B A I L S L I P The Appellants 1, 4, 6 to 9/Accused Nos.A1, A4, A6 to A9 namely A1- Madhivanan, A4- Selvaraj, A6- Nagalingam, A7- Mahendra Prasad, A8- Raji, A9- Kumar was directed to release on bail as per order of this Court dated 8.12.1999 and made in Crl.M.P.No.9459 of 1999 in Crl.A.No.499 of 1999, on the bail of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2008 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN Criminal Appeal No.499 of 1999 1. Madhivanan 2. Bharathi (Dead) 3. Kasinathan (Dead) 4. Selvaraj 5. Subramani (Dead) 6. Nagalingam 7. Mahendra Prasad 8. Raji 9. Kumar ..Appellants 1 to 9/Accused [Appellants 2, 3 and 5 reported dead 1, 3 to 7 and 9 to 11 vide Memo dated 5.11.2008] Vs. State Rep by Inspector of Police, F-4, Thousand Lights Police Station, Chennai. .. Respondent/Complainant Prayer : Appeal filed under Section 374 of Cr.P.C. against the Order dated 7.6.1999 passed in S.C.No.414 of 1996 on the file of IV Additional Sessions Judge, Chennai. For Appellants : Mr. R.Srinivas For Respondent : Mr. I. Paul Nobel Devakumar Govt. Advocate (Crl.Side) J U D G M E N T Accused Nos.1, 3 to 7 and 9 to 11 in Sessions Case No.414 of 1996 on the file of IV Additional Sessions Judge, Chennai, are https://hcservices.ecourts.gov.in/hcservices/ the appellants herein. The learned counsel for the appellants as well as the learned Government Advocate (Criminal side) filed independent Memos stating that the second Appellant K.Bharathi, the third Appellant M.K.Kasinathan and the fifth Appellant Subramani are dead; they also enclosed the Death Certificates of the above appellants. The Memos are recorded. The appeal abates in so far as they are concerned. The appellants will be referred to as per their rankings before the trial Court, in this judgment for the sake of convenience. 2. The prosecution alleged that the accused persons in the case conspired and indulged in rioting, armed with deadly weapons and caused the murder of Executive Director of Food Corporation of India Neelagandan by throwing petrol bombs on him during the occurrence on 16.1.1995 and the learned Sessions Judge framed the following charges against them: Sl.No. Charge Accused 1 2 3 4 5 6 7 Under Section 120-B I.P.C. Under Section 148 I.P.C. Under Sections 341 & 302 I.P.C. Under Section 435 I.P.C. Under Section 302 and 435 r/w. S.149 I.P.C. Under Sections 302, 435 r/w. S.120-B Under Section 9-B Sub.Sec.(b) of the Explosives Act. A.1, 3 to 14. A.1 to A.11 and A15 A.1 to A.3 A.2 and A.3 A.1, A.4 to A.11 & A.15 A.12 to A14 A.1 to A.11 & A15 3. The learned Additional Sessions Judge held that the charges framed against the accused are not proved except the charge under Section 148 I.P.C. and acquitted them of the same and he found Accused Nos.1, 3 to 7 and 9 to 11 guilty of the charge under Section 148 I.P.C. and convicted and sentenced each of them to undergo Rigorous Imprisonment for a period of two years. 4. To prove its case, the prosecution has examined P.Ws.1 to 46 and marked Exs.P1 to P76; Ex.C1; and M.Os.1 to 48. 5. The case of the prosecution is briefly stated as follows: The labourers belonging to the Union of Food Corporation of India were on Fast and Dharna demanding regularisation of their https://hcservices.ecourts.gov.in/hcservices/ services in front of F.C.I. Building in Haddows Road, Chennai, on 16.1.1995 and the accused were among them. P.W.4 Head Constable Subramaniam and P.W.36 Constable Arumugham were posted there on Bandobust duty on that day and they saw Accused Nos.1, 3 to 7, 10 to 12 and 15 talking to each other. At about 2.30 p.m., the Executive Director Neelagandan came out of the Office and boarded the car and when the car came out, petrol bombs were hurled on it and the driver P.W.2 Muthiah jumped out and car caught fire. Neelagandan engulfing with fire came out of the car and ran inside the F.C.I. Building. On hearing the noise, P.W.4 Subramaniam and P.W.36 Arumugham went near the burning car and some of the accused persons ran away and the mob chased them and caught hold of A.3 Bharathi. P.W.2 Muthiah gave Ex.P2 Complaint and produced A.3 Bharathi in Thousand Lights Police Station and P.W.46 Inspector Manickam registered a case in Crime No.36/1995 under Sections 341, 285, 427 and 307 I.P.C. and prepared Ex.P.57 First Information Report and despatched the same and he arrested A.3 Bharathi at 4.00 p.m. and went to the occurrence place and prepared Ex.P49 Observation mahazar in the presence of witnesses and Ex.P58 Rough sketch and seized M.Os.19 to 22 and 48 under Ex.P50 Mahazar and at 6.00 p.m. seized the other Material Objects from the occurrence place under Ex.P51 Mahazar and he examined the witnesses. At 6.30 p.m. he recorded the statement of injured Neelagandan in Apollo Hospital and gave requisition to Metropolitan Magistrate to record the statement of the said witness. P.W.27 Metropolitan Magistrate V.C.Suresh recorded Ex.P19 Statement of injured Neelagandan in the