IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12/02/2004 CORAM THE HONOURABLE MRS. JUSTICE R.BANUMATHI CRL.APPEAL No.759 of 1996 and Crl.R.C.No.950 of 1995 Crl.A.No.759 of 1996: Guna @ Gunasekaran ... Appellant -Vs- Inspector of Police, P.2, Ottery Police Station, Madras. ... Respondent. Crl.R.C.No.950 of 1995: S.Thilagaraj ... Petitioner Vs. 1. State of Tamil Nadu, rep. By Inspector of Police, p.2, Police Station, Madras. 2. Vinayagam 3. Vennila 4. Ambika (since deceased) ... Respondents. Criminal Appeal and Criminal Revision against the judgment dated 31 .10.1995 made in S.C.No.87 of 1995 on the file of learned III Additional Sessions Judge, Madras. !For appellant in : Mr. S.N.Dhananjeyan, for C.A.No.759/96 Mr. V.Krishnamoorthy. For Petitioner in : Mr. K.P.Chandrasekaran Crl.R.C.No.950/95 ^For State in both : Mr. A.N.Thambidurai, cases Govt. Advocate (Crl.Side) For respondent No.2 : Mr. V.Parthiban and 3 in Crl.R.C. No.950/95 :COMMON JUDGMENT First Accused in S.C.No.87 of 1995 on the file of learned III Additional Sessions Judge, Madras is the Appellant in Crl.A.No.759 of 1996 . Crl.A.No.759/1996: By the judgment dated 31.10.1995, Appellant / A.1 was convicted under Ss.307 I.P.C. (two counts) and 326 I.P.C. (two counts). A.2 to A.3 were acquitted of all the charges. Crl.R.C.No.950/1995: Injured witness P.W.2 - Thilakaraj has come forward with this revision aggrieved over the acquittal of A.2 to A.4. Respondents 2 to 4 are the acquitted Accused 2 to 4. 2. Gist of charges framed against the Accused 1 to 4 and the finding of the trial Court are as noted below:- Charge Number Gist of the Offence Against which accused Finding 1 Section 324 I.P.C. (2 counts) for voluntarily causing hurt to P.W.4 - Arputham and P.W.2 - Thilagaraj A1 Found not guilty. Acquitted 2 Section 324 I.P.C. r/w 34 I.P.C. for sharing common intention with A1 on Charge No.1 A2 to A4 Found not guilty. Acquitted 3 Section 324 I.P.C. (2 counts) for voluntarily causing injury to P.W.3 - Manju Helen Mary A2 to A4 Found not guilty. Acquitted 4 Section 326 I.P.C. (2 counts) for voluntarily causing grievous hurt to P.W.4 - Arputham and P.W.2 - Thilagaraj with dangerous weapon A1 Found guilty. Convicted under Section 326 I.P.C. (2 counts) No separate sentence imposed 5 Section 326 I.P.C. (2 counts) r/w 34 I.P.C. for sharing common intention with A1 on Charge No.4 A2 to A4 Found not guilty. Acquitted 6 Section 307 I.P.C. (2 counts) for attempting on the life of P.W.4 - Arputham and P.W.2 - Thilagaraj A1 Found guilty. Convicted under Section 307 I.P.C. Sentenced to undergo R.I. for five years 7 Section 307 I.P.C. r/w 34 I.P.C. (2 counts) for sharing the common intention with A1 on Charge No.6 A2 to A4 Found not guilty. Acquitted 3. The case of prosecution could briefly be stated thus: P.W.2 - Thilagaraj is employed in B and C Mill. He is also leader of Ambedkar Organisation. The prosecution Witnesses 1 to 4 are related to each other as noted below:- Thilagaraj (P.W.2) | | Arputham (P.W.4) | | | - - - - - - - - - - - - - - - - - - - - | | | | | | | | | Pameela Manju Helen Mary Vincent (P.W.1) (P.W.3) 4. A.1 to A.3 are the sons of one Ekambaram. A.4 is known to the family of the Accused. Both the prosecution witnesses and the Accused are residing in Strehans Road, Otteri. 5. In the year 1993, there was acute water scarcity. On the night of 06.07.1993, P.W.1 - Pameela came to the house of her parents. On the mid night of 06.07.1993 - 11.00 p.m., P.W.2 - Thilagaraj and others had undertaken the repair work in the Street pipe and P.W.5 - Advocate Ramanathan was talking to P.W.2. At that time, without following the queue system, A.2, A.3 and one Santharam interrupted in between and had drawn water, for which P.W.2 and P.W.5 objected which resulted in wordy quarrel between Vincent, son of P.W.2 and the said Santharam. The said Santharam uttered vulgar abuses against P.W.5, against which P.W.5 lodged a complaint before Otteri Police Station. On that night itself, Santharam and others came in gathering themselves aggressively against Vincent. 