BAIL SLIP CRL.A.NO.780/2002 The Appellants 1 & 2/Accused 1 & 2 viz., 1.Paulraj, 2.Chenna Naicker,were directed to be released on bail in and by order of this Court dated 29.7.02 made in Crl.MP.No.4910/02. and The Appellants 3 & 4 /Accused (3 & 4) namely Vasantha Mani and Ayyammal, were directed to be released on bail by the order of this Court dated 07.6.02 made in Crl.Mp.No.4911/02. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.780 of 2002 1. Paulraj 2. Chenna Naicker 3. Vasantha mani 4. Ayyammal ... Appellants/Accused 1 to 4 Vs. State Rep. by Station House Officer Karamadai Police Station Coimbatore District (Crime No.146 of 2008) ... Respondent This Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code as against the judgment and sentence of imprisonment dated 16.05.2002 made in S.C.No.368 of 1999 on the file of the Additional District and Sessions Judge-cum-Fast Track Court No.4, Coimbatore to set aside the same. For Appellants : Mr.Deivanandam for M/s.G.R.Swaminathan For Respondent : Mr.R.Muniapparaj, Govt Advocate (Crl.Side) J U D G M E N T The appellants herein were the accused 1 to 4 in S.C.No.368 of 1999. The first and second appellant stood charged for an offence punishable under Section 307 IPC, whereas the appellants 3 and 4 stood charged for an offence punishable under Section 323 IPC. All of them were found guilty of and convicted for the respective https://hcservices.ecourts.gov.in/hcservices/ offences with which they stood charged as aforesaid and were punished as follows: i) Appellants 1 and 2 were punished with rigorous imprisonment for a period of nine years and a fine of Rs.5,000/- for the offence punishable under Section 307 IPC with a default sentence of one year rigorous imprisonment in case of default in payment of fine. ii) Each one of the appellants 3 and 4 was awarded a sentence of six months rigorous imprisonment and a fine of Rs.500/- with a default sentence of one month rigorous imprisonment, in case of default in payment of fine. As against the said conviction recorded and the sentence imposed by the learned Additional Sessions Judge (FTC No.4), Coimbatore at Tiruppur, in his judgment dated 16.05.2002, the appellants have preferred this appeal under Section 374 (2) of cr.P.C. 2. The case of the prosecution, in brief, can be stated as follows: i) Palanisamy (P.W.2) is the father of P.W.1 - Amudha and P.W.3 - Revathy. P.W.4 - Arumugam is the son-in-law of P.W.2. P.W.5 - Chinna Palanisamy is the younger brother of P.W.2. Appellant No.1 - Paulraj is the son of second appellant. The third appellant is the wife of the first appellant. Appellant No.4 is the mother-in-law of first appellant. All the appellants/accused are residents of Chinnathottipalayam within the jurisdiction of Karamadai Police Station. On 12.06.1998, P.W.1 - Amudha was grazing her cattles in their land. At about 12.00 noon, Paulraj(A1) and his wife Vasantha Mani (A3) came there and abused P.W.2 informing P.W.1 that her father (P.W.2) had obliterated a portion of the bund and annexed that portion with his land. On hearing the noise, P.W.3-Revathy came to that place and both P.W.1 and 3 informed appellants 1 and 3 that they could air their grievance when their father (P.W.2) would come. Enraged over the same, appellant No.3 (Accused No.3) slapped Revathy (P.W.3) on her face. The first appellant/Accused No.1 caught hold of Amutha's (P.W.1's) hair, pushed her to the ground and assaulted her with his hands and legs. At the same time, the third appellant (A3) repeatedly slapped on the face of Revathy (P.W.3) using her hands. On hearing the noise Arumugam (P.W.4), the husband of Revathy rushed to the said place and then proceeded towards Sirumugai to bring Palanisamy (P.W.2). After the above said occurrence, Amudha and Revathy returned home along with the cattles. Shortly thereafter, P.W.2 and P.W.4 came there and were hearing P.W.1 narrating the occurrence that took place in the field. ii) While so, all the appelants came to the house of P.W.2 and appellants 1 and 2 (A1 and A2) challenged P.W.2 to come out to face them to prove that he was the son of one father and one mother. When P.W.2 came out, the second appellant (A2) attacked him with a stick, whereas the third appellant (Vasantha Mani) attacked Revathy (P.W.3) repeatedly with her hands. Paulraj, the first appellant (first accused) took out a sword (tPr;rUths;) from the eaves of the said https://hcservices.ecourts.gov.in/hcservices/ house (house of P.W.2) and cut P.W.2 on the head proclaiming that he should die with that. In the said attack P.W.2 sustained bleeding injuries on the left side of his head. At the same time, the fourth appellant Ayyammal (A4) repeatedly beat P.W.1. At that point of time, the neighbours rushed to the place and