1.Katturaja Vs. State, Rep.by - Court Judgment

Excerpt:

.....11.00 a.m.p.w.23 then handed over the case diary to p.w.28, who was the inspector of police, in-charge of kalakkad police station. (h)taking-up the case for investigation, p.w.28 proceeded to the place of occurrence. he also made a request for the assistance of a finger print expert to examine the place of occurrence. between 9.30 a.m.and 10.30 a.m., he prepared an observation mahazar (ex.p-2) in the presence of p.w.4 and another witness. he also prepared a rough sketc.(ex.p-33) showing the place of occurrence. (i)p.w.28 recovered bloodstained lungi (m.o.1) worn by d-1, bloodstained earth (m.o.2) and sample earth (m.o.3).from the place of occurrence, under ex.p-3 mahazar, in the presence of p.w.4 and another witness. he also collected blood samples of d-2, d-3 and d-4 by staining threads with the blood found under their bodies, under exs.p-4, p-5 and p-6, respectively, in the presence of p.w.5 and another witness. m.o.4, m.o.5 and m.o.6 are the blood stained threads pertaining to d-2, d-3 and d-4, respectively. (j)then he made a request to three other inspectors of police, namely, p.w.24, p.w.25 and p.w.26, to assist him to conduct inquest on the bodies of the deceased......

Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/10/2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Referred Trial (Md.No.1 of 2013 and Crl.A.(MD)No.19 of 2013 & M.P.(MD)Nos.1 & 2 of 2013 R.T.(MD)No.1/2013 1.Katturaja 2.Vettum Perumal @ Krishnan, @ Kitchi ..Accused vs State, rep.by The Deputy Superintendent of Police, Valliyoor Sub-Division, Nanguneri Sub-Division (i/c) Kalakkadu Police Station, Tirunelveli District.

(Cr.No.111/2007) .Complainant Referred Trial under Section 366 of the Code of Criminal Procedure on the judgment of the learned II-Additional Sessions Judge, Tirunelveli, made in S.C.No.59/2007, dated 26.12.2012.

Crl.A.(MD)No.19/2013 1.Katturaja 2.Vettum Perumal @ Krishnan, @Kitchi ..Appellants/ Accused 1&2 .

vs State, rep.by The Deputy Superintendent of Police, Valliyoor Sub-Division, Nanguneri Sub-Division (i/c) Kalakkadu Police Station, Tirunelveli District.

(Cr.No.111/2007) .Respondent/ Complainant Criminal Appeal under Section 374(2) of the Code of Criminal Procedure against the judgment, dated 26.12.2012, made in S.C.No.59/2007, on the file of the learned II-Additional Sessions Judge, Tirunelveli.

!For Accused-1/ ..Mr.I.Subramanian, Appellant-1 ..Senior Counsel for Mr.K.Prabhu For Accused-2/ ..Mr.V.Kathirvelu, Appellant No.2 ..Senior Counsel for Mr.K.Prabhu ^For Respondent/ ..Mr.S.Shanmugavelayutham, Complainant State Public Prosecutor, assisted by Mr.C.Ramesh & Mr.R.Ramachandran, Addl.Public ProsecutORS.:

JUDGMENT

S.NAGAMUTHU,J This is a case in connection with the brutal killing of four persons, in a gruesome manner.

Having passed sentence of death by judgment dated 26.12.2012 in S.C.No.59/2007, the learned II-Additional Sessions Judge, Tirunelveli, has submitted the proceedings to this Court, under Section 366 of the Code of Criminal Procedure.

The details of sentences imposed are as follows: Accused No.Charge Finding Sentence Accused 1&2 U/s.341 IPC Not guilty Acquitted Accused 1&2 U/s.302 r/w Guilty Death sentence Sec.34 IPC (4 imposed on both counts) (4 counts) and each to pay a fine of Rs.1,00,000/-, in default to undergo one year S.I.Accused 1&2 U/s.449 IPC Guilty Each Sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- in default to undergo 6 months S.I.Accused 1&2 U/s.3(2)(v) of Guilty Each sentenced SC & ST to undergo (Prevention of imprisonment for Atrocities) life (4 counts) Act, 1989 (4 and each to pay counts) a sum of Rs.1,00,000/- as fine, in default to undergo one year S.I.Challenging the said conviction and sentence, the accused have come-up with Crl.A.(MD)No.19/2013.

2.Earlier, in the month of January, 2013, we heard both the matteRs.jointly, during which we found that the investigation in this case was far from satisfactory, inasmuch as legally acceptable evidences were not adequately collected during the investigation and so, by order dated 31.01.2013, we directed further investigation to be done in the case and as suggested by the learned Public Prosecutor, we entrusted the task of further investigation to one Mr.P.Mahendran, Additional Superintendent of Police (Crimes) Tirunelveli District.

[Vide 2013-1 L.W.(Crl.) 134].3.On completing further investigation, Mr.Mahendran filed an additional Report to this Court.

Based on the said report, the learned Public Prosecutor preferred to examine additional witnesses and also to prove additional documents.

Accordingly, before this Court, 6 (six) additional witnesses were examined on the side of the prosecution as P.W.31 to P.W.36 and 8 (eight) documents were proved as Ex.P41 to Ex.P-48.

Then, we questioned the accused in respect of the incriminating evidences adduced additionally, as stated supra, as required under Section 313 Cr.P.C.The accused disputed the facts stated by the additional witnesses and also the facts sought to be proved by means of additional documents.

Thereafter, we heard the learned State Public Prosecutor Mr.Shanmughavelayutham and the learned counsel for the accused.

That is how, both the matters are now before us for decision.

4.The facts of the case, in brief, are as follows: (a)There were four deceased in this case, namely, Mr.Jayakumar @ Muthalali (hereinafter referred as ".D-1".).Shamughathai (hereinafter referred to as ".D-2".).Indira (hereinafter referred to as ".D-3".) and Bhuvaneshwari @ Chitra (hereinafter referred to as ".D-4".).All, the four unfortunate deceased, belonged to the same family.

D-1 and D-2 are husband and wife, D-3 and D-4, aged about 10 and 8, respectively, are their children.

All the deceased were residing in a farm house in a farm known as ".Sabari Farm"., in a village known as ".Kailasaperi".(b)The 1st accused Katturaja had his land adjacent to the above farm.

The wife of the 1st accused used to visit the said land.

During such visits, the wife of the 1st accused used to talk to D-1, for quite some time.

P.W.17 was the then Manager of the Farm.

On noticing D-1 and the wife of the 1st accused talking in suspicious circumstances, he reprimanded D-1.

This came to the knowledge of the 1st accused.

The fiRs.accused too suspected that D-1 had illicit intimacy with his wife.

This is projected to be the motive for the occurrence.

(c)P.W.1 is the sister's son of D-1.

He was then residing in Pudhupettai village.

P.W.3 is the father of D-2.

D-1 had a brother by name Maharajan.

Some time before 19.04.2007, there was a quarrel between the brother of D-1 Mr.Maharajan and the villageRs.This was because Mr.Maharajan had abducted the wife of one Mr.Mathi, a Very Important Person in the said village.

Taking exception to the said conduct of Maharajan, the villagers had developed enmity towards D-1 and Maharajan.

P.W.3 came to know that some of the villagers had planned to kill D-1 as well as Maharajan, if they were to come to the village festival.

(d)Quite naturally, P.W.3 was worried about the same.

According to him, therefore, on 19.04.2007, he came to the farm house of D-1 with a view to request D-1 not to go for the village festival, which was scheduled to happen on the next day.

But, D-1 was not available at his house.

P.W.3 informed the same to his daughter (D-2) and wanted her to convey the message to D-1 so as to ensure that D-1 did not go for the village festival.

Till 5.00 p.m., D-1 did not return home.

Therefore, PW.3 left for his village.

On his way to his village, when P.W.3 was nearing the bridge across Manimutharu channel, he found these two accused sitting on the culvert with aruvals in their hands.

But, he did not inform the same to anyone and simply left for his village.

(e)According to the further case of the prosecution, P.W.17 the brother-in-law of D-1, was taking bath in Manimutharu Channel at about 6.45 p.m.On 19.04.2007 and at that time, these two accused came in a motor-cycle.

There were bloodstains on their dress.

On seeing P.W.17, they stopped the motor- cycle.

On noticing the bloodstains on their dress, P.W.17 enquired about the same.

They told him that when a dog attempted to bite them, they cut and killed it and that is how their dress came to be stained with blood.

After saying so, they left the place in the same motor-cycle.

(f)Thereafter, on 20.04.2007 at about 7.00 a.m., P.W.1, in a casual manner, proceeded to the farm house of D-1 to see him.

When he was nearing the farm house, by the side of the road, the bi-cycle which D-1 owned was found lying.

He proceeded further, suspecting some foul play.

From the cycle, at a distance of 25 to 30 feet, a lungi was found with bloodstains.

Then he proceeded further.

To his shock, he found D-1 lying dead with multiple cut injuries.

Then he rushed towards D-1's house.

There, he found D-2 lying dead with multiple cut injuries on the court yard of the house.

Then he went into the house where he found D-3 and D-4 lying dead with multiple cut injuries.

The front doors were found damaged, indicating that by using some hard material and by breaking the doORS.the assailants had entered into the house.

For few minutes, P.W.1 could not come out of the shock.

Then he managed to come to the road.

A passer-by came in a motor-cycle.

He requested him to lift him to the Police Station.

Accordingly, in the said motor cycle, he went to Kalakkad Police Station.

(g)P.W.23 was the then Sub-Inspector of Police attached to Kalakkad Police Station.

At 8.00 a.m.on 20.04.2007, P.W.1 appeared before her and drafted a complaint and presented the same to P.W.23.

In the said complaint, P.W.1 had mentioned three persons, viz., Mathi, Mariappan and Subramanian, as suspects.

On the said complaint (Ex.P-1).P.W.23 registered a case in Crime No.111/2007 under Section 302 IPC.

Ex.P-28 is the FIR.

Then, she forwarded Ex.P-1 and Ex.P-28 to the learned Judicial Magistrate, Nanguneri.

The learned Judicial Magistrate received the same at 11.00 a.m.P.W.23 then handed over the case diary to P.W.28, who was the Inspector of Police, in-charge of Kalakkad Police Station.

