BAIL SLIP --- The Appellant/Accused namely (1)Mathi @ Mathiazhagan (2) Karnan (3)Ramesh (4) Sudhakar @ Selvasudhakar (5)Kumar were directed to be released on Bail in and by the order of this Court dated 17.2.2003 in Crl.M.P.No.1498 of 2003 in Crl.A.No.260 of 2003 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.260 of 2003 1. Mathi @ Mathiazhagan 2. Karnan 3. Ramesh 4. Sudhakar @ Selvasudhakar 5. Kumar .. Appellants Vs. Inspector of Police, Vaduvur, Mannargudi Tk. (Crime No.12/2002) .. Respondent Criminal Appeal against the judgment of conviction and sentence, dated 28.1.2003 in S.C.No.244 of 2002 on the file of the Additional Sessions Court, Nagapattinam. For appellants : Mr.A.Padmanabhan For respondent : Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) assisted by Mr.S.Arivazhagan JUDGMENT The Criminal Appeal arises out of the conviction and sentence, dated 28.1.2003 in S.C.No.244 of 2002 on the file of the Additional Sessions Court, Nagapattinam, whereby, first appellant-A-1, second appellant-A-2, third appellant-A-3 and fifth appellant-A-5 were convicted for the offence under Section 147 IPC and sentenced to undergo three months'rigorous imprisonment, the fourth appellant-A-4 https://hcservices.ecourts.gov.in/hcservices/ was convicted for the offence under Section 148 IPC and sentenced to undergo six months' rigorous imprisonment, the third appellant-A-3 was also convicted for the offence under Section 323 IPC and the first appellant-A-1, second appellant-A-2, fourth appellant-A-4 and fifth appellant-A-5 were also convicted for the offence under Section 323 read with 149 IPC and each of them were sentenced to undergo two months' rigorous imprisonment, the fourth appellant-A-4 was also convicted for the offence under Section 304 (Part-2) IPC and the first appellant-A-1, second appellant-A-2, third appellant-A-3 and fifth appellant-A-5 were also convicted for the offence under Section 304 (Part-2) read with 149 IPC and each of them were sentenced to undergo five years' rigorous imprisonment. The sentences imposed on all the accused were directed to run concurrently. 2. The case of the prosecution is as follows: (a) The respondent-Inspector of Police, Vaduvur, Mannargudi Taluk, filed charge sheet against the accused in Crime No.12 of 2002 for the offences under Sections 147, 148, 323, 302 and 302 read with 149 IPC. (b) On 15.1.2002 at about 8 p.m., when P.W.1 Sathish @ Sathishkumar, P.W.4 Ilayaraja, P.W.10 Sankar and P.W.11 Madhanraj were all at Peraiyur Bride Bus Stand, A-3 Ramesh along with A-1 and one Kamaraj, drove the cycle and dashed against P.W.1. There was wordy altercation between both parties. Subsequently, the matter has been mediated. P.W.10 boarded the bus and left the place. P.W.11 left the place. (c) Then, P.W.1 and P.W.4 proceeded to their house. They reached Vinayagar Temple. At that time at about 9.30 p.m., the deceased Nivas came there and they were chatting at the aforesaid Vinayagar Temple. At that time, A-4 Sudhakar alias Selva Sudhakar came with beer bottle. A-1 to A-4 who are none other than the brothers and their cousin brother A-5, came there and they picked up quarrel with them. A-1 and A-3 caught hold of the right hand of the deceased and A-2 and A-5 caught hold of the left hand of the deceased. At that time, A-4 broken the beer bottle and stabbed the deceased on his right side of his chest and he sustained injuries. (d) The above occurrence was witnessed by P.W.4 Ilayaraja, P.W.5 Anbazhagan, P.W.6 Ayyakannu and P.W.7 Marikannu and P.W.6, the father of the deceased then immediately took the deceased to hospital, where P.W.2 Dr.Senguttuvan declared him dead and issued Ex.A-2 accident register, wherein the following injuries were noted: "Injury: Lacerated injury Right hypochondrium below rib. 4Cm x 2cm x depth extent with abdomen. Bleeding (N.C) present in Bladder (N.C). Kept in mortuary." https://hcservices.ecourts.gov.in/hcservices/ (e) Since P.W.1 Sathish alias Sathishkumar also sustained injuries due to assault by A-3 Ramesh with M.O.2 wooden reaper, he was also treated by P.W.2 Dr.Senguttuvan, who gave Ex.P-3 accident register, in which the following injuries were noticed: "Alleged to assault one known person with kuf;fl;il. hPg;gh; at about 9.30 p.m. 15.1.2002 near Pillaiyar Koil. Patient conscious oriented. 