he took steps to get the copies of the same from the Magistrate only after four or five days. It is also pointed out by the learned senior counsel that P.W.22 would himself admit that there are variations between Ex.Pl and Ex. Dl, and that even then, he did not examine P.W.I further. Learned counsel also would point out that though in Ex. Dl, the Doctor appended certificate, regarding the consciousness of P.W.I, and the statement was recorded by Judicial Magistrate, P.W.22 did not examine both the Doctor and the Judicial Magistrate, thereby, the failure of discharging all these duties would very much affect the prosecution case.

(iii) Learned senior counsel for the appellants cited an authority reported in Sevi and Another Vs. State of Tamil Nadu and Another, , in which the Supreme Court has held that "where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed."

(iv) It is to be noted that P.W.21 Sub-Inspector of Police gave explanation in his cross-examination, as to why he asked the Police Constable, to record the statement-Ex.Pl, on his dictation. He would say that since his handwriting was not good, he asked the police constable, who would write legibly to record the statement of P.W.I. Though in Ex.Pl, P.W.21 wrote as "recorded by me", the explanation given by him, seems to be genuine one, because the last portion of Ex.Pl, which was recorded by P.W.21, in his own handwriting is not as good as that of the handwriting of the Police Constable, who recorded the statement of P.W.I, just above the endorsement made by P.W.21, in Ex.Pl.

(v) P.W.22, of course, admitted that he did not take further statement from P.W.I, with reference to the variations found in Ex.Pl and Ex. Dl. But it could be seen that P.W.22 would also give explanation for the same, by saying that such variations are so minor. Though he admits mat he had not examined the Judicial Magistrate, he cited the Judicial Magistrate as one of the witnesses in the charge sheet. According to the learned Public Prosecutor, since Ex. Dl, the statement recorded by the Judicial Magistrate was marked as a defence document through P.W.I by the defence, the prosecution felt that the Judicial Magistrate need not be examined as a witness of the prosecution in Court.

(vi) Learned Public Prosecutor would also submit that there is no tainted or defective investigation in this case. He cited two authorities reported in Dr. Krishna Pal and another Vs. State of U.P., : 1995 (2) S.C.C. 977 (Karnel Singh v. State of M.P), in which it is held that mere faulty investigation would not affect the credibility of the eye witnesses.

(vii) Moreover, it should be noticed that since P.W.I is surviving, the investigating officer could have thought that the Doctor, who appended the certificate regarding her consciousness, need not be examined, since her statement could not be taken as a dying declaration, and therefore, the omissions as referred above by P.W.21 and P.W.22 could not be described as a faulty investigation, especially when we feel that the evidence of the eye witnesses is creditworthy.

(G) Learned senior counsel for the appellants would further argue, that there is an attempt to suppress Ex. Dl, by the investigating agency, since the contents of Ex. Dl is quite contradictory to the evidence of P.W.22 Inspector of Police.

(i) For this submission, there is no basis. P.W.I, even in her chief examination stated that when she was in hospital, while glucose drip was being given through her right hand, she gave statement Ex. Dl to the Judicial Magistrate, and since she could not put her signature at that time, she put her thumb impression. She would also further state, that thereafter the Sub-Inspector of Police-P.W.21, came and recorded her statement-Ex.Pl and obtained her signature thereon.

(ii) P.W.22, the Inspector of Police also would state in his cross- examination that he knew about the recording of the dying declaration by the Judicial Magistrate only at 2.00 P.M., on 24-4-1987. He would also admit that he sent a requisition to the Court, after knowing of the recording of Ex. Dl, requesting to send a copy of Ex. Dl, to him, and that he received the same through tapal, after four or five days.

(iii) As referred to earlier, the Judicial Magistrate was also cited as a witness in the charge sheet presented by P.W.22. As pointed out by the learned Public Prosecutor, the copy of Ex. Dl, which was filed before Court at the time of charge sheet by the prosecution, had also been given to the accused, along with the charge sheet papers, before committal, by the learned Magistrate. In these circumstances, it is not understandable as to how, the learned senior counsel for the appellants could submit that there was an attempt on the part of the police, to suppress the document-Ex. Dl.

