BAIL SLIP Crl.M.P.No.1311 of 2003 in Crl.A.No.227/2003: The Appellant / Accused namely 1) Ramamoorthy and Subramanian was directed to be released on bail by the Hon'ble Court in Crl.M.P.No.1311 of 2003 in Crl.A.No.227/2003 Crl.M.P.No.3479 of 2003 in Crl.A.No.101/2003: The Appellant / Accused namely Murugesan was directed to be released on bail by the Hon'ble Court in Crl.M.P.No.3479 of 2003 in Crl.A.No.101/2003. Crl.M.P.No.6301 of 2003 in Crl.A.No.1061/2003: The Appellant / Accused namely Ramasamy was directed to be released on bail by the Hon'ble Court in Crl.M.P.No.6301 of 2003 in Crl.A.No.1061/2003 Crl.M.P.No.8930 of 2004 in Crl.A.No.920/2004: The Appellant / Accused namely 1) Shanmugam and 2) Mahendran was directed to be released on bail by the Hon'ble Court in Crl.M.P.No.8930 of 2004 in Crl.A.No.920/2004. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.Nos.227, 101 and 1601 of 2003 and 920 of 2004 1. Ramamoorthy 2. Subramaniam .. Appellants in Crl.A.No.227 of 2003 Murugesan .. Appellant in Crl.A.No.101 of 2003 Ramasamy .. Appellant in Crl.A.No.1061 of 2003 1. Shanmugam 2. Mahendran .. Appellants in Crl.A.No.920 of 2004 Vs. State through Inspector of Police, Tirupur South Police Station, Coimbatore District. (Crime No.1320 of 2001) .. Respondent in all the Criminal Appeals Criminal Appeals against the judgment of conviction and sentence dated 29.11.2002 in S.C.No.336 of 2002 on the file of the Second Additional Sessions Court, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ For appellants in Crl.A.No.227 of 2003 : Mr.R.Natarajan For appellants in Crl.A.No.101 & 1061 of 2003 & 920 of 2004 : Mr.N.A.Ravindran For respondent in all the appeals: Mr.I.Paul Nobel Devakumar, Govt. Advocate (Crl.Side) JUDGMENT These Criminal Appeals arise out of the judgment of conviction and sentence passed by the learned Second Additional Sessions Judge, Coimbatore, dated 29.11.2002 in S.C.No.336 of 2002, in and by which, A-1, A-2, A,4 and A-6 (appellant-A-1 in Crl.A.No.101 of 2003, first appellant (A-2) in Crl.A.No.920 of 2004, first appellant (A-4) in Crl.A.No.227 of 2003 and second appellant (A-6) in Crl.A.No.227 of 2003) were convicted for the offences under Sections 147, 342, 323 and 304 (Part-2) IPC and A-3 (appellant in Crl.A.No.1061 of 2003) and A-5 (second appellant in Crl.A.No.920 of 2004) were convicted for the offences under Sections 147, 342 and 304 (Part-2) IPC and they were sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.500/-, in default, to undergo one month rigorous imprisonment for the offence under Section 147 IPC, six months' rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo one month rigorous imprisonment, for each of the offences under Sections 342 and 323 IPC and five years' rigorous imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo six months' rigorous imprisonment, for the offence under Section 304 (Part-2) IPC, in respect of the respective accused. The sentences imposed on the accused were ordered to run concurrently. Challenging the said conviction and sentence, the present Criminal Appeals have been filed. 2. The case of the prosecution is as follows: (a) A-1 is the father of P.W.1, A-3 is the father of P.W.2 and A-4 is the elder brother of P.W.3. A-5 is the maternal uncle of P.W.1. A-1 to A-6 are relatives. (b) On 15.11.2001 at about 12 noon, when P.Ws.1 to 3 were attending the nature's call, the deceased Pallaan alias Muthupandi, P.W.8 Murali, P.W.9 Ragu and their friends, committed the theft of wrist watches from P.W.1 Karthik and P.W.2 Vijay and immediately, they have gone to their village and intimated to their parents. A-1 to A-6 took P.W.1 Karthik, P.W.2 Vijay and P.W.3 Loganathan to Tirupur Bus Stand, from where they took P.W.8 Murali and P.W.9 Raghu and the deceased Pallaan to Jamunai Pallam Village and they assaulted https://hcservices.ecourts.gov.in/hcservices/ the deceased and P.Ws.8 and 9 with M.O.1 (split pieces of bamboo sticks) and in that transaction, the deceased Pallaan alias Muthupandi died on the spot