Bail Slip The Appellant/Accused No.1 viz.Mohan, S/o.Amirthalingam was directed to release on bail as per order of the Court dt.16.10.2008 and made in MP.No.1/2008 in Crl.Appeal No.489/2008 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NOS.489 AND 775 OF 2008 AND 212 OF 2009 Mohan .. Appellant/Accused No.1 in CA.No.489 of 2008 Vasu @ Vasudevan .. Appellant/Accused No.3 in CA.No.775 of 2008 D.Prabhu .. Appellant/Accused No.4 in CA.No.212 of 2009 Vs. State rep. by Inspector of Police, Saravanampatti Police Station, Coimbatore District (Crime No.603 of 2007) .. Respondent in all the appeals These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Sessions Judge for Exclusive trial for Bomb Blast Cases, Coimbatore made in S.C.No.50 of 2008, dated 28.5.2008. For Appellant in Crl.A.489/08 : Mr.V.Bharathidasan For Appellant in Crl.A.775/08 :Mr.K.Govindaraj For Appellant in Crl.A.212/09 :Mr.A.Abdul Lathif For Respondent : Mr.N.R.Elango, APP - - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern three appeals, namely Criminal Appeal Nos.489,775 of 2008 and 212 of 2009. 2.Criminal Appeal No.489 of 2008 has been preferred by A1, Criminal Appeal No.775 of 2008 is filed by A3 and Criminal Appeal No.212 of 2009 is brought forth by A4, challenging the judgment of the Sessions Court for Exclusive Trial of Bomb Blast Cases, Coimbatore made in S.C.No.50 of 2008, whereby the appellants herein along with others stood charged, tried and found guilty as follows: Accused Charges Findings Sentence A1 S.307 IPC Guilty Seven Years RI A3 and A4 S.307 r/w 34 IPC Guilty Seven Years RI A3 S.302 IPC Not Guilty Life Imprisonment and fine Rs.1000/- - i/d 1 month R.I. A-1 and A-4 S.302 r/w 34 IPC Guilty Life imprisonment each and to pay a fine of Rs.1000/-, in default to undergo one month A-4 S.307 IPC Modified Guilty U/s 324 IPC 2 years RI A1,A2 and A3 S.307 r/w 34 IPC Modified Guilty U/s 324 r/w 34 IPC A1/A2/A3 2 years RI A-2 S.324 IPC Guilty 2 years RI A1/A3/A4 324 r/w 34 IPC Not Guilty 2 years RI The sentences were ordered to run concurrently. Out of those four convicted by the trial Court, A1,3 and 4 have preferred these appeals. 3.The short facts necessary for the disposal of these appeals can be stated as follows: a)P.W.1 is the resident of Vennandur, Rasipuram Taluk, Namakkal District. He was working in the construction site in KGISL Complex at Saravanampatti, Coimbatore. The accused were also working along with him. They were all working under the supervision of one Ayyavu. A1 was the supervisor for PW1 during the relevant time. A1 to A3 were also employed therein and they were staying along with PW1. The https://hcservices.ecourts.gov.in/hcservices/ payments though have to be made by Ayyavu, A1 used to make the payment to all the workers. The wages were not being paid properly and there were arrears of two months salary. Due to the non-payment of wages, their family members advised them to terminate the work and come out of the job. At one stage, the father of PW1 viz., Kandasamy and father of Raja, viz., Palaniappan came to Coimbatore on 28.6.2007 to settle the issue of non- payment of wages. They approached Ayyavu for payment, who asked them to meet A1,Mohan, since the cash payment was entrusted to him. b)On 3.7.2007 by around 9 p.m., PW1 and his father Kandasamy approached Ayyavu and demanded payment,for which, Ayyavu gave a routine reply. Immediately, PW1 and his father around 12.00 midnight went to the hut where Mohan used to stay and found a person sleeping outside, but Mohan was not there. PW1 gave a waking call. The said person viz.,Prabhu woke up and PW1 enquired him about Mohan. Prabhu shouted at PW1 and in that process, upon hearing the noise, all the accused came out. When PW1 complained to Mohan about the non-payment of wages, Mohan scolded him in filthy language. When PW1 made a challenge, the first accused caught hold of PW1 and attacked him with a club over his head uttering as to how dare he challenged and he would talk only if he was allowed to be alive. This was challenged by Kandasamy and Palaniappan. A1 Mohan pointing to the said Palaniappan, told that he was a person who was torturing too much and he must be finished off earlier. c)On hearing this, A2 attacked Palaniappan with a wooden log and A3 attacked with a reaper over his head. The deceased fell down. In that process, A1 attacked PW1 with a wooden log on his head and PW1 ustained injury. A4 attacked PW2 with stick. PW2 also sustained injury and when hearing the distress cry, all the employees rushed to the spot. A1 to A4 fled away from the scene of occurrence. d)Pws.1 and 2 and the deceased were taken to K.G.Hospital. PW1 was initially examined by PW.13 Doctor and thereafter he was examined by PW.16 doctor. Ex.P.4 is wound certificate of PW1 and ExP.7 is A.R.Copy.PW2 was examined by PW18, doctor and Ex.P.9 is wound certificate of PW2. The deceased was taken to K.G.Hospital on 4.7.2007 by 2.08 a.m and thereafter for further treatment, he was referred to CMC Hospital,Coimbatore. e) On intimation from the K.G.Hospital, PW.20, Sub Inspector of Police proceeded to the Hospital and recorded the statement of