Bail Slip The Appellants herein namely Devendran A1, Vedapuri A2, Singapooran @ Velu A3 , Achari Arumugam @ Arumugam A4 were directed to be released on bail by the order of this Court dated 3.2.2003 in Crl.M.P.No.1032 of 2003 in Crl.A.No.189/2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.189 of 2003 1. Devendran 2. Vedapuri 3. Singapooran @ Velu 4. Achari Arumugam @ Arumugam .. Appellants Vs. State by: Sub-Inspector of Police, Cheyyar, Crime No.167/98, Thiruvannamalai Dist. .. Respondent Criminal Appeal against the judgment dated 6.1.2003 in S.C.No.22 of 2000 on the file of the Principal Assistant Sessions Court, Thiruvannamalai. For appellants: Mr.R.Margabandhu and Mr.R.Doraiswamy for A-1, A-3 & A-4 Mr.A.Natarajan, Senior Counsel for Ms.L.Poompavai for A-2 For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence, dated 6.1.2003 in S.C.No.22 of 2000 on the file of the Principal Assistant Sessions Court, Thiruvannamalai, whereby the appellants/A.1 to A.4 were convicted for the offence under Section 147 IPC and each sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs.1,000/- each, in default, to https://hcservices.ecourts.gov.in/hcservices/ undergo three months' simple imprisonment and they were also convicted for the offence under Section 306 IPC and each sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.5,000/- each, in default, to undergo one year simple imprisonment. The sentences imposed on the appellants/A.1 to A.4 were directed to run concurrently. During the course of trial, A-5 died and hence, the charges stood abated as far as A-5 was concerned. 2. The case of the prosecution is as follows: (a) P.Ws.1, 3, 6, 7, 8 and 9, A.1 to A.4 and the deceased-A.5 belong to Irumanthangal village and Palli Village. On 5.3.1998, there was a Temple festival of Sri Angalamman Temple at Irumanthangal Villaeg, which was celebrated under the leadership of P.W.8 Vengaiyan. A.2's driver Arumugham drove the tractor during the Temple festival, which was questioned by the deceased Sankar alias Jaisankar, who is none other than the son of P.W.1 Logan. The very next day, the deceased Sankar alias Jaisankar was assaulted by the men of A.2 Vedapuri and immediately, he was admitted in the hospital, where the deceased gave complaint against Arumugham, the driver of A.2 and others. (b) The said factum was intimated to A.1 to A.5 and on 10.3.1998, they convened a Panchayat. In the Panchayat, the accused condemned the action of the deceased Sankar alias Jaisankar for giving complaint against the assaultant and the accused. So, they have warned P.W.1 and imposed a fine of Rs.7,000/-. P.W.8 Vengaiyan was also imposed fine of Rs.1,000/- since he celebrated the festival and P.W.7 Sampath, who is none other than the brother of P.W.1, was also fined, since he questioned as to why the fine was imposed. At that time, the deceased Sankar alias Jaisankar has stated that since he was assaulted by persons, he gave a complaint and therefore, as to what was wrong in it and why they were imposed fine. So, A.1 to A.5 who are the Panchayatdars, induced and incited Sankar alias Jaisankar and gave Rs.100/- each to P.Ws.1, 8, 7 and the deceased Sankar @ Jaisankar and when they gave Rs.100/- to the deceased Sankar @ Jaisankar, A.3 said, @/// cdf;F khdk;. NL brhuiz ,Ue;jhy; v';fs; Kfj;jpy; KHpf;f TlhJ vd;W tPrp vwpe;Jtpl;lhh;/ tpc&k; Foj;J brj;Jngh /////@ The Panchayat meeting was over by 12 noon. (c) The deceased Sankar alias Jaisankar went to Cheyyar and then he consumed poison and fell down near the Temple. This was immediately intimated to P.W.1 and others and the deceased was taken to Cheyyar Hospital and subsequently to Kancheepuram Hospital. The deceased died at 8.45 p.m. on the same day. (d) P.W.1 gave Ex.P-6 complaint, which was registered in Cr.No.167 of 1998 under Section 174 Cr.P.C., by P.W.13 Head Constable. As soon as the deceased was admitted in the hospital, https://hcservices.ecourts.gov.in/hcservices/ P.W.11 Dr.Balaji, at Cheyyar Hospital, initially treated the deceased and issued Ex.P-4 accident register. (e) After the death of the deceased, P.W.15 Inspector of Police went to the place of occurrence and examined the witnesses. He prepared Ex.P-11 observation mahazars and drew Ex.P-10 rough sketch. He conducted inquest and Ex.P-8 is the inquest