IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 4-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.635 of 2009 1.Ramesh Kanna 2.Pattavetti Rajendran @ Rajendran 3.Thiyagu 4.Selvam 5.Natarajan .. Appellants/Accused 1 to 4 & 6 vs State represented by The Inspector of Police Thirumanur Police Station Perambalur District. .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal District and Sessions Judge, Perambalur, made in S.C.No.69 of 2007 dated 17.9.2009. For Appellants : Mr.V.Gopinath Senior Counsel for Mr.N.Ananda Kumar for A-1 Mr.Srinivasan for Mr.G.Anantharangan for A-2, A-3, A-4 & A-6 For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Perambalur, made in S.C.No.67 of 2007 whereby the appellants ranked as A-1 to A-4 and A-6 respectively, along with another ranked as A-2, stood charged, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-6 147 IPC Guilty under Sec.148 IPC 1 years Rigorous Imprisonment A-1 to A-6 341 IPC Guilty 1 month Simple Imprisonment A-1, A-3 & A-5 302 IPC Guilty under Sec.302 r/w 149 IPC Life imprisonment along with a fine of Rs.5000/- and default sentence A-2, A-4 & A-6 302 r/w 149 IPC Guilty under Sec.302 r/w 149 IPC Life imprisonment along with a fine of Rs.5000/- and default sentence A-2 & A-4 302 IPC Guilty under Sec.302 r/w 149 IPC Life imprisonment along with a fine of Rs.5000/- and default sentence A-1, A-3, A-5 & A-6 302 r/w 149 IPC Guilty under Sec.302 r/w 149 IPC Life imprisonment along with a fine of Rs.5000/- and default sentence 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a resident of Pudukottai Village. All the accused belonged to the same place. His brother Theoplus, the first deceased (D1) and one Jayaprakash, the second deceased (D2) also belonged to the same place. A-1 was carrying on the illicit arrack business in which all the other accused were employed under him. A few days prior to the occurrence, when D1 and D2 along with others went over there for the sale of illicit arrack, there was a quarrel between them, and at that time, they were warned by A-1 and others not to sell so. (b) On 26.5.2002 the date of occurrence, both the D1 and D2 along with one Albert went over there. At that time, when they were about to sell the illicit arrack, it was objected to by the accused party, and when the same was also questioned by both the deceased whether they could alone do. At that time, P.Ws.3 and 4 also came over there to get arrack from the deceased. Enraged over the same, it was A- 1, A-3 and A-5 who cut D1 with the aruvals in their hands and in the same transaction, D2 was cut by A-2 and A-4. This was witnessed by https://hcservices.ecourts.gov.in/hcservices/ P.Ws.1 to 3 and both the persons died at the spot instantaneously. The accused persons along with the aruvals ran away from the place of occurrence. (c) P.W.1 proceeded to the respondent police station where P.W.13 was the Sub Inspector of Police. At about 8.00 P.M., he gave Ex.P1 complaint, on the strength of which a case came to be registered in Crime No.299 of 2002 under Sections 147, 148, 341 and 302 of IPC and the printed FIR Ex.P9 along with the report, Ex.P1, was despatched to the Court. (d) P.W.14, the Inspector of Police, on intimation from the Sub Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P10. P.W.10, the Photographer, was called to take photographs of the place of occurrence and also the dead body which were also photographed, and accordingly they were marked as M.O.6 series. Then he conducted inquest on the dead body of D1 in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P11. Thereafter on the dead body of D2, he conducted inquest and prepared an inquest report, Ex.P12. Then both the dead bodies were sent to the Government Hospital for the purpose of autopsy. (e) P.W.11, the Doctor, attached to the Government Hospital conducted autopsy on the dead body of Theoplus and has given his opinion in the postmortem certificate, Ex.P7, that he died due to shock and haemorrhage due to injuries sustained. (f) Equally, the dead body of Jayaprakash was subjected to postmortem by P.W.12, the Doctor. The Doctor has also given opinion in the postmortem certificate, Ex.P8, that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. (g) Pending the investigation, the Investigator came to know that A-2, A-4, A-5 and A-6 surrendered before the Judicial Magistrate, Lalgudi, and an application was taken before the Court for police custody. Accordingly, police custody was ordered. During the police custody, their statements were recorded, and they were sent for judicial remand. (h) On 15.6.2002, A-1 was arrested by the Investigator. He came forward to give a confessional statement. The same was recorded in the presence of witnesses. The