IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24/12/2003 CORAM THE HON'BLE MR. JUSTICE P. SATHASIVAM AND THE HON'BLE MR. JUSTICE M. THANIKACHALAM C.A.NO.928 of 1995 1. Anand 2. Arumugham 3. Shanmugham 4. Sankar 5. Purushothaman 6. Venkatesan ..Appellants. -Vs- State through Inspector of Police, Nellikuppam Police Station in Cr.No.403/94 ..Respondent. Appeal filed under Section 374 Cr.P.C. against the judgment made in S.C.No.109/1995 dated 21.11.1995 on the file of Sessions Judge, Vallalar District, Cuddalore. !For Appellants : Mr. V. Gopinath Senior Counsel for Mr.K.S. Rajagopalan ^For Respondent : Mr. V.M.R. Rajendran Addl. Public Prosecutor :J U D G M E N T (Judgment of the Court was made by M.THANIKACHALAM, J.) The accused in S.C.No.109/95, on the file of the Principal Sessions Judge, Cuddalore are the appellants. 2. Upon final report filed by the Inspector of Police, Nellikuppam Police Station, the accused were directed to face the trial, for the offences under Sections 147, 148, 324 & 302 r/w 149 I.P.C. It is the case of the prosecution, that all the accused formed themselves into an unlawful assembly on 22.4.1994 at about 9.00 p.m. at Sundaravandi Village, with the common object of committing riot, that at that time, A1 and A2 were armed with deadly weapons, that in course of the prosecution of their common object, to commit the murder of one Duraisami Gramani, A2 stabbed him with an iron pipe over his chest, A3 to A5 inflicted various injuries over his body with sticks, that A1 caused hurt to Parimalarangan, while A6 caused hurt to Susila and that in view of their sharing of the common intention, to commit the offence, being a member of an unlawful assembly, in prosecution of the common object of that assembly, each one of the accused is liable to be punished, not only as per the individual act committed by them, but also for the collective act, committed by all, causing the death of Duraisami Gramani. 3. The learned Principal Sessions Judge while perusing the materials placed before her, had brought to surface prima facie case, to be proceeded further and in this view, various charges were framed against all the accused. Upon questioning, all the accused refused to plead guilty, denying the story of the prosecution also. 4. 15 prosecution witnesses have been examined to prove the charges levelled against all the accused and in order to manure the oral testimony, aid is sought from 21 documents and 7 material objects. The defence is not only total denial of the charges, but also an alternative case is projected, as if A1 and A2 are the victims, since they have been attacked by P.W.1 and others, and therefore, they are the aggressors. To disprove the weapon said to have been used by the second accused, to cause the injury to the deceased, Dr. Ezhumalai has been examined as D.W.1. 5. The learned Principal Sessions Judge, scanning the materials placed, weighing the same in the proper scale of assessment, had come to the conclusion, that the motives projected by the prosecution, are proved to her satisfaction, that A1 and A2 were armed with deadly weapons viz., M.Os.2 & 3 respectively, that A1 and A6 have caused simple injuries, using deadly weapons and therefore, they should be dealt with under Section 324 I.P.C., that A3 to A6 not only participated in the incident, being the members of the unlawful assembly, but also they have assaulted the deceased, with sticks, thereby causing multiple injuries, in addition to the stab injury caused by A2, by using weapon M.O.3 to Duraisami Gramani and that all the members, knowing fully well, that the offence is going to be committed in prosecution of the common object, participated in the event and in this view, Section 14 9 I.P.C. also would be attracted against some of the accused. Thus, concluding the learned trial Judge convicted A1 and A2 under Section 1 48 of I.P.C., sentenced them to undergo R.I. for one year each, convicted A3 to A6 under Section 147 I.P.C. and sentenced them, each, to undergo R.I. for six months, convicted A1 & A6 under Section 324 I.P. C. for causing injuries to P.W.7 and P.W.2 respectively, and sentenced them to undergo R.I for six months, each, and convicted A2 to A5 under Section 302 I.P.C. sentencing them to undergo life imprisonment, and convicted and sentenced A1 and A6, under Section 302 r/w 149 I.P. C. to undergo life imprisonment, ordering further, all the sentences to run concurrently, which are under challenge before us. 6. The prosecution case in brief: (a) The accused/appellants, numbering six and P.Ws.1, 2, 7 & 8 are all the residents of Sundaravandi Village, which