Bail Slip The Appellant/Accused No.2 Viz, Murali S/o Selvaraj was directed to be released on bail as per order of this court dated 22.5.07 and made in Crl.M.P.No.1/07 in Crl.Appeal No.447/07 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-10-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.No.447 of 2007 1.Guru 2.S.Murali .. Appellants/Accused 1 & 2 vs The State: represented by The Inspector of Police Tirupur Rural Tirupur Crime No.396/2004 .. Respondent/Complainant Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Coimbatore (Fast Track Court No.V), at Tirupur, in S.C.No.252 of 2006 dated 29.3.2007. For Appellants : Mr.R.Sankarasubbu For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.V, Coimbatore at Tirupur, made in S.C.No.252 of 2006 whereby these appellants as A-1 and A-2 respectively along with three others shown as A-3 to A-5, stood https://hcservices.ecourts.gov.in/hcservices/ charged as follows: A-1 under Sections 302 and 148 of IPC. A-2 to A-5 under Sections 147 and 302 read with 149 of IPC. 2.On trial, A-1 was found guilty under Sections 148 and 302 of IPC and awarded three years Rigorous Imprisonment and life imprisonment respectively, and A-2 was found guilty under Sections 147 and 302 read with 149 of IPC and awarded two years Rigorous Imprisonment and life imprisonment respectively. 3.The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is the elder brother of the deceased Rajan. The deceased was running a mess. They were all residing at Sundamet area within the jurisdiction of the respondent police. On 16.5.2004, the pipeline proceeding to the house of the deceased was damaged. On seeing this, he warned the accused No.1 and 2 and others also. Thus, the accused were on inimical terms. On the next day, that was on 17.5.2004 at about 10.30 A.M., the deceased was taken by his friends. P.W.1 was returning from Thennampalayam. At about 2.00 P.M., when he was just crossing the Classic Saloon Shop of P.W.2, A-1 to A-5 surrounded the deceased, and A-3 to A-5 facilitated the crime when A- 2 held the deceased, and A-1 stabbed him on the stomach. The knife was snatched by A-2, and he in turn stabbed him. Then, the deceased was pushed down. When he was in a lying position, A-1 and A-2 stabbed him again. In that process, the deceased died. The occurrence was witnessed not only by P.W.1, but also by P.Ws.2, 3, 4 and 5. P.W.1 went near the dead body, and then he proceeded to the respondent police where P.W.14, the Sub Inspector of Police, was on duty. At about 16.00 hours, P.W.1 gave Ex.P1, the report, on the strength of which a case came to be registered in Crime No.396 of 2004 under Sec.302 of I.P.C. The printed First Information Report, Ex.P15 was despatched to the Court. (b) The case was taken up for investigation by P.W.15, the Inspector of Police of the said Circle, on receipt of the copy of the FIR. He proceeded to the scene of occurrence, made an inspection, and prepared an observation mahazar, Ex.P16, and a rough sketch. Then, the Investigator conducted inquest on the dead body in the presence of witnesses and pachayatdars and prepared Ex.P17, the inquest report. Thereafter, the dead body was sent to the Government Hospital along with a requisition, Ex.P9, for the purpose of postmortem through a Constable. (c) P.W.10, the Assistant Surgeon, attached to the Government Head Quarters Hospital, Coimbatore at Tiruppur, on receipt of the said requisition, conducted autopsy on the dead body of Rajan and noticed 14 external injuries. He has issued Ex.P10, the postmortem certificate, and has given his final opinion under Ex.P11 stating that the deceased would appear to have died of shock and haemorrhage due to multiple injuries mainly injury No.12 causing division of main vessels of neck about 18 to 24 hours prior to autopsy. https://hcservices.ecourts.gov.in/hcservices/ (d) P.W.16, the Inspector of Police, took up further investigation. Pending the investigation, the Investigating Officer arrested A-3 on 22.5.2004 when he volunteered to give a confessional statement. The admissible part is marked as Ex.P2. He produced M.O.2, shirt, which was recovered under a cover of mahazar. On the very day, A-4 was also arrested. He volunteered to give a confessional statement. The admissible part is marked as Ex.P4. He produced M.O.3, shirt, which was recovered under a cover of mahazar. Then, the Investigator arrested A-5 on the same day. They were all sent for judicial remand. (e) The Investigating Officer came to know that A-1 surrendered before the Judicial Magistrate No.VII, Coimbatore. On a requisition, police custody was ordered. A-1 came forward to give a confessional statement. The sane was also recorded, and the admissible part is Ex.P6. Pursuant to the same, he produced M.O.1, knife, which was recovered under a cover of mahazar. He was sent for judicial remand. (f) All the material objects recovered from the place of occurrence, from the dead body and from the accused were subjected to chemical analysis by the Forensic Sciences Department which resulted in two reports, Ex.P20, the Chemical Analyst's report, and Ex.P21, the Serologist's report. On 17.9.2004, A-2 was arrested and sent for judicial remand. On completion of investigation, the Investigating Officer filed the final report. 