Crl.A.No.1777/2003 The Appellants/Accused Nos.1 and 3 Viz Sekar and Munivel were directed to be released on bail as per the order of this Court dated 14.6.2004 and made in Crl.MP.No.4726/04 The Appellants 2, 4 and 5/Accused Nos.2,4 and 5 Viz, Jaya, Rathina & Mani, were directed to be released on bail as per the order of this Court dated 23.2.2004 and made in Crl.MP.No.1052/04 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.09.2006 CORAM THE HONOURABLE MR JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR JUSTICE M.CHOCKALINGAM Criminal Appeal No. 1777 of 2003 1. Sekar 2. Jaya *3. Munivel 4. Rathina 5. Mari *Amended as per the order of this Court dated 18.2.2004 in Crl.MP.1708/04 ... Appellants(Accused Nos.1 to 5) Vs State rep. by Inspector of Police,Marandahalli Police Station, Marandahalli, Dharmapuri District. ... Respondent Prayer: Appeal against the judgment passed by the learned I Additional Sessions Judge, Dharmapuri District at Krishnagiri, in S.C.No.164 of 2002 dated : 5.11.2003. For Appellant : Mr. V.Gopinath, S.C., for Mr.K.Selvarangan. For Respondent : Mr.P.Kumaresan Addl. Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM,J) The appellants, five in number, have challenged the judgment of the learned I Additional Sessions Division, Krishnagiri, made in S.C.No.164 of 2002, whereby, the appellants/accused stood charged as follows:- A-1 and A-3 were charged under Section 148 IPC., while A-2, A-4 and A-5 were charged under Section 147 IPC. A-1 and A-3 were also charged under Section 302 IPC. while A-2, A-4 and A-5 were charged under Section 302 read with 149 IPC. A-1 was also charged under Section 324 IPC., while A-2 to A-5 were charged under Section 324 read with 149 IPC. On trial, A-1 and A-3 were found guilty under Section 148 IPC. and sentenced to undergo three years rigorous imprisonment and A-2, A-4 and A-5 were found guilty under Section 147 IPC. and sentenced to two years rigorous imprisonment. A-1 and A-3 were also found guilty under Section 302 IPC. and awarded life imprisonment, while A-2, A-4 and A-5 were found guilty under Section 302 read with 149 IPC. and awarded life imprisonment, and they were also directed to pay a fine of Rs.1000/- each, in default, to undergo one year rigorous imprisonment. A-1 was also found guilty under Section 324 IPC. and awarded three years rigorous imprisonment and A- 2 to A-5 were found guilty under Section 324 read with 149 IPC. and sentenced to three years rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated thus:- i.P.W.2 is the wife of the deceased. P.Ws.3 and 4 are the daughters. A-1 is the brother of the deceased, while A-1 and A-2 are the parents of A-3 to A-5. Another accused, by name, Rajavelu, who was shown as A-6, died pending investigation. ii.On the date of occurrence, viz., on 8.11.1997, the deceased, his son and his daughter, P.W.3, went to graze the cattle. At about 8.30 a.m., on hearing the cry of P.W.3, P.Ws.2 and 4, rushed to the place, where, they found the entire incident, in which, A-1 attacked the deceased with a crowbar on his head, A-3 attacked him with a stick, while A-2, A-4 and A-5 fisted him with hands. The deceased fell down. In order to save him, P.W.4, the daughter of the deceased, intervened in the quarrel and she was attacked by A-1 with a crowbar. P.W.4 was also attacked by A-3 in the same transaction. All these accused, after the occurrence was over, fled away from the place of occurrence. iii.Thereafter, P.W.2 along with her son took her husband and P.W.4 to the hospital at Belrampatti. But, on the way, the deceased breathed his last at about 10.00 a.m. P.W.2 left the dead body in a house at Belrampatti and took P.W.4 to the Government https://hcservices.ecourts.gov.in/hcservices/ Hospital at Palacode. iv.P.W.2, thereafter, went to the Office of the Village Administrative Officer, P.W.1, at about 10.30 a.m., where she gave a report, which is marked as Ex.P-1, to P.W.1, who also prepared his own report, Ex.P-2, and both the reports were sent to Marandahalli Police Station. v.P.W.12, Inspector of Police, Marandahalli Police Station, on receipt of Exs.P-1 and P-2, registered a case in Crime No.1055 of 1997 under Sections 147, 148, 323, 324 and 302 of the Penal Code. The express first information report, Ex.P-12, was sent to Court and to the higher officials. Following the same, P.W.12 took up investigation in the case, proceeded to the place of occurrence, made an inspection and prepared an observation mahazar, Ex.P-13 and also a rough sketch, Ex.P-14. Thereafter, he conducted inquest on the dead body and prepared Ex.P-15, the inquest report, in the presence of witnesses and Panchayatdars. vi.Thereafter, the dead body was sent to Government Hospital, Palacode, where P.W.9, the doctor, who was on duty at that time, conducted autopsy on the dead body and gave his opinion in Ex.P- 6, the post-mortem certificate, opining that the deceased died due to shock and haemorrhage. vii.P.W.4, who was injured at the time of occurrence, was sent for medical examination and she was examined by the doctor, P.W.10, attached to Government Hospital, Palacode. The doctor issued Ex.P-10, copy of the accident register, opining that the injuries sustained by P.W.4 are simple in nature. viii.After the transfer of P.W.12, P.W.13, Inspector of Police, took up further investigation. During investigation, he came to know that all the accused were surrendered before the Court. A requisition was forwarded with the material objects to the Court to subject them for chemical analysis and accordingly, the reports of the Chemical Analyst and the Serologist were also received by the investigating officer. On completion of the investigation, he filed the final report. 