admissible part is marked as Ex.P6 pursuant to which he produced six aruvals which were marked as M.O.1 series. Then A-1 was sent for judicial remand. (i) Pending investigation, A-3 also surrendered before the Court. Then he was taken to police custody. He gave a confessional statement. The same was recorded, and he was sent for judicial remand. (j) The further investigation, pursuant to the directions given by the Superintendent of Police, was taken up by P.W.15, the Inspector of Police. He enquired the other witnesses and recorded their statements. All the material objects were sent for analysis. https://hcservices.ecourts.gov.in/hcservices/ The reports were received and placed before the Court. On completion of investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 15 exhibits and 12 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. One witness was examined on the side of the defence shown as D.W.1, and also one document was marked on their side. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of A-1, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, according to the prosecution, the occurrence has taken place at 4.00 P.M. on 26.5.2002, and the report was given by P.W.1 to P.W.13 at about 8.00 P.M.; that the report though claimed to have been given at 8.00 P.M., it has reached the Judicial Magistrate on the next morning; that even according to P.W.13, the Sub Inspector of Police, who registered the case, it was actually sent immediately; that no explanation was forthcoming from the Investigator how the delay was caused when the Judicial Magistrate's Court, Ariyalur, was actually situate just 15 kilometers from the place of occurrence; that ordinarily delay cannot by itself be a reason for giving acquittal; but at the same time, the delay assumes significance much in the instant case since P.W.14 the Investigator, has well admitted that he went to the spot on receipt of the information on the very night, and he has been staying over there; but, he has not investigated the case; that this would clearly indicate that the FIR has not come into existence as put forth by the prosecution; that P.W.6 has categorically stated that the police came to the spot at 6.00 P.M.; that it also casts a doubt whether Ex.P1 is the first information given to the police; and that apart from that, in the instant case, though five witnesses were examined as eyewitnesses, they are all either related or intimated to each other. 5.Added further the learned Senior Counsel that the charge framed against the accused is that A-1, A-3 and A-5 attacked D1 and A-2 and A-4 attacked D2; but, the evidence that was adduced before the Court has got all discrepancies possible; that as regards P.W.1, he has turned hostile and hence his evidence was not useful to the prosecution; that as far as P.W.2 was concerned, he has stated that D1 was attacked by A-1, A-3 and A-5, and D2 was attacked by A-2 and A-4; but, he does not implicate A-6 or does not mention any overt act in respect of A-6; that as far as P.W.3 is concerned, he has stated that A-1 has cut D1, and he has not spoken anything about any other accused or the overt acts which are attributed to any one of the accused; that as far as A-2 was concerned, P.W.4 has stated that A-1, A-3 and A-5 cut D1, and as far as D2 is concerned, he has stated only https://hcservices.ecourts.gov.in/hcservices/ A-4, but not implicated A-2; that as far as P.W.5's evidence is concerned, he has stated that D1 was cut by A-5 and he has not implicated the other two accused; that as far as D2 is concerned, according to him, it was done by A-2, and he has not spoken anything about A-4; that all these would clearly indicate that though these witnesses have been examined in order to speak about the overt acts, and that too when an occurrence has taken place at 4.00 P.M. i.e., day time, naturally one would expect them to narrate the incident properly; but, those discrepancies what are found in the evidence are not only contra to the charges framed, but also the prosecution was unable to substantiate its case, and hence all would go to show that they could not have seen the occurrence at all. 6.It is further urged by the learned Senior Counsel that Insofar as A-6, his name does not find place in the FIR; that according to the prosecution, when A-1 was arrested, he gave a confessional statement and produced six aruvals; that had it been true that A-6 was actually present at the place of occurrence, his name should have been mentioned in the FIR; that the non-mention of the name of A-6 in the FIR would clearly indicate that A-6 could not have been present in the place of occurrence; and that all would go to show that the prosecution has miserably failed to prove its case. 7.Added further the learned Senior Counsel in the second line of argument that there was a rivalry between the accused on the one side and both the deceased on the other as to the sale of illicit arrack; that even on the date of occurrence, there was a quarrel when D1 and D2 were about to sell arrack to P.Ws.3 and 4, and in that process, the occurrence has taken place; that under the circumstances, it cannot be stated to be intentional or premeditated; and that if the Court comes to the conclusion that the prosecution has proved the case insofar as the overt acts attributed to the accused, the Court has to consider this aspect also before rendering its judgment. 