(iv) Merely because the Judicial Magistrate who recorded Ex. Dl was not examined in the Court, it cannot be contended that Ex- Dl was attempted to be suppressed. It is quite clear, as indicated above, the Judicial Magistrate also was mentioned as one of the witnesses in the charge sheet. Therefore, we are of the view, that there was no attempt made by the investigating agency in this case, to suppress any document whatsoever, but on the contrary, we are of the view that the prosecution has placed all the materials collected during the course of investigation, including that of the counter complaint given by A- 4, and the wound certificate relating to the injury sustained by him, and as such, we feel, that the prosecution has come out with clean hands in this case.

(H) Much was said about by learned senior counsel for the appellants, regarding the omission of the various materials in the complaint Ex.Pl given by P.W.I.

(i) According to the counsel for the appellants, the materials omitted were of vital and quite important. As pointed out by learned counsel, the attack on P.W.I by A-l and A-4 with soorikathi and aruval respectively, had not been mentioned in the F.I.R. According to the F.I.R., P.W.I was attacked by A-5 and A-6 with rice pounder and stick. Even before the recording of Ex.Pl, at 2.15 A.M., on 24-4-1987, she was examined by P.W.8-Doctor, at about 11.05 P.M., on 23-4-1987. At that time, she stated to the Doctor, that she was assaulted with aruval and velkambu. Even in Ex. Dl, recorded by the Judicial Magistrate prior to Ex.P.1. P.W.I would state that A-4 along with two others attacked her with aruval on her forehead and left hand.

(ii) Therefore, failure to mention about A 1 and A-4 with reference to the attack made on P.W.I, in Ex.Pl would not affect the prosecution case. In this context, as discussed above, we have to take into consideration of the critical condition of P.W.I, at the hospital, while she was giving these statements.

I. Learned senior counsel for the appellants, then argued that Ex.Pl, the complaint may not be admissible, since earlier to the recording of Ex.Pl, even at 1.30 A.M., Ex. Dl was recorded by the Judicial Magistrate, and that so, it must be taken to mean that the investigation had already commenced, as soon as the recording of Ex. Dl was over, and that therefore, Ex. Dl must be considered to be a statement recorded u/s 162 Cr. P.C.

(i) This submission also, in our view, is not quite correct. Section 154 Cr. P.C, provides the recording of the statement by officer-in-charge of the police station. Only after recording the information relating to the commission of the cognizable offence, the officer in charge of the police station gets the power of investigation. Only thereafter the officer in charge of the police station, in the course of process of investigation, u/s 157 Cr. P.C. has to examine the witnesses u/s 161 Cr. P.C. and record statements u/s 162 Cr. P.C.

(ii) In this Case, Ex. Dl was not recorded by the officer in-charge of the police station. Therefore, the statement recorded by the Judicial Magistrate, before the registration of the case by the officer in charge of the police station cannot be considered to be the information recorded u/s 154 Cr. P.C.

(iii) Of-course, u/s 156(3) Cr. P.C., the Judicial Magistrate, after recording the statement from the victim, could very well, order directing the officer in charge of the police station to investigate, if the Magistrate found that a cognizable offense is made out. Only then, the officer in charge of the police station, on receipt of the statement, and the order of Judicial Magistrate can register the case u/s 154 Cr. P.C. and then only he can commence the investigation. In this case, such a procedure has not been adopted by the Judicial Magistrate concerned. Therefore, Ex.Pl, which was recorded by the officer in charge of the police station, alone could be considered as a statement u/s 154 Cr. P.C. Only after registration of the case, on the basis of this statement- Ex.Pl, the investigation process gets commenced. Therefore, the argument advanced by learned senior counsel for the appellants, lacks legal basis.

