Bail Slip a) The Appellants/Accused No.3 Viz. Ayyanar was directed to be released on bail as per the order of this Court dated 30.6.2008 and made in MP No.1/2008 in CA 1133/2007 and (b) the appellants/Accused Nos.4 & 5 viz., (i) Purushothaman and (ii) Venkatesan @ Venkatachalam were directed to be released on bail as per the order of this Court dated 12.9.2008 and made in MP No.1/2008 in CA No.109/2008 on the file of this Court respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 1-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.Nos.1133. 109 and 472 of 2008 Ayyanar .. Appellant in CA 1133/2007/Accused No.3 1.Purushothaman 2.Venkatesan @ Venkatachalam .. Appellants in CA 109/2008/Accused 4 & 5 1.Ramachandran 2.Sudhakar @ Veerachandran .. Appellants in CA 472/2008/Accused 1 & 2 vs The State of Tamilnadu Rep. By Inspector of Police Villupuram Taluk Police Station Cr.No.745 of 2003 Villupuram .. Respondent in all appeals Criminal appeals preferred under Sec.374(2) of Cr.P.C. against the judgment of the Principal Sessions Judge, Villupuram, made in S.C.No.110 of 2005 dated 5.12.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.M.Devaraj in CA 1133/2007 and 472/2008 Mr.G.Anantharangan in CA 109/2008 For Respondent : Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these three appeals namely CA 1133/2007 by A-3, CA 109/2008 by A-4 and A-5 and CA 472/2008 by A- 1 and A-2. 2.All these appellants stood charged, tried, found guilty and awarded the punishment as follows in S.C.No.110 of 2005 on the file of the Sessions Division, Villupuram. Hence these appeals at the instance of the appellants. ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 148 IPC Guilty 1 year RI A-4 & A-5 147 IPC Guilty 6 months RI A-1 294(b) IPC Not guilty A-1 to A-4 302 IPC A-1 to A-3 Guilty u/s 302 IPC and A-4 guilty u/s 302 r/w 149 IPC Life imprisonment with a fine of Rs.2000/- and default sentence A-5 302 r/w 149 IPC Guilty Life imprisonment with a fine of Rs.2000/- and default sentence A-1 324 IPC Guilty 1 year RI A-5 323 IPC Not guilty 3.The short facts necessary for the disposal of these appeals could be stated as follows: (a) P.W.1 is the son of the deceased Arumugam. P.W.2 is the wife of the deceased. A-2 is the son of A-1. A-4 and A-5 are brothers. P.W.2's elder brother one Lakshmanan is the father of A-3. In respect of a common pathway, both the families of A-1 and P.W.1 were on inimical terms in the past. The father of A-3 https://hcservices.ecourts.gov.in/hcservices/ became sick. The accused party suspected that since Lakshmanan took food in the house of P.W.1, he became sick. They also further suspected that P.W.1's family had done some black magic. Not only the accused party informed them, but also they wanted to join them to remove the same. But, the prosecution witnesses refused. Aggrieved over this, A-1 and A-3 not only questioned P.W.2 about their conduct, but also abused her with filthy language on the date of occurrence namely 26.8.2003. P.W.1 and the deceased were not available at that time. After they came back, P.W.2 also informed them at 7.00 P.M. Thereafter, P.W.1 and the deceased questioned the conduct of A-1 and A-3. Immediately, A-1 took a knife, and A-2 and A-3 took iron pipes, while A-4 and A-5 took sticks. A-1 instigated them. Then, A-1 attacked the deceased with the knife on the head. A-2 attacked him on the hip with the iron pipe. A-4 and A-5 attacked him with sticks. P.W.2 intervened on seeing this. Immediately A-1 stabbed her on the left side of the head. When P.W.1 went to the rescue, A-1 cut him on his shoulder, and A-2 also cut him with the iron pipe. A-3 attacked P.W.1 with the iron pipe. Then P.W.1 attacked A-1 and A- 3 with a knife. P.Ws.3 and 11 also witnessed the occurrence. The accused persons fled away from the place of occurrence. (b) P.W.2, the injured, and the severely injured Arumugam were taken to the Government Hospital, Villupuram. P.W.6 was the Doctor on duty who admitted the severely injured Arumugam and noted the injuries found on his body, in the accident register copy Ex.P6. At 8.40 P.M., he medically examined P.W.2 and noted the injuries, and the accident register copy is marked as Ex.P7. On the same day, he also examined P.W.1 at 9.30 P.M. The accident register copy is Ex.P8. On the very day, he examined A-1 at 8.23 P.M., and the accident register copy is marked as Ex.P9. A-3 was examined by him at 8.20 P.M., and the accident register copy is Ex.P10. (c) P.W.1 gave a report to P.W.10, the Head Constable, attached to Villupuram Taluk Police Station, on 27.8.2003. The same is marked as Ex.P1, on the strength of which a case came to be registered in Crime No.745 of 2003 under Sections 147, 148, 323, 324 and 307 of IPC. The printed FIR is Ex.P12. Following the same, another case was registered at the instance of A-1 in Crime No.746 of 2003. Ex.P27 is the printed FIR. Both the FIRs were