Bail Slip That the petitioners viz., Kamala Accused No.4, W/o. Munusamy, Ananthayi Accused NO.5, W/o. Late Venkatesan, Chandra Accused No.6, W/o.Manickavel, Muniammal Accused No.8, W/o. Kumar respectively were directed to be released on bail as per order dated 03.12.2007 made in Crl.MP.No.2/07 in Crl.A.No.1014/2007 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.1014 OF 2007 1.Palani 2.Ramalingam 3.Kamala 4.Ananthayi 5.Chandra 6.Muniammal .. Appellants/Accused 1,2,4,5,6 & 8 Vs. State represented by Inspector of Police, Cheyyar Police Station, Tiruvannamalai District (Crime No.116/1999) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned District and Sessions Judge, Tiruvannamalai District at Tiruvannamalai made in S.C.No.80 of 2005, dated 23.10.2007. For Appellants : Mr.S.Shanmugavelayutham, SC for Mr.A.Sivaji For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal has arisen from the judgment of the District and Sessions Division, Tiruvannamalai made in S.C.No.80 of 2005, whereby these appellants along with two others stood charged, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES A-3 to A-8 S.147 IPC A-1 and A-2 S.148 IPC A-1 to A-3 S.302 IPC A-4 to A-8 S.302 r/w S.149 IPC A-1 S.302 IPC A-2 to A-8 S.302 r/w S.149 IPC A-4 and A-8 S.323 IPC A-6 S.324 IPC A-2 S.324 IPC A-4, A-6 and A-7 S.323 IPC A-1 S.324 IPC A-7 S.323 IPC On trial, A-1 was found guilty under Sections 148, 302 (2 counts) and 324 IPC and sentenced to undergo one year RI and to pay a fine of Rs.3000/-, in default to undergo 3 months RI, life imprisonment for each count and to pay a fine of Rs.10000/- each, in default to undergo 6 months R.I each and one year R.I and to pay a fine of Rs.1000/- in default to undergo one month RI respectively. A-2 was found guilty under Sections 148 and 302 IPC and sentenced to undergo one year R.I. and to pay a fine of Rs.3000/-, in default to undergo 3 months RI and life imprisonment and to pay a fine of Rs.10000/-, in default to undergo 6 months R.I. respectively. A-4 was found guilty under Sections 147, 323 and 302 r/w S.149 IPC and sentenced to undergo 6 months RI under Section 147 IPC, fine of Rs.500/-, in default to undergo one week RI under Section 323 IPC and life imprisonment and to pay a fine of Rs.10000/-, in default to undergo 6 months RI under Section 302 r/w S.149 IPC. A-5 was found guilty under Sections 147 and 302 (2 counts) IPC and sentenced to undergo 6 months RI and life imprisonment for each count and to pay a fine of Rs.10000/-, in default to undergo 6 months RI each respectively. A-6 was found guilty under Sections 147, 302 r/w S.149 and 324 IPC and sentenced to undergo 6 months RI, life imprisonment and to pay a fine of Rs.10000/-, in default to undergo 6 months RI and one year RI and to pay a fine of Rs.1000/-, in default to undergo one month RI respectively. A- 8 was found guilty under Sections 147, 323 and 302 r/w S.149 IPC and sentenced to undergo 6 months RI, fine of Rs.500/-, in default to undergo one month RI and life imprisonment and to pay a fine of Rs.10000/-, in default to undergo 6 months RI respectively. Pending trial, A-3 and A-7 died and hence the case against them became abated. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.W.1 is the daughter of P.W.2. P.W.3 is the father of the deceased No.2, Kumar. P.W.4 is the son of P.W.3. The first deceased Muniammal is the wife of P.W.3. Muniammal is the Senior Maternal aunt of P.W.1. The first deceased Muniammal, the second deceased Kumar, P.Ws.1 to 4 and all the accused belonged to Naval Village and they are closely related to each other. The father-in-law of P.W.1 Deela and A-7(since https://hcservices.ecourts.gov.in/hcservices/ dead) are brothers. They partitioned their ancestral property even prior to the birth of P.W.1. The father-in-law of P.W.1 got 40 cents as his share and A-7 got 30 cents as his share of the landed property and both of them were enjoying their respective properties. A-7 requested the father-in-law of P.W.1 to give his 20 cents, out of the property held by him in exchange of 15 cents of land, which he was prepared to give, but it was not accepted. b)10 years prior to the occurrence, P.W.1's father-in-law Chinnappa Gounder died. After his life time, the same demand was made, but the husband of P.W.1 was not amenable for the same. Hence P.W.1's husband Devendran and A-7 family were at loggerheads