PW1, which is marked as Ex.P.1. On the strength of Ex.P.1, a case came to be registered in Crime No.603 of 2007 under Sections 324 and 307 IPC. Ex.P.12, the FIR was despatched to the Court. f)P.W.21 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.13, the observation mahazar and drew Rough Sketch Ex.P.17. Thereafter, she examined P.W.1 and the witnesses and recorded their https://hcservices.ecourts.gov.in/hcservices/ statements. She arrested the accused persons on 5.7.2007. A1 came forward to give a confession statement voluntarily and the same was recorded in the presence of witnesses, the admissible part of the same was marked as Ex.P.14, pursuant to which, A-1 produced M.Os.1 to 3 Wooden logs and M.O.4 reaper, which were recovered under a cover of mahazar. Those accused were sent for judicial remand. g)Thereafter, an intimation was received from the CMC Hospital, Coimbatore that the deceased died at the hospital. Subsequently the case was altered into Sections 324 and 302 IPC and the altered FIR was despatched to the Court. Then, P.W.21 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.16, the inquest report. Pw.1 examined other witnesses. Then, the dead body was sent to the Coimbatore Medical College Hospital, Coimbatore for the purpose of autopsy. h)P.W.14, the Tutor in the Forensic Science Division, CMC Hospital, Coimbatore on receipt of the requisition, conducted post- mortem on the dead body of the deceased and issued Ex.P.5, the post- mortem certificate, wherein she has opined that the deceased would appear to have died of injuries sustained in the skull. i)The place of occurrence was photographed through P.W.19, the photographer. Ex.P.10 (series) photos and Ex.P.11 (series) negatives were marked. The material objects were subjected to chemical analysis by the Forensic Science Department j)PW.22, the Inspector of Police took further investigation and recorded the statements of the medical officers. On completion of the investigation, he has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 22 witnesses and also relied on 17 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, all the accused were questioned under Section 313 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, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and awarded punishments as referred to above. Hence these appeals have arisen at the instance of the appellants/accused 1,3 and 4. 4.Advancing arguments on behalf of the first appellant, the learned counsel would submit that in the instant case, PW1 to 3 were shown as eye witnesses. Even as per the prosecution, the occurrence took place on 3.7.2007 at 12.30 hours. Since there was non-payment of salary, the deceased accompanied by Pws.1 to 3, went to the place where the accused were actually sleeping at the wee https://hcservices.ecourts.gov.in/hcservices/ hours and quarrelled with them and in that process, the occurrence had taken place. Learned counsel would stress that while taking into consideration the time of occurrence and the manner in which the occurrence had taken place, in particular, when these accused were not armed with any weapon or stick or log at the time of occurrence, it would be clearly indicative of the fact that they have no common intention or pre-meditation to share with and hence the finding of the lower court that they have got a common intention, cannot be accepted. Added further, in the instant case, the prosecution case was that A1 attacked PW1 with wooden log and caused injury on him and PW1 was examined by PWs.13 and 16 doctors and Ex.P.4 is the wound certificate and Ex.P.7 is the Accident Register Copy. A perusal of Wound Certificate of PW1 would clearly indicate that there are three lacerated injuries found on his head. Even though the prosecution claimed that A2 and A3 attacked the deceased and A4 attacked PW2 at the instigation of A1, before P.W..21, the investigator, they have categorically admitted that at the time of occurrence they were not present in the place of occurrence and it is only at the instigation of A1 they were present, was only a development at the time of trial and in the absence of the said version,the prosecution ought to have found the first accused guilty. Even assuming, the case of the prosecution is found to be proved that A1 attacked PW1 on his head with the wooden log and caused three lacerated injuries, he has got to be dealt with in accordance with law. 5. The learned counsel for the third appellant, would submit that in the instant case, the case of the prosecution was that it was A2 and A3, who have attacked not only the deceased, but also PW1. At this juncture, learned counsel would submit that the prosecution marshalled the evidence of Pws.1 to 3. The discrepancies which were found in the evidence of all these three witnesses would clearly reveal that such an occurrence could not have taken place at all. A2 and A3 could not have any intention or pre-meditation to share with other accused. Even as per the prosecution case, actually they were not armed with any weapon at the time of commencement of the occurrence and actually there was a wordy quarrel and in that