BAIL SLIP Crl.A.No.484 of 2007 The Appellants/Accused Nos.1,2 and 4 to 9, namely, 1)Dhanapal, S/o.Poongavanam 2)Murugan, S/o.Poonjolai 3)Baskar, S/o.Subramani 4)Kumaran, S/o.Saminathan 5)Subramani, S/o.Poongavanam 6)Kamalakannan, S/o.Ellan 7)Mohan, S/o.Kannan 8)Annadurai, S/o.Poongavanam were released on bail, as per the order of this Court dated 1.8.2007 in M.P.No.1 of 2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.484 of 2007 1.Dhanapal 2.Murugan 3.Baskar 4.Kumaran 5.Subramani 6.Kamalakannan 7.Mohan 8.Annadurai .. Appellants/Accused 1, 2 & 4 to 9 Vs. State by Inspector of Police, Vandavasi North Police Station, Vandavasi (Cr. No.15/2000) .. Respondent/Complainant * * * Prayer : Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the order of Judgment passed by the learned District and Sessions Judge, Thiruvannamalai, in S.C.No.143 of 2002 dated 30.03.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.K.S.Rajagopalan For Respondent : Mr.N.R.Elango, Additional Public Prosecutor J U D G M E N T (Judgment of the court was delivered by K.N.BASHA, J.) The appellants, who have been arrayed as A-1, A-2 and A-4 to A- 9, have come forward with this appeal challenging their conviction and sentence passed by the learned Sessions Judge, Thivannamalai, by the judgment dated 30.03.2007 made in S.C.No.143 of 2002. 2. The appellants have been convicted and sentenced as follows : (i) A-1 has been convicted under Section 148 IPC and sentenced to undergo one year rigorous imprisonment and convicted under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.7,000/- carrying with default sentence of one year rigorous imprisonment ; A-2 has been convicted under Section 147 IPC and sentenced to undergo one year rigorous imprisonment and convicted under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.7,000/- carrying with default sentence of one year rigorous imprisonment and also convicted under Section 323 IPC and sentenced to undergo six months rigorous imprisonment ; A-4 has been convicted under Section 148 IPC and sentenced to undergo one year rigorous imprisonment and convicted under Sections 302 r/w 149 IPC and sentenced to undergo life imprisonment with a fine of Rs.7,000/- carrying with default sentence of one year rigorous imprisonment ; A- 5 has been convicted under Section 147 IPC and sentenced to undergo one year rigorous imprisonment and convicted under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.7,000/- carrying with default sentence of one year rigorous imprisonment ; A- 6, A-7, A-8 and A-9 have been convicted under Section 147 IPC and sentenced to undergo one year rigorous imprisonment and convicted under Sections 302 r/w 149 IPC and sentenced to undergo life imprisonment with a fine of Rs.7,000/- carrying with default sentence of one year rigorous imprisonment. (ii) A-3 in this case died even prior to the trial and as such the charges against him abated. 3. The facts of the case as projected by the prosecution are as follows : (i) P.W.1 is the mother-in-law of the deceased, Ellappan; P.W.2 is the uncle of the deceased and P.W.3 is the father of the deceased. One Narayanasamy is the father-in-law of A-1. Three months prior to the occurrence, the children of the deceased passed motion near the house of the said Narayanasamy which resulted in a wordy quarrel https://hcservices.ecourts.gov.in/hcservices/ between the deceased and the said Narayanasamy and A-1, his son-in- law. Therefore, there were strained feelings between A-1 and the deceased. (ii) On the fateful day of occurrence, i.e., on 24.01.2000 at 8.00 a.m., P.W.1 was proceeding along with the deceased to Bus Stand to go to Chennai. While they were nearing the house of one Ekambaram, A-1, A-3 and A-4 shouted on seeing the deceased to cut him and also abused in filthy language. A-1 cut the deceased with a kora knife, M.O.1, on his head. A-3 cut the deceased on his left hand with a koduva knife. A-4 with the koduva knife cut the deceased on his right thigh. The deceased fell down. A-2 and A-5 to A-9 beat the deceased repeatedly with sticks. P.W.1 raised hue and cry along with her granddaughter, Sarala. All the accused ran away from the scene with weapons. P.W.1 along with the others took the deceased to the Government Hospital, Vandavasi. (iii) The Doctor, P.W.4, examined the deceased on 24.01.2000 at 12.15 noon and he found the following injuries : (1)A lacerated injury about 4 cm X 2 cm over top of the skull with fresh bleeding exposing the brain matter. (2)A depressed wound about 4 cm X 2 cm over right frontal region with protusion of right eye with (n.c.) (3)A depressed wound about 3 cm X 2 cm over left frontal region. (4)A diffused contusion between right and left frontal wounds. (5)Bleeding from left ear. (6)Bleeding from both nostrils. (7)A lacerated injury about 6 cm X 3 cm X 2 cm over medial aspect of right foot exposing