itself. P.W.8 and P.W.9 sustained injuries. (c) P.W.8 and P.W.9 went to Tiruppur Police Station and intimated the matter to the Sub-Inspector of Police. With the medical memo, they were sent to the Government Hospital, where P.W.7 Dr.Suseela treated P.Ws.8 and 9 and gave Exs.P-12 and P-13 wound certificates. (d) P.W.1 Karthik went to the Police Station and gave Ex.P-14 complaint to P.W.10 Sub-Inspector of Police, who registered a case in Cr.No.1320 of 2001 and prepared Ex.P-15 F.I.R. for the offences under Sections 147, 342, 323 and 302 IPC and the same has been forwarded to the concerned Magistrate, who received the same. (e) P.W.11 Inspector of Police took the matter for investigation and went to the place of occurrence and prepared Ex.P-16 observation mahazar and drew Ex.P-17 rough sketch in the presence of the witnesses and conducted inquest over the body of the deceased Pallaan alias Muthupandi. He also prepared Ex.P-18 inquest report. After the inquest, he sent the dead body for autopsy along with Ex.P-10 requisition. (f) P.W.6 Dr.Bhuvaneswari conducted autopsy on 16.11.2001, after the dead body has been identified by the concerned Police. She issued Ex.P-11 post-mortem certificate, in which the following injuries were indicated: "... Its condition then was Rigor mortis passed off in upper limbs and present in lower limbs. Post-mortem commenced at 1.00 p.m. on 16.11.01. Appearances found at the post-mortem on a body of a male about 18 years with eyes closed, left eye blackened, mouth closed, tongue kept inside, bleeding through nostrils present. Teeth 8 | 8 ----- 7 | 8 External injuries Multiple reddish brown contusion around the neck. (1) Multiple reddish abrasion on both sides of back. (2) An abrasion on the left ear about 2 cm x 2 cm. (3) a red contusion on the left cheek with blacking of eye. (4) Fracture mandible on the left side present. O/D No rib Fracture, Hyoid bone fractured. Tracheal rings dislocated. Soft tissues of neck congested red blood clots present. Lungs: Normal congested. Heart: Normal Right side chambers contain 50 ml of Fluid https://hcservices.ecourts.gov.in/hcservices/ blood, left side empty. Stomach: empty. Small and large intestines normal filled with gas. Liver, Spleen, Kidneys: Normal congested O/D of skull about 50 gm of blood clot found below the scalp on occipital and temporal region. Left side of neck about 75 gm of blood clots found subdurally on the left side of brain. Spinal column intact. All injuries are of antemortem in nature. OPINION: The deceased would appear to have died of shock and Heamorrhage due to multiple injuries to brain about 24-30 hrs. prior to commencement of autopsy." (g) On 16.11.2001 at about 5 a.m., P.W.11 arrested A-1 to A-5. At that time, A-1 gave a confession, which was recorded in the presence of P.W.4 Shanmugam and P.W.5 Kumaraswamy and the admitted portion is marked as Ex.P-19. In pursuance of the same, at about 6 a.m., A-1 has confessed that he is ready to hand over the hidden weapons and they have also been recovered under Ex.P-20 mahazar. M.O.1 bamboo sticks were recovered under Ex.P-22 seizure mahazar. (h) After autopsy, the Police Constable who is connected with the autopsy, has handed over the dead body of the deceased to the relatives and produced the belongings of the deceased in M.Os.2 to 4 under Ex.P-23 special memo. That has been received by P.W.11 investigating officer under Form 95. (i) P.W.11 Inspector of Police gave a requisition to the Judicial Magistrate-2, Tirupur, for sending the material objects for chemical examination under Ex.P-24. That has been sent along with Ex.P-25 letter of the Court. Reports were received from the Forensic Sciences Laboratory under Exs.P-26 to 28. (j) After concluding the investigation, the investigating officer concerned filed the charge sheet against the accused for the offences under Sections 147, 342, 323, 325 and 302 read with 149 IPC, which was taken on file. The learned Judicial Magistrate-2, Tirupur, after following the procedures in furnishing the copies to the accused, committed the case to the District and Sessions Court. 