IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.11.2009 CORAM THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM and THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRL. APPEAL Nos.260 & 261 of 2009 1. Paramasivam 2. Balasubramaniam 3. Kumar @ Sasikumar 4. Gowrishankar .. Appellants in C.A.260/2009 (Accused 2-5) 1. Kandasamy Gounder 2. Jothibasu @ Jotheeswaran .. Appellants in C.A.261/2009 (Accused 1 & 6) Vs. State represented by Inspector of Police, Negamam Police Station, Coimbatore District. (Crime No.94 /2007) .. Respondent in both the Appeals These criminal appeals are preferred under Section 374(2) of Cr.P.C. against the judgment of learned Additional District and Sessions Judge, Fast Track Court No.1, Coimbatore made in S.c.No.230 of 2008 dated 12.5.2009. For Appellants in Crl.A.260/2009 : Mr.S.Shanmugavelayutham, Senior counsel for Mr.M.Kamalanathan For Appellants in Crl.A.261/2009 : Mr.AR.L.Sundaresan, Senior counsel for Mr.A.M.Pachianathan Easter https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr.Babu Muthu Meeran, Addl.Public Prosecutor. COMMON JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM,J.) This judgment shall govern these two Crl.A.Nos. 260 and 261 of 2009. Crl.Appeal No.260/2009 was filed by A2 to A5 and Crl.Appeal No.261/2009 was filed by A1 and A6. The appellants stood charged, tried and found guilty by the trial Court as follows. First charge : A1 to A5 were found guilty u/s. 147 and 148 IPC and A6 was found guilty u/s.147 IPC. Second charge : A2 to A5 were found guilty u/s. 302 (2 counts) r/w 149 IPC and A6 was found guilty u/s.302 r/w 149 and 109 IPC. Accused Findings Award A1 to A5 Guilty u/s 147, 148, 302 (2 counts) r/w 149 IPC 1 year RI ; 1 years RI; life imprisonment (2 counts) with fine of Rs.10,000-/- each for each count i/d. to undergo 1 year RI, and 1 year RI respectively. A6 Guilty u/s 147, 302 (2 counts) r/w 149 and 109 IPC 1 year RI and life imprisonment (2 counts) with fine of Rs.5,000-/- each for each count i/d. to undergo 1 year RI respectively 2. The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 is the mother of both the deceased Magudeeswaran and Rathnasamy. P.W.2 is her younger brother of both the deceased. P.W.3 is the wife of the first deceased Magudeeswaran. P.W.1's family were doing agricultural operation in the land which was in possession of P.W.8. The property originally belonged to one Chinnathayee. She sold the same to A1 and his sons. P.W.8 Kalisamy filed a suit before the civil forum at Pollachi as against A1 to A5 and it ended in his favour. Since P.W.1 and his family members were doing agricultural operation in the said land, the accused family had grudge over the same. Thus, they were all in enmical terms. On the date of https://hcservices.ecourts.gov.in/hcservices/ occurrence, that was on 19.3.2007 at about 11 'O' Clock. When P.W.1, P.W.2 an P.W.3 were in the house, P.W.7 informed P.W.1 that both their sons Magudeeswaran and Rathinasamy were being attacked by the accused. On hearing this, P.W.1 rushed to the spot and P.Ws. 2 and 3 also followed her. When P.W.1 went to the spot, she saw A1 armed with stick A2 to A5 armed with aruval, chasing both her sons, first and second deceased and attacking both of them indiscriminately. P.W.1 witnessed the occurrence. P.Ws. 2 and 3, who rushed to the spot following P.W.1, could also see the occurrence. When they raised alarm, the neighbours gathered there. On seeing this, A1 to A5 got into the jeep in which A6 was a driver and they immediately fled away from the place of occurrence in the jeep. Rathnasamy met his death on the spot, while Magudeeswaran was taken to the hospital. (b) An information was sent to the respondent Police Station. When P.W.22, Sub Inspector of Police, was on duty, he received a telephonic message. On receipt of the same, he went to the place of occurrence along with the Head Constables, met P.W.1 and recorded her statement which was marked as Ex.P1 report. Then, he came back to the police station and registered a case in Crime No. 94/2007 under section 302 I.P.C. Thereafter, Ex.P.31, F.I.R. was despatched to Court. (c) P.W.23, Inspector of Police, on receipt of a copy of the F.I.R, Ex.P.31 went to the spot, made an inspection and prepared the Observation Mahazar Ex.P3 and drew a rough sketch, Ex.P.32. He conducted inquest on the dead body of the deceased Rathinam and prepared Ex.P33 inquest report in the presence of witnesses. He got information that Magudeeswaran succumbed to the injuries. He proceeded to the Hospital and conducted inquest on the dead body of deceased Magudeeswaran in the mortuary of Coimbatore Medical College Hospital and prepared inquest report Ex.P.34. Both the dead bodies were subjected to post mortem. (d) P.W.13, doctor attached to the Coimbatore Medical College Hospital, on receipt of the requisition made by the Investigating Officer, conducted autopsy on the dead body of the deceased Rathinam and issued post mortem certificate Ex.P.18 and has given final opinion in Ex.P.19 that the deceased would appear to have died of multiple injuries. P.W.14, doctor attached to the Coimbatore Medical College Hospital, on receipt of the requisition made by the Investigating Officer, conducted autopsy on the dead body of the deceased