6. The occurrence on 07.0 7.1993 - 1.00 p.m. was in sequel to the occurrence on the night of 0 6.07.1993. After taking food, P.W.2 was washing his hands. At that time, A.1 armed with knife and A.2 to A.4 armed with stout sticks picking up a wordy quarrel and uttering vulgar abuses, A.1 inflicted cut injury on the back of head; left side neck, left side chest of P.W.4 - Arputham, wife of P.W.2. When P.W.2 tried to intervene, A.1 inflicted cut injuries on his left side abdomen, right forehead and right shoulder. When P.W.2 had fallen down, he sustained abrasions in his right forearm. A.2 to A.4 are alleged to have beaten P.W.1 - Pameela, P.W.3 Manju Helan Mary with stout sticks. 7. Injured P.Ws.1 and 4 were taken to the Hospital by one Velu and Prabhakaran. They were admitted in the Madras Medical College Hospital on 07.07.1993 - 2.50 p.m. P.W.6 - Dr.Vijay Anandan treated the injured, noting the injuries on the persons of P.Ws.2 to 4 and has issued Exs.P.3, 4 and 2 respectively. Injuries sustained by P.Ws.2 and 4 were found to be grievous. Injured P.W.2 - Thilagaraj was discharged from the hospital only on 27.07.1993. 8. P.W.9 - Sub Inspector of Police, Otteri Police Station received phone intimation from the Hospital at 2.30 p.m. and went to the Hospital at 3.00 p.m. He found the injured P.Ws.2 and 4 unconscious. Statement of P.W.1 (Ex.P.1) was recorded by P.W.9. On the basis of Ex. P.1 - Statement, a case was registered in Crime No.776 of 1993 under Ex.P.9 - First Information Report. M.O.2 - Blood Stained Shirt of P. W.2 was seized under Ex.P.8 - Seizure Mahazar. 9. P.W.11 - Inspector of Police had taken up investigation. Scene of occurrence - house of P.W.2 and the surrounding area were inspected. Ex.P.11 - Observation Mahazar and Ex.P.12 - Rough Plan were prepared on the scene of occurrence. A.4 was arrested on 08.07.1993; A.1 was arrested on 17.07.1993. When being interrogated, A.1 had voluntarily given a Confession Statement (Admissible portion of the same is Ex.P.5), which led to the recovery of M.O.1 - Knife from near Buckingham Canal, Otteri under Ex.P.6 - Seizure Mahazar. Seized material objects M.Os.1 and 2 were sent for Chemical Analysis. On completion of investigation, P.W.11 has filed the charge sheet against the Accused 1 to 4 on 18.05.1994. 10. To substantiate the charges against the Accused in the trial Court P.Ws.1 to 11 were examined. Exs.P.1 to P.17 were marked. M.Os.1 and 2 were remanded to the Court. Case of the Accused is one of total denial. According to the Accused, a false case is foisted against the Accused using the influence of P.W.2, who is the leader of Ambedkar Organisation. 11. Upon consideration of the evidence and referring to Ex.P.3 - Accident Register of P.W.2, the learned Sessions Judge found that the names of the Accused 2 and 3 "Vennila and Vinayagam" were added in the Accident Register as interlineation. Finding that the overtact against A.2 to A.4 is not proved and raising doubts on the presence of A.2 to A.4, learned Sessions Judge acquitted A.2 to A.4. The trial Court further found that the evidence of injured witnesses P.Ws.2 to 4 is strengthened by the medical evidence and that the essential ingredients of Sec.307 I.P.C. and 326 I.P.C. are well proved against A.1 and on those findings, convicted A.1 and acquitted others as aforesaid in para 3. 12. This appeal and revision arise out of the conviction of A.1 and the acquittal of A.2 to A.4. Common points for determination arise in both the appeal and the revision. Hence, both the appeal and the revision were heard together and disposed of by this common judgment. 13. A.4 / 4th Respondent - Ambika is said to be dead. She died on 10.05.2002 and Death Register Extract is produced. Arguments in the revision was confined only relating to A.2 and A.3. 