IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN Criminal Appeal Nos.612 of 2008 and 64 of 2009 Siva @ Sivakumar ..Appellant in C.A.No.612/2008/ Accused No.I Subramani @ Subbu @ Suresh ..Appellant in C.A.No.62/2009/ Accused No.III Vs. State represented by The Inspector of Police, Erode North Police Station, Erode District (Crime No.459/2007) ..Respondent in both the appeals. These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence passed by the learned Ist Additional Sessions Judge, Erode District made in S.C.No.31/2008 dated 01.8.2008. For Appellant in Crl.A.612/2008 : Mr.V.Raghavachari For Appellant in Crl.A.64/2009 : Mr.I.C.Vasudevan For Respondent : Mr.N.R.Elango, APP in both Crl.As. COMMON JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgement shall govern these two appeals viz., Crl.A.No.612/2008 by A1 and Crl.A.No.64/2009 by A3. https://hcservices.ecourts.gov.in/hcservices/ 2. These two appellants along with four others stood charged and on trial they were found guilty as follows: Accused Charges Findings Sentence A-1 to A-4 148 IPC Not Guilty A-6 147 IPC Not Guilty A-1 to A-4 307 IPC Guilty u/s 307 r/w 149 IPC 7 years RI along with fine of Rs.500/- i/d. 6 months RI. each A-5 and A-6 307 r/w 149 IPC Not Guilty A-1 & A-3 302 IPC Guilty Life imprisonment along with fine of Rs.1000/- i/d. 6 months RI each A-2, A-4, A-5 & A-6 302 r/w 149 IPC Not guilty A-1 307 IPC Not guilty A-2 to A-6 307 r/w S.149IPC Not guilty A-1 to A-4 452 IPC Not guilty A-1 to A-6 427 IPC Not guilty A-5 and A-6 427 r/w 149 IPC Not guilty The sentences are ordered to run concurrently. The trial Court made an order of acquittal of A5 and A6. 3. The short facts necessary for the disposal of these appeals can be stated as follows: (a) 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 in the name and style 'Penguin Waters' and P.W.1 was running a bunk shop which is part of the building in which P.W.2 is running the mineral water shop. During the relevant time, P.Ws.1, 2 and 4 were living together at Nethaji Nagar. On 7.4.2007 at about 5 p.m , during festive occasion in Periamariamman temple, A1 to A3 broke beer bottles in front of the house of P.W.1. The same was questioned by P.W.4 and there was a quarrel between P.W.4 and A1 to A3. P.W.4 reported the same to P.W.1 and P.W. 1 questioned the accused but the accused/A1 to A3 assaulted him. From that time onwards, they were in inmical terms. P.W.4 intended to go to Madras on 8.7.2007 for treatment. She went to the https://hcservices.ecourts.gov.in/hcservices/ shop of her husband P.W.2 to inform about the same. When she was just nearing the shop of P.W.2, herself and P.W.1 saw A1 to A4 attacking P.W.2 with aruvals and causing injuries. One Ganapathi who was actually standing by the side was pacifying the situation. Ganapathy questioned the conduct of the accused. Immediately, A3 inflicted a cut injury on his neck with aruval. Ganapathy fell down. A1 gave stab injury on his stomach. P.W.3 who was watching T.V. inside the shop came out and when he questioned A1, he was also attacked by him and he got severe injury on his wrist. Except these two injured witnesses, the other witnesses also witnessed the occurrence. Not satisfied with the same, they also damaged the furniture in the shop worth Rs.10,000/-. Immediately, the victim was taken to a private hospital. On the way to hospital, they suspected whether the victim was dead or alive. Hence, they took him to the Government Hospital. P.W.15 doctor examined the victim and declared him dead. The accident Register copy in that regard is Ex.P29. P.W.2 was examined medically by P.W.16 in the Government Hospital and wound certificate in that regard is Ex.P28. Equally, the same doctor examined P.W.3 and noted the injuries found on his body and Ex.P26 is the wound certificate and Ex.P24 is the accident register copy in that regard. (b) P.W.1 immediately proceeded to the respondent Police Station and gave Ex.P1 report to P.W.17 Sub Inspector of Police. On the strength of Ex.P1 report, P.W.17 Sub Inspector of Police registered a case in Crime No.459 of 2007 under sections 427, 307 and 302 I.P.C. The Printed F.I.R. Ex.P31 along with Ex.P1 were sent to Court. (c) P.W.21 Inspector of that circle took up investigation. He proceeded to the spot made an inspection and prepared the Observation Mahazar Ex.P2 and drew a rough sketch Ex.P35 and thereafter, he conducted inquest on the dead body of the