separated both groups. iii) After the above said second occurrence, P.W.2 was taken in an auto-rickshaw that came there, at the first instance to a private hospital at Karamadai wherefrom he was taken to the Government hospital, Mettupalayam and then from there, to Coimbatore Medical College Hospital, Coimbatore. P.W.1 went to Karamadai Police station and lodged a written complaint under Ex.P1. P.W.8 is the Medical officer who attended on P.W.2 at Government Hospital, Mettupalayam and issued Ex.P4 wound certificate. P.W.12 - Karuppan, the then Sub- Inspector of police attached to Karamadai police station, prepared Ex.P10 - First Information Report in the printed format and registered a case in Crime NO.146 of 1998 on the file of the Karamadai police station for offences punishable under Sections 341, 323 and 307 IPC based on Ex.P1 complaint. iv) P.W.12 himself took-up the investigation of the case, visited the place of occurrence and prepared Ex.P11 - Observation Mahazar and Ex.P12 - Rough sketch in the presence of witnesses. He also recovered M.O.9 - blood stained earth and M.O.10 - sample earth under Ex.P13-Mahazar in the presence of P.W.7 - Venkatachalam and one Rajendran. M.O.3-blood stained half saree and M.O.4-jacket of P.W.1 were also recovered by the Investigating officer from P.W.1 under Ex.P13 - Mahazar. The blood stained clothes of P.W.2 produced as M.O.5 and 6 and the blood stained clothes of P.W.5 (they were stained when he took the injured P.W.1 to the hospital in an auto-rickshaw) marked as M.0.7 and 8 were also recovered by the Investigating Officer under Ex.P2 - Mahazar. P.W.1 was also treated for the injuries sustained by her by P.W.10-Dr.Santha Arulmozhi, on 13.06.1998. Ex.P9 wound certificate was issued to the effect that she had sustained a lacerated injury on the left side parietal region of the head measuring 2 x 1 x 1 cm. It was diagnosed to be a simple injury. v) P.W.11-Dhinakaran took up further investigation of the case from P.W.12 and arrested the first appellant at 7.30 p.m on 22.06.1998, recorded his confession statement and recovered M.O.2 - Bill hook from him under Ex.P13 Mahazar in the presence of P.W.9 - Village Administrative Officer and one Chandran, the village assistant. P.W.11 also arrested the second and 4th (A2 & A4) Chenna Naicker and Ayyammal and recorded their confession statements. Based on the said confession statements, P.W.11 recovered M.O.1 - stick at about 2.15 p.m on 24.06.1998 under Ex.P8 - Mahazar, in the presence of the attesting witnesses P.W.9-V.A.O and his menial Chandran. P.W.11's successor in office, namely Inspector Jayakumar continued the investigation, completed the same and submitted a final report on 15.04.1999 alleging commission of an offence punishable under Sections 307 by appellants 1 and 2 and an offence punishable under Section 323 by the appellants 3 and 4. https://hcservices.ecourts.gov.in/hcservices/ 3. As many as 13 witnesses were examined, Ex.P1 to P13 were marked and material objects M.O.1 to M.O.10 were produced on the side of the prosecution in order to substantiate the prosecution case. 4. After recording the evidence adduced on the side of the prosecution, the trial court questioned the accused under Section 313 (i)(b) of Cr.P.C. regarding the incriminating materials found in such evidence. They denied them to be false. Murugan and Murugesan were the two witnesses examined on the side of the appellants/accused as D.W.1 and D.W.2. No document was marked and no material object was produced on the side of the accused. 5. The court below considered the evidence brought on record on both sides, in the light of the arguments advanced on both sides, and upon such consideration, came to the conclusion that the charges against the accused/appellants as indicated supra were proved beyond reasonable doubt, convicted them and sentenced them with the punishments as stated above. 6. The point that arises for consideration in this appeal is "whether the conviction recorded by the court below and the sentence imposed on each one of the accused by the court below are liable to be interfered with in this appeal?" 