report. (f) The dead body of the deceased was sent for post-mortem. P.W.12 Dr.Sudha Lakshmi conducted post-mortem and Ex.P-5 is the post-mortem certificate. (g) P.W.7 Sampath gave complaint on 23.3.1998 under Ex.P-2. P.W.14 Sub-Inspector of Police received the same and altered the crime number into one for the offence under Section 306 IPC and prepared Ex.P-9 alteration report. P.W.14 Sub-Inspector of Police examined the witnesses. (h) P.W.15 Inspector of Police, on a perusal of the enquiry conducted by P.W.14 Sub-Inspector of Police, has concluded the investigation and filed the charge sheet against the accused for the offences under Sections 147 IPC and 306 IPC. 3. The trial Court, after framing necessary charges, posed questions on the accused and the accused pleaded not guilty. During the course of trial, A.5 died and hence, the charges stood abated as far as A.5 was concerned. When the accused were questioned under Section 313 Cr.P.C., they denied the evidence incriminating against them and they have filed their statements. On the basis of the evidence of P.Ws.1 to 3, 7, 8 and 9, the trial Court came to the conclusion that there was a Panchayat and in that, A.1 to A.4 induced and incited the deceased Sankar alias Jaisankar to commit suicide and so, the appellants-accused are guilty of the offences under Sections 147 and 306 IPC. After considering the oral evidence of P.Ws.1 to 15 and Exs.P-1 to P-11, the trial Court has convicted and sentenced the appellants as indicated above. 4. Challenging the conviction and sentence passed by the trial Court, the learned Senior Counsel appearing for the second appellant/A.2 and the learned counsel appearing for the first appellant/A.1, the third appellant/A.3 and the fourth appellant/A.4, would submit that there is no evidence of Panchayat alleged to have been held on 10.3.1998, that no independent witness was examined, that there was a delay in preferring the complaint and that ingredients of Section 306 IPC are not made out. 5. Learned Government Advocate (Criminal Side) appearing for the respondent-Police would contend that there is no delay in preferring the complaint. Ex.P-2 complaint given by P.W.7 is only https://hcservices.ecourts.gov.in/hcservices/ the statement under Section 161 Cr.P.C. and that has been properly explained by P.Ws.1 and 7 and that P.Ws.1, 2 and 7 are the relatives and P.W.8 and P.W.9 are the independent witnesses. Their evidence has proved that the Panchayat was held on 10.3.1998. Hence, the ingredients of Sections 306 and 107 IPC have been made out. Therefore, the trial Court has come to the correct conclusion. He prayed for confirmation of conviction and sentence imposed on the appellants-accused and for dismissal of the Criminal Appeal. 6. Admittedly, P.Ws.1, 3, 6, 7, 8 and 9, A.1 to A.4 and the deceased-A.5 belong to Irumanthangal village and Palli Village. On 5.3.1998, P.W.8 conducted the festival of Angallamman Temple at Irumanthangal Village. On 5.3.1998,, A.2's driver Arumugham drove the tractor in the midst of the Temple festival, which was questioned by the deceased Sankar alias Jaisankar. On the very next day, he was beaten near the bridge. He was admitted in the hospital where the factum has been intimated to the concerned Police. The complaint has been received from the deceased Sankar alias Jaisankar and the case has been registered. Against that, a Panchayat was convened on 10.3.1998. 7. The appellants-accused have vehemently opposed that there was no Panchayat on 10.3.1998. At this juncture, it is appropriate to consider the evidence of P.Ws.1, 7 and 8, and the other witnesses, as to whether there was a Panchayat. P.W.1 is the father of the deceased Sankar alias Jaisankar. P.W.7 Sampath is the relative, i.e. junior paternal uncle of the deceased Sankar @ Jaisankar. P.W.1 is the uncle of P.W.2 Rajendran. P.W.8 Vengaiyan is a Teacher. P.W.9 Dhamu knows the accused and the prosecution witnesses. They have all deposed before Court that on 10.3.1998 there was a Panchayat. While considering their evidence, there is no reason for discarding the evidence of the independent witnesses, namely P.Ws.8 and 9 and their evidence clearly proved that there was a Panchayat on 10.3.1998 in respect of the Police complaint given by the deceased Sankar alias Jaisankar with regard to the incident that has taken place in connection with the festival of Angalamman Temple on 5.3.1998. 