is within the territorial jurisdiction of Cuddalore Sessions Division. One Duraisami Gramani, who is murdered in the incident narrated in the final report, is the father of Deivasigamani (P.W.1), Parimalarangan (P.W.7) and Thiru Shivakumar (P.W.8). Tmt. Susila (P.W.2) is the wife of Duraisami and mother of P.Ws.1, 7 & 8. Accused 1 & 6 are brothers. Accused 2 & 5 are the sons of one Loganathan. Other accused are related to each other. (b) Shivakumar (P.W.8) had illicit intimacy with one Sharada, wife of Kaliaperumal. The accused are related to Kaliaperumal and therefore, they have warned, P.W.8 to stop the illicit intimacy. On 21.4.1994 , when P.W.8 was alone in the house, Krishnamurthi, the first accused and one Vijayan assaulted P.W.8. Further, in the collection of contribution, for the celebration of Mariamman Temple, there was strained relationship between the parties. P.Ws.1, 2 & 7 after their return to the village, from Pudukuppam, were informed by P.W.8 that he was assaulted by the first accused and others. (c) On 22.4.1994 at about 9.00 p.m., P.Ws.1, 7 and their father Duraisami standing nearby one Balakrishnan House raised their voice uttering "ahUk; ,y;yhj rkaj;jpy; ahUlh vd; mz;ziz moj;jJ@/ Hearing this noise, accused 1 & 2 armed with Aruval and pipe, along with other accused, came there. All the accused, questioning the conduct of P.W.8 with an intention to commit murder, assaulted Duraisami. The first accused attacked P.W.7, causing injury on his right hand and head. At the command of the second accused, A3 to A6 have pushed Duraisami, and on his fall, the second accused stabbed him with M.O.3, over his chest. Thereafter, A3 to A6 have also assaulted him, with sticks causing his death. Seeing that her husband is assaulted, when P.W.2 came there, the accused beat her, causing injuries. The incident was witnessed by P.Ws.1, 2, 7 & 8, with the help of the electrical light, burning at the top of Balakrishnan's house. All the accused ran away with the weapons, from the scene of crime. (d) P.W.1 immediately rushed to Nellikuppam Police Station, narrated the incident, which was reduced into writing. On the basis of the statement given by P.W.1, P.W.13 registered a case in Cr.No.403/94 under Sections 147, 148, 323 and 324 I.P.C., and submitted a printed FIR also, to the court concerned. It seems, the original complaint and the original printed FIR has been lost. Thereafter, at the direction of the Judicial Magistrate, with the help of the complaint available in the police station, Exs.P.1 and P.2 were prepared, in the presence of the accused. (e) Thiru Paneerselvam (P.W.15), on receipt of the copy of the FIR, rushed to Sundaravandi Village, started his investigation on 23.4.199 4 at about 6.00 a.m. In the course of the investigation, inspecting the scene of crime, he prepared Ex.P.11, in the presence of P.W.9 and one Chandiragasan, in addition to drawing a sketch Ex.P.17. Photographs were also caused to be taken under M.Os.6 & 7. Between 6.30 and 9 .30 a.m., P.W.15 conducted inquest, over the body of the deceased, in the presence of Panchatdars and witnesses, and the result is Ex.P.18 . He had also examined the eye witnesses, recorded their statements and made arrangement for autopsy, to ascertain the cause of death of Duraisami. (f) In the incident, A1 and A2 also were injured and they have been admitted in the Government Hospital, Cuddalore, which was informed to the police station. P.W.13 went to the police station, at about 5.00 a.m. on 22.4.1993, recorded a statement from the first accused, and on that basis, he had registered a case in Cr.No.404/94 under Section 147, 148, 323 & 324 I.P.C. This case was also taken for investigation by P.W.15 along with Cr.No.403/94. P.W.4., Dr. Jayaraman examining A1 and A2, issued Exs.P.6 & P7 certificate. P.W.14 Dr. Elavarasan, had issued wound certificate for P.W.2 and P.W.7 i.e. Exs.15 & P.16 respectively. (g) At the request of the investigating officer under Ex.P.9, P.W.6 conducted autopsy, on the body of Duraisami at about 3.00 p.m. on 23.4.1994. During the postmortem, he had noticed the following external as well as corresponding internal injur External injuries: 1. Oval shaped incised wound - Right chest 4 cm below the right collar bone 4cm x 4cm depth of the above wound about 12cm long. 2. A lacerated wound 4 cm x 1cm x 1/2 cm right parietal region 3. An abrasion 3cm x 1 cm right knee. Internal Injuries: 1. Fracture on 2nd right rib at costo sternal junction. 2. A tear about 5 cm in the right lung 3. A tear 3cm in length in the pericardium. 