(J) Yet another submission made by learned senior counsel for the appellants is that Ex.Pl could not have been prepared at 2.15 A.M., and it should have been prepared by the police officer, after consultation, only at a later point of time, after the police officer visiting the spot, and seeing the sites of injuries on the bodies of the deceased, and as such, the F.I.R., must be held to be fabricated.

(i) In order to substantiate his submission, learned senior counsel cited the following two authorities:-

(a) Marudanal Augusti Vs. State of Kerala,

(b) 1982 L.W. (Crl.) 63 (Ramasamy & Others v. State of Tamil Nadu) in which it is held that if the F.I.R. is held to be fabricated, the entire episode would get collapsed.

(ii) In our view, this submission also lacks substance. According to P.W.21, Sub-Inspector of Police, he recorded Ex.Pl at 2.15 A.M., at the hospital, on 24-4-1987. At 3.30 A.M., he came to the police station and registered the case in Cr.No.128 of 1987, for the offences under Sections 147, 148, 324 and 302 I.P.C. Then he prepared Ex.P8- F.I.R., and sent the same along with Ex.Pl complaint to the Judicial Magistrate, as well as to the senior officials.

(iii) P.W.22 would say that on receipt of F.I.R., at 4.10 A.M., on 24- 4-1987, he came to the spot, and prepared the observation mahazar- Ex.P2, and between 5.30 A.M., and 7.30 A.M., he conducted the inquest on the dead body of D-l, between 7.30 A.M., and 9.00 A.M., he conducted inquest over the dead body of D-2. It is relevant to note at this stage, the F.I.R., which was recorded at 2.15 A.M., and registered at 3.30 A.M., by P.W.21, had reached the Magistrate at Dindigul, at 5.00 A.M., itself.

(iv) In the F.I.R. as stated earlier, the names of all the accused, the details of the weapons, the particulars of the witnesses and the various parts of the bodies of the deceased and P.W.I, on which the injuries were inflicted, have all been mentioned. In such a circumstance, it cannot be contended that the F.I.R., in this case had been belatedly prepared and fabricated by the investigating officer, after consultation and visiting the spot, especially when the F.I.R., as indicated earlier, had reached the concerned Magistrate at 5.00 A.M., on the same day itself. Therefore, the citations referred to by the counsel for the appellants would not be of any use to the defence.

(K) It was also argued by learned senior counsel for the appellants, that when P.W.I7, the Police Constable went to the hospital, on receipt of the intimation-Ex.P27, sent by the Doctor, regarding the admission of P.W.I and D-3, he found them unconscious, and that thereafter he intimated the same to P.W.21 Sub-Inspector of Police, who in turn, came to the hospital, and recorded-Ex.Pl and that in the mean time, the Judicial Magistrate also came and recorded Ex. Dl from P.W.I.

(i) Learned senior counsel for the appellants, on the basis of these facts would point out, that P.W.21 Sub-Inspector of Police would not have recorded Ex.Pl, at the relevant time and obtained signature from her at the relevant time, because, according to P.W.I, when she gave statement to P.W.21, glucose drip was being given to her through her hand, whereas P.W.21, would say that at the time of recording of Ex.Pl, no glucose drip was given to P.W.I, and so, she could not have put her signature in Ex.Pl.

(ii) According to the counsel, this is a vital contradiction which would affect the credibility of the evidence of P.W.21 and P.W.I. This argument, which is based on the alleged contradiction as referred above, is totally and factually wrong.

(iii) P.W.I, even in her chief examination would say that when she gave Ex. Dl statement to Judicial Magistrate, she put her thumb impression, since glucose drip was given to her through her right hand. She would also further say in the chief examination that after she gave statement Ex.Pl, to P.W.21 Sub Inspector of Police, she put her signature in the said document. When this aspect was confronted in her cross-examination, she would specifically state, that glucose drip had already been given, even before the statement was recorded by P.W.21. This would indicate, only after the glucose drip was over, she gave statement to P.W.21, Sub-Inspector of Police and put her signature in Ex.Pl. In other words, she was able to put her signature in Ex.Pl only after the drip process was completed. Therefore, there is no basis in contending that P.W.21, Sub-Inspector of Police, could not have recorded Ex.Pl statement and obtained the signature of P.W.I at 2.15 A.M., on 24-4-1987.