4.The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges the prosecution examined 16 witnesses and also relied on 22 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. They flatly denied the entire evidence as false, and no defence witness was examined. The Court below heard the arguments advanced, took the view that the prosecution has proved the case as far as A-1 and A-2 were concerned and found them guilty and awarded imprisonment as referred to above. The trial Court recorded an order of acquittal in respect of A-3 to A-5. Under the circumstances, this appeal has arisen at the instance of A-1 and A-2. 5.Advancing arguments on behalf of the appellants, the learned Counsel Mr.R.Sankarasubbu would submit that the trial Court has not properly taken into consideration the submissions put forth by the defence; that the occurrence has taken place on 17.5.2004 at about 2.00 P.M.; that according to the prosecution, the pipeline proceeding towards the house of the deceased was damaged, and on seeing this, the deceased warned the accused persons, and thus they were on inimical terms; that there was no one to speak about the motive; that the prosecution has failed to prove the motive part; that though number of witnesses were examined to speak about the factual position, except P.Ws.1 and 2, all others have turned hostile; that as far as P.Ws.1 and 2 were concerned, P.W.1 was the elder brother of the deceased; that the lower Court was not prepared to rely on his evidence since he was just proceeding on the way; that under the circumstances, his evidence was of no use, and thus, the only witness available was P.W.2; that P.W.2 was actually the owner of the Saloon https://hcservices.ecourts.gov.in/hcservices/ Shop; that only on hearing the sound, he came out; that he could not have seen the occurrence at all; and that apart from that, it would not be fit or proper to sustain a conviction on the uncorroborated and solitary testimony of P.W.2. 6.Added further the learned Counsel that in the instant case, even assuming that the prosecution came forward to state that there were five accused, the lower Court was not prepared to accept the same evidence in respect of A-3 to A-5; that as far as A-1 was concerned, there was a specific charge namely Charge No.3 that it was he who stabbed and caused the death; that A-2 was actually in the same footing along with A-3 to A-5; that as far as A-2 was concerned, there is not even a whisper in the charge that it was he who attacked with a knife; that a reading of the FIR the earliest document, would indicate that there were only four persons at the place of occurrence; that if to be so, there was no fifth person; that under the circumstances, there should not be any unlawful assembly or common object and hence A-2 was also in the same footing along with A-3 to A-5. and he should have also been acquitted. 7.It is the further submission of the learned Counsel that even assuming that the prosecution has proved the factual position, it was a case where there was actually some quarrel between the parties, which was spoken to by P.W.1 and also found place in the FIR, and hence the act of A-1 could not be termed as murder, and this legal position has got to be taken note of by this Court. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that one Rajan, the younger brother of P.W.1, was done to death in an incident that took place at 2.00 P.M., on 17.5.2004. The dead body following the inquest made by P.W.15, the Investigator, was subjected to postmortem by P.W.10, the Doctor, who has given the postmortem certificate wherein he opined that the deceased would appear to have died of shock and harmorrhage due to the multiple injuries sustained. The fact that the deceased died out of homicidal violence was never questioned by the appellants at any stage of the proceedings, and hence without any impediment, it could be recorded so. 10.The case of the prosecution was that in furtherance of the common object, A-1 to A-5 constituted into an unlawful assembly; that A-3 to A-5 facilitated the crime; and that A-1 and A-2 stabbed the deceased Rajan to death. When the charges are looked into, it would read that