IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.525 of 2009 1.Rajkumar 2.Rajendran 3.Guru 4.Partheeban 5.Rajaram 6.Gandhi 7.Vadivel .. Appellants/Accused 1 to 7 vs The State of Tamilnadu Rep. By Inspector of Police Villupuram Taluk Police Station Cr.No.525/2005 Villupuram District .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Villupuram, made in S.C.No.122 of 2007 dated 12.8.2009. For Appellants : Mr.M.Devaraj For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Villupuram, made in S.C.No.122 of 2007 whereby the A-1 to A-7, the appellants herein, stood charged, tried, found guilty and awarded punishment as referred to infra: https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-3 to A-7 147 IPC Guilty 1 year RI with a fine of Rs.1000/- and default sentence A-1 & A-2 148 IPC Guilty 1 year RI with a fine of Rs.1000/- and default sentence A-1 302 IPC Guilty Life imprisonment with a fine of Rs.5000/- and default sentence A-2 324 IPC Guilty 1 year RI with a fine of Rs.1000/- and default sentence A-3, A-4 & A-6 323 IPC Guilty 6 months SI with a fine of Rs.1000/- and default sentence A-5 325 IPC Guilty 2 years RI with a fine of Rs.1000/- and default sentence A-7 506(2) IPC Guilty 1 year SI with a fine of Rs.1000/- and default sentence A-2 to A-7 302 r/w 149 IPC Guilty Life imprisonment with a fine of Rs.5000/- and default sentence 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a resident of Karungalipattu within the jurisdiction of the respondent police. 3 ½ years prior to the occurrence, the goat of A-1 was grazing in the filed of P.W.1. There was a wordy altercation between them. A few days prior to https://hcservices.ecourts.gov.in/hcservices/ the occurrence, A-1 complained that the dog of P.W.1 has bitten his goat. But, P.W.1 replied that he had no dog at all. On the date of occurrence that was on 9.5.2005, at about 8.00 P.M., A-1 and others told P.W.1 that his goat died since it was actually bitten by the dog of P.W.1. In that count, there was a wordy altercation. Then they left the place. At about 9.00 P.M., A-1 armed with an iron rod and A-2 with an iron pipe and A-3 to A-6 with sticks came to the place of occurrence along with A-7, and at that time, A-1 attacked the deceased Gopi @ Selvakumar on his head with the iron rod while A-2 and A-3 attacked P.W.1 and A-4 to A-6 attacked P.W.2 with sticks. A-7 criminally intimidated others. At that time, there was a huge crowd gathered on hearing the distressing cry. Then all the accused left the place of occurrence with the weapons of crime. (b) Immediately, P.Ws.1 and 2 and the deceased were taken to the Government Hospital, Villupuram, and they were actually given initial treatment. P.W.1 was examined by the Doctor, P.W.9. Ex.P9 is the accident register copy issued by him. As far as P.W.2 is concerned, Ex.P6 is the accident register copy. The Doctor also examined the deceased and advised that he could be better taken to the Government Hospital, Pondicherry. Ex.P8 is the accident register copy in his regard. (c) An intimation was sent to the respondent police station. P.W.12, the Sub Inspector of Police, rushed to the hospital and recorded the statement of P.W.1 which is marked as Ex.P1. At about 1.30 A.M. on 9.5.2005, he registered a case in Crime No.525 of 2005 under Sections 147, 148, 341, 323, 324, 506(2) and 367 of IPC. The printed FIR, Ex.P14, was despatched to the Court. (d) P.W.10, the Doctor, attached to the Government Hospital, Pondicherry, gave treatment to the deceased. But despite treatment, he died at about 0050 hours on 10.5.2005. An intimation was sent to the respondent police. On receipt of the said intimation, the case was converted to Sec.302 of IPC. The amended FIR, Ex.P15, was despatched to the Court. (e) P.W.13, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P16. Then, he recovered the material objects including the bloodstained earth and sample earth under a cover of mahazar. He proceeded to the mortuary at the Government Hospital, Pondicherry, and conducted inquest on the dead body of Gopi in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P17. (f) Pursuant to the requisition given by the Investigator, P.W.11, the Doctor, attached to the Government Hospital, Pondicherry, conducted autopsy on the dead body of Gopi and has given his postmortem certificate, Ex.P13, wherein he has opined that the deceased died of head injuries. https://hcservices.ecourts.gov.in/hcservices/ (g) Further all the