deceased Ganapathy and prepared Ex.P.36 inquest report in the presence of witnesses and recorded the statement of the witnesses and recovered the material available from the place of occurrence. Pursuant to the request made, P.W.19 doctor conducted post mortem on the dead body and gave his opinion Ex.P33 post mortem certificate that "the deceased would appear to have died, 16 – 18 hrs prior to autopsy due to injuries – Shock & haemorrhage." (d) Pending investigation, A4 was arrested on 12.7.2007 and he came forward to give confession statement the same was recorded. The admissible part was marked as Ex.P5. He produced the aruval which was marked as M.O.8 and the same was recovered under a cover of mahazar Ex.P6. Equally, A1 to A3 were arrested on 16.7.2007 and A2 came forward to give confession statement which was recorded and the admissible part of the same was marked as Ex.P7. He produced M.O.9 aruval which was recovered under a cover of mahazar Ex.P.8 and the confession statement of A1 was recorded and the admissible part is marked as Ex.P9. He produced M.O.10 aruval which was recovered under a cover of mahazar Ex.P10. The confession statement of A3 was https://hcservices.ecourts.gov.in/hcservices/ recorded and the admissible part was marked as Ex.P11. He produced M.O.11 aruval and also M.O.12 banian which were recovered under a cover of mahazar Ex.P.12. All the accused were sent for judicial remand. When the investigator came to know that the other accused viz., A5 and A6 were also involved, they were arrested and both came forward to give confession statement on 30.7.2007 and the admissible part of the confession made by A5 was marked as Ex.P13. A5 produced M.O.13 TVS 50 and M.O.14 TVS 50 key and they were recovered under a cover of mahazar Ex.P14 and he also produced M.O.18 aruval and it was recovered under a cover of mahazar Ex.P.17. A6 also gave confession statement and the admissible part was marked as Ex.P.15. He produced Hero Honda Motor - M.O.15 and Hero Hondo key -M.O.16 and the same were recovered under a cover of mahazar Ex.P16. The accused were sent to judicial remand. (e) All the material objects, pursuant to the requisition made, were subjected to chemical analysis by the Forensic department, as a result of which Exs.P.20, 21, and 22, chemical and serologist reports respectively were received and produced before the Court. On completion of the investigation, the investigating officer filed a final report. (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and relied on 36 exhibits and 22 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution witnesses and they denied them as false. No defence witness was examined. The Court, on hearing the arguments advanced on either side, took a view that the prosecution has proved its case beyond reasonable doubt in so far as A1 to A4 are concerned and found A1 to A4 guilty under section 307 r/w 149 IPC and awarded 7 years rigorous imprisonment along with fine of 500/- each, in default, to undergo six months rigorous imprisonment and found A1 and A3 guilty under section 302 I.P.C. and awarded life imprisonment along with fine of Rs.1000/- each, in default, to undergo six months rigorous imprisonment. The trial Court made an order of acquittal insofar as A5 and A6 are concerned. These appeals have been brought forth only by A1 and A3 respectively. 4. Advancing the argument on behalf of the appellants learned counsel would submit, in the instant case, the prosecution has miserably failed to prove its case. The trial Court was not ready to believe the evidence of P.Ws.1 to 4 in respect of the charges which ended in acquittal, but the trial court has found A1 to A4 guilty under section 307 r/w 149 I.P.C. and A1 and A3 guilty under section 302 IPC. Out of the eye witnesses, P.Ws. 1 to 4, P.Ws.2 and 3 were shown as injured witnesses. In the instant case, the evidence of P.W.2 and P.W.3 would clearly indicate that such an occurrence could https://hcservices.ecourts.gov.in/hcservices/ not have taken place at all. According to the prosecution, the motive to the incident was the incident that had taken place on 7.4.2007 just three months prior to the occurrence on question. On 7.4.2007, the accused A1 to A3 broke the beer bottle in front of the house of P.W.4 and there was wordy altercation. Even according to the witnesses, the accused used to pass the shop of P.W.2 and also the petty shop of P.W.1 everyday. Under such circumstances, the earlier incident, occurred prior to three months, is the motive which is now attributed in the present incident, could not be true or genuine. There was no intention or premeditation so far as the deceased Ganapathy was concerned. Unless he interfered in the wordy altercation between the parties, he could not have been attacked and no intention could be attributed on the accused. 