In the High Court of Judicature at Madras Dated: 28/10/2004 Coram The Hon'ble Mr. Justice R. BALASUBRAMANIAN and The Hon'ble Mr. Justice N. KANNADASAN Criminal Appeal No. 839 of 2002 1. Palanisamy 2. Palanisami 3. Thangaraj All residing at Govindankadu, Sadayampalayam, Konasamudhram Grammam. ... Appellants -vs- State, rep. by Inspector of Police, Esplanade Police Station, Edapady. ... Respondent Criminal appeal under Section 374 of Cr.P.C. against the conviction and sentence imposed upon by them by the learned Additional Sessions Judge, 1st Fast Track Court, Salem, in S.C. No: 31 of 2001 dated 24.0 4.2002. :J U D G M E N T (Judgment of the Court was delivered by R. BALASUBRAMANIAN, J.) The appellants in this appeal are A.1, A.3 and A.4 in S.C. No: 31 of 2001 on the file of the Additional Sessions Judge (Fast Track Court No: 1) Salem. A.2 was put up for trial along with the appellants and he died pending trial and therefore, the charge against him stood abated. For convenience sake, in this judgment we will refer the appellants in the same rank in which they were put up for trial before the Court of Sessions. Heard Mr. V. Gopinath, learned Senior Counsel appearing for the appellants and Mr. V. Arulraj, learned Government Advocate (Criminal side) for the State. 2. The charges framed by the learned Sessions Judge against the accused are as hereunder : 302 I.P.C. - A.2 for having caused the death of Rangannan ( hereinafter referred to as D.1) 302 r/w 34 - A.1 for having caused the death of Rangannan (D.1) 302 r/w 109 - against A.3 and A.4 regarding the murder of Rangannan (D.1) 302 r/w 34 - against A.1, A.3 and A.4 for having caused the death of Selva Kumar ( hereinafter referred to as D.2) 302 r/w 109 - against A.2 regarding the death of Selva Kumar (D.2) 325 - against A.2 for having caused injuries on P.W.1 3. The prosecution examined, in support of their case, as many as 17 witnesses as P.Ws. 1 to 17 and marked 37 exhibits as Exs. P.1 to P.37. The defence did not let in either oral or documentary evidence. At the end of the trial, the learned Sessions Judge accepted the case of the prosecution and found the first accused guilty of the offence under Section 302 read with 34 I.P.C., for causing the murder of Rangannan (D.1), for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.1,000/- carrying a default sentence; accused 1, 3 and 4 guilty for the offence under Section 302 read with 34 I.P.C., for causing the murder of Selva Kumar (D.2), and sentenced each one of them to undergo imprisonment for life together with a fine of Rs. 1,000/- carrying a default sentence. For the rest of the charges the accused were acquitted. It is this judgment which is in challenge in this appeal. 4. The occurrence is shown to have taken place at about 7.00 p.m. on 20.01.2000. P.Ws. 1, 2, 3 and 5 have been examined as eye witnesses to the occurrence. P.W.1's evidence in short is as hereunder : " Deceased No. 1 is her husband; Deceased No. 2 is her son; they are residing in the farm house itself; she knows the accused and they are residing in the adjoining lands itself; A.1 is her husband's younger brother; A.2 is her husband's elder brother; A.3 is the son of A.2; A.4 is the son of A.1; accused are also agriculturists by occupation; her husband and the accused have lands in the same area; there was a partition earlier in the family; irrigation to the partitioned lands is from a common well; irrigation from the common well would be on turn; P.W.2 is her son; A.1 is residing very close to the house of P.W.2; on the occurrence day it was the turn of the prosecution witnesses to irrigate their lands from the common well; therefore, she goes to the well at about 7.00 p.m. for the purpose of irrigating the lands belonging to them; all the accused on seeing her there told her that it is not their day to irrigate and therefore, she must immediately leave; apprehending that she may be assaulted, she left towards P.W.2's house; P.W.2's child was sick and therefore, D.1 and D.2 had gone to visit him; on seeing this witness coming towards the house of P.W.2, D.1 and D.2 came out of the house; the witness was being chased by the accused; on the two groups meeting each other D.1 asked A.2 and A.1 as to why they are objecting to their turn of irrigating their lands from the well on that day; the witness would state that as she was being chased by the accused from the well she was openly stating that they are obstructing her from