Bail Slip The Appellant/Accused namely 1. Mariappan, 2. Madesh, 3. Mariappan, 4. Manickam in Crl.MP.No.1/07 in Crl.A.No.806/07, Sivaraj in Crl.MP.No.1/08 in Crl.A.No.147/08 were directed to be released on bail as per order of this Court dated 19.09.2007 to 05.03.2008 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NOS.806 AND 912 OF 2007 AND 147 OF 2008 1.Mariappan S/o.Krishnan 2.Madesh 3.Mariappan S/o.Perumal 4.Manickam .. Appellants/Accused No.4,5,6&8 in CA.No.806 of 2007 1.Palanisamy 2.Perumal 3.Madhu .. Appellants/Accused No.1 to 3 in CA.No.912 of 2007 Sivaraj .. Appellant/Accused No.7 in CA.No.147 of 2008 Vs. State rep. by Inspector of Police, Marandahalli Police Station, Dharmapuri District (Crime No.268 of 2005) .. Respondent in all the appeals/Complainant These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional Sessions Judge, Fast Tract Court, Dharmapuri made in S.C.No.221 of 2006, dated 6.8.2007. For Appellants : Mr.S.P.Ravishankar for A-6 & A-8 in CA.No.806/2007 for A-1 to A-3 in CA.No.912/2007 for A-7 in CA.No.147/2008 Mr.V.Gopinath, SC for Mr.L.Mahendran for A-4 & A-5 in CA.No.806/2007 For Respondent : Mr.P.Kumaresan, APP https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these three appeals, namely Criminal Appeal Nos.806 and 912 of 2007 and 147 of 2008. 2.Criminal Appeal No.806 of 2007 has been preferred by A-4 to A-6 and A-8, Criminal Appeal No.912 of 2007 is filed by A-1 to A-3 and Criminal Appeal No.147 of 2008 is brought forth by A-7, challenging the judgment of the Additional Sessions Division, Fast Track Court, Dharmapuri made in S.C.No.221 of 2006, whereby the appellants herein stood charged, tried and found guilty as follows: Accused Charges Findings Sentence A-1 to A-8 S.148 IPC Guilty One year RI A-1 to A-8 S.341 IPC Guilty One month RI A-1 to A-8 S.294(b) IPC Not Guilty A-1 to A-4 S.302 IPC Guilty Life imprisonment each and to pay a fine of Rs.1000/-, in default to undergo one year RI. A-5 to A-8 S.302 r/w S.149 IPC Guilty -do- A-1,A-5 to A-8 S.307 IPC Guilty 7 years RI each and to pay a fine of Rs.500/-, in default to undergo one year RI. A-2 to A-4 S.307 r/w S.149 IPC Guilty -do- A-6 S.109 IPC Not Guilty The sentences were ordered to run concurrently. 3.The short facts necessary for the disposal of these appeals can be stated as follows: a)P.W.1 is the elder brother of Kutty. They were the residents of M.Chettipatti within the jurisdiction of the respondent police station. P.W.3 is also the native of the same place. A-1 to A-8 belonged to the same place. A-1 and A-2 had quarrel with the deceased Kutty at the time of temple festival. The associates of A-1 and A-2, namely A-3 to A-8 were also on inimical terms with the deceased. At the time when there was distribution of sacred yellow water of the temple, Kutty was telling that it should be given only on payment. Thus, there was a quarrel. b)On 8.6.2005, P.W.1 along with Kutty and P.W.3 went for the betrothal of the daughter of Govindasamy in a nearby village. A-1 and A- 2 were also present. When A-1 and A-2 were talking to each other, P.W.1 and Kutty entertained suspicion and therefore, they wanted to reach their place through Jalakamparai village. When P.W.1, the deceased and https://hcservices.ecourts.gov.in/hcservices/ P.W.3 were on their way at about 1.00 a.m. on 9.6.2005, A-1 to A-4 armed with Mazhu (knife), A-5 and A-7 armed with sticks, A-8 armed with cycle chain and A-6 with chilly powder, waylaid P.Ws.1,3 and the deceased. The deceased asked his elder brother, namely P.W.1, to move aside and hence P.W.1 went aside. P.W.1 though standing aside, witnessed the occurrence. A-6 threw the chilly powder on the face of the deceased. It was A-1 and A-2 attacked the deceased on his neck, A-3 and A-4 attacked the deceased on his shoulder. A-5 and A-7 with stick and A-8 with the cycle chain attacked the deceased. P.W.3 when made a request that they need not indulge in such activities and it could be talked later, A-1 also attacked him on his head. A-2 attacked P.W.3 with stone and A-5 and A-7 attacked him with stick and A-8 also attacked him with the cycle chain. Hence P.W.3 also sustained injuries. Immediately, all the accused fled away from the place of occurrence. c)P.W.3 proceeded to Palacode Government Hospital. P.W.1 proceeded to the village and informed others and then, he proceeded to the respondent police station, where he gave Ex.P.1, the complaint to P.W.11, the Inspector of Police at about 2.00 a.m. on 9.6.2005. On the strength of Ex.P.1, a case came to be registered in Crime No.268 of 2005 under Sections 147, 148, 341, 307 and 302 IPC. Ex.P.18, the FIR was despatched to the Court and the same has reached the concerned Judicial Magistrate at about 7.30 a.m. d)P.W.11 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.19, the rough sketch. He recovered the bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. The place