1) contusion left (n.c) Elbow 3cm x 2cm Treatment given. Nature of injury Simple." (f) P.W.1 Sathish alias Sathishkumar went to Police Station and gave Ex.P-1 complaint, which was received by P.W.14 Sub-Inspector of Police and a case was registered in Cr.No.12 of 2002 for the offences under Sections 147, 342, and 302 IPC and the F.I.R. copy was despatched to higher officials and the concerned Magistrate. (g) P.W.17 Inspector of Police took up the matter for investigation. He went to the place of occurrence and prepared Ex.P-6 observation mahazar in the presence of witnesses and he also drew Ex.P-14 rough sketch. He also seized M.O.6 blood stained cement 'kaarai' and M.O.7 ordinary cement 'kaarai'. He took steps for taking M.O.8 series of photographs, through P.W.12 Ravichandran. (h) P.W.17 Inspector of Police conducted inquest in the presence of witnesses and Panchayatdars and prepared Ex.P-15 inquest report. After inquest, he handed over the dead body to P.W.15 Head Constable along with Ex.P-4 requisition to conduct autopsy. (i) P.W.3 Dr.Asokan received the said requisition and the dead body produced by P.W.15. P.W.3 Dr.Asokan conducted autopsy and issued Ex.P-5 post-mortem certificate and opined that the deceased would appear to have died of shock and haemorrhage due to injury to vital organ liver. The following injuries were noted in Ex.P-5 post-mortem certificate: "Injuries (1) Lacerated injury 6cm x 4cm parallel to Right Costal margin 6cm below and lateral to Xihpisternum (?). Liquid blood dripped through the wound. 8th costal cartilage was broken. Inter costal muscles in the 7th and 8th spaces lacerated. Depth of wound. Entering to abdominal cavity. Internal Examination Heart 250gms chambers Empty. https://hcservices.ecourts.gov.in/hcservices/ Lungs Right 450gms Left 400gms C/s pale. Fracture of Right 8th costal cartilage. Abdomen. Liver Injury + shaped lacerated injury with irregular edges vertical limb 7cm x 2cms Horizontal limb 4cm x 2cm. Depth 4cm over the Right lobe close to the dividing line between Right and Left lobes involving anterior and superior surfaces. Weight 1400gms C/s pale. Peritoneal cavity contained 2 litres of liquid blood. Stomach partly digested RICE MATERIALS. Mucosa pale. Small Intestine Yellow semi solid material mucosa pale. Spleen: 100gms C/spale. Kidneys: Each 150gm C/s pale. Hyoid bone: Intact. Skull Bones present. Membranes Intact. Spine Intact. Brain 1200gms C/s pale. Post-Mortem concluded at 12.45 p.m. Death would have occurred 8 to 24 hours prior to Post- Mortem. Opinion as to cause of death: (a) Reserved pending report of________ (b) The deceased would appear to have died of shock and haemorrhage due to injury to vital organ liver." (j) After autopsy, P.W.15 Head Constable handed over M.Os.3 to 5 with Ex.P-13 special report to the investigating officer. (k) All the accused surrendered before the Court. P.W.17 Inspector of Police took the accused under police custody. A-4 has given a confession and on the basis of the confession, which was recorded in the presence of witnesses, A-4 stated that he was ready to hand over the hidden weapons and in pursuance of the same, M.O.1 broken beer bottle has been seized in the presence of the witness. Ex.P-8 admitted portion of the confession of A-4 and in pursuance Ex.P-10 seizure mahazar has been prepared. (l) A-3 also gave confession that he was ready to hand over the hidden wooden reaper M.O.2, which was seized by the investigating officer in the presence of the same witnesses under Ex.P-11 seizure mahazar. (m) P.W.17 investigating officer sought for remand of all the https://hcservices.ecourts.gov.in/hcservices/ accused to judicial custody and the accused were remanded to judicial custody. (n) P.W.17 Inspector of Police sent the material objects to Court. Then, he gave Ex.P-16 requisition for sending the material objects for chemical examination. After examination of the material objects, the statement of the other witnesses was recorded. After completing investigation, the investigating officer filed the charge sheet against the accused for the offences under Sections 147, 148, 323, 302 and 302 read with 149 IPC. 3. The trial Court framed necessary charges against the accused. The accused pleaded not guilty. Before the trial Court, P.Ws.1 to 17 were examined, Exs.P-1 to P-20 were filed and M.Os.1 to 9 were produced. On the basis of the evidence of P.Ws.1, 4, 6 and 7, the trial Court came to the conclusion that the accused are guilty of the offences and convicted and sentenced them as indicated above. 