3. The learned Second Additional District and Sessions Judge, Coimbatore, after framing necessary charges, questioned the accused and the accused pleaded not guilty. During the course of trial, P.Ws.1 to 11 were examined, Exs.P-1 to P-28 were marked and M.Os.1 to 4 were produced. 4. P.Ws.1 to 5 turned hostile. On the basis of the evidence of P.Ws.8 and 9, who are the injured eye-witnesses, which is corroborated by the evidence of P.Ws.6 and 7 Doctors, the learned Second Additional Sessions Judge, Coimbatore, convicted the accused under Sections 147, 342 323 and 304 (Part-2) IPC and sentenced them, https://hcservices.ecourts.gov.in/hcservices/ as indicated above. Against that, the present Criminal Appeals have been filed by the appellants-A.1 to A.6. 5. Challenging the conviction and sentence imposed by the trial Court, the learned counsel for the appellants-accused would contend that P.Ws.8 and 9, who are the injured eye-witnesses, have not deposed with regard to the specific overt act against the accused, that there is a material contradiction between the ocular evidence and the medical evidence, that the deceased sustained multiple brain injuries and that in Ex.P-11 post-mortem certificate, P.W.6 Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries to brain. Learned counsel for the appellants-accused would further contend that there is no evidence to corroborate the head injuries and hyoid bone fracture. P.Ws.8 and 9 have not deposed about the injuries sustained by the deceased. So, the trial Court has committed error in convicting the accused under Section 304 (Part-2) IPC. Since the deceased has sustained only simple injuries, the appellants-accused are only liable to be convicted for the offence under Section 323 IPC and not under Section 304 (Part-2) IPC. Hence, he prayed that the appellants- accused are only guilty of the offence under Section 323 IPC and not under Section 304 (Part-2) IPC. Learned counsel for the appellants- accused would further contend that no identification parade was conducted and P.Ws.8 and 9 have identified the accused only before the Court and that will not be considered as per the decision of the Supreme Court reported in 2000 (2) SCJ 139 (State of U.P. Vs. Ashok Dixit and another). Learned counsel for the appellants would also rely upon the decisions of the Supreme Court reported in 2004 SCC (Cri) 1954 (Rudrappa Ramappa Jainpur Vs. State of Karnataka) and 2003 (2) L.W. (Crl.) 852 (Bhima @ Bhimrao Sida Kamble and others Vs. State of Maharashtra) to substantiate his contentions. 6. Learned Government Advocate (Crl. Side) took through the oral evidence of P.Ws.8 and 9 and submitted that P.Ws.8 and 9 are the injured eye-witnesses and they have categorically and clearly deposed before the trial Court that they were assaulted by A-1 to A-6 along with others. Since P.W.8 in his cross-examination itself has stated that they know the accused, as they were doing cooking work jointly, there is no need for conducting identification parade. They identified the accused before the Court. Even though P.W.1 has disowned his complaint, he admitted his signature. All the things have been considered by the trial Court in proper perspective and it came to the correct conclusion and there is no irregularity or illegality in the conviction and sentence imposed on the appellants- accused by the trial Court. Learned Government Advocate further submitted that since there is no motive, the trial Court has noticed that since the injuries were sustained by the deceased on the vital organs, the accused were aware that such injuries will be causing instantaneous death and in such circumstances, the trial Court has https://hcservices.ecourts.gov.in/hcservices/ considered this aspect and came to the correct conclusion that the accused are guilty of the offence under Section 304 (Part-2) IPC. Hence, there is no need to interfere with the findings of the trial Court. Learned Government Advocate (Criminal Side) relied on the decision of the Supreme Court reported in 2006 (2) SCC (Cri) 505 (Dhaneswar Mahakud Vs. State of Orissa). He prayed for dismissal of the appeals. 