BAIL SLIP --- The Appellant/Accused viz.,Raji, Accused-3 was directed to be released on bail as per order of this Court dated 6.8.09 and made in Crl.M.P.No.1/09 in Crl.A.No.456/09 on the file of this Court. ---- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.Nos.456 and 466 of 2009 and MP Nos.2 and 3 of 2009 in CRL.A.No.456 of 2009 1.Sivalingam 2.Raji .. Appellants in CA 456/2009/Accused 2 & 3 Chinnasamy .. Appellant in CA 466/2009/Accused No.1 vs State represented by The Inspector of Police Paupparapatti Police Station Paupparapatti, Dharmapuri District (Crime No.84 of 2006) .. Respondent in both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal District and Sessions Judge, Dharmapuri, made in S.C.No.22 of 2008 dated 13.7.2009. For Appellants : Mr.V.Rajamohan For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These two appeals challenge a judgment of the trial Court namely Principal Sessions Division, Dharmapuri, made in S.C.No.22 of 2008 whereby the appellants/A-1 to A-3 stood charged, tried, found guilty and awarded punishment as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 307 r/w 34 IPC Guilty 10 years Rigorous Imprisonment along with a fine of Rs.500 and default sentence A-2 & A-3 307 r/w 34 IPC Guilty under Sec.325 r/w 34 IPC 7 years Rigorous Imprisonment along with a fine of Rs.500 and default sentence A-1 and A-3 302 IPC Guilty under Sec.302 r/w 34 IPC Life imprisonment along with a fine of Rs.1000 and default sentence 2.Short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 and the deceased Devakumar are the sons of P.Ws.2 and 3. P.Ws.4, 5 and 6 all belonged to the same place. The appellants/A-1 to A-3 are brothers. They had a long standing dispute in respect of a landed property. On the date of occurrence that was on 20.3.2006, at about 7.00 A.M., the accused were plowing the land in dispute. P.Ws.1 to 3 and the deceased Devakumar went to the land, and P.W.2 raised objection that the accused should not plow the land. Then there was a wordy altercation. Immediately, A-3 caught hold of P.W.2, when A-2 attacked him on his head with a koduval. When P.W.1 went to the rescue of his father P.W.2, A-3 caught hold of him while A-2 attacked him with a stick. On seeing this, the deceased Devakumar who was standing nearby, tried to prevent the attacks made on the above witnesses. Immediately, A-2 caught hold of him, and A-1 stabbed him with a knife at different parts of the body. The same was witnessed by P.Ws.4, 5 and 6. Devakumar died at the spot. When the neighbours gathered, the accused fled away from the place of occurrence along with the weapons of crime. (b) Immediately, P.Ws.1 and 2 were taken to the Government Hospital, Dharmapuri, where P.W.13 was the Doctor on duty. At about 8.40 A.M., he medically examined P.W.1 and noted the injuries found on him in Ex.P12, the wound certificate. He also examined P.W.2 and noted the injuries found on him in Ex.P13, the wound certificate. (c) An information was given to the Out-Post Police Station attached to the Government Hospital, and thereafter an intimation was given to the respondent police. P.W.17, the Sub Inspector of Police, attached to the respondent police station, went over there and recorded the statement of P.W.1, which is marked as Ex.P1. At the https://hcservices.ecourts.gov.in/hcservices/ same time, he noticed that A-1 was admitted in the hospital for treatment and he also recorded the statement of A-1. On the strength of Ex.P1, a case came to be registered in Crime No.84 of 2006 under Sections 341, 323, 326 and 302 of IPC. The printed FIR, Ex.P25, was sent to the Court. On the strength of the statement given by A-1, a case was registered in Crime No.85 of 2006 under Sections 341 and 324 of IPC. (d) P.W.21, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P27. Then he recovered the sample earth, bloodstained earth and other material objects from the place of occurrence under a cover of mahazar. The place of occurrence was photographed through P.W.19, the Photographer, and the photos and negatives were marked as M.Os.12 and 13 respectively. Then the Investigator conducted inquest on the dead body of Devakumar and prepared Ex.P28, the inquest report. The dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem. (e) P.W.14, the Assistant Surgeon, attached to the Government Hospital, Dharmapuri, on receipt of the said requisition, conducted autopsy on the dead body of Devakumar and has issued a postmortem certificate, Ex.P16, with her opinion that the deceased would appear to have died about 24 to 36 hours prior to autopsy due to shock and haemorrhage due to injury to the vital organs. (f) Pending investigation, A-2 surrendered before the Judicial Magistrate. Then police custody was taken. He gave a confessional statement. An aruval produced by him was recovered. He was sent for judicial remand. Equally, A-1 was taken to police custody, and he gave a confessional statement. Pursuant to the confession made by A- 2, M.O.2, uruttu kattai, was recovered under a cover of mahazar. A-3 surrendered before the Judicial Magistrate, and police custody was taken. He gave a confessional statement. All the material objects recovered from the place of occurrence and from the dead body and also the weapons of crime recovered on production by the accused pursuant to the confessional statements were subjected to chemical analysis by the Forensic Sciences Department pursuant to the requisition made by the Judicial Magistrate's Court concerned. Ex.P21 is the Serologist's report, and Exs.P22 and P23 are the Chemical Analyst's reports. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 21 witnesses and also relied on 31 exhibits and 18 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. procedurally as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. But, Exs.D1 to D5 were marked on their side. The trial Court heard https://hcservices.ecourts.gov.in/hcservices/ the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded punishment as referred to above. Hence these appeals at the instance of the appellants. 4.Assailing the judgment of the trial Court, the learned Counsel would submit that in the instant case, admittedly, the same police officer who rushed to the Government Hospital, Dharmapuri, has recorded the statements from P.W.1 which was marked as Ex.P1, and also from A-1; that he registered two cases; that at the time of cross-examination, the Investigating Officer has deposed that Crime No.84 of 2006 was registered on the strength of the complaint given by P.W.1, and another case was registered on the complaint of A-1 under Sections 341 and 324 of IPC; that though an occurrence has taken place at the time and place of occurrence, it has actually taken place in the land of the accused; that even P.Ws.1 to 3 have candidly admitted that they rushed to the land when the accused were plowing the lands with the tractor; that it would be quite clear that P.Ws.1 to 3 along with the deceased went to the place and picked up a quarrel, and thus they were the aggressors. 5.Added further the learned Counsel that when two cases were registered one at the instance of P.W.1 and the other at the instance of A-1, the prosecution should have been fair enough to produce the documents in Crime No.85 of 2006, namely the FIR, the statements recorded under Sec.161 Cr.P.C. or the medical records; that nothing was produced before the Court; that all have been suppressed by the prosecution; that when P.W.14, the Doctor, was examined by the prosecution, Ex.D5, the accident register copy pertaining to A-1, was marked by the defence in order to indicate that A-1 has actually sustained injuries; that the injuries that are narrated in Ex.D5 would clearly indicate that those injuries could not have been caused except by a weapon like knife; that the injuries were also found on the skull and on different parts of the body; that it would be quite clear that when P.Ws.1 to 3 and the deceased went to the spot, they were actually armed with weapons; that though the injuries were described by the medical person as simple, since one of the injuries was actually found on the skull and also could not have been caused except by a weapon like knife as deposed by the medical person, a duty was cast upon the prosecution to explain the injury that was sustained by A-1 in the course of the same transaction; but, the prosecution has miserably failed; that the non-production of the documents in Crime No.85 of 2006 and also the non-explanation of the injuries sustained by A-1 in the course of the same transaction would clearly indicate that the prosecution has miserably failed to bring home the guilt of the accused; that these vital aspects would go to the root of the matter; that the trial Court has not at all considered either the factual or legal aspects, and hence they are entitled for acquittal in the hands of this Court. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 7.It is not in controversy that one Devakumar, the son of P.Ws.2 and 3, following an incident that took place at 7.00 A.M. on 20.3.2006, succumbed to the injuries at the spot. Following the inquest made by the Investigating Officer, the dead body was subjected to postmortem by P.W.14, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that Devakumar died of shock and haemorrhage due to the injuries sustained. The place, time and cause of death as put forth by the prosecution were never disputed by the appellants, and hence it could be recorded so. 8.In order to substantiate the charges levelled against the appellants/accused, the prosecution examined P.Ws.1 to 5 as eyewitnesses out of whom P.Ws.1 and 2 were injured witnesses. It is well settled proposition of law that in a given case like this where eyewitnesses happened to be injured witnesses, the Court should not discard their testimony unless and until a strong circumstance is noticed or reason is brought about. In the instant case, admittedly, there was an incident that had taken place at the time and place as put forth by the prosecution. It is also an admitted position that the Sub Inspector of Police rushed to the Government Hospital and recorded two statements one from P.W.1, which is marked as Ex.P1, and the consequent FIR is marked as Ex.P25, and the other from A-1. The Inspector of Police has candidly admitted that on the strength of the complaint given by A-1, who was under treatment at that time, a case came to be registered in Crime No.85 of 2006 under Sections 341 and 324 of IPC. Thus it would be clear that there was an occurrence that had taken place as put forth by the prosecution, in which the prosecution witnesses and the accused were actually involved. It is brought to the notice of the Court by the learned Counsel for the appellants that a case was registered at the instance of A-1 and