4. Challenging the said conviction and sentence, learned counsel appearing for the appellants/accused contended that admittedly, on 15.1.2002, the first occurrence at 8 O'clock took place, when P.Ws.1,4,10 and 11 were chatting in the middle of the road and at that time, A-3 went there in a cycle, which was dashed against P.W.1. There was a wordy quarrel. At that time, P.W.1 sustained injuries. A- 4 reached the place of occurrence, and at that time, P.Ws.1 and 4 and the deceased were using filthy language against the family members of A-4. Moreover, they have attempted to assault him and to save his life, out of sudden provocation, he took the beer bottle found near the road and stabbed him. So, it is not premeditation. The other accused were not in the place of occurrence. P.W.1 has not sustained any injury in the occurrence at 9.30 p.m. and he sustained injury at 8 O'clock incident at the bus stop. A-1 to A-3 and A-5 are not guilty of the offence under Section 304 (Part-2) read with 149 IPC. Since P.W.1 has not sustained injury in the occurrence that took place at 9.15 p.m. at Vinayagar Koil, the accused are not guilty of the offence under Section 323 IPC and A-1, A-2, A-4 and A-5 are not guilty of the offence under Section 323 read with 149 IPC. The trial Court has not considered these aspects. Learned counsel prayed for acquittal of A-1 to A-3 and A-5 from all the charges. 5. Learned counsel further urged that merely because the accused admitted their presence while they were giving their statement under Section 313 Cr.P.C., it is not a substantive piece of evidence and it can be used for appreciating the evidence let in by the prosecution. The statement given by A-5 under Section 313 Cr.P.C. cannot be made the sole basis for conviction. Learned counsel for the appellants relied on the decision of the Supreme Court reported in 2003 SCC (Cri) 1514 (Mohan Singh Vs. Prem Singh) and prayed for acquittal of the accused from all the charges. https://hcservices.ecourts.gov.in/hcservices/ 6. Per contra, learned Government Advocate (Criminal Side) would contend that on 15.1.2002 at about 8 p.m., the first incident which took place, has been admitted by both the accused as well as the prosecution. At that time, P.W.9 Murugaiyan pacified both the parties and there was no complaint and during the incident, no one has sustained injury. The eye-witnesses P.Ws.10 and 11 have deposed that at the time of 8 O'clock incident, P.W.1 has not sustained any injury. P.W.1 is, the brother of the deceased and he is the injured eye-witness and there is no reason for discarding his evidence. Learned Government Advocate prayed for conviction of the accused under Sections 323 and 323 read with 149. 7. Learned Government Advocate further submits that the presence of A-1 to A-3 and A-5 have been spoken to by P.W.5 Anbazhagan, even though he turned hostile. P.W.6 is the father of the deceased Nivas. Moreover, during Section 313 Cr.P.C. questioning, A-1 to A-3 and A-5 have admitted their presence at the time of second incident at 9.30 p.m. The trial Court has considered these aspects and came to the conclusion that they formed an unlawful assembly, because, there is no necessity for the accused to be present at the place of occurrence and they have not let in evidence to show that at that time, they were in the house. The scene of occurrence is on the way to Vinayagar Temple. But at the time of questioning under Section 313 Cr.P.C., A-4 has admitted that he has committed the offence out of sudden provocation and filed the statement. A-1 in the questioning under Section 313 Cr.P.C., has stated that, @8 kzp rk;gtk; bjhpahJ/ ,ut[ 9?1-2 kzp rk;gtk; gw;wp brhy;tJ bgha;@/ To question Nos.1, 4 and 6, A-2 has also stated on the same lines. A-3 also stated in Section 313 Cr.P.C. questioning that, @8 kzpf;F rk;gtk; cz;ik/ ,ut[ 9?1-2 kzp rk;gtk; gw;wp TwpapUg;gJ bgha;/ irf;fpspy; brd;W nkhjpaJ cz;ik@/ A-4 has stated in Section 313 Cr.P.C. questioning that, @,ut[ 8 kzp rk;gtk; gw;wp bjhpahJ/ ,ut[ 9?1-2 kzp rk;gtj;jpd; nghJ ehd; kl;Lk; ,Ue;njd;/ ,jw;F khwhf rhl;rp brhy;ypapUg;gJ bgha;/@ He also filed statement that he committed the offence out of sudden provocation. A- 5 in Section 313 Cr.P.C. questioning stated that, @,ut[ 8 kzp rk;gtk; gw;wp bjhpahJ/ ,ut[ 9?1-2 kzp rk;gtj;jpd; nghJ ehd; kl;Lk; ,Ue;njd;/ ,jw;F khwhf rhl;rp brhy;ypapUg;gJ bgha;@/ All these prove that the accused were present at the respective place of occurrences. 8. Learned Government Advocate further submitted that the trial Court has considered all the above aspects in proper perspective and came to the correct conclusion and convicted A-4 for the offence under Section 304 (Part 2) IPC and A-1 to A-3 and A-5 for the offence under Section 304 (Part 2) read with 149 IPC. There is no infirmity or illegality in the conviction and sentence passed by the trial Court. Learned Government Advocate further submits that the decision of the Supreme Court reported in 2003 SCC (Cri) 1514 (cited supra) https://hcservices.ecourts.gov.in/hcservices/ relied on by the learned counsel for the appellants, will be helpful to the case of the prosecution, since the statement given by the accused at the time of questioning under Section 313 Cr.P.C. has been corroborated by the evidence of the prosecution witnesses. 