IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.09.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.37 OF 2006 1.Karuppan 2.Ganesan .. Appellants(Accused) Vs. State by Inspector of Police, Sivagiri Police Station, Sivagiri, Erode District (Crime No.71 of 2003) .. Respondent(Complainant) This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.1, Erode made in S.C.No.155 of 2004, dated 28.11.2005. For Appellants : Mr.A.N.Thambidurai For Respondent : Mr.V.R.Balasubramanian, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional District and Sessions Division, Fast Track Court No.1, Erode made in S.C.No.155 of 2004, whereby the first appellant stood charged under Section 302 IPC (2 counts) and the second appellant stood charges under Sections 307 and 302 IPC (2 counts), tried and found guilty as follows: A-1 and A-2 - 302 IPC (2 counts) - Life imprisonment each for each counts and to pay a fine of Rs.1000/- for each counts, in default to undergo 6 months R.I. A-2 - 326 IPC - 5 years R.I. and to pay a fine of https://hcservices.ecourts.gov.in/hcservices/ Rs.1000/-, in default to undergo 6 months R.I. The sentences were to run concurrently. 2.The necessary facts for the disposal of this appeal can be stated thus: a)On 24.05.2003 at about 6.00 p.m., P.W.1 Murugesan went to see one Kuppusamy, who was actually taking tea in the shop of P.W.2. The first deceased Senthilkumar was there. P.W.1 and Kuppusamy were chatting for some time. At that time one Angappanadar, the brother of the first accused, came there. Both Angappanadar and Kuppusamy were talking about their financial dealings, in which there was quarrel arose. The said Angappanadar was shouting that he should not return the money. The first deceased Senthilkumar and the others intervened and pacified them. Angappanadar, adumbrating that he could not make payment, took the suri knife and threatened the said Kuppusamy. Consequently, the said Kuppusamy went to the respondent police station and gave a complaint. The said Angappanadar was arrested and he was put under custody. The first accused and his son-in-law the second accused were aggrieved over the same. b)On 29.05.2003 at about 8.00 a.m., the first deceased Senthilkumar and his father the second deceased Chidambaram were reading newspaper at Vinayaka Tex and P.W.1 was also there. At the time when one Ponnusamy went outside to get tea, both the accused entered into the room, where both the deceased and P.W.1 were reading paper. A-1 asked what happened to his brother Angappanadar. P.W.1 replied that pursuant to the quarrel with Kuppusamy, his brother Angappanadar was arrested and sent to prison. Immediately, A-1 told both the deceased that they have instigated Kuppusamy to give false complaint and they were responsible for sending his brother Angappanadar to prison. Both the accused further uttered that if you are allowed to be free, you will be going on doing like this and hence you should be finished off. So saying, A-2 attacked P.W.1 on his head. At that time, P.W.3, Sengodu, came from outside. Senthilkumar, the first deceased, intervened to stop the accused from committing the crime. Immediately, the second accused attacked the first deceased on different parts of his body. The first accused also joined with him. On seeing this, the second deceased Chidambaram intervened. At that time, both the accused cut him indiscriminately. On hearing the alarm, the other witnesses entered into the room. On seeing this, A-1 and A-2 along with the weapons of crime fled away from the place of occurrence. c)P.W.1 and the two deceased were taken to Lotus Hospital, Erode, where the Doctor medically examined Senthilkumar and declared him dead. An information was given to Sivagiri Police station. P.W.17, the Sub Inspector of Police, went to the hospital and recorded the statement of P.W.1, which was marked as Ex.P.1. The other deceased Chidambaram, who was under treatment in the said hospital, also died. P.W.1 was given further treatment. P.W.17, after recording Ex.P.1, proceeded to the respondent police station and registered the case on the strength of Ex.P.1 in Crime No.71 of 2003 https://hcservices.ecourts.gov.in/hcservices/ under Sections 324 and 302 IPC. Ex.P.21, the express F.I.R. was despatched to the Court. d)P.W.18, the Inspector of Police of the said circle, took up the investigation, proceeded to the Lotus hospital and conducted inquest on the dead body of Senthilkumar in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the inquest report. Further, he conducted inquest on the dead body of Chidambaram in the presence of the witnesses and