(iv) Learned Public Prosecutor would submit that when Ex. Dl was given at 1.30 A.M., on 24-4-1987, as per the evidence of P.W.I, the glucose drip was given to her through her right hand, the reference to that effect in Ex.Pl is as follows:-

(Since the victim is being given glucose drip through her right hand, it was not able to obtain her signature. So, left hand thumb impression was obtained).

(v) It should be noted that P.W.I was admitted at 11.05 P.M., on 23-4- 1987 in the Hospital. She was given immediate treatment, since her condition was serious. P.W.8, Doctor immediately sent Ex.P27, intimation to the police. P.W.I7, Police Constable attached to North Police Station, Dindigul, on receipt of Ex.P27 intimation, rushed to the Hospital, at about 12 midnight, and since both the victims viz. P.W. 1 and D-3 were not in a condition to speak, he gave telephonic message to P.W.21 Sub-Inspector Of Police.

(vi) At 1.30 A.M., on 24-4-1987, when the Judicial Magistrate came to the hospital, on receipt of the intimation from the Doctor, some treatment had been given to P.W.I, and she was found conscious. Therefore, the learned Magistrate recorded Ex. Dl, though the drip was going on.

(vii) A reading of Ex. Dl would also show-that the sequence of events was not coherent, though the participation of all the six accused, and the attack made on victims, viz., P.W.I and D-l to D-3 were mentioned. According to the Public Prosecutor, though the various details were given in Ex. Dl, it was not coherently stated, because when P.W.I gave statement to Judicial Magistrate, she must be so critical with excited mood, expecting her death at any moment.

(viii) The learned Public Prosecutor would also submit that after the glucose drip was over, her condition must have definitely improved, and so at 2.15 A.M., when she gave the statement to P.W.21, she was able to give clear details in Ex.Pl. So, in the light of the submission made by the learned Public Prosecutor, which has got some force, the learned counsel for the appellants could not contend that the slight variations between Ex. Dl, which was given while P.W.I was in a critical condition, and Ex.Pl, which was given while her condition was slightly improved, would affect the core of the prosecution.

(L) One more important circumstance, which has been adverted to by the learned Public Prosecutor, is the aspect of motive.

(i) Ex.P23, Ex.P24, Ex.P25 and Ex.P31 would clearly indicate that there was a prior enmity between D-l on one side and A-l, A-2 and A-5 on the other side. The various incidents referred in these exhibits with reference to the digging of the well, commenced five months prior to the occurrence, and the undertaking given by A-l to P.W.21, Sub- Inspector of Police, that he would not interfere with the digging operation would very well establish that from the beginning, every effort had been taken by the accused to prevent D-l from enjoying his property, and to restrain him from digging the well.

(ii) Though motive aspect in murder cases, may not assume significance, especially when there are eye witnesses, in the case on hand, the establishment of the motive aspect through the documents referred to above would also lend assurance, relating to the main occurrence, as projected by P.Ws.1 to 3.

(iii) P.W.I4, Sub-Inspector of Police, on 16-5-1984 received the complaint from D-l Rangasamy relating to the occurrence took place on 15-5-1984, and registered the case in Cr.No.130 of 1984, for the offences under Sections 341 and 447 I.P.C., against A-l, A-2 and A-5. Ex.P23 is the copy of F.I.R. As per this, D-l complained to the police, that on 15-4-1984, A-l, A-2 and A-5, when he was ploughing his lands, with the help of tractor, trespassed into his land threatened with sticks, spade handle and prevented him from further ploughing. In that case, charge sheet was filed, after investigation by P.W.14, in which all these three accused, A-l, A-2 and A-5 were found guilty and sentenced to pay a fine of Rs.200/- each. Ex.P24 is the calendar extract of the Judgment, which would also indicate that the fine was paid by these accused.