9. Admittedly, on 15.1.2002, 8 O'clock incident has taken place. The case of the learned counsel for the appellants-accused is that at that time, only P.W.1 sustained injuries. A-3 has not caused such injuries at the time of occurrence at 9.30 p.m. near Vinayagar Temple. At this juncture, it is appropriate to consider the evidence of P.W.1 along with the evidence of P.Ws.10 and 11. 10. P.W.10 Sankar, in his evidence, in chief examination, has stated that A-3 Ramesh and two others came in a cycle and dashed against P.W.1. At that time, A-3 Ramesh assaulted P.W.1 only with hands. But there was no cross-examination on this point. There was no single suggestion posed to him that at that time only, P.W.1 sustained injuries. P.W.11 Madhanraj has stated in his evidence that A-3 dashed against P.W.1 and when P.W.1 questioned the same, A-3 assaulted him, but he has not sustained any injury. In this aspect, there was no cross examination. While considering the evidence of P.Ws.10 and 11 along with the evidence of P.W.1, I am of the opinion that the injury sustained by P.W.1 mentioned in Ex.P-3 accident register was not sustained by him at the time of 8 O' clock incident near bus stand. So, the argument advanced by learned counsel for the appellants-accused does not merit acceptance. In the abovesaid circumstances, I am of the opinion that P.W.1 has sustained injuries at 9.30 pm. incident near Vinayagar Temple. So, the presence of A-3 has been proved by the prosecution. 11. At this juncture, it is appropriate to consider as to whether the father of the deceased Nivas, namely P.W.6 Ayyakannu and P.W.7 Marikannu are the eye-witnesses and whether their evidence is reliable. The observation mahazar and the rough sketch show that their house is near proximity to the scene of occurrence. Moreover, at the time of 8 O'clock incident near bus stop, P.Ws.1 and 4 alone were present. Whey they were returning to their village in the opposite direction, P.W.1's brother, the deceased Nivas approached them and questioned him as to why they were very late. At the time only, he came to know about 8 O'clock incident and they sat in the verandah of Vinayagar Temple and chatting with each other. At that time only, the accused came with weapons. A-4 armed with beer bottle and others came there. A-4 in his questioning under Section 313 Cr.P.C., has stated that except himself, none of his brothers were present at the time of occurrence. Moreover, he was not aware and at that time, the wordy altercation took place, because, the three brothers, P.Ws.1, 4 and the deceased attempted to attack him and to save his life, he took the broken bottle found on the road side and stabbed on the deceased. https://hcservices.ecourts.gov.in/hcservices/ 12. At this juncture, it is appropriate on the part of the Court to decide whether the presence of the other accused is proved by the prosecution beyond reasonable doubt, which was accepted by the trial Court, and whether the same is correct or not. 13. As already stated, P.W.6 is the father of the deceased and P.W.7 also witnessed the occurrence. Their house is near proximity to the place of occurrence. Moreover, it is pertinent to note that the date of incident is "Maattu Pongal" day. The brothers have gone to send off their friend to the village, and they have not returned back. Naturally, the parents will stand in the Street and witness for the arrival of the sons. In such circumstances, considering the oral evidence of P.Ws.6 and 7, they withstand their cross examination and nothing was culled out and the way in which they withstood their cross examination is natural, cogent and trustworthy and hence, it is reliable. There is no reason for discarding the evidence of P.Ws.6 and 7. The trial Court also came to the conclusion that there is no reason for discarding the evidence of P.Ws.6 and 7. 14. It is the dictum of the Apex Court that even a single related eye-witness can be relied upon, provided the same must be natural, cogent and trustworthy. Applying the dictum of the Apex Court to the evidence of P.Ws.6 and 7, I do not find any reason for discarding the evidence of P.Ws.6 and 7. 