irrigating the lands from the well; at that time A.1 with an iron rod beat on both the shoulders of her husband (D.1); A.2 (since deceased) with a knife cut on the front side of the head of her husband (D.1); at that time D.2 intervened and questioned the accused as to why they are assaulting his father; A.3 with a stick assaulted on both the flanks of Selva Kumar (D.2); A.4 with a stick also assaulted on both the flanks and legs of D.2; A.1 took the knife from A.2 (since deceased) and with the blunt portion of the weapon assaulted on the backside head of D.2; witness shouted and at that time A.2 (since deceased) pulled the stick from A.3 and assaulted on both her hands resulting in a fracture; P.Ws.2, 3 and 4 witnessed the occurrence; P.W.2 shouted and all the accused left the scene with the weapons of offences; P.W.2 transported all the injured to the Government Hospital at Edapadi in a car and as the condition of Selva Kumar (D.2) was precarious, he was advised to be taken to the Government Head Quarters Hospital, Salem; witness and her husband (D.1 ) continued to take treatment in the Government Hospital at Edapadi and when all of them reached the hospital at Edapadi it was 9.00 p. m.; this witness and her husband were examined at 11.00 a.m. in the hospital on the next day and they were also referred to Government Head Quarters Hospital, Salem; on reaching the Government Head Quarters Hospital, Salem, they came to know that Selva Kumar breathed his last in the hospital at Salem; this witness and her husband were in patient in the hospital for 30 and 40 days respectively and thereafter, they were discharged; her husband died one day after he reached the house; M.Os. 1 to 4 are the weapons of offences in the hands of the accused and P.W.6 - her daughter informed the police about the death of her husband." P.Ws. 2, 3 and 5 gave evidence regarding the occurrence proper in a manner similar to the evidence of P.W.1. 5. P.W.9 is the Casualty Medical Officer in the Government Hospital at Edapadi. When he was on duty at about 9.00 p.m. on 20.01.2000 ( the occurrence day), Rangannan was brought before him and he examined him. At that time he informed P.W.9 that he received the injuries from four known persons at about 7.00 p.m. in the same day. He found various symptoms as noted by him in Ex.P.17, the accident register. The injuries are as hereunder : "1. A cut injury right forehead 3 x 1cm skin deep, red. 2. Contusion in the left shoulder 2 x 2 cm. Red. complains of pain all over the body." He also examined P.W.1 at 11.00 p.m. for injuries stated to have been sustained by her at about 7.00 p.m. on the same day at the hands of five known persons. On her, he found various symptoms as noted by him in Ex.P.18, the wound certificate. The symptoms are as here under : " 1. A diffused contusion right dorsum of hand - red. 2. A diffused contusion left fore arm - red. 3. A diffused contusion left dorsum of hand - red. 4. A contusion right foot dorsom 2 x 2 cms - red. complains of pain all over the body." On an x-ray taken for the injuries sustained by P.W.1 it was found that she had suffered fractures in the right and left hands as well as in her fingers. Injuries 1 and 2 found on her are grievous in nature and others are simple in nature. Weapons like M.Os. 3 and 5 could have caused those injuries found on her. 6. P.W.13 is the head constable on duty in the investigating police station on 21.01.2000. At 7.00 a.m. on that day, he received information from Government Hospital at Edapadi about Rangannan having been admitted in the hospital. He reached the hospital at 7.30 a.m. and by examining Rangannan, recorded his statement in which he had taken his left thumb impression. Ex.P.25 is the said statement recorded by him. He came back to the police station with Ex.P.25 and registered it at 9.30 a.m. in Crime No: 99 of 2000 for offences under Section 323, 324 and 326 I.P.C. Ex.P.26 is the printed first information report prepared by him. He sent the material records to higher officials as well as to the Court. 