panchayatdars and prepared Ex.P.23, the inquest report. He also recovered material objects under a cover of mahazar. He sent the dead body of both the deceased to the Government Hospital for the purpose of autopsy. e)P.W.18 proceeded to the scene of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and Ex.P.26, the rough sketch. The scene of occurrence was photographed through P.W.12, the photographer. M.O.12 (series) photos and M.O.13 (series) negatives were marked. He recovered material objects from the place of occurrence under a cover of mahazar. f)P.W.7, the Doctor attached to Government Hospital, Erode, on receipt of the requisition, has conducted autopsy on the dead body of Senthilkumar and issued Ex.P.6, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained. Equally, he conducted post-mortem on the dead body of Chidambaram and issued Ex.P.7, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries to vital organs. g)On 29.05.2003 at about 9.15 a.m., P.W.8, the Doctor medically examined P.W.1 and the injuries found on him were noted in Ex.P.8, the wound certificate. On the same day at 12.45 hours, A-1 went to the Government Hospital and P.W.11, the Doctor medically examined him and at about 1.05 p.m., A-2 was medically examined by P.W.11, who has issued Ex.P.14 and Ex.P.15, the accident registers respectively. P.W.18, the Investigating Officer arrested both the accused in the presence of the witnesses. They came forward voluntarily to give confessional statements, which were recorded in the presence of the witnesses. The admissible part of the confessional statements of A-1 and A-2 were marked as Exs.P.17 and P.18 respectively. Pursuant to the same, A-1 produced bloodstained aruval and lungi, which were recovered under a cover of mahazar and A-2 also produced bloodstained lungi, shirt and also aruval, which were recovered under a cover of mahazar. Both the accused were sent to judicial remand. h)On the strength of the complaint given by A-1, a case came to be registered in Crime No.72 of 2003 and it was also taken up for investigation along with this case. The Investigating Officer made a request for subjecting the material objects for chemical analysis. Accordingly, all the material objects were subjected to chemical analysis by the Forensic Science Department, which resulted in three reports, namely Ex.P.11, the Chemical Analyst report and Ex.P.12 and https://hcservices.ecourts.gov.in/hcservices/ Ex.P.13, the Serologist Reports. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 18 witnesses and marked 27 exhibits and 19 M.Os. On completion of the evidence on the side of the prosecution, 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 and no defence witness was examined. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that both the accused were guilty of murder on two counts and A-2 was also found guilty under Section 326 IPC and awarded punishments as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned counsel would submit that the prosecution examined 4 witnesses as eyewitnesses. P.W.1 was the injured witness and P.Ws.2 to 4 were the eyewitnesses. From Ex.P.1, the report and the evidence of P.W.1, the injured witness, it would be quite clear that the other witnesses could not have been in the place of occurrence at the time of occurrence. Even according to Ex.P.1, P.W.3 and one Ponnusamy came inside after the occurrence was over and when the accused was running outside. Hence these witnesses could not have seen the occurrence at all. So far as the other two witnesses are concerned, it would be quite clear from the evidence that these two witnesses came to the occurrence place later. Further according to P.W.1, there were five persons found at the time of occurrence, namely accused two in number, P.W.1 and the deceased two in number and thus, it would be indicative of the fact that no one else could have been present and hence P.Ws.2 to 4 could have come to the place of occurrence later and therefore, their evidence was of no use to the prosecution case. 5.Added further the learned counsel that in the instant case, the accused persons brought to the notice of the lower court that on one day, A-1 was actually taking tea, sitting on the bench in front of the tea stall and it was the first deceased who came there and questioned the conduct of A-1. They belonged to different community and that the persons belonging the community of the accused were suppressed by the other community and therefore, the conduct of the first accused in taking tea by sitting in the bench was questioned. At that time, a quarrel arose and following