despatched to the Court. (d) On receipt of the copy of the FIR, Ex.P12, P.W.13, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P15. He also recovered bloodstained cement piece and sample cement piece under a cover of mahazar. An intimation was received that Arumugam died in the hospital on 27.8.2003 at 3.00 P.M. Then, the case was altered to Sec.302 of IPC. The alteration report, Ex.P16, was sent to the Court. Then, the Investigating Officer conducted inquest on the dead body of Arumugam and prepared an inquest report, Ex.P18. He gave a requisition, Ex.P19, to the hospital https://hcservices.ecourts.gov.in/hcservices/ authorities for the purpose of autopsy. (e) P.W.12, the Chief Medical Officer, Department of Forensic Medicines, Government Hospital, Pondicherry, on receipt of the said requisition, conducted autopsy on the dead body of Arumugam and has issued a postmortem certificate, Ex.P14, with his opinion that the deceased would appear to have died of head injuries about 6 to 24 hours prior to postmortem. (f) A-1 to A-3 were arrested. A-1 volunteered to give a confessional statement which was recorded. The admissible part is marked as Ex.P20, pursuant to which he produced M.Os.1 and 2 knives, M.O.3 iron pipe, and M.Os.4 and 5 sticks, which were recovered under a cover of mahazar. They were all sent for judicial remand. A requisition was forwarded to the Judicial Magistrate for sending the material objects for chemical analysis. Accordingly they were subjected to analysis by the Forensic Sciences Department. Ex.P24 is the chemical analyst's report, and Ex.P25 is the serologist's report. They were all placed before the Court. On completion of investigation, the Investigating Officer filed the final report. 4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 30 exhibits and 8 material objects. On completion of the evidence on the side of 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. No defence witness was examined. The trial Court heard the learned Counsel on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty under the above provisions and awarded punishment as referred to above. Hence this appeal at the instance of the appellants. 5.The learned Counsel appearing for the appellants in the above appeals made the following submissions: (i) The prosecution rested its case on the evidence of P.Ws.1, 2, 3 and 11 as occurrence witnesses, out of whom P.Ws.1 and 2 were injured witnesses. P.Ws.1 and 2 are the son and the wife of the deceased respectively. P.W.3 is also a close relative, and P.W.11 is a villager. A scrutiny of the evidence of P.W.11 would clearly indicate that he could not have been in the place of occurrence at all. Insofar as P.Ws.1 to 3, they come under the category of closely related to the deceased, and they were all interested witnesses. The evidence of P.Ws.1 and 2 who are the so-called occurrence witnesses, if scrutinised carefully, would indicate that the same is not only inconsistent to each other but also self-contradictory. 6.Added further the learned Counsel that the occurrence has taken place, according to the prosecution, in front of the house of the accused; but, P.W.1 has given a contrary version that the occurrence has taken place in front of his house on that day; that https://hcservices.ecourts.gov.in/hcservices/ from the evidence of P.Ws.1 and 2, it would be quite clear that themselves and the deceased were informed that P.W.2 was abused by A-1 and A-3 that evening, and when the matter was reported, P.Ws.1 and 2 and the deceased went to the house of the accused to question them; that it would be quite clear that they were also armed with weapons; that the same would be pointing that they were the aggressors; that it is a case where the genesis of the occurrence was not made known to the Court; and that further, the occurrence place is also not clear, but it is changed at different stages. 7.Added further the learned Counsel that in the instant case, A-1 and A-3 were actually attacked by the prosecution witnesses; that they also sustained injuries on the head; that they were also examined by P.W.6, the Doctor, even before P.Ws.1 and 2 were examined, between 8.00 P.M. and 9.00 P.M. on the date of occurrence; that apart from this, how the injuries were sustained by A-1 and A-3 was not explained by the prosecution in an acceptable manner; and that it is true that P.W.1 came forward to give some explanation; but, that explanation should have been rejected by the trial Court. 