the vessels. (8)A contusion about 3 cm X 3 cm over left leg with (n.c.) (9)An abrasion about 3 cm X 1/8 cm over left thigh. (10)A linear abrasion about 3 cm X 1/8 cm over left side of the Chest. (11)A lacerated injury about 2 cm X 1 cm over left palm. Ex.P.2 is the Accident Register. The Doctor, P.W.4, after giving first aid treatment referred him to the Government General Hospital, Chennai. (iv) The Doctor, P.W.4, also examined P.W.3 at 12.30 noon on 24.01.2000 and he found a contusion about 3 cm X 2 cm over left leg and issued Ex.P.3, Accident Register to P.W.3. He opined that the injury is simple in nature. (v) P.W.9, Inspector of Police, on receipt of information from the Government Hospital, Vandavasi, went to the hospital at 12.45 p.m. on 24.01.2000. He found the deceased was unconscious. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, he recorded the report, Ex.P.1 from P.W.1. He registered the case in Crime No.15 of 2000 for the offence under Sections 147, 148, 341, 326, 324, 323 and 307 IPC. Ex.P.13 is the First Information Report. He sent the same to the Magistrate Court. (vi) P.W.9 took up investigation and went to the scene of occurrence at 3.00 p.m. He prepared the observation mahazar, Ex.P.6 and the rough sketch, Ex.P.14. He recovered M.O.5, bloodstained earth, M.O.6, sample earth under Ex.P.7 in the presence of witnesses. (vii) On 26.01.2000, the deceased died at the Government General Hospital, Chennai, and the Doctor, P.W.7, sent death intimation under Ex.P.10 to the police. On receipt of Ex.P.10, death intimation sent by P.W.7, Doctor, P.W.9 altered the offence from under Section 307 IPC to one under Section 302 IPC. Ex.P.15 is the altered First Information Report. He went to the Government General Hospital, Chennai, and held inquest on the dead body from 10.00 a.m. to 1.00 p.m. Ex.P.16 is the inquest report. He sent the body for post- mortem. (viii) The Doctor, P.W.8, conducted post-mortem on the dead body of the deceased on 26.01.2000 at 1.30 p.m. and found the following injuries : (1)Abrasions : a) Over left chest 1 X 0.5 cm. b) Over left side of upper part of knee joint 5 X 0.5 cm. c) Over lateral side of left leg on upper part 2.5 cms in diameter. All the above abrasions brownish black in colour. (2)Sutured wound over upper part of middle of scalp 10 cms long with 10 sutures. On removal of sutures the edges are clear cut. (3)Sutured wound 12 cms long on dorsum of right leg with 12 sutures. On removing the sutures the sutures the edges are clear cut. Thin fibrinous exuding between the margins. (4)Comminuted fracture of left parietal, frontal and temporal bones. Multiple pieces of bones of varying sizes were seen depressed and lying over the dura matter. (5)Linear fracture of right parietal bone along the coronal suture on right side. (6)Fracture of right anterior cranial fossa. (7)Fracture of left middle cranial fossa. (8)Epidural, sub dural and sub arachnoid haemorrhage seen. Heart : Chambers contains fluid blood. Coronaries patent. Lungs : Pale. Hyoid bone : intact. Stomach : Empty, mucosa – Pale. Bladder : Empty. Brain : Pale and oedematuos. https://hcservices.ecourts.gov.in/hcservices/ Ex.P.11 is the Post-mortem certificate. After receiving the Viscera report, Ex.P.12, the Doctor, gave final opinion to the effect that the deceased died of shock and haemorrhage due to head injury. (ix) P.W.9, in continuation of his investigation, recovered M.O.8, dhothi of the deceased under Form 95. On 01.02.2000 at 10.45 a.m., he arrested A-3 at Vadanankur bus stand. In pursuance of the admissible portion of his confession under Ex.P.4, he recovered M.Os.1 to 4, knives under Ex.P.5. He sent the material objects to the Court. A-1, A-4, A-6, A-8 and A-9 surrendered before the Magistrate and P.W.9 took police custody of the said accused. In pursuance of the admissible portion of the confession of A-1 under Ex.P.8, he recovered M.O.7, TVS 50 bike. On 09.02.2000, he arrested A-2 and remanded him to judicial custody through the Court. (x) P.W.10, Inspector of Police, took up further investigation and he verified the evidence collected by P.W.9. He examined the Doctors, P.Ws.4, 7 and 8. He received the post-mortem certificate, Ex.P.11 and Viscera report, Ex.P.12. He also received Ex.P.17 series, chemical examination reports. After completion of investigation, P.W.10 filed the charge sheet against the accused on 16.05.2000 for the offence under Sections 147, 148, 341, 326, 324, 323 and 302 IPC. 4. The prosecution, in order to bring home the charges against the accused, examined P.Ws.1 to 10, marked Exs.P.1 to P.17 and M.Os.1 to 8. 