Bail Slip The Appellant/Accused No.3 viz.,Seenu @ Seenivasan was directed to be released on bail as per the order of this Court dt.17.6.2009 in Crl.M.P.2/2009 in Crl.A.163/2009. The Appellant/Accused No.2 viz, Senthil was directed to be released on bail as per the order of this court, dt.10.7.2009 in Crl.M.P.No.3/2009 in Crl.A.163/2009. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.163 of 2009 1. Senthil 2. Seenu @ Seenivasan .. Appellants Vs. State of Tamil Nadu, rep. by Inspector of Police, Villupuram Town Police Station, Villupuram District, Crime No.459/2004 .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge, Villupuram made in S.C.No.27 of 2006 dated 30.3.2009 For Appellant : Mr.M.Devaraj For Respondent : Mr.Babu Muthu Meeran, A.P.P. https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Villupuram, made in S.C.No.27 of 2006 whereby the appellants two in number, A2 and A3, stood charged along with A1 who died pending trial, tried and found guilty of offence under Sections 302 r/w 34 and 324 I.P.C. and awarded life imprisonment and two years rigorous imprisonment respectively. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.2 is the resident of Muthumariamman Temple street, Villupuram. The accused, the deceased Vijay and P.W.2 were all friends. P.W.2 was a painter by profession. P.W.1 is the paternal uncle of the deceased. On 1.4.2004 at 8.00 p.m. the accused took soup in a public place, at that time, P.W.2 accompanied by the deceased went there and there was wordy altercation between the accused and the deceased. The persons standing nearby pacified the situation and all left the place. On 2.4.2004, when they went to take tea, the accused quarrelled with the deceased. Then, they left the place. On 3.4.2004 at 11.00 p.m. when deceased took P.W.2 to his paternal uncle's house for taking dinner, at that time, all the accused were standing with deadly weapons. A1 was armed with veetch aruval, while A2 and A3 were armed with knife. They threatened the deceased. P.W.2 tried to take the deceased inside the house. At that time, A1 attacked the deceased on his head. When the deceased tried to prevent the same, A1 attacked him on his left hand. Immediately, P.W.2 went to the rescue. A3 attacked him and stabbed him on his flank, while A2 attacked him on his shoulder. On hearing the distress cry, P.Ws.1 and 3 went near the accused. The accused fled away from the place of occurrence. (b) P.W.2 and the severely injured Vijay were taken to Villupuram Government Hospital. After giving first aid, they were taken to Jipmer Hospital, Pondicherry where both P.W.2 and the deceased were given treatment. P.W.10 doctor attached to the hospital gave treatment and the accident register was marked as Ex.P10 and thereafter, despite treatment Vijay died at 5 ' o' clock. (c) P.W.1 proceeded to the respondent police station and gave a complaint Ex.P1 to P.W.11 Inspector of Police at about 7.45 a.m. On the strength of Ex.P1 report, a case came to be registered in Crime No.459/2004 under section 324 and 302 I.P.C. The express F.I.R. Ex.P11 was despatched to Court. https://hcservices.ecourts.gov.in/hcservices/ (d) P.W.11, Investigating Officer took up investigation. He proceeded to the spot, made in inspection and prepared Ex.P4 observation and drew a rough sketch Ex.P12 in the presence of witnesses. He recovered the material objects from the place of occurrence including the blood stained earth and sample earth under a cover of mahazar. He conducted inquest on the dead body of the deceased in the presence of witnesses and prepared inquest report Ex.P13. Thereafter, the dead body was subjected to post mortem. (e) On receipt of the requisition, P.W.8 doctor attached to the Government Hospital, Pondicherry conducted autopsy on the dead body of the deceased and gave his opinion through the content of post mortem certificate Ex.P.8 and also as a witness before the Court that the deceased would appear to have died of head injuries. Pending investigation, A2 and A3 were arrested on 5.4.2004. A2 came forward to give confessional statement and the admissible part of the same is marked as Ex.P2 and pursuant to which he produced M.O.1 Veetch aruval and M.O.2 knife and both the accused were sent for judicial remand. When A1 was arrested, he gave confessional statement and the same was recorded. He also was sent for judicial remand. (f) P.W.10 doctor gave treatment to P.W.2 and the accident register Ex.P.10 was produced before Court. All the material objects recovered from the place, from the dead body and weapons