IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23/06/2004 Coram THE HON'BLE MR. JUSTICE M.KARPAGAVINAYAGAM And THE HON'BLE MR. JUSTICE S.K.KRISHNAN CRIMINAL APPEAL No.234 of 1996 1. Nagarathinam 2. Sankar 3. Tirunavukkarasu 4. Srinivasan @ Kutty 5. Gnanasekaran 6. Ganesan .. Appellants -Vs- State rep. by Inspector of Police, Salavakkam. ..Respondent Criminal Appeal against the judgment dated 29.2.1996 in S.C.No.33 of 1993 on the file of the Principal Sessions Judge, Chengleput. !For Appellants: Mr.V. Gopinath, S.C. for Mr.K. Selvarangan ^For Respondent: Mr.E.Raja, Addl. Public Prosecutor. :JUDGMENT M. KARPAGAVINAYAGAM, J. This is a case of double murder. 2. The appellants are A1 to A6. A1 and A2 have been convicted for the offences under Section 302 read with 34 I.P.C. in respect of the first deceased Shanmugam. A1 and A3 have been convicted for the offences under Section 302 read with 34 I.P.C. in respect of the second deceased Krishnan. A1, A3, A5 and A6 have been convicted for the offence under Section 147 I.P.C. and A2 and A3 have been convicted for the offence under Section 148 I.P.C. A3 to A6 have been convicted for the offence under Section 302 read with 149 I.P.C. in respect of the first deceased. A2, A4, A5 and A6 have been convicted for the offence under Section 302 read with 149 I.P.C. in respect of the second deceased. A1 to A6 have been convicted for the offence under Section 324 I.P.C. Challenging the above conviction, this appeal has been filed. 3. The case of the prosecution in brief is as follows: "(a) First appellant (A1) Nagarathinam is the father. Second appellant (A2) Sankar and third appellant (A3) Thirunavukkarasu are his sons. The appellants 4 to 6 (A4 to A6) by name Srinivasan alias Kutty, Gnanasekaran and Ganesan are their relatives. First deceased Shanmugam and second deceased Krishnan are the brothers. Their paternal uncle Rajendran is the Panchayat Board President of Maiyoor village. (b) A1 Nagarathinam and other accused constructed a brick-kiln in the land belonging to the Gangaiamman temple and indulged themselves in the business of sale of bricks. The villagers opposed the same. They reported the matter to Rajendran, Panchayat Board President. Then, Rajendran enquired about the complaint against A1. A1 did not make proper reply. Therefore, he lodged a report with B.D.O.(P.W.8). After conducting enquiry, the B.D.O. imposed fine of Rs.25,000/-. However, the fine was not paid. So, the Panchayat Board President filed a civil suit and obtained a decree against the first accused. (c) The villagers collected Rs.12,000/- for temple festival and entrusted the same for safe custody to A1. No proper accounts were maintained by him. Therefore, in order to get back the amount from him, the Panchayat Board President Rajendran convened a meeting on 22.7.1990 at about 5.00 p.m. to take further action against A1. (d) Having felt insulted and aggrieved over the convening of the meeting, all the accused formed themselves into unlawful assembly and gathered in front of Vedachalam Tea Shop on the same day at 3.00 p.m. and challenged the authority of Rajendran to convene the meeting and abused other villagers. (e) Shanmugam, the first deceased, who is the nephew of Rajendran was present at that time near the tea shop. He questioned A1 as to why he had to abuse Rajendran and if any grievance he had, he could express the same in the meeting to be held at 5.00 p.m. (f) Getting enraged over the words uttered by the first deceased Shanmugam, A1 Nagarathinam came near the first deceased and caught hold of him by his hands from back side and asked the other accused to finish him once for all. Then, A2 Sankar took out a knife (M.O.6) kept in the tea stall and gave a stab on his stomach. The first deceased with bleeding injury on the stomach fell down and became unconscious. At that time, the second deceased Krishnan came that side after finishing his agricultural work in the field along with his bull. On noticing this incident, the second deceased came near the first accused and cried. When he tried to lift the first deceased, A1 with M.O.1 Thadi beat on the head of the second deceased. A3 Thirunavukkarasu with another Thadi M.O.2 beat on his shoulder. The second deceased also fell down. (g) P.W.1 Gajendran, P.W.2 Elumalai, P.W.3 Paramasivam and P.W.10 Chandran were sitting near the tea stall opposite to the bus stop. When D1 and D2 fell down, they went near them in order to lift them. The accused threatened them. One Mohan who came along with the other accused, beat P.W.1 with M.O.1 Thadi. A4 Srinivasan with a knife (M.O.7 ) stabbed on P.W.3 Paramasivam on his back. When P.W.2 Elumalai came near him, he attacked him also and caused injury on the right hand fingers. P.W.10 