BAIL SLIP The Appellants/Accused 2 and 3, namely,1.Selvam and 2) Jayapaul were directed to be released on bail as per the order of this Court dated 20.3.2007 and made in Crl.M.P.No.101 of 2007 in Crl.Appeal No.101 of 2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.07.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.101 of 2006 1. Karuppasamy 2. Selvam 3. Jayapaul .. Appellants/Accused Vs. State,rep. by Inspector of Police Keelapalur Police Station Ariyalur Taluk, Perambalur District. (Crime No.87/1999) .. Respondent/Complainant Appeal filed under Section 374 (2) Cr.P.C.against the judgment dated 7.12.2005 made in S.C.No.90 of 2004 on the file of learned Sessions Judge, Perambalur. For Appellants : Mr.AR.L.Sundaresan, S.C. For Mr.K.Kannan for A-1 : Ms.P.Buvaneswari for A-2 and A-3 For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Delivered by P.D.DINAKARAN.J.,) The appellants, three in number, have preferred this appeal challenging their conviction and sentence imposed by the learned Sessions Judge, Perambalur, by judgment dated 7.12.2005 in S.C.No.90 of 2004. 2. By the impugned judgment, the learned Sessions Judge, on finding guilty of offences under Sections 448, 506(ii), 302 and 324 I.P.C., convicted the appellants and sentenced each one of them to six months rigorous imprisonment and also directed to pay a fine of Rs.500/- each, in default to undergo one month rigorous imprisonment for the offence under Section 448 I.P.C.; three years imprisonment and to pay a fine of Rs.1,000/-, in default to suffer two months rigorous imprisonment for the offence under Section 506(ii); imprisonment for life with a fine of Rs.2,000/-, in default, to undergo three months rigorous imprisonment for the offence under Section 302 I.P.C.; and one year rigorous imprisonment and a fine of Rs.1,000/-, in default to suffer two months rigorous imprisonment for the offence under Section 324 I.P.C. 3. For the sake of convenience, the appellants will be referred as A-1 to A-3, as per their rank in the sessions case before the trial Court. 4. The prosecution filed the final report against the appellants before the Court on the allegation that on 16.4.99 at about 10.30 a.m., at Andipattakadu village situated within the jurisdiction limits of the respondent police, A-1 to A-3 trespassed into the house of the deceased Ariyamuthu, and threatened the witnesses with dire consequences and also assaulted the deceased with deadly weapons and caused his death and also assaulted P.W.1, who suffered grievous injuries. 5. The case was committed to Court of Sessions and four charges were framed against the appellants for offences under Sections 448, 506(ii), 302 and 326 I.P.C. and as the appellants/accused denied their complicity in the crime, they were put up for trial. To substantiate the charges, the prosecution examined P.Ws.1 to 12, marked Exs.P.1 to P.14 and produced M.Os.1 to 4. https://hcservices.ecourts.gov.in/hcservices/ 6. The case of the prosecution, as unfolded by the prosecution witnesses is thus: (a) P.W.1 is the fourth wife of the deceased. P.W.2 is the daughter of the deceased born through P.W.1 and P.W.3 is the third wife of the deceased. A-1 is the son of the deceased born through P.W.3. A-2 and A-3 are the sister's sons of the deceased. The witnesses and the appellants belong to Aandippattakkadu village. (b) According to P.W.1, she married the deceased about ten years ago and P.W.2, Mangaiyarkarasi, is their daughter. They were residing at Periyapalayathu Arani at the relevant point of time and the deceased was a coolie by profession. It is the evidence of P.W.1 that there existed a quarrel between the mother of A-3 and the deceased and that she lodged a complaint at Arni police station alleging that the accused attacked the deceased and the police authorities, after summoning the accused and witnesses, compromised the matter and pacified P.W.1. (c) At the time of occurrence, all of them including the accused gathered at Andipattakkadu village for celebrating a festival and on the fateful day, i.e. on 16.4.1999 at about 10.00 a.m., all the three accused, armed with aruval and knife, trespassed into the house of P.W.1 and uttering that because the deceased gave a complaint against them, he must be finished off, A-1 inflicted two cut injuries on the neck of the deceased and on receiving the injuries, when the deceased attempted to run away from the place, all the three accused chased the deceased. The further evidence is that she was also attacked in the house by A- 1 and A-2 with aruval and A-3 with knife on her left shoulder and ribs. They were also alleged to have uttered to remove her thali chain stating that it would be useful for their expenses. The deceased was seen lying dead with cut injuries near the tea shop of Kaliyaperumal and P.W.1 fainted. Her statement was recorded by the police at Thanjavur Government Hospital and the same is marked as Ex.P.1. (d) P.W.2 is also said to be an eye witness to the occurrence and she speaks about the occurrence on the same lines as spoken to by P.W.1. P.W.3 