witnesses were examined and their statements were recorded. Pending investigation, A-4 was arrested along with A-5 and A-6 on 12.5.2005. A-4 came forward to give a confessional statement which was recorded. The admissible part is marked as Ex.P18, pursuant to which he produced an iron rod, an iron pipe and five sticks which were recovered under a cover of mahazar. They were sent for judicial remand. (h) A-1 and A-2 were arrested on the same day. A-1 gave a confessional statement voluntarily which was recorded. They were sent for judicial remand. On 16.5.2005, A-3 and A-7 were arrested and sent for judicial remand. The further investigation was taken up by P.W.14, the Inspector of Police. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 14 witnesses and also relied on 19 exhibits and 3 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt in respect of all the charges levelled against them and hence found them guilty 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 Mr.M.Devaraj would submit that in the instant case, according to the prosecution, the occurrence has taken place on 9.5.2005 at 9.00 P.M. and A-1 to A-7 in furtherance of the common object have committed the crime; that the prosecution came with the motive; but the motive was too trivial and flimsy; that even that motive part was not actually proved; that according to the prosecution, at about 8.00 P.M. on that day, all the accused persons came to the house of the deceased and quarrelled with them and if to be so, there was no need for them to return and then again come back at 9.30 P.M. and attack the deceased; that if really there was a wordy altercation at 8.00 P.M. between the accused/appellants on the one side and the prosecution witnesses and the deceased on the other side, the occurrence should have taken place at that time itself, but not so; and that in order to create a motive, the prosecution has come with the false story. 5.Added further the learned Counsel that according to the prosecution, at the time of occurrence it was A-1 who attacked the deceased on his head, and except A-1 nobody has attacked the deceased;; that A-2 and A-3 attacked P.W.1 and A-4 to A-6 attacked P.W.2; that the witnesses examined were P.Ws.1 to 6 as eyewitnesses, out of whom P.W.4 turned hostile; that it is an admitted position P.Ws.1 to 3 and P.Ws.5 and 6 are closely related to each other and hence their evidence was to be scrutinised https://hcservices.ecourts.gov.in/hcservices/ carefully; and that if done it should have been rejected for the reason that they were filled with all discrepancies possible on the material particulars. 6.Added further the learned Counsel that the medical opinion canvassed was not in favour of the prosecution; that apart from that, the alleged recovery also cannot but be false; that according to the Investigator, A-4 was arrested when he came forward to give a confessional statement, and he produced all the weapons of crime which is highly artificial; and that all would go to show that the prosecution has miserably failed to prove the case. 7.The learned Counsel would further submit that even assuming that A-1 was armed with iron rod and A-2 with iron pipe and A-3 to A-6 with sticks, there is nothing to indicate that they had any common object of killing the deceased; that if to be so, they could not be found guilty under Sec.149 IPC, and the common object cannot be attributed to them; but, the trial Court has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that one Gopi @ Selvakumar following an incident that had taken place on the night hours of 9.5.2005, was taken to the Government Hospital, Villupuram, and he was treated by P.W.9, the Doctor, and the accident register copy is marked as Ex.P8. Thereafter on advice, he was taken to the Government Hospital, Pondichery, and despite treatment, he died. Then the case originally registered under 324 IPC and other provisions of law was altered to Sec.302 of IPC. Following the inquest conducted by P.W.13, the Investigator, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that he died out of head injuries. The fact that Gopi died out of homicidal violence was never disputed by the appellants before the trial Court. Hence the trial Court was right in recording so. 10.In order to substantiate the charges levelled against the appellants/accused, the prosecution examined P.Ws.1 to 6 as eyewitnesses out whom P.W.4 has turned hostile. P.Ws.1 to 3 and P.Ws.5 and 6 