Magudeeswaran and issued post mortem certificate Ex.P.20 and has given final opinion in Ex.P.21 that the deceased would appear to have died of multiple injuries. (e) Pending investigation, the investigating officer came to know that A2 to A5 surrendered before the III Metropolitan Magistrate, George Town, Chennai. Therefore, he filed an https://hcservices.ecourts.gov.in/hcservices/ application for police custody. The same was ordered. At the time of enquiry, A2 to A5 gave confessional statement and the same was recorded in the presence of witnesses. The admissible part of the confessional statements given by A2 to A5 were marked as Exs.P.4, 5, 7 & 6 respectively. Pursuant to the confessional statement given by the accused, A2 produced shirt and pant which were recovered under a cover of mahazar ExP.12, A3 produced shirt and pant which were recovered under a cover of mahazar, ExP.13, A4 produced shirt and pant which were recovered under a cover of mahazar, ExP.14 and A5 produced shirt and pant which were recovered under a cover of mahazar ExP.15. Thereafter, A2 to A5 produced aruval each which were recovered under a cover of mahazar Exs.P.8 to 11 respectively. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the weapons recovered from the accused/appellants, pursuant to the confessional statement were all subjected to chemical analysis and the reports were received and produced before the Court and the same were marked as Exs.P.24 to 28. On completion of the investigation, the investigating officer filed a final report. (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 23 witnesses and relied on 34 exhibits and 26 material objects. 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 prosecution witnesses. They denied them as false. No witness was examined on the side of the defence but documents viz., Exs.D1 to D3 were marked on the side of the defence. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved its case beyond reasonable doubt and rendered the judgment of conviction and sentence as referred to above. Hence, these appeals at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants A1 & A6, learned senior counsel would submit that in the instant case, the prosecution marched three witnesses as eye witnesses viz., P.Ws.1 to 3. P.W.1 is the mother of both the deceased, P.W.2 is the brother of both the deceased and P.W.3 is the wife of the deceased Magudeeswaran. It is quite clear from Ex.P1 report that all these witnesses had come to the place of occurrence subsequent to the occurrence. Hence, they could not have seen the occurrence at all. As far as P.Ws. 2 and 3 are concerned, Ex.P1 report would indicate that after the occurrence was over, P.Ws. 2 and 3 have gone to the place of occurrence and saw the accused/A1 to A5 running away from the place of occurrence. Therefore, they could not have seen the occurrence at all. As far as P.W.1 is concerned, it is a solitary testimony. In a case of solitary testimony, the Court must look into the corroborative piece of evidence to accept the solitary testimony. https://hcservices.ecourts.gov.in/hcservices/ When the evidence of P.W.1 is looked into, it is thoroughly shaky and it should not have been accepted by the trial Court. According to P.W.1, at the time of occurrence, when she was in her house, a boy who belonged to the same village informed her about the incident. Thereafter, P.W.1 rushed to the spot. 4. According to the learned counsel, the prosecution has developed this case as if P.W.7 was the informant to P.W.1. According to P.W.7, he was a close relative of the deceased but he did not belong to the same village. P.W.7 came from a different place to give invitation to his friends and relatives in that village. In Ex.P1, it was mentioned that a boy who belonged to that place informed to P.W.1 that the accused were quarrelling with her sons/deceased but the name of the boy was not mentioned. Had it been true that the boy was the relative of P.W.1, she would have well mentioned the name of the boy who gave information. Hence, a false statement has been made in Ex.P.1 report as if a boy came and informed P.W.1 that the accused were quarrelling with the deceased. Hence, P.W.1 could have gone to the said place after the occurrence was over and she could not have seen the occurrence at all. P.W.1 has come with a difference version in respect of the overt act of the accused. 5. Added further learned counsel, even the motive part was also not properly explained. It was alleged that the land was actually in possession of P.W.8 and on that ground, he has filed a suit and he has mentioned in the suit that he was in possession of the land and not with others. The motive attributed for committing the crime is that the possession of land was actually with the deceased family members and since the accused party who purchased the land were aggrieved over the possession, they had committed the crime. Hence, P.W.1's evidence is different from the evidence of P.W.8. Added further learned counsel, P.W.1 was actually in the house at the time of occurrence and she could not have gone to the place of occurrence or witnessed the occurrence. So far as the deceased Rathinasamy is concerned, as per the evidence of the prosecution witnesses, he was actually found dead and Magudeeswaran was alive and he was taken to the Hospital. But in the F.I.R., it has been stated that both the deceased died on the spot. All would go to show that P.W.1 had gone to the place of occurrence later. Hence, it casts suspicion over the evidence of P.W.1. But the trial Court has taken an erroneous view and has rendered the judgment of conviction and sentence as referred to above. Hence, the judgment of the trial Court has got to be set aside. 