of crime recovered from the accused pursuant to their confessional statement were subjected to chemical analysis. Pending investigation, it was found that the deceased belonged to scheduled caste community. Under such circumstances, the case was handed over the Deputy Superintendent of Police, Villupuram. (g) P.W.12, Deputy Superintendent of Police, took up further investigation. He obtained the community certificate from the concerned Tahsildar P.W.9 in respect of the deceased and community certificate for the accused were also obtained. On completion of the investigation, the investigating officer filed a final report. (h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 18 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused were question under section 313 Cr.P.C as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No defence witnesses were examined. Pending trial, A1 died. Hence, A1 stood abated and the trial Court proceeded as against A2 and A3 alone. The Court heard the arguments advanced on either side and took the view that the prosecution has proved its case beyond reasonable and found the accused guilty under section 302 r/w 34 and 324 I.P.C https://hcservices.ecourts.gov.in/hcservices/ and awarded life imprisonment and two years rigorous imprisonment respectively. Hence, this appeal at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, the learned counsel would submit, in the instant case, the prosecution miserably failed to prove its case. The specific case of the prosecution is that at the time of occurrence, all the three accused were armed with deadly weapons and it was A1 who attached the deceased on his head and the prosecution did not attribute any overt act either on A2 or A3 who are the appellants herein. Apart from that, the eye witnesses have been examined. Insofar as P.W.2 who was examined as injured witness is concerned, according to him, it was A3 who stabbed him with knife on the flank and A2 attacked him on the shoulder. The charges framed by the trial court are otherwise. 4. Added further learned counsel, in the instant case P.W.1 & 3 are concerned they would not seen the occurrence at all. After hearing the noise, they have come out of the house. Hence, they could not have witnessed the occurrence at all. According to the prosecution, the occurrence had taken place at 11.45 p.m. On 3.4.2004 and P.W. 2 was taken to Villupuram, but no case was registered till 7.45 a.m., the next day. There was inordinate delay in registration of the case which remains unexplained. Hence, it is fatal to the prosecution case. 5. Added further learned counsel, in the instant case, the trial Court has found A2 and A3 guilty for sharing the common intention along with A1. There is nothing to infer or indicate that they entertained common intention along with A1. Further, insofar as section 324 IPC was concerned, the the accused could not be found guilty under section 324 IPC. It is doubtful whether P.W.2 could have been seen the occurrence at all. Under such circumstances, the prosecution has miserably failed to prove its case. 6. Added further learned counsel, at the time of occurrence, a quarrel was going on between the deceased and the appellants which was not considered by the trial Court. Under such circumstances, the trial Court has taken an erroneous view and has awarded life imprisonment. Hence, the appellants are entitled for acquittal. 7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8. It is not in controversy that one Vijay, following the incident that had taken place at 11.45 p.m. on 3.4.2004 was initially taken to Villupuram Government Hospital and thereafter, he was taken to Jipmer Hospital, Pondicherry, where despite treatment, https://hcservices.ecourts.gov.in/hcservices/ he died at 5.00 a.m. Following the registration of the case under section 302 IPC, the Inspector of Police attached to the respondent police Station, conducted inquest and the dead body was subjected to post mortem. P.W.8 doctor attached to Government Hospital, Pondicherry, conducted autopsy and gave is opinion through the contents of the Ex.P8 post mortem certificate and also as a witness before the Court that the deceased would appear to have died of head injuries. The deceased died out of homicidal violence was never disputed by the appellants before the trial court or before this Court. Hence, no impediment is felt by this Court in recording so. 9. In order to substantiate the charges levelled against the appellants/accused and also A1, the prosecution marched P.W.2 not only as eye