BAIL SLIP That the Appellants/Accused 1 & 3 namely 1). Vadivel and 3). Palanisamy are directed to be released on bail in and by the order of this Court dated 06.10.2005 and made in Crl. M.P. No. 12469 of 2004 in Crl. Appeal.No. 1424 of 2004. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.10.2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1424 of 2004 1. Vadivel 2. Palanismay .. Appellants/A-1 and A-3 Vs. State by Inspector of Police, Modakurichi Police Station, Erode District. (Cr.No.230 of 2003) .. Respondent/Complainant * * * Prayer : Criminal Appeal under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the learned Additional Sessions Judge, Fast Track Court No.I, Erode, in S.C.No.157 of 2004 dated 15.12.2004. * * * For Appellants : Mr.A.K.Kumaraswamy For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor J U D G M E N T K.N.BASHA, J. The appellants are A-1 and A-3 and they have come forward with this appeal challenging their conviction and sentence passed on them by the learned Additional Sessions Judge, Fast Track Court No.I, Erode, in S.C.No.157 of 2004 by the judgment dated 15.12.2004 convicting them for the offence under Section 302 r/w 34 I.P.C. and sentencing them to life https://hcservices.ecourts.gov.in/hcservices/ imprisonment and imposing a fine of Rs.1,000/-, in default, to undergo 6 months rigorous imprisonment and also convicting them for the offence under Section 506 (ii) I.P.C. and sentencing them to undergo two years rigorous imprisonment. 2. There are totally three accused in this case and the second accused also convicted for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment and imposing a fine of Rs.1,000/-, in default, to undergo 6 months rigorous imprisonment apart from convicting him under Section 506 (ii) I.P.C. and sentencing him to undergo two years rigorous imprisonment, but he has not preferred any appeal. 3. The accused in this case faced the trial under the following backdrop : (i) P.W.1 is the brother-in-law of the deceased, Palanisamy ; P.W.2 is the mother of the deceased. P.Ws.1, 2 and the deceased are the residents of Vendipalayam village, Erode. A-1 is also a resident of the same place. P.W.1 was running a business under the name and style as "Valajothi" cables. He has given cable connections to all the houses in that area including the house of A-1. The deceased was supervising the business of P.W.1 and also collecting the subscription amount from the customers. Six months prior to the occurrence, A-1 was not paying the subscription in spite of the repeated demands. Thereafter, the deceased, along with P.W.1 and with the persons working under them, went to the house of A-1 and disconnected the cable connection. A-1 went to the house of the deceased and questioned the conduct of the deceased disconnecting the cable connection to his house and demanded him to restore the connection threatening that he is a big rowdy. On the same day at 3.00 p.m., A-1 along with A-2 and A-3 came to the house of the deceased and threatened him. Again on the same day, while the deceased was watching the T.V., cable connection was disconnected and when enquiry they found that the main cable connection line was cut and the deceased was informed that A-1 only cut the main cable line. Thereafter, the deceased went along with P.W.1 to the house of A-1 to question about his conduct which resulted in a wordy quarrel and the deceased and P.W.1 returned to their house. Again on 31.08.2003 at 3.00 p.m., A-1 to A-3 went to the house of the deceased and threatened the inmates to restore the cable connection and at that time A-1 kicked P.W.2 on her stomach. While the deceased intervened, he was also assaulted by A-1 with a stick and he was threatened by the accused by showing a aruval. Therefore, there were strained feelings between the accused party and the deceased family. (ii) On the fateful day of occurrence, i.e. on 02.09.2003 at 12.00 noon, the deceased, P.Ws.1 and 2 and one Vimala, wife of P.W.1, were in their house. They heard the shouting calling them outside. The deceased opened the door and went outside. At that time, A-1 and A-3 caught hold of the hands of the deceased. A-2 brought an empty colour soda bottle, M.O.1, from a adjacent shop and broken the same by hitting on the floor and thereafter, beat the deceased on his left side chest. The deceased https://hcservices.ecourts.gov.in/hcservices/ fell down. P.Ws.4 and 5 also came there and they were also threatened by A-2 and all the accused ran away from the scene with M.O.1, broken bottle. (iii) P.W.1 took the injured along with