process, A2 and A3 could have attacked the deceased as well as PW1. Learned counsel would further add that the medical opinion would clearly indicate that the injuries sustained could not be the cause for the death, since the occurrence took place on 3.7.2007, but the said Palaniappan died after 24 hours i.e. on 4.7.207 and the medical records pertaining to the deceased were not produced before the trial court. It is under the said circumstances, it cannot be stated that A3 acted with pre-meditation or with common intention. The quarrel would have suddenly took place, that too, in the wee hours. Under such circumstances, the trial court had committed an error of finding them guilty under Section 302 read with 34 IPC. If the Court comes to the conclusion that the death was occasioned only by the act of A2 and A3, it would not attract the penal provision of murder, and it has to be considered by this Court. 6. According to learned counsel appearing for the fourth https://hcservices.ecourts.gov.in/hcservices/ accused, no evidence was available to the effect that A4 was present at the time of occurrence. The case of the prosecution was that, it was A4 who attacked PW2 with the wooden log, whereas the certificate in this regard is marked as Ex.P9 and perusal of Ex.P9 would clearly indicate that PW2 has stated to the doctor that he was attacked by three persons. No external injury was noticed and that would clearly indicate that even assuming A4 was present, he had not attacked PW2 as claimed by the prosecution and hence he had no common intention to share with any of the accused. Hence an inference could be drawn against the prosecution and the judgment of conviction rendered against A4 has to be set aside. 7. Learned counsel for the appellants would submit that all put together would go to show that the prosecution though marched three witnesses, they have not spoken so and the records produced by the prosecution are in no way supporting their case. Apart from that, the medical opinion also did not corroborate the prosecution case. Hence the prosecution has miserably failed to prove its case. The lower court has taken an erroneous view, which has got to be set aside by acquitting the accused 1,3 and4/appellants. 8.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 9.It is not in controversy that Palaniappan, died in an incident that took place on 3.7.2007 at about 12.30 mid-night. Following the incident on 3.7.2007, he was taken to K.G.Hodpital and thereafter he was referred to CMC hospital, Coimbatore, where he was declared dead on 4.7.2007. Originally a case was registered under Sections 324 and 307 IPC against the appellants along with A5. Thereafter, on the death of Palaniappan, the case was altered into one under Section 302 IPC. Following the inquest made by P.W.21, the Investigating Officer, the dead body was subjected to post-mortem by P.W.14, the Doctor, who has given categorical opinion that the deceased died due to the injuries sustained to the skull. The medical evidence canvasses that the deceased died of homicidal violence and the said fact was never disputed by the appellants before the trial court, Now, the learned counsel for the third appellant has argued before this Court, with feeble evidence,the prosecution is unable to countenance the same and the prosecution has not proved the case with sufficient evidence. 10.In order to substantiate the factual position that the deceased died out of the act of A2 and A3 and A2 attacked with wooden log and A3 attacked with reaper, at the time of occurrence, viz. 12.30 mid-night at 3.7.2007, the prosecution examined Pws1 to 3. It is well settled proposition of law that in a given case like this, where the eye witnesses happen to be the injured witnesses, the Court should not discard their evidence,unless and until, strong circumstance is noticed or reason is brought forth. In the instant case, no such reason or circumstance has been brought to the notice https://hcservices.ecourts.gov.in/hcservices/ of the Court by the appellants. 11. The case of the prosecution, as could be seen, from the evidence of Pws.1 to 3 is that due to the non-payment of wages, all of them went along with the deceased. The said Ayyavu directed them to meet A1. Accordingly, they met A1,Mohan by 12.30 mid-night on 3.7.2007 when he was sleeping and when he came out, the deceased questioned him as to the salary, since it was wee hours, apart from the fact that A1 was also sleeping, he got irritated and a quarrel arose between the parties and in that process, the evidence would disclose that A1 attacked PW1 and A2 and A3 attacked the deceased with wooden log and reaper respectively, apart from A4 attacking PW2. The evidence in this regard spoken to by Pws.1 to 3 remain in one voice. 