7. P.W.14 is the Sub Inspector of Police, in the investigating police station. On seeing the crime registered by P.W.13, he reached the scene of occurrence at 10.00 a.m. on the same day and in the presence of witnesses he prepared the Observation Mahazar Ex.P.8 and rough sketch Ex.P.28 in the presence of P.W.7 and another. He went to the Government Hospital at Edapadi and examined Rangannan (D.1) and Palaniammal (P.W.1) and recorded their statements. Ex.P.29 is the statement recorded by him from Rangannan. In the presence of the same witnesses at about 12.15 p.m. on the same day he recovered M.O.5 blood stained half sleeve shirt, M.O.6 blood stained T.shirt and M.O.8 a blood stained dhoti produced by Rangannan under Ex.P.9. He examined P.W.3 and others and recorded their statements. He received information from the Government Head Quarters Hospital, Salem, about the death of Selva Kumar (D.2) at about 5.30 p.m. and reached the police station at 7.00 p.m. Ex.P.30 is the death intimation as regards Selva Kumar. On that intimation, he altered the section of offence already registered by adding Section 302 I.P.C. and prepared Ex.P.31, the altered express F.I.R. He sent that material record to the Court as well as to the higher officials. P.W.6, daughter of D.1, appeared before him in the police station on 04.03.2000 and told him that her father died at about 4.00 p.m. on 4.3.2000. He reduced into writing the information given by P.W.6 which stands marked in this case as Ex.P.7. On that statement he altered the section of offence by adding the offence under section 302 (2 counts) and prepared the altered F.I.R. Ex.P.3 2 is the printed F.I.R. He sent that material records to the Court as well as to higher officials. He handed over the altered F.I.R. to the Inspector of Police, Kakkanpalayam Police Station, who was in-charge of the investigating police station. 8. P.W.15 is the first investigating officer in this case. On the complaint registered for offence under Section 302 I.P.C. among other offences, he proceeded to the Government Hospital at Salem and at 8.00 a.m. on 22.01.2000. He conducted inquest over the dead body of Selva Kumar (D.2) in the presence of Panchayatdars and witnesses. Ex. P.33 is the inquest report prepared by him. During inquest, he examined P.Ws.2, 3, 5, 6 and others and recorded their statements. He also examined Rangannan who was alive at that time, P.W.1, 7 and others and recorded their statements. Ex.P.34 is the statement of Rangannan recorded under Section 162 of Cr.P.C. when he was alive. He came to know that the accused in this case had surrendered before the Court of Judicial Magistrate No: 3, Salem, on 25.01.2000 and accordingly, he moved an application before that Court on 31.01.2000 to take police custody of all the accused. The Court granted police custody of all the accused for three days from 01.02.2000 to 03.02.2000. At 6.00 p.m. on 3.2.2000 he examined A.1 and at that ti me he gave a voluntary confession statement in the presence of P.W.8 and another, the admissible portion of the said statement is Ex.P.10. A.2 also gave a confession statement in the presence of the same witnesses and the admissible portion of the same is Ex.P.11. A.3's confession recorded in the same manner is Ex.,P.12 while the admissible portion of the confession statement of A.4 recorded in the similar manner is Ex.P.35. Pursuant to the confession statement of A.1 M.O.1 came to be recovered under Ex.P.13 in the presence of the same witnesses. Pursuant to the confession statement of A.2, M.O.2 came to be recovered in a like manner under Ex.P.14. M.O.3 came to be recovered pursuant to the confession statement of A.3 under Ex.P.15. M.O.4 came to be recovered in a like manner pursuant to the confession statement of A.4 under Ex.P.16. The accused were brought back to the police station and the material objects were sent to the Court. He examined further witnesses and recorded their statements. He gave a requisition to the Court to record the statements of P.Ws.1, 2, 3 and 5 under Section 164 of Cr.P.C. He sent the requisition to the Court to subject the blood stained incriminating objects, already recovered and sent to the Court, for chemical examination. He examined the Doctors and recorded their statements. As he retired on 31.3.2000 his successor took up further investigation. His successor is P.W.16. On the section of offence having altered into one under Section 302 (2 counts) as a result of the death of Rangannan (D.1), he went to the village where he died at 6.30 p.m. on 4.3.2000 and prepared Ex.P.36 the Observation Mahazar. Between 7.00 p.m. and 9.00 p.m. he conducted inquest over the dead body in the presence of witness and panchayatdors and prepared Ex.P.37, the Inquest Report. During inquest he examined P.Ws. 2, 3 and 6 and recorded their statements. He sent the dead body to the hospital with a requisition for post mortem. 