BAIL SLIP The Appellant/Accused 2 and 3 namely Padmanaban and Boobathi were directed to be released on bail in and by the order of this Court dated 07.07.2006 and made in Crl.M.P.No.1/2006 in Crl.A.No.545 of 2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.545 of 2006 1.Padmanaban 2.Boobathi ..Appellants/Accused 2 & 3 vs State by Inspector of Police Karumalaikadal Police Station Salem (Dist.) (Crime No.691/2001) ..Respondent/Complainant Criminal appeal filed under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.I, Salem, made in S.C.No.237 of 2002 dated 18.4.2006. For Appellants : Mr.P.Venkatasubramanian For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Salem, made in S.C.No.237 of 2002 whereby the appellants ranked as A-2 and A-3 respectively, stood charged along with three others, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 302 r/w 34 IPC A-3 guilty. Others not guilty. Life imprisonment with a fine of Rs.1000/- and default sentence A-4 and A-5 302 r/w 109 IPC Not guilty A-1 to A-3 326 r/w 34 IPC A-2 guilty. Others not guilty. 4 years RI with a fine of Rs.500/- and default sentence A-4 and A-5 326 r/w 109 IPC Not guilty A-1 was absconding, and hence the case was split up in his regard. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the younger brother of one Jothilakshmi. The deceased Duraisamy was the brother of P.W.1. A-1 who was residing in the adjacent house, was stealing electric energy from the house of Jothilakshmi. On coming to know this, P.W.1 and the deceased Duraisamy went to the house of A-1 and questioned the same. A-1 replied that he would continue to do so. P.W.1 and Jothilakshmi informed him that they would lodge a complaint before the Electricity Board. (b) On 25.12.2001, P.W.4, the wife of P.W.1, while she was returning from the grocery shop, found A-1, A-2, A-3 and A-5 talking about a plan to do away with P.W.1 and his brother Duraisamy. Immediately, P.W.4 informed to P.W.1 about the said conspiracy. (c) On 26.12.2001 at about 5.30 P.M., P.W.1 and his brother Duraisamy were returning from the tea shop. At about 7.30 P.M., when they were just crossing the house of one Mahalingam at Ramamurthy Nagar, A-1. A-2 and A-3 waylaid P.W.1 and his brother Duraisamy. A-1 uttering the words "Are you going to give complaint to the Electricity Board", took a knife from his waist. At that time, A-3 caught hold of Duraisamy, and A-1 stabbed him on his stomach. As a result, the intestine came out. A-2 stabbed him on the chest. When P.W.1 raised a distressing cry, P.Ws.2 and 3 also rushed to the spot. On seeing the crowd, the accused ran away from the place of occurrence. Then the severely injured Duraisamy was taken in an auto to the Government Hospital, Mettur. (d) P.W.7, the Doctor, attached to the Government Hospital, medically examined Duraisamy and declared him dead. The accident register copy in that regard is marked as Ex.P6. An intimation was https://hcservices.ecourts.gov.in/hcservices/ given to the respondent police station. P.W.9, the Sub Inspector of Police, went to the hospital and recorded the statement of P.W.1 at about 9.15 P.M., which is marked as Ex.P1. On the strength of Ex.P1, the report, a case came to be registered in Crime No.691 of 2001 under Sections 341, 324, 307 and 302 of IPC. The printed FIR, Ex.P9, was despatched to the Court. (e) P.W.10, the Inspector of Police, attached to the respondent police station, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P10. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P11. Thereafter, a requisition, Ex.P7, was given to the hospital authorities for the purpose of postmortem. (f) P.W.8, the Doctor, attached to the Government Hospital, Mettur, on receipt of the said requisition conducted autopsy on the dead body of Duraisamy and has issued a postmortem certificate, Ex.P8, with his opinion that the deceased would appear to have died of shock and haemorrhage due to injury to vital organs. (g) Pending investigation, A-1 was arrested. He gave a confessional statement voluntarily, which was recorded. A-2 was arrested, and his confessional statement was recorded. The admissible part is Ex.P4. Pursuant to the same, he produced M.O.1, knife, which was recovered under a cover of mahazar. Then the other accused were arrested. All of them were sent for judicial remand. All the material objects were sent for chemical analysis. Exs.P14 and P16 are serologist's reports. Ex.P15 is the chemical analysis report. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. Pending trial, A-1 absconded, and in his regard, the case was split up. The trial was conducted in respect of A-2 to A-5. In order to substantiate the charges, the prosecution examined 10 witnesses and also relied on 16 exhibits and 7 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. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt in respect of the charge against A-2 under Sec.326 r/w 34 of IPC and against A-3 under Sec.302 r/w 34 IPC and hence found them guilty and awarded punishment which is the subject matter of challenge before this Court. https://hcservices.ecourts.gov.in/hcservices/ 4.The learned Counsel advancing arguments on behalf of the appellants, would submit that the prosecution relied on the evidence of P.Ws.1 to 3 as eyewitnesses; that they are all close relatives; that even from the evidence of P.W.1, it would be quite clear that P.Ws.2 and 3 came to the spot only subsequently; that under the circumstances, P.Ws.2 and 3 could not have witnessed the occurrence at all; that what was available for the prosecution was the evidence of P.W.1, the brother of the deceased Duraisamy; that all the alleged eyewitnesses were on inimical terms since they were under the impression that A-1 was stealing electric energy from the house of Jothilakshmi, the sister of P.W.1; that as far as A-2 and A-3, the appellants herein, were concerned, no overt act was attributed to them; that the trial Court has not believed the evidence of the same witnesses as far as A-4 and A-5 are concerned; that even the trial Court has found that A-2 had neither motive nor shared the intention with the other accused, and under the circumstances, the trial Court found him guilty under Sec.326 r/w 34 of IPC, but found A-3 guilty under Sec.302 r/w 34 IPC; that it would be quite clear that from the evidence, there is nothing to indicate that they have got any intention to share with; that further the medical opinion canvassed was not in favour of the prosecution; that as regards the alleged recovery of the weapon of crime, M.O.1, knife, from A-2 pursuant to the confessional statement, the evidence adduced was shaky and thus the prosecution has miserably failed to prove its case. 5.Advancing his further arguments, the learned Counsel would submit that as far as A-2 was concerned, the trial Court has found him guilty under Sec.326 r/w 34 IPC and awarded four years Rigorous Imprisonment which is excessive; that it has got to be looked into leniently; that so far as A-3 was concerned, even at the time of the occurrence, he was a juvenile; that as per the Juvenile Justice Act, he should have been sent to the forum under that enactment and enquiry should have been conducted by that forum; but, it was not done; that under the circumstances, the entire trial as against A-3 was thoroughly vitiated, and hence justice has got to be rendered by this Court. 6.The Court heard the learned Additional Public Prosecutor on the above contentions. 7.It is not in controversy that in an incident that took place at 7.30 P.M. on 26.12.2001, one Duraisamy the brother of P.W.1, was done to death. He was examined by P.W.6, the Doctor, who has declared him dead. Following the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.8, the Doctor. He has deposed as a witness before the Court and has given postmortem certificate, Ex.P8, to the effect that Duraisamy died out of shock and haemorrhage due to the injuries sustained. The fact that Duraisamy died out of homicidal violence was never disputed by the appellants before the trial Court, and hence it could be recorded so. https://hcservices.ecourts.gov.in/hcservices/ 8.In order to substantiate the fact that A-1 and A-2 stabbed Duraisamy while A-3 facilitated the crime, the prosecution examined P.Ws.1 to 3. P.W.1 has categorically given evidence that he went to the tea stall along with Duraisamy, and after taking tea, they were returning, and at the place of occurrence, A-1 to A-3 waylaid them, and they armed with knives, and A-3 actually caught hold of the deceased, while A-1 and A-2 stabbed him. Though P.Ws.2 and 3 have come to the spot on hearing the distressing cry, they have categorically spoken that they found all the accused