is the third wife of the deceased and she speaks about the motive to the effect that there existed a quarrel between the deceased and his sons and it was compromised by Arani police. P.W.4 is a witness who speaks to the effect that he saw the dead body of the deceased with cut injuries in front of the tea shop of Kaliyaperumal and that he also saw P.W.1 with cut injuries in her house. (e) P.W.5 is the doctor, who conducted post-mortem on the https://hcservices.ecourts.gov.in/hcservices/ dead body of the deceased on receipt of the requisition from the investigating officer. The doctor found as many as fourteen external injuries and issued Ex.P.3, post-mortem certificate, opining that the deceased would appear to have died of shock and haemorrhage due to injury to vital organs about 26 to 28 hours prior to autopsy. (f) P.W.6 is the radiologist who took X-Rays for P.W.1 and who found a fracture on the right ulna bone. He issued Ex.P.4, report to that effect. P.W.7 is the Village Administrative Officer who attested the observation mahazar, Ex.P.5 and the mahazar prepared for seizure of M.Os.1 to 4 under Ex.P.6. P.W.8 is the head constable who despatched the F.I.R. registered in Crime No.87 of 1999 to the Magistrate Court at Ariyalur at about 8.00 p.m. on 16.4.99. P.W.9 is the Grade-I constable who handed over the requisition and the dead body of the deceased at the hospital for post-mortem and after the post-mortem is over, he handed over the body to the relatives. (g) P.W.10 is the Sub-Inspector of Police, Keelapalur police station and according to him, on receipt of information at about 3.00 p.m. on 16.4.99, he went to Andipattakadu village and found the dead body of the deceased. On finding P.W.1 with injuries, he sent her to the hospital with a memo and at about 5.00 p.m., he recorded the statement of P.W.1, Ex.P.1, at the hospital, based on which, he registered a case in Crime No.87 of 1999 for offences under Sections 302, 324, 307 I.P.C. He prepared printed F.I.R., Ex.P.7 and sent the same to Court and to higher officials. (h) P.W.11 is the Inspector of Police, who took up further investigation in the case on the instructions of Deputy Superintendent of Police, Ariyalur, since the Inspector of Police, who first took up the investigation in the case, died before trial. The investigation conducted by the said Inspector of Police, since dead, has been spoken to by P.W.11. The Inspector of Police, since dead, on taking up investigation, proceeded to the spot, prepared observation mahazar, Ex.P.5 and rough sketch, Ex.P.8. He conducted inquest and prepared the inquest report, Ex.P.9 and thereafter he sent the body for post- mortem with a requisition Ex.P.2. P.W.11, after taking up further investigation, examined witnesses including P.W.6, P.W.10 and one Dr.Afsar and recorded their statements. Ex.P.10, wound certificate in respect of treatment given to P.W.1, is marked through P.W.11. (i) P.W.12 is the successor of P.W.11 and he sent the material objects to Court with a request to forward the same for chemical examination and later, obtained Ex.P.13, chemical https://hcservices.ecourts.gov.in/hcservices/ analysis report and Ex.P.14, serology report. On completion of investigation, he laid the charge sheet against the accused on 29.6.2001 for offences under Sections 448, 302, 326, 307 and 506 (2) I.P.C. (j) When questioned under Section 313 Cr.P.C. as to the incriminating materials put against the accused, they denied them as false and contrary to facts and A-1 has filed a written statement stating that P.W.2 could not be an eye witness as she heard about the occurrence from P.W.1 as elicited in her cross and that the evidence of P.W.1 that three persons assaulted them is unbelievable in view of the statement made in the wound certificate to the effect that the assault was made by one known person and there is also delay in registering the F.I.R. and that except the evidence of P.W.1 about the presence of the accused in the village, no other independent evidence is available. In short, it is their case that P.W.2 is not an eye witness and the evidence of P.W.1 cannot be accepted in view of certain infirmities and improbabilities. However, in support of their case, they have not examined any witness on their side nor marked any document. (k) The trial Court, on appreciation of evidence, both oral and documentary, and upon hearing the arguments advanced on either side, found the appellants guilty of the charges and accordingly, convicted and sentenced them as referred to above. 7. Mr.AR.L.Sundaresan, the senior learned counsel appearing for the appellants/accused, reiterated the defence taken before the trial Court and contended that in view of the infirmities and frailties in the evidence of P.W.1, it is unsafe to base the conviction of the appellants and therefore, the appellants are entitled for an acquittal. 