5. Added further learned counsel, insofar as the place of occurrence is concerned, according to the prosecution, the occurrence has taken place in front of the shop but according to P.W.3 he was actually attacked inside the shop and blood stains were also collected from inside the shop. All would go to show that the place of occurrence is not as one putforth by the prosecution. Further, once the place of occurrence would differ the so called eye witnesses cannot be believed. The learned counsel would further add, the medical opinion canvassed was not in favour of the prosecution. The recovery of material objects alleged to have been made pursuant to the confession statement is nothing but development made by the investigating agency in order to strengthen the prosecution case. Hence, it should have been rejected by the trial Court. In short, the learned counsel would submit that the prosecution has not proved its case beyond reasonable doubt and the benefit of doubt should be given to the accused/appellants to which they are entitled to. 6. The learned counsel would further submit that even assuming the factual position of the prosecution case is taken to have been proved, the act of the accused/ A1 and A3 would not attract the penal provision of murder. They had no intention or premeditation when there was a quarrel going on between the accused on the one side and P.Ws. 1, 2 and 4 on the other side. The deceased unnecessarily interfered. Under such circumstances, being provoked A1 to A3 should have attacked him. Hence, the act of the accused would not attract the penal provision of murder but it would fall under the exception to definition of murder. Hence, this legal aspect has got to be considered by this Court. 7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8. It is not in controversy that one Ganapathy was done to death in an incident that had taken place at 7.30 p.m. on 8.4.2007. Following the inquest made by the Inspector of Police of that https://hcservices.ecourts.gov.in/hcservices/ circle, the dead body was subjected to post mortem. The post mortem doctor P.W.9 has given his opinion in the post mortem certificate Ex.P.33 that Ganapathy died due to shock and haemorrhage out to the injuries sustained by him. The fact that Ganapathy died of homicidal violence was never disputed before the trial Court. Thus, the trial Court was perfectly correct in recording so. 9. In order to substantiate the act of the accused/appellants that in the incident that had taken place on 8.4.2007, A1 to A4 attacked P.W.2, A1 attacked P.W.1 and apart from that, in that transaction, A1 and A3 attacked the deceased and caused his death instantaneously, the prosecution relied on the evidence of P.Ws.1 to 4. It is true, P.W.1 is the brother-in-law of P.W.2 and P.W.4 is the wife of P.W.2 and they were all living together. Merely because of the relationship of the parties, their evidence cannot be rejected but before acceptance, it must be subjected to careful scrutiny test. The Court is mindful of the caution made by the settled principles of law. Even after application of the test, the Court is thoroughly satisfied that the evidence has inspired the confidence of the Court. 10. The first comment made by the learned counsel for the appellants was that the earlier incident had taken place on 7.4.2007 and the present occurrence had taken place on 8.7.2007 and there was interval of three months. Hence, the motive attributed to the accused/appellants cannot be true. This contention cannot be accepted at all. All these witnesses have clearly spoken to the fact that from the time of earlier incident that was on 7.4.2007, they were on inmical terms. Apart from this, on 8.7.2007 the occurrence has taken place at 7.30 p.m. when P.Ws. 1, 2 and 4 were in front of the shop and at that time P.W.3 was also inside the shop. As could be seen from the available materials, the petty shop of P.W.1 is just in front of Penguin Water shop. It is pertinent to point out that A1 to A4, armed with deadly weapons had gone to the place of occurrence and in that process, when wordy altercation was going on, it was A1, A2, A3 and A4 actually attacked P.W.2 with aruval and caused injuries. When it was questioned by P.W.3, A1 attacked him with aruval on his wrist and caused grievous injury. 