8. P.W.8 who is a Teacher, was the person who celebrated the Temple festival. He was also imposed fine in the Panchayat. P.W.7, who questioned the activities of the Panchayatdars, the accused, was also imposed fine in the Panchayat. Since the deceased Sankar alias Jaisankar has given a complaint, his father P.W.1 was fined at Rs.7,000/- in the Panchayat. Evidence of P.Ws.8 and 9 has been corroborated by the evidence of P.Ws.1 and 7. Hence, even though P.Ws.1 and 7 are close relatives of the deceased Sankar alias Jaisankar, the evidence of P.Ws.1 and 7 is reliable. https://hcservices.ecourts.gov.in/hcservices/ 9. Considering the evidence of P.Ws.1, 7, 8 and 9, it is clearly proved that there was a Panchayat held on 10.3.1998 in respect of the complaint given by the victim-deceased Sankar @ Jaisankar in connection with the Temple festival held on 5.3.1998. 10. It is also pertinent to note that A.1 to A.4 were also convicted for the offence under Section 147 IPC. It is true that the accused are Panchayatdars and they convened the Panchayat. At this juncture, it is appropriate to consider Sections, 147, 146 and 141 IPC, which read as follows: "Section 147 : Punishment for rioting.--whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." "Section 146.--Rioting.--Whenever force or violence is used by unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting." "Section 141.--Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First.--To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law, or of any legal process; or Third.--To commit any mischief or criminal trespass, or other offence; or Fourth.--By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment or to enforce any right or supposed right; or Fifth.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. https://hcservices.ecourts.gov.in/hcservices/ Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." 11. Even though the trial Court has convicted the appellants- A.1 to A.4 under Section 147 IPC, there is no iota of evidence to show that they have committed the offence under Section 146 IPC, for rioting. In such circumstances, I am of the opinion that the trial Court has committed error in convicting the appellants-A.1 to A.4 under Section 147 IPC. Section 141 IPC defines "unlawful assembly" and Section 142 IPC deals with "being member of unlawful assembly". Sections 141 and 142 IPC read as follows: "Section 141 IPC.--Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First.--To overawe by criminal force, or show of criminal force, the Central or any State Government of Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law, or of any legal process; or Third.--To commit any mischief or criminal trespass, or other offence; or Fourth.--By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment or to enforce any right or supposed right; or Fifth.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally to do. Explanation.---An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." "Section 142 IPC.--Being member of unlawful assembly.-- Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues, in it, is said to be a member of an unlawful assembly." 12. In the present case, there is no evidence to show that the accused convened the Panchayat with the common intention to execute https://hcservices.ecourts.gov.in/hcservices/ the unlawful act. In such circumstances, I am of the opinion that the appellants/A.1 to A.4 are not guilty of the offence under Section 147 IPC. So, the conviction and sentence imposed on the appellants/A.1 to A.4 for the offence under Section 147 IPC are liable to be set aside. 13. It is appropriate to consider the delay in preferring the complaint. Learned Senior Counsel appearing for A.2 and learned counsel appearing for A.1, A.3 and A.4 would contend that P.W.1, the father of the deceased, has given a complaint in Ex.P-6 and his signature alone has been marked as Ex.P-1. Ex.P-6 complaint was received by the Head Constable on 11.3.1998 at 11.30 a.m. P.W.7 has given a statement/complaint and that has been marked as Ex.P-2, in which he has narrated all the facts. In this connection, learned Senior Counsel appearing for A.2 and learned counsel appearing for A.1, A.3 and A.4 would contend that the occurrence took place on 10.3.1998 and the deceased died on the same day at 8.50 p.m. P.W.1, the father of the deceased, has given the complaint as per Ex.P-6 on 11.3.1998 at 11.30 a.m. But Ex.P-2 came into existence only on 23.3.1998, after 12 days. There is a long delay, which has not been explained. 