8. Per contra, the learned Additional Public Prosecutor submits that the evidence of P.W.1 is cogent and reliable, since she being the wife of the deceased, her presence in the house cannot be doubted and during the course of occurrence, she was also attacked by the accused and she sustained injuries and hence, even if we eschew the evidence of P.W.2 from the point of consideration, the evidence of P.W.1 can be safely relied upon to bring home the offence committed by the appellants, as the same stands corroborated by the medical evidence and hence, no interference in the judgment of the trial Court is warranted. 9. We heard and given our anxious consideration to the rival contentions of both sides and also perused the entire materials placed on record. https://hcservices.ecourts.gov.in/hcservices/ 10. The points for consideration are whether the prosecution has proved the case against the accused beyond reasonable doubt and whether the learned trial Judge was justified in convicting and sentencing the appellants/accused in respect of the charges levelled against them. 11. It is not in dispute that the deceased Ariyamuthu died out of homicidal violence. The injuries as found by the doctor, P.W.5 and the opinion noted by the doctor in Ex.P.3, post-mortem certificate, undoubtedly probabilise the fact that the deceased died due to shock and haemorrhage on account of injury to vital organs. Therefore, unhesitatingly we hold that the deceased died due to homicidal violence. 12. It is the case of the prosecution that there was a previous dispute between the deceased on the one side and his sisters and their sons on the other and some time prior to the occurrence, a quarrel ensued between them and in the said quarrel, the deceased was alleged to have been attacked, resulting in a complaint lodged against the accused. The police authorities of Arani police Station compromised the dispute. However, due to the said fact, the accused had developed a grudge against the deceased and P.W.1. The above said motive part of the occurrence has not been disputed by the defence at any point of time and hence, we accept the evidence with regard to the motive. 13. As regards the occurrence proper, the prosecution examined P.Ws.1 and 2 as eye witnesses, of whom, P.W.1 is an injured eye witness. According to P.W.1, while the prosecution witnesses have gathered at Andipattakkadu village for celebrating a festival, the accused party also had come over there and loaded with the thoughts of the previous incident, the accused trespassed into the house of P.W.1 and the deceased armed with deadly weapons and uttering that because they gave a complaint against them, they must be killed, all the three accused attacked the deceased with deadly weapons and when P.W.1 intervened, she was also attacked. On receiving the gruesome attack, the deceased tried to fled from the scene, however, he was chased by the accused and attacked. It is the evidence of P.W.1 that the deceased was found lying dead in front of the tea shop of Kaliyaperumal and that on receiving information, police came to the spot and on noticing bleeding injuries on her person, sent her to the hospital, where her statement was recorded, which paved the way for the law to set in motion. 14. Of course, it is true that P.W.2 has also stated about the occurrence on similar lines as that of P.W.1. However, in the cross-examination of P.W.2, she has admitted that she heard https://hcservices.ecourts.gov.in/hcservices/ about the occurrence from P.W.1 at about 11.00 a.m. and that P.W.1 disclosed to her that it was the accused who inflicted cut injuries on the deceased. This statement of P.W.2 in cross is also fortified by the statement of P.W.1 in her cross-examination that her daughter, P.W.2 asked her about the occurrence and she unfolded the same to her. From the above, without an iota of doubt, it could be said that P.W.2 could not have witnessed the occurrence and she heard the same from her mother, P.W.1. 15. But, however, even if we ignore the evidence of P.W.2 from the point of consideration, we have the evidence of P.W.1 who is nonetheless the wife of the deceased and who has also suffered injuries during the course of same transaction. In fact, the accused are also related to the deceased and it is an undisputed fact they were nurturing a grievance against the deceased and P.W.1 for lodging a complaint to the police against them. 16. It is contended that since the deceased was chased and cut, so many eyes must have seen the occurrence, which is also the evidence of P.W.1 that around 50 persons were seeing the occurrence and no one was examined by the prosecution including Kaliyaperumal, in front of whose tea shop the deceased was lying dead. It is to be noted here that the incident had taken place in a rustic village and the people living there would have been afraid of on seeing the awful murder being committed by the accused in their presence and it is plausible, out of fear of their lives, they would not have come forward to unveil the occurrence either to the police or before the Court. Merely because P.W.1 happened to be the wife of the deceased, her evidence cannot be discarded wholly since she being an injured eye witness, would only be interested in bringing the real culprit to book and would not implicate an innocent person who has nothing to do in connection with the occurrence. On going through the evidence of P.W.1, we find no infirmity or improbability to discredit the same and we accept her evidence and hold that the prosecution has proved the case beyond reasonable doubt that it was the appellants/accused who inflicted injuries on the deceased as well as on P.W.1, which resulted in the death of the deceased. 