and there were frequent quarrel between them. The husband of P.W.1 was taking steps to sell the property allotted to his father to the third parties. A-7 lodged a complaint against Devendran in this regard. Devendran purchased 50 cents of landed property from P.W.3, 4 months prior to the occurrence. c)On the Tamil month of Chithirai, 1999, A-7 was passing through the land of P.W.1 carrying on harvested paddy to reach his land. The same was questioned by P.W.1. Immediately, A-7 and A-2 spoke in the filthy language. P.W.1 came to his home. Due to the incident held on the previous day, A-7 abused P.W.1 and also the first deceased Muniammal in the filthy language, for which they relied that the yesterday incident was over and he should not abuse them in the filthy language like that. Hence there was ill feeling against each other. d)On the date of occurrence, namely on 17.4.1999 at about 8.30 a.m., all the accused armed with deadly weapons attacked the deceased Muniammal and Kumar and also P.Ws.1 to 4. Then, all the accused ran away from the place of occurrence with the weapons. All the victims were taken to the Government Hospital, Cheyyar, where they were admitted as inpatient at 12.30 p.m. The first deceased Muniammal died in the hospital. e)On the same day, P.W.5, the Doctor attached to the Government Hospital, Cheyyar medically examined P.Ws.1 to 4 and has given treatment. Exs.P.3, P.4, P.5 and P.6 are the wound registers marked for P.W.2, P.W.3, P.W.1 and P.W.4 respectively. The second deceased Kumar was also medically examined by P.W.5 and his wound register was marked as Ex.P.7. f)A message was given to the respondent police station. P.W.11, the Sub Inspector of Police, on receipt of the information, went to the Government Hospital, Cheyyar and got Ex.P1 statement from P.W.1, on the strength of which a case came to be registered in Crime No.166 of 1999 under Sections 147, 148, 323, 324, 307 and 302 IPC. Ex.P.22, the F.I.R. was despatched to the Court. At the time when he went to the hospital, Muniammal died and hence the case was registered under Section 302 IPC. The severely injured Kumar was taken to Cmc Hospital, Vellore, where he had treatment from 17.4.1999 till his dead on 21.4.1999. g)P.W.12, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.11, the https://hcservices.ecourts.gov.in/hcservices/ observation mahazar and Ex.P.23, the rough sketch. He recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. Then, he went to the Government Hospital, Cheyyar and conducted inquest on the dead body of Muniammal in the presence of the witnesses and panchayatdars and prepared Ex.P.24, the inquest report. Then the dead body of Muniammal was sent for the purpose of autopsy. h)P.W.9, the Doctor attached to the Government Hospital, Cheyyar, on receipt of the requisition, has conducted autopsy on the dead body of Muniammal and has issued Ex.P.21, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. i)Pending investigation, the Investigator arrested A-7, A-5 and one Rajeswari, the juvenile accused. A-7 voluntarily 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.13. A-5 also gave confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.15. Pursuant to the confessional statement, A-7 produced 2 knives, a stick and a shirt and also lungi, which were recovered under a cover of mahazar and A-5 also produced material objects, which were also recovered under a cover of mahazar. A-6 was also arrested on 18.4.1999 and A-8 was also arrested on the same day. The investigator also arrested A-3 on the same day. A-3 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.17. Pursuant to the confessional statement, A-3 produced a stick M.O.9, which was recovered under a cover of mahazar. A-3 also produced the other material objects which were also recovered under a cover of mahazar. The accused were sent for judicial remand. j)The investigator came to know that on 21.4.1999 the second deceased Kumar died at CMC hospital. He went to the hospital and conducted inquest on the dead body of Kumar in the presence of the witnesses and panchayatdars and prepared Ex.P.25, the inquest report. Then, the dead body of Kumar was sent for the purpose of autopsy. k)P.W.6, the Doctor attached to the Vellore Government Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of Kumar and has issued Ex.P.9, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained by him. l)P.W.14, the Inspector of Police, took up further investigation of the matter. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.27, the Chemical Examiner's report and Ex.P.28, the Serologist report. On completion of the investigation, the Investigator 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 levelled against the accused, the prosecution examined 14 witnesses and also https://hcservices.ecourts.gov.in/hcservices/ relied on 28 exhibits and 15 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 also looking into the materials available, has found the appellants guilty as stated above and awarded punishments as referred to above. Under these circumstances, this appeal has arisen at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Senior counsel would submit that in the instant case, the prosecution rested its case on direct evidence by examining P.Ws.1 to 4 as eyewitnesses, out of whom, P.Ws.3 and 4 have turned hostile and hence their evidence was not useful to the prosecution; that though P.Ws.1 and 2 spoke about the incident, they are closely related to the deceased and hence they have supported the prosecution case; that since they are closely related to the deceased, the test of careful scrutiny has got to be applied; that P.W.4 at the time of cross-examination, has well admitted that at about 11.00 a.m. when he was taken treatment in Cheyyar Government Hospital, a report was obtained from him and he signed the report also and in that report, it has been mentioned that his mother and brother were attacked by some unknown persons; that from the evidence of P.W.4, it would be quite clear that the persons, who actually attacked the first and second deceased, were actually unknown pesons; that according to P.W.4, he has also signed the report; that if to be so, that was the first information, which was to be relied upon, but it was not placed before the court and hence it casts a doubt on the prosecution case. 5.Added further the learned Senior Counsel that P.W.11, the Sub Inspector of Police, has well admitted in his cross-examination that he received an information orally that P.W.1 and others were admitted in the hospital due to the injuries sustained by them and he did not remember the person, who gave information and he did not get report from the person, who informed the same; that he has also not recorded the name of the person and about the information in the case diary and therefore, it also casts a doubt on the information what is now placed before the court that it was not the first information. 6.The learned Senior Counsel would further submit that in the instant case, at the instance of A-5, a case came to be registered in Crime No.168 of 1999, where the entire incident, in which the accused persons were also injured, have been narrated; that apart from that, both the witnesses, P.Ws.3 and 4, have categorically admitted that when they were taking treatment in the Government Hospital, Cheyyar, A-1, A-6 and one Rajeswari, the juvenile accused, were also admitted for treatment. This fact was also clearly spoken to by the Investigating Officer; that it would be quite clear that these three accused were also injured in the same transaction and a case was also registered by the respondent police; that if to be so, the prosecution was duty bound to explain as to how those accused persons have sustained injuries; that apart from that, the prosecution must place all materials pertaining to the Crime No.168 of 1999, but not done so; that the Investigating https://hcservices.ecourts.gov.in/hcservices/ Officer has categorically admitted that P.W.1 has not given statement to the effect that A-5 attacked the first deceased on her eye, but at the time of evidence, it has been developed and hence it should not be given any weight at all. 7.Added further the learned Senior Counsel that in the instant case, so far as the injuries sustained by the second deceased on head was concerned, according to medical opinion, two injuries were found; that from the evidence available, it would be quite clear that A-1 and A-3 have actually attacked the second deceased; that if to be so, what is now attributed to A-5 was only a development and hence it has got to be rejected; that from the evidence available, it could be seen that it was a free fight; that the accused persons had no common object with which