DEIVENDRAN Vs. STATE

JUDGEMENT

(1.) This referred trial case arising under S. 366, Cr. P.C. and the Appeal on behalf of three accused/appellants arise under the following circumstances. The three appellants along with P.W. 1 and the fifth accused stood charged before the Principal Sessions Judge, Madurai, in S.C. No. 91 of 1994 for the following charges :-The first charge says that all the five accused had conspired together two days prior to 25-11-1992 to commit robbery in the house of P.W. 5 at Dharmathupatti, Mela Gudalur, an offence punishable under S. 120B, IPC. The second charge was that on 25-11-1992 at about 2-00 a.m. accused 1 to 4 had entered the house of P.W. 5 with guns, Iron rods and other weapons and had committed rioting punishable under S. 148, IPC.The third charge related to accused 1 to 4 in having unlawfully entered into the house of P.W. 5 with deadly weapons for the purpose of committing house trespass and to commit offence punishable with death, thus making themselves liable under S. 449, IPC.The fourth charge related to the murder of the first deceased Deivammal by the first accused, with the second and the fourth accused assisting in the act of murder, thus punishable under S. 302 read with S. 34, IPC.The fifth charge related to the murder of one Saraswathiammal by the first accused by strangling her with accused 2 to 4 assisting him in the act of murder, thus punishable under S. 302 read with S. 34, IPC.The sixth charge related to the act of the first accused in shooting Nagarajan and thus, committing the murder of Nagarajan and accused 2 to 4 were present during the said act of murder and thus liable under S. 302 read with S. 34, IPC.The seventh and last charge related to the accused 1 to 4 in shooting of P.W. 5 by the first accused and causing grievous injuries and thus committing an offence punishable under S. 326 read with S. 34, I PC.

(2.) Learned Sessions Judge by judgement dated 14-7-1995 acquitted the fifth accused of the only charge framed against her under S. 120-B, IPC. The fourth accused applied for pardon and became an approver and was examined as P.W. 1. Accused 1 to 3 were not found guilty under S. 148, IPC. Accused 1 to 3 were, however, found guilty under S. 449, IPC and sentenced to 10 years rigorous Imprisonment each. They were also found guilty under S. 302 read with S. 34, IPC. for committing the murder of Deivammal and they were imposed a sentence of life imprisonment. Similarly, they were found guilty under S. 302 read with S. 34, IPC for committing the murder of Saraswathi Ammal and were imposed the sentence of life imprisonment. On the sixth charge accused 1 to 3 were found guilty for the murder of Nagarajan and while the first accused was sentenced to the extreme penalty of death, second and the third accused were sentenced to life imprisonment. Similarly, accused 1 to 3 were found guilty under S. 326 read with S. 34, IPC. and sentenced to three years Rigorous Imprisonment each. All the sentences were directed to run concurrently. The reference under S. 366, Cr. P.C. relates to the death sentence imposed on the first accused. Criminal Appeal has been filed by all the three accused, accused 1 to 3 and they are respectively represented by learned counsel Mr. Gopalakrishna Lakshmana Raju, Mr. M. Jagadeesan and Mr. K. R. Thyagarajan.

(3.) The prosecution case is as follows :-The first accused is said to be the owner of an S.B.B.L. country gun and the country pistol, M.Os. 1 and in the case. He is also said to be owning certain Ganja fields and engaged in poaching forest elephants for the purpose of getting their tusks. P.W. 1 who was the fourth accused in the case and later turned as approver, had married in Kerala and was blessed with a male and a female child. But for some unknown reason his wife had quarrelled with him and deserted him about four years prior to the occurrence. On account of this P.W. 1 became seriously ill with typhoid fever and had no money even for medical expenses. It is at that time that the first accused had met him and helped him with a sum of Rs. 50/- for taking injections to cure his typhoid fever. After he was restored to normal health, the first accused asked him to work in his house. This happened about 21/2 years prior to the occurrence. P.W. 1 was being paid Rs. 10/- or Rs. 5/- for defraying his expenses. About 10 days prior to the occurrence, the second accused was injured in a lorry accident and the first accused went to see the second accused. Thereafter, second and the third accused had come to the house of the first accused and at that time the second accused told the first accused that there were lot of jewels and cash in the house of P.W. 5 and they could commit robbery in the said house. The first accused responded by saying that without knowing the topography of the house of P.W. 5 it would be difficult to commit robbery. The second accused replied by saying that his mother, fifth accused, was working in the house of P.W. 5 for about 10 years and she knew the topography of the house of P.W. 5. Fifth accused is said to have drawn a sketch of the house by drawing a 'Kolam' with water. The first accused could not understand the topography and therefore, the second accused was deputed. to go to the house of P.W. 5 personally to see the topography. Second accused is said to have gone to the house of P.W. 5, apparently under the umbrage of P.W. 5 and had even taken tiffin in the house of P.W. 5. The second accused disclosed that the family members of P.W. 5 were going to Madurai on that day and that it might take two or three days for them to return. He also explained that one could get entry into the house only through the smoke exit or chimney. Thereupon the first accused suggested that the next day namely, 24-11-1992 being a New Moon day, they could go and commit robbery on the night of 24-11-1992. Second and third accused were asked to come at about 11-00 p.m. At about 7-30 p.m. first accused asked P.W. 1 to go to Prabu Cycle shop owned by P.W. 8 and get a cycle for hire. Accordingly, P.W. 1 brought Cycle No. 12 and parked the same in the lane adjoining the house of the first accused. Second and third accused promptly arrived at 11-00 p.m. First accused gave a sum of Rs. 50/- to the second accused and asked P.W. 1 as well as both second and the third accused to have tiffin and come back. They returned within half-an-hour. Accused 2 to 4 were then asked to sleep in the noon meal centre, called as market. At about 1-00 a.m. P.W. 1 was weeping, apparently because he was being involved in a heinous crime, while second and third accused were sleeping. The first accused came there and he is said to have beaten P.W. 1 and told him that he need not commit robbery and it is enough if he could stand outside the house. Second accused had brought a bag which could be hung on the shoulder. He also brought a gun and was also sporting a pistol in his hip. In the bag, he had brought four masks and eight hand gloves, a small knife, a crow-bar, torch light, and four pieces of white ropes. He loaded the pistol and inserted the same in his hip. He took the barrel of the gun separately and gave it to the third accused, and the wooden portion of the gun was given to the second accused. P.W. 11 was then asked to carry and transport second and third accused in a cycle to be left near the house of P.W. 5. Though P.W. 2 did not know the house of P.W. 5, second accused offered to show the way. P.W. 1 first took the second accused and left him near the house of P.W. 5. He then took the third accused and left him in the same place. Lastly, he took the first accused in the cycle and dropped him near the house of P.W. 5. At the request of the first accused, P.W. 1 took the cycle near the house of one Maharaja and left it in the Chavadi. It is stated that the first accused accompanied P.W. 4 for the purpose of leaving the cycle because the first accused had a doubt that P.W. 4 might run away.