(h)Taking-up the case for investigation, P.W.28 proceeded to the place of occurrence.

He also made a request for the assistance of a Finger Print Expert to examine the place of occurrence.

Between 9.30 a.m.and 10.30 a.m., he prepared an Observation Mahazar (Ex.P-2) in the presence of P.W.4 and another witness.

He also prepared a rough sketc.(Ex.P-33) showing the place of occurrence.

(i)P.W.28 recovered bloodstained lungi (M.O.1) worn by D-1, bloodstained earth (M.O.2) and sample earth (M.O.3).from the place of occurrence, under Ex.P-3 Mahazar, in the presence of P.W.4 and another witness.

He also collected blood samples of D-2, D-3 and D-4 by staining threads with the blood found under their bodies, under Exs.P-4, P-5 and P-6, respectively, in the presence of P.W.5 and another witness.

M.O.4, M.O.5 and M.O.6 are the blood stained threads pertaining to D-2, D-3 and D-4, respectively.

(j)Then he made a request to three other Inspectors of Police, namely, P.W.24, P.W.25 and P.W.26, to assist him to conduct inquest on the bodies of the deceased.

Accordingly, these three Inspectors of Police also came to the place of occurrence.

Then, P.W.28 conducted inquest on the body of D-1, in the presence of panchayatdars and prepared Ex.P-34 Inquest Report.

Then he forwarded the body of D-1 to Nanguneri Government Hospital for postmortem.

(k)P.W.24 conducted inquest on the body of D-2 in the presence of P.W.1 and one Alagar and prepared Ex.P-29 Inquest Report.

Then he forwarded the body of D-2 to Nanguneri Government Hospital for postmortem.

(l)P.W.25 conducted inquest on the body of Indira (D-3) in the presence of P.W.1 and one Alagar and prepared Ex.P-30 Inquest Report.

Then he forwarded the body of D-3 to Nanguneri Government Hospital for postmortem.

(m)P.W.26 conducted inquest on the body of D-4 in the presence of P.W.1 and one Alagar and prepared Ex.P-31 Inquest Report.

Then he forwarded the body of D-4 to Nanguneri Government Hospital for postmortem.

(n)P.W.19 Dr.Sridharan, attached to Tirunelveli Medical College Hospital, conducted autopsy on the body of D-2 at 12.45 p.m.on 20.04.2007.

He found the following injuries on the body of the deceased (D-2).".1)12x3 cm x Brain Deep, Gaping Heavy Cut Injury - Right and Left.

Frontal Region, in oblique direction, 13cm above the Root of the Nose, 9cm distant from the right ear.

2) 15x5 Cm x Bone Deep, Gaping Heavy Cut injury - Right Side of Neck, in oblique direction, 5cm below the right Ear 5 cm from the Anterior Mid Line of the Body.

Underlying Muscles, Vessels & Nerves are found cut.

3) 9x1cm x Bone Deep Gaping Heavy Cut Injury - Right Side of Neck 2cm below the Injury No.2, in oblique direction Underlying Muscles, Vessels & Nerves are found cut.

4)20x5cm x Pleural Cavity (Visceral) Deep, Gaping Heavy Cut Injury - Right side, Back of Chest, 12 cm below the Nape of Neck, 3cm from the Posterior Mid Line of the body, in oblique direction.

5)11x3cm x Peritoneal Cavity (Visceral) Deep, Gaping Heavy Cut Injury - Right side, outer aspect of Abdomen, 15cm above the Right Anterior Superior Iliac Spine, 20 cm from the Umbilicus, in oblique direction.

6)8x3 cm x Bone Deep, Cut injury - Middle of Backof Chest 20 below the nape of Neck, in oblique direction.

7)2x1cm x Muscle Deep Cut Injury - Front of Left Arm, 9 cm below the Top of Left Shoulder, in oblique direction.

8)1x1cm x Bone Deep, Cut Injury - Medial end of the Left Clavicle.

9)1x1cm x Bone Deep, cut Injury - Medial end of the right clavicle.

10)5x2cm x Bone Deep cut injury Top of right shoulder, 7cm medial to the Acromion.

11)2x1cm Abrasion - Dorsum of Right Hand near the Root of Thumb.

12)10x2cm x Bone Deep, Cut Injury - Left Scapular Region 8cm below the Acromion in oblique direction.".

He opined that the deceased would appear to have died of shock and haemorrhage, due to multiple heavy cut injuries sustained by the deceased.

Ex.P-20 is the postmortem certificate given by him.

(o)P.W.19 also conducted autopsy on the body of D-3 at 01.50 p.m.on 20.04.2007.

He found the following injuries on the body of the deceased (D-3).".1)15x3 cm x Bone deep, gapign heavy cut injury - right and left.

Frontal Region, in oblique direction.

11Cm above the Root of the Nose, 8cm distant from the right ear.

2)14X5cm x pleural cavity (visceral) deep, gaping heavy cut injury - front of chest, in oblique direction 7cm from the left mid auxillary line, 13cm from the right mid auxillary line.

3)12x3cm x pleural cavity (visceral) deep, gaping heavy cut injury - front of chest, 2cm below the injury No.2, in oblique direction, 14cm from the left mid axillary line, 7cm from the right mid axillary line.

4)7x1cm x bone deep, cut injury - dorsum of the little finger, right finger & middle finger of right hand, in oblique direction.

5)4x1cm x bone deep, cut injury - inner aspect of right wrist, in oblique direction.

6)3x1 cm bone deep, cut injury - inner aspect of right thumb.

7)Distal & middle part of the index fingeRs.middle finger and ring finger & distal part of the little finger of left hand found cut and amputated.".

He opined that the deceased would appear to have died of shock and haemorrhage due to multiple heavy cut injuries sustained by the deceased.

Ex.P-22 is the postmortem certificate issued by him.

(p)P.W.20 Dr.Mani, attached to Tirunelveli Medical College Hospital, conducted autopsy on the body of D-4 at 01.45 p.m.on 20.04.2007.

He found the following injuries on the body of the deceased (D-4).".1) 14x2 cm x bone deep cut injury seen on the right fronto-parieto- temporal region through and through cut injury cutting the brain at site.

The lower end in 2cm away from the upper part of right external ear, upper limit is 11cm away from the root of nose.

2) 10x3 cm x bone deep cut injury seen on the back of neck.

It is 7cm below the occipital protuberance and 4cm above the nape of neck.

Underlying muscles, vessels, nerves and cervical vertebra No.4 cut at site.

3)Three cut injuries each 16x3 cm x bone and visceral deep seen on the upper part of back one below the other.

The upper most injury is 6cm away from the left margin of scapular blade.

The lower most injury is 17cm above the superior-iliac spine.

Underlying muscles, vessels and nerves cut at site.

On dissection T5, T7 and T9 partially cut at site.

Lungs found cut corresponding to external injury on both sides.

4)12x5 cm x muscle deep cut injury seen on the top of right shoulder.".

He opined that the deceased would appear to have died of shock and haemorrhage due to multiple heavy cut injuries.

Ex.P-24 is the Postmortem Certificate issued by him.

(q)P.W.20 also conducted autopsy on the boy of D-1 at 02.10 p.m.on 20.04.2007.

He found the following injuries on the body of the deceased (D-1).".1) 14x3cm x bone deep cut injury seen on the left angle of mouth to the left side of the neck.

It is 5cm away from the Nasio-labial fold and 4cm below the lower part of left external ear.

Underlying muscle, vessels, nerves, maxilla and jaw found cut at site.

2)15x4cm x bone deep cut injury seen on the upper part of back of neck.

It is 5cm below the occipital protuberance.

Underlying vault of skull found cut through and through and the cerebellum pontine junction of brain found cut at site.

3)Multiple gaping cut injuries seen one below the other.

Underlying muscles, vessels nerves and cervical bones No.4 and 5 found cut.

4) 15 x 6 cm x bone deep cut injury seen on the top of left shoulder.

Underlying muscles, vessels, nerves and medial end of cervical fold found cut at site.

5) 10X3cm x muscle deep cut injury seen on the upper part of outer aspect of left arm.

It is 6cm below the shoulder joint.

6) 14 x 4cm x Visceral deep gaping cut injury seen on the lower part of left back.

It is 2cm above the superior-iliac spine through which coils of intestine found cut and protruding out.

7)Defence cut injury 18 x 6cm x bone deep seen on the right palm of the hand to the outer aspect of wrist to root of middle and index finger.

Thumb is found missing.

Underlying metacarpals and phalanges of middle and right index finger found cut at site.

8) 14 x 3 cm x bone deep defence cut injury seen on the palm of right hand.

All the metacarpal found cut at site.

He opined that the deceased would appear to have died of shock and haemorrhage due to multiple heavy cut injuries.

Ex.P-26 is the Postmortem Certificate issued by him.

(r)In the meanwhile, on 20.04.20107, the 1st accused Katturaja engaged P.W.33 (Mr.S.Mohandoss, a practising Advocate in the District Court at Madurai) and with his legal assistance, he surrendered before the learned Judicial Magistrate No.V, Madurai, in connection with this case.

(s)On 21.04.2007, P.W.28, examined P.W.17 and P.W.3 and came to know that these two accused had involvement in the occurrence.

Thereafter, he went in search of both the accused but, he could not find them.

Thereafter, on the orders of the District Superintendent of Police, on 24.04.2007, he handed over the case diary to P.W.29 for further investigation.

(t)P.W.29 altered the case into one under Section 302 IPC read with Section 3(2)(v) of SC & ST (Prevention of Atrocities) Act and sent a report under Ex.P-35 to the Court.

He again examined most of the witnesses, who had been earlier examined by P.W.28 and verified the correctness of their statements.

He received message about the surrender of the 1st accused before the learned Judicial Magistrate No.V, Madurai.

On the request made by P.W.29, the learned Judicial Magistrate ordered for police custody of the 1st accused.

Accordingly, P.W.29 took the 1st accused into his custody on 30.04.2007.

(u)On 01.05.2007, when he was interrogated by P.W.29, at 1.00 p.m.the 1st accused volunteered a confession in the presence of P.W.5 and another witness.

In the said statement, he disclosed the place where he had hidden a beer bottle and the other place where he had hidden an aruval.