they acted and hence they have got to be dealt with individually; that A-1 and A-2 have got to be dealt with separately for their individual acts for causing death of first and second deceased and the other accused for causing injuries to the witnesses, which would attract Section 324 IPC. In support of his contentions, the learned Senior Counsel relied on the decisions of the Supreme Court reported in 1994 SCC(Crl) 1694 (SHIVALINGAPPA KALLAYANAPPA AND OTHERS VS. STATE OF KARNATAKA) and 2004 SCC (Crl) 1954 (RUDRAPPA RAMAPPA JAINPUR AND OTHERS VS. STATE OF KARNATAKA) and also the judgment of this court in C.A.No.578 of 2001 dated 25.3.2008. Hence the prosecution has not proved its case beyond reasonable doubt, but the lower court has failed to consider any one of the aspects factually or legally, which have got to be considered by this court. 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 in an incident that took place on 17.4.1999, the first deceased Muniammal and the second deceased Kumar along with P.Ws. were severely injured and they were taken to the Government Hospital Cheyyar, where P.W.5, the Doctor has noted the injuries sustained by them. The first deceased Muniammal died in the hospital. Equally, the second deceased Kumar was taken to CMC Hospital, Vellore for further treatment, where he died on 21.4.1999. P.W.12, the Inspector of Police, conducted inquest on the dead bodies of both the deceased and has issued inquest reports. Following the same, P.W.9, the Doctor has conducted autopsy on the dead body of Muniammal and has issued Ex.P.21, the post-mortem certificate. P.W.6, the Doctor has conducted autopsy on the dead body of Kumar and has issued Ex.P.9, the post-mortem certificate. A perusal of the post-mortem certificates would indicate that both the deceased have died out of the injuries sustained by them. Apart from that, the appellants did not question the cause of death as attributed to each accused before the trial court or at the appellate stage and hence the fact that both the deceased died out of homicidal violence has got to be recorded so without any impediment. 10.In order to substantiate the fact that at the time of incident that was on 17.4.1999, the accused persons with the common object of murdering the first and second deceased and also causing injuries to P.Ws., attacked them with deadly weapons, the prosecution has rested its https://hcservices.ecourts.gov.in/hcservices/ case on the direct evidence of examining P.Ws.1 to 4. Though P.Ws.3 and 4 have turned hostile, the prosecution to its benefit had the evidence of P.Ws.1 and 2. P.Ws.1 and 2 have categorically deposed that the accused persons armed with deadly weapons, namely A-1 and A-2 with knives and the other accused with the sticks, attacked the deceased persons and also the P.Ws. Though out of four eyewitnesses, P.Ws.3 and 4 have turned hostile, P.Ws.1 and 2, who are the injured witnesses, have categorically spoken about the incident. At this juncture, it is pertinent to point out that the evidence of two witnesses, who are not only occurrence witnesses, but also injured, cannot be discarded unless a strong circumstance is noticed or a reason is brought forth. This court is unable to notice so. P.W.5, the Doctor has medically examined them shortly thereafter from the time of occurrence. The wound certificates of P.Ws.1 and 2 were marked as Exs.P.5 and P.3 respectively. The evidence of the injured witnesses stood in corroboration with the medical opinion canvassed. Further, after inquest, the dead bodies of first and second deceased were subjected to post-mortem. P.W.9, the Doctor has conducted autopsy on the dead body of Muniammal and has given Ex.P.21, the post-mortem certificate. P.W.6, the Doctor has conducted autopsy on the dead body of Kumar and has issued Ex.P.9, the post-mortem certificate. So far as the injuries found on the first deceased are concerned, the injury that was found on her head was found to be fatal and this injury was actually caused by A-1 and A-2. Thus, it would be quite clear that the death of the first deceased was caused by the act committed by A-1 and A-2, while they attacked the first deceased with the knives. 