the same, the occurrence has taken place. Hence it would be quite clear that it was the deceased persons who commenced the quarrel and they were the aggressors and when the accused persons were about to be attacked, the accused have exercised private defence and in exercising the private defence, both the deceased died and under these circumstances, the occurrence has happened only in exercise of private defence and hence the act of the accused cannot be taken as one done intentionally or voluntarily or deliberately. https://hcservices.ecourts.gov.in/hcservices/ 6.The learned counsel would further submit that in the instant case, on the complaint of the first accused, a case came to be registered by the respondent police under Section 72 of 2003 and that investigation was not properly done. In the said incident, the accused sustained injuries and they were medically examined and the accident registers were also marked by the prosecution. Thus, it would clearly indicate that at the time of occurrence, the accused persons also sustained injuries, but the prosecution did not give proper explanation, which could be accepted by the court of law. Under these circumstances, the right of private defence was the way, in which manner the occurrence has taken place, which was well explained by the defence. When the prosecution has also come with a theory, the trial court has to weigh as to which theory is more possible and probable. In the instant case, the theory that was put forth by the accused was actually more probable and in exercise of private defence, the other persons sustained injuries, which ended in death. Under these circumstances, it has got to be considered. 7.Added further the learned counsel that the first accused is the father-in-law and the second accused is the son-in-law, who is having two daughters and they have got to be married. Under these circumstances, it has got to be considered and some leniency has got to be exercised, if the court comes to the conclusion that factually the prosecution case remains proved. 8.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 9.It is not in controversy that on the date of occurrence, namely on 29.05.2003, the incident has taken place, in which three persons were injured. The first deceased Senthilkumar and the second deceased Chidambaram succumbed to injuries. The Investigating Officer, after conducting inquest on the dead body of both the deceased, sent the dead bodies to the Government Hospital for the purpose of autopsy. P.W.7, the Doctor attached to Government Hospital, Erode, has conducted autopsy on the dead body of both the deceased and issued Ex.P.6 and Ex.P.7, the post-mortem certificates in respect of the deceased Senthilkumar and Chidambaram respectively, wherein he has categorically opined that both the deceased died out of shock and haemorrhage due to the injuries sustained. That part of the evidence put forth by the prosecution that both the deceased died out of homicidal violence was never questioned by the appellants at any stage of proceedings. Hence without any impediment, it could be safely recorded so. 10.In order to substantiate that these two accused persons, at the time of occurrence, have attacked both the deceased 1 and 2 and have also caused injuries to P.W.1, the prosecution relied on the evidence of not only P.W.1, an injured witness, but also P.Ws.2 to 4. It is a settled proposition of law that in a given case like this where one of the eyewitnesses happened to be an injured witness, unless and until a strong circumstance or reason brought or noticed https://hcservices.ecourts.gov.in/hcservices/ by the court, the evidence of an injured witness cannot be discarded. P.W.1 was in the place at the time of occurrence and he was attacked by A-2 with aruval and he sustained injuries. He was medically treated by P.W.8, the Doctor, who has opined that the injuries could have been caused by a weapon like aruval. This Court is unable to see any reason to disbelieve the evidence of P.W.1. Even according to the defence, P.W.1 was present at the place of occurrence and he was the aggressor and thus, it would clearly indicate the presence of P.W.1, who also sustained injuries. 