4. A tear 2cm in length over the right artrium. From the nature of injuries and the effect caused by them, he opined, under Ex.P.10, that the deceased died of shock and hemorrhage. (h) In continuation of the investigation, P.W.15 arrested A4 and A5 on 23.4.1994, at about 7.00 p.m. at Karamani Kuppam Bus Stop. On 24.4 .1994 at about 4.00 p.m., he arrested A1 and A2 in front of the Government Hospital. The second accused confessed under Ex.P.13, about the concealment of weapons, M.Os.2 & 3, in the presence of P.W.10 and another, which were recovered under Ex.P.14. The material objects, recovered during the investigation were sent for chemical examination, through Court and reports were obtained. The investigating officer who had recorded the statements of the accused, came to the conclusion, that no case is made out, on the complaint given by A1, whereas a case was made out, against the accused under the above said sections and in this view, he filed the final report, resulting trial, culminating into conviction, as aforementioned. 7. Heard the learned senior counsel, Mr. V. Gopinath appearing for the appellants and the learned Additional Public Prosecutor. 8. The learned Senior Counsel for the appellants, Mr. V. Gopinath submitted that the motives alleged are not at all proved to the satisfaction of the Court, in order to say that the offence would have been committed by the accused and in this view, the conviction is unsustainable. It is the further submission of the learned Senior Counsel that the prosecution has not even made an attempt to explain the injuries sustained by A1 and A2, in the same incident, which is fatal to the prosecution, creating doubt even about the genesis of the case and in this view, the accused are entitled to the reasonable benefit of doubt, since they could not be described as aggressors. In the evidence of prosecution witnesses, there are innumerable contradictions and omissions, not fitting with the probability and therefore, relying upon their oral testimony, is unsafe, is the further contention. It was pointed out, that there is no material to indict that all the accused formed themselves into an unlawful assembly members or acted in prosecution of the common object of that assembly and in that view, convicting some of the accused, those who have not actually caused injuries to the deceased, is against law and in this view, they are entitled to an acquittal. He has further pointed out, that the weapon said to have been used by the second accused, which is marked as M.O.3, would not have been deployed, for causing stab injury to the deceased, and in this view, a basic doubt had arisen spontaneously, regarding the weapon used and the part played by the second accused also and in this view, convicting the second accused as well as convicting accused 3 to 5, for the alleged assault said to have been committed by them, using stick, under Section 302 I.P.C. is not warranted. On these lines, a fervent plea was made for the acquittal of all the accused. 9. The learned Additional Public Prosecutor would contend that the non explanation of the injuries over the person of A1 and A2 is not fatal to the prosecution, since one of the witnesses also explained the same. It is the further contention of the Additional Public Prosecutor, that the postmortem doctor, who probed the injuries upon the body of Duraisami, had come to the conclusion that those injuries would have been caused by M.O.3 and there is no reason to discard the same, accepting the evidence of D.W.1 and in this view, he would contend that M.O.3 is the weapon used by A2, to cause the stab injuries to the deceased. In addition, he supported all the reasoning and findings of the trial Court, to retain the conviction. 10. Thiru Duraisami, the father of P.W1 sustained injuries, on 22.4.1994 at about 9.30 p.m. is not very much in dispute. The case of the accused appears to be, that due to enmity against Duraisamy in the village, somebody might have assaulted and murdered him, and taking advantage of the same, a false case is foisted against the accused. In fact, it is the case of the defence also that A1 and A2 have been assaulted and injured by P.W.1 and others and in order to escape from the punitive action, they have impleaded all the accused, taking advantage of the death of Duraisami, elsewhere. 