Bail Slip The Appellants/Accused No.1 to 8, namely 1.Jayaraman, 2.Stalin, 3.Lenin, 4.Sekar, 5.Sundaresan, 6.Srinivasan, 7.Arumugam, 8.Kalaiselvi were directed to be released on bail as per the order of this court dated 18.12.2006 made in Criminal Miscellaneous Petition No.1 of 2006 in Criminal appeal No.1072 of 2006 on the file of the court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.1072 OF 2006 1.Jayaraman 2.Stalin 3.Lenin 4.Sekar 5.Sundaresan 6.Srinivasan 7.Arumugam 8.Kalaiselvi .. Appellants/Accused 1 to 8 Vs. The State rep. by its Inspector of Police, B-3, Kanchi Taluk Police Station, Kanchipuram District Crime No.79 of 2003 .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Kanchipuram made in S.C.No.91 of 2005, dated 11.12.2006. For Appellants : Mr.Shanmugasundaram, SC for Mr.I.Alvin For Respondent : Mr.P.Kumaresan, APP https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Chengalpattu made in S.C.No.91 of 2005, whereby these appellants stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDINGS SENTENCE A-1 to A-8 S.148 IPC Guilty 1 year RI A-1 to A-8 S.341 IPC Guilty 1 month RI A-1 S.326 IPC Not Guilty A-2 to A-8 S.S.326 r/w S.149 IPC Not Guilty A-2 and A-3 S.324 IPC Guilty 1 year RI each and to pay a fine of Rs.1000/-, i/d to undergo 3 months RI A-1,A-4,A-5, A- 6,A-7 and A-8 S.324 r/w S.149 IPC Guilty -do- A-1 to A-3, A- 5 and A-6 S.302 IPC Guilty Life imprisonment each and to pay a fine of Rs.1000/- each, i/d to undergo one year RI. A-4,A-7 and A- 8 S.302 r/w S.149 IPC Guilty -do- A-1 S.326 IPC Guilty 3 years RI and to pay a fine of Rs.1000/-, i/d to undergo 3 months RI A-2 to A-8 S.326 r/w S.149 IPC Guilty -do- A-2,A-4 and A- 6 S.325 IPC Not Guilty A-1,A-3,A-5, A- 7 and A-8 S.325 r/w S.149 IPC Not Guilty A-7 and A-8 S.323 IPC Not guity A-1 to A-6 S.323 r/w S.149 IPC Not guilty All the sentences were ordered to run concurrently. 2.Necessary facts for the disposal of this appeal can be stated as follows: a)P.ws.1,3 and 4 are sons of deceased Duraisamy. A-7 is the brother of the deceased. A-1, A-4 and A-5 are sons of A-7. A-2 and A-3 are the sons of A-1. A-8 is the wife of A-4. The family of the deceased and A- 7 had common channel for watering their lands and as per the understanding, each family was to use it for an alternative day. There was frequent quarrel and panchayat was used to be convened and used to https://hcservices.ecourts.gov.in/hcservices/ be pacified. On the evening of 22.1.2003 when P.W.4 was in the field, there was quarrel between P.W.4 and A-4 and it was pacified. On 23.1.2003, when P.W.1, who was in the field, was returning to home, all the eight accused along with two juveniles, picked up quarrel and A-1 armed with iron pipe and A-2 to A-8 with sticks restrained P.W.1 wrongfully. The accused have attacked P.W.1. Immediately, the deceased, the father of P.W.1, went to his rescue. A-1 attacked him with iron pipe on his head and the other accused also attacked him with stick. In that process, he got severely injured. P.Ws.3 and 4, on seeing this, intervened and they were also attacked by the accused. On seeing the villagers, all the accused ran away from the place of occurrence by throwing the iron pipe and wooden logs. b)All the injured were taken to the Government Hospital, Kancheepuram. P.W.2, the Doctor attached to the said hospital, examined P.W.3, P.W.1, Duraisamy and also P.W.4. Exs.P.3, P.2, P.4 and P.5 were the accident registers issued respectively. Both the deceased and P.W.3 were taken to the Government General Hospital, Chennai, where P.W.10, the Doctor examined Duraisamy and declared him dead. Ex.P.17 is the accident register. P.W.10 also medically examined P.W.3 and has issued Ex.P.18, the accident register. c)On receiving the information on 23.1.2003 at about 9.00 a.m., P.W.11, the Sub Inspector of Police, went to the Government Hospital, Kancheepuram and recorded the statement of P.W.1, which was marked as Ex.P.1. On the strength of the same, he registered the case in Crime No.79 of 2003 under Sections 147, 148, 341, 323, 324 and 307 IPC. Ex.P.19, the FIR was despatched to the Court. d)P.W.13, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation and he received an information that the deceased Duraisamy died in the hospital and hence he converted the case into Section 302 I.P.C. Ex.P.21, the alteration report was sent to the court. P.W.13 went to the Government Hospital, Kancheepuram and recorded the statement of the witnesses. Then, he proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.9, the observation mahazar and Ex.P.22, the rough sketch. He also recovered bloodstained earth, sample earth and the sticks M.O.2 (series) under a cover of mahazar. A-8 also gave a complaint to P.W.11, on the strength of which a case in Crime No.80 of 2003 came to be registered. This was also taken up for investigation along with the present case by P.W.13. He went to the Government General