14. Assailing the conviction, learned counsel for the Appellant / A.1 submitted that P.Ws.2 to 4 have not come forward with the true version. Prosecution case is attacked on the ground of non-examination of Velu, who had taken injured P.Ws.1 and 4 to the hospital and other independent witnesses. Credibility of the prosecution case is attacked on the ground of interpolation in Ex.P.2 - Accident Register, which was done at the influence of P.W.2. Learned counsel further submitted that A.1 had no intention to attempt on the life of P.W.2 and the conviction under Sec.307 I.P.C. is not maintainable. 15. Drawing the attention of the Court to the evidence of P.Ws.1 to 4, learned Government Advocate submitted that the evidence of injured witnesses viz., P.Ws.2 to 4 is cogent and consistent and that there is no substantial ground to disbelieve the testimony of P.Ws.2 to 4. Further submitting that intention of A.1 coupled with the grievous injuries caused on the persons of P.Ws.2 and 4, the learned Government Advocate argued that the essential ingredients of Sec.307 I.P.C. is well proved and that the conviction under Ss.307 I.P.C. (two counts) and 326 I.P.C. (two counts) warrants no interference. 16. Crl.R.C.No.950 of 1995. Assailing the acquittal of A.2 to A.4, learned counsel for the revision petitioner submitted that the trial Court erred in doubting the presence of A.2 to A.4 and finding that non-examination of independent witness is fatal. It is submitted that when P.Ws.2 to 4 being injured witnesses, the learned Sessions Judge has committed serious and substantial error in disbelieving their evidence regarding A.2 to A.4. Placing reliance upon the case of Brijpal Singh v. State of U.P. (1994 AIR SCW 1346), it is submitted that when P.Ws.2 to 4 have spoken about the overtact of A.2 to A.4, the acquittal of A.2 to A.4 is to be reversed. 17. The learned counsel appearing for A.2 and A.3 has taken me through the evidence of P.Ws.1 to 4 and submitted that the overtact attributed to A.2 and A.3 is not supported by the medical evidence and in that circumstances, the trial Court has rightly acquitted A.2 and A.3 . It is further submitted that since the occurrence was in a sudden quarrel, there is nothing to indicate that A.2 and A.3 have shared the common intention with A.1. Drawing the attention of the Court to Ex.P.3 - Accident Register, it is submitted that the names of A.2 and A.3 (Vennila and Vinayagam) were inserted at the instance of P.W.2 and the acquittal of A.2 to A.4 does not suffer from any serious or substantial error warranting interference. 18. Upon consideration of the submissions, judgment of the Court below and careful re-assessment of evidence, the following common points arise for consideration in this appeal and revision:- (i) Whether the acquittal of A.2 to A.4 suffers from serious or substantial error warranting interference ? (ii) Whether the conviction of A.1 for the offences under Ss.307 I. P.C.(2 counts) and 326 I.P.C. (2 counts) suffers from infirmity warranting interference ? 19. There was acute water scarcity in 1993. The preluding occurrence was on the night of 06.07.1993. P.W.5 - Advocate Ramanathan has spoken about the occurrence on the night of 06.07.1993 and also lodging of the complaint against one Ravi, A.2, A.3 and one Santharam. From the evidence of P.W.5, it is made clear that they were attending the pipe repair work and at that time, A.2 and A.3 and one Santharam intervened and had drawn water, for which P.W.2 objected, which resulted in wordy quarrel between Vincent, son of P.W.2 and the said Santharam. In the wordy altercation, the said Santharam uttered vulgar abuses against P.W.5 - Ramanathan, who in turn, had lodged a complaint. Evidence of P.Ws.4 and 5 about the occurrence on the night of 06.07.1 993 is cogent and consistent. Even on that night, Santharam held the shirt of Vincent, evidently manifesting the intention of the Accused party and Santharam to settle score. 