Hospital. P.W.46 Inspector Manickam arrested some of the accused and recorded their confession statements in the presence of witnesses and recovered the Material Objects on the information provided by them. Accused No.1 Mathivanan surrendered in the Judicial Magistrate Court, Thiruvallur, and he was taken to police custody and P.W.46 Inspector Manickam recorded his confession statement and recovered the Material Objects on his information and he received the death intimation of Neelagandan at 3.30 p.m. on 30.1.1995 and he altered the offence to one under Section 302 I.P.C. and despatched Ex.P67 Express Report. He conducted inquest on the dead body and prepared Ex.P68 Inquest Report. He sent body for post-mortem. P.W.21 Dr. Santhakumar conducted post-mortem on the body on 31.1.1995 and issued Ex.P18 Post-mortem Certificate in which he has opined that the death occurred due to burn injuries. P.W.46 Inspector Manickam examined some more witnesses and gave requisition for conducting Identification Parade for some of the witnesses. P.W.31 Metropolitan Magistrate Srinivasan and P.W.33 Metropolitan Magistrate Raghavan conducted Identification Parades. Exs.P.23 and P.43 are the proceedings respectively conducted by them. P.W.33 Metropolitan Magistrate Raghavan also recorded Ex.P44 judicial confession given by Accused Velu @ Velmurugan under Section 164 CrPC on 23.3.1995. P.W.34 Metropolitan Magistrate Chinnapandi, on the basis of the confession of Velu @ Velmurugan, gave Pardon to him under Section 306 CrPC and Ex.P47 is the said https://hcservices.ecourts.gov.in/hcservices/ Order. P.W.46 Inspector Manickam examined some more witnesses and recorded their statements and on completion of investigation, filed the final Report against the accused persons. 6. The accused persons were questioned under Section 313 CrPC and they denied complicity. 7. The learned Sessions Judge acquitted the accused persons of the charges except the charge under Section 148 I.P.C. and convicted Accused Nos.1, 3 to 7 and 9 to 11 and sentenced them as stated earlier. Challenging the said conviction and sentence under Section 148 I.P.C., Accused Nos.1, 3 to 7 and 9 to 11 have preferred the present appeal. 8. The learned counsel for the appellants submits that the trial Court erred in convicting the appellants relying on the evidence of P.W.4 Head Constable Subramaniam and P.W.36 Constable Arumugham, who are interested witnesses and even their presence at the time of the alleged occurrence is not established by the prosecution and both the witnesses have stated that they came to know the names of the accused persons after the occurrence and in any event, the trial Court has not rendered a finding that the appellants/accused were members of an unlawful assembly and they have been acquitted of the murder charge and the charge under the Explosives Act and having disbelieved the substratum of the prosecution case, the trial Court erred in convicting the appellants for the offence under Section 148 I.P.C. and the conviction and sentence cannot be sustained in law. In support of his submission, the learned counsel relies on the decision of the Supreme Court in ARJUNAN v.. STATE [(2006) 2 SCC (Cri) 261]. 9. Per contra, the learned Government Advocate (Criminal side) appearing for the respondent submits that P.W.4 Head Constable Subramaniam and P.W.36 Constable Arumugham were posted on 'Bandobust' duty in the place of occurrence on the occurrence day and they have testified about the presence of the accused persons in the mob and the trial Court has rightly relied on their testimonies and rendered the finding of conviction. 10. The prosecution case is that the accused persons conspired and indulged in rioting, armed with deadly weapons and caused the murder of Executive Director Neelagandan by hurling petrol bombs on him during the occurrence. P.W.1 Velmurugan is the Approver and P.W.2 Muthiah and P.W.3 Baskaran were examined for having witnessed the occurrence, but, they did not state so and hence, they were treated as hostile by the prosecution. In fact, P.Ws.11 to 18 were also treated as hostile by the prosecution. The trial Court acquitted all the accused for the charges of criminal conspiracy and murder and the charge under the Explosives Act and at the same time, it convicted A1, A3 to A7 and A9 to A11, the appellants herein, for the charge under Section 148 I.P.C. and sentenced each of them to undergo Rigorous Imprisonment for a period of two years. The above conviction has been made relying on https://hcservices.ecourts.gov.in/hcservices/ the testimonies of P.W.4 Head Constable Subramaniam and P.W.36 Constable Armugham alone. Both the above witnesses have testified that they were present at the occurrence place on the occurrence day on Bandobust duty and they maintained their pocket diaries which contain the notes about the occurrence. P.W.46 Inspector Manickam has stated that he seized both the pocket diaries of these witnesses during investigation and admitted that he had not produced them in the case. According to P.W.36 Constable Arumugham, he gave a written Report about the occurrence to the Investigation Officer when he reached the occurrence place. That Report is not produced in the case. In short, the prosecution has not established the presence of P.Ws.4 and 36 on duty at the place of occurrence by production of record. 