7. Advancing arguments on behalf of the appellants Mr.M.Deivanandam, learned counsel representing Mr.G.R.Swaminathan, counsel on record for the appellants contended that the conviction recorded by the court below was contrary to law and facts and probabilities of the case; that the court below completely lost sight of the fact that the appellants/accused also sustained serious injuries for which a separate case in Crime No.147 of 1998 had been registered; that the prosecution had not given any explanation for the injuries sustained by the accused persons; that the court below totally ignored a vital piece of evidence, namely the registration of the case in Crime No.147 of 1998; that the court below failed to properly appreciate the fact that there had been long standing enmity as a result of which there had been a wholesome implication of all the family members of the accused; that the serious infirmities and defects found in the evidence of the prosecution witnesses had not been properly adverted to by the court below; that the court below would have come to the conclusion that the prosecution version was not proved beyond reasonable doubt, had it appreciated the evidence in a proper perspective and that the judgment of the court below convicting the appellants/accused suffered from serious defect and infirmity and hence the same should be set aside and the appellants/accused should be acquitted of the respective offences with which they stood charged and tried. It is the further contention of the learned counsel for the appellants that, in any event, the sentence awarded is disproportionate and highly excessive. 8. The submissions made by Mr.R.Muniapparaj, learned Government Advocate (Crl. Side) in this regard were also heard and this court paid its anxious consideration to the same. https://hcservices.ecourts.gov.in/hcservices/ 9. According to the prosecution version, the occurrence took place in stages at two places within a gap of fifteen minutes. At the first instance, the appellants/accused are said to have abused and attacked P.W.1-Amutha and P.W.3-Revathy in the field belonging to P.W.2 while P.W.1 was grazing her cattles in the said field. It is not the case of the prosecution witnesses that any one of the accused used any weapon in the first occurrence. On the other hand, it is the evidence of P.W.1 and P.W.3 that they were attacked by the first and third appellants respectively using their hands and legs. According to the evidence of prosecution witnesses, the second occurrence in which P.W.2 and 3 were said to have been attacked by the appellants took place in front of the house of P.W.2. 10. The appellants/accused and the injured are not strangers and admittedly they are close relatives. Appellant No.2 is the elder brother of P.W.2. Appellant No.1 is the son of appellant No.2. Appellant No.3 is the wife of appellant No.1. Appellant No.4 is the mother of appellant No.3. The motive for the occurrence, according to the prosecution version, is the alleged obliteration of a part of the bund separating the lands of P.W.2 and second appellant. 11. It is the case of the prosecution that the appellants abused P.W.2 in his absence and questioned P.W.1 regarding the propriety of the act of her father (P.W.2) in obliterating a portion of the bund and annexing the same with his land. P.W.1 happened to be the informant based on whose complaint the case was registered against the appelants. But she has not stated the time at which the first occurrence took place. However, P.W.3 - Revathy in her evidence has stated that on 12.06.1998 at about 12.00 noon the first and third appellants assaulted her (P.W.3) and her sister (P.W.1). It is her statement that after the first occurrence they returned home; that at about 1.00 p.m her father came back and that while they were narrating the occurrence that took place in the field, the appellants/accused came there and challenged P.W.2 to come out if he was really the son of his parents. According to the evidence of P.W.3, the second occurrence took place at about 1.00 p.m. P.W.1 has not stated anything about the time of occurrence. However, P.W.2 would state while he was at Sirumugai, P.W.4-Arumugam came there and informed him of the first occurrence and that when he returned home he found P.W.1 and 3 crying and on being enquired, they narrated the first occurrence in which they were attacked by the first and third appellants. P.W.2 having chosen to state the time when he was informed of the first occurrence by P.W.4, has not stated anything about the time at which the second occurrence took place. P.W.4 also did not state the time at which the fist and second occurrences took place. P.W.4, according to the complaint and evidence of P.W.1, heard the noise created in the first occurrence and went to Sirumugai to bring P.W.2. 