11.At this juncture, the contention put forth by the learned counsel for the appellants is that P.Ws.2 to 4 could not have seen the occurrence at all for the reasons recorded above. This Court is able to see on analysis of the evidence that when the occurrence has taken place, where first and second deceased were being attacked, P.W.3 on hearing the sound came inside and he could see the occurrence. So far as the other witnesses are concerned, it is true, as could be seen from the available materials, they could not have seen the occurrence. But, they were able to see that both the accused persons were standing in the place of occurrence with the weapon aruval and thus, it would be quite clear that the presence of the accused armed with aruval was actually spoken to by P.Ws.2 and 4. Thus, the evidence of those witnesses put together would clearly indicate that the accused persons have attacked both the deceased indiscriminately at the place of occurrence. 12.The other contention put forth by the learned counsel for the appellants that it is true, the occurrence has taken place, but P.Ws.1 and the deceased 1 and 2 were the aggressors and the origin of the occurrence was the mischief act committed by the first deceased Senthilkumar cannot be countenanced. At the instance of the first accused and on the complaint given by him, a case came to be registered by the respondent police in Crime No.72 of 2003. A reading of the complaint would clearly indicate that it was the first accused, who went to the place of occurrence with the weapons of crime, putting them in a bag and came to the place of occurrence. Thus, it would be indicative of the fact that he came to the place of occurrence with an intention to commit the crime and A-2 also joined him. It is pertinent to point out that the occurrence has not taken place at or about the tea stall, but at Vinayaka Tex, where both the deceased were reading newspaper. The place of occurrence was inspected by the Investigating Officer and he prepared observation mahazar and also rough sketch, which have been marked in that regard and witnesses have also been examined and the place of occurrence was found to be at Vinayaka Tex. Under these circumstances, now the defence theory what was contended before the lower court and equally here also that these accused persons were about to be attacked and in apprehension of danger to the body and life, they exercised private defence and in exercising the private defence, they attacked both the deceased and P.W.1 and caused injuries, cannot be believed in view of the available evidence. In the instant case, even as per the complaint given by A-1, he was in inimical terms with Senthilkumar and hence, the prosecution has brought forth motive for the occurrence. Even the words uttered at the place of occurrence was https://hcservices.ecourts.gov.in/hcservices/ spoken to by P.W.1. Apart from that, even in the earlier case registered in Crime No.71 of 2003, it has been clearly stated as to how A-1 and A-2 sustained injuries. 13.In the instant case, both the accident registers in respect of A-1 and A-2 have been fairly placed by the prosecution and that the prosecution placed all the materials before the court to take a correct conclusion. The trial court has rightly rejected the defence theory of exercising the private defence and found that both the accused have acted in a cruel manner and caused the death of both the deceased. All would go to show that the act of both the accused cannot but be termed only as murder on two counts. This Court is unable to see any reason to interfere with the judgment of the court below either factually or legally. 14.Now, the contention put forth by the learned counsel for the appellants that A-1 is the father-in-law and he is an aged man and A- 2 is the son-in-law, who is having two daughters, who have got to be married, cannot be a reason to exercise any leniency, since they were found guilty under Section 302 IPC (2 counts). The trial court has also found A-2 guilty under Section 326 IPC in view of the injuries sustained by P.W.1. Further, the evidence of those witnesses stood fully corroborated with the medical evidence. Under these circumstances, the trial court has convicted A-2 under Sections 302 (2 counts) and 326 IPC and both the sentences were to run concurrently. 15.This court is unable to notice any reason to interfere with the same. Accordingly, this criminal appeal fails and the same is dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Additional District and Sessions Judge, Fast Track Court No.1, Erode. 2. Do Through The Principal Sessions Judge, Erode. 3.The Inspector of Police, Sivagiri Police Station, Sivagiri, Erode District. https://hcservices.ecourts.gov.in/hcservices/ 4.The Additional Public Prosecutor, High Court, Madras. 5. The District Collector, Erode. 6. The Director General of Police,Santhome, Madras.4. +1 cc To Mr..A.N.Thambidurai, Advocate, SR.50319 CRL.A.NO.37 OF 2006 bv [co] gkg/17.9 https://hcservices.ecourts.gov.in/hcservices/