20. The enmity and intention to settle score persisted in the mind of A.1, who is the elder brother of the family. In sequel to the occurrence on 06.07.1993, is the incident on 07.07.1993. Before adverting to the overtact of A.1, we may first deal with the revision preferred by P.W.2 - Thilagaraj, against the acquittal of A.2 to A.4. 21. The principles governing appeal against an order of acquittal and the guidelines of approach to such an appeal is well settled by the Catena of the decisions. As laid down by the Supreme Court in several decisions:- (i) that the appellate Court should also bear in mind the fact that the trial Court had the benefit of seeing witnesses in the witness box; (ii) the presumption of innocence is not weakened by the order of acquittal; (iii) if two reasonable conclusions can be reached on the basis of evidence on record, the appellate Court should not disturb the findings of the trial Court. In the light of above, it is to be seen whether the acquittal of A.2 to A.4 suffers from any serious and substantial error. 22. Charge No.3. Under Sec.324 IPC (two counts): A.2 to A.4 are charged for the offence under Sec.324 I.P.C.(two counts) for voluntarily causing injury to P.W.3 - Manju Helan Mary. It is alleged that A.2 to A.4 have beaten P.W.1 - Pameela on the left thigh and on the right forearm with stout sticks. P.W.2 has stated " m/rh/1 kw;Wk; kfs; bcwyd; nkhp Mfpnahh;fisa[k; 2. 3. 4 vjphpfs; cUl;Lf; fl;ilahy; jhf; fpdhh;fs; " P.W.2 has also stated that he was beaten by A.2 to A.4. Likewise, P.W.3 has also stated " 2 Kjy; 4 vjphpfs; cUl;Lf;fl;ilahy; vd; tyJ ifapy; moj;J tpl;ldh;/ m/rh/1I ,lJ fhy; bjhilapy; 2 Kjy; 4 vjphpfs; cUl;Lf; fl;ilahy; moj;J tpl;ldh; ". 23. Though P.Ws.1 to 4 have stated that A.2 to A.4 have beaten P. Ws.1 and 3, the same is not substantiated by medical evidence. There is no injury to P.W.1. Ex.P.4 is the Accident Register of P.W.3 - Manju Helen Mary, wherein she has only complained of pain in the right hand. No external injury was noted on the person of P.W.3 and the complaint of pain is purely subjective. The fact that A.2 to A.4 have caused injuries to P.Ws.1 and 3 is not strengthened by the medical evidence. Charge No.3 - under Sec.324 I.P.C for causing injuries to P. W.3 is not proved by the prosecution and the learned Sessions Judge has rightly acquitted A.2 to A.4 under Charge No.3. 24.Charge No.5 under Sec.326 r/w 34 IPC (two counts) for sharing the common intention with A.1 in causing injury to P.Ws.2 and 4. Charge No.7. Under Sec.307 r/w 34 I.P.C. (two counts) for sharing the common intention with A.1 for attempting on the life of P. Ws.2 to 4. Nowhere in their evidence, P.Ws.2 to 4 have stated that they were beaten by A.2 to A.4. Admittedly, the overtact attributed to A.2 to A.4 is only relating to P.Ws.1 and 3. When A.2 to A.4 have not beaten P.Ws.2 and 4, A.2 to A.4 cannot be said to have shared the common intention along with A.1 much less in attempting on the life of P.Ws.2 and 4. 25. Serious doubts arise as to the implication of A.2 to A.4 in the occurrence at a later point of time. The only piece of evidence relied upon by the revision petitioner / P.W.2 is the naming of A.2 and A.3 as the assailants before the Doctor. P.W.4 - Arputham was taken to the hospital on 07.07.1993 - 2.50 p.m. Ex.P.2 is the Accident Register. Likewise, P.W.2 - Thilakaraj was taken to the hospital at 2.45 p.m. and Ex.P.3 is the Accident Register. It is alleged that P. Ws.2 and 4 have stated before the Doctor the names of the assailants as "Guna", "Vennila" and "Vinayagam". This piece of evidence is very much relied upon onbehalf of the revision petitioner in assailing the acquittal of A.2 to A.4. In common experience and as per the Medical Board Standing Orders, normally in the Accident