witness, but also as injured witness and P.Ws. 1 and 3 were also examined as eye witnesses to the occurrence. It is settled proposition of law that when an eye witness happens to be an injured witness, his evidence cannot be discharged unless and until strong circumstances are noticed or reasons are brought about. In the instant case, P.W.2 has narrated the entire incident. The occurrence has taken place at 11.45 p.m. on 3.4.2004. It is pertinent to point out that the occurrence has taken place in front of the house of P.W.1, the paternal uncle of the deceased. When P.W.2 and the deceased were proceeding to P.W.1's house, they found A1 to A3 armed with dead weapons, A1 with veetch aruval and A2 and A3 with knife. It was A1 who first attacked the deceased on the head with vetch aruval. When P.W.2 went to the rescue, at that time, A2 and A3 attacked P.W.2 and caused injuries. It is true insofar as the evidence of P.W.2 is concerned, the Court is able to notice some minor discrepancies. But at the same time, there is no doubt in the mind of the Court that both A2 and A3 armed with knife, attacked P.W.2. P.W.2 was examined by the doctor, P.W.10 who had given accident register copy which was marked as Ex.P.10. 10. Pending trial, A1 died and the charges in respect of A1 stood abated. So far as A2 and A3 are concerned, they stood charged under section 302 r/w 34 IPC since they shared the common intention with A1. The learned counsel for the appellant with vigor and vehement would contend that there is nothing to indicate or infer that A2 and A3 had any common intention to share with A1. This contention cannot be countenanced for the following reasons. The occurrence has taken place at 11.45 p.m. in front of the house of P.W.1 who is the paternal uncle of the deceased. Admittedly, it was not the place of the accused/appellants. A1 was armed with veetch aruval, A2 and A3 had knife in their hands. No explanation was offered by the appellants regarding the question, for what reason and under what circumstances, the accused went to the place of occurrence during night hours with deadly weapons. https://hcservices.ecourts.gov.in/hcservices/ 11. At the time of incident, when the deceased was attacked, it was P.W.2 who is the friend of the deceased, went to the rescue but A2 and A3 attacked him with knife which would indicate the fact that when P.W.2 intervened to save the deceased from being attacked by A1, A2 and A3 attacked P.W.2. If they had no common intention to share with A1, there is no need for them to attack P.W.2 with deadly weapon. Under such circumstances, the Court is able to see that A2 and A3 had common intention to share with A1 since they were armed with deadly weapon, apart from that, when P.W.2 went to the rescue while A1 attacked the deceased, it was A2 and A3 who attacked P.W.2. Therefore, it is quite clear and evident that A2 and A3 shared common intention with A1. 12. Insofar as P.W.2 was concerned, he was not only an eye witness but also an injured witness. With regard to the injuries sustained by him, the prosecution examined the medical person and the accident register copy was also marked wherein the time and place of occurrence were clearly mentioned. Therefore, the trial Court is perfectly correct in finding the appellants/accused guilty under section 302 r/w 34 and 324 I.P.C. The contention putforth by the learned counsel for the appellants do not carry any merits whatsoever. This Court finds no reason to interfere with the factual and legal position of the judgment passed by the trial Court. 13. In the result, the appeal fails and the same is dismissed. The judgment of conviction and sentence passed by the trial Court is confirmed. It is reported that the accused/appellants are on bail. Therefore, the trial Judge is directed to take steps to secure the accused/appellants and commit them to prison. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Sessions Judge, Villupuram. 2. The Inspector of Police, Villupuram Town Police Station, Villupuram District 3. The Public Prosecutor, High Court, Chennai. 4.The Judicial Magistrate, No.I, Villupuram. 5.-do- thro' The Chief Judicial Magistrate, Villupuram. 6.The Judicial Magistrate No.II, Vellore. 7.-do- Thro' The Chief Judicial Magistrate, Vellore. 8.The IX Metropolitan Magistrate, Saidapet, Chennai-15. 9.-do- thro' the Chief Metropolitan Magistrate, Chennai. 10.The Superintendent, Central Prison, Cuddalore. +2ccs to Mr.M.Devaraj, Advocate Sr 57094 PA(CO) km/9.11. CRL. APPEAL No.163 of 2009 https://hcservices.ecourts.gov.in/hcservices/