BAIL SLIP ---- That the Appellants/Accused 3 to 7 namely 1.Rajasekar, 2.Suman 3.Moorthy 4.Suresh and 5.Kuppusamy were directed to be released on bail in and by order of this Court dated 17.8.2010 made in Crl.M.P.No.1/2010. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARANAYAN Crl.A.No.367 of 2010 1.Jegan 2.Prakash 3.Rajasekar 4.Suman 5.Moorthy 6.Suresh 7.Kuppusamy .. Appellants/Accused 1 to 7 Vs. State rep. By Inspector of Police, G-5 Secretariat Colony Police Station, Chennai – 10. .. Respondent/Complainant Appeal filed under Section 374(2) of Cr.P.C. against the conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No.V, Chennai in S.C.No.42 of 2010 dated 16.06.2010. For Appellants .. Mr.C.M.Gunasekaran For Respondent .. Mr.V.R.Balasubramanian, Addl. Public Prosecutor J U D G M E N T (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Judge, Fast Track Court No.V, Chennai made in S.C.No.42 of 2010 whereby the accused/appellants, seven in number, stood charged, tried and found guilty and awarded punishments as follows: https://hcservices.ecourts.gov.in/hcservices/ Accused Charges Findings Sentence A-1 Sections 148, 452, 302 I.P.C. and Section 3 of TNPPD & L Act r/w 149 I.P.C. and 506(ii) I.P.C. Guilty 1 year R.I. and to pay a fine of Rs.500/- in default to undergo 3 months R.I.; 3 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I.; Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months R.I.; 1 year R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. 1 year R.I. And to pay a fine of Rs.500/- in default to undergo one month R.I. A-2 Sections 148, 452, 302 r/w 149 I.P.C. and Section 3 of TNPPD & L Act r/w 149 I.P.C. and 506(ii) I.P.C. Guilty 1 year R.I. and to pay a fine of Rs.500/- in default to undergo 3 months R.I.; 3 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I.; Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months R.I.; 1 year R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. 1 year R.I. and to pay a fine of Rs.500/- in default to undergo one month R.I. A-3 Sections 148, 452, 302 r/w 149 I.P.C. and Section 3 of TNPPD & L Act r/w 149 I.P.C. and 506(ii) I.P.C. Guilty 1 year R.I. and to pay a fine of Rs.500/- in default to undergo 3 months R.I.; 3 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I.; Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months R.I.; 1 year R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. 1 year R.I. and to pay a fine of Rs.500/- in default to undergo one month R.I. https://hcservices.ecourts.gov.in/hcservices/ Accused Charges Findings Sentence A-4 Sections 148, 452 r/w 149, 302 r/w 149 I.P.C. and Section 3 of TNPPD & L Act r/w 149 I.P.C. and 506(ii) I.P.C. Guilty 1 year R.I. and to pay a fine of Rs.500/- in default to undergo 3 months R.I.; 3 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I.; Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months R.I.; 1 year R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. 1 year R.I. and to pay a fine of Rs.500/- in default to undergo one month R.I. A-5 Sections 148, 452 r/w 149, 302 r/w 149 I.P.C. and Section 3 of TNPPD & L Act r/w 149 I.P.C. and 506(ii) I.P.C. Guilty 1 year R.I. and to pay a fine of Rs.500/- in default to undergo 3 months R.I.; 3 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I.; Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months R.I.; 1 year R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. 1 year R.I. and to pay a fine of Rs.500/- in default to undergo one month R.I. A-6 Sections 148, 452 r/w 149, 302 r/w 149 I.P.C. and Section 3 of TNPPD & L Act r/w 149 I.P.C. and 506(ii) I.P.C. Guilty 1 year R.I. and to pay a fine of Rs.500/- in default to undergo 3 months R.I.; 3 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I.; Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months R.I.; 1 year R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. 1 year R.I. and to pay a fine of Rs.500/- in default to undergo one month R.I. https://hcservices.ecourts.gov.in/hcservices/ Accused Charges Findings Sentence A-7 Sections 148, 452 r/w 149, 302 r/w 149 I.P.C. and Section 3 of TNPPD & L Act r/w 149 I.P.C. and 506(ii) I.P.C. Guilty 1 year R.I. and to pay a fine of Rs.500/- in default to undergo 3 months R.I.; 3 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I.; Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months R.I.; 1 year R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. 1 year R.I. and to pay a fine of Rs.500/- in default to undergo one month R.I. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) P.W.1 is the daughter-in-law and P.W.2 is the son of the deceased Silormani. They were residing at Door No.73, S.S.Puram Main Road, Purasaiwalkam, Chennai - 7 situate within the jurisdiction of the respondent police. P.Ws.3 and 7 are the sons and P.W.5 is the daughter of the deceased. P.W.4 is the granddaughter of the deceased and P.W.6 is the neighbour of the deceased and the accused/ appellants were residing nearby to the house of P.Ws.1 and 2. On 20th of May, 2009 there was a quarrel between the deceased and one Neelavathy, mother of the first accused with respect to fetching of water from the public pipe, regarding which, they were on enimical terms and there was exchange of words between them. At the time of quarrel, Neelavathy gave out that she would see to the dispute after the arrival of her son. On 23.05.2009 at about 11.30 p.m., A1 to A3/appellants 1 to 3 came to the house of P.W.1. A1 broke the tube light with the help of iron rod. A3 was in possession of knife. A2, A4, A6 and A7 were in possession of wooden clubs. A3 with the use of knife, threatened them to cause death. A4, A5 and A7 broke the auto and it was questioned by the deceased Silormani. Immediately, they broke the television in the house of P.W.6. A4 to A7 assaulted P.Ws.3 and 4 with wooden clubs. When the deceased shouted, A1 to A3 questioned her as to why she was shouting and A1 with the use of iron rod, attacked on the head of the deceased and A2 kicked the deceased with leg. Thereafter, all of them ran away from the place of occurrence. P.Ws.1 and 2 took the deceased to the Government General Hospital, where she was medically examined by P.W.14 Doctor. Ex.P21 is the copy of the accident register given by P.W.14. P.Ws.3 and 4 also went to Government Hospital, Kilpauk and they were medically examined by P.W.13 doctor. Exs.P19 and P20 are the copies of accident registers. https://hcservices.ecourts.gov.in/hcservices/ (ii)P.W.19 Inspector of Police, G5 Secretariat Colony Police Station received the complaint of P.W.1 at 2.15 a.m. on 23.05.2009 and marked the same as Ex.P1. On the basis of Ex.P1, he registered the case for the offence under Sections 147, 148, 448, 302 and 506 (ii) I.P.C. and Ex.P28 is the first information report. He sent the copy of the first information report to the concerned higher officials and Court, which reached the court at about 6.30 a.m. Thereafter, at 2.45 a.m., he went to the place of occurrence and prepared Ex.P29 observation mahazar and Ex.P30 rough sketch. At about 4.00 a.m., P.W.19 seized M.O.12-blood stained cement floor and M.O.13 – plain cement floor under seizure mahazar Ex.P31 in the presence of witnesses. At about 4.15 a.m., he seized M.O.9 series - broken glass pieces of front glass of auto under seizure mahazar Ex.P32 and at about 4.30 a.m., he seized M.O.8 – broken glass pieces of television under Ex.P33. (iii)Between 5.00 a.m. to 6.30 a.m., P.W.19 went to mortuary and conducted inquest over the dead body of the deceased in the presence of panchayatdars and witnesses and Ex.P34 is the inquest report. Ex.P23 is the postmortem certificate issued by P.W.15 doctor and the doctor has opined that the deceased would appear to have died of head injuries. (iv)Pending investigation, P.W.19 arrested A1, A2, A3, A4, A5 and A7 and their confessional statements were recorded. Admissible part of the confessional statement of A1 is marked as Ex.P37 and M.O.2 – blood stained iron rod was recovered from him under the seizure mahazar Ex.P38. Admissible part of the confessional statement of A2 is marked as Ex.P39 and M.O.3 – wooden club was recovered under the seizure mahazar Ex.P40. Admissible part of the confessional statement of A3 is marked as Ex.P41 and M.O.1 – knife was recovered under the seizure mahazar Ex.P42. Admissible part of the confessional statement of A4 is marked as Ex.P43 and M.O.4 – wooden club was recovered under the seizure mahazar Ex.P44. Admissible part of the confessional statement of A5 is marked as Ex.P45 and M.O.5 – wooden club was recovered under the seizure mahazar Ex.P46. Admissible part of the confessional statement of A7 is marked as Ex.P47 and M.O.6 – wooden club was recovered under the seizure mahazar Ex.P48. (v)P.W.19 brought A1 to A5 and A7 to the police station and they were sent for judicial remand. A6 was arrested on 04.06.2009 at 13.30 hours and he was sent for remand. Further investigation was taken up by P.W.20, who enquired the doctors and received Exs.P19 and P20, extracts of accident registers. Exs.P24 to P27 are the reports sent by the Chemical Analysts P.Ws.17 and 18. After completion of investigation and receipt of the postmortem certificate Ex.P23, P.W.20-investigating officer filed the final report against the accused under Sections 148, 147, 452 and 427 I.P.C. and Section 3 of T.N.P.P.D.L. Act, 302 and 506 (ii) I.P.C. https://hcservices.ecourts.gov.in/hcservices/ (vi)The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, prosecution examined 20 Witnesses and relied on 52 exhibits and 15 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. and they denied them as false. On the side of the defence, no witnesses were examined. The trial Court heard the arguments advanced on either side and found the appellants guilty under the above said provisions and awarded punishments as referred to above. Hence, this appeal has arisen at the instance of the appellants before this Court. 