also was attacked causing cut injury on his head by A4 . (h) At that juncture, all the four, namely P.W.1, P.W.2, P.W.3 and P.W.10 took stones and Thadi and threw them at the accused. All the accused fled away from the scene. Then, all of them took the deceased 1 and 2 in a town bus to Chengleput Government Hospital. On the way, first deceased Shanmugam died. All the others were admitted in the hospital. (i) At 4.15 p.m., P.W.5 Doctor examined the second deceased and issued Ex.P2 Accident Register. He found the first deceased dead and issued Ex.P3 Accident Register. At 4.30 p.m., he examined P.W.3 Paramasivam and issued Ex.P4 Accident Register. Then, he examined P.W.10 Chandran and issued Ex.P5 Accident Register. At 4.45 p.m., he examined P.W.2 Elumalai and issued Ex.P6 Accident Register. (j) Even before their admission, the accused 1 to 3 came to the hospital and got themselves admitted. P.W.6 Doctor examined them and issued Exs.P7, P8 and P9, the Accident Registers to A1 to A3 respectively. (k) In the meantime, P.W.1 went to the police station at about 8.00 p.m. P.W.16 Sub Inspector of Police received the complaint Ex.P1 from him and registered the case in Crime No.218/90 for the offences under Sections 147, 148, 323 and 302 I.P.C. The F.I.R. is Ex.P26. He then sent message to the Court as well as to the higher officials. Thereupon, he went to the hospital and examined the injured witnesses. He noticed that A1 to A3 were admitted in the hospital. He obtained counter complaint at about 11.00 p.m. from A1 and the same was registered in Crime No.219/90 for the offences under Sections 147, 148 and 324 I.P.C. against Shanmugam, Krishnan, Elumalai, Paramasivam, Chandran and Gajendran. These accused in Crime No.219/90 are the deceased and witnesses in Crime No.218/90. The counter complaint is Ex.P27 and the F.I.R. is Ex.P28. (l) On receipt of the message, P.W.17 Inspector of Police took up investigation and came to the spot. Next day morning, he prepared observation mahazar and rough sketch and recovered the bloodstained earth and sample earth. Thereafter, he went to the hospital and examined P.W.1, P.W.2, P.W.3, P.W.9 and P.W.10. He conducted inquest and prepared inquest reports Exs.P32 and P33 in respect of the deceased 1 and 2 respectively. (m) On 23.7.1990, the dead bodies were handed over to the hospital. P.W.6 Doctor conducted post-mortem on both the deceased. The postmortem certificate in respect of the first deceased is Ex.P10 and the post-mortem certificate in respect of the second deceased is Ex.P11. He found 8 external injuries on the first deceased and one external injury on the second deceased. According to him, the first deceased died due to the stab injuries and the second deceased died due to the head injury. (n) P.W.17 Inspector of Police continued the investigation and examined other witnesses. He recovered the records from the Panchayat Board Office in order to show that the amounts collected from the villagers for the temple festival were entrusted to A1 in his capacity as cashier. The materials were sent for analysis. After finishing the investigation, charge sheet was filed for the offences under Sections 14 7, 148, 341, 302 and 307 read with 149 I.P.C." 4. During the course of trial, on the side of the prosecution, P.W.1 to P.W.18 were examined, Exs.P1 to P36 were filed and M.Os.1 to 2 2 were marked. 5. When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. 6. On conclusion of trial, the accused were convicted as referred to above. Hence, this appeal by all the accused. 7. Mr.V.Gopinath, the learned senior counsel appearing for the appellants would take us through the entire evidence and while assailing the judgment of conviction by the trial Court, would make the following contentions: (1) The motive projected by the prosecution has not been clearly established. Though P.W.8, the B.D.O. has been examined, no document has been produced to show that the fine amount was imposed upon A1 on the complaint of Rajendran, the Panchayat Board President. There are no materials to show that the amount collected from public was entrusted to A1, who failed to account for the same. M.O.12, the Ledger Book does not indicate that the amount has been entrusted to A1. The evidence of P.W.15 also would not be sufficient to hold that the motive has been proved. (2) Even according to the prosecution, there is enmity between the Panchayat Board President Rajendran and A1. Admittedly, P.W.1, P.W.2, P.W.3, P.W.9 and P.W.10 are the close relatives of the said Rajendran. Even though P.W.1 sustained injury, he did not choose to take treatment in the hospital. P.W.1 stated that he came to the police station at about 8.00 p.m. and gave a complaint. Even though the other witnesses deny the