persons at the spot. The trial Court marshaling the evidence properly, has believed the evidence of P.Ws.1 to 3. It is true that they are closely related to the deceased; but, that cannot be a reason to reject the testimony. The Court has to apply the test of careful scrutiny. The trial Court even after application of the test, has found their evidence cogent, convincing and acceptable. This Court is unable to see any reason why their evidence should be discarded or looked with doubt. Their evidence was rightly accepted by the trial Court. Apart from that, the trial Court has given a categorical finding that A-3 has facilitated the crime, while A-1 and A-2 stabbed him with knife. Taking into consideration the medical opinion canvassed and the injuries caused by A-2, the trial Court has recorded a finding that there is nothing to indicate that he shared the common intention with A-1 and thus, found him guilty under Sec.326 r/w 34 IPC. This Court is unable to see why the said finding has to be disturbed. Apart from that, the State has not preferred appeal challenging that part of the judgment. 9.As far as A-3 was concerned, according to the prosecution, the occurrence has taken place in the year 2001. From the available evidence, it would be quite clear that A-3 has facilitated the crime. Thus, the trial Court was perfectly correct in recording a finding that A-3 was guilty of offence under Sec.302 r/w 34 of IPC. That part of the finding, this Court is unable to see anything to disturb. However, at the time, when the appeal was taken up for enquiry on the last hearing, it was informed that A-3 was a juvenile at the time of the occurrence. Under the circumstances, a report was called for from the Sessions Judge. Accordingly, the Additional Sessions Judge, Fast Track Court No.I, Salem, has given his report which reads as follows: "5.By scrutinizing the documents and the evidence submitted by the witnesses the birth certificate and other particulars have been perused and the CW3 has submitted one Ex.C4, in which, before the investigation the physical examination findings found. The doctor who has given his version as, "On careful physical examination of the above individual, I am of the opinion that he is aged between 17 and 18 years." https://hcservices.ecourts.gov.in/hcservices/ The certificate was issued by the Government Head Quarters Hospital, Mettur Dam, on 7.1.2002." 10.From the report of the learned Additional Sessions Judge, it would be quite clear that A-3 was a juvenile at the time of the occurrence that took place in 2001. In such circumstances, it is a fit case where he has got to be sent before the forum under the Juvenile Justice Act to make an enquiry on the occurrence. Since the occurrence has taken place in 2001 and as per the report of the Additional Sessions Judge, at the time of the occurrence he was 17 and not completed 18, it would be quite evident that he was a juvenile. At this juncture, no meaningful purpose would be served by ordering the matter to be placed before the forum under the Juvenile Justice Act to conduct any fresh enquiry. Under the circumstances, A-3 has got to be set free recording that he was a juvenile at the time of occurrence. Accordingly, A-3 is set at liberty. 11.As far as A-2 is concerned, the conviction under Sec.326 r/w 34 IPC is confirmed, while the sentence of 4 years Rigorous Imprisonment imposed by the trial Court is modified directing him to suffer 3 years Rigorous Imprisonment. The fine amount imposed by the trial Court will hold good. The sentence already undergone by him shall be given set off. 12.Accordingly, this criminal appeal is disposed of. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To 1. The Additional Sessions Judge, Fast Track Court No.I, Salem. 2. -do- Through The Principal Sessions Judge, Salem. 3. The Judicial Magistrate, Mettur. 4. -do- Through The Chief Judicial Magistrate, Salem. 5. The Chief Judicial Magistrate, Pudukottai. 6. The District Collector, Salem. 7. The Director General of Police, Mylapore, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 8. The Superintendent, Central Prison, Coimbatore. 9. The Inspector of Police, Karumalaikadal Police Station, Salem District. 10. The Public Prosecutor, High Court, Madras. CRL.A.No.545 of 2006 NTK (CO) GSK 10.07.2009. https://hcservices.ecourts.gov.in/hcservices/