12. According to the testimony of P.W.1, on hearing the noise caused by the abusive language used by the accused 1 and 3 (Paulraj and Vasantha Mani), P.W.3-Revathi came to the field wherein P.W.1- Amutha was grazing her cattles. It is her further evidence that Vasantha Mani slapped Revathi on her face and Paulraj caught hold of https://hcservices.ecourts.gov.in/hcservices/ the tuft of Amutha, pushed her to the ground and kicked her with his legs. P.W.4-Arumugam, who heard the noise from the place of occurrence, went to Sirumugai to bring P.W.2. However, P.W.3-Revathi, the wife of Arumugam(P.W.4) did not say anything as to whether her husband P.W.4 did have any personal knowledge of the first occurrence. She has simply stated that on 12.06.1998 at about 12.00 noon, Paulraj and Vasantha Mani beat Amutha and herself and thereafter they returned home. She did not state anything as to whether P.W.4 came to the place of first occurrence on hearing the noise. It is also not her evidence that after they were attacked by Paulraj and Vasantha Mani in the first occurrence, she went to her garden and informed P.W.4 who was there, of the fact that they were beaten by Paulraj and Vasantha Mani. 13. As to how P.W.4 came to know the alleged first occurrence, three different versions are there. i) One is the version of P.W.1, who has stated that P.W.4, who was in the nearby field came to the place of first occurrence on hearing the noise, ii) P.W.3's evidence is to the effect that no one including P.W.4 came to the place of first occurrence and they themselves (P.W.1 and P.W.3) returend home after the first occurrence and iii) the third version is that of P.W.4-Arumugam. According to his statement, his wife Revathi (P.W.3), soon after the first occurrence came to him while he was in his garden and informed him that she and her sister Amutha were beaten by Paulraj and Vasantha Mani whereupon he went to Sirumugai to inform his father-in-law Palanisamy (P.W.2). Therefore, it is quite improbable that P.W.4 would have witnessed the first occurrence in which P.W.1 and P.W.3 were allegedly attacked by Paulraj and Vasantha Mani. The court below also has rightly disbelieved his testimony in this regard. 14. The second occurrence is said to have taken place at about 1.00 p.m on the same day. The place of second occurrence, according to the prosecution version, is the place in front of the house of P.W.2. Admittedly, the house of the accused No.1 was adjoining the house of P.W.2. According to the evidence of P.W.1 to P.W.4, the accused Paulraj and Vasantha Mani were the assailants in the first occurrence and it were they who attacked Amutha and Revathi. It is not the case of the prosecution that either Amutha and Revathi retaliated or attacked either Paulraj or Vasantha Mani. When that is so, it shall be improbable, without there being any further provocation for the accused, to attack P.W.2 after calling him to come out of his house. It is also not the case of the prosecution that the accused came to the place of second occurrence with a pre- plan and armed with weapons. On the other hand, though there is evidence to the effect that P.W.2 was attacked by Chenna Naicker with a stick produced as M.O.1 and Paulraj attacked P.W.2 with an aruval produced as M.O.2, there is no evidence as to where from Chenna Naicker took M.O.1-stick. However, all the witnesses projected to be the eye witnesses for the second occurrence, namely P.W.1 to P.W.4 would state that Paulraj drew the aruval (M.O.2) from the eves of the house of P.W.2 to attack him. There is no evidence to the effect that Paulraj knew that P.W.2 used to keep the aruval in that particular place. https://hcservices.ecourts.gov.in/hcservices/ 15. According to the evidence of P.W.1, P.W.2 was dragged towards the Neem tree adjoining the cart track and only at that place the second occurrence took place. The same is not supported by any one of the other eye witnesses. They say that immediately after P.W.2 came out from his house in response to the call made by A1- Paulraj, he was attacked by A2-Chenna Naicker with a stick and then by A1-Paulraj with aruval taken from the eaves of the house of P.W.2. P.W.1-Amutha was also beaten with hands by Ayyammal, according to the evidence of P.W.1. P.W.3 would say that Ayyammal and Vasantha mani attacked P.W.1-Amutha and P.W.3-Revathy with hands. However, she has not stated who beat Amutha and who beat Revathi specifically. In this regard, the evidence of P.W.4 seems to be a contrary one. P.W.4 would say Vasantha Mani attacked Amutha, whereas Ayyammal attacked Revathi. But as per P.W.1-Amutha's evidence she was attacked by Ayyammal and Vasantha Mani attacked P.W.3-Revathi in the second occurrence. P.W.4-Arumugasamy @ Arumugam is none other than the husband of P.W.3-Revathi. It is his evidence that in the second occurrence, when Amutha and Revathi were attacked by Ayyammal and Vasantha Mani, he made an attempt to prevent them but accused Paulraj warned him that he would cut him if he ventured to do so. This happened to be the solitary version of P.W.4. It is not supported by the evidence of other eye witnesses, namely P.W.1 to 3. It seems P.W.4 is projected as an eye witness for both the occurrences, the one that took place in the field and the other that took place in front of