Hospital, Chennai and conducted inquest on the dead body of Duraisamy in the presence of the witnesses and panchayatdars and prepared Ex.P.23, the inquest report. Then, the dead body was sent for the purpose of autopsy. e)P.W.7, the Doctor attached to the Chennai Medical College Hospital, on receipt of the requisition, has conducted post-mortem on the dead body of Duraisamy and has issued Ex.P.12, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the head injury. f)Pending investigation, the Investigating Officer has arrested A- 1, A-2, A-3, A-4, A-6, A-7 and A-8 on 26.01.2003. The first accused came forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses. Ex.P.15 is the admissible part of the https://hcservices.ecourts.gov.in/hcservices/ confessional statement of A-1. Pursuant to the same, A-1 produced iron pipe and sticks, which were recovered under a cover of mahazar. The accused were sent for judicial remand. The Investigator came to know that A-5 surrendered before the Judicial Magistrate, Arakkonam. P.W.13 examined the witnesses and recorded their statements. All the material objects were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.26, the Chemical Analyst's report, Exs.P.27 and P.28, the Serologist's reports. On completion of the investigation, the Investigator has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 13 witnesses and also relied on 32 exhibits and 7 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined, but eight documents were marked. The trial court after hearing the arguments advanced on either side, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as stated above and awarded punishments as referred to above and the case against the juveniles was split up and sent for trial by the competent authority. Hence this appeal has arisen at the instance of the appellants herein. 4.Advancing arguments on behalf of the appellants, the learned Senior Counsel would submit that in the instant case, the prosecution has miserably failed to prove its case by placing necessary materials enabling the court to find out the truth of the case; that P.Ws.1,3 and 4 were examined as eyewitnesses; that in the instant case, in the same occurrence, A-4, A-5, A-7 and A-8 were also injured; that the accident register copies in respect of those accused were not produced by the prosecution; that when P.Ws.1,3 and 4 were examined, at the time of cross examination, they thoroughly denied that any one of the accused persons was actually injured; that all the injuries found on A-4, A-5 and A-8 were on vital organs; that the injuries sustained by those accused were evidenced by Exs.D.4 to D.7, accident registers and thus, the non explanation of the injuries sustained by those accused would be fatal to the prosecution case and hence the evidence put forth by P.Ws.1,3 and 4 should have been rejected. 5.Added further the learned Senior counsel that in the instant case, the investigating agency would claim that the case was registered on the very day at about 9.00 a.m. and the F.I.R. has come into existence; that the inquest was actually conducted on the next day, i.e. on 24.1.2003, but when the inquest report was looked into, the names of A-1, A-2 and A-3 were found as if they have participated in the crime, but the names of the other accused were not found; that it would be quite clear that either what was found in the FIR should have been prosecution case or the FIR which came into existence earlier was false; that further in the observation mahazar and the rough sketch prepared by the investigator, the place of occurrence was shown as street, but in the earlier document what has come into existence and what was given to P.W.2, the Doctor, it has been stated that the place of occurrence was the field and that the place of occurrence is found to be different. https://hcservices.ecourts.gov.in/hcservices/ 6.The learned Senior Counsel would further add that in the instant case, according to the post-mortem Doctor, the injury that was found on the head of the deceased was fatal and according to the prosecution, it was caused by A-1 when he attacked the deceased with the iron rod; that it would be quite clear that even according to the eyewitnesses P.Ws.1,3 and 4, all the accused immediately left the place of occurrence on seeing the crowd and threw away all the weapons, namely sticks and iron pipe; that if to be so, they should have been collected by the Investigating Officer from the place of occurrence when he made an observation; that on the contrary, it is claimed by the prosecution as if A-1, pursuant to the confession statement, produced M.O.1, iron rod and thus, it casts a doubt whether it has been actually recovered pursuant to the confession of A-1; that though M.O.1, iron pipe was subjected to scientific test, it did not contain human blood and thus, all put together would go to show that the prosecution has miserably failed to place all the materials and relevant facts before the court and has also suppressed the facts and it did not enable the trial court to come to a correct conclusion and under these circumstances, the benefit of doubt should be given to the accused/appellants and hence they are entitled for acquittal. 