presence of Rajendran, P.W.9 would admit that Rajendran came to the hospital at 7.00 p.m. Admittedly, the complaint has been given only at 8.00 p.m. Therefore, the complaint must have been lodged in the name of P.W.1 only at the instance of Rajendran giving false particulars about the accused. As such, the evidence of eye witnesses, namely P.W.1, P.W.2, P.W.3, P.W.9 and P.W.10, who are the interested witnesses, cannot be given due credence. Further, neither P.W.9's name has been mentioned in Ex.P1 nor his presence has been spoken to by other witnesses. (3) There are serious injuries on the vital parts of A1, A2 and A3. Though there is an attempt by P.W.1 to give explanation in Ex.P1, he would admit that he saw A1 to A3 in the hospital even before he gave the complaint. Therefore, he had to give some explanation. According to other witnesses, after the occurrence was over, they took stones and Thadi and threw them at A1 to A3, as a result of which, they sustained injuries. These serious incised injuries on the accused could not have been caused by stones and Thadi. As such, their explanation is false. Further, the counter complaint Ex.P27 was received by P.W.1 6 Sub Inspector of Police. In the F.I.R. Ex.P28, names of D1, D2, P. W.1, P.W.2, P.W.3 and P.W.10 were mentioned as accused. But, this complaint was not properly investigated either by P.W.16 or by P.W.17. If the proper investigation had been done in that case, the investigating officer would have found out that the injuries on the deceased and witnesses were caused by the accused only as self-defence. (4) The place of occurrence has not been established. According to P.W.1, P.W.2, P.W.3, P.W.4. P.W.9 and P.W.10, the occurrence had taken place near the tea shop. But, Ex.P29 observation mahazar and Ex.P30 rough sketch and the evidence of P.W.17 would clearly show that the occurrence took place near the bus stand. There is no explanation by the prosecution with reference to this discrepancy. (5) Exs.P32 and P33, the inquest reports would refer to the free fight between both the groups. In such a context, the plea of selfdefence has to be given due importance. When there are sufficient materials to show that both the parties sustained injuries in the free fight, the trial Court cannot accept the testimony of the eye witnesses blindly and discard the plea of self-defence. 8. The learned senior counsel would cite the following authorities: 1) LAKSHMI SINGH v. STATE OF BIHAR (1976 Crl.L.J.1736); 2) STATE OF U.P. v. MADAN MOHAN (1989 Crl.L.J.1485); 3) RAM MILAN v. STATE OF U.P. (1992 Crl.L.J.2537); 4) RAM MILAN v. STATE OF U.P. (1993 S.C.C.(Cri)348); 5) RAM PHAL v. STATE OF HARYANA (1993 Crl.L.J.2603); 6) SUBRAMANI v. STATE OF T.N.(2002 S.C.C.(Cri) 1659). 9. The learned Additional Public Prosecutor would point out various portions of the evidence and contend that the evidence of the injured eye witnesses, viz., P.W.1, P.W.2, P.W.3 and P.W.10 is consistent and is sufficiently corroborated by the other evidence including the medical evidence and sufficient explanation has been given for the injuries sustained by the accused and as such, the conviction is legal. He would cite the following decisions: 1)KASHIRAM v. STATE OF M.P. (2002 S.C.C.(Cri) 68); 2)RAM AVTAR v. STATE OF U.P. (2003 S.C.C.(Cri) 1404); 3)JAMES MARTIN v. STATE OF KERALA(2004 S.C.C.(Cri)487); 4)RAM BALI v. STATE OF U.P. (2004(3) S.C.C.(Cri)547). 10. We have carefully considered the submissions made by the counsel for the parties and also gone through the entire records. 11. According to the prosecution, A1 constructed a brick-kiln in the land belonging to the village temple and sold the bricks, thereby doing business and this was objected to by the villagers and when the Panchayat Board President Rajendran questioned A1, he did not respond to the same and therefore, a report was lodged with the Revenue Department by the said Rajendran and the Revenue Department imposed fine and as the fine was not paid by A1, Rajendran filed a suit and obtained decree and for conducting temple festival, amount was collected from the villagers and entrusted to A1 and since the account was not properly maintained by him, Rajendran convened the village meeting to be held on 22.7.1990 at about 5.00 p.m. Being aggrieved over this, A1 and his relatives A2 to A6 and another came to the tea shop of P.W.4 Vedachalam with weapons at about 3.00 p.m. and began to make comments abusing Rajendran and when this was questioned by Shanmugam, the nephew of the said Rajendran, A1 caught hold of him and A2 stabbed on his stomach with a knife and when his brother Krishnan came to the rescue of Shanmugam, Krishnan also was attacked by both A1 and A3 and while the witnesses P.W.1 Gajendran, P.W.2 Elumalai, P.W.3 