(iv) Again on 22-11-1986, D-l Rangasamy gave complaint to P.W.15, Grade I Police Constable, in Vadamadurai Police Station, alleging that on 22-11-1986, when he commenced the digging work for a new well, with the help of workers, A-l Chellappan came to his land and threatened the workers with aruval and prevented them from commencing their work, and that when this was questioned by him, A-l attempted to attack him with aruval.

(v) This complaint was registered as petition No.254 of 1986, by P.W.I5 Grade I Police Constable, and the same was forwarded to the Sub-Inspector of Police-P.W.21. On 25-11-1986, P.W.21, summoned both the parties, and interrogated them, and since the contents of the petition were found to be true, he obtained an undertaking Ex.P31, from A-l, that he would not interfere with the well digging operation by D-l Rangasamy in future.

(vi) A perusal of Ex.P31, would also disclose that A-l assured that in future, both the parties agreed to settle the disputes, if any, through Village Administrative Officer, amicably. Therefore, it is quite evident that the attempts of the accused to disturb the well digging operation done by D-l even at the commencement stage, five months prior to the date of occurrence were thwarted at the intervention of the police, on the complaint of D-l, Rangasamy. When this aspect of the evidence was put to the accused, while they were questioned u/s 313 Cr. P.C. they also admitted the same.

(vii) It is also made clear from the evidence of P.W.I, that in the second partition, A-2, D-l Rangasamy and their father D-3 Palaniappa Gounder divided the remaining lands about 5 years prior to the occurrence, and they were also enjoying the respective lands separately. P.W.I would state that due to the digging of the separate well, near the common well, A-2 entertained an apprehension that the water in the common well would get drained, and that so, they tried to prevent D-l from digging new well somehow or other. But when their efforts were proved to be futile, the accused persons, bearing the grudge against D-l Rangasamy, resorted to violence. When the matter was brought to the notice of police by D-l, as indicated earlier, the grouse of the accused against D-l grew stronger. To add insult to the injury, D-l Rangasamy purchased the land from his father A-3 and began to enjoy the same. This also triggered the anger of the accused, to have a strong motive against D-l.

(viii) It is important to note in this context, that even in the incident reported to the police on 22-11-1986, A-l attempted to attack the workers, in order to see that the digging work was stopped. When the digging operation was about to be completed in a period of five months or so, the accused having failed in all their attempts, to prevent the well being dug out, had decided to see somehow or other, that D-l is done away with. In the light of the above background, the consideration of the above materials in the proper perspective would make it clear that the motive part also had been clearly established by the prosecution.

(M) As we discussed earlier, the prosecution has also chosen to mark the counter complaint given by A-4, in which the injuries sustained by him during the course of occurrence had been mentioned. Ex.P29 is the counter complaint. A-4 stated in the counter complaint, that he went to the house of his sister A-6, on 23-4-1987. At about 6.30 P.M., there was a quarrel going on between A-2, the husband of A-6, and D-l Rangaswamy, over the garden dispute, that when he intervened, D-1 scolded him "...." (you are the sole cause for this), and when A-l objected to his scolding, D-l with aruval in his hands attacked him, and that when the same was warded off, he received an injury on his right hand finger, and that thereafter he ran away from the place, came to Government Hospital at Dindigul, and got himself admitted. This complaint given by A-4 was registered by P.W.21, Sub-Inspector of Police, at about 4.00 A.M., on 24-4-1987.

(i) In this context, it may be relevant to note, that even in Ex.Pl, the statement given by P.W.I, to P.W.21, she stated that when the accused persons repeatedly attacked the deceased persons, A-4 also sustained injuries, on his right hand fingers. As per the wound certificate, Ex.Pl 1, and the evidence of P.W.8, Doctor, it is clear, that A-4 informed the Doctor, that he sustained injuries due to assault with aruval on 23-4-1987, at 7.00 P.M. P.Ws.1 to 3 would, as well, make a reference as to how, A-4 sustained injuries in his hand. All these things would go to show that the injuries found on A-4 have been satisfactorily explained by the prosecution.