17. The question that is left to be decided by us is the nature of offence committed by the accused. Once we accept the evidence of P.W.1, the appellants/accused are liable to be convicted for the offence of murder. It is seen that all the three accused have actively involved in attacking the deceased and P.W.1. However, it is the specific evidence that it was the first accused who first mounted the attack on the deceased and that he attacked the deceased on the neck. The medical evidence https://hcservices.ecourts.gov.in/hcservices/ through the post-mortem doctor, P.W.5 and Ex.P.3, the post-mortem certificate, shows that there were incised wounds over the frontal, parietal and occipital region of the deceased and that the first injury is grievous in nature and that the cumulative effect of the injuries on the head caused the death of the deceased. Though A-2 and A-3 were also alleged to have attacked the deceased, there is no specific overt act attributed to them; but as far as A-1 is concerned, he was alleged to have attacked on the neck of the deceased. In fact, in Ex.P.10, the wound certificate issued in respect of injuries found on P.W.1, which was marked through P.W.11, it is stated that the assault was made by a known person. Therefore, we are of the view that the injuries caused by the first accused would have resulted in the death of the deceased and hence, only the first accused is liable to be convicted for the offence of murder and A-2 and A-3 are liable to be convicted only for the offence under Section 324 I.P.C. 18. Accordingly, the conviction and sentence imposed on A-1 for the offence under Section 302 I.P.C. are confirmed and the conviction and sentence imposed on A-2 and A-3 under Section 302 I.P.C. are set aside and instead, they are convicted under Section 324 I.P.C. and with regard to the sentence, it is reported that A-2 and A-3 were suffering incarceration for more than a year and as such, we are inclined to impose a sentence of imprisonment to the period already undergone. 19. As far as the conviction and sentence imposed by the learned Sessions Judge for offences under Sections 448 and 506 (ii), we find that the learned trial Judge has rightly found the appellants/accused guilty of the offences. But, as far as the conviction under Section 324 I.P.C. for causing injuries to P.W.1 is concerned, though Ex.P.10, wound certificate shows that P.W.1 suffered a fracture on the right ulna bone, which is grievous in nature and as such, the learned trial Judge ought to have convicted under Section 326 I.P.C., the State has not chosen to prefer any appeal against the said conviction under Section 324 I.P.C. Therefore, we are left with no option except to confirm the conviction of the appellants/accused under Section 324 I.P.C. However, to meet the ends of justice, we reduce the sentence of imprisonment to the period already undergone. In result, (i) the conviction and sentence imposed on the first appellant/A-1 under Section 302 I.P.C. are confirmed; the conviction and sentence imposed under Section 324 I.P.C.for causing injuries to P.W.1 as well as under Sections 448 and 506(ii) are confirmed; the https://hcservices.ecourts.gov.in/hcservices/ sentences imposed on A-1 shall run concurrently; as A-1 is on bail, the learned trial judge shall take steps to commit him to jail in order to undergo the remaining period of sentence; (ii) the conviction of appellants/A-2 and A-3 under Section 302 I.P.C. is set aside and instead, they stand convicted under Section 324 I.P.C., for which they are sentenced to the period already undergone; (iii)the conviction of the appellants/A-2 and A-3 under Sections 448, 506(ii) and under Section 324 I.P.C. for causing injuries to P.W.1 is confirmed; but, the sentence is reduced to the period already undergone; (iv) the sentence of fine amount imposed on the appellants is confirmed; (v) with the above modification, the appeal is partly allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sra To 1.The Judicial Magistrate,Ariyalur. 2.-do- thro' The Chief Judicial Magistrate, Perambalur. 3. The Sessions Judge, Perambalur. 4. The Director General of Police, Chennai. 5. The District Collector, Perambalur District. https://hcservices.ecourts.gov.in/hcservices/ 6. The Superintendent, Central Prison, Trichy. 7. The Inspector of Police, Keelapalur Police Station, Perambalur District. 8. The Public Prosecutor, High Court, Madras. +1cc to Ms. P.Buvaneswari, Advocate Sr 40472 +1cc to Mr.K.Kannan, Advocate Sr 39744 VM(CO) km/19.8. Crl.A.No.101 of 2006 https://hcservices.ecourts.gov.in/hcservices/