9. P.W.10 is the Medical Officer working in the Government Head Quarters Hospital, Salem, who, on receipt of Ex.P.19 the requisition for post mortem relating to Selva Kumar (D.2), commenced post mortem at 00.30 a.m. on 22.01.2000. During post mortem he found various symptoms on the dead body as noted by him in Ex.P.20, the post mortem report. The symptoms are as hereunder : " INJURIES: 1. Abrasions on left elbow 3 x 2 cm, left knee 3 x 1 cm and 5 x 2 cm, left arm 8 x 1 cm and 3 x 1 cm, left fore arm 3 x 1 cm, 2 x 1 cm & 1 x 1 cm, 5 x 2 cm & 1 x + cm, left leg 3 x 1 cm, 2 x 1 cm, 4 x 1 cm, 3 x 2 cm, 2 x 1 cm, & 5 x 2 cm & 3 x 1 cm, Right fore arm 3 x 2 cm, 2 x 1 cm, 1 x 1 cm, 0.5 x 0.5 cm, right hand 3 x 2 cm, right leg 2 x 1 cm, 3 x 2 cm, 0.5 x 0.5 cm, 1 x 1 cm, right arm 3 x 1 cm, Right side of fore head 2 x 1 cm, left side of fore head 1 x 0.5 cm. 2. A sutured laceration on left leg 3 x 1 x 0.5 cm. 3. A contusion on left side of chest 5 x 4 x 0.5 cm, d. red. 4. Fracture of ribs 4,5,6,7, 8 on left side and contusion on upper lobe of left lung 2 x 1 x 0.5 cm d. red. 5. Contusion on occipital region of scalp 6 x 4 x 0.5 cm d. red. 6. Subdural and Subarachnoid haemorrhages present over both cerebral hemispheres. OTHER FINDINGS:- Finger nails bluish. Heart: Normal. Coronaries Patent. Lungs: Congested & Oedematous, Larynx & Trachea Hyoid bone: intact Stomach: 150 gms of brownish yellow coloured fluid. No specific smell, mucosa congested. Liver, Spleen, Kidneys: Congested. Pelvis: Intact. Brain : Dedematous on cut section. The Doctor is of the opinion that the deceased died due to the effects of multiple injuries". 10. P.W.4 is the other Doctor in the Government Head Quarters Hospital, Salem, who conducted post mortem at 11.15a.m. on 05.03.2000 on the body of Rangannan (D.1) on receipt of the dead body as well as Ex.P.3, the requisition. During post mortem, he found various symptoms as noted by him in Ex.P.4, the post mortem report. The symptoms are as hereunder : " External Injuries : 1. Vertical healed sutured wound without sutures, 6 cms. In length over the right side of forehead, 4 cm above the inner end of right eyebrow. 2. Healed abrasion 3 x 1 cm with hard, dry, black, loosely attached scab in the middle of an almost resolved contusion of 6 x 2 cms over the outer aspect of upper 1/3 of right upper arm. 3. Healed abrasion 3 x 2 cms with hard, dry, black, loosely attached scab over the right hip. Internal Injuries : 1. Vertical healing cut fracture 5 cms in length beneath external injury No:1, the lower end of which was found continuing as healing fissured fracture transversely over the whole of frontal bone and then obliquely backwards over the middle of whole of left parietal and left temporal bones of vault of skull. 2. Thin resolving sub-dural and arachnoid haemorrhage over the entire surface of both cerebral hemisphere of brain. 3. Softening found over an area of 3 x 2 x 1 cms in the middle of left parietal lobe of brain. O/S. the entire brain was found to be oedematous. Internal Examination : Heart : Chambers and valves normal. Cavities contained dark fluid blood. Coronary vessels : patent. Great vessels : Raised yellowish patches of atheroma seen in the walls fo root and arch of aorta. Lungs: Both on c/s. Congested and oedematous. Hyoid bone : Intact. Stomach: contained 400 gms of yellowish brown semisolid partly digested cooked corn porridge with no specific smell. Mucose: congested. Duodenum : Empty. Mucosa : congested. Liver, Spleen and Kidneys : C/s. Congested. Bladder : Empth. Pelvis : intact. Membranes : Intact. Spinal Column : Intact. " The Doctor is of the opinion that the deceased would appear to have died due to the effects of head injuries. 11. P.W.6 is not an eye witness to the occurrence. She is the daughter of P.W.1 and deceased No: 1. P.W.7 witnessed the preparation of Ex.P.8, the Observation Mahazar and recovery of M.Os. 5 to 7 under Ex.P.9. P.W.8 witnessed the examination of all the accused during police custody; recording their confession statements, the admissible portions of which have already been indicated by us earlier in this judgment, and the recovery of various material objects already referred to. P.W.11 is the Magisterial clerk who speaks about the receipt of the case properties, requisition given by the police officer, sending the same to the laboratory with Court's letter and receipt of Exs. P.23 and P.24, the chemical