ABU THAKIR Vs. STATE

JUDGEMENT

(1.) SIX accused were tried in S.C.No.114/2003 on the file of the First Additional Court of Sessions, Coimbatore, for various offences. At the end of the trial, the learned trial Judge found A1 to A3 guilty under sections 120-B, 148, 341 and 302 I.P.C A4 and A6 under sections 120-B, 147 and 302 read with section 149 I.P.C and A5 under sections 120-B and 302 read with section 109 I.P.C. For the offence of criminal conspiracy, each one of the convicted accused stands sentenced to undergo imprisonment for life together with a fine of Rs.10,000/-, carrying a default sentence. For the offence of murder, either directly or with the aid of section 149 or 109 I.P.C, each one of the convicted accused stands sentenced to undergo imprisonment for life together with a fine of Rs.10,000/-, carrying a default sentence. For the offence under section 341 I.P.C., each one of the convicted accused stands sentenced to undergo one month rigorous imprisonment together with a fine of Rs.500/-, carrying a default sentence. For the offence under section 148 I.P.C., the convicted accused stands sentenced to undergo two years rigorous imprisonment together with a fine of Rs.10,000/-, carrying a default sentence. The sentences stand directed to run concurrently. Hence, the convicted A4 to A6 have filed Crl.App.No.336/2004 and A1 to A3 have filed Crl.App.No.338/2004 before this court. Heard Mr.B.Sriramulu learned senior counsel appearing for A1 Mr.S.Shanmugavelayutham learned counsel appearing for A2 and A3 Mr.V.Gopinath learned senior counsel appearing for A4 to A6 and Mr.N.R.Elango learned Additional Public Prosecutor defending the State.

(2.) ACCORDING to the prosecution, on 26.03.2002 a Muslim by name Sultan Meeran was murdered by two persons and therefore, to retaliate, a criminal conspiracy was hatched on 27.03.2002 by the accused as a consequence to the criminal conspiracy, all the accused formed themselves into members of unlawful assembly (A1 to A3 armed) on 28.03.2002 at 7.30 a.m and in the course of the same transaction, by wrongfully restraining Murugesan (since deceased), A1 to A3 caused his death. To prove their case, the prosecution examined P.Ws.1 to 30, besides marking Exs.P.1 to P.77 and M.Os.1 to 43. The defence, on their side, examined four witnesses as D.Ws.1 to 4 and marked defence material object Nos.1 to 10. P.W.1 is working in a lorry transport office at Ukkadam. The deceased, who is a member of RSS, is P.W.1's younger brother. P.W.1, the deceased and their mother are all living together. The deceased was an active member of RSS. Both P.W.1 and the deceased are unmarried. At about 6.30 a.m on the occurrence day, the deceased was taking his bath and P.W.1 went to a nearby barber shop to have a shave. P.W.1's paternal uncle came to the barbar shop and informed P.W.1 that east of Badrakaliamman Koil, somebody are engaged in a quarrel with Murugesan (since deceased). Immediately P.W.1 ran towards that place, where he found his younger brother lying on the ground with bleeding injuries. Murugesan did not respond to the calls of P.W.1. P.Ws.5 and 28, the former residing east of P.W.1's house and the latter residing at Kovaipudur, were there in the crowd. When P.W.1 enquired them, they told him that the attack is in the context of the earlier incident, where, a person belonging to the assailants' community had come to be stabbed. They also told him that the assailants ran away from the crime scene. Within ten minutes thereafter, P.W.6 came there and she informed P.W.1 that in the morning when she was opening her shop (P.W.6 is having a fruit vending shop), she noticed two or three persons coming near her shop in a red colour car and scooter and then they proceeded in the pathway leading to the temple. Sometime later, P.W.1's uncle Subramani (not examined) and P.W.15 came there. P.W.15 and others took injured Murugesan in the car of P.W.1's uncle to the Government Hospital at Coimbatore. En route, P.W.14, over his mobile phone, informed the investigating police station. When P.W.1 reached the crime scene, it was 7.30 a.m and fifteen minutes thereafter, they left for the hospital, which they reached at 8.00 a.m. The duty Doctor, by examining Murugesan, pronounced him dead.

(3.) P.W.30 gave Ex.P.8 (requisition) to the Chief Judicial Magistrate on 12.04.2002 to conduct a test identification parade. On orders being passed, P.W.30 served summons (Ex.P.9 series) on P.Ws.5, 6, 28 and other witnesses to appear in the Central Prison at Salem. P.W.30 sent the case properties to the court along with Ex.P.40 (requisition) to subject the same for chemical examination. P.W.30 gave Ex.P.44 (requisition) to the court to send the handwriting/signature of A3 and A4 to the handwriting expert to be compared with the papers recovered from A3 and A4, each containing the address of Murugesan (since deceased). On 18.04.2002, P.W.30 arrested A5 in the presence of P.W.25 and another. At that time, A5 gave a voluntary confession statement, which was recorded. A5 was then sent for judicial remand. Further witnesses were examined by P.W.30. On 28.04.2002, on prior information, P.W.30 arrested A6 at about 11.30 p.m when he was riding his two wheeler bearing Regn.No.TN-38-3997 and examined him in the presence of P.W.25 and another. A6 gave a voluntary confession statement at that time, which was recorded. His two wheeler (M.O.38) was recovered under Ex.P.68. A6 then led the police party and the witnesses to the crime scene and then led them to his house, where, in the presence of witnesses, M.O.39 series came to be recovered under Ex.P.69 (search list). P.W.30 gave Ex.P.12 (requisition) to the court on 30.04.2002 to conduct a test identification parade to enable witnesses Mylsamy and Nagaraj to identify A6. (Mylsamy and Nagaraj are not examined in court). Ex.P.13 series are the summons served on the two witnesses. P.W.30 gave Ex.P.19 (requisition) to the court to examine P.Ws.2 to 7, 10, 16, 19, 28 and others under section 164 of the Code of Criminal Procedure. Ex.P.29 series are the summons served on the witnesses. P.W.30 examined further witnesses by recording their statements.