11. At the request of the investigating officer, P.W.15, P.W.6 conducted autopsy over the body of Duraisamy and noticed an oval shape incised wound, on the right chest, 4 cm below the right collar bone, to a depth of 12 cm. The other injuries are simple in nature, such as abrasion and laceration. The first injury caused damages to the right lung, as well as a tear in the Pericardium. All the internal injuries, noticed by the doctor correspond to the external injury No.1, and that injury alone was fatal in nature, leading to the instantaneous death of Duraisamy. The evidence given by P.W.6, regarding the cause for the death of Duraisamy is not challenged. The doctor has opined further that, it is possible, by using the weapon like M.O.3, to cause the external injury No.1 viz., an oval shape incised wound. This aspect of the case spoken by P.W.6, is challenged by the defence, even by examining another expert as D.W.1, which we will discuss infra. Though the doctor noticed four external injuries, according to P.W.5, all the injuries are not fatal or in other words, injuries 2, 3 & 4 were not the cause for the death of Duraisamy. Injuries 2 & 3 are lacerated wounds and injury No.4 is an abrasion, more or less negligible in nature. Though, the first injury was found on the right parietal region, as far as wounds 3 & 4 are concerned, they were on the forearm and right knee and therefore, certainly these injuries would not have caused any hemorrhage, leading to the death. In the same manner, though the second injury was noticed on the right parietal region, it has not caused any internal injury, showing serious in nature and in this view, injury No.2 also could not be the cause for the death and in fact, it is the evidence of the doctor also. Therefore, the persons who have caused injuries 2 to 4 could not be made liable directly, to answer Section 302 I.P.C. as did by the trial Court. If at all, they could be called upon to answer under Section 34 I.P.C. or at the worst, under Section 149 I.P.C., if case is made out. As seen from the charges framed, accused 2 to 5 were called upon to answer the charge only under Section 302 I.P.C. The trial Court unfortunately, without analysing the nature of evidence, and the nature of injuries said to have been caused by the other accused, found the accused 3 to 5 also guilty, which is not acceptable to us, since we find nil evidence against them, to rope in under Section 302 I.P.C. If at all as aforementioned, they could be made answerable only under Section 149 I. P.C. or for lesser offence, according to the overt act. It is the repeated case of the prosecution, that the second accused alone caused fatal injuries to Duraisamy by using M.O.3, that too, declaring that he should be finished off. Under the above circumstances, we conclude that Duraisamy died due to the injuries sustained by him, on his right chest on 22.4.1994 at 9.30 p.m. If this injury had been caused by the second accused, by using MO3 pipe, then his act should squarely come within the meaning of 302 I.P.C. 12. Thiru Sivakumar, P.W.8 appears to be the cause, for the strained relationship between the parties and the incident said to have taken place on 21.4.1994 at about 1.00 a.m. and subsequent events also. P.W.8 would state that on 21.4.1994, when he was sleeping in the house, in the absence of the family members, Krishnamurthy, Anandan (A1) and his brother Vijayan came to his house, took him to the street, beat him severely with stick. He further says thereafter, he went to the doctor for treatment. P.W.5, Dr. Raja has deposed that on 24.4.199 4, at 1.50 p.m., he examined Shivakumar, who informed to him that he was assaulted by four known persons with pipe, sticks and Aruval on 2 2.4.1994 at 1.00 a.m. as noted in Ex.P.8. He had noticed five injuries. As seen from the cross examination, the information furnished by P.W.8, to P.W.5 is not challenged. It is the case of the defence also, to certain extent that P.W.8 misbehaved with the women folk of the village. Aggrieved by the conduct of P.W.8, it appears A1 and others had attacked him in the absence of his family members and the same was challenged by P.W.7 and his family members on their return. Therefore, the motive alleged by the prosecution for the incident, must be correct and that is why, in the incident, A1 and A2 also were injured, for which to certain extent, self defence is also pleaded. In this view, accepting the case of the prosecution regarding the motive, we have to find out, whether the motive was the cause for the death of Duraisamy, and for the injuries sustained by the prosecution witnesses. 