3.Advancing arguments on behalf of the appellants, learned counsel inter alia would submit, in the instant case, the occurrence has taken place at 11.30 p.m. on 23.05.2009 and the prosecution has relied on P.Ws. 1 to 8 as eye witnesses, out of which, P.Ws.3 and 4 are said to be the injured witnesses. The Trial Judge was not ready to believe the evidence of P.Ws.3 and 4 in respect of the charges levelled under Section 324 I.P.C. and acquitted the accused and hence the evidence of P.Ws.3 and 4 became shaky and unbelievable. P.W.1 is the daughter-in-law and P.W.2 is the son of the deceased. According to them, both of them took the deceased to the hospital and the deceased was medically examined by P.W.14 doctor. P.W.1 has categorically admitted that when she went to the hospital, accompanying her husband/P.W.2, she informed the doctor as to how the occurrence had taken place. A perusal of Ex.P21, accident register, would clearly indicate that the deceased was attacked by four unknown persons and while P.W.1 has accompanied her husband/ P.W.2 and taken the deceased to hospital, it is quite natural that she would have spoken about the assailants. Under such circumstances, when they came out with the earliest version that the assailants were unknown persons, then the version of P.W.1 that the deceased was attacked by known persons has got to be eschewed. 4.Added further, learned counsel has candidly admitted that at the instance of A6, a case was registered by the respondent police in Crime No.447 of 2009 and the documents and material records were suppressed by the prosecution. Under such circumstances, the prosecution cannot vouch for the genuineness of the complaint registered against the accused and the trial Court was prevented from taking correct decision and medical opinion would not corroborate the ocular testimony projected by the prosecution. The trial Judge has taken an erroneous view and found the accused/appellants guilty and in the instant case, there is no evidence to show that there was unlawful assembly or common object for committing murder and the judgment of the trial Court has got to be set aside. 5.This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 6.It is not in controversy that the deceased, mother-in-law of P.W.1 and mother of P.W.2 was taken to the hospital and examined by P.W.14 and she was declared dead. Following the inquest made by the investigating officer, the dead body was subjected to postmortem. P.W.15 doctor conducted postmortem and gave her opinion in Ex.P.23 that the deceased died of injury on her head which is the subject matter of controversy before the trial Court. Hence the trial Judge was perfectly correct in relying upon the medical opinion and finding the accused guilty. 7.In order to substantiate the charges levelled against the appellants that they have constituted unlawful assembly and with the common object of causing murder, attacked P.Ws.3 and 4 and also the deceased and caused her death, the prosecution examined P.Ws. 1 to 8 as eye witnesses. P.Ws.3 and 4 came forward to specifically state that at the time of occurrence, they were attacked by the accused and they sustained injuries but the trial Court was not ready to believe the evidence of P.Ws.3 and 4 and acquitted the accused in respect of the charge under Section 324 I.P.C. 8.The Court is able to see that the occurrence took place on 23.05.2009 at 11.30 p.m. According to the investigator, he, on receipt of the intimation, registered a case and also recorded the statements of witnesses, in particular, the statements of P.Ws.1 to 8, who are the eye witnesses. Thereafter, the statements of the eye witnesses should have been sent to the Court at the earliest or within the reasonable time. But in the instant case, from the perusal of the records, it is clear that the statements of P.Ws.2 to 8 were not sent to the Court immediately and they were sent to the Court along with the charge sheet only on 29.09.2009. This would raise a doubt whether P.Ws.2 to 8 would have been present at the place of occurrence at all. Further, when P.W.2 took his mother to the hospital and also informed the doctor P.W.14 that she was attacked by unknown persons, it would be clearly indicative of the fact that P.W.2 would not have been present in the place of occurrence and at this juncture, in view of the above information, it is highly doubtful whether the case of the prosecution in respect of A2 to A7 put forth before the trial Court can be accepted beyond reasonable doubt. It is unsafe to find that they have formed themselves into an unlawful assembly and acted with a common object. 