V.S. SIRPURKAR, J. - (1.) THIS appeal is at the instance of the appellants, namely, Alagarsamy, original accused No. 1 (A-1), Ponniah, original accused No. 3 (A-3), Jothi, original accused No. 4 (A- 4), Manikandan, original accused No. 5 (A-5), Andichami, original accused No. 7 (A-7), Manoharan, original accused No. 8 (A-8), Renganathan, original accused No. 9 (A-9), Markandan, original accused No. 11 (A-II), Rasam @ Ayyavu, original accused No. 12 (A-12), Sakkaraimurthy, original accused No. 13 (A-13), Alaghu, original accused No. 14 (A-14), Rajendrar;, original accused No. 15 (A-15), Sekar, original accused No. 18 (A- 18), Chockanathan, original accused No. 20 (A-20), Selvam, original accused No. 21 (A- 21), Chinna Odugan @ Chinna Ulunthan, original accused No. 22 (A-22), Ramar, original accused No. 40 (A-40). All these accused persons were convicted by the Trial Court, whose judgment was confirmed by the High Court. All of them were convicted for the offences under Section 302 read with Section 34 of the Indian Penal Code (hereinafter called "IPC" for short) and/or Section 149 IPC alongwith other persons on the allegation that they had committed murder of as many as six persons belonging to Adidravida (a Scheduled Caste) community on 30.6.1997. Basically, the charge against all the 40 accused persons, who were tried, was that they were inimical with the persons of Adidravida community in the Village Melavalavu, as there was an election dispute. THIS dispute arose on account of the election of Adidravida community person being elected to the post of Pradhan (President), which was not liked by the Caste Hindus. Ultimately, in order to wreck avenges against the people of Adidravida community, an unlawful assembly was formed near a shop in the Village Melavalavu and the persons belonging to Adidravida community were attacked. The further allegation is that some of the Adidravida community persons including the Pradhan and other office bearers had gone to Madurai to meet the Government officials in pursuance of their demands and while they were resuming by bus, some of the accused persons entered into the bus, armed, and when the bus came in the Village Melavalavu near Todi Shop, accused persons who had travelled in the bus and others who had gathered near the spot, assaulted the persons belonging to Adidravida community including the Pradhan and the other office bearers of the Panchayat and murdered as many as six persons belonging to Adidravida community. Various charges were levelled against 40 persons including the charge under Sections 148 IPC, 302 read with Section 149 IPC, 302 read with Section 34 IPC, 302 substantively, as also the charge under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. As many as 17 persons were held guilty by the Sessions Judge under Sections 148 IPC and also under Section 302 read with Section 34 IPC alongwith offences under some other Sections. Three appeals were filed at the instance of the accused persons. All the appeals were disposed of by a common judgment of the High Court, dismissing all the appeals and that is how the appellants are before us by way of the present appeal, challenging their conviction and the sentences awarded by the Sessions Judge and confirmed by the High Court.