P.W.29 reduced the same into writing in the presence of witnesses.

In pursuance of the said disclosure statement, at 5.00 p.m.on 01.05.2007, the 1st accused took P.W.29 and the witnesses to Kailasaperi and produced an empty beer bottle (M.O.9).P.W.29 recovered the same under Ex.P-10 Mahazar, in the presence of witnesses.

Then, the 1st accused took P.W.29 and the witnesses to Manimutharu channel road at Kailasaperi, from where he produced half burnt bloodstained chappal, clothes, plastic can and a bag (M.O.8 series).P.W.29 recovered them under Ex.P-9 Mahazar, in the presence of the same witnesses.

Thereafter, the 1st accused took P.W.29 and the witnesses to Panankulam Road, from where he produced a bloodstained aruval (M.O.7).P.W.29 recovered the same under Ex.P-8 Mahazar, in the presence of witnesses.

On returning to the Police Station, P.W.29 forwarded the fiRs.accused again to the Court, for judicial remand and also produced the material objects before the Court.

Then, P.W.29 examined few more witnesses.

Thus he conducted investigation only for three days.

Thereafter, P.W.30 took up the case for investigation, on 09.05.2007.

(v)In the meanwhile, on 08.05.2007, the 2nd accused surrendered before the Judicial Magistrate Court No.I at Thoothukudi.

P.W.30 took custody of the 2nd accused on the orders of the jurisdictional Magistrate on 18.05.2007.

At about 3.30 p.m., the 2nd accused volunteered a confession, in the presence of P.W.6 and P.W.10.

(both the witnesses have turned hostile).In the said confessional statement, the 2nd accused disclosed the places where he had hidden an aruval and a Bajaj Motor Cycle.

P.W.30 reduced the said statement into writing.

In pursuance of the said disclosure statement, the 2nd accused took P.W.30 and the witnesses to Thandaiyarkulam and produced a bloodstained aruval (M.O.13) at 7.15 p.m.P.W.30 recovered the same under Ex.P- 39 Mahazar, in the presence of the said witnesses.

Then, at 8.00 p.m., on the same day, the 2nd accused produced a motor- cycle, bearing Regn.No.TN72Q5087from a banana grove.

P.W.30 recovered the same in the presence of witnesses under Ex.P-40 mahazar.

On returning to the police station, P.W.30 forwarded the accused again to the Court for judicial remand and also produced the material objects before the Court.

He obtained certificates from the Revenue Authorities to show the community to which the deceased and the accused, respectively, belong to.

Then he made a request to the Court for forwarding the material objects for chemical examination.

(w)P.W.9, the Head Clerk of the Judicial Magistrate Court, Nangunerai, on the orders of the learned Judicial Magistrate, forwarded 17 Material Objects, namely M.Os.1 to 8, 11 and 13 to 20 to the Forensic Lab for Chemical Examination.

Ex.P-16 is the Chemical Analysis Report received in the Court.

In the said material objects, except M.Os.2 and 8, Human blood of 'B' group was detected by the Scientific Assistant Grade-I, Regional Forensic Science Laboratory, Madurai.

(x)On completing the investigation, P.W.30 laid charge sheet against both the accused on 09.07.2007 under Section 302 IPC (4 counts) and under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (4 counts).5.Based on the above materials, the trial court framed common charges against the accused.

The 1st charge is under Section 341 IPC; the 2nd charge is under Section 302 read with Section 34 IPC (4 counts).the 3rd charge is under Section 449 IPC and the 4th charge is under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

The accused pleaded innocence and they denied the charges.

6.During the trial, on the side of the prosecution, as many as 30 witnesses were examined and Exs.P-1 to P-40 were marked and M.Os.1 to 28 were exhibited.

Out of the said witnesses, P.Ws.2, 6 and 10 have turned hostile and they have not supported the case of the prosecution in any manner.

As we have already pointed out, P.W.1 is the sister's son of D-1 and he has spoken about the fact that he found all the deceased dead and he has also spoken about the complaint made by him.

P.W.3, the father of D-2 and P.W.17 have supported the case of the prosecution.

P.W.3 has spoken about the fact that he saw the accused together sitting on the bridge of Manimuthar Channel, with aruvals, while he was returning to his village after 5.00 p.m.on 19.04.2007 and P.W.17 has stated that he found both the accused coming in a motor-cycle with bloodstains in their dress, around 6.30 p.m.On 19.04.2007 near Manimutharu channel.

P.Ws.19 and 20 are the Doctors who conducted postmortem on the dead bodies, who have spoken about the cause of the death.

P.W.18 Dr.Sivasubramaniam treated the 1st accused while he was in police custody for the injuries found on him.

P.Ws.11 and 21 are the Tahsildars who have spoken about the community certificates issued by them.

P.W.9 is the Head Clerk of the Judicial Magistrate Court, Nanguneri, who has spoken about the forwarding of material objects to the Regional Forensic Science Laboratory for chemical examination.

P.W.8 is the photographer who took photographs at the scene of occurrence.

Others are official witnesses.

7.The trial court questioned the accused under Section 313 Cr.P.C.in respect of the incriminating evidences.

The accused disputed the same and pleaded innocence.

However, they did not choose to examine any witness.

Having considered the above evidences let in by the prosecution and after having considered the rival submissions, the trial court, by judgment, dated 26.12.2012, found the accused guilty and accordingly punished them, as detailed herein above.

The trial court has submitted the proceedings to this Court for confirmation of the death sentence.

Challenging the above conviction and sentence, the accused have preferred appeal in Crl.A.(MD)No.19 of 2013.

8.As we have already mentioned, when these matters were heard by us in the month of January, 2013, we noticed a lot of infirmities and flaws in the investigation and we were of the view that the matter required further investigation.

However, the learned Public Prosecutor took enormous pains to persuade us to confirm the death sentence imposed on the accused.

But, with regret, we expressed our dissatisfaction with the investigation.

We pointed out the flaws in the investigation and shortcomings in the case of the prosecution.

Believing that further investigation would bring about some more materials, so that we could find out the truth, by order dated 31.01.2013, we ordered for further investigation.

As a matter of fact, the learned Public Prosecutor, on instructions from the Deputy Inspector General of Police, Tirunelveli Range, suggested one Mr.P.Mahendran, the then Additional Superintendent of Police (Crimes).Tirunelveli District, for the purpose of entrusting the further investigation.

Accordingly, we issued the following direction.

".39.In view of the above, we issue the following directions:- (i)We hereby appoint Mr.Mahendran, the Additional Superintendent of Police (Crime).Tirunelveli District, to take up the case for further investigation.

(ii)The respondent shall hand over all the records to him to enable him to do the investigation; (iii)The Deputy Inspector General of Police and the Superintendent of Police shall ensure adequate assistance including men power, to the Investigating Officer to enable him to do the investigation expeditiously; (iv)The Investigation Officer shall investigate the case independently, efficiently and fairly and collect all the materials available, either against the accused or in favour of the accused or against anybody else and submit the same by way of a report to this Court, preferably within a period of three months from today; (v)We further direct the Deputy Inspector General of Police, Tirunelveli to closely monitor the further investigation.

(vi)The Registry shall list this case for further hearing as part-heard case on 19.04.2013, on which date, the Deputy Inspector General of Police, Tirunelveli Range and the Investigating Officer Mr.Mahendran shall appear before this Court.

(vii)We direct the Director General of Police, Government of Tamil Nadu, to instruct all the Superintendents of Police in the Districts to ensure that as and when any appeal pertaining to life sentence or death sentence is listed for hearing before this Court, either the Investigating Officer or a responsible officer, who is posted with the facts of the case, is present before this Court to instruct the learned Public Prosecutor; (viii)We also direct the Director General of Police, Government of Tamil Nadu, to issue instructions to the Investigation Officers in murder, rape and other similar serious cases to attend the Court promptly and to assist the Public Prosecutor during the couRs.of trial; (ix)We make it clear that the observations made by us in this order relating to the quality and sufficiency of evidences are all only for the purpose of this order and the same shall not be misconstrued as a final conclusion on the issues.

We further make it clear that the parties will be at liberty to raise all the grounds/points in their favour at the time of final hearing of this case and (x)We also make it clear that we may issue further directions, if need be, in this matter, during final hearing of the case.

9.Mr.Mahendran (P.W.36) took up the case for further investigation.

According to him, he went to the place of occurrence on 13.02.2013 and prepared again an Observation Mahazar (Ex.P-46) and a Rough Sketc.(Ex.P-47) and examined few more witnesses.

He collected the Attendance Register of a Company known as 'Fibroflex India Pvt.LTD.from the custody of one John William (P.W.32).He made a request on 25.02.2013 to the learned II- Additional Sessions Judge, Tirunelveli, to forward the following bloodstained material objects for the purpose of DNA Examination.

".1)Lungi worn by the deceased-Jayakumar.

2)Half hand shirt worn by the deceased Jayakumar.

3)Burnt remains of the dress of the accused Katturaja.

4)One kozhi aruval seized from the accused Katturaja.

5)Three pieces of saree recovered from the deceased Shanmugathai.

6)One inner garment of deceased Shanmugathai 7)One blouse of deceased Shanmugathai.

8)One designed nighty of deceased Chitra.

9)One white colour shirt of deceased Indira.

10)Yellow colour shirt of deceased Indira.

11)One kozhi aruval recovered from the second accused Vettum Perumal.

12)Blood samples taken by means of a thread from the cycle used by the deceased Jayakumar.

13)Bloodstained earth recovered from the place where the body of the deceased Jayakumar was lying.

14)Sample blood by means of thread taken from the deceased Bhuvaneswari, deceased Shanmughathai and deceased Indira".

10.The above material objects were ultimately received by P.W.34 Dr.Kamalakshi Krishnamurthy, Deputy Director (DNA) Division) Forensic Sciences Department, Mylapore, Chenai-4.

According to her (P.W.34).she was able to extract DNA from Lungi (M.O.1).shirt (M.O.11).saree pieces (M.O.15).blouse (M.O.17).nighty (M.O.20).shirt (M.O.18).skirt (M.O.19).bill hook (M.O.13).Then, she received thread swab M.O.14).earth (M.O.2).thread swab (M.O.5).thread swab (M.O.4) and thread swab (M.O.6) from the Regional Forensic Laboratory, Tirunelveli, for DNA Analysis.