P.W.4 in the two wheeler to Erode Government Hospital. At that time, the legs of the deceased scratched on the floor resulting injuries on the legs. (iv) The Doctor, P.W.3, attached to the Government Hospital, Erode, examined the deceased on 02.09.2003 at 1.15 p.m. and he declared that the deceased already died. The Doctor, P.W.3, sent the death intimation, Ex.P.2 to Out-Post Police Station. (v) P.W.1 went to Modakurichi Police Station and gave a report, Ex.P.1 to P.W.12, Head Constable and P.W.12 registered a case in Crime No.230 of 2003 for the offence under Sections 342 and 302 I.P.C. Ex.P.23 is the Express First Information Report and he sent the same to the higher police officials and the Magistrate Court. (vi) P.W.13, Inspector of Police, received the intimation on 02.09.2003 and reached the police station at 2.15 p.m. and received the First Information Report and took up the investigation. He went to the Government Hospital, Erode, and held inquest on the dead body of the deceased from 2.40 p.m. to 4.30 p.m. Ex.P.24 is the inquest report. He sent the body for post-mortem with a requisition. (vii) The Doctor, P.W.3, conducted post-mortem on the dead body of the deceased on 02.09.2003 at 5.20 p.m. and found the following injuries : External Injuries : 1.Lacerated injury 10 X 6 X 8 cm left side front of Chest near the nipple, exposing the underlying on Muscle and bone on probing found to enter pleural cavity. 2.Lacerated injury of 4 X 2 X 2 left foot medial three toes. 3.Lacerated injury of 2 X 2 X 2 cm right big toe. Internal Injuries : 1.Hameo thorax left side about 2 litres blood seen in pleural cavity. 2.Left lung upper lobe punctured with lacerated injury of 4 X 2 X 2 cm in size. 3.Heart punctured and lacerated 4 X 2 X 2 cm size in Venous left ventricle and atrium, Heart empty. There was pericardial blood collection also seen. No fracture ribs lungs right 250 gms left 200 gms. Hyoid intact. Stomach empty. Liver 1100 gms pale Spleen 100 grm Kidney. Each one 150 gfm. Bladder empty. Brain 1000 grm. Spine intact. Ex.P.4 is the Post-Mortem Certificate. The Doctor opined that the deceased would appear to have died of shock and haemorrhage due to https://hcservices.ecourts.gov.in/hcservices/ multiple injury (Heart & Lungs). (viii) P.W.13, in continuation of his investigation, went to the scene of occurrence at 5.00 p.m. and prepared the Observation Mahazar, Ex.P.5 and the rough sketch, Ex.P.25 in the presence of witnesses. He also recovered bloodstained earth, M.O.4, sample earth, M.O.5 and pieces of glass, M.O.6, from the scene in the presence of witnesses under Ex.P.6. He examined P.Ws.2, 5 and others and recorded their statements. On 03.09.2004, on information he arrested A-2 and A-3 at 12.30 noon. In pursuance of the admissible portion of the confession of A-2 under Ex.P.8, he recovered the broken soda bottle, M.O.1 under Ex.P.10 in the presence of P.W.1 and another. He also recovered bloodstained shirt, M.O.7 under Ex.P.11 in the presence of witnesses. Thereafter, he remanded the accused for judicial custody and sent the material objects under Form 95 to the Court. He examined other witnesses and recorded their statements. At 8.00 p.m., he recovered the cable T.V. License from P.W.1 and examined some more witnesses and recorded their statements. He received the Post- Mortem Certificate, Ex.P.4 and thereafter, examined the Doctor, P.W.3 and recorded his statement. He sent the material objects for chemical examination through Court. A-1 surrendered before the Judicial Magistrate, Kangayam, and he was taken into police custody on 16.09.2003. In pursuance of the admissible portion of confession of A-1 under Ex.P.13, he recovered M.O.9 bloodstained shirt under Ex.P.14 in the presence of witnesses. He sent the material objects seized for chemical examination through the Court on 25.09.2003. P.W.13, after receiving the chemical examination reports, Exs.P.19 and 20 and the Serologist report, Ex.P.21 and after completion of the investigation filed the charge sheet against the accused on 13.11.2003 for the offence under Sections 302, 302 r/w 34 I.P.C. 4. The prosecution, in order to bring home the charges against the accused examined P.Ws.1 to 13, filed Exs.P.1 to P.25 besides marking M.Os.1 to 14. 