8.The learned Counsel would further submit that in the instant case at the instance of A-1, a case came to be registered in Crime No.746 of 2003; but, the prosecution had not placed all the necessary materials before the trial Court; that it would be quite clear that the prosecution witnesses were the aggressors; that they have caused injuries on these accused; that all the necessary materials in Crime No.746/2003 registered at the instance of A-1, were not placed before the Court; and that under the circumstances, the trial Court was not able to understand and decide correctly the factual position of the case. 9.Added further the learned Counsel that it was P.Ws.1 and 2 and the deceased who questioned about the conduct of A-1 and A-3, and in that process, there was a free fight; that there is no question of any common object in furtherance of which the accused have acted so, and hence, there was neither unlawful assembly nor rioting nor sharing of common intention. 10.Added further the learned Counsel that in the instant case, simply because one man died as a consequence of the incident, the Investigator did not properly investigate the said case in Crime No.746/2003, and he has closed it as a mistake of fact; but, the lower Court has not considered all these aspects, but has found contra and erroneously also, and under the circumstances, they are entitled for acquittal in the hands of this Court. 11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 12.It is not in controversy that one Arumugam the husband of P.W.2 and the father of P.W.1, following an incident that took https://hcservices.ecourts.gov.in/hcservices/ place at about 7.00 P.M. on 26.8.2003, died on the next day at the hospital when he was under treatment. Following the inquest made by P.W.13, the Investigating Officer, the dead body was subjected to postmortem by P.W.12, the Doctor, who has given his categorical opinion that Arumugam died out of head injuries. The fact that Arumugam died out of homicidal violence was never a subject matter of controversy before the trial Court, and hence without any impediment it could be factually recorded so. 13.In order to substantiate that in the said incident P.Ws.1 and 2 were injured and the deceased was attacked by the accused, and he died as a consequence, the prosecution rested its case on the evidence of four witnesses namely P.Ws.1, 2, 3 and 11. Out of these four witnesses, P.Ws.1 and 2 were injured witnesses. It is settled proposition of law that in a given case like this, when the eyewitnesses happened to be injured witnesses, their evidence should not be discarded, unless and until a strong circumstance is noticed or a reason is brought about. In the case on hand, this Court is unable to see any reason or circumstance to reject their evidence. P.Ws.1 and 2 have categorically spoken about the incident. From the evidence of P.W.2, it would be quite clear that they were on inimical terms in respect of a common pathway, and the accused persons were also suspecting that some black magic was actually done by the prosecution witnesses. On the date of occurrence, A-1 and A-3 actually abused her, and then she informed to her husband, the deceased, and also P.W.2, and they questioned A-1 and A-3. It is pertinent to point out that there is no question of change of place of occurrence as urged by the appellants since the contents of the observation mahazar and also the rough sketch are not disputed. A perusal of the sketch would clearly indicate that the house of P.Ws.1 to 3 and also that of the accused are situated abutting each other, and in front of the house, the occurrence has taken place. The bloodstained cement piece has also been recovered, and it was also subjected to analysis. Under the circumstances no dispute could be raised in respect of the scene of occurrence. 14.In the instant case, it is pertinent to point out that apart from the evidence of P.Ws.1 and 2, they were actually injured in the occurrence, and they were examined by P.W.6, the Doctor. P.W.1 was examined at about 9.30 P.M. P.W.2 was examined at about 8.40 P.M. Exs.P8 and P7 are the accident register copies respectively. This part of the medical evidence stood in support of the ocular testimony. Added further, both these witnesses have clearly spoken to the fact that at the time of occurrence, A-1 attacked P.W.1 with the knife and he also attacked P.W.2 with the knife. Apart from that, they have clearly spoken to the fact that the injuries were caused on the deceased by A-1 with the knife on the head, and A-2 also with the iron pipe on the hip. A-3 to A-5 also attacked the deceased. This ocular testimony projected through P.Ws.1 and 2 in respect of the injuries sustained by the deceased was clearly spoken to by the postmortem Doctor who has issued the postmortem certificate wherein the injuries are noted. 