According to her, DNA was extracted from the above material objects and they were subjected to DNA Analysis.

P.W.34 finally gave opinion as follows: ".From the DNA typing results of the above samples, it is found that i.the bloodstains on items 1, 2 Portion C of item 11 (of ref 3) and items 1 and 2 (of ref 2) being to one and the same human male individual.

ii.the bloodstains on items 5 and 7 (of ref 3) belong to one and the same human female individual.

iii.the bloodstains on item 8 (of ref 3) and item 5 (of ref 2) belong to one and the same human female individual.

iv.The bloodstains on items 9 and 10 (of ref 3) and item 3 (of ref 2) belong to one and the same human female individual.

Ex.P-43 is the report of P.W.34.

11.P.W.36 examined P..W.31 to 35 and recorded their statements.

Finally, P.W.36 submitted an Additional Report to this Court on 18.04.2013.

12.After submission of the above report, the learned Public Prosecutor wanted to examine few more witnesses and also to prove few more documents on the side of the prosecution.

Copies of the statements of witnesses, recorded by P.W.36, and the copies of the documents sought to be relied on by the prosecution were supplied to the accused.

Thereafter, the learned Public Prosecutor was called upon to examine the witnesses on the side of the prosecution.

Accordingly, before this Court, on the side of the Prosecution, P.Ws.31 to 36 were examined.

13.P.W.31 is a resident of Pettai Village in Tirunelveli District.

He has stated that during the year 2007, the wife of one Mr.Mathi, who was residing in the same village, had eloped with one Maharaja.

Mr.Maharaja is the brother of Jayakumar (D-1).According to him, in the year 2007, there was a village temple festival, which was arranged for by the villageRs.Because of the above incident of elopement, the villagers had warned Mr.Maharaja not to participate in the said festival.

After the above incident, Maharaja and the wife of Mathi did not return to the village at all.

This incident triggered tension between two groups in the village.

P.W.31 and the other village panchayatdars obtained undertaking from both the groups to maintain calm and also had warned Maharaja and the wife of Mathi not to return to the village.

He has further stated that on the next day of the death of the deceased in this case, he, along with Mathi and otheRs.was engaged in erecting 'panthal' to celebrate village festival and at that time, policemen came and took M/s.Mathi, Subramanian and Mariappan (named suspects in the FIR) to the police station at Nanguneri.

This happened around at 3.00 p.m.on 20.04.2007.

Further, according to him, on the same day at 11.00 p.m., police brought them back to the village and let them off.

14.P.W.32 was then working as Supervisor in a company, known as Fibroflex India PVT.Limited, at Pettai Industrial Estate, Tirunelveli.

According to him, between 14.04.2007 and 21.04.2007, he was on second shift duty in the said company.

On 19.04.2007 at about 5.00 p.m., according to him, while he was on duty, Mr.Mariappan, S/o.Sudalaimuthu, was also on duty along with him.

At about 5.00 p.m., Kalakkad Police came and interrogated him to find out whether Mr.Mariappan was in the Company on 19.04.2007.

According to him, since Mariappan was available in the company, on duty, on 19.04.2007, during second shift, he informed the same to the police.

15.P.W.33 Mr.Mohandoss is a practising Advocate in the District Court at Madurai.

According to him, on 20.04.2007, between 9.30 a.m.and 10.30 a.m., while he was in the District Court premises at Madurai, the fiRs.accused met him and requested him to surrender him before a court in connection with the present murder case.

According to him, thereafter he prepared a petition and produced the 1st accused before the learned Judicial Magistrate No.V, Madurai, at 10.30 a.m.itself.

As a matter of fact, he made the 1st accused to sit inside the Court Hall in the box meant for accused from 9.30 a.m.onwards.

Ex.P-41 is the surrender application.

16.P.W.34 Dr.Kamalakshmi Krishnamoorthy has spoken about the DNA Analysis conducted by her.

P.W.35 Mr.Krishnan was the then H.R.Clerk in Fibroflex India Private Limited Company.

He has spoken about the Attendance Register maintained by him, covering 19.04.2007.

According to him, as per the Attendance Register maintained by him, Mr.Marippan, the suspected accused in the FIR was on duty in the company between 3.00 p.m.and 12.00 midnight on 19.04.2007.

17.P.W.36 Mr.Mahendran has spoken about the further investigation conducted by him and the additional police report filed by him.

18.In respect of further incriminating evidences brought on record, when the accused were questioned by this Court under Section 313 Cr.P.C., the 1st accused stated that on 20.04.2007, he surrendered before the Judicial Magistrate Court No.V only at 3.00 p.m.and not between 9.30 and 10.30 a.m., as stated by P.W.33.

In respect of other evidences, neither they have admitted nor denied.

The 2nd accused stated that he surrendered before the Court because the police were harassing his relatives.

The accused did not choose to examine any witness on their side before this Court.

19.We have heard the learned Public Prosecutor Mr.S.Shanmughavelayutham, appearing for the State and Mr.I.Subramanian, learned Senior Counsel appearing for the 1st accused and Mr.V.Kathirvelu, learned Senior Counsel, appearing for the 2nd accused and we have also perused the records, carefully.

20.Admittedly, this is a case based on circumstantial evidence.

It is too well settled that in a case based on circumstantial evidence, the prosecution is required to prove the circumstances projected by it beyond reasonable doubts and that such proved circumstances should form a complete chain, without any missing link, unerringly pointing to the guilt of the accused and that there is no other hypothesis which is inconsistent with the guilt of the accused.

Keeping this fundamental rule of criminal jurisprudence in mind, let us now analyse the evidences let in by the prosecution to find whether the circumstances projected by the prosecution have been proved beyond reasonable doubts.

21.The circumstances projected by the prosecution are as follows: (i)There was enmity between the 1st accused and D-1 because the 1st accused had suspicion that D-1 had developed illicit intimacy with his wife.

(ii)On 19.04.2007, after 5.00 p.m., both the accused were found sitting on the bridge across Manimutharu Channel with aruvals in their hands.

This was noticed by P.W.3.

(iii)On 19.04.2007, at about 6.30 p.m., these accused were found proceeding in a Motor Cycle, with bloodstains on their dress.

This was noticed by P.W.17.

(iv)When P.W.17 enquired about the bloodstains on their dress, these two accused told him that when a dog attempted to bite them, they cut the same and that is how dog's blood came to be stained on their dress.

This is a false explanation incriminating the accused.

(v)The 1st accused surrendered before the Learned Judicial Magistrate No.V, Madurai, at 9.30 a.m.on 20.04.2007.

This conduct of the 1st accused will go to suggest his involvement in the crime.

(vi)While in police custody, the 1st accused gave a disclosure statement on 01.05.2007 to P.W.29, in the presence of P.W.5 and another witness and in pursuance of the said disclosure statement, M.Os.7, 8 (series) and 9 were recovered.

(vii)The 2nd accused surrendered before the learned Judicial Magistrate at Tuticorin on 08.05.2007 and this conduct of the 2nd accused in surrendering before the court suggests his involvement in the crime.

(viii)While in police custody, on 18.05.2007, the 2nd accused gave a voluntary disclosure statement and in pursuance of the same, M.Os.13 and M.O.28 were recovered in the presence of P.W.5 and another witness by P.W.30.

(ix)The Chemical Analysis Report discloses that Human Blood of 'B' group origin was found on the dress materials of the deceased as well as on the bill hooks.

(x)The DNA Analysis conducted by P.W.34 discloses that DNA extracted from M.O.13 recovered at the instance of 2nd accused tallied with the DNA extracted from the dress materials of D-1.

(xi)The suspected accused mentioned in the FIR, namely, Mathi, Mariappan and Subramanian were not involved in the occurrence, which is evident from the evidence of P.Ws.31, 32 and 35.

22.According to the learned Public Prosecutor, all the above circumstances have been proved by the prosecution beyond reasonable doubt and these circumstances form a complete chain, which, according to him, unerringly establish the guilt of the accused.

23.The learned Public Prosecutor would further submit that the suspicion regarding the alleged involvement of Mathi, Mariappan and Subramainain, has been now ruled out by the examination of additional witnesses P.Ws.31, 32 and 35.

24.In respect of the quantum of punishment, the learned Public Prosecutor would submit that applying the ".rarest of rare".

doctrine, propounded by the Hon'ble Supreme Court in Bachan Singh versus State of Punjab - AIR1980SC898 the accused are liable to be sentenced to death.

The learned Public Prosecutor would submit that the offence has been executed by the accused in a very gruesome, diabolic and planned manner and these accused, who had gone to the extent of killing two small children (D-3 and D-4, aged about 10 and 8, respectively) do not deserve any leniency in the matter of punishment.

He would further submit that the occurrence in which four lives, including the lives of two young children, have been taken away, where the entire family has been wiped out by the accused, has shaken the collective conscience of the entire society.

Thus, according to him, applying ".rarest of rare".

doctrine, the punishment of death sentence imposed by the trial Court should be confirmed.

25.In respect of the doubts raised in the evidence of prosecution witnesses, the learned Public Prosecutor advanced arguments, at length, about which, we would make reference at the appropriate stages of this judgment.

26.The learned Senior Counsel Mr.I.Subramanian, appearing for the 1st accused, would contend otherwise.

According to him, as per the elementary principles of criminal jurisprudence, every circumstance projected by the prosecution should be proved beyond reasonable doubts.

He would caution the Court that while appreciating any evidence, this Court should not be swayed by emotion or by public sentiments.

He would further submit that the evidences adduced by the prosecution need to be objectively analysed and if the said standard test is applied to the evidences adduced by the prosecution in this case, according to him, the same will go to establish that the evidences of these witnesses are not trustworthy.

27.With the above note of caution, the learned senior counsel Mr.I.Subramanian would submit that so far as the motive that D-1 had developed illicit intimacy with the wife of the 1st accused is concerned, there is no acceptable evidence.

Assuming that the said motive is true, it is always doubled edged.

He would further contend that based on the said motive alone, one cannot rush to the conclusion that these accused have committed the above crime.

28.So far as the evidence of P.W.3 is concerned, the learned senior counsel would contend that he is none other than the father of D-2.