5. The accused were questioned under Section 313 of Cr.P.C. in respect of the incriminating materials appearing against them and each of the accused denied the each and every circumstances put against them as contrary to the facts. A-1 stated the he was attacked by one Radhakrishnan and therefore, he went to a private hospital and returned to his home. At that time, he heard the shouting and came out and saw P.W.1 was quarreling with A-2. A-2 took a stone and assaulted P.W.1 and thereafter, he went for his work. He further stated that he has been falsely implicated in this case. A-2 stated during the course of his examination under Sections 313 of Cr.P.C. that P.W.1 has to give Rs.2,000/- to him and on the date of occurrence he demanded the dues from P.W.1. At that time, P.W.1's brother-in-law, Palanisamy (deceased) brought a knife and attempted to attack him and abused him in a filthy language and thereafter, due to provocation he has taken a stone from the ground and beat the deceased on his head and as he was frightened, he went and surrendered before the Modakurichi Police Station. A-3 stated that he has seen P.W.1 and the deceased quarreling with A-2 and thereafter, he https://hcservices.ecourts.gov.in/hcservices/ left for his work. While he returned back at 1.15 p.m. to his house he was chased by P.W.1 and the friends of the deceased and he ran to his house and bolted inside. Thereafter, Modakurichi Police came and took him in the police van and foisted a false case against him. 6. The defence also examined D.W.1 who was working as a Manager at Nilgiris Dairy Farm Private Limited, where A-3 was working as a helper. It is stated by D.W.1 that on 02.09.2003, A-3 worked in the company till 1.00 p.m. It is also stated by D.W.1 that working hours of A-3 is from 8.00 a.m. to 1.00 p.m. and again from 3.00 p.m. to 8.00 p.m. Ex.D.1 is the News Item published in Malaimalar dated 03.09.2003 about this case, Ex.D.2 is the Attendance Register in respect of A-3 which was maintained by the company in which A-3 was working and Ex.D.3 is a note dated 02.09.2003 to show that A-3 was working on the date of the occurrence, which were marked by the defence. 7. Mr.A.K.Kumarasamy, learned counsel for the appellants contended that the prosecution has miserably failed to prove its case against the accused and made the following submissions : (i) P.Ws.1, 2 and 4, the alleged eye-witnesses are closely related to the deceased, viz., P.W.1 is the brother-in-law of the deceased, P.W.2 is the mother of the deceased and P.W.4 is the uncle of P.W.1 and as such, they are interested witnesses and their evidence is not corroborated by any independent witness. (ii) P.W.5, another eye-witness is a chance witness and further he is closely associated with P.W.1 and the deceased as he has admitted that he used to visit P.W.1 and the deceased frequently and as such he is also an interested witness. (iii) A-1 and A-3 could not have been present at the scene and even as per the admitted version of the prosecution, they are not armed with any weapon. (iv) A-3 was working in the company at the time of occurrence as it was stated by D.W.1, the Manager of the Nilgiris Dairy Farm Private Limited, that A-3 was working in the company on the date of occurrence i.e. on 02.09.2003 till 1.00 p.m. and therefore, he could not have been present at the scene which is said to have taken place at 12.00 noon. (v) The eye-witnesses mentioned in Ex.P.1 viz., one Kandasami and one Rajagopal, were not examined by the prosecution and the said non- examination of such independent witnesses is fatal to the prosecution case. (vi) Without prejudice to his earlier submissions, learned counsel for the appellants contended that A-1 and A-3 could not have been imputed with the sharing of common intention with A-2 by catching hold of the deceased, as they may not be aware that A-2 is going to give the fatal stab. 8. Per contra, learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear, cogent and https://hcservices.ecourts.gov.in/hcservices/ consistent evidence through the eye-witnesses, P.Ws.1, 2, 4 and 5. It is submitted that though P.Ws.1, 2 and 4 are related to the deceased, P.W.5 is an independent witness. It is contended by the learned Additional Public Prosecutor that the evidence of the eye-witnesses does not suffer from any infirmity and all of them have categorically stated that A-1 and A-3 caught hold of the hands of the deceased and A-2 stabbed the deceased on his left side chest with broken empty colour soda bottle, M.O.1 and their evidence is also corroborated by the medical evidence through the Doctor, P.W.3 as the Doctor found corresponding injury in respect of the overt act alleged against A-2. It is further contended by the learned Additional Public Prosecutor that as far as A-1 and A-3 are concerned, their overt act is clearly spoken by all the eye-witnesses and even in Ex.P.1, it is clearly stated that both the accused have caught hold of the hands of the deceased, facilitating A-2 to give the fatal stab on the deceased and therefore, they have shared the common intention of A-2 for causing the fatal injury to the deceased. The learned Additional Public Prosecutor placed reliance on the decision of the Hon'ble Supreme Court in Pulla Reddy V. Staet of A.P. (1993 Crl.L.J.2246). 