Register, Doctors while stating about the assailants would state only as "known or unknown persons". Serious doubts arise as to why should the names of the assailants be individually named in Exs.P.2 and P.3 - Accident Registers. As elaborately discussed by the trial Court in paras (15) and (16 ) of its judgment, after the name 'Guna' the names of 'Vennila and Vinayagam' are added as interpolation. When being questioned on this aspect, P.W.6 - Dr.Vijayan Anandan has admitted that in this case under compulsion he happened to write the names of the assailants. The relevant answer of P.W.6 reads thus-- "bjhpe;j egh;fshy; jhf;fg;gl;lhy;. bjhpe;j egh;fshy; jhf;fg;gl;ljhff; TwpaJ kl;Lk; jhd; vGJtJ tHf;fk;/ Mdhy;. mogl;l egh; jhf;fpath;fspd; bgaiu fl;lhakhf vGj ntz;Lbkd;why; mija[k; vGJntd;/ ,e;j tHf;fpy; mg;gof; fl;lhaj;jpd; nghpy;jhd; jhf;fpath;fspd; bgaiu vGjpndd; " P.W.2 who was influential, perhaps was trying to gather evidence against A.2 to A.4 by mentioning them as assailants before the Doctor. In the circumstances, the learned Sessions Judge, on the factual conclusions that-- (i) absence of injuries on P.Ws.1 and 3; (ii) no overt act attributed against A.2 and A.3 as against P. Ws.2 and 4 and no sharing of Common Intention; (iii) The above answer elicited from P.W.6 - Doctor Vijay Anandan; In view of the above, the reasoning of the learned Sessions Judge for acquitting A.2 to A.4 cannot be said to be suffering from any serious or substantial error warranting interference in the revision. The Revision against acquittal of A.2 to A.4 has no merits. 26. Let us consider the evidence as against A.1. Hardly, there is any action without motive. Previous day occurrence on 06.07.1993 was carried on to 07.07.1993. The occurrence on the night of 06.07.1993 and lodging of complaint by P.W.5 - Advocate Ramanathan would have certainly caused ill-will in the minds of A.1. On 07.07.1993 - 1.00 p.m., when P.W.2 was washing his hands, A.1 uttering vulgar abuses against the womenfolk, came there armed with knife. He inflicted cut injury on P.W.4 - Arputham on the back side of head, neck, left side head and right jaw. When P.W.2 tried to intervene, A.1 has also inflicted cut injuries on the left side abdomen, right forehead and right shoulder of P.W.2. While P.W.2 fell down, he sustained abrasion on the right forearm. P.Ws.2 and 4 have consistently spoken about the overtact of A.1 and the blows inflicted on them by A.1. 27. P.W.1 - Pameela is residing at Ayanavaram. She came to her parents house on the night of 06.07.1993. P.W.3 is studying in Pendick School. On 07.07.1993, she applied for leave and was staying in the house because of the previous day occurrence. Thus, P.Ws.1 and 3 have clearly spoken about their presence and hence, their evidence on the overtact of A.1 cannot be doubted. Though P.Ws.1 and 3 are the daughters of P.Ws.2 and 4, there is no reason to doubt their version. 28. Evidence of injured witnesses viz. P.Ws.2 and 4 is further strengthened by the unimpeachable medical evidence. Ex.P.3 is the Accident Register relating to P.W.2 - Thilagaraj. From Ex.P.3, it is seen that he sustained external injuries ... (1) (a) Lacerated wound (l) Parietal Region (b) Lacerated wound (L) Frontal Region (2) Lacerated wound (L) side lower abdomen (3) Abrasion ) Forearm (4) Cut injury (L) arm. Injury No.2 - lacerated wound on the left side lower abdomen was found to be grievous as per Ex.P.10 - Triple Form issued by P.W.10 - Dr. Adhi. 29. Likewise, Ex.P.2 is the Accident Register of P.W.4 - Arputham. The following injuries were noted on her person:- (i) Lacerated wound ) Parietal Region. (ii)Lacerated wound (L) cheek. (iii)Cut injury (L side of neck. (iv)Contusion (L) Parietal Region. X-Ray was taken in the skull. From the materials on record, there is no difference of opinion as to the nature of injuries sustained by P.W.4. But the fact remains that P.W.4 also sustained cut injuries and lacerated injuries. Thus, the medical evidence is well consistent with the oral evidence of P.Ws.2 and 4. 