According to his evidence, on 20.04.2007, on receiving information about the occurrence from P.W.17, he rushed to the place of occurrence.

He was very much present for the whole day with the Police.

He only got back the dead bodies from the police, after postmortem.

But, during that time, he did not say anything to the police or to any of his relatives or friends that he had seen the accused after 5.00 p.m.on 19.04.2007 sitting on Manimutharu channel bridge.

He disclosed about the occurrence for the fiRs.time only on 21.04.2007.

Absolutely, there is no explanation as to why he did not disclose the said incriminating fact to the police or to any of his friends or relatives, at the earliest point of time.

Thus, according to the learned senior counsel, the evidence of P.W.3 cannot be believed.

29.Referring to the evidence of P.W.17, the learned senior counsel would submit that according to him, while he was taking bath in the Manimutharu channel, he saw these accused coming in a motorcycle with bloodstains on their dresses and when he enquired them about the bloodstains, they told that when they cut a dog, blood came to be stained in their dress.

The learned senior counsel would submit that had it been true that P.W.17 saw the accused with bloodstains on 19.042007, when he was available at the place of occurrence when the police officials conducted inquest on the body of the deceased, certainly he would have said about the same to the police.

It was not as though he is a total stranger to the family of the deceased.

He has admitted during cross examination that he is the brother-in-law of D-1.

The learned senior counsel would further submit that he disclosed about his seeing the accused with bloodstains on 19.04.2007 only on 21.04.2007.

The learned senior counsel would, therefore, submit that in the absence of any explanation for the non-disclosure of the above incriminating fact to the police or to his friends or relatives at the earliest point of time, the evidence of P.W.17 is also highly doubtful and the same cannot be believed.

30.The learned senior counsel would nextly contend that the surrender of the 1st accused at 9.30 a.m.on 20.04.2007, as spoken to by P.w.33, cannot be accepted.

The learned senior counsel would refer to Ex.P-41, Surrender Application filed before the learned Judicial Magistrate No.V, Madurai.

According to him, the learned Magistrate has recorded that the accused was produced only at 4.00 p.m.and then he was remanded to custody till 25.04.2007.

Therefore, according to the learned senior counsel, the evidence of P.W.33 that the 1st accused surrendered before the Court at 9.30 a.m.itself on 20.04.2007 cannot be accepted.

31.The learned senior counsel would nextly contend that the 1st accused has explained as to what made him to surrender before the Court on that day.

According to him, since police were in search of him, he came down to Madurai and surrendered before the Court.

The learned senior counsel would nextly contend that so far as the surrender of the 2nd accused is concerned, he has explained that because the police were harassing his relatives, he surrendered before the Court.

32.Referring to the confession said to have been given by the 1st accused, learned senior counsel would submit that it cannot be true.

Assuming that certain material objects were recovered at the instance of the 1st accused, the learned senior counsel would submit that there is no link between the material objects recovered at the instance of the 1st accused and the alleged crime.

Thus, according to the learned senior counsel, when the disclosure statement allegedly made by the 1st accused itself is not admissible in evidence, the consequential recovery of the material objects is of no consequence.

33.Referring to the alleged confession of the 2nd accused, the learned senior counsel would submit that both the independent witnesses have turned hostile and there is only the evidence of the Investigation Officer.

The evidence of Investigation Officer suffers from a lot of infirmities and there is no cogency.

He he has not even identified the material objects recovered at the instance of the 1st accused.

He would further submit that the motorcycle has not been identified by P.W.17 and P.W.17 has not even mentioned the Registration Number of the vehicle.

Thus, the recovery of motorcycle has got no relevance to the alleged crime.

34.Lastly, referring to the DNA Analysis Report and the evidence of P.W.34, the learned senior counsel would submit that these material objects were not kept safely anywhere.

They were all handled at different stages by different authorities and further when the recovery of the aruval, namely M.O.13, at the instance of the 2nd accused itself is doubtful, the DNA analysis has no consequence.

35.In respect of alternative theory of the alleged involvement of Mathi, Mariappan and Subramanian, the learned senior counsel would submit that their alleged involvement in the occurrence has not been completely ruled out by means of acceptable evidence.

He would point out certain contradictions, which according to him, are very material which create doubt in the case of the prosecution.

Thus, according to the learned senior counsel, the alternative hypothesis has not been completely ruled out.

36.In conclusion, the learned senior counsel would submit that the prosecution has not at all proved the case beyond reasonable doubt and therefore the accused are entitled for acquittal.

37.The learned senior counsel would submit that assuming that for any reason if the Court comes to the conclusion that the charges against the accused have been proved, even then this case cannot be considered as a rarest of rare case so as to punish the accused with death sentence.

The learned senior counsel would submit that applying the ".rarest of rare".

doctrine, laid down by the Hon'ble Supreme Court in Bachan Singh versus State of Punjab - AIR1980SC898 if one analyses the facts and the background of the case, it will emerge that this is not a rarest of rare case.

The learned senior counsel would also point out the infirmities in the investigation done by the police and he would also submit that no genuine effort had been taken by the police to find out the truth, though four lives have been lost.

38.In reply, the learned Public Prosecutor, on the contrary, would submit that P.Ws.3 and 17 have clearly explained as to why they did not disclose the incriminating facts to the police or to their friends and relatives, immediately, without delay.

The learned Public Prosecutor would further submit that though the witnesses to the disclosure statement made by accused No.2 and the consequential recovery of material objects have turned hostile, the evidence of P.W.30, the Investigation Officer, can be believed as there are no reasons to disbelieve the said evidence.

39.So far as the disclosure statement of the 1st accused is concerned, the learned Public Prosecutor would submit that there is evidence of an independent witness, which duly corroborates the evidence of P.W.29.

The learned Public Prosecutor would further submit that the DNA Analysis Report clearly establishes the link between the aruval recovered from accused No.2 and the crime.

40.In respect of alternative hypothesis, the learned Public Prosecutor would submit that by means of cogent evidence, which have been brought on record by means of additional witnesses, it has been completely ruled out.

At any rate, the learned Public Prosecutor would submit that the infirmities pointed out by the learned senior counsel are negligible and based on the same, it cannot be held that the prosecution has failed to prove, beyond reasonable doubt, its case.

Thus, the learned Public Prosecutor pleads for confirmation of the sentences imposed by the trial court.

41.We have considered the above submissions.

42.Before going to analyse the rival contentions, at the outset, let us have a look into the charges framed in this case.

In any case triable by Court of Sessions or a warrant case triable by Magistrate, framing of appropriate charges plays a vital role in affording fair trial, which is a constitutional mandate under Article 21 of the Constitution of India.

Time and again, the Hon'ble Supreme Court as well as the High Courts have been impressing upon the trial courts to bestow their best attention to frame appropriate charges based on the materials placed by the prosecuting agency.

But it is not infrequent that this Court has come across cases where inappropriate charges have been framed, which results in failure of justice.

The case on hand is a classic example reflecting the total non-application of mind of the trial court while framing charges.

As we have already pointed, there are four charges framed against the accused.

In none of the charges, the date and time of the occurrence have been mentioned.

It will look too elementary to point out that under Section 216 of the Criminal Procedure Code, the charge should contain the date and the approximate time of occurrence.

Thus, we find that there are some material defects in the charges framed against the accused.

But, on that score, we are not prepared to interfere with the conviction and sentences and to remand the matter back to the trial court for framing appropriate charges, because the accused have not raised their little finger against the above defects in the charges throughout the trial.

We only point out the above defects as an expression of our anxiety that in the days to come, the trial courts will bestow their attention to satisfy the legal requirement while framing charges so as to afford a fair trial.

43.Now, let us move on to analyse the evidences.

The prosecution firstly relies on the evidences of P.W.3, who is none other than the father of D-2 and P.W.17, who is the brother-in-law of D-1.

According to P.W.3, the brother of D-1 had abducted the wife of one Mr.Mathi (the named fiRs.accused in the FIR).some time before the alleged occurrence.

It is his further evidence that because of the same, he had information that Mr.Mathi and his people had planned to kill D-1 and his brother Maharajan, when they were to attend the local village summer festival.

That is the reason why, according to him, he came to the house of D-1 and waited till 5.00 p.m.to request D-1 not to attend the village festival.

Since D-1 did not return home till 5.00 p.m., he informed his daughter, namely D-2, in turn to request D-1 not to go to the village festival.

Then he was returning to his village.

This part of the evidence of P.W.3 would go to show that he had suspicion that there was danger to the life of D-1 at the hands of somebody.

It is his further evidence that while returning, on Manimutharu Channel bridge these two accused were sitting with one aruval each.

But P.W.3 did not inform the same to anybody, including P.W.1.

In this regard, one may say that P.W.3 would not have foreseen that these two people were sitting there and waiting for D-1.

This explanation may appear to be acceptable.

Thereafter, on the next day, around 9.00 a.m., he received message from P.W.17 that all the four deceased had been done to death.

Immediately, he rushed to the place of occurrence.

He met P.W.17.

They went to the hospital.

Then, he received the bodies after postmortem.

According to his admission, Police Officials were all available throughout.

But, at no point of time, on 20.04.2007, he informed the police or any other relatives that he saw these two accused sitting on Manimutharu Channel Bridge with aruvals.

According to P.W.28, he examined P.W.3 and P.W.17 only on 21.04.2007.

It is the case of the prosecution that during such examination, for the fiRs.time, P.W.3 told P.W.28 that he saw these two accused sitting with aruvals on the bridge.

Absolutely there is no explanation as to why he did not disclose about his seeing these two accused with aruvals on 19.04.2013 to anybody.

44.Now, turning to the evidence of P.W.17, we have already pointed out, P.W.17 was also with P.W.3.

P.W.17 was actually available at the place of occurrence when inquest was conducted by four police officeRs.He assisted the police in the investigation also.

Had it been true that P.W.17 had seen these two accused with bloodstains on their dress, certainly, he would have told the same to P.W.3 and P.W.3 in turn would have told the fact that he had seen these two accused sitting on the very same bridge with aruvals at or about the occurrence.

It is too difficult to accept the contention that these two witnesses would not have discussed the above.

Had it been true that P.W.3 had seen these accused with aruvals sitting on the Manimutharu Channel Bridge and P.W.17 had seen these two accused with bloodstains on their dress coming in a motor- cycle, they would have discussed the same on 20.04.2007 itself.