have spoken in favour of the prosecution. Out of these eyewitnesses, P.Ws.1 and 2 were actually given treatment immediately after the occurrence, by P.W.9, the Doctor, at the Government Hospital, Villupuram, and the accident register copies are marked as Exs.P6 and P9 respectively. It is well settled principle of law that in a given case like this, when the eyewitnesses happened to be injured, without any strong circumstance that is noticed or reason that is brought about, their evidence should not be discarded by the Court. Both P.Ws.1 https://hcservices.ecourts.gov.in/hcservices/ and 2 in the instant case, were injured at the time of occurrence. They were treated by the same Doctor, P.W.9, within a short time. They have also given statements to the Doctor that they were actually attacked by seven persons at the time and place of occurrence. The evidence of P.W.1 stood fully corroborated by the evidence of P.Ws.3, 5 and 6. 11.Now, the contentions put forth by the learned Counsel for the appellants do not merit acceptance at all. All the witnesses have spoken to the fact that it was A-1 who attacked the deceased with the iron rod and caused his death. The ocular testimony projected through these injured witnesses namely P.Ws.1 and 2, stood fully corroborated by the medical evidence through P.W.11, the postmortem Doctor, and also the accident register copy marked as Ex.P8. Added circumstance is the recovery of the material objects from A-4, and a witness has been examined to prove the arrest, confession and recovery. A-4 has given a confessional statement, and the admissible part is marked as Ex.P4, and he also produced all the weapons which are marked as M.Os.1 to 3. Hence the recovery of weapons of crime from A-4 pursuant to the confessional statement, would be indicative of the nexus to the crime. Thus the contentions put forth by the learned Counsel for the appellants do not carry any merit whatsoever. 12.As far as the second line of argument is concerned, the prosecution came with the case that all the persons in furtherance of the common object, went over to the place of the deceased and attacked him. It is true that all the persons namely A-1 to A-6 were armed with deadly weapons, and A-1 has attacked the deceased, and A-2 and A-3 have attacked P.W.1 and A-4 to A-6 attacked P.W.2 while A-7 was threatening others. From this, it is quite clear that A-1 and A-2 were armed with iron rod and iron pipe respectively and A-3 to A-6 with sticks, and there is nothing to infer or indicate that they entertained common object of killing the deceased; but, they went over there. So long as they did not have any common object of causing the death of the deceased, it cannot be attributed to them. But, at the same time, they were members of unlawful assembly at that time. Under the circumstances, as far as A-1 is concerned, he has got to be dealt with for causing the death of the deceased, and it would attract Sec.302 of IPC as rightly done by the trial Court. 13.Insofar as A-2, A-3, A-4 and A-6, they have caused simple injuries to P.Ws.1 and 2 respectively as could be seen from the accident register copies Exs.P6 and P9 respectively. The trial Court has found A-2 guilty under Sec.324 of IPC and A-3, A-4 and A-6 guilty under Sec.323 IPC and rightly too. The punishment awarded is not to be disturbed. 14.As far as A-5 is concerned, the trial Court found him guilty under Sec.325 IPC since he has caused a grievous injury to P.W.2 and rightly too. There is nothing to interfere in the punishment awarded. https://hcservices.ecourts.gov.in/hcservices/ 15.Accordingly the conviction and sentence imposed on A-2 to A-7 by the trial Court under Sec.302 read with 149 IPC are set aside, and they are acquitted of that charge. The fine amount if any paid by them in that regard, shall be refunded to them. In other respects, the judgment of the trial Court has got to be sustained and accordingly, it is sustained. 16.In the result, this criminal appeal is, accordingly, dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Principal Sessions Judge Villupuram 2.The Inspector of Police Villupuram Taluk Police Station Villupuram District 3.The Superintendent, Central Prison, Cuddalore. 4.The District Collector, Villupuram. 5.The Director General of Police, Chennai-4. 6.The Public Prosecutor High Court, Madras. +1cc to Mr.M.Devaraj, Advocate Sr 16783 KA(CO) km/22.3. CRL.A.No.525 of 2009 https://hcservices.ecourts.gov.in/hcservices/