9.On the other hand, the Court is able to see that the case insofar as A1 is concerned, prosecution has successfully produced cogent evidence before the trial court. According to P.W.1, she was in the house along with her mother-in-law, the deceased, at the time of quarrel. At the time of occurrence, A1 took the iron rod and attacked the deceased on her head and this accused along with the other accused caused damage to the auto as well as the television etc., and caused damages to the properties and thereafter he ran away https://hcservices.ecourts.gov.in/hcservices/ from the place of occurrence. At this juncture, learned counsel for the appellants/ accused made a comment that P.W.1 accompanied P.W.2 and she should have made the same statement given by P.W.2 that the deceased was attacked by unknown persons to P.W.14 Doctor, who examined the deceased and declared her dead. According to P.W.14 Doctor, statement was made by P.W.2 and not by P.W.1. In any event, the statement that the deceased was attacked by known persons was made by P.W.1 to P.W.14 Doctor, the statement given by P.W.2 that the deceased was assaulted by unknown persons cannot be taken as given by P.W.1 and thus the evidence of P.W.1 that the deceased was attacked on the head stood fully corroborated by the medical opinion marked through the evidence of P.W.15, who conducted autopsy on the dead body. Apart from that, in the considered opinion of the Court, there is consistent evidence for the prosecution. Added further, learned counsel for the appellants made a comment that the prosecution suppressed the counter case filed in Crime No.447 of 2009 before the trial Court, which cannot be countenanced at all. The investigator has candidly admitted that the case was registered and investigation was completed and the charge sheet was also laid before the Court. In a situation like this, when the case was registered and charge sheet was also laid, by no stretch of imagination, can it be commented as a suppression of materials by the investigating agency in respect of the other case, and also from the evidence available, it would be quite clear that it was A1, who attacked the deceased with iron rod on her head and due to the head injuries, she died and therefore, the factual position remained proved before the trial Court by the evidence adduced by the prosecution. 10.According to P.W.1, there was a quarrel on 20th of May, 2009. Thereafter, there was another quarrel on 23.05.2009 at about 11.30 p.m. which is preceding to the occurrence. At the time of quarrel, A1 was not armed with any weapon and he attacked the deceased with iron rod on the head only once and this cannot be said to be premeditated or preconceived but it was only due to sudden quarrel, A1 attacked spontaneously. Hence under the circumstances, the act of A1 would attract the penal provision of 304 Part II I.P.C. and award of punishment of five years rigorous imprisonment. 11. In the result, Criminal Appeal is partly allowed on the following terms: i)Insofar as A1 is concerned, the judgment of conviction and sentence under Section 302 I.P.C is modified instead, he is found guilty under section 304 Part II I.P.C. alone and awarded the punishment of five years rigorous imprisonment and the conviction and sentence under Section 3 of T.N.P.P.D. & L Act is confirmed and both the sentences are ordered to run concurrently. https://hcservices.ecourts.gov.in/hcservices/ ii)In so far as Appellants 2 to 7 are concerned, the conviction and sentence imposed by the trial Court are set aside and they are acquitted of all the charges levelled against them. They are directed to be released forthwith unless their custody is required in connection with any other case. Fine amount, if any paid by them is directed to be refunded to them. Bail bonds executed by them shall also stand cancelled. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar mmi To 1.The Additional District and Sessions Judge, Fast Track Court No.V, Chennai – 1. 2.-do- Thro Principal Sessions Judge, Chennai. 3.The Inspector of Police, G-5 Secretariat Colony Police Station, Chennai – 10. 4. The Superintendent, Central Prison, Puzhal, Chennai 5.The Public Prosecutor, High Court, Madras. 6.The District Collector, Chennai. 7.The Director General of Police, Chennai. 8.II Metropolitan Magistrate, Egmore, Chennai 9.-do- Thro Chief Metropolitan Magistrate, Chennai. 10.The Judicial Magistrate No.I, Vellore. 2 cc to Mr.C.M.Gunasekaran, Advocate, Sr.No.69412 Crl.A.No.367 of 2010 VSV {CO} TP/5.10.2010. https://hcservices.ecourts.gov.in/hcservices/