12. In this incident, Pws.1 to 3 were actually examined by the Medical Officer. PW1 was examined by PW.13 doctor originally and thereafter by P.W.16 at KG Hospital and PW2 was examined by PW18 doctor and Wound certificate of PW1 is marked as EX.P.4 and PW2 marked as Ex.P.9. A perusal of these two documents would clearly indicate that such an occurrence would have taken place as spoken to by the witnesses. Further, PW2 has categorically spoken to the fact that he was attacked by A4 with a wooden log. With this factual position, no question would arise as to whether they have got any pre-meditation or common intention to share with. The answer is negative for the simple reason that Pws.1 to 3 along with A1 was sleeping and the deceased gave a wake up call through one Prabhu,thereafter he came out and a quarrel arose and thus he got irritated and in that provocation, the occurrence had culminated. Under such circumstances, taking into consideration the time and the manner in which the occurrence had taken place as narrated above, at no stretch of imagination, it could be stated that A1 to A4 had any common intention to share with. 13. It is brought to the notice of the Court that though the prosecution came forward with the story that it was A1 he who instigated the other accused, PW21, the investigator has categorically stated that the witnesses have not given any such evidence when it was recorded under Section 161 of Cr.P.C. which would indicate that there was no instigation made by A1. Under such circumstances, neither there was instigation by A1 nor there was pre-meditation or common intention to share with the other accused and hence this has got to be taken into consideration. Tthe accused have got to be dealt with according to their act. s 14. A1 attacked PW1 with wooden log and caused three lacerated injury on the head as could be seen from Ex.P.4 wound certificate and EX.P7, AR copy and those injuries are termed only as simple in nature. Under such circumstances, the act of the first accused would attract the penal provision under Section 324 IPC and awarding punishment of 1 year RI would meet the ends of justice. 15. From the evidence, it would be quite clear that A2 https://hcservices.ecourts.gov.in/hcservices/ attacked the deceased with wooden log and A3 with reaper and thus caused the injuries on the head which were fatal as could be seen from the post-mortem certificate and as per the opinion of the postmortem doctor. Though the act done by the third accused cannot be said to be either intentional or premeditated, he has got the knowledge that by the attack with the reaper on his head, the death would likely to be ensued. Under these circumstances, the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder. Hence the act of A2 and A3 would attract the penal provision of section 304 (I) I.P.C and awarding punishment of 7 years R.I. would meet the ends of justice. 16. Insofar as A4 is concerned, PW2 has categorically spoken to the fact that he was attacked by A4 with a wooden log. It is true that Ex.P.9 AR copy was issued for PW2, which does not speak about any injury, but at the same time,from the evidence of PW2 it would be quite evident that he was taken to the hospital and treatment was given. Merely because there was no external injury, it cannot be stated that the prosecution case in that regard was false from the evidence of PW2 and moreover when it was corroborated by PW1, who was medically examined. Therefore, the act of the fourth accused would attract the penal provision under Section 324 IPC and awarding punishment of 1 year RI would meet the ends of justice. Hence, the judgment of the trial Court is modified as follows: (i) The conviction and sentence imposed on the first accused is modified. The first accused is convicted under Section 324 IPC and sentenced to undergo one year RI. The fine amount, if any, paid by the first appellant is ordered to be refunded to him. (ii) The third accused is convicted under section 304(I) I.P.C and sentenced to undergo 7 years R.I. The period of sentence already undergone by the third accused is ordered to be given set off. (iii) Insofar as A4 is concerned, the conviction and sentence imposed upon him is modified and he is convicted U/s.324 IPC and sentenced to undergo one year R.I and he is acquitted of all the other charges levelled against him. (iv) Now it is brought to the notice of the Court by the learned counsel for the fourth accused that he is in jail for the past one year, which statement is recorded. Under these circumstances, the Superintendent of Central prison Coimbatore is directed to act accordingly. The fine amount if any paid is ordered to be refunded to him. https://hcservices.ecourts.gov.in/hcservices/ 17.In the result, the above Criminal Appeals are disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1.The Sessions Judge for Exclusive Trial of Bomb Blaset Cases, Coimbatore. 2.-do- thro The Principal Sessions Judge, Coimbatore. 3.The District Collector, Coimbatore. 4.The Director General of Police, Mylapore,Chennai-4. 5.The Commissioner of Police, Coimbatore. 6.The Superintendent, Central Prison, Coimbatore 7.The Inspector of Police, Saravanampatti Police Station, Coimbatore. 8.The Public Prosecutor, High Court, Madras. +1cc to Mr.A.Abdul Lathif, Advocate Sr 33136 +1cc to Mr.K.Govindaraj, Advocate Sr 32955 +1cc to Mr.V.Bharathidasan, Advocate Sr 33179 MSM(CO) km/10.8. Crl.A.Nos.489 AND 775 OF 2008 AND 212 OF 2009 https://hcservices.ecourts.gov.in/hcservices/