5. When the accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them, all the accused have come forward with the version of total denial and stated that they have been falsely implicated in this case. They have not chosen to examine any witness or mark any document on their side. 6. Mr.K.S.Rajagopalan, learned counsel appearing for the appellants contended that the prosecution has miserably failed to prove its case by adducing clear and cogent evidence and made the following submissions : (1)The eye-witnesses, P.Ws.1 to 3, are closely related to the deceased and the prosecution has not examined any independent witness ; (2)P.W.1 stated that P.Ws.2 and 3 came to the scene only after the deceased fell down and as such P.Ws.2 and 3 could not have witnessed the actual occurrence ; (3)P.W.1 admitted in her cross-examination that except A-1, A-3 and A-4, she has not seen the other accused at the time of occurrence at the scene and as such the other accused, namely, A-2 and A-5 to A-9 are entitled for acquittal ; https://hcservices.ecourts.gov.in/hcservices/ (4)P.W.1 stated in her cross-examination that 20 persons attacked the deceased and as such the other persons might have caused the fatal injuries to the deceased ; (5)P.W.1 admitted in her cross-examination that she has mentioned only the names of A-1, A-3 and A-4 in the report Ex.P.1 but the names of all the accused were mentioned in Ex.P.1 and as such Ex.P.1 could not have been given by P.W.1 ; (6)P.W.2 admitted in his cross-examination that police came to the hospital and examined only P.W.3 and P.W.3 gave the names of nine accused and such report was suppressed by the prosecution ; (7)The Doctor, P.W.4, has stated that the deceased could not have sustained injury Nos.1 to 7 by M.Os.1 to 4 and as such the prosecution version is not supported by the medical evidence ; (8)A-4 said to have cut the deceased on his right thigh. But there is no corresponding injury found either by the Doctor, P.W.4, who has first seen the deceased or the Doctor, P.W.8, who has conducted post-mortem and as such A-4 is entitled to the benefit of doubt. 7. Heard Mr.N.R.Elango, learned Additional Public Prosecutor, on the submissions made by the learned counsel for the appellants. 8. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire materials available on record and perused the impugned judgment of conviction. 9. The prosecution heavily placed reliance on the evidence of the eye-witnesses, P.Ws.1 to 3. As pointed out by the learned counsel for the appellants, P.Ws.1 to 3 are closely related to the deceased as mother-in-law, uncle and father of the deceased. Therefore, they are the interested witnesses. But on that score itself, we cannot reject their evidence and the only requirement is to scrutinize their evidence with great care and caution. 10. It is seen that P.W.1 has categorically stated in her cross- examination that P.Ws.2 and 3 came to the scene only after the deceased swooned and fell down. It is further stated by P.W.1 in her cross-examination that she only informed P.Ws.2 and 3 about the occurrence. Therefore, it is crystal clear that P.Ws.2 and 3 could not have been present at the time of occurrence at the scene. Excluding the evidence of the eye-witnesses, P.Ws.2 and 3, we are left with the sole and solitary testimony of P.W.1. As far as the sole and solitary testimony of P.W.1 is concerned, it is pertinent to be noted that she has categorically stated in her cross-examination that except A-1, A-3 and A-4, she has not seen any other accused at the time of occurrence at the scene. It is further admitted by her that there was a quarrel between A-1, A-3, A-4 and one Narayanasamy, https://hcservices.ecourts.gov.in/hcservices/ father-in-law of A-1 and the deceased. It is also admitted by P.W.1 that there was no enmity between her family and the other accused. Therefore, P.W.1 has not implicated A-2 and A-5 to A-9 for attacking the deceased. In view of the above said categorical admission of P.W.1, we are of the considered view that A-2 and A-5 to A-9 cannot be fastened with the liability of causing the death of the deceased. 11. Let us now consider the case against the remaining accused, namely, A-1, A-3 and A-4. A-3 died even prior to the trial and as such charges in respect of A-3 already abated. Now we have to scrutinize the materials available on record only in respect of A-1 and A-4. 12. Before proceeding to consider the implication of A-1 and A- 4, let us now consider the contentions put forward by the learned counsel for the appellants in respect of P.W.1. It is contended by the learned counsel that P.W.1 has stated in her cross-examination that she has mentioned the names of A-1, A-3 and A-4 alone in the report, Ex.P.1. But in Ex.P.1, names of all the nine accused have been mentioned. It is also pointed out by the learned counsel for the appellants that P.W.2 has stated that only P.W.3 has given the report to the police by mentioning the names of all the accused, A-1 to A-9, and as such the report Ex.P.1 could not have been given by P.W.1. We are unable to accept the contention of the learned counsel. It is pertinent to be noted that the defence has not put any suggestion to P.W.9, Investigating Officer, who has recorded Ex.P.1 from P.W.1 to the effect that P.W.1 has not mentioned the names of other accused except A-1, A-3 and A-4. On the other hand, it is elicited from P.W.9 by the defence in the cross-examination that P.W.3 has not mentioned the names of all the accused during the course of his examination. P.W.9 has also emphatically denied the suggestion to the effect that only the report was given by P.W.3. It is also relevant to note that the defence also has not put any suggestion to the effect that Ex.P.1 was not recorded as per the statement of P.W.1. 