30. P.Ws.2 and 4 being the injured witnesses, their evidence is entitled to a great weight. Since their evidence has higher probative value, convincing ground is essential for discarding their evidence. Absolutely no such ground is set forth by the first Accused. 31. The case of prosecution and version of P.Ws.1 to 4 are assailed by Appellant / A.1 contending that though the public have gathered in number, no independent witness was examined, which throws doubts on the prosecution case. This contention does not merit acceptance. The general indifference of the public to the occurrence of the crime is well known. In City of Madras, it is unreasonable to expect any one to come forward to speak about the occurrence. In such situation, the insistence on examination of independent witnesses might result in failure of justice. The contention advanced on the nonexamination of independent witness cannot be sustained. 32. Yet another incriminating circumstance against A.2 could be pointed out. On 12.07.1993 - 2.50 p.m. near the Slum Clearance Board Houses, A.1 was arrested. His confession statement (Admissible portion Ex.P.5) led to the recovery of M.O.1 - knife from Otteri Buckingham Canal under Ex.P.6 - Seizure Mahazar. The knife recovered at the instance of A.1 is identified as the weapon of assault used by A.1. Recovery of M.O.1 at the instance of A.1 is a strongly militating circumstance against A.1. M.O.1 - Knife was sent for chemical analysis. The blood stain found on M.O.1 - Knife was found to be disintegrated. Disintegration of blood on the weapon of assault does not in any way weaken the probative value of arrest and seizure. 33. It is to be seen whether essential ingredients of Sec.307 I.P. C. is made out and whether conviction under Sec.307 I.P.C. (two counts) and 326 I.P.C. (two counts) could be sustained ? As noted earlier, P.W.2 sustained grievous injuries. Likewise, P.W.4 also sustained serious cut injuries and lacerated injuries and A.1 is proved to be responsible for causing the injuries. A.1 has inflicted cut injury on the abdomen and head of P.W.2 wielding M.O.1 - Knife. 34. By overwhelming evidence, prosecution has established (i) intention or knowledge of A.1 in causing the injuries; (ii) act done in causing the injuries. By causing grievous and serious injuries on P. Ws.2 and 4, A.1 did all that he could do in causing those injuries. A.1 seems to have effectuated his intention and purpose to the full extent. Considering the nature of the weapon used and the injuries caused to P.Ws.2 and 4, I find that essential ingredients of Sec.307 I.P.C. is well proved. The learned Sessions Judge has rightly convicted A.1 under Sec.307 I.P.C. (two counts) for attempting on the life of P.Ws.2 and 4. Since dangerous weapon was wielded for causing the injuries, for the same offence conviction was also recorded for the offence under Sec.326 I.P.C. also. 35. For the conviction under Section 307 I.P.C. (two counts), A.1 was sentenced to undergo Rigorous Imprisonment of five years. The learned counsel for A.1 has prayed for leniency stating that A.1 is married; he has three children and he is the sole bread-winner of the family. The trial Court has the discretion in imposing appropriate sentence. In this case, the attack on P.Ws.1 to 4 cannot be said to be without pre-meditation. The occurrence on 07.07.1993 is in sequel to the occurrence on the night of 06.07.1993. Considering the weapon used and the nature of injuries caused, the sentence of Rigorous imprisonment of five years can neither be said to be harsh nor disproportionate calling for modification or reduction of the sentence. The appeal preferred by A.1 lacks merits and is bound to fail. The finding of guilt of A.1 and the conviction for various offences