15.Another circumstance noticed by the Court is that at the https://hcservices.ecourts.gov.in/hcservices/ instance of A-1, a case came to be registered in Crime No.746/2003 by the very same police station. The said case was also registered at about 3.00 P.M. on the very day just about half an hour from the registration of Crime No.745/2003. A perusal of both these FIRs would clearly indicate that in respect of the same occurrence, A-1 has given the complaint, and in that process, A-1 and A-3 have also sustained injuries. Much labour was made by the learned Counsel for the appellants that the injuries sustained by A-1 and A-3 in the course of the very same transaction, were never explained by the prosecution. After scrutiny of the materials, this Court is unable to agree with the learned Counsel. It is true that in the FIR, it is not found; but, at the same time, when P.W.1 was examined, at the time of the chief-examination, he has categorically mentioned that all the persons were attacking with knives, rod and sticks, and since he could not tolerate the same, he took a knife and attacked A-1 and A-3, and thus they sustained injuries. It is true that they were examined by P.W.6. As far as A-1 is concerned, Ex.P9 is the accident register copy. Ex.P10 is the accident register copy in respect of A-3. They were placed by the prosecution, and in that, these injuries are noted as simple. Thus, these injuries were actually explained by P.W.1 which, in the opinion of the Court, is satisfactory. 16.Added further, in the instant case, the prosecution did not suppress any material, but placed the FIRs and also the accident register copies. Apart from that, the refer charge sheet was also placed before the Court. As far as Crime No.746/2003 was concerned, all the material documents were placed before the trial Court for perusal. P.W.1 has given a categorical evidence that it was he who attacked A-1 and A-3, and the injuries were sustained by them. Thus, it would be quite clear that the genesis of the occurrence, the way in which the transaction that took place, and how the accused happened to sustain injuries, and how P.Ws.1 and 2 and also the deceased were attacked by the accused are clearly spoken by the prosecution witnesses, and hence the prosecution has brought home the guilt of the accused. 17.At this juncture, it is pertinent to point out that it is true that just preceding the occurrence, P.Ws.1 and 2 and the deceased have questioned the accused persons when they are in their house, and in that process, the occurrence has taken place. Not only there was no intention or premeditation that could be attributed, but also there could not have been any common object, in furtherance of which the accused could have acted. Under the circumstances, they have got to be dealt with individually. From the medical opinion, it could be seen that the fatal injury was caused by A-1 who attacked the deceased with the knife on the head. Further, it was A-1 who instigated others and caused his death. Therefore, A-1 has got to be found guilty under Sec.302 IPC as rightly done by the learned trial Judge. As regards A-2, he attacked the deceased with the knife on the hip, and he has got to be found guilty under Sec.324 of IPC. A-3, A-4 and A-5 also attacked the deceased, and they have got to be found guilty under Sec.324 of IPC. Apart from that, A-1 has attacked P.W.1, and he https://hcservices.ecourts.gov.in/hcservices/ was found guilty by the trial Court under Sec.324 of IPC. 18.Accordingly, the conviction and sentence imposed on A-1 to A-3 under Sec.148 of IPC and on A-4 and A-5 under Sec.147 of IPC are set aside, and they are acquitted of that charge. The conviction and sentence imposed on A-1 under Sections 302 and 324 of IPC are confirmed. The conviction and sentence imposed on A-2 and A-3 under Sec.302 of IPC are modified and they are convicted under Sec.324 of IPC and are directed to suffer one year Rigorous Imprisonment. The conviction and sentence imposed on A-4 and A-5 under Sec.302 read with 149 of IPC are set aside and instead they are convicted under Sec.324 of IPC for which they are directed to undergo one year Rigorous Imprisonment. The sentence already undergone by the appellants/accused shall be given set off. 19.In the result, with the above modification in conviction and sentence, all these criminal appeals are dismissed. It is reported that the appellant/A-3 in CA 1133 of 2007 and the appellants/A-4 and A-5 in CA 109/2008 are on bail. Hence the Sessions Judge shall take steps to commit them to prison to undergo the remaining period of sentence if any. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1.The Judicial Magistrate No.I, Villupuram. 2.-do- Thro' The Chief Judicial Magistrate, Villupuram. 3.The Principal Sessions Judge Villupuram 4.The Superintendent, Central Prison, Cuddalore. 5.The Director General of Police, Mylapore, Chennai-5. 6.The District Collector, Villupuram. https://hcservices.ecourts.gov.in/hcservices/ 7.The Inspector of Police Villupuram Taluk Police Station Cr.No.745 of 2003 Villupuram 8.The Public Prosecutor High Court, Madras 9.The Section Officer, Criminal Section, High Court, Madras. +1cc to Mr.Anantharangan, Advocate Sr 67670 +3ccs to Mr.M.Devaraj, Advocate Sr 67340 MSM (CO) km/10.12. CRL.A.Nos.1133/2007, 109 and 472 of 2008 https://hcservices.ecourts.gov.in/hcservices/