7. The alleged occurrence took place on 15.11.2001 at 12 noon when P.Ws.1 to 3 were attending their nature's call at Jamunai Pallam and at that time, P.Ws.8 and 9 and the deceased Pallaan alias Muthupandi committed theft of wrist watches, valued at Rs.500/- from P.W.1 and P.W.2. Then, they intimated the fact to the accused and they went to Tirupur Bus Stand, from where they caught hold of the deceased Pallaan alias Muthupandi and P.Ws.8 and 9, who were identified by P.Ws.1 and 2 and then they came to the Village and they tied them in a water tap. The above facts are admitted and proved by the prosecution. 8. It is also proved that P.Ws.8 and 9 and the deceased were assaulted by the mob containing 20 members, including A-1 to A-6. At this juncture, learned counsel appearing for the appellants would contend that as soon as the incident was over, after receipt of the complaint, P.Ws.8 and 9 were sent to the Government Hospital along with medical memo, and P.W.7 Doctor has treated them, who issued Exs.P-12 and 13 wound certificates. In Ex.P-12 wound certificate, pertaining to P.W.9 Raghu, it is stated that P.W.9 was assaulted by 20 unknown persons who came in a gang near Jamunai Pallam on 15.11.2001 at about 12.30 p.m. using the wooden reaper and stones and it is stated in Ex.P-12 that P.W.9 Raghu sustained multiple linear abrasions over right and left side of the neck, front of the chest, back of the chest, right and left upper arms and also multiple linear abrasions over right and left side of the chest. In Ex.P-13 wound certificate pertaining to P.W.8 Murali, P.W.8 has stated that he was alleged to have been assaulted by 20 persons near Jamunai Pallam on 15.11.2001 at about 1.30 p.m. using iron, wooden reaper and stones and he sustained three linear abrasions over right and left side of the back of the chest. Thus, P.Ws.8 and 9 have sustained simple injuries. In such circumstances, there is no evidence before the Court to show that A-1 to A-6 alone caused the fatal injuries on the deceased Pallaan alias Muthupandi, which resulted in his instantaneous death. So, the evidence of Exs.P-12 and P-13, which are public documents, clearly prove that P.Ws.8 and 9 were assaulted by 20 persons, but others were not included as accused. So, the trial Court has committed error in convicting the appellants-accused under Section 304 (Part-2) IPC. 9. At this juncture, learned Government Advocate (Criminal Side) would contend that it is true that in Exs.P-12 and 13, it was stated that 20 unknown persons assaulted P.Ws.8 and 9, but in the complaint, https://hcservices.ecourts.gov.in/hcservices/ which was given by P.W.1, he has mentioned the name of six persons. P.Ws.8 and 9, who are the injured eye-witnesses, at the time of deposition before the Court, stated that they were assaulted by the accused. In the above circumstances, no reliance can be placed on the statement given by P.Ws.8 and 9 in Exs.P-12 and 13 wound certificates which were given at the time of examination by P.W.7 Doctor. 10. While considering Exs.P-12 and P-13 wound certificates, even though P.Ws.8 and 9 have stated before P.W.7 Doctor that they were assaulted by 20 unknown persons, it is appropriate to consider their evidence while they were in the witness box. P.W.8 in his evidence has stated in chief examination that when they were at Tirupur Bus Stand, six accused persons came along with them and three boys also accompanied them and all the nine persons took them to Jamunai Pallam Village, where they were assaulted by wooden reaper and iron chain and stones. P.W.8 Murali stated in his chief examination, as follows: @/////m';F M$h; vjphpfs; 6 ngUk; te;jhh;fs;/ ,e;j 6 ngUld; 3 rpW igad;fSk; te;jhh;fs;/ me;j 3 igad;fSk; M$h; vjphpfs; 6 ngUk; vd;ida[k; vd;ndhL ,Ue;j kw;w 2 ngiua[k; moj;J ,Gj;Jf; bfhz;L $Kid gs;sj;jpw;F bfhz;L te;jhh;fs;/ fl;il kw;Wk; , Uk;g[ r';fpypfs; kw;Wk; fw;fshy; 3 ngiua[k; moj;jhh;fs;/////@ In his chief examination, P.W.8 has fairly conceded that he is able to identify A-1 to A-6. In his cross-examination, P.W.8 has fairly conceded that he has given all the particulars during the statement given under Section 161 Cr.P.C. to the Police. 