Paramasivam and P.W.10 Chandran intervened, they were also attacked by A4 to A6 with weapons and when the accused threatened the witnesses, the witnesses took stones and Thadi and threw at the accused, thereby A1 to A3 sustained injuries and ran away from the scene. Immediately thereafter, they were taken to hospital and on the way to the hospital, Shanmugam died and Krishnan while taking treatment died and other witnesses were examined by the Doctor. On the complaint given by P.W.1, P.W.16 Sub Inspector of Police came to the hospital and on seeing that A1 to A3 were also admitted in the hospital, he received a counter complaint from A1 and a case was registered against the deceased and witnesses in this case. P.W.17 Inspector of Police took up investigation, arrested the accused, recovered the materials and examined the witnesses and P.W.18, another Inspector of Police took up further investigation and filed the charge sheet. 12. To establish motive, P.W.8, P.W.12, P.W.13 and P.W.15 were examined and through them, M.Os.8 to 12 were marked. To speak about the main occurrence, P.W.1, P.W.2, P.W.3 and P.W.10, the injured witnesses and P.W.9 another eye witness were examined and to prove the injuries sustained by the deceased and others, the Doctors P.W.5 to P.W.7 were examined and Exs.P2 to P11 were marked. The registration of the complaint, recovery of the articles and the investigation have been spoken to by P.W.16 Sub Inspector of Police and P.W.17 Inspector of Police. 13. As stated above, the motive is that the accused constructed a brick-kiln illegally in the temple land and misappropriated the amount entrusted by the villagers and to question that, a meeting was arranged to be held on 22.7.1990 at about 5.00 p.m. In that context, the occurrence had taken place on 22.7.1990 at about 3.00 p.m. 14. The learned senior counsel would submit that there are no sufficient materials to show that fine was imposed on the first accused by the Revenue Department for having committed illegal activities and the village common fund was collected and entrusted to the first accused and since proper account was not maintained, the village people got aggrieved against the first accused. 15. The perusal of the evidence of P.W.1 Gajendran, P.W.2 Elumalai, P.W.3 Paramasivam and P.W.10 Chandran would show that the Panchayat Board President Rajendran questioned A1 on the complaint of the villagers regarding the construction of the brick-kiln in the temple land and the B.D.O. also conducted enquiry and fine was imposed and the Civil Court also passed a decree against A1. The amount of Rs.12,000/- entrusted to the first accused for conducting temple festival has not been accounted for. On going through the entire cross-examination, it is clear that there is no challenge made to this aspect of the evidence adduced by these witnesses. 16. As a matter of fact, P.W.8 Lakshmi Narayan who was B.D.O. then, was examined to speak to this effect. He stated in the deposition that he received a complaint from the Panchayat Board President Rajendran against A1 and A2 for having illegally acquired the land for constructing brick-kiln without permission and an enquiry was conducted against A1 and finally order was passed. In the cross-examination, there is no challenge to this evidence. On the other hand, a suggestion was made to him that the Department concerned would use to pass any orders without conducting any enquiry on the mere complaint given by the Panchayat Board President. 17. P.W.12 Palani would speak about the recovery of the records from the said Rajendran by P.W.17, the Inspector of Police. M.O.8 is the xerox copy of the order passed by the Commissioner of Panchayat Union with regard to this. The original order is M.O.9. The interim order passed in the Civil Court is M.O.10. Ultimately, the decree that was passed by the Court against the accused in the suit filed by Rajendran is M.O.11. These records have been recovered by the police under mahazar Ex.P14 and this was attested by P.W.12. 18. Similarly, P.W.12 would also refer to M.O.12, the Account Register maintained by the Panchayat, which was recovered from the office under Ex.P15. This account was written by P.W.15 Venkatesan. According to him, the Association was set up by the Village Panchayat and in that Panchayat, Rajendran was the President and A1 Nagarathinam was the Treasurer. As per the Register, on 17.7.1989, the meeting was held attended by both President Rajendran and the Treasurer A1 and in that meeting, the committee members (bgUe;jdf;fhuh;) were selected. The entries dated 7.8.1989 would indicate that another meeting was held on that day attended by the President Rajendran, Treasurer Nagarathinam (A1) and others and the fund Rs.5,073.20 collected from the villagers for conducting festival of Mariamman temple was entrusted to A1 Nagarathinam. Nagarathinam also signed in that Register. Page No.27 of the Register contains the other amounts collected which were added with Rs.5,073/- and the total amount which was entrusted to A1 Nagarathinam was Rs.9,593.15. These things have been written by P.W.15. This evidence of P.W.15 has not been challenged. 