7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 8.It is not in controversy that one Duraisamy, the father of P.Ws,1,3 and 4, following the incident that took place on 23.1.2003, died at the Government General Hospital, Chennai on the same day. Following the inquest made by the investigating officer and the preparation of the inquest report, the dead body was subjected to post- mortem by P.W.7, the Doctor, who has issued post-mortem certificate opining that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained in particular the injury that was found on head and its corresponding internal injuries. The fact that the deceased died out of homicidal violence was not the subject matter of controversy before the trial court and hence it has got to be factually recorded so. 9.In the instant case, the prosecution, in order to substantiate the entire case, relied on the evidence of P.Ws.1,3 and 4, as occurrence witnesses. They are not only occurrence witnesses, but also injured. From their evidence, it could be seen that the lands of A-7, who is the brother of the deceased and also the deceased are situated adjacent to each other. They had a common channel and were watering their lands on an alternative days and in respect of the same, they had quarrel. On 22.1.2003, there was actually quarrel between A-4 and P.W.4 and the same was pacified. On the date of occurrence, i.e. on 23.1.2003, when P.W.1 was actually on his way from the land, he was intercepted by the accused persons. A-1 was having iron pipe and the other accused were having sticks. They first attacked P.W.1. At this juncture, the deceased intervened and he was also attacked, following which P.Ws.3 and 4 went to their rescue and they were also attacked by the accused persons. In the instant case, so far as P.Ws.1,3 and 4 are concerned, they were actually injured in the occurrence. It is a settled proposition of law that in a given case like this when the prosecution witnesses happened to be the injured witnesses, their evidence should not be discarded https://hcservices.ecourts.gov.in/hcservices/ unless or until a strong circumstance is noticed. 10.The genesis of the occurrence, in the instant case, is very clear from the evidence of prosecution witnesses. When P.W.1 was proceeding after watering the land, he was actually intercepted and was attacked by the accused persons. In that process, it could be seen that, A-4, A-5, A-7 and A-8 were also injured. It is true, when P.W.1 has given the complaint under Ex.P.1, a case came to be registered by P.W.11 in crime No.79 of 2003. Equally, at the instance of A-8, a case came to be registered in Crime No.80 of 2003. A perusal of those two F.I.Rs. would indicate that the transaction is one and the same. Hence the accused persons at no stretch of imagination could deny their availability at the time of occurrence. In the said occurrence, P.Ws.1,3 and 4 were actually injured and equally, A-4, A-5, A-7 and A-8 were also injured. The defence has brought forth Exs.D-4 to D.7, the accident registers, for A-5, A-8, A-7 and A-4 respectively; that it has got to be pointed out that nowhere in the F.I.R. in crime No.79 of 2003 it reveals that any one of the accused was injured at the time of occurrence; that even at the time of cross examination, P.Ws.1,3 and 4 have denied that any one of the accused was injured, but as could be evidenced, it would be quite clear that four accused persons were injured. Thus, it would be quite clear that after the commencement of occurrence, both the parties have attacked each other. Hence it can be stated that they were attacking each other and thus, injuries have been caused and therefore, it cannot be stated that there was an unlawful assembly or there was common object and thus, the case of the prosecution in this regard has got to be rejected. 11.From the available evidence, it could be seen that at the time of occurrence, when P.W.1 was attacked, it was his father, namely the deceased, intervened and it was A-1 who has attacked him with iron pipe, which under the circumstances was uncalled for. When P.W.1 the son was attacked, naturally his father, namely the deceased, went for his rescue. It is not the case of the defence anywhere that the deceased was armed with anything, but he has only intervened, which was one natural under the given situation. But, A-1 attacked him with iron pipe on his head. According to the post-mortem Doctor, the injury on head and its corresponding injury was the fatal one and it has caused his death. 