P.W.17 has also not explained again the reason as to why he did not disclose the fact of his seeing the accused with bloodstains on their dress, till 21.04.2007.

It is not as though P.Ws.3 and 17 are third parties to the deceased.

Admittedly, P.W.3 is the father of D-2 and P.W.17 is the Manager of the farm where D-1 was working and also the brother-in-law of D-1.

These two witnesses, thus, who are highly interested in the deceased and who had assisted the investigating officers during the inquest and subsequently in the investigation, would have certainly informed the police that they had seen these two accused with aruvals and bloodstains, had it been true that they had seen these two accused.

In our considered opinion, in the absence of such an explanation, it is very difficult to believe P.W.3 and P.W.17.

45.Nextly, P.W.17 would admit during cross-examination that D- 1 had developed illicit intimacy with the wife of 1st accused.

This illicit affair between the wife of the 1st accused and D-1 came to the knowledge of the 1st accused.

P.W.17 reprimanded the wife of the fiRs.accused and also D-1, in this regard.

Thus, P.W.17 knew very well that the 1st accused had grudges agaisnt D-1.

D-1 also happens to be the brother-in-law of P/W.17.

Had it been true that he had seen these two accused with bloodstains on their dress at or about the time of occurrence, somewhere near the place of occurrence, because he was aware of the motive on the part of the 1st accused, he would have certainly disclosed the same to P.W.3 as well as to the Police.

But, during cross- examination, he has tacitly admitted that he did not disclose the same to the police, either before or after the inquest.

The only explanation offered by P.W.17 is that nobody told him that there was suspicion against these two accused, in connection with the murder of the deceased.

This explanation is hard to be accepted, in view of the fact that he happens to be the brother-in- law of D-1 and he had personal knowledge of the motive between the 1st accused and D-1.

In view of the said position, we find it difficult to believe P.W.17 that he had seen these two accused with bloodstains on their dress on 19.04.2007 at about 6.45 p.m.46.Nextly, the prosecution relies on the conduct of the accused, after 19.04.2007.

The learned Public Prosecutor would submit that the FIR in this case came to be registered only at 8.00 a.m.on 20.04.2007, after P.W.1 had seen the dead bodies around 7.00 a.m.The learned Public Prosecutor would point out that according to PW.33, the 1st accused met him in the District Court Premises at Madurai on 20.04.2007 at 09.30 a.m.itself and requested him to surrender him before the Court in connection with the death of these deceased.

The learned Public Prosecutor would submit that the distance between Nanguneri and Madurai must be around 175 kilometres.

If really, according to the learned Public Prosecutor, the 1st accused apprehended arrest at the hands of the police, such apprehension would have come into being only after 8.00 a.m.But, according to P.W.33, the 1st accused was in Madurai at 9.30 a.m.itself.

The learned Public Prosecutor would, therefore, submit that it could be inferred that after 7.00 p.m.on 19.04.2007 the fiRs.accused would have travelled to Madurai during the whole night and in the next day morning he would have met P.W.33.

The learned Public Prosecutor would further add that this conduct of the 1st accused in surrendering before the Court at 9.30 a.m.itself on 20.04.2007 would constitute a very strong circumstance against him.

47.In this regard, a perusal of the evidence of P.W.33, an Advocate, practising in the district Court, Madurai, would go to show that, according to him, the 1st accused met him at 9.30 a.m.and he made him to sit in the court hall at 9.30 a.m.itself and after the Magistrate arrived in Court at 10.30 a.m., he presented the petition to the learned Magistrate to surrender the 1st accused.

It is his further evidence that around 12.00 noon, the learned Magistrate passed judicial order accepting the surrender of the 1st accused and then, between 1.00 and 2.00 p.m., he was taken to prison.

The learned senior counsel Mr.V.Kathirvelu would submit that the evidence of P.W.33 cannot be believed at all.

According to him, a perusal of the petition filed before the Magistrate, namely Ex.P-41, would go to show that the 1st accused surrendered before the Court only at 4.00 p.m.and he was remanded to custody thereafter.

48.Ex.P-41 would go to show that the learned Magistrate has passed the following order.

".Accused produced at 4.00 p.m.surrender accepted.

Remanded till 25.4.2007 order to produce the accused before District Munsif cum Judicial Magistrate Court, Nanguneri Tirunelveli District on 25.4.2007.

Send records on 25.4.2007 to concerned court intimate to the police.".

In the light of the above judicial order passed by the learned Judicial Magistrate, it is difficult to believe the evidence of P.W.33 that the 1st accused met him on20.04.2007 between 9.30 a.m.and 10.30 a.m.Thus, we do not find any substance in the argument of the learned Public Prosecutor that the conduct of the 1st accused in surrendering before the court raises a very strong incriminating circumstance against the 1st accused.

49.Pausing for a moment, in respect of the proceedings of the Magistrate who passed the order of remand, we wish to state the following: The power to remand an accused during investigation flows from Section 167 of the Code of Criminal Procedure.

A Magistrate, who is not the jurisdictional Magistrate, can remand an accused only for a maximum period of 15 days from the date of production of the accused on arrest or on his surrender.

Subsequent extensions of remand beyond the initial period of 15 days can be made only by the jurisdictional Magistrate, as provided in Section 167(2) Cr.P.C.Under sub-section (2) of Section 167 Cr.PC., an accused can be remanded to custody by a Magistrate, who may or may not have territorial jurisdiction, only if there are grounds available for believing that the accusation or information is well founded.

The Hon'ble Supreme Court had, on a number of occasions, examined the scope of the powers of a Magistrate under Section 167(2) Cr.P.C.In Roshan Beevi versus Joint Secretary, Government of Tamil Nadu - 1983 MLW (Crl.) 289, a Full Bench of this Court has held that an order remanding an accused, since involves deprivation of personal liberty, should not be passed in a mechanical fashion and such remand could be made if only there are grounds for believing that the accusation or information is well founded.

50.There is a debate going on among the legal fraternity as to whether a Magistrate, who has got no jurisdiction, can remand an accused when he voluntarily surrenders before him, in connection with a crime, apprehending arrest.

We find that there is an article in Current Tamil Nadu Cases - 2012(1) CTC Journal Section 3, by one Mr.P.N.Prakash, a learned member of the Bar.

In the said article, he has raised doubts about the power of a Magistrate who has got no jurisdiction to remand an accused on his surrender.

His argument is that when an order of judicial remand passed by a Magistrate involves deprivation of personal liberty, it can be made only on sufficient materials to make out atleast a prima facie case, warranting such remand.

His further contention is that if an accused himself appears before a Magistrate who has got no record of the case, the said Magistrate will have no material to find that there are sufficient grounds to remand him into custody.

Therefore, according to him, the Magistrate before whom an accused voluntarily surrenders cannot remand the accused, unless he has got jurisdiction over the case.

51.For the purpose of this case, we do not wish to attempt to resolve this legal issue.

We leave it open, hoping that we may have occasion to extensively deal with the matter in an appropriate case.

Since the practice of entertaining surrender of accused before a Court, which has got no jurisdiction over the case, has been in vogue for decades, we do not want to hastily express any opinion either in favour or against the above debate.

52.But, we cannot omit to take note that it also seldom happens in these days that the criminals have become clever and after the commission of an offence, some fake accused are made to surrender before some other Court thereby misdirecting the investigation.

Those persons who have nothing to do with the crime are remanded to custody and thereafter, the investigating officer has to toil much to rule out the involvement of such persons who surrendered before the Court.

Quite naturally, this will weaken the prosecution case against the real culprits.

Therefore, when a Magistrate entertains surrender of an accused in connection with the case upon which he has got no jurisdiction, the learned Magistrate is expected to be very careful and circumspect to insist for certain basic facts such as crime number (if possible).place of occurrence, name of the victim/deceased, etc.mentioned in the petition.

We hope that in the days to come, the learned Magistrates will show their best attention while entertaining surrenders of such accused.

53.In this case, we want to express our dissatisfaction that the learned Magistrate before whom the 1st accused surrendered did not apply his judicial mind before passing the order of remand.

For better understanding, let us now re-produce the petition (Ex.P-41) for surrender of the fiRs.accused, which reads as follows: ".Humble Surrender petition submitted by and on behalf of the above named petitioner/accused most respectfully showth as follows: .

.

It is submitted that the above named petitioner/accused was charged u/s 302 IPC and the said offence was committed in the above said police station limit and the juricdition of court at Nanguneri and the crime Number is not known and the said offence was committed at about 6 P.M.It is further submitted that the above named petitioner/Accused is voluntarily surrender himself before this Hon'ble Court.

Therefore it is prayed that this Hon'ble court may be pleased to accept this surrender petition and thus render justice.

Sd.M.Katturaj Signed by the Accused.

Madurai Sd/-xxxxx 20.4.2007 Counsel for the petitioner/ Accused.".

54.The learned Magistrate acted on the above petition.

Admittedly, the petition does not contain any detail about the commission of any crime,much less a murder.

The petition does not contain the place of occurrence, the name of the deceased, the crime number and other details which would reflect some nexus between the accused and the crime under investigation.

We do not, for a moment, propose to say that in such a petition, crime number should be mentioned, because the accused may not know the crime number.

When he has apprehension of arrest in connection with a murder case, certainly, he must be knowing the name of the deceased, the place of occurrence and other details which he should mention in the petition.

Then only, the Magistrate may have satisfaction that there are grounds to believe that a cognizable offence of murder has been committed and that the remand of the accused is absolutely necessary in law.

In the absence of these details, we wonder as to how the learned Magistrate thought it fit to remand the 1st accused to custody for mere asking by the fiRs.accused.

55.Be that as it may.

Let us resume our discussion on evidences.

The learned Public Prosecutor would nextly rely on the recovery of certain material objects in pursuance of the alleged confession made by the 1st accused.

Admittedly, the 1st accused surrendered before the learned Judicial Magistrate No.V, Madurai, on 20.04.2007.

P.W.29 took police custody of the 1st accused on 30.04.2007.

On 01.05.2007, in the presence of P.W.5 and another witness, according to him, the 1st accused gave a confession voluntarily and the same, according to P.W.29, was reduced into writing.