14. It is appropriate to consider as to what is the status of Ex.P-2. As per Ex.P-6, the case has been registered in Cr.No.167 of 1998 under Section 174 Cr.P.C. After receipt of Ex.P-2, the offence has been altered into one under Section 306 IPC in the same Crime Number. In such circumstances, Ex.P-2 is only a statement under Section 161 Cr.P.C. and it is not a complaint. So, the trial Court has erred in coming to the conclusion that Ex.P-2 is a complaint given by P.W.7. 15. At this juncture, the conduct of the appellants-accused plays very vital role. As already observed in the earlier paragraphs of this judgment, there was a Panchayat convened on 10.3.1998 and it was convened by A.1 to A.5 in respect of the complaint given by the deceased Sankar alias Jaisankar in connection with the incident that has taken place in the Temple festival. Merely because the deceased has given complaint, the Panchayat has been convened and the persons responsible for giving the complaint have been fined in the Panchayat. In such circumstances, the appellants have taken law into their own hands and they convened the Panchayat. 16. Ex.P-6 came into existence without the knowledge of P.W.1, after obtaining P.W.1's signature, which is acceptable one. On 10.3.1998, he was fined in the Panchayat to pay Rs.7,000/- and he paid Rs.5,000/-, since A.1, the President of the Panchahyat owes Rs.2,000/- of P.W.1 and P.W.1 adjusted the same and hence he paid Rs.5,000/-. Since P.W.8 is the person who is responsible for celebration of the festival of the Temple on 5.3.1998, he was fined https://hcservices.ecourts.gov.in/hcservices/ to pay Rs.1,000/- and he paid that amount. Since P.W.7 questioned the attitude of the Panchayatdars, he was fined to pay Rs.500/-. In his chief examination, P.W.1 stated that his signature has been obtained in white paper and that the Sub-Inspector of Police obtained his signatures in two white papers, stating that it is necessary for post-mortem. While considering the chief examination of P.W.1, he has stated that the Head Constable has examined him and that he does not know as to what he has stated before Police. He admitted only his signature. In his cross examination, P.W.1 has stated that for the death of his son, the deceased, he has not given any complaint. After ten days, his brother P.W.7 Sampath has given complaint. In cross examination, P.W.1 has stated as follows: @//// mg;nghnj vd;id jiyik fhtyh;. cjtp Ma;thsh; tprhhpj;jdh;/ 11k; njjp Vl;L vd;id tprhuiz bra;jhh;/ mthplk; ehd; vd;d brhd;ndd; vd;W "hgfk; ,y;iy/ ehDk; jiyth; njnte;jpuDk; 10/3/98 njjp fhiyapy; Vz;lh Ch; tk;g[f;F nghfpwha; vd;W fz;oj;njhk;/ mjdhy; kdk; cile;J vd; kfd; ,Ug;gij tpl ,wg;gnj nky; vd;W ,we;Jtpl;lhd; vd;W ehd; 11/3/98 njjp nghyprhh; tprhhpf;Fk;nghJ brhd;nddh brhy;ytpy;iyah vd;W bjhpatpy;iy/ /////@ While considering the evidence of P.W.1, it is clearly proved that he was in the midst of fear about the Panchayat of the appellants- accused. Since P.W.1 lost his only son, in the midst of bereavement, P.W.1 was not in a position to give complaint. Hence, he signed in white paper. So, I am forced to accept that Ex.P-1 signature of P.W.1, has been obtained in blank paper. 17. Even though the case has been initially registered under Section 174 Cr.P.C., after receipt of Ex.P-2, the Police altered the offence into one under Section 306 IPC, in the same Crime Number and then only the investigating officers conducted enquiry. While considering the evidence of P.Ws.1, 2 and 7, it is clearly proved that the deceased is the only son to P.W.1 and to their family, and since they have lost their only son, they were not in a position to narrate the entire facts. After the ceremony was over, P.W.7 has given Ex.P-2 and on that basis only, the offence was altered and Ex.P-9 alteration report came into existence. So, P.W.7's evidence is cogent and convincing and he explained the delay in giving the statement under Ex.P-2. 