11. P.W.9 Raghu, who is another injured eye-witness, has stated that the accused has taken them to their place where they were assaulted with stones and stick. He identified M.O.1 bamboo sticks. In his cross examination, he has stated that he was assaulted by 20 persons and they assaulted and they gave one beat each, whereas, six accused alone have assaulted and caused injuries to them. P.W.9, in his cross examination, has stated as follows: @/////Rkhh; 20. 25 ngh; bfhz;l Fk;gy; v';fis jhf;fpdhh;fs; vd;W ehd; nghyPrplk; brhy;ytpy;iy/ 20 ngh; Fk;gy; md;W te;J vd;id moj;jhh;fs; vd;W brhy;ypa[s;nsd;/ xU 20 ngh; te;jhh;fs;/ MSf;bfhU mo moj;jhh;fs;/ gpd;dpl;L ,e;j vjphpfs; jhd; gpd;dpl;L moj;J fhag;gLj;jpdhh;fs;////@ 12. In the abovesaid circumstances, while considering the evidence of P.Ws.8 and 9 when they were in the witness box, they have categorically stated that A-1 to A-6, the appellants herein alone have caused injuries to them and to the deceased. So, no reliance can be placed on the statement given by P.Ws.8 and 9 to P.W.7 Doctor in https://hcservices.ecourts.gov.in/hcservices/ Exs.P-12 and P-13 wound certificates. 13. At this juncture, learned counsel for the appellants-accused took me through the oral evidence of P.W.6 Doctor, who conducted autopsy and issued Ex.P-11 post-mortem certificate. Learned counsel submitted that P.W.7 Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries to the brain about 24-30 hours prior to the commencement of autopsy. Learned counsel also culled out the following portion of Ex.P-11 post-mortem certificate: "...Hyoid bone fractured. Tracheal rings dislocated. Soft tissues of neck congested red blood clots present. Lungs: Normal congested. Heart: Normal Right side chambers contain 50 ml of Fluid blood, left side empty. Stomach: empty. Small and large intestines normal filled with gas. Liver, Spleen, Kidneys: Normal congested O/D of skull about 50 gm of blood clot found below the scalp on occipital and temporal region. Left side of neck about 75 gm of blood clots found subdurally on the left side of brain...." 14. Thus, the aforesaid injuries have caused instantaneous death to the deceased Pallaan alias Muthupandi. But, no evidence has been adduced by the prosecution to prove that these grievous injuries have been caused only by the appellants-accused. At this juncture, learned counsel for the appellants relied on the decision of the Supreme Court reported in 2003 (2) L.W. (Crl) 852 (cited supra) and submitted that the object of the mob was to teach them a stern lesson who are said to be bullies in the Village. In the circumstances, the common object was to commit the offences under Section 323 and Section 325 IPC read with Section 147/149, and not under Section 304 (Part-2) IPC. In the said judgment of the Supreme Court, it is held as follows in paragraph 9: "9. When a large number of persons were armed only with sticks or pelted stones which they could find anywhere either near the fields or on their way and it was not established as to who specifically attacked whom, it is not clear as to whether the intention was to cause death. It is more probable that the intention was to give hard beating only. Even if we accept the case that the deceased-Vithal was pursued right upto the 'wada', the object of the mob was to teach him a stern lesson who is said to be a bully in a village. In the circumstances and in the light of evidence, we must hold that the reasonable inference to be drawn is that the common object was to commit offences under Section 323 and Section 325 read with Section 147/149 IPC and not under Section 302 read with Section 149 IPC. https://hcservices.ecourts.gov.in/hcservices/ The trial Court as well as High Court appear to have lost sight of crucial aspects." 