P.W.5, the Village Administrative Officer, has stated that in pursuance of the disclosure statement, the 1st accused produced three material objects from three different places, namely an aruval (M.O.7).chappal, half burnt clothes, plastic can and bag (M.O.8 series) and an empty beer bottle (M.O.9).According to the prosecution, these material objects were recovered under three different mahazaRs.prepared by P.W.29 and signed by P.W.5 and another witness.

The mahazars have been proved through P.W.5.

Then comes the evidence of P.W.29.

According to him, a bloodstained clothe, chappal, plastic can, a bag and an empty beer bottle were all recovered on the disclosure statement made by the 1st accused.

These recoveries were made from Kailasaperi Garden.

According to him, these material objects were recovered under mahazaRs.in the presence of P.W.5 and another witness.

These mahazars have not been spoken to by P.W.29.

P.W.29 has not even identified the bloodstained clothe, chappal, plastic can and the beer bottle allegedly recovered at the instance of the 1st accused.

But, the chappal, bloodstained clothe, plastic can and bag have been marked as M.O.8 series.

P.W.29 would further state that in pursuance of the confession of the 1st accused, near Manimutharu channel, the 1st accused produced an arruval.

Here the trial court admitted the oral evidence of P.W.29, where he has stated that the 1st accused produced the aruval which was used by him for commission of the crime.

56.At this juncture, it is to be stated that the learned Judge, who recorded the evidence, appears to be unaware of the law laid down by the Privy Council in Pulukuri Kottaya versus Emperor - AIR1947PC67 wherein the Privy Council has clearly spelt out the scope of Section 27 of the Evidence Act.

The said judgment is followed by the Indian Courts from 1947 till today.

It is really shocking that the trial judge was of the impression that the statement of the accused that he used the weapon for commission of the crime itself is admissible in evidence.

Above all, P.W.29 has not identified the weapon which was allegedly recovered at the instance of 1st accused.

Probably, the trial court was of the impression that since the aruval was marked as M.O.7 through P.W.5, it was not necessary for P.W.29 to identify the same.

This again shows the ill-equipment of the trial court on this subject.

It is needless to point out that marking of a document or a material object simplicitor is different from proving the contents of the documents or proving the link between the material object and the crime.

Here, in this case, the trial court ought to have called upon P.W.29 to identify the material objects seized by him under the mahazaRs.57.P.W.29 has further stated that he recovered Ex.P-35, the bill book of M/s.Balan Textiles and an Account Book maintained by TASMAC Shop under Ex.P-37.

These facts have not been spoken to by P.W.5.

Nothing was elicited from P.W.5 about these two documents and the properties recovered under mahazaRs.It is the stand of the 1st accused that he never gave any confession to P.W.29 and the material objects were not recovered at his instance.

In view of the above infirmities in the evidence of P.W.5 and P.W.29 and in view of other contradictions which we have pointed out herein above, we hold that it is difficult to believe that the 1st accused gave confession voluntarily and out of the disclosure statement made by him, these material objects were recovered.

58.In this regard, we have to further state that the link between these material objects and the crime also has not been established, properly.

P.W.3 in his evidence has stated that he saw these two accused with aruvals sitting on the bridge across Manimutharu channel, on 19.04.2013.

It is not known as to why the said witness was not called upon to identify the weapons recovered, allegedly, from the accused 1 and 2.

The trial court was also not vigilant to call upon P.W.3 to identify the weapons.

59.During further investigation, M.O.7 was subjected to DNA examination by P.W.34.

But, unfortunately, DNA could not be extracted from M.O.7 and thus there is no connecting link between M.O.7 and the alleged crime.

In view of all the above infirmities in the evidence let in by the prosecution, the so-called confession of the 1st accused and the alleged recovery of the material objects at his instance cannot be believed.

60.Nextly, the learned Public Prosecutor would rely on the alleged recovery of a few material objects at the instance of the 2nd accused.

On the orders of the jurisdictional Magistrate, P.W.30 took the 2nd accused into his custody on 18.05.2007.

At 4.30 p.m., according to P.W.30, in the presence of P.W.6 and P.W.10, the 2nd accused voluntarily gave a confession.

It is the case of the prosecution that in pursuance of the said confession, the 2nd accused took P.W.30 and the witnesses to his field at Thandaiyarpuram, from where he produced an aruval.

According to P.W.30, it was recovered under Ex.P- 39 Mahazar.

But, P.W.6 and P.W.10 have not supported the case of the prosecution.

They have not identified the aruval allegedly recovered from the 2nd accused.

The learned Public Prosecutor would submit that though P.Ws.6 and 10 have turned hostile, the evidence of P.W.30 could be believed in respect of recovery of the aruval.

61.In this regard, we are conscious of the legal position that the evidence of investigating officer cannot be simply rejected, because he happens to be the police officer interested in the prosecution case.

But, In this case, we are forced to reject the evidence of P.W.30 for the simple reason that he has only stated that one aruval, measuring 39 c.m.with bloodstains, was recovered at the instance of the 2nd accused.

He has not identified the aruval which was allegedly recovered from the 2nd accused at all.

But, strangely, in the list fo material objects appended to the judgment of the trial court, an aruval, measuring 39 cm.

is mentioned as M.O.13.

With curiosity, we have gone through the entire evidence of these three witnesses, word by word, to find whether this material object (M.O.13) was atleast shown to these three witnesses and marked through them.

Alas! we find nothing on record to show that M.O.13 was the weapon which was seized from the 2nd accused.

We are unable to understand as to how M.O.13 came to be marked in evidence and through whom.

This again shows that neither the public prosecutor who conducted the case nor the judge who presided over the Court bestowed adequate attention to see that an important material object which was allegedly recovered from the accused was proved as required under law through appropriate witnesses.

62.The learned Pubic Prosecutor would submit that during further investigation, this weapon was subjected to DNA examination by P.W.34.

She has extracted DNA from the bloodstains found on this weapon, which tallied with the DNA of one of the deceased.

The evidence of P.W.34 is very valuable, which cannot be brushed aside as no doubt could be raised in respect of the said scientific evidence of P.W.34.

Had M.O.13 been proved to have been recovered from the 2nd accused, the story will be different and the result of DNA examination in respect of M.O.13 would have played a vital role in connecting the 2nd accused with the crime.

But, unfortunately, M.O.13 has not been proved to be the weapon which was allegedly recovered from the 2nd accused.

63.We regret to state that though we gave an opportunity to the prosecution to do further investigation and to let in further evidence, this material flaw in the prosecution case has not been rectified during further investigation.

Thus, the alleged recovery of the aruval at the instance of the 2nd accused has not been linked in any manner with the alleged crime.

In other words, in the absence of evidence that M.O.13 was the one which was seized at the instance of the 2nd accused, no evidentiary value could be attached to the brilliant scientific examination conducted by P.W.34 and her opinion.

Thus, the opinion of P.W.34 has gone waste because the prosecution has failed to use it in the manner it could have been used.

64.P.W.30 would further state that on the disclosure made by the 2nd accused, a motorcycle was recovered under Ex.P-40 mahazar.

The key of the motor cycle was also recovered and the same has been marked as M.O.28.

But, we are shocked to see that the motor-cycle was not at all produced before the Court.

Form 91, through which the material objects were produced before the learned Judicial Magistrate, Nanguneri, on 21.05.2007, would go to show that the motor-cycle was retained in the police station itself, for safe custody and it was not produced at all before the learned Magistrate.

The records would further show that the motor-cycle was not produced before the trial court, as well.

As a result, the the motor-cycle has not been marked in evidence.

There is no explanation found anywhere as to what had happened to the motor cycle.

It is not explained to the Court as to why the key of the motor cycle alone was marked.

Further, there is no investigation as to whom the motor cycle belonged to.

There is no evidence that the said motor cycle was used by any of these accused.

Even P.W.17 did not identify the motor cycle.

Perhaps, because the motor cycle was not available, the same was not identified by P.W.17.

In this regard, again, we have to express our displeasure over the way in which the case was conducted before the trial court.

In view of these infirmities, no evidentiary value could be attached to the alleged confession of the 2nd accused and the recoveries made at his instance.

65.Noticing the flaws in the investigation only, we ordered for further investigation in this case, hoping that further investigation would atleast bring some valuable evidence, either connecting these accused or some otheRs.if really they had connection with this crime.

As a matter of fact, on our direction, the Deputy Inspector General of Police, Tirunelveli Range and the Superintendent of Police, Tirunelveli District and the officers who investigated the case were all present before this Court, on 31.01.2013.

When we pointed out the infirmities and the flaws in the investigation, the Superintendent of Police told the Court that on going through the records, he found many of these infirmities and even then he did not order for further investigation because the trial had already commenced.

The Deputy Inspector General of Police told the court that he had no occasion to visit the Court during the trial of the case and he did not know anything about the facts of the case.

However, when this Court wanted the Deputy Inspector General of Police to suggest an officer who could be competent enough to do further investigation, he only mentioned the name of P.W.36.

That is how we entrusted the further investigation to P.W.36 with lot of hope.

But, P.W.36 also could not make any break-through in collecting further evidence in this case.

66.As we have already pointed out, P.W.1 had mentioned the names of Mathi, Mariappan and Subramanian as the suspects.

The learned defence counsel contended that the alternative theory of involvement of these three persons, as mentioned in the FIR, had not been ruled out.

P.W.36, during further investigation, has collected evidences only to rule out the alternative theory of involvement of Mathi, Mariappan and Subramanian in the crime.

P.W.31 Mr.Pandaram has stated that Mathi, Subramanian and Mariappan were available in the village on 20.04.2007.

P.W.32, the Supervisor in the Company, where Mariappan was working, has stated that on 19.04.2007 Mr.Mariappan was on duty, along with him, in the company.

If the evidence of P.W.32 is believed, it can be held that the involvement of Mr.Mariappan in the crime has been ruled out.

Similarly, P.W.35 has stated that on 19.04.2007 Mr.Mariappan was on duty, between 3.30 p.m.and 12.00 Midnight.

A perusal of the Attendance Register - Ex.P-45 would go to show that M.Mariappan was on duty.

Thus, in our considered opinion, from these evidences, the involvement of Mr.Mariappan in the crime has been ruled out.