19. As a matter of fact, the records would show that A1 was entrusted with money collected from the village people and as Treasurer, he has signed in the Register. About this document, P.W.13 Venu Naicker, one of the bgUe;jdf;fhuh;, who had signed in the Register also, would state referring to the relevant page in M.O.12 about the entrustment of the amount to the first accused and in the Register, the first accused had signed as a Cashier. This evidence also has not been challenged. 20. When these materials are available, which have not been seriously challenged, it cannot be contended that there is no sufficient evidence to show that the accused had no motive against Rajendran who is the Panchayat President. 21. In the light of those materials, it has to be held that the accused did not like the convening of the meeting to be held at 5.00 p.m. on 22.7.1990 and on getting insulted due to this, the accused persons along with others came to a tea stall near public road ad began to use abusive words against Rajendran by challenging his authority. 22. Let us now come to the main occurrence. 23. The main occurrence has been spoken to by P.W.1, P.W.2, P.W.3 and P.W.10. Admittedly, the presence of P.W.9 has not been mentioned in Ex.P1, the complaint nor spoken to by the other witnesses. Therefore, we need not give much weight to the evidence of P.W.9. But, the evidence of P.W.1, P.W.2, P.W.3 and P.W.10 would assume importance, since they are injured witnesses. According to them, when the accused and other persons came near the tea stall and began to abuse Rajendran, his relative, the first deceased Shanmugam questioned them and at that time, the accused attacked both Shanmugam and his brother Krishnan and caused injuries. Thereafter, these witnesses also were attacked by the accused. 24. It is strenuously contended by the learned senior counsel appearing for the appellants/accused that P.W.1, P.W.2, P.W.3 and P.W.10 are the close relatives of Rajendran who was admittedly inimical towards the accused. Even though the occurrence had taken place at 3.00 p. m., P.W.1 gave the complaint at 8.00 p.m. and the presence of Rajendran at 7.00 p.m. in the hospital has been admitted by P.W.9 and therefore, the complaint must have been given only at his instance and as such, their evidence has to be discarded. 25. Even at the threshold, it is to be made clear that all these witnesses and the accused persons belong to one caste and they are residing in the same village. Though the witnesses P.Ws.1,2,3 and 10 would admit that they are related to the said Rajendran, they have specifically stated in the cross-examination that they belong to neither this group nor the other group and both the groups are friends to them. According to the witnesses, when they went near to Shanmugam and Krishnan, the deceased who fell down, in order to lift them, they were attacked by the accused. 26. It has to be noticed in this context that the occurrence had taken place in a day light at about 3.00 p.m. and two persons sustained very serious injuries and on the injuries being inflicted, both the deceased fell down and became unconscious. All the four injured persons took immediate steps to take both the deceased who were in serious condition to the hospital. Though Shanmugam died on the way to the hospital, both of them were taken to the hospital where P.W.5 Doctor declared Shanmugam died and issued the Accident Register Ex.P3 after noting the serious injuries on the stoma ch from where the intestines came out. He also examined Krishnan and found two injuries on the head and right wrist. Then, he examined P.W.3 Paramasivam and found injuries on the back and head and admitted him in the hospital as inpatient and issued Ex.P4. He also examined P.W.10 Chandran and found injuries on head and gave treatment and treated him as out-patient and issued Ex.P5. On the same day, he gave treatment to P.W.2 Elumalai and found injuries on his left hand finger, left fore-arm and right head and issued Ex.P6. 27. P.W.1 who accompanied the deceased as well as the injured witnesses to the hospital left the hospital immediately after their admission for police station to give a complaint. Accordingly, P.W.1 came to the Salavakkam Police Station and gave complaint at about 8.00 p.m. P.W.16 received the complaint Ex.P1 and registered the case