3. The case was committed to the Court of Sessions. Necessary charges were framed and in order to substantiate the charges, the prosecution has examined 13 witnesses and relied on 16 exhibits and marked 5 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 of the Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as false. On the side of the defence, neither a witness was examined nor a document was marked. After hearing the arguments advanced by both sides and on scrutiny of the materials available, the trial Court found the accused guilty as per the charges and awarded imprisonment as referred to above, which is the subject matter of challenge before this Court. 4. The learned Senior Counsel, advancing his arguments on behalf of the appellants, made the following submissions:- https://hcservices.ecourts.gov.in/hcservices/ a)In the instant case, the prosecution has not even brought forth the genesis of the occurrence. According to the prosecution, even as per the evidence available on record, the occurrence has taken place in the field, which was under the cultivation of A-1. P.Ws.2 and 4 have spoken to the fact that on hearing the cry of P.W.3, they went to the place, where they saw A-1 quarrelling with the deceased and hence, it will be quite clear that all these witnesses had gone to the field, which is under cultivation of A-1 and thus, the deceased and the witnesses, P.Ws.2 to 4, were the aggressors. b) In the instant case, A-1 also sustained injuries in the course of the same transaction and the injuries sustained by him were not explained by the prosecution in any way. On the other hand, in the instant case, the defence came forward with a plea that the cattle of the deceased was actually went for grazing in the field, which was under the cultivation of A-1 and when the same was questioned by A-1, it was the deceased, who took a stick and attacked A-1 and in the exercise of the right of private defence and also to prevent the damage caused to the properties, A-1, in retaliation, attacked the deceased with the stick, which was used by him. When P.W.4 interfered, the said attack fell on her. c)At this juncture, the learned Senior Counsel, added further, that the attack was made in the field, which was under the cultivation of A-1, and on seeing the said attack, P.Ws.2 to 4, who were the aggressors, went over there and in the course of the transaction, A-1 also sustained injuries, which were not explained by the prosecution, and all the above facts would go to show that the genesis of the case was not placed by the prosecution before the Court. d)Added further, the learned Senior Counsel, that in the instant case, P.W.2 gave a report, Ex.P-1, to P.W.1, the Village Administrative Officer, who also prepared his own report, Ex.P-2 and both the reports were sent to the police station. He would further add that for an occurrence, which took place at 8.30 a.m., the complaint was given to the respondent police only at 6.30 p.m. and thus, there was the long delay, which remains unexplained. e)Apart from that, the learned Senior Counsel further added that it is highly doubtful, whether the first information report, as put forth by the prosecution, has come into existence. As per the evidence of P.W.3, the police came to the spot along with the Village Administrative Officer and they enquired P.W.2 and got a report, which fact would go to show that the first information report is not come into existence as put forth by the prosecution and coupled with the delay, it is quite clear that with all embellishments and developments, the first information report has come into existence and the prosecution has suppressed the genesis https://hcservices.ecourts.gov.in/hcservices/ of the case and the injuries sustained by A-1 remained unexplained and under such circumstances, the accused are entitled for acquittal in the hands of this Court. 6. The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions. 7. The Court paid its anxious consideration to the submissions made and thoroughly scrutinised the available materials. It is not in controversy that the husband of P.W.2 was attacked by the accused and he died instantaneously and in order to substantiate that the deceased died out of homicidal violence, the prosecution has not only examined P.Ws.2 to 4, but also, P.W.9, the doctor, who conducted post-mortem and who issued the post-mortem certificate, Ex.P-6, wherein he has opined that the deceased died out of shock and haemorrhage. Apart from that, the said fact was not disputed by the accused/appellants either before the trial Court or before this Court and hence, without any difficulty, it could be concluded that the deceased died out of homicidal violence. 8. In the instant case, the deceased, who is the husband of P.W.2, died in the incident that took place on 8.11.1997 at about 8.30 a.m. P.Ws.2 to 4 have been examined as eye witnesses. P.W.4 was an injured witness. Though P.W.3 claimed to be an injured in the course of the same transaction, no medical evidence was placed before the Court nor a charge was framed to that effect. It is settled principle of law that in a given instant case, where one of the witnesses is an injured witness, unless there are strong circumstances, the evidence of the said witness cannot be destroyed. In this case, P.Ws.2 and 4 categorically narrated the incident that on hearing the cry of P.W.3, they went to the place, where they saw A-1 and the deceased quarrelling with each other, and in that quarrel, A-1 attacked the deceased with a crowbar on the head, A-3 with a stick and A-2, A-4 and A-5 attacked the deceased with hands and thereafter, the deceased fell down. In the course of the transaction, in order to save her father, when P.W.4 intervened, A-1 attacked her with a crowbar and she also sustained injuries. All these witnesses have clearly spoken to the incident in one voice. 