13. Yet another contention of the learned counsel to the effect that in view of the admission of the Doctor, P.W.4, in his cross- examination that the injuries 1 to 7 could not have been caused by M.O.1 said to have been used by A-1, the case of the prosecution even in respect of A-1 has to be rejected. We are unable to accept this contention also. It is pertinent to be noted that the injury No.1, as per the accident register, Ex.P.2 is a lacerated injury about 4 cm X 2 cm over the top of the skull with fresh bleeding exposing the brain matter. Injuries 2 to 4 are also found on the head of the deceased and those injuries have been described as depressed wounds and diffused contusion. Injury No.7 is a lacerated injury found on the right foot and that injury cannot be attributed to the https://hcservices.ecourts.gov.in/hcservices/ overt act alleged against A-1. The fact remains that the specific and categoric version of P.W.1 is to the effect that A-1 said to have cut the deceased on his head with knife. It is seen from the perusal of Ex.P.1 that it is mentioned by P.W.1 that A-1 cut the deceased on his head with a knife. As far as the overt act alleged against A-1 is concerned, the evidence of P.W.1 is in consistent with her earlier report, Ex.P.1. Though in Ex.P.1, it is not specifically mentioned as kora knife and it is only mentioned as A-1 used knife, there is no much difference between kora knife and knife. Therefore, it is crystal clear that M.O.1 could have very well caused the injury No.1 on the head of the deceased. It is relevant to refer a decision of the Hon'ble Apex Court as the Hon'ble Apex Court in Main Pal V. State of Haryana reported in AIR 2004 SC 2158 that, "The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested". In view of the above said decision of the Hon'ble Apex Court, we are entitled to scrutinize the evidence of the Doctor, P.W.4 and also entitled to test the version of the Doctor, P.W.4 along with other materials, namely, overt acts coupled with injuries found as per the accident register, Ex.P.2 and the post-mortem certificate, Ex.P.11. For the aforesaid reasons, we are constrained to come to the conclusion that P.W.1 has clearly implicated A-1 and the evidence of P.W.1 is also corroborated by the medical evidence as we have found corresponding injury in the accident register, Ex.P.2 as well as in the post-mortem certificate, Ex.P.11. 14. As far as A-4 is concerned, it is pertinent to be noted that P.W.1 has stated in her chief examination that A-4 said to have cut the deceased on his right thigh with a knife. But in Ex.P.1, it is mentioned that A-4 cut the deceased on his right leg. Therefore, the evidence of P.W.1 is contrary to her earlier version in Ex.P.1. Apart from that, there is no corresponding injury found on the right thigh as per the accident register, Ex.P.2 and the Post-mortem certificate, Ex.P.11. Therefore, we are constrained to come to the inevitable conclusion that A-4 is entitled to the benefit of doubt. 15. For the aforesaid reasons, this appeal in respect of A-2 and A-4 to A-9 is allowed and the conviction and sentence imposed on A-2 and A-4 to A-9 by the learned Sessions Judge, Thivannamalai, by the judgment dated 30.03.2007 made in S.C.No.143 of 2002 are hereby set aside. Bail bonds executed, if any, shall stand cancelled. Fine amount paid, if any, is directed to be refunded to the appellants. https://hcservices.ecourts.gov.in/hcservices/ As far as the first appellant, A-1, is concerned, the appeal is dismissed and the conviction and sentence imposed on A-1 by the learned Sessions Judge, Thiruvannamalai, by the judgment dated 30.03.2007 made in S.C.No.143 of 2002 are hereby confirmed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar gg To 1. The District and Sessions Judge, Thiruvannamalai. 2. -do- Thro' The Principal Sessions Judge, Thiruvannamalai. 3. The Judicial Magistrate, Vandavasi. 4. The Chief Judicial Magistrate, Thiruvannamalai. 5. The Superintendent, Central Prison, Vellore. 6. The Inspector of Police, Vandavasi North Police Station, Vandavasi. 7. The Public Prosecutor, High Court, Madras. Judgment in Crl.A.No.484 of 2007 KSK (CO) SMK/13.8.08 https://hcservices.ecourts.gov.in/hcservices/