11. From the evidence of P.W.2 and P.W.3, it would clearly indicate that at the time the deceased was actually standing in front of the shop and on seeing P.W.2 being attacked by the accused, quite naturally, he questioned the conduct of the accused. The deceased Ganapathy was an utter stranger and there is nothing to suggest that except questioning the conduct of the accused, he had acted in any manner. While the matter stood thus, A3 attacked him on the neck and A1 stabbed in the stomach and the opinion canvassed through the post mortem doctor would indicate that he died out of shock and haemorrhage due to the injuries sustained on him. Thus, the act of A1 and A3 conjointly has brought forth the death of the deceased. https://hcservices.ecourts.gov.in/hcservices/ 12. In the instant case, it is true A1 to A4 armed with deadly weapons went over there and they had wordy quarrel. They originally attacked P.W.2 and they actually wanted to attack P.W.2 with deadly weapons. First, when P.W.3 questioned the same, A1 attacked him with aruval and caused injury. Now, at this juncture, the Court has to accept the contention made by the learned counsel for the appellants that A1 and A3 did not have any intention to cause the death of Ganapathy, but A3 attacked Ganapathy on his neck, A1 attacked him on his stomach. It was nothing but causing bodily injury to the deceased and they knew that it would likely cause death of a person when such injury was caused. When such is the case, though A1 and A3 did not have intention to cause death, when they caused such bodily injury, in the ordinary course, they knew that it would cause death, hence, it would attract the penal provision of murder. The contention putforth by the learned counsel for the appellants that A1 and A3 did not have the intention to cause death though can be accepted, the Court is of the view that they have got the intention while they attacked him with aruval one on the neck and the other on the stomach. They knew that causing such injury would cause death. Therefore, the act of A1 and A3 would be termed only as murder and the life imprisonment awarded by the trial Court has got to be sustained. 13. The findings of the trial Court that the accused were found guilty under section 307 r/w 149 IPC. has got to be set aside for the simple reason, the trial court was not ready to believe the case of the prosecution regarding A5 and A6 therefore, the question of attracting the provision of section 149 IPC would not arise. A1, A2, A3 and A4 attacked P.W.2 and have caused simple injuries as could be evidenced from the wound certificate Ex.P28 and the accident register Ex.P27. Hence, the appellants were found guilty under section 324 IPC. 14. Accordingly, the judgment of conviction and sentence imposed on the appellants by the trial Court under Section 302 IPC is sustained. The conviction and sentence imposed on the appellants under section 307 r/w 149 IPC are modified and instead, the appellants are convicted under Section 324 IPC and sentenced to undergo 2 years rigorous imprisonment each. The period of sentence already undergone by the appellants are ordered to be given set off. The fine amount and the default sentence imposed by the trial court will hold good. The sentences are ordered to run concurrently. 15. With the above modification in conviction and sentence, the criminal appeals are dismissed. sd/- Asst.Registrar /true copy/ vsi Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The I Additional Sessions Judge, Erode District. 2. -do- Through The District & Sessions Judge, Erode. 3. The Judicial Magistrate, Erode. 4. -do- Through The Chief Judicial Magistrate, Erode. 5. The District Collector, Coimbatore. 6. The Director General of Police, Mylapore, Chennai. 7. The Superintendent, Central Prison, Coimbatore. 8. The Inspector of Police, Erode North Police Station, Erode District. 9. The Public Prosecutor, High Court, Madras. 10. The Section Officer, Criminal Section, High Court, Madras. + 1 c.c. to Mr. V. Raghavachari, Advocate. S.R.No.34024. Crl.Nos.612 of 2008 & 64 of 2009 NTK (CO) GSK 10.08.2009. https://hcservices.ecourts.gov.in/hcservices/