of occurrence and the dead body were photographed through P.W.6, the photographer. Ex.P.8 (series) photos and Ex.P.9 (series) negatives were marked. Then, P.W.11 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.20, the inquest report. Then, the dead body was sent to the Government Hospital, Palacode for the purpose of autopsy. e)P.W.9, the Doctor attached to the Government Hospital, Palacode, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.12, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to cervical spine injury and cervical plexus and injury to vital organ lung, 12 to 18 hours prior to autopsy. f)P.W.3 was examined medically by P.W.8, the Doctor attached to Palacode Government Hospital. Ex.P.10, the wound certificate was marked in this regard. Pending investigation, P.W.11 arrested A-1, A-3 and A-6 on 10.06.2005 in the presence of the witnesses. A-1 came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.4, pursuant to which, A-1 produced M.O.17, bloodstained shirt and also one knife, which were recovered under a cover of mahazar. Those accused were sent for judicial remand. On 12.6.2005, P.W.11 arrested A-2, A-4, A-5, A-7 and A-8 in the presence of the witnesses. A-4 came forward to give https://hcservices.ecourts.gov.in/hcservices/ confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.6. Pursuant to the same, A-4 produced the weapons of crime, which were recovered under a cover of mahazar. Then, all the accused were sent for judicial remand. The material objects were subjected to chemical analysis by the Forensic Science Department, which resulted in Exs.P.15 to 17, Chemical Analyst's reports. On completion of the investigation, the Investigating Officer has filed the final report. 4.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 11 witnesses and also relied on 20 exhibits and 17 M.Os. On completion of the evidence on the side of the prosecution, all the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as stated above and awarded punishments as referred to above. Hence these appeals have arisen at the instance of the appellants. 5.Advancing arguments on behalf of the appellants, the learned counsel made the following submissions: a)In the instant case, according to the prosecution, the occurrence has taken place on 09.06.2005 at 1.00 a.m. The prosecution would claim that P.Ws.1 and 3 accompanied by the deceased Kutty were proceeding towards their village and at the place of occurrence, not only the deceased was attacked, but P.W.3 was also attacked by the accused persons. Though the prosecution claimed that the case was registered at 2.00 a.m., i.e. within an hour from the time of occurrence, it has reached the concerned Judicial Magistrate at about 7.30 a.m. and thus, there was a delay of 5-1/2 hours. The residence of the Judicial Magistrate concerned is also situated within a short distance. b)P.W.1 is actually the brother of the deceased. From his evidence, it would be quite clear that at the time of occurrence, he was in no way attacked by anybody, but he was standing by the side. If he is afraid of, he would have gone away from the place of occurrence and hence he could not have witnessed the occurrence. Further, P.W.1 even if witnessed his brother Kutty being attacked by a number of persons, he did not go to his rescue and he did not go nearby and hence the conduct of P.W.1 would clearly indicate that he could not have witnessed the occurrence at all. c)So far as P.W.3 was concerned, the prosecution would claim that he was also injured witness. But the evidence of P.W.3 should have been rejected and if it is viewed carefully, it would put an end to the prosecution case totally. P.W.3 after the occurrence, proceeded to Palacode Government Hospital, where he was examined by P.W.8, the Doctor and Ex.P.10, the wound certificate was also marked, wherein it has been stated that at the time of occurrence, he was attacked by three known persons. It is true, as put forth by the prosecution, totally 8 persons were involved and hence there was no reason for P.W.3 to inform the https://hcservices.ecourts.gov.in/hcservices/ Doctor that he was attacked by three persons. Apart from that, it would be clear that he was attacked by A-1 with the knife on his head. A-2 attacked him with stone and A-5 and A-7 attacked him with the sticks and A-8 also attacked him with the cycle chain. A perusal of Ex.P.10, the wound certificate would clearly reveal that corresponding injuries were not found. Thus, the fact that corresponding injuries were not found, which is coupled with the statement given by P.W.3 to P.W.8, the Doctor that he was attacked by three known persons would clearly indicate that he could not have been present at the time of occurrence at all or he was totally a liar. Hence his evidence should have been rejected. d)So far as the deceased was concerned, the prosecution came with the case that