8.Mr.Srinivasan, learned Counsel appearing for the other appellants adopted the above arguments. 9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that in an incident that had taken place at 4.30 P.M. on 26.5.2002 both D1 Theoplus and D2 Jayaprakash were done to death. Following the inquest made by P.W.14, the Investigator, the dead body was subjected to postmortem by P.W.11 and P.W.12, the Doctors, respectively who have given their opinion that they died out of shock and haemorrhage due to the injuries sustained, and also they have spoken about the same as witnesses before the Court and apart from that, the contents of the postmortem certificates were to that effect. That apart, the appellants did not raise any controversy regarding the fact that both the deceased died out of homicidal violence. Under the circumstances, no impediment was felt by the trial Court and it has recorded the same accordingly, which has got to be affirmed by this Court. https://hcservices.ecourts.gov.in/hcservices/ 11.Insofar as the charges levelled against the appellants, the prosecution has marched five witnesses. Out of these five witnesses, P.W.1 though he was the author of Ex.P1, the report, has deposed that he did not know anything about the overt acts of the accused or incident. Under the circumstances, the evidence of P.W.1 was not useful or available to the prosecution. But, to the extent that the criminal law was set in motion, his evidence could be accepted since according to P.W.13, the Sub Inspector of Police, P.W.1 came to the police station and gave Ex.P1, the complaint, on the strength of which the case came to be registered under the above provisions of law. Apart from that, the signature of P.W.1 in Ex.P1 is also an admitted fact. Under the circumstances, to the extent that the criminal law was set in motion, the evidence of P.W.1 can be acted upon. 12.As far as the overt acts of the accused are concerned, the prosecution relied on the evidence of P.Ws.2 to 5. At the outset, it has got to be pointed out that as far as A-6 is concerned, his name does not find place in the FIR. Though the prosecution claimed that at the time of arrest, A-1 gave a confessional statement voluntarily and P.W.14, the Investigator, has recorded the same in the presence of witnesses and recovered six aruvals which are marked as M.O.1 series, it is pertinent to point out that so long as the name of A-6 is not mentioned or any overt acts are averred in Ex.P1, the report, no question of inferring his presence at the place of occurrence would arise. Hence, as far as A-6 is concerned, this Court is unable to notice any evidence in the case, and hence the presence of A-6 at the time of occurrence is ruled out, and he has got to be acquitted of the charges levelled against him. 13.Insofar as the other accused are concerned, as rightly pointed out by the learned Senior Counsel for the appellants that there are certain discrepancies in the evidence of P.Ws.2 to 5. As far as the overt acts attributed to them, it is not in controversy that D1 Theoplus and D2 Jayaprakash were cut and death was caused instantaneously. At that time, number of persons who are the eyewitnesses before the Court and also the number of accused who were arrayed, were all present at the place of occurrence, and if to be so, at the time of occurrence, it is quite natural when two persons are being attacked by number of persons with deadly weapons like aruvals, one cannot expect them to meticulously note what are all the overt acts attributed to them. In the case on hand, the fact that the five persons namely A-1 to A-5, were armed with aruvals would clearly indicate that they have actually constituted an unlawful assembly with the common intention of killing those persons, and thus they have acted so. In view of their presence with deadly weapons and causing death of two persons, the provisions of Sec.149 of IPC would be attracted. In the instant case, all the witnesses have clearly spoken to the fact that all were wielding aruvals and cut D1 and D2. The discrepancies