(2.) BRIEFLY stated, the prosecution case was as follows. The gory incident which took place, had its seeds sown in mid 1996, when Melavalavu Village Panchayat was declared to be reserved for the Scheduled Caste people. This was not liked by the caste Hindus of the Village, generally belonging to Ambalakara community and thus, an inimical feeling was being nurtured by the people of this community against the Adidravida persons. So much so that when the elections were declared in the year 1996, some of the houses belonging to the members of the Scheduled Caste were burnt. The election was conducted on 31.12.1996 and one Scheduled Caste candidate namely Murugesan (Deceased No. 1) was elected as President of Melavalavu Panchayat. Even before this election, twice the election had to be cancelled, as on both occasions, the whole election process was thwarted by the caste Hindus. On the fateful day, Murugesan (deceased No. 1), Mookan, Vice President (deceased No. 2), Chelladurai (deceased No. 5), Sevagamoorthi (deceased No. 3) and some others had gone to Collector's Office, Madurai for claiming compensation for the damage caused to the houses of three persons, which houses were burnt. They could not meet the Collector, as he was not available, therefore, one Kanchivanam (PW-12) was asked to wait in their office and the others boarded the bus from Madurai. Prosecution alleged that one Krishnan (PW-1) was also travelling by the said bus. When the bus reached Melavalavu, one Kumar (PW-2) and Chinnaiya (PW-3) got at the bus and at that time, 5 accused persons, namely, Algarsamy (A-l). Doraipandi (A-2), Jothi (A- 4), Manikandan (A-5) and Manivasagam (A-6) boarded the bus. Prosecution alleges that they were armed. When the bus reached Village Melavalavu, Doraipandi (A-2) shouted at R. Nagaraju (PW-14), the Driver, to stop the bus. The Driver (PW-14) stopped the bus and at that time, all the accused persons surrounded the bus with weapons. They started murderous assault on Murugesan (deceased No. 1) and others, who were in the bus, as also some others, who were in the crowd. It has come in the evidence that Murugesan was beheaded and his head was carried by Algarsamy (A-l). This incident was seen by Krishnan (PW- 1), Kumar (PW-2) and Chinnaiyya (PW-3), who were also injured, having been assaulted by some of the accused persons. The incident was also witnessed by Moorthy (PW-4), Periyavar (PW-5), Palani (PW-6), Ganesan (PW-7), Yeghadt (PW-8), Mayavar (PW-9), Kalyani (PW-10) and Karuppan (PW- 11). Grief and fear stricken Krishnan (PW-1), Kumar (PW-2) and Chinnaiyya (PW-3), who were injured, managed to reach Melur Government Hospital on bicycle. They were given first-aid and were provided transport for being taken to Madurai Government Hospital. The incident came to the knowledge of Rajshekharan (PW-47), Inspector of Police at about 5.30 p.m. He reached the Hospital, recorded the statement of Krishnan (PW-1) and on the basis of the same, registered Crime No. 508 of 1997 for offences under Sections 147, 148, 341, 307 and 302 IPC, as also under Section 3(l)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He dispatched the copies of the First Information Report (FIR) to the Judicial Magistrate, Melur, as also to his superior Dy. Superintendent of Police, District Crime Branch, Madurai. The DSP took up the investigation, formed a special team and reached the spot without wasting any time and commenced the investigation. Inquest Panchanamas and Spot Observation Panchanamas were prepared. Blood stained articles were seized from the bus and from other places. The bodies were also sent for Post Mortem. The blood stained articles were sent to the forensic science laboratory and after completing the investigation, the chargesheet came to be filed on 25.9.1997. At the Trial, as many as 50 witnesses were examined and 121 documents were got proved. 55 material objects were also produced. 2 defence witnesses were examined and as many as 19 documents were got proved by the defence, they being D-1 to D-19. The accused pleaded ignorance, however, as has been stated, as many as 17 persons came to be convicted by the Sessions Judge. Their appeals were also dismissed by the High Court. Before the High Court, some private individuals, who were the witnesses, also had filed the revisions, challenging the acquittal of few accused persons. However, the High Court, by a common judgment, dismissed those revisions. Thus, we are left with the appellants before us. Shri Altaf Ahmad, Learned Senior Counsel led the arguments on behalf of the appellants, while Shri Kanagaraj, Learned Senior Counsel represented the State.
