IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 02.03.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.535 of 2009 Thangaraj ... Appellant/A-4 ..Vs.. The State, rep. by the Inspector of Police, Erode North Police Station, Erode District. ... Respondent Appeal filed against the judgment dated 1.8.2008 passed in S.C. No.31 of 2008 on the file of the First Additional Sessions Court, Erode. For Appellant : Mr. N. Manokaran For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 1.8.2008 passed by the First Additional Sessions Court, Erode in S.C. No.31 of 2008, whereby the present appellant, ranked as fourth accused, stood charged along with other accused for the offences under Sections 148, 307, 302 read with 149, 307 read with 149, 452, 427 of the Indian Penal Code and on trial, he was found guilty under section 307 read with 149 of the Indian Penal Code and awarded the punishment to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.500/- in default to undergo Rigorous Imprisonment for six months. 2. The short facts necessary for the disposal of the case can be stated as follows: (i) P.W.4 is the wife of P.W.2. P.W.1 is the brother of P.W.4. P.W.2 is running a mineral water shop under the name and style of "Penguin Waters". P.W.1 is running a bunk shop in front of https://hcservices.ecourts.gov.in/hcservices/ the mineral water shop. P.Ws.1,2 and 4 were living together in a house at Nethaji Nagar, Manickampalayam Road. (ii) On 7.4.2007, there was a festival in Periya Mariamman temple. At about 5 p.m., accused 1 to 3 were walking in front of the house of P.W.1. They broke beer bottles on the road in front of the house of P.W.1. At that time, P.W.4, who was present, questioned their unlawful act. There was a wordy quarrel between them. When P.W.1 questioned them, they assaulted him. Thereafter, P.W.1 reported the matter to P.W.2. When all of them were walking by the side of Penguin Waters, P.W.2 also questioned their unlawful act. From that time onwards, they were in inimical terms. (iii) P.W.4 was suffering from stomach pain and she proceeded to Madras for taking treatment. On 8.7.2007, when she was about to leave, she came to the shop to inform P.W.2 about her leaving for Madras. At about 7.45 p.m., when she just to leave from the shop, she found that accused 1 to 4 were present, armed with deadly weapons. The first accused cut P.W.2 on his forehead, while second accused attacked him with aruval on his cheek. The fourth accused cut P.W.2 on his both hands. (iv) On seeing this, one Ganapathy, deceased questioned the act of accused 1 to 4. Immediately, the third accused inflicted a very serious cut injury at his neck and the first accused inflicted an injury on his stomach, as a result of which he died. Thereafter, they fled away from the scene of occurrence. (v) P.W.1 gave complaint Ex.P1 to respondent police, who registered the case in Crime No.459 of 2007 for the offences under Sections 427, 307 and 302 of the Indian Penal Code. First Information Report Ex.P31 was despatched to the Court. (vi) P.W.21 Inspector of Police took up further investigation, proceeded to the place of occurrence, made an inspection and prepared Observation mahazar Ex.P2 and rough sketch Ex.P35. He also seized M.Os.1 to 5 viz. blood stained aluminum feeding having a length of 89 cms, blood stained broken glasses two in numbers, ordinary glass pieces two in numbers, blood stained cement floor and ordinary cement floor in the presence of witnesses under the cover of mahazar Ex.P3 and recorded their statements. (vii) Thereafter, P.W.21 conducted inquest on the dead body in the presence of witnesses and panchayatars and the inquest report is marked as Ex.P36. He sent the dead body for post-mortem. P.W.19 Doctor conducted post-mortem on the dead body and issued Ex.P33 post- mortem Certificate, wherein the following injuries are found:- "External Examination:- https://hcservices.ecourts.gov.in/hcservices/ 1. A punctured wound 3x2 cm entering into abdomen present above umblical region mentures(?) protruding through. 2. A incised wound 18x4x4 cm present over left side of face from left mandible extending to back of occiput deep cut exposing vesicles, Muscles of neck incised exposing cervical bone (grevious injury). Opinion:- The deceased would appear to have died 16-18 hrs prior to autopsy due to injuries – Shock & haemorrhage." (viii) Thereafter, P.W.2 was sent to the Government Hospital for treatment. P.W.16 Doctor gave treatment and Accident register and Wound Certificate are marked as Ex.P27 and 28 respectively. Pending investigation, fourth accused was arrested on 12.7.2007 and he gave confession statement voluntarily, which was recorded in the presence of witnesses and admissible portion of the same was marked as Ex.P5. Pursuant to the same, he produced M.O.8 Veecharuval and the same was recovered under mahazar Ex.P6. (ix) Thereafter, accused 1 to 3 were arrested on 17.7.2007 and the confession statements given by them voluntarily were recorded in the presence of witnesses. Pursuant to the confession statements, they produced M.Os.9 to 11 and the same were recovered under different mahazars on 16.7.2007. Accused 5 and 6 surrendered before the Court and they were taken to the police custody on 30.7.2007. They gave confession statements voluntarily and the same were recorded in the presence of witnesses. Pursuant to the same, they produced M.O.13 TVS 50 and M.O.15 Hero Honda Motor cycle and the same were recovered under different mahazars. (x) All the material objects were sent for examination to the Forensic Science Department and the reports given by them are marked as Ex.P20 and P22. P.W.21 examined all the witnesses and recorded their statements. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 21 witnesses and relied on 36 documents and also relied on 22 material objects. No witness was examined on the side of the accused, but two documents viz. Ex.D1 and D2 were marked. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. https://hcservices.ecourts.gov.in/hcservices/ 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found accused 1 and 3 guilty under Section 302 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1,000/- each in default to undergo Rigorous Imprisonment for six months and found accused 1 to 4 guilty under Sections 307 read with 149 I.P.C. and sentenced them to undergo Rigorous Imprisonment for seven years each and to pay a fine of Rs.500/- each in default to undergo Rigorous Imprisonment for six months and acquitted accused 5 and 6 of all the charges. Under the circumstances, the fourth accused has brought forth this appeal. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the fourth accused stood charged along with other accused for the offences under Sections 148, 307, 302 read with 149, 307 read with 149, 452, 427 of the Indian Penal Code. Learned Trial Judge found accused 1 and 3 guilty of murder and awarded life imprisonment and found accused 1 to 4 guilty under Sections 307 read with 149 I.P.C. and sentenced them to undergo Rigorous Imprisonment for seven years each and to pay a fine of Rs.500/- each in default to undergo Rigorous Imprisonment for six months. Insofar as accused 1 and 3 are concerned, the injuries caused by them were grievous and the learned Trial Judge is justified in awarding the punishment as referred to above. 6. Learned counsel, taking the Court to Ex.P27 accident register and Ex.P28 wound Certificate, would submit that the injuries caused by the fourth accused are third and fourth injuries, according to P.Ws.1 to 3 eye witnesses. The Doctor has clearly opined in the course of wound Certificate that all the injuries sustained by P.W.2 were simple in nature. In such circumstances, the injuries caused by the fourth accused were simple in nature. Even assuming, the fourth accused attacked P.W.2 on his hands, it would not attract the penal provisions of attempt to murder as defined by the Court. 7. Learned counsel added further that since accused 1 to 3 were found guilty under Section 307 of the Indian Penal Code, it is not necessary that the appellant should also be found guilty under Section 307 of the Indian Penal Code in view of the fact that the injuries inflicted by the appellant were simple in nature and the circumstances also clearly indicate the same and at best it would attract only the penal provisions of Section 324 of the Indian Penal Code. The Court has to consider the factual and legal provisions and render justice. 8. This Court heard the learned Additional Public Prosecutor on the above contentions. 9. This Court paid its anxious considerations on the above https://hcservices.ecourts.gov.in/hcservices/ contentions. It is not in controversy that one Ganapathy died due homicidal violence and following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem and all the accused stood charged for the offences referred to above and on trial, accused 1 and 3 were found guilty of murder and awarded with life imprisonment and to pay a fine of Rs.1,000/- each in default to undergo Rigorous Imprisonment for six months. The appeals filed by them were also dismissed affirming the judgment passed by the Trial Court. 10. It is also not in controversy that accused 1 to 4 have attacked P.W.2 and caused injuries. At the time when the occurrence had taken place, all of them went to the spot and attacked P.W.2. It is true, as could be seen from Ex.P27 Accident Register and Ex.P28 Wound Certificate, the injuries sustained by P.W.2 were simple, but at the same time, it should not be forgotten that though the injuries caused by the accused were simple, they have acted actually with an intention to cause his death. It is quite evident that all of them went to the spot with Veecharuval and attacked the deceased and caused his death and also caused injuries on P.W.2. Had he not survived, the case would have attracted the penal provisions of murder. 11. The Court has to look into the intention of the assailant along with the injuries that were sustained by the victim. After doing so, the Court is of the considered opinion that the act of the fourth accused would attract the penal provisions of 307 of the Indian Penal Code and not 324 of the Indian Penal Code. The finding of the Trial Court in respect of the appellant that he is guilty under Section 307 read with 149 of the Indian Penal Code is not to be disturbed with, but taking into consideration the injuries caused by the appellant are simple, the punishment of seven years would be reduced to four years, which, in the considered opinion of the Court, would meet the ends of justice. Accordingly, the sentence of seven years of Rigorous Imprisonment would be reduced to four years of Rigorous Imprisonment. 12. With the above modification, the criminal appeal is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ssa. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Judicial Magistrate No.I, Erode. 2. -do- Thro The Chief Judicial Magistrate, Erode. 3. The I Additional Sessions Judge, Erode. 4. -do- Thro Principal Sessions Judge, Erode. 5. The Superintendent, Central Prison, Coimbatore. 6. The District Collector, Erode. 7. The Director General of Police, Madras – 4. 8. The Inspector of Police, Erode North Police Station, Erode. 9. The Public Prosecutor, High Court, Madras. 1 cc to Mr.N.Manokaran, Advocate, Sr.No.14296 Crl. A. No.535 of 2009 KU {CO} TP/12.3.2010. https://hcservices.ecourts.gov.in/hcservices/