brought to the notice of the Court in no way would affect the prosecution case and did not take away the truth of the case. Hence there is no impediment in recording a finding that A-1 to A-5 have constituted an unlawful assembly having deadly weapons and attacked D1 and D2 and caused their death instantaneously. https://hcservices.ecourts.gov.in/hcservices/ 14.Now, the contention put forth by the learned Senior Counsel for the appellants that there was a delay in despatching the FIR to the Court cannot be a reason to disbelieve the prosecution case for the reasons that P.W.1 has admitted that he went to the police station and gave the report. P.W.13, the Sub Inspector of Police, has deposed that pursuant to Ex.P1, the report, he registered the case. P.W.14, the Investigator, has admitted that he has gone to the spot, and since it was night hours, he did not do investigation. Now, at this juncture, it is pertinent to point out that P.W.14 has stated that only on receipt of the FIR, he went to the spot for investigation. Thus, it is quite clear that Ex.P1 and the FIR have come into existence on the night of 26.5.2002. Mere delay in FIR reaching the Court and that too in the morning hours, cannot be a reason to disbelieve the prosecution case. Except this, this Court is unable to notice any merit in the contentions put forth by the appellants' side as far as the factual matrix is concerned. 15.So far as the overt acts attributed to A-1 to A-5 are concerned, it is a clear case where the Court has to record that A-1 to A-5 constituted an unlawful assembly, and they actually attacked D1 and D2 as spoken to by the prosecution witnesses and caused their death instantaneously. As far as A-6 is concerned, as stated above, he has got to be acquitted of the charges levelled against him. 16.As regards the second line of argument, this Court is able to see force in the same. In the instant case, even as per the prosecution case, there was a rivalry as to the sale of illicit arrack between D1 and D2 on the one side and A-1 and his employees namely A-2 to A-5, on the other side. A few days prior to the date of occurrence, D1 and D2 made their attempt to sell illicit arrack to P.Ws.3 and 4, and at that time, it was objected to by these accused, and there was a wordy altercation. At that time, A-1 to A-5 acted so. Thus it would be quite evident that the act of the accused at that time, was neither intentional nor premeditated, but due to the wordy altercation. Hence the act of A-1 to A-5 would not attract the penal provision of murder. Now, the learned Additional Public Prosecutor brought to the notice of the Court that it is a case of double murder. It is true, but at the same time, the Court has to consider though it is a case of double murder, under what circumstances the occurrence has taken place has got to be looked into. In the instant case, there was a wordy altercation following which the occurrence has taken place even according to the prosecution case. Under the circumstances, the act of A-1 to A-5 cannot be termed as murder, but be a culpable homicide not amounting to murder, and they have got to be found guilty under Sec.304 (Part I) read with 149 of IPC (two counts) and awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice. 17.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on A-1 to A-5 under Sec.302 read with 149 of IPC (two counts) are set aside, and instead, they are convicted under Sec.304 (Part I) read with 149 of IPC (two counts) and are directed to suffer seven years Rigorous Imprisonment. The sentence already undergone by them shall be given set off. The fine imposed by the trial Court will hold good. As regards the other https://hcservices.ecourts.gov.in/hcservices/ charges, the judgment of the trial Court in respect of A-1 to A-5 is confirmed. All the sentences imposed on A-1 to A-5 are ordered to run concurrently. 18.As regards A-6, the judgment of the trial Court is set aside, and he is acquitted of all the charges levelled against him. The fine amount if any paid by him will be refunded to him. 19.In the result, this criminal appeal is partly allowed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv TO 1. The Principal District and Sessions Judge, Perambalur 2. The Inspector of Police, Thirumanur Police Station, Perambalur District. 3. The Judicial Magistrate, Lalgudi 4. The Chief Judicial Magistrate, Perambalur District. 5. The Public Prosecutor, High Court, Madras. 6. The Superintendent, Central Prison, Tiruchirappalli 7. The Director General of Police, Chennai 8. The District Collector, Perambalur District. + 1 cc to Mr.N.Ananda Kumar, Advocate, Sr 15060 CRL.A.No.635 of 2009 VSV (CO) RH (12.3.10) https://hcservices.ecourts.gov.in/hcservices/