A-1 and A-2 cut the deceased on his neck and thus, two cut injuries were caused, but one cut injury was found on the neck and the other cut injury was in the scapular region. A-3 and A-4 also cut him on his shoulder. Further, the prosecution would claim that A-5 and A-7 beat him with sticks and A-8 beat him with the cycle chain, but no corresponding injuries were noticed. So far as A-6 was concerned, he threw chilly powder on the face of the deceased. But, from the Doctor's opinion, it would be clear that no chilly powder was found on the face. Thus, this part of the evidence was nothing but an introduction to make out a case as if there was an unlawful assembly and in furtherance of the common object, they have killed the deceased. e)In the instant case, according to P.W.8, the Doctor, he gave intimation to Palacode Police Station. The Investigator has also given evidence to the effect that he recorded the statement of P.W.8, the Doctor. If to be so, what was actually the statement given by P.W.8, the Doctor is not made known and this has been suppressed. Had it been produced, the truth of the incident would have been coming out. Hence an inference could be drawn against the prosecution. All put together would go to show that the prosecution though marched two witnesses, they have not spoken so and the records produced by the prosecution are in no way supporting their case. Apart from that, the medical opinion also did not corroborate with the prosecution case. Hence the prosecution has miserably failed to prove its case. The lower court has taken an erroneous view, which has got to be set aside by acquitting the accused/appellants. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.The fact that Kutty, the brother of P.W.1, died in an incident that took place at about 1.00 a.m. on 9.6.2005 was not in controversy. Following the inquest made by P.W.11, the Investigating Officer, the dead body was subjected to post-mortem by P.W.9, the Doctor, who has given his categorical opinion that four injuries were noticed and the deceased died out of shock and haemorrhage due to the injuries sustained. The fact that Kutty died out of homicidal violence was not disputed by the accused before the trial court or before this court and hence without any impediment, it could be factually recorded so. https://hcservices.ecourts.gov.in/hcservices/ 8.In order to substantiate the factual position, the prosecution rested its case mainly on the direct evidence of two witnesses, namely P.W.1, the brother of the deceased Kutty and also P.W.3. It is true, P.W.3 is the friend of both. But on that ground, his evidence should not be discarded. He was not only an eyewitness, but also an injured witness. In a given case like this, it is the trite law that the evidence of the eyewitness who happened to be an injured in the same incident, should not be discarded unless and until a strong circumstance is noticed. In the instant case, the evidence of P.Ws.1 and 3 is the corroborative piece of evidence to each other. According to P.Ws.1 and 3, they have been returning after attending the betrothal function of the daughter of one Govindasamy in a nearby village and when they were coming through Jalagamparai village at about 1.00 a.m., all the accused persons waylaid and attacked the deceased and also P.W.3. In the instant case, it is true, P.W.1 though accompanied with them, when the accused persons waylaid them, he was requested by the deceased Kutty to move away and therefore, according to P.W.1, he kept himself aside and he did not interfere. It is true that he was not attacked. P.W.3 has nothing to do with the motive, which is attributed to the accused persons, but P.W.3 has interfered at the time of occurrence, which impelled the accused persons to attack him and therefore, he was also attacked. The evidence of P.W.1 coupled with the evidence of P.W.3 would clearly indicate that such an occurrence has taken place as put forth by them. 9.The learned counsel for the appellants brought to the notice of the court that though P.W.3 has narrated the injuries as if he was attacked by A-1, A-2, A-5, A-7 and A-8, no corresponding injuries were found. According to P.W.3, A-1 has given cut injury. It is to be further added that when he has given statement to P.W.8, the Doctor at about 5.30 a.m., he has stated that he was attacked by three known persons. At this juncture, it is pertinent to point out that even prior to Ex.P.10, the wound certificate which was issued by P.W.8, the Doctor, the F.I.R. has come into existence at 2.00 a.m., i.e. within a short span of one hour from the time of occurrence. As could be seen from the medical opinion canvassed through the post-mortem Doctor and also the contents in the post-mortem certificate, four external injuries were noticed on the deceased, which reads as follows: "External injuries: 1) A deep incised wound. Semi circular in shape extending from anterior aspect of Left ear to Posterior aspect of Right ear. Size 25 x 6 x 10 cm with bone deep with severing of all structures like blood vessels and nerves. 