13. The case of the prosecution, that all the accused should be dealt with, either under Section 147 or under Section 148 I.P.C., appears to be the later invention and to attract this offence, practically we find nil evidence, whereas, we find strong evidence that the accused would not have formed themselves, into an unlawful assembly. The definition to an unlawful assembly would indicate that the unlawful assembly must be to commit any mischief or criminal trespass or to show of criminal force, to compel any person to do what he is not legally bound to do, or to deprive any person regarding the possession and enjoyment of certain property or to enforce any right by means of unlawful method. When an assembly of 5 or more persons is designated an "unlawful assembly", with a common object of committing any rioting or any offence, then only each member of that unlawful assembly could be made liable individually, since they did the illegal act, in prosecution of the common object of that assembly. These necessary ingredients as enumerated under Sections 141 and 149 I.P.C. are not at all available in this case, which could be seen, even from the oral evidence of P.W.1. 14. It is not the case of the prosecution that all the accused formed themselves into an unlawful assembly and came to the place of the victims, to assault them, with such a common object. On the other hand as spoken by PW1, he alone invited the accused, challenging their previous act. For better appreciation, we quote the same wordings as uttered by PW1 which reads "ahUk; ,y;yhj rkaj;jpy; ahUlh vd; mz;zd; rptFkhiu moj;jJ". In this process, probably accepting the challenge, some of the accused were compelled to meet PW1. It is the case of PW8 also that only after the challenge by PW7, all the accused came there, thereby showing that there would not have been any unlawful assembly with common intention. Therefore, in our view, it could not be said that all the accused have formed themselves into an unlawful assembly, in order to attack Duraisamy, that too, with the common object of murdering him. PW1 further says only after his challenge, all the accused came there and challenged him, questioning, why they were giving protection to a person, who i s outraging the modesty of the women in the village. Considering the previous incident, which took place, as projected by the prosecution and the subsequent challenge by PW1, we are of the firm opinion that the accused would not have gathered, with a common object of assaulting, either PW1 or Duraisamy, as the case may be. Therefore, all the accused, could not be convicted either under Section 147 or under Section 148 I.P.C. even assuming that some persons were armed with deadly weapons. The accused could be convicted individually, according to their overt act and if any offence is made out, on the basis of the evidence. Under the above circumstances, we are persuaded to accept the contention of the learned senior counsel, that the accused are not liable to be convicted under Sections 147 and 148 I.P.C. and in this view, we conclude accused 1 & 2 are also not guilty under Section 148 and accused 3 to 6 are not guilty under Section 147 I.P.C. In this view, the conviction slapped by the trial Court for the above offences shall go. 15. The presence of A3 to A5 as spoken by all the witnesses, in our opinion, they do not form part of the unlawful assembly members. P. Ws.1, 2, 7 & 8 though have spoken as if A3 to A5 also had beat the deceased, they were unable to say which injury was caused by which accused using which weapon etc. Therefore, in the absence of specific overt act as against A3 to A5, we are unable to convict them even for the lesser offence, though they are relieved from the major offence under Section 302 I.P.C. 16. As evidenced by Exs.P.6 and P7, A1 and A2 have reported to P.W.4 , that they have been assaulted by four known persons on 22.4.1994 at about 8.30 p.m. at Sundaravandi. The accused are prosecuted, for the incident said to have taken place on 22.4.1994 at about 9.00 p.m. Though we find some difference, regarding the time factor, it is the submission of the learned senior counsel appearing for the accused, that the accused 1 & 2 also were injured, on the same day, more or less at the same incident. Because of this reason alone, a strenuous argument was made, before us that the non-explanation of the injuries, sustained by accused 1 & 2 is fatal to the prosecution, since it will disclose, the suppression of material facts, doubting about the genesis of the prosecution case itself. Hence, even ignoring the time factor, we have to take that accused 1 & 2 also sustained injuries, in the same incident, for which they are prosecuted. 17. The first accused sustained only a laceration of the dimension 5 x .5 x .5 cm on the left parietal region of scalp and this injury is admittedly simple in nature. The second accused Arumugham sustained two injuries; one on the right parietal region