all the documents in that regard have not been produced; but, the Investigator has categorically pointed out that it is true that there was a case registered under Sections 341 and 324 of IPC, and the case was referred to as mistake of fact. It is also true that the defence at the time of cross-examination of P.W.14, the Doctor, has brought out that A-1 had taken treatment in the hospital, and Ex.D5 is the accident register copy in that regard. A perusal of Ex.D5 would clearly indicate that there was a lacerated injury on the scalp and also abrasions on different parts of the body. The Doctor has given his opinion that the injury found on the skull could have been caused by a knife. It is true that the prosecution has not produced medical evidence regarding the injuries sustained by A-1. But, at the same time, it is pertinent to point out that the injuries were actually described as simple. It is not that in every case, the prosecution is duty bound to explain the injuries that were sustained by the accused. In the case on hand, the injuries were simple. In such circumstances, the prosecution did not think about production of the records. In the considered opinion of the Court, the non-production of the same will not in any way affect the case since the prosecution was able to show the genesis of the occurrence, the way in which the occurrence has taken place and who are all actually injured in the occurrence. At the same time, the Court is able to notice that there https://hcservices.ecourts.gov.in/hcservices/ was a clash in which A-1 also sustained injuries. Apart from that, in the above transaction, it was A-1 who stabbed the deceased to death. Though A-2 and A-3, according to the prosecution, shared common intention, there is nothing to indicate that they had got any common intention to share with because at that time, there was a clash, and P.Ws.1 to 3 along with the deceased went to the field, and further P.W.2 has objected to the accused plowing the land. Hence, there is nothing to call it as common intention to be shared with by the accused. As far as A-2 and A-3 are concerned, they could not be fastened with the liability of common intention along with A-1. But, at the same time, it was A-1 who stabbed the deceased to death, and hence the act of A-1 cannot but be termed only as murder. In such circumstances, the life sentence awarded by the trial Court would meet the ends of justice. 9.As far as A-2 is concerned, he has caused grievous injuries to both P.Ws.1 and 2. But, at the same time, there is nothing to indicate that he has got any intention to cause their death. However, grievous injuries are noticed, and hence A-2 has got to be found guilty under Sec.326 of IPC for two counts and awarding punishment of 3 years Rigorous Imprisonment would meet the ends of justice. 10.As far as A-3 is concerned, he is not attributed with any overt act. A-3 was actually plowing in the field along with the brothers A-1 and A-2. In the absence of any overt act, A-3 merely because of his presence at that time, could not be fastened with liability. A-3 has got to be acquitted of all the charges. 11.Accordingly, the conviction of A-1 under Sec.302 read with 34 of IPC is set aside, and instead, he is convicted under Sec.302 of IPC. The sentence of life imprisonment and fine awarded by the trial Court is confirmed. 12.As regards the conviction and sentence imposed on A-1 under Sec.307 read with 34 IPC, the same are set aside, and instead, he is convicted under Sec.326 of IPC and is directed to undergo three years Rigorous Imprisonment. The sentence already undergone by him in that regard shall be given set off. The fine imposed by the trial Court in that regard will hold good. Sentences are to run concurrently. 13.As regards the conviction and sentence imposed on A-2 under Sections 307 read with 34 IPC and 325 read with 34 IPC, they are set aside, and instead he is convicted under Sec.326 of IPC (two counts) and is directed to suffer three years Rigorous Imprisonment. The fine amount imposed by the trial Court will hold good. The sentence already undergone by him shall be given set off. 14.The conviction and sentence imposed on A-2 under Sec.302 read with 34 IPC are set aside, and he is acquitted of that charge. The fine amount if any paid by him, will be refunded to him. 15.A-3 is acquitted of all the charges levelled against him, and the fine amounts if any paid by him, will be refunded to him. The https://hcservices.ecourts.gov.in/hcservices/ bail bond executed by him shall stand terminated. 16.In the result, C.A.No.456 of 2009 is partly allowed, and C.A.No.466 of 2009 is, accordingly, dismissed. Consequently, connected MPs are closed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Principal District and Sessions Judge Dharmapuri. 2.The Judicial Magistrate Court, Pennagaram. 3.-do- Through The Chief Judicial Magistrate, Dharmapuri @ Krishnagiri. 4.The Superintendent, Central Prison, Vellore. 5.The District Collector, Dharmapuri. 6.The Director General of Police, Mylapore, Chennai. 7.The Inspector of Police Paupparapatti Police Station Paupparapatti Dharmapuri District (Crime No.84 of 2006) 8.The Public Prosecutor High Court, Madras. 9.The Section Officer, Criminal Section, High Court, Madras. +1 cc to Mr.N.Mohideen Basha, Advocate, SR.No.59001 CRL.A.Nos.456 and 466 of 2009 PKB {CO} TP/11.11.2009. https://hcservices.ecourts.gov.in/hcservices/