2)A deep incised wound in the left upper scapular region oblique in direction of 7 x 4 x 10 cm in size with fracture of left scapla. 3)A incised wound over the left shoulder region of 4 x 3 x 2 cm in size. 4)A incised wound in the left shoulder region just 3 cm posterior to the injury No.3 of 6 x 4 x 4 cm in size." Thus, it could be seen that no further injuries like contusion, laceration, abrasion or other injuries were found throughout the body of the deceased. It would be quite clear that these four injuries were caused by A-1 to A-4. Though the witnesses claimed that A-5 and A-7 https://hcservices.ecourts.gov.in/hcservices/ attacked with sticks, A-8 attacked with cycle chain and A-6 threw chilly powder, no corresponding injuries were found and also there was no trace as to the chilly powder. Under these circumstances, what is attributed to A-5 to A-8 cannot be taken as proved. 10.At this juncture, there is evidence to show that P.W.3 sustained injury in the course of the same transaction. A-1 had cut him on his head and it is also proved by the medical evidence. P.W.1, the other witness, has narrated the entire incident. Thus, when the evidence is marshalled and considered, it would be clear that the prosecution has brought home the guilt of A-1 to A-4. They attacked the deceased and as a cumulative effect, the deceased died and hence A-1 to A-4 are to be found guilty under Section 302 IPC. So far as P.W.3 was concerned, the injury that was found on the head was actually inflicted by A-1. In respect of the allegations made in respect of the others, no corresponding injuries are noticed. 11.Under these circumstances, the court is of the considered opinion that in the instant case, only A-1 to A-4 were attributed with overt acts and proof is also available through the medical evidence and hence they have got to be found guilty. Further, there is nothing to hold that they was any common object and in furtherance of which they have acted so. Hence the provisions under Sections 148 and 149 IPC cannot be applied in the instant case. Thus, the contentions put forth by the learned counsel for the appellants as narrated above, are considered. When the evidence is marshalled, the court has to come to the conclusion that A-1 to A-4 were to be found guilty under Section 302 IPC. Further, A-1 has caused injury to P.W.3 and hence he is also to be found guilty under Section 324 IPC and awarding punishment of 3 years R.I. would meet the ends of justice. 12.Accordingly, the conviction and sentence imposed on A-1 to A-8 under Section 148 IPC are set aside and they are acquitted of the said charge. The conviction and sentence imposed on A-1 to A-4 under Section 341 IPC are confirmed. The conviction and sentence imposed on A-5 to A-8 under Section 341 IPC are set aside and they are acquitted of the said charge. The conviction and sentence imposed on A-1 to A-4 under Section 302 IPC are confirmed. The conviction and sentence imposed on A-5 to A-8 under Section 302 r/w S.149 IPC are set aside and they are acquitted of the said charge. The conviction and sentence imposed on A-1, A-5 to A-8 under Section 307 IPC are set aside and A-5 to A-8 are acquitted of the said charge, but A-1 is convicted under Section 324 IPC for the attack made on P.W.3 and directed to undergo three years R.I. The conviction and sentence imposed on A-2 to A-4 under Section 307 r/w S.149 IPC are set aside and they are acquitted of the said charge. The sentences are ordered to run concurrently. The bail bond executed by A-5 to A-8 shall stand terminated and the fine amount if any paid by them shall be refunded to them. The fine amount if any paid by A-2 to A-4 under Section 307 r/w S.149 IPC shall be refunded to them. https://hcservices.ecourts.gov.in/hcservices/ 13.In the result, Criminal Appeal No.806 of 2007 is partly allowed, Criminal Appeal No.912 of 2007 is dismissed and Criminal Appeal No.147 of 2008 is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. The District Munsif cum Judicial Magistrate, Palacode, Dharmapuri District. 2. The Chief Judicial Magistrate, Dharmapuri at Krishnagiri. 3.The Additional Sessions Judge, Fast Tract Court, Dharmapuri. 4. The Principal Sessions Judge, Dharmapuri at Krishnagiri. 5. The Director General of Police, Mylapore, Chennai. 6. The District Collector, Vellore. 7. The Superintedent, Central Prison, Vellore. 8.The Inspector of Police, Marandahalli Police Station, Dharmapuri District. 9.The Additional Public Prosecutor, High Court, Madras. 2 cc To Mr.L.Mahendran, Advocate, SR.67983. 3 cc To Mr.S.P.Ravishankar, Advocate, SR.67870. CRL. A NOS.806 AND 912 OF 2007 AND 147 OF 2008 NSM(CO) RVL 22.12.2008 https://hcservices.ecourts.gov.in/hcservices/