12.Now the contention put forth by the learned counsel for the appellant is that the inquest report was prepared by the Investigating Officer next day, that was on 24.1.2003, while the occurrence has taken place on 23.1.2003. The names of A-1, A-2 and A-3 alone were found in the inquest report, but the names of other accused were not found and hence it is highly doubtful whether this document has come into existence as put forth by the prosecution. This cannot be accepted for the simple reason that a case was actually registered at the instance of P.W.1 in Crime No.79 of 2003. According to P.W.11, he recorded the statement from P.W.1 at about 9.00 a.m. and registered the case at about 10.30 a.m. in the police station. Equally, crime No.80 of 2003 was also registered at the instance of A-8 on the very day at about 11.00 a.m. Thus, it would clearly indicate that Crime No.79 of 2003 has been registered at 10.30 a.m. and Crime No.80 of 2003 has been registered at 11.00 a.m. Thus, the registration of the case and also the FIR reached the court would clearly indicate that those documents have come into existence as put forth by the prosecution. Merely because of non https://hcservices.ecourts.gov.in/hcservices/ mentioning of the names of other accused persons in the inquest report, which has come into existence on the next day, namely on 24.1.2003, it cannot be stated that the prosecution has come with the false version. 13.Apart from that, so far as the recovery of iron pipe was concerned, this court is unable to countenance with the contention put forth by the learned Senior counsel. It is true, according to the witnesses, the accused threw the weapons on the ground and left the place of occurrence, but a reading of the FIR would clearly indicate that the said fact was not mentioned. Thus, it would be quite clear that there is specific evidence to indicate that on arrest of A-1, M.O.1, iron pipe was recovered and it is also placed. It is not the case of the investigator that he recovered M.O.1 from the place of occurrence, but it was recovered from A-1 pursuant to his confessional statement. This M.O.1, iron pipe was subjected to chemical analysis. The chemical analysis report would indicate that M.O.1 and the bloodstained earth which was recovered from the place of occurrence, contained the same blood group. Thus, the claim of the prosecution that it was recovered pursuant to the confessional statement made by A-1 was to be accepted. Hence in the instance case, on marshalling the entire evidence, the court has to record a finding that A-1 has got to be dealt with of his individual act, which in the considered opinion of the court, was not at all warranted under the given circumstances and A-1 has caused the death of the deceased. But, at the same time, it was neither intentional nor premeditated. When the deceased intervened, A-1 has attacked him on his head. But, he should have got the knowledge that by that attack, the death was likely to be ensued. Under these circumstances, the act of A-1 would attract the penal provision of Section 304(II) IPC and awarding punishment of five years R.I. would meet the ends of justice. So far as the other accused are concerned, the case of the prosecution has got to be rejected. 14.Accordingly, the conviction and sentence imposed on the first appellant/A-1 under Section 302 IPC are modified and instead A-1 is convicted under Section 304(II) IPC and sentenced to undergo five years R.I. The conviction and sentence imposed on A-1 under Section 326 IPC are confirmed. The period of sentence already undergone by A-1 is ordered to be given set off. The sentences are ordered to run concurrently. The fine amount and default sentence imposed on A-1 by the trial court under Section 302 IPC will hold good. The conviction and sentence imposed on A-1 in respect of the other offences and also the conviction and sentence imposed on the appellants 2 to 8/A-2 to A-8 are set aside and they are acquitted of the said charges levelled against them. It is reported that A-1 is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. The bail bonds executed by A-2 to A-8 shall stand terminated and the fine amounts if any paid by them shall be refunded to them. Accordingly, this appeal is partly allowed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ vvk To 1.The Judicial Magistrate No.II, Kanchipuram. 2.-do-through The Chief Judicial Magistrate, Chengalpattu 3.The Principal Sessions Judge, Chengalpattu. 4.The District Collector, Chengalpattu District. 5.The Director General of Police, Mylapore, Chennai-4. 6.The Superintendent,Central Prison,Chennai. 7.The Superintendent,Special Prison,Vellore. 8.The Inspector of Police, B-3, Kanchi Taluk Police Station, Kanchipuram District. 9.The Additional Public Prosecutor, High Court, Madras. Copy to The Section Officer, Criminal Section, High Court,Chennai - 104. 6 cc to Mr.S.Sugendran, Advocate,Sr.No.64971 CRL.A.NO.1072 OF 2006 VM(CO) EM/4.12.08 https://hcservices.ecourts.gov.in/hcservices/