9. Now, at this juncture, the contention put forth by the learned Senior Counsel requires consideration. As could be seen from the available materials, the place of occurrence was actually under the cultivation of A-1. The contention put forth by the learned Additional Public Prosecutor that the field of occurrence was a free land without any cultivation whatsoever and hence, the contention put forth by the appellants' side that the occurrence has taken place in the land, under the cultivation of the accused, has got to be rejected, cannot be accepted, in view of the available materials. The contents of the rough sketch and the observation mahazar would clearly reveal, apart from the evidence of P.W.3, that the occurrence has taken place in the Vathiayar's land, which was taken on lease by https://hcservices.ecourts.gov.in/hcservices/ A-1. Apart from this, a careful scrutiny of the rough sketch would clearly indicate that the occurrence has taken place in the field, where there was standing crops and from the evidence of P.W.3, it would be quite clear that the occurrence has taken place in the field under the cultivation of A-1 and if it be so, it is quite evident that the occurrence has taken place in the land, which was under the cultivation of A-1. 10. Now, the version of the accused that the cattle of the deceased was grazing in the field under the cultivation of A-1 and when the same was questioned by A-1, there arose a quarrel, is more probable. In view of the same, when there was a damage caused to the standing crops, the accused party was perfectly correct in exercising their right of private defence to prevent further damage, by questioning the deceased. Under such circumstances, the act of the accused persons cannot be termed as one of unlawful assembly or common object and in the instant case, there was neither unlawful assembly nor common object, in furtherance of which, the accused have acted. At the same time, the evidence available on records would go to show that A-1 attacked the deceased with crowbar, A-3 with a stick and A-2, A-4 and A-5 with hands, thereby causing the death of the deceased instantaneously. According to the doctor, who conducted post-mortem, the injury found on the skull of the deceased was fatal and according to the prosecution, the said injury was caused by A-1. So far as A-3 is concerned, he has attacked the deceased with sticks and caused simple injuries. A-2, A-4 and A-5 also attacked the deceased with hands and caused simple injuries. In such circumstances, in the absence of unlawful assembly and common object, the act done by the accused have to be dealt with individually. 11. According to the learned Senior Counsel for the appellants, the act of the accused was in furtherance of their right of exercise of private defence in order to prevent the damage caused to their properties. But, the Court is of the considered view that though the accused have acted in exercise of their right of private defence of their property and to prevent further damage, they have acted in excess and by their act, they have caused the death of the deceased instantaneously. 12. According to the prosecution, A-1 in this case caused the fatal injury on the skull of the deceased, which caused his instantaneous death. But, it cannot be said that the act done by the A-1 is one of intentional or premedidated. But it was due to sudden quarrel and provocation and hence, the act done by A-1 would not fall within the ambit of murder, but it would fall under Section 304 Part-I IPC. for which, the punishment of seven years rigorous imprisonment would meet the ends of justice. In the course of the same transaction, A-1 also attacked P.W.4 with a crowbar and caused simple injuries on her and hence, he is also convicted under Section 324 IPC. and sentenced to two years rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 13. As far as A-3 is concerned, he caused only simple injuries on the deceased and hence, he is convicted under Section 324 IPC., for which, he is sentenced to two years rigorous imprisonment. 14. Insofar as A-2, A-4 and A-5 are concerned, they only fisted the deceased with their hands and hence, they are convicted under Section 323 IPC. and sentenced to six months rigorous imprisonment. It is reported that already they have undergone imprisonment for a period of 3 ½ months. Hence, to meet the ends of justice, it would be suffice that the sentence already undergone by them shall be given set off. 15. With the above modification in conviction and sentence, the appeal is disposed of. It is reported that the accused/appellants are on bail. The learned Sessions Judge shall take steps to commit the accused/appellants to prison to serve the remaining period of sentence. bs/ Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The District Munsif-cum-Judicial Magistrate, Palacode. 2.-do- thro The Chief Judicial Magistrate, Dharmapuri at Krishnagiri. 3.The I Additional Sessions Judge, Dharmapuri at Krishnagiri. 4.-do- through the Sessions Judge, Dharmapuri at Krishnagiri. 5.Inspector of Police, Marandahalli Police Station, Dharmapuri Dist. 6.The Superintendent, Central Prison, Vellore. 7.The District Collector, Dharmapuri District. 8.The Director General of Police, Madras. 9.The Public Prosecutor, High Court, Madras. + 1 cc to Mr.K. Selvarangan, Advocate SR No. 45412 Crl.A.No.1777 of 2003 JRG(CO) SR/17.10.2006 https://hcservices.ecourts.gov.in/hcservices/