(ii) P.W.22, Inspector of Police would say that the complaint given by A-4 was investigated and the same was referred as ''mistake of fact''. Though as per Ex.P29, counter complaint, the presence of A-l, A-2 and A-4 alone was admitted at the time of occurrence, admittedly, A-4 alone sustained injuries. According to the counter complaint, D-l alone was having aruval with him, and A-l, A-2 and A-4 did not wield any weapon. If the contents of the counter complaint is true, that D-l would have attacked all the three, A-l, A-2 and A-4 in which event the other accused would also have sustained injuries. Moreover, as per the materials produced by the prosecution, to establish the motive, there is enmity between D-l on one side and A-l, A-2 and A-5 on the other side. The name of A-4 was never mentioned as one of the participants in the earlier incident. Therefore, there was no reason for D-l to attack A-4 with aruval, scolding that "you are sole cause for all these things." In view of the above circumstances, we are of the view that the contents of the counter complaint Ex.P29 given by A-4 would never reflect the real situation, even under the preponderance of probability.

In view of the foregoing analysis and appreciation of the materials found available in this case, we are of the considered opinion, that the prosecution which has come out with clean hands in this case, had established its case beyond reasonable doubt against the accused.

Now, we shall decide about the offences, for which the appellants are to be convicted :

(i) A-l stabbed D-l Rangasamy with M.0.1 sooriknife, on his chest, which caused a fatal injury. A-4 caused injury Nos. l to 4 as found in Ex.P14 post-mortem certificate on Dl, by cutting with aruval. These injuries are also fatal injuries. A-3 also caused injuries on the head of D-l. Therefore, A-l, A-3 and A-4 having shared the common intention to commit the murder of D-l, are liable to be convicted for the offence u/s 302 read with 34 I.P.C.

(ii) A-3 caused stab injuries on D-2 with spear M.0.3 injury Nos.6 and 7 as found in Ex.P16, post-mortem certificate. These injuries were necessarily fatal. A-l stabbed D-2 with sooriknife - M.O.1, inflicted stabs on his chest, neck, right shoulder and other parts of the body repeatedly. A-4 cut D-2 with M.0.4-aruval on his head twice. So, A-l, A-3 and A-4, for having shared the common intention to commit the murder of D-2, are found guilty and liable to be convicted u/s 302 read with 34 I.P.C. in respect of the death of D-2.

(iii) A-2 caused injuries on the head of D 3 Palaniappa Gounder, by hitting with M.0.2 ferruled rice pounder twice and stamped him on his chest by his legs, with the result, D-3 Palaniappa Gounder died. Therefore, A-2 is found guilty and liable to be convicted for the offence u/s 302 I.P.C, in respect of the death of D-3.

(iv) A-5 beat P.W.I with rice pounder M.0.5, on her head. A-4 cut her with aruval on her head and forehead. A-l with soorikathi-M.O. l, stabbed her on the elbow of her both hands, shoulder and left hand fingers. According to Doctor, P.W.8, the injuries caused by A 5 with rice pounder were grievous, and that her condition due to all the injuries sustained was so critical, and that if immediate treatment was not given to P.W.I, she would have died. Therefore, A-l, A-4 and A-5 are found guilty u/s 307 I.P.C.

(v) Since A-6 beat with M.0.6 stick and caused simple injury on P.W.I, A-6 is liable to be convicted for the offence u/s 323 I.P.C.

So, as indicated above, the convictions imposed upon the appellants by the trial Court for the above offences alone are confirmed, and the convictions recorded by the lower Court for the other offences being redundant, are set aside.

Coming to the question of sentence, we have to consider whether death sentence imposed upon A-l, A-2 and A-3, for the above offences is proper, in the light of the above facts of the case. In Shamshul Kanwar Vs. State of U.P., , the Supreme Court observed mat "large number of deaths on one side cannot ipso facto be a ground to bring the case into the category of "rarest of rare cases". The following observation, as quoted in the above decision, which was culled out from Francis alias Ponnan Vs. State of Kerala, is quite relevant in this case.

Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties concerned the background, the context, of the factual setting of the crime and the strength and nature of the motives operating on the mind of the offender, are relevant considerations. The state of feelings and mind produced by these, while in sufficient to bring in an exception, may suffice to make the less severe sentence more appropriate.

In the instant case, when the workers after finishing their day''s work, taking their food sitting in a margoza tree, A-l came and asked them to leave the village immediately, that D-l objected to the shouting, by saying that they would dig the well in the way he directed, and he should go away minding his own business. Then wordy quarrel ensued. Thereafter, he attempted to stab D-l. D-l snatched the weapon and threw away. Only then, A-2 went to the garden side and brought the other accused to the scene. Thereafter, all these accused attacked D- 1, D-2, D-3 and P.W.I. As such, the occurrence was a product of sudden quarrel, as a result of the provocation, though not grave and sudden, which ultimately ended in causing the death of three persons.

Therefore, we feel that instead of sentencing A-l, A-2 and A-3 to death, imposing the sentence of life imprisonment on them, would meet the ends of justice.

The conviction imposed by the Trial Court upon the appellants 1 to 4/A-l to A-4, u/s 148 I.P.C., is confirmed, and since A-l to A-4 are convicted and sentenced to for other offences, we are not passing any separate sentence for the offence u/s 148 I.P.C. The conviction and sentence imposed by the trial Court, upon A-5 u/s 148 I.P.C, to undergo R.I. for one year, and upon A-6 u/s 147 I.P.C, to pay a fine of Rs.200/- in default to undergo R.I. for three months are confirmed.

A-l was convicted u/s 302 I.P.C, in respect of the death of D-l and A-3 was convicted u/s 302 I.P.C, in respect of the death of D-2 and A-l and A-3 were sentenced to death by the Trial Court. Instead of convicting them u/s 302 I.P.C, for the aforesaid offences they are found guilty u/s 302 read with 34 I.P.C, and they are sentenced to imprisonment for life. Accordingly, A-l and A-3 are convicted for the offence u/s 302 read with 34 I.P.C. (two counts) in respect of the death of D-l and D- 2, and sentenced to imprisonment for life for each count.

A-4 was convicted by the Trial Court, for the offence u/s 302 I.P.C, in respect of the death of D-l. Instead of convicting him u/s 302 I.P.C, he is found guilty u/s 302 read with 34 I.P.C. Accordingly he is convicted for the offences u/s 302 read with 34 I.P.C (two counts) in respect of the deaths of D-l and D-2, and the sentence imposed upon him by the Trial Court to imprisonment for life for each offence is confirmed.

The conviction imposed upon A-2 for the offence u/s 302 I.P.C., in respect of the death of D-3 by the trial Court is confirmed, and instead of sentencing him to death, imprisonment for life is imposed upon him.

The conviction imposed upon A-l and A-4 for the offence u/s 307 I.P.C. by the Trial Court is confirmed, and we are also of the view that no separate sentence is necessary for this offence against A-l and A-4.

The conviction and sentence imposed upon A-5 u/s 307 I.P.C, to undergo R.I. for seven years and upon A-6 u/s 323 I.P.C, to pay a fine of Rs.200/- in default to undergo R.I. for three months, are confirmed. The sentences, as directed by the trial court are directed to run concurrently.

However, it is brought to our notice by learned senior counsel for the appellants, that the first appellant/A-1 Chellappan died on 17.3.1997. Learned Public Prosecutor also filed a report of the Inspector of Police, along with the report of Village Administrative Officer, concerned, to the effect that the 1st appellant Chellappan died on 17-3-1997. Therefore, in so far as the 1st appellant Chellappan is concerned, the appeal abates.

In the result, the appeal is dismissed, and the reference is answered accordingly. The appellants 2 to 5, who have been sentenced to imprisonment, are directed to surrender to judicial custody.