9. We have given our careful and thoughtful consideration to the rival contentions put forward by either side and also perused the materials available on record and also scanned through the entire evidence and other materials available on record. 10. The prosecution placed reliance on the evidence of the eye- witness, P.Ws.1, 2, 4 and 5, and among them, P.Ws.1, 2 and 4 are closely related to the deceased as P.Ws.1 and 2 are the brother-in-law and the mother of the deceased and P.W.4 is the uncle of P.W.1. As far as P.W.5 is concerned, it is pointed that he is not only a chance witness but also closely associated with P.W.1 and the deceased as he has stated that he used to visit them frequently and as such there is no doubt that all these witnesses are interested witnesses. Merely because of the fact that the above said witnesses are interested witnesses, their evidence cannot be discredited on this score and this Court has to consider their evidence with great care and caution. 11. The motive, according to the prosecution, is that there was a dispute between A-1 and P.W.1 and the deceased as A-1 has not paid subscription of cable connection for a period of six months prior to the occurrence and the deceased, who was assisting P.W.1 by collecting the subscription amount, disconnected the cable connection given to A-1. A-1 to A-3 said to have threatened the deceased to restore the cable connection. Again two days prior to the occurrence, i.e. on 31.08.2003 all the three accused went to the house of the accused and once again threatened him. This motive has been spoken to by P.Ws.1, 2 and 4 and P.W.1 has also mentioned the motive aspect in Ex.P.1 itself. Though the said motive is too flimsy, the same is categorically spoken to by P.Ws.1, 2 and 4 apart from mentioning the same in Ex.P.1 and as such, we are of the view that the prosecution has proved its case in respect of the motive. 12. Regarding the occurrence proper, as already stated, we are having https://hcservices.ecourts.gov.in/hcservices/ the evidence of P.Ws.1, 2, 4 and 5 and all these witnesses in one voice categorically stated about the specific overt act alleged against the accused 1 to 3. It is their categorical version that A-1 and A-3 caught hold of the hands of the deceased and A-2 took an empty colour soda bottle from the adjacent shop and broken the same and with that stabbed the deceased on his left side chest. Even in Ex.P.1, this specific overt act clearly mentioned by P.W.1 in respect of the participation of A-1 to A-3 in the occurrence. We are unable to see any infirmity or inconsistency in the evidence of the eye-witnesses, P.Ws.1, 2, 4 and 5 and their evidence also corroborated by the medical evidence through the Doctor, P.W.3 as the Post-mortem Certificate, Ex.P.4 clearly shows the corresponding injury as per the overt act alleged against A-2 and the deceased died due to multiple injury caused to heart and lungs. Though a vain attempt was made by A-3 by making a plea of alibi, we are of the considered view that A-3 is not able to discharge his burden of proving the plea of alibi. The defence examined D.W.1 to prove the motive in respect of A-3. The evidence of D.W.1, Manager of the Nilgiris Dairy Farm Private Limited merely stated on the basis of certain records that A-3 worked from 8.00 a.m. to 1.00 p.m. on 02.09.2003. He has not stated that he has personally seen A-3 who was working on that day from 8.00 a.m to 1.00 p.m. It is also pertinent to note that even as per records, as spoken by D.W.1 that A-3 had worked in the company only half a day, whereas, working hours of the company according to D.W.1 is from 8.00 a.m. to 1.00 p.m. and again from 3.00 p.m. to 8.00 p.m. The yet another fact revealed through the evidence of D.W.1 is that D.W.1 has admitted in his cross-examination that Ex.D.3, the attendance register in respect of 02.09.2003 does not disclose the time of A-3 attending and leaving the company on that day. Therefore, the evidence of D.W.3 does not inspire our confidence and we have no hesitation to hold that A-3 failed to discharge his burden of proving the alibi. It is seen that the evidence of the eye-witnesses, P.Ws.1, 2, 4 and 5 is also corroborated by the medical evidence. Therefore, it is crystal clear that the deceased died due to homicidal violence and that too at the hands of A-1 to A-3 as A-1 and A-3 caught hold of the deceased and A-2 stabbed the deceased on his left side chest with M.O.1, broken empty colour soda bottle. 