15. While applying the abovesaid judgment of the Supreme Court to the facts of this case, to teach a lesson to P.Ws.8 and 9 and the deceased Pallaan alias Muthupandi, the appellant-accused and others assaulted them. But they had no intention to cause the death of the deceased. Admittedly, P.Ws.8 and 9 have sustained only simple injuries, whereas, the deceased Pallaan alone died. 16. Learned counsel for the appellants also relied upon another decision reported in 2004 SCC (Cri) 1954 (cited supra) and contended that there is no evidence to show that there was a common object of the unlawful assembly so as to commit the murder of the deceased or with a common object to beat and cause grievous hurt to him. At this juncture, it is appropriate to scrutinise the medical evidence on record to find out the nature of injuries inflicted. As already stated, as per Exs.P-12 and 13 wound certificates, P.W.9 sustained only two simple injuries and P.W.8 sustained only one simple injury. But the deceased has sustained four injuries, as is evident from Ex.P-11 post-mortem certificate, which are as follows: "External injuries Multiple reddish brown contusion around the neck. (1) Multiple reddish abrasion on both sides of back. (2) An abrasion on the left ear about 2 cm x 2 cm. (3) a red contusion on the left cheek with blacking of eye. (4) Fracture mandible on the left side present." 17. It is true that on the left side of the neck of the deceased, there was a blood clot of 75 gm found subdurally on the left side of the brain and 50 gm of blood clot found below the scalp on occipital and temporal region of the deceased. The hyoid bone got fractured and the tracheal rings got dislocated and these will be caused only on throttling, but no one has deposed that the accused throttled the deceased Pallaan alias Muthupandi. No one has deposed that the injuries have been caused only by the appellants herein. Even though the injuries have caused death, which was due to shock and haemorrhage, as a result of injuries to the vital organs, and the death was the cumulative effect of all the injuries, because, P.W.6 Doctor has opined that the deceased would appear to have died of shock and hemorrhage due to multiple injuries to brain. 18. In the abovesaid circumstances, even though the injuries have caused instantaneous death of the deceased, I am of the view that the object of the unlawful assembly was not to commit the murder of the deceased, but certainly, to cause some injuries. https://hcservices.ecourts.gov.in/hcservices/ 19. In the decision of the Supreme Court reported in 1994 SCC (Cri.) 1694 (Shivalingappa Kallayanappa Vs. State of Karnataka), wherein, in similar circumstances, the Supreme Court found that the appellants-accused therein were guilty of the offence under Section 326 read with 149 IPC and only two of the accused who had caused injuries resulting in the death of the deceased, were held liable for their individual acts and punished under Section 302 IPC. While applying the said decision of the Supreme Court to the facts of the present case, the appellants herein were convicted for the offence under Section 147 IPC. It is not the case of the prosecution that the appellants-accused possessed deadly weapons, and so, no charge sheet was filed under Section 148 IPC. 20. There is a contradiction between the evidence of P.Ws.8 and 9 in respect of the wooden reaper alleged to have been used by the appellants-accused. In such circumstances, while applying the said decision of the Supreme Court reported in 1994 SCC (Cri) 1694 (cited supra) to the facts of the present case, since the deceased Pallaan and P.Ws.8 and 9 have committed dacoity while the boys--P.Ws.1 to 3 were attending to nature's call and they went to Tirupur Bus Stand and this factum has been intimated to the parents of the boys and so, A-1 to A-6 went to Tirupur Bus Stand along with their boys, P.Ws.1 to 3 after identifying P.Ws.8 and 9 and the deceased and