15. At this juncture, it is appropriate to consider the statement of the accused in their questioning under Section 313 Cr.P.C., wherein they have stated that they did not know about the incident that took place at 8 O'clock. But the incident that took place at 9.30 p.m. has been stated by them to be false. At this juncture, learned counsel for the appellants would contend that since the accused have not taken part in the incident that took place at 9.30 p.m., they stated that it is false. It does not mean that their presence has been accepted by them. As already stated, while considering the evidence of P.Ws.10 and 11, it is seen that P.W.1 has not sustained injuries during 8 O'clock incident, but the injuries have been caused during 9.30 p.m. incident and P.W.2 Dr.Senguttuvan treated him and issued Ex.P-3 accident register, wherein it is stated that he was assaulted by one known person with wooden reaper at about 9.30 p.m. on 15.1.2002 near Vinayagar Temple. In Ex.P-3 accident register, it is further stated that the patient was conscious and he sustained contusion on the left elbow. P.W.1 Sathish alias Sathish Kumar was treated by P.W.2 Dr.Senguttuvan on 16.1.2002 at about 2.45 a.m., as seen from Ex.P-3 accident register. These facts have been corroborated by the evidence of P.W.2 Dr.Senguttuvan. Moreover, when the deceased Nivas was taken to hospital, his father P.W.6 Ayyakannu has intimated to Doctor that he was assaulted by known four persons with the bottle at about 9.30 p.m. near Vinayagar Temple. So, P.W.1's evidence has been corroborated by P.Ws.6 and 7 and it proves the https://hcservices.ecourts.gov.in/hcservices/ presence of the accused at the time of occurrence at 9.30 p.m. near Vinayagar Temple. 16. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellants-accused, reported in 2003 SCC (Cri) 1514 (cited supra), wherein, it is held as follows: "30. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant (Nishi Kant Jha v. State of Bihar 1969 (1) SCC 347 : AIR 1969 SC 422) by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction." 17. It is true that no conviction can be based on the basis of the questioning of the accused under Section 313 Cr.P.C. It cannot be made the sole basis for conviction. But, it can be used for corroboration. In the present case, P.Ws.1, 4, 6 and 7 have deposed before Court that they have witnessed the incident. As already stated, their evidence is trustworthy. Considering their evidence, it has been proved by the prosecution that all the five accused have participated in the commission of the offence. 18. Learned counsel for the appellants would contend that there is no evidence before Court to show that the accused formed unlawful assembly with a common object to commit the offence and hence, they shall not be convicted for the offence under Section 149 IPC. 19. While considering this argument, there is no evidence to show as to why the accused proceeded to the scene of occurrence. Admittedly, as per the evidence of P.Ws.1,4,6 and 7, it is clearly proved that the scene of occurrence is on their way to their house from the bus stand, whereas there is no evidence to show that the house of the appellants-accused is near proximity to the scene of occurrence and what prompted them to go to the scene of occurrence, has not been mentioned in the statement filed by the accused during the questioning under Section 313 Cr.P.C. In the statement filed by A-4, he has stated that when he was returning from Tanjore at 9 p.m., and when he proceeded near Vinayagar Temple, at that time, P.Ws.1 and 4 and the deceased Nivas questioned him as to where is Ramesh. It is https://hcservices.ecourts.gov.in/hcservices/ the case of the defence that at that time only, the alleged occurrence has taken place. A-3 also filed his statement that he was not present at the time of the incident that has taken place at about 9.30 p.m. near the Vinayagar Temple and he came to know it later and he has not assaulted P.W.1 by M.O.2 wooden reaper. As already stated, this Court has come to the conclusion that the injuries sustained by P.W.1 is only during the incident at 9.30 p.m. near Vinayagar Temple and he was assaulted by A-3 with M.O.2. That factum has been proved by the prosecution, which has clearly proved the presence of A-3 at the time of commission of the offence at about 9.30 p.m. near Vinayagar Temple. 20. In the abovesaid circumstances, the argument advanced by learned counsel for the appellants that the appellants have not formed unlawful assembly, is not acceptable. After the incident at 8 p.m., the accused have formed unlawful assembly with the motive and they went to the place of occurrence and committed the offence. That has been proved by the prosecution beyond reasonable doubt and that has been accepted by the trial Court and since A-1 to A-3 and A-5 have not possessed any deadly weapon, they were convicted for the offence under Section 147 IPC. A-4 stabbed the deceased with M.O.1 bottle. The case of the prosecution is that at the time when the accused reached the