6. The learned Senior counsel appearing for A2 to A5 would submit that in the instant case, the evidence what was adduced by the prosecution was thoroughly lacking in material particulars and benefit of doubt must go to the appellants/accused. The prosecution much relied on the evidence of P.W.1. P.W.1 has categorically stated https://hcservices.ecourts.gov.in/hcservices/ that she went to the scene of occurrence with the other witnesses namely P.Ws. 2 and 3 but from Ex.P1 report it is quite clear that they came to the spot later. If to be so, P.W.1 could not have seen the occurrence at all. The names which were mentioned in F.I.R. are mere surmises which was entertained by P.W.1. 7. Added further learned counsel, before the trial Court, the prosecution had relied on the alleged confessional statement and also the recovery of the material objects. This part of the evidence should have been rejected for two reasons . Firstly, the only witness examined was P.W.5 Village Assistant. According to him, when he received the documents pertaining to the confessional statement and also the recovery of the materials objects, there was no interlineation or any addition. All these interlineations have been deliberately done and hence, those documents should not be given any weight at all. Added further learned counsel, the aruval alleged to have been recovered from A2 to A5 were sent for analysis but the blood group found therein was not tallying. Hence, the scientific evidence is of no use to the prosecution case. 8. As the second line of argument, even as per Ex.P1 report, P.W.1 received information through a boy that there was a quarrel between the accused and the deceased. It is an admitted position that the accused purchased the property from the owner of the land and they were about to take possession of the property. When they were making an attempt to take possession, it was the first deceased and the second deceased who objected to the same. Hence, there was wordy altercation and in a heat of passion, they have acted so. Therefore, the act of the accused would not attract the penal provision of murder. This legal position has got to be taken into consideration by this Court. 9. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 10. It is not in controversy that one Magudeeswaran and Rathinasamy, sons of P.W.1 were done to death in an incident that had taken place on 19.3.2007 at 11.00 a.m. After the registration of the case P.W.23 Investigating Officer, on receipt of a copy of the F.I.R., proceeded to the spot and prepared the observation mahazar and conducted inquest on the dead body of Rathinasamy at the place of occurrence and prepared the inquest report Ex.P.33 and he proceeded to the mortuary of Coimbatore Medical College Hospital and conducted inquest on the dead body of Magudeeswaran and prepared Ex.P34 inquest report. After doing so, both the dead bodies were subjected to post mortem. The post mortem doctors have given opinion in Exs.P.19 and 21 respectively and deposed before the Court that both the deceased died out of shock and haemorrhage due to the injuries https://hcservices.ecourts.gov.in/hcservices/ sustained by them. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court or before this Court. Hence, no impediment is felt by this Court in recording so. 11. In order to substantiate the case of the prosecution that these accused persons armed with deadly weapons, went to the scene of occurrence where the first deceased and second deceased were actually watering the field and attacked them indiscriminately with the weapons and caused their death, the prosecution relied on P.Ws. 1 to 3 as eye witnesses. As rightly pointed out by the learned senior counsel, a very reading of the F.I.R. would indicate that P.W.1, on receipt of the information from a boy, rushed to the spot and witnessed the occurrence. She saw A2 to A5, who chased the deceased and attacked them indiscriminately. The evidence of P.Ws. 2 and 3 and the F.I.R would clearly indicate that P.Ws. 2 and 3 could not have seen the occurrence at all. But at the same time, it is quite clear that P.Ws. 2 and 3 witnessed them running from the place of occurrence and getting into the jeep in which, A6 was a driver. 