11.A perusal of the post-mortem certificate of the second deceased would reveal that it was the first accused who has attacked him on his head with the knife and that injury was found to be fatal. At this juncture, it is pertinent to point out that in the same transaction, A- 1, A-6 and one Rajeswari, the juvenile accused, were also injured. P.Ws.1 and 2 did not speak about the same. P.Ws.3 and 4, who have turned hostile, have spoken about that fact. Apart from that, the Investigating Officer has categorically stated that those three accused persons were also injured and they were medically treated. It is also admitted by the Investigator that at the instance of A-5, a case came to be registered in Crime No.168 of 1999. It is not in controversy that Crime No.166 of 1999 was registered at the instance of P.W.1 and Crime No.168 of 1999 was registered at the instance of A-5. Further, in the same transaction, not only P.Ws.1 to 4, the first and second deceased were injured, but also A-5, A-6 and one Rajeswari, the juvenile accused were injured. It is pertinent to point out that it was a free fight at the time of occurrence. Under these circumstances, it is not a case where the court could record a finding that the accused persons have acted in furtherance of common object. Hence they have got to be dealt with individually. 12.As stated above, the first deceased Muniammal died out of the injuries caused by A-1 and A-2 with knives. Therefore, A-1 and A-2 have got to be found guilty under Section 302 IPC. So far as the second deceased Kumar is concerned, he died out of the injuries sustained by him on head and it was caused by A-1 with knife and hence A-1 was found to be guilty under Section 302 IPC. Apart from that, A-1 has caused https://hcservices.ecourts.gov.in/hcservices/ simple injury to P.W.2. The medical opinion was also canvassed in this regard apart from the ocular testimony of P.W.2. Hence A-1 was found to be guilty under Section 324 IPC. A-2 was found to be guilty under Section 302 IPC. 13.So far as A-3 was concerned, he died and hence all the charges levelled against him stand abated. Insofar as A-4, she caused simple injury on P.W.1 on her elbow and hence she was found guilty under Section 323 IPC. So far as A-5 is concerned, though it was claimed by the prosecution that she attacked the first deceased and caused injury on her eye, nowhere in the FIR it was found so, but the witness has developed the same at the time of evidence. Thus, the allegation made against A-5 that he caused injury on the first deceased on her eye has got to be rejected. Equally, so far as the second deceased was concerned, the prosecution came forward to state that A-5 attacked the second deceased on head. From the post-mortem certificate, it could be seen that two injuries were found on the head and both P.Ws.1 and 2 have spoken the fact that those injuries were actually caused by A-1 and A-3. If to be so, those two injuries found on the head of the second deceased were actually caused by A-1 and A-3 and not by A-5 at all and under these circumstances, A-5 has got to be acquitted of all the allegations made against her. So far as A-6 was concerned, she has actually caused simple injury to P.W.3, but P.W.3 has turned hostile and under these circumstances, there is no evidence available for the same and further, she has attacked P.W.1 and hence she was found guilty under Section 324 IPC. Insofar as A-8, she has caused simple injury to P.W.1 and it is also supported by the medical evidence and under these circumstances, A- 8 was found guilty under Section 323 IPC. 14.Accordingly, so far as A-1 is concerned, the conviction and sentence imposed under Section 148 IPC are set aside and he is acquitted of the said charge and the fine amount if any paid under the said section shall be refunded to him. The conviction and sentence imposed on A-1 under Sections 302 (2 counts) and 324 IPC are confirmed and the sentences shall run concurrently. Insofar as A-2, the conviction and sentence imposed on A-2 under Section 148 IPC are set aside and he is acquitted of the said charge alone and the fine amount if any paid under the said section shall be refunded to him. The conviction and sentence imposed on A-2 under Section 302 IPC are confirmed. Insofar as A-4, the conviction and sentence imposed on her under Sections 147 and 302 r/w S.149 IPC are set aside and she is acquitted of the said charges. The conviction and sentence imposed on A-4 under Section 323 are confirmed. The bail bond executed by A-4 shall stand terminated and the fine amount if