the house of P.W.2. It is quite surprising to note that P.W.4 did not come to the rescue of his father-in-law, sister-in-law and wife when they were allegedly attacked by the accused. It is also surprising to note that he was spared by the accused persons. If at all P.W.4 was present in the place wherein the second occurrence took place, naturally he would have been the person to take the injured to the hospital for treatment or at least he would have chosen to go to the police station immediately to inform the police of the occurrence. But he has not done so. He did not even accompany P.W.2 to the hospital. Therefore, it is quite obvious that P.W.4-Arumugasamy @ Arumugam could not have been an eye witness for the occurrence and that he should have been introduced after deliberation as an eye witness. In this regard, the learned Trial judge has also rightly rejected the evidence of P.W.4. 16. P.W.5-Chinna Palanisamy is another brother (younger) of P.W.2. According to his version, on hearing the noise from the house of P.W.2, he went there at about 2.00 p.m on 12.06.1998 and found P.W.2 lying unconscious with head injury. His further version is that he took P.W.2 in an auto-rickshaw at the first instance to a private hospital at Karamadai called "Rangaraj hospital" and then took him to Government Hospital, Mettupalayam since the doctor at the private hospital said he could not give treatment to him. But none from the said private hospital has been examined on the side of the prosecution to corroborate the evidence of P.W.4 in this regard. It is also quite improbable that P.W.5 would have taken P.W.2 to the Government hospital, Mettupalayam. The wound certificate issued for P.W.2 by the Medical Officer who admitted P.W.2 for treatment in Government Hospital, Mettupalayam has been produced and marked as Ex.P4. In the said document it has been stated that P.W.2's daughter https://hcservices.ecourts.gov.in/hcservices/ Sornalakshmi brought him to the hospital and that P.W.2 at that time was unconscious. If at all P.W.5 happened to be the person to take P.W.2 to the hospital, only his name would have been noted in the wound certificate. It is also not the case of the prosecution, nor is the evidence of P.W.5, that Sornalakshmi also accompanied them to the hospital and that was why her name was noted in the accident register as the person who brought the injured to the hospital. The above said Sornalakshmi has not been examined as a witness on the side of the prosecution. It makes misprobable the prosecution version that as if P.W.5 took the injured P.W.2 to the hospital for treatment. The evidence of P.W.8-Dr.Deiva sena assumes importance in this regard. She has categorically stated that P.W.2-Palanisamy was brought to the hospital in unconscious stage by his daughter Sornalakshmi. In the wound certificate, it has been simply noted "alleged assault". Whether the assailants were known persons or unknown persons and what was the weapon used - were not noted in the wound certificate. P.W.8 gives an explanation that Sornalakshmi informed her that P.W.2 was attacked by eight persons with unknown weapons. Therefore, this court has to accept the contention of the learned counsel for the appellants that in order to get over the difficulty created by the information furnished by Sornalakshmi to the Medical Officer at the time of admission of P.W.2, P.W.5 was introduced as a witness at a later point of time and after deliberation, has got to be countenanced. Yet another discrepancy pointed out by the learned counsel for the appellants is that though P.W.5 admits that the police station at Karamadai is situated just opposite to the private hospital (Rangaraj Hospital) to which P.W.2 was allegedly taken at the first instance for treatment, he did not make any attempt to inform the police personnel in the said police station. Therefore, this court, without any hesitation, comes to the conclusion that P.W.5 was introduced as a witness after deliberation and that he could not have taken P.W.2 to the hospital for treatment as deposed by him. 17. P.W.1-Amutha is said to be the person who gave the complaint based on which, the case was registered. The complaint statement given by her has been marked as Ex.P1. The same was said to be given at 4.00 p.m on the date of occurrence, namely 12.06.1998. Nothing has been mentioned in the said complaint to the effect that she sustained any bleeding injury. The only averment made in the complaint in this regard is that Ayyammal assaulted her repeatedly with hands. There is no averment to the effect that she sustained any injury. On the other hand a wound certificate has been obtained for P.W.1 as if she had sustained a laceration measuring 2 cm x 1 cm x 1 cm on the left parietal