But, the involvement of Mr.Mathi and Mr.Subramanian has not been completely ruled out.

67.Though we pointed out a lot of infirmities in the investigation, P.W.36 has not made any improvement in the case so as to bring materials on record, by way of evidence, to establish, clinchingly, the alleged involvement of these two accused in the commission of the above heinous crime of murder of four innocent people.

To mention a few of such infirmities, we may say that according to P.W.1, a bi-cycle was found near the dead body of D-1.

According to Ex.P-3, the said bi-cycle was recovered and bloodstains found on the same were also recovered by P.W.28.

But, the said bi-cycle was not produced before the learned Judicial Magistrate, at all.

The records, more particularly the Form 91 submitted to the Court and the endorsement made by one K.Natarajan, Special Sub-Inspector of Police, on 18.10.2010, would go to show that the bi- cycle was kept in the police station for safe custody.

But, the same was not produced before the Court at the time of trial and as a result, the said bi- cycle has not been marked in evidence.

P.W.28 and P.W.29 were not careful enough to speak about the bi-cycle and to prove the same.

During further evidence let in also, no improvement has been shown in respect of the same.

68.It is the positive case of the prosecution that the house of the deceased was broke-open by using a crow-bar.

It is also in the evidence of P.W.29 that the crow-bar, which was used for breaking open the door, was found near the doORS.In the observation mahazar, it has been mentioned.

But, P.W.28 has not stated that he recovered the same.

He has not given any explanation for the same also.

But, P.W.29 would say, during cross-examination, that P.W.28 told him that he recovered the said crow-bar from the place of occurrence.

But, P.W.29 would tacitly admit that he did not know as to what had happened to the said crow-bar, after it was recovered.

The fact remains that the crow-bar is not available in Court.

Had the crow-bar been subjected to examination by expert, the possibility of finger prints of the culprits would have been explored.

In this regard also, no further improvement has been made by P.W.36.

69.P.W.28 would further admit during cross-examination that bloodstained finger prints were found on the wall of the house.

There is mention about the same in the observation mahazar.

It is the evidence of P.W.28 that he summoned a Finger Print Expert to examine the same.

But, the said Finger Print Expert has not been examined by the prosecution as a witness.

70.P.W.28 has stated that Mathi, Subramanian and Mariappan were not the real culprits.

This conclusion was arrived at by him out of secret investigation done by him.

He has claimed so in his evidence.

When we asked him to explain under what authority he could do such secret investigation and he could burke the evidence collected during the secret investigation, he had no answer.

That is the reason why we had to make adveRs.remarks against P.W.28 in our earlier order, dated 31.01.2013.

71.If we venture to catalogue the infirmities, the shortcomings, the flaws and the inefficiency of investigating agency in this case, we apprehend, the list will be endless.

So, with pains, we stop making any more adveRs.comments.

72.As we have already pointed out, the diabolic manner in which the four precious lives have been simply snatched away by the horrible act of the stone hearted assailants is painful to know.

But we regret to say that the officers who investigated the case had failed in the legal obligation to make a thorough and scientific investigation.

We earnestly believed that atleast further investigation would bring out further materials by way of evidence so as to find out the truth.

But, unfortunately, the whole exercise of further investigation has proved to a wasteful exercise.

Our belief has been shattered.

We do not find sufficient evidence to hold that these accused are the perpetrators of this heinous crime.

Therefore, we are forced to acquit the accused.

73.Our sympathy is always for the family of the victiMs.We are conscious that such sympathy expressed in words will not go to undo the horror suffered by the family members of the deceased.

We hope that atleast monetary compensation would, to some extent, compensate the loss.

But, we find that the Victim Compensation Scheme, which should have been put in place, as mandated under Section 357(A) Cr.P.C., has not been implemented in this State.

74.Undoubtedly, Section 357-A Cr.P.C., which was introduced by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5/2009).serves a salutary purpose.

Since it was felt by the Legislature that provisions contained in Section 357 Cr.P.C., empowering courts to order the accused to pay compensation, did not serve the desired purpose, the legislature thought it fit to introduce Section 357-A, providing for Victim Compensation Scheme.

This provision reassures the victims of crimes that they are not forgotten in the criminal justice delivery system.

It shows the constructive approach of the system.

One of the salient features of Section 357-A is that it enables the trial court to make recommendation for payment of compensation to the victim, as a measure of rehabilitation, even if the case ends in acquittal or if the accused is discharged.

Though the said provision came into force with effect from 31.12.2009, the Government of Tamil Nadu has not so far prepared a scheme as required under the said provision.

75.While dealing with a writ petition (W.P.No.13370/2001).where the victim had claimed compensation for the loss sustained on account of a crime committed, when one of us (S.NAGAMUTHU,J.was sitting in the Principal Bench directed the State Government to submit a report about the status of the scheme to be provided under Section 357-A of the Code.

The learned Additional Advocate General submitted a letter from the Special Secretary to Government, Home (Pol.12) Department, in No.39176/Po.12/2013-1, dated 06.06.2013, wherein the Government had assured that the scheme would be put in place within 45 days.

The said letter reads as follows: ".I am directed to invite your attention to the letter cited and to State that the matter relating to approval of the Victim Compensation Scheme by the State Government for the victims of crimes as per the new provision of Section 357-A in the Cr.P.C.following the direction of the Hon'ble Supreme Court of India in its order dated 11.2.2011 in W.P.(Criminal) No.129 of 2006 in the case of Laxmi (Minor) through her father versus Union of India is under active consideration of Government.

The State Government is in process framing a victim compensation scheme as per section 357-A of Cr.P.C.Which will be notified within 45 days.

In this connection, I am to state that since the case in W.P.No.13370/2001 filed by Thiru Govindasamy and another against the State of Tamil Nadu (Home Department) and 4 others before the Hon'ble High Court, Madras, is posted for hearing on 10.6.2013, I am to request you to appraise the above position to the Hon'ble High Court.".

76.Recording the said statement made by the Government, the said W.P.No.13370/2001 was closed.

Though the said order was passed on 18.06.2013, we regret, the Government has not so far framed the Victim Compensation Scheme.

As a result, in this State, Section 357-A of the Code has been rendered practically unworkable.

The courts in this State are not in a position to recommend for payment of compensation by the State and the District Legal Services Authorities are also not in a position to award adequate compensation, as provided in Section 357-A of the Code.

77.When we directed the learned Public Prosecutor to report as to the stage of the said scheme, the learned Public Prosecutor has submitted to this Court that such a scheme is still under preparation.

Since such a scheme is mandatory, as provided under Section 357-A of the Code and since four years have gone already after the coming into force of Section 357-A of the Code, we are constrained to issue a direction to the Government to prepare a scheme and bring forth the same into force within two months from today.

78.To sustain an orderly society, it is imperative that there is no crime committed against any individual; that there is no lapse in the investigation; that there is no shortcomings in trial; that there is no escape of any criminal and that there is no conviction of any innocent.

This is part of the fundamental rights guaranteed under the Constitution.

We, the people of this country, have given to ourselves the Constitution which upholds the ".Rule of Law".Fair investigation and fair trial are concomitants of ".Rule of Law".Though the Courts in this Country, more particularly the Supreme Court, have been repeatedly reminding the investigating agencies in this country of their onerous duty to uphold the ".Rule of Law"., rarely though not frequently, we notice that there are serious lapses in the investigation which ultimately results in failure of Justice, either to victims or to the accused or to the society.

The case on hand will illustrate and stand as a testimony for all times to come, as to how the Police Agency has shown Nelson's blind eyes, despite further investigation ordered by this Court.

79.As we have already pointed out, the State machinery has miserably failed to investigate the case properly and to get the real culprits of the crime convicted so that this Court could direct the convicts to pay compensation.

Though we are not in a position to recommend for payment of compensation, as provided in Section 357-A of the Code, the power of this Court under Section 482 of the Code as well as the power flowing from Article 226 of the Constitution of India could be invoked so as to direct the Government to pay adequate compensation to the family of the victiMs.in this case.

Having regard to the facts and circumstances of the case and the family of the victiMs.we deem it appropriate to issue a direction to the Government of Tamil Nadu to pay a compensation of Rs.5,00,000/- (Rupees five lakhs only) to the family of the victiMs.80.Doing justice in a case arising out of a crime is to punish the real perpetrators of the crime, in accordance with the procedures established by law and to restore the loss or heal the injury caused to the victims and the society.

This would be possible if only all the stakeholders realise the duties and responsibilities cast upon them by the Constitution and the other laws and act according to their conscience and the laws.

If there is slackness on the part of any one of the stakeholdeRs.the end result may be failure of justice.

In the case on hand, with a heavy heart, we confess that there is failure of justice as, the criminal/criminals who committed these dastardly crimes, whoever it may be, is/are not punished.

The discussions, we have made hereinabove, will identify the persons/agencies who have contributed to this result of the case.

We, regret.

81.In the result, the conviction and sentence imposed by the trial court on the accused, by judgment dated 26.12.2012, in S.C.No.59/2007, are hereby set aside and they are acquitted of the charges framed against them.

Consequently, the Criminal Appeal (Md.No.19 of 2013 stands allowed.

We also order for payment of compensation of Rs.5,00,000/- (Rupees five lakhs only) by the Government of Tamil Nadu to the family of the victiMs.The State Government shall deposit the said sum of Rs.5,00,000/- to the credit of the trial court, within three months from today and the trial court shall, in turn, issue notices to the legal heirs of the deceased, hold necessary enquiry about their identity and their legal entitlement and then disbuRs.the amount to the legal heirs of all the four deceased, in equal moieties.

Connected M.Ps.are closed.

gb To 1.The Principal District and Sessions Judge, Tirunelveli.

2.The II-Additional Sessions Judge, Tirunelveli District.

3.The District Collector, Tirunelveli District.

3.The Judicial Magistrate, Nanguneri, Tirunelveli District.

4.The Inspector of Police, Nanguneri Police Station, Tirunelveli District.

5.The Additional Public Prosecutor, Madurai Bench of Madras High Court.

6.The Chief Secretary to Government, Government of Tamil Nadu, Fort St.George, Chennai-9.

7.The Secretary to Government, Law Department, Fort St.George, Chennai-9.

8.The Secretary to Government, Home (Police) Department, Fort St.George, Chennai-9.