(3.) THE Learned Senior Counsel appearing on behalf of the appellants, firstly, pointed out the order passed by this Court, whereby the prosecution was directed to produce the FIR Book of the Melavalavu Police Station, in which the FIR dated 30.6.1997 relating to Crime No. 508 of 1997 was reflected. He then pointed out that the prosecution had not produced the said FIR Books nor was there any plausible explanation for this noncompliance. Based upon this argument, Shri Altaf Ahmad further invited our attention to the two reports, they being, firstly, the report by Tahsildar to Collector of the said date and the second being the one authored by District Collector, Madurai sent to Secretary, Public Law and Order Department, Secretariat at Chennai. Our attention was specifically invited to the fact that though the Crime No. 508 of 1997 was reflected in the said reports and though all the facts were also reflected regarding the ghastly incident alongwith the names of the deceased persons and injured persons, yet the names of the accused persons against whom the FIR was filed, were conspicuously absent. We were taken through the reports, particularly, report of the Tahsildar to Collector being Exhibit D-13 and it was pointed out by the Learned Senior Counsel that there was a graphic description of the incident in that report. THE background of the incident was also reflected, but excepting the name of Duraipandi (A-2) no other name of the accused persons was mentioned. THE other accused persons were referred to as "Fourteen others". THE Learned Senior Counsel pointed out that in Exhibit D- 18, which was a report from the Collector to the Secretary and D-19, which was a second report from the Collector to the Secretary, reporting the law and order situation in Melavalavu on account of this incident, the names of the accused were not to be seen. THE Learned Senior Counsel also invited our attention that it is only in the report dated 17.7.1997 that the Tahsildar has reported the names of as many as 34 accused persons. From this, the Learned Senior Counsel suggests that, in fact, the names of the accused persons were not known to anybody even on that day nor were they reported to the Police Station. THE Learned Senior Counsel, therefore, mocked at the prosecution's claim that the names of the accused persons or as the case may be, majority of them, became known to the investigating agency immediately after the incident through the statement of Krishnan (PW-1). Our attention then was invited to the evidence of Krishnan (PW-1), the injured eyewitness, Rajshekharan (PW-47), the Police Officer, who got the offence registered in the Police Station and Nambi (PW-18), the Tahsildar, who was the author of the report regarding the law and order situation in Village Melavalavu. From this, the Learned Senior Counsel urged that the basic story, as revealed in the so-called FIR, Exhibit P-53 was itself shrouded with mystery and there was absolutely no justification for accepting the claim of prosecution that the names of the accused persons became available to the investigating agency almost immediately. THE Learned Senior Counsel, therefore, urged that under such circumstances, the FIR was liable to be thrown out on this ground alone and the FIR had lost all its credibility, particularly, because the deliberate attempt on the part of the prosecuting agency to suppress the FIR Book, which though demanded right from Trial Court to this Court, was not supplied by the prosecution nor was its mysterious absence explained. As a sequel to his argument, it was urged that once the FIR itself becomes a doubtful document, then the whole prosecution becomes doubtful and it was obvious that the names of the accused persons surfaced based on imagination. It was further pointed out that the First Information Report was inconsistent with the station diary as the serial number given to that FIR did not tally. In this behalf, our attention was drawn to crime Nos. 506-507 which though earlier, bore subsequent numbers as compared to crime No. 508. It was also pointed out that the Tahsildar, Shri K. Pullani who had made the report Ex. D-13 had turned hostile, so also the so-called author of the FIR, Krishnan (PW- 1) also turned hostile was of no use. The Learned Counsel also pressed into service the writ petition filed by Krishnan (PW-1) wherein he had alleged that the real culprits were left out and were never proceeded against by the investigating agency, meaning thereby the present accused persons had in fact nothing to do with the incident. Our attention was also drawn to the evidence of R. Santhanakrishnan (PW-13), the bus Conductor and R. Nagaraju (PW-14), who was the Driver. It was pointed out that these two persons claimed that they had reported the incident much earlier in the same police station. On the basis of this material, the Learned Counsel contended that the whole prosecution case was liable to be thrown as being suspicious and the evidence was bound to be rejected and the Courts below had erred in relying upon the prosecution witnesses and convicting the accused persons. The Leaned Counsel heavily relied on the judgment reported as Sevi and Anr. v. State of Tamil Nadu in 1981 Suppl. SCC 43 wherein this Court had thrown the prosecution case on the basis of non-production of the FIR Book.;