examiner's report and serologists report. P.W.12 is the photographer through whom M.O.8 series and M.O.9 series are proved. P.W.17, after verification of the investigation already done by his preceding officer, completed the investigation and filed the final report in Court on 19.04.2000 against all the accused for offences under Section 324, 326 and 302 read with 34 I.P.C. When each of the accused were questioned under Section 313 of Cr.P.C. on the basis of the incriminating materials made available against each one of them, they denied each and every circumstance put up against them as false. They neither examined any witness on their side nor brought any documentary evidence. But, however, A.1, A.3 and A.4 have filed their written statements stating that due to prior enmity the case has been foisted upon them. 12. Mr. V. Gopinath, learned Senior counsel appearing for the appellants would attack the judgment under challenge on the following grounds : " Ex.P.25 is the earliest information lodged by Rangannan, since deceased; it becomes admissible as a dying declaration on his death; besides Ex.P.25, Exs. P.29 and P.34 are the statements recorded by the police from Rangannan during investigation; if the oral evidence of P. Ws. 1 to 3 and 5 is tested in the context of the averments contained in Ex.P.25, (contents of Exs.P.29 and P.34 are similar to the contents of Ex.P.25) then it is clear that the prosecution has definitely deviated in its case from what is found stated in Ex.P.25. The deviation is regarding the place of occurrence; the manner in which the occurrence is shown to have taken place and the other circumstances. Having regard to the deviation on material aspects in the evidence of P.Ws.1 to 3, 5, this Court has to necessarily reject their evidence as unacceptable and if that is done, then there being no other legal evidence to connect the accused in the crime subject to Ex.P.25 being in the nature of a dying declaration given to a police officer, the conviction has to be set aside". Without prejudice to the above contentions, the learned senior counsel would argue that accepting the averments contained in Ex.P.25 as true, even then, the conviction of the accused for the offence under Section 302 read with 34 I.P.C. cannot be legally sustained. Learned senior counsel elaborated on this point by highlighting as to what should be taken note of when an accused is sought to be punished based on constructive liability covered under Section 34 I.P.C. We heard Mr. V. Arul, learned Government Advocate (Criminal side) on the above points. 13. P.Ws. 4 and 10 are the two respective Doctors who did post mortem on the body of D.1 and D.2. The respective post mortem reports are Exs.P.4 and P.20. The medical evidence shows the victims in this case died due to homicidal violence. But, we find that the accused are disputing the cause of death of Rangannan by cross examining the doctor on that aspect. Therefore, there is no difficulty at all in holding that the prosecution definitely established that one of the victims, namely Selva Kumar, died due to homicidal violence and the cause of death of the other is a debatable point. The prosecution had examined P.Ws. 1 to 3 and 5 as eye witnesses to the occurrence. The earliest information in this case is Ex.P.25 which was given by Rangannan (D.1) while he was alive. Only on the contents of Ex.P.25, the crime had come to be registered and Ex.P.26 is the accompanying printed First Information Report. Therefore, we have to necessarily hold that Ex.P.25 is the basis on which the prosecution case has to be decided. We went through the contents of Ex.P.25. In sum and substance it shows the following : " P.W.1 went to the well to irrigate the lands; all the accused were disputing her at that time; seeing that D.1 and D.2 ran towards that place and asked the accused as to what is happening; the accused asserted that it is their turn day to irrigate and therefore, the prosecution side should not take water from the well; Rangannan (D.1) asserted his right to irrigate; A.1 at that time, challenging his authority to say so, with an iron rod, beat him on his right and left shoulders; A.2 with a knife in his hand cut him on his forehead; Selva Kumar (D.2) intervened and A.3, with a stick, beat him on both his legs; A.4, with a stick, beat him indiscriminately on his hands and body and A.1 stabbed on the backside head of Selva Kumar (D.2); P.W.1 intervened and A.2