12. Insofar as the comments made on the evidence of P.W.1 is concerned, the Court is of the considered opinion that it cannot be given much weight at all. It is true P.W.1 got information through a boy who belonged to the same place. The prosecution has examined P.W.7 as the person who gave information to P.W.1 at the time of occurrence but P.W.7 belonged to the nearby village. Hence, P.W.7 could not have been the boy who informed to P.W.1. According to the counsel when Ex.P1 was looked into, the boy who has actually informed P.W.1 has stated that "kFnl!;tud; khkhtplDk;. uj;jpdrhkp khkht[lDk; fe;jrhkpf; ft [z;lh; kw;Wk; mtuJ kfd;fs; gukrptk;. jk;gp ghyRg;gpukzpak;. Fkhh;. bfshpr';fh; Mfpnahh;fs; jfuhW bra;Jf; bfhz;L ,Ug;gjhf vd;dplk; jfty; brhd;dhd;/ " From these words, it is clear that the boy was actually related to P.W.1's family. On information, P.W.1 came out from the house and witnessed the occurrence where the place of occurrence was just 300 feet from her house. The time interval required to reach the place of occurrence from P.W.1's house is only a few minutes. According to P.W.1, on information, she rushed to the spot and found the accused persons chasing both the deceased and attacking them indiscriminately. Despite cross examination in full, the evidence of P.W.1 stood natural and cogent. Hence, it inspired the confidence of the court. The evidence adduced by P.W.1 that the accused persons chased both the deceased and attacked them with aruval and ran away from the place of occurrence in a jeep driven by A6-driver, truthfully corroborates with the evidence of P.Ws. 2 and 3. The ocular testimony of P.W.1 corroborates with the medical opinion canvassed through the post mortem doctor. The doctor has categorically spoken that the injuries would have been caused by a weapon like aruval. https://hcservices.ecourts.gov.in/hcservices/ 13. As far as the confessional statement alleged to have been given by the accused/A2 to A5 when they were in police custody and the weapon of crime are concerned, the Court is unable to agree with the case of the prosecution for the reason that there was interlineations found in those documents and according to the learned counsel those documents are found to be tampered. Even the only witness, P.W.5 who had been examined to that effect is of no use to the prosecution. Further, the weapon of crime, though claimed to be recovered and subjected to analysis, the blood group did not tally. Therefore, neither the confessional statement nor the scientific evidence is in favour of the prosecution. Except these evidence, the evidence of P.Ws.1 to 3 corroborates with the medical evidence which shows that A2 to A5 who had aruval on their hands had attacked both the deceased and caused death. Insofar as A1 is concerned, he was having a stick and no corresponding injury was shown and there is nothing to infer that he had common object with the other accused. As far as A6 was concerned, he was a driver employed by A1 who was in the jeep and he cannot be foisted with any criminal liability. Under such circumstances, in the absence of any common object to share with others, they cannot be found guilty under section 149 IPC. Hence, the evidence available would clearly indicate that A2 to A5 shared the common intention in causing the death of the first deceased and the second deceased. Therefore, the Court is of the opinion that they are liable to be punished only under section 302 r/w 34 IPC and awarding life imprisonment(two counts) would meet the ends of justice. Insofar as A1 and A6 are concerned, they are acquitted of the charges levelled against them. 14. Accordingly, insofar as the appellants/A2 to A5 in Crl.Appeal No.260/2009 are concerned, the conviction and sentence imposed on them by the trial Court under Section 302(2 counts) r/w 149 IPC are modified, instead the appellants/A2 to A5 are convicted under Section 302 (2 counts) r/w 34 IPC and awarded life imprisonment (2 counts) for each count, each. They are acquitted of the other charges levelled against them. The period of sentence already undergone by the appellants/A2 to A5 are ordered to be given set off. The fine amount and the default sentence imposed under section 302 (2 counts) r/w 149 IPC shall be treated as the fine amount and default sentence imposed under section 302 (2 counts) r/w 34 IPC. Inso far as the appellants/A1 and A6 in Crl.Appeal No.261 of 2009 are concerned, the judgment of conviction and sentence imposed on them by the trial Court is set aside and they are acquitted of the charges levelled against them. Therefore, the appellants/A1 and A6 in Crl.AppealNo.261/2009 are directed to be released forthwith unless their presence is required in connection with any other case. The bail bond if any executed by the appellants/A1 and A6, shall stand terminated and the fine amount if any paid, is ordered to be refunded to them. https://hcservices.ecourts.gov.in/hcservices/ 15. In the result, Crl.A.No.260/2009 is dismissed with the above modification in conviction and sentence and Crl.A.No.261/2009 is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The Additional District and Sessions Judge, Fast Track Court No.1, Coimbatore 2. -Do- Through The Principal Sessions Judge, Coimbatore. 3. The Judicial Magistrate No.2, Pollachi 4. -Do- Through The Chief Judicial Magistrate, Coimbatore. 5. The Superintendent, Central Prison, Coimbatore. 6. The Inspector of Police, Negamam Police Station, Coimbatore District. 7. The District Collector, Coimbatore. 8. The Director General of Police, Chennai. 9. The Public Prosecutor, High Court, Chennai. + 2 ccs to Mr.A.M.Packianathan Easter, Advocate (CC SR Nos.60440,60441) + 2 ccs to Mr.M.Kamalanathan, Advocate (CC SR Nos.60439,60442) Crl.Appeal.Nos.260 and 261 of 2009 GV (CO) RH (17.11.09) https://hcservices.ecourts.gov.in/hcservices/