11. Dharna of the workers was happening every day in the occurrence place for a month prior to the occurrence and even according to P.W.4 Subramaniam and P.W.36 Arumugham, minimum of hundred workers used to assemble in those days and they could not point out the names of those persons and they came to know about the names of the accused persons only after the occurrence. P.W.46 Inspector Manickam has also stated that both P.Ws.4 and 36 in his examination have stated that they came to know the names of the accused persons only after the occurrence. It is also relevant to note that no identification parade was conducted for these two witnesses. In such circumstances, the contention of the learned counsel for the appellants that it is not possible for both the above witnesses to point out the names of the accused persons, cannot be easily brushed aside. No other prosecution witness has spoken about the presence of the appellants/accused at the time of occurrence. Moreover, the trial Court has disbelieved the prosecution case with regard to the main charge of murder and has only convicted the appellants under Section 148 I.P.C.. In order to convict the accused persons for the offence under Section 148 I.P.C. the trial Court must record a finding that the appellants/accused were members of an unlawful assembly and no such finding was recorded by it. There was no material on record on the basis of which the appellants could have been convicted of the offence under Section 148 I.P.C. In similar circumstances, Their Lordships of the Apex Court in ARJUNAN's case, referred to supra, have laid down that it was necessary for the Court to first record a finding that the accused were members of an unlawful assembly for convicting them for the offence under Section 148 I.P.C. For better appreciation, the relevant portion is extracted below: " 5. The question arises as to whether the conviction of these appellants under Section 148 IPC is justified. We notice that the charge against them, inter alia, was of forming an unlawful assembly which had as its common object the commission of an offence under Section 307 IPC. All the appellants before us were acquitted of the charges under Sections 307, 364, 302 and/or 302/109 https://hcservices.ecourts.gov.in/hcservices/ and 307/149 IPC. Surprisingly, they have been found guilty of the offence punishable under Section 148 IPC and sentenced to undergo imprisonment for a term of one-and-a- half years and a fine of Rs.1000 and, in default, to undergo simple imprisonment for six months. In order to convict the appellants of the offence under Section 148 IPC, it was necessary for the High Court to first record a finding that they were members of an unlawful assembly. The High Court has not recorded a finding that they were members of an unlawful assembly. In fact, A-5 to A-7 have been acquitted of the charge under Sections 307/149 IPC. Accused 3 and 4 were not even charged of the offence under Sections 307/149 IPC. We are, therefore, satisfied, in the facts and circumstances of the case, that there was neither any finding nor any material on record on the basis of which the appellants could have been convicted of the offence punishable under Section 148 IPC. Their conviction and sentence under Section 148 IPC is therefore set aside and they are acquitted of the charge." The above decision applies in all fours to the facts of this case. The trial Court without rendering a finding that the appellants/accused were members of unlawful assembly, has convicted them for the offence under Section 148 I.P.C. and hence, the conviction and sentence cannot be sustained in law and liable to be set aside. 12. In the result - (i) The appeal abates in so far as Appellants 2, 3 and 5 are concerned. (ii) The appeal is allowed and conviction and sentence imposed on Appellants 1, 4, 6 to 9 under Section 148 I.P.C. are set aside and they are acquitted of the said charge. Their Bail Bonds shall stand cancelled. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar pb To 1. IV Addl. Sessions Judge, City Civil Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. - Do - Through the Principal Sessions Judge, City Civil Court, Chennai. 3. The Inspector of Police, F-4, Thousand Lights Police Station, Chennai. 4. The Superintendent, Central Prison, Puzhal, Chennai 66. 5. The Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. R. Srinivas, Advocate. S.R.No.61662. Crl.A.No.499 of 1999 SSN (CO) GSK 12.11.2008. https://hcservices.ecourts.gov.in/hcservices/