18. Moreover, it is pertinent to note that when once P.W.1's son, the deceased has given a complaint, immediately, the accused convened the Panchayat. Even though P.W.1 wanted time to face the Panchayat, he was not given time and he was forced to appear before the Panchayatdars and fined. At this juncture, learned Senior Counsel appearing for A.2 would cull out some portion of the https://hcservices.ecourts.gov.in/hcservices/ evidence of P.W.3, and submitted that at the instigation of the Inspector of Police, the accused convened the Panchayat and so, the Inspector of Police should be one of the accused in the case. P.W.3 Gajendran has deposed in his evidence in chief examination that, @///// mg;nghJ nghyP!; Ma;thsh; jiytiu ghh;j;J eP';fns rkhjhdk; bra;a[';fs; vd;W brhd;dhh;/ bfhLj;j tHf;if thg!; bgw;Wf;bfhs;S';fs;/ Chpy; ngrpf;bfhs;syhk; vd;W m';fpUe;jth;fs; brhd;dhh;fs;/ ////@ But the above argument does not hold good, because, from the evidence of P.W.3, it is seen that the Inspector of Police wanted to settle the matter, but he would have given advise to impose fine on the person who gave the complaint. 19. Learned counsel for the appellants/accused submitted that no independent witnesses has been examined. As already discussed, P.Ws.8 and 9 are the independent witnesses. P.W.8 was also fined in the Panchayat. So, the above argument regarding non-examination of the independent witnesses, does not merit acceptance. 20. Learned counsel for the appellants-accused submitted that P.W.11 Dr.Balaji who has first treated the deceased, issued Ex.P-4 accident register and P.W.12 Dr.Sudha Lakshmi has conducted autopsy and issued Ex.P-5 post-mortem certificate and viscera report. Learned counsel for the appellants would contend that there is no question posed on P.W.12 Dr.Sudha Lakshmi that the death was due to poisoning. In the viscera report in Ex.P-5, it is stated that "Methyl parathion is a poisonous organophosphorus insecticide", which alleged to have led to the death of the deceased. Even though P.W.12 Doctor has not deposed that the poisonous substance caused the instantaneous death, the evidence of P.W.12 and Ex.P-5 post- mortem certificate and viscera report clearly prove that the death was due to consumption of poisonous substance and the deceased died due to consumption of poison. 21. At this juncture, it is appropriate to consider as to whether the trial Court is correct in holding that the appellants- accused are guilty of the offence under Section 306 IPC. It is pertinent to note that as per the evidence of P.Ws.1, 2, 3, 7, 8 and 9, it is clearly proved that after the Panchayat was over, the victim-deceased Sankar @ Jaisankar was in a dejected mood and they said that the accused have committed the offence, they directed the victim to withdraw the case, that they have also fined them at the time of Panchayat and they forced the deceased to commit suicide and hence, the deceased left the place of occurrence and consumed poison and died. 22. Learned counsel for the appellants-accused relied on the decisions of the Supreme Court reported in 1994 (1) SCC 73 (State of W.B. Vs. Orilal Jaiswal), AIR 2002 SC 1998 = 2002 (3) SUPREME 650 = https://hcservices.ecourts.gov.in/hcservices/ 2002 (5) SCC 371 (Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh), 2008 (11) SCC 215 = AIR 2008 SC 2108 (Sohan Raj Sharma Vs. State of Haryana), 2001 (9) SCC 618 (Ramesh Kumar Vs. State of Chhattisgarh) and 1995 Supp (3) SCC 438 (Swamy Prahaladdas Vs. State of M.P. and another). In the said decisions, it has been held as follows: 1994(1)SCC 73 (State of W.B. Vs. Orilal Jaiswal): "16. ... Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurtue fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. (emphasis supplied)" AIR 2002 SC 1998 = 2002 (3) SUPREME 650 = 2002 (5) SCC 371 (Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh): "Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased to go and die. For this, the Courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as anenxure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him to go and die. Even if we accept the prosecution story that the appellant did tell the deceased to go and die, that itself does not constitute the ingredient of instigation. The word instigate denotes incitement or urging to do some