it was A-1 who stabbed him to death, and all other persons who were members of the unlawful assembly, facilitated the crime. Nowhere the charge whispered that A-2 also stabbed him. Further, at the earliest it has to be pointed out that the prosecution though examined number of witnesses as eyewitnesses, only two witnesses have spoken about the factual position i.e., P.Ws.1 and 2. According to P.W.1, he was just proceeding from a nearby place, and he was just crossing the place of occurrence, and he witnessed the occurrence. The lower Court has adduced reasons for not relying upon his evidence and in the considered opinion of this Court, rightly too. But, at https://hcservices.ecourts.gov.in/hcservices/ the same time, the earliest document is Ex.P1, wherein he has stated only four persons, and these two appellants/A-1 and A-2 are named. At this juncture, it is pertinent to point out that once four persons are only named and not five, there is no question of any application of the provisions for common object of an unlawful assembly. 11.At this juncture, as far as the evidence of P.W.2 is concerned, it is so clear. According to him, he was running a Saloon Shop, and when he heard the noise, he came out of the shop and found A-1 actually stabbing the deceased. This evidence of P.W.2 stood fully corroborated by the medical evidence, and the corresponding scientific evidence was also placed which is in support of the prosecution case. 12.As far as A-2 was concerned, as stated above, there is no specific charge, and he is not attributed with any overt act except what is stated that he facilitated the crime along with A-3 to A-5. But, the Court below has pointed out that as far as A-3 to A-5 were concerned, their identity was not fixed, and their names were also not mentioned in the FIR. At this juncture, it is pertinent to point out that even the earliest document Ex.P1, the complaint, would indicate that there were four persons and not five, and under the circumstances, question of common object of an unlawful assembly will not arise for consideration. As far as A-2 is concerned, it cannot be stated that the prosecution has brought home the guilt of A-2. But, at the same time, the evidence marshaled would clearly indicate that the prosecution has proved the case insofar as A-1 beyond reasonable doubt. 13.Now, the contentions put forth by the learned Counsel for the appellants in respect of A-1, do not merit acceptance at all in view of the circumstances and reasons narrated above. The contention put forth by the learned Counsel for the appellants that there was some quarrel going on, and in view of the sudden quarre3l, A-1 has acted so, and hence it cannot be termed as murder cannot be countenanced at all. What is found in the FIR and also the evidence was that all the persons were pushing him to the wall and then pushing him down on the ground. Here no quarrel could be inferred. Not even words were uttered at the time, and hence there is nothing to infer that there was any quarrel at all. In such circumstances, the act of A-1 has to be termed only as murder. This Court is of the considered opinion that the judgment of the trial Court recording a finding that A-1 was guilty under Sec.302 of IPC and sentencing him to life has got to be sustained. As far as the conviction and sentence imposed on A-1 under Sec.148 of IPC are concerned, it could not be applied, and hence the judgment of the trial Court in that regard has got to be set aside and he be acquitted. 14.As far as A-2 is concerned, the judgment of the trial Court has got to be set aside, and he be acquitted of all the charges. 15.In the result, this criminal appeal is partly allowed. The judgment of conviction and sentence passed by the lower Court in respect of A-2, is set aside, and A-2 is acquitted of all the charges. The bail bond executed by him shall stand terminated. As regards A-1, the judgment of the trial Court is confirmed in respect https://hcservices.ecourts.gov.in/hcservices/ of the charge under Sec.302 of IPC. A-1 is acquitted of the charge under Sec.148 of IPC. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To 1.The Judicial Magistrate No.II, 2.-Do-Thro' the Chief Judicial Magistrate, Coimbatore. 3.The Additional Sessions Judge (Fast Track Court V), Coimbatore @ Tiruppur. 4.-do- Thro' The Principal Sessions Judge, Coimbatore. 5.The Superintendent, Central Prison, Coimbatore. 6.The Inspector of Police, Tirupur Rural, Tirupur. 7.The District Collector, Coimbatore. 8.The Director General of Police, Mylapore, Chennai. 9.The Public Prosecutor, High Court, Madras. 1 CC To Mr.R.Sankarasubbu, Advocate, SR NO.5691 CRL.A.No.447 of 2007 ck(co) pmk/22.10.2008. https://hcservices.ecourts.gov.in/hcservices/