13. Now, the remaining question to be decided by us is only in respect of the nature of offence committed by A-2 and whether A-1 and A-3 have shared the common intention of A-2 causing the fatal injury to the deceased. 14. Before proceeding to consider the above said question, it is to be stated that the case of A-1 and A-3 cannot be considered in isolation to the case of A-2 and more particularly in order to find out whether A-1 and A-3 shared the common intention of A-2 causing the fatal injury on the deceased. Therefore, we have to assess and analyze the entire evidence regarding the overt acts alleged against each of the accused including A- 2, though he has not preferred any appeal challenging his conviction and sentence. 15. It is pertinent to note that A-2 had also defended his case https://hcservices.ecourts.gov.in/hcservices/ throughout the trial and while he was questioned under Section 313 of Cr.P.C., A-2 came forward with the version that while he demanded the amount of Rs.2,000/- from P.W.1, which was due to him on the date of occurrence, P.W.1 and the deceased came to attack him and as such he has taken a stone from the ground and beat the deceased on his head. It is further stated by A-2 that he was abused by the deceased with a filthy language and as such he was provoked and beat the deceased. Therefore, A- 2 has given some explanation for causing injury to the deceased and he has stated that he has caused such injury only due to the conduct of P.W.1 and the deceased as the deceased scolded him in a filthy language and as a result of provocation he beat the deceased. 16. It is seen from the evidence of P.Ws.1, 2 and 4 that there was a dispute between A-1 and P.W.1 and the deceased in respect of the disconnection of cable connection, and on 31.08.2003 all the three accused threatened the deceased. In Ex.P.1 also it is specifically mentioned that all the three accused, viz., A-1 to A-3 threatened the deceased six months prior to the occurrence and thereafter, again on 31.08.2003 two days prior to the occurrence they threatened the deceased to restore the cable connection. It is the categorical version of P.Ws.1, 2, 4 and 5 that on the fateful day of occurrence, i.e., on 02.09.2003 at 12.00 noon all the three accused, viz., A-1 to A-3 came together to the house of the deceased and shouted and when the deceased opened the door and came out A- 1 and A-3 caught hold of the hands of the deceased and A-2 took an empty colour soda bottle from the nearby shop and broken the same by hitting on the floor and stabbed the deceased on his left side chest. Therefore, all the three accused, A-1 to A-3, came together even on earlier occasion as well as on the date of occurrence and quarreled with the deceased and threatened him to restore the cable connection. The evidence of the independent witness, P.W.5, discloses that wordy quarrel was going on for about 10 minutes between P.W.1 and the deceased on the one side and the accused on the other side and they have abused each other in a filthy language. It is relevant to note that at the time of occurrence, all the three accused came to the house of the deceased without any weapon and only after the quarrel that too the same went on for 10 minutes and after exchange of abuse in a filthy language, A-2 suddenly took an empty colour soda bottle, M.O.1, from the adjacent shop and broken the same and stabbed the deceased on his left side chest, while A-1 and A-3 caught hold of the hands of the deceased. The said shop is only 10 feet away, according to P.W.5, from the place of occurrence, i.e. the house of the deceased. Therefore, the entire occurrence took place after a wordy quarrel and then only suddenly A-2 said to have fetched the said colour soda bottle from the adjacent shop and stabbed the deceased. It is also pertinent to note that A-2 has given only a single stab, according to the witnesses and he has not stabbed further. Therefore, in view of the above said sequence of events and the manner of attack, we have no hesitation to hold that A-2 could not have stabbed the deceased with the intention to cause death or by causing such injury as he is likely to cause death. But he has caused such injury only with the knowledge that it was likely to cause death. Therefore, the act of A-2