BAIL SLIP --- The Appellant/Accused Viz. Ramu, S/o.Natarajan (A-1), Tamilarasan, S/o.Natarajan (A-2) Lakshmanan, S/o.Natarajan (A-3) Sathiya Murugan, S/o.Anjapuli (A-5) Sathyaraj, S/o.Perumal (A-6) Manimaran, S/o.Ponnurangan (A-11) were directed to be released on bail as per order of this Court dated 27.6.2008 and made in Crl.M.P.No.1/2008 in Crl.A.NO.407/2008. ---- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.,CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN CRL.A.NO.407 OF 2008 1.Ramu 2.Tamilarasan 3.Lakshmanan 4.Sathiya Murugan ]5.Sathyaraj 6.Manimaran ...Appellants/Accused 1 to 3,5,6 and 11 Vs. State by Inspector of Police, Reddy Chavadi Police Station, Cuddalore District. (Crime No.257 of 2005) ...Respondent/Complainant These criminal appeal has been preferred under Section 374 (2) Cr.P.C. against the conviction and sentence imposed in S.C.No.246 of 2007 dated 21.5.2008 on the file of Additional District and Sessions Judge (Fast Track Court No.2), Cuddalore. For Appellants : Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran For Respondent : Mr.N.R.Elango, Additional Public Prosecutor - - - - https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the order of the Additional District and Sessions Judge (Fast Track Court No.2),Cuddalore made in S.C.NO.246 OF 2007 whereby the appellants shown as A1,2,3,5,6 and 11 were charged, tried and found guilty as follows: A1 to A3, 5, 6 and 11 were convicted for the offence under Section 148 IPC and sentenced to undergo two years rigorous imprisonment (each); A6 and A11 convicted under Section 324 IPC and sentenced to undergo one year rigorous imprisonment with a fine of Rs.1000/- in default to undergo five years and A2,3,5,6 and 11 were convicted under Section 302 read with 149 IPC and sentenced to undergo life imprisonment with a fine of Rs.25,000/- in default to undergo five years. 2. The short facts necessary for the disposal of this appeal can be stated as follows: a. PW1 is the husband of P.W.8. On 18.12.2005 at about 12 noon, A6 and A10 came in a Motor-bike and at that time, one Rajendran came in TVS 50 in the opposite direction and they dashed against each other in front of the house of PW8. They fell on the fencing which is situated on the house of PW1. PW8, the wife of PW1 who was standing by the side scolded A6. Then, she informed about the said incident to PW1, who in turn, informed the same to Nattamai. PW1 informed to his wife PsW8 that it is natural accident occur on the road and not to precipitate it. b. On 19.12.2005 at about 12 Noon, A6 scolded PW8 in front of the Arul Bunk Shop and at that time, the deceased came there and questioned A6 why he was scolding PW8. All the accused beat the deceased. PW1 came to his house at 1.00 p.m, the deceased informed him about the accused beating him. Then , PW1 went to the bunk shop where A6 was present and asked A6 why he was using abusive language, that too, he belonged to the same village and community. Thereafter, all the accused came to PW1's house and searched for PW1, but PW1 was not available. Therefore, they left the place. PW1 returned to the house. The deceased informed him that the accused came in search of PW1. Then PW1, deceased and others went to A2's house and asked why they were searching for PW1. At that time A1 uttering the words that they were resisting for the development of the party and so saying he beat the deceased on his head with iron pipe. A2 attacked with iron pipe on the on the left fore hand of the deceased. A3 beat the deceased on the left hand wrist. A4 beat one Durai, the brother of https://hcservices.ecourts.gov.in/hcservices/ the deceased on his left fingers. A5 beat on the left thigh of the deceased. A6 attacked PW2 on the left shoulder. Then, all the accused fled away from the scene of occurrence, The deceased was taken to Cuddalore Government Hospital, where PW11, on medical examination, declared dead Then he sent death intimation Ex.P.19. c. Subsequently, PW1 went to Reddychavadi Police Station at about 1 a.m. on 20.12.2005 and gave Ex.P1 report to PW.15, Sub Inspector of Police, on the strength of which he registered a case in Crime No.257 of 2005 under Sections 147,148,324 and 302 IPC. EX.P.21 is printed FIR. d. On 20.12.2005 at 7 a.m., the Investigating Officer proceeded to the scene of occurrence, made an inspection and drew rough sketch EX.P.11. Then he prepared Observation mahazar. He also recovered bloodstained earth and sample earth. On 20.12.2005 at about 9.30 a.m., he proceeded to the Government Hospital, Cuddalore and conducted inquest on the dead body of the deceased, in the presence of witnesses and prepared inquest report Ex.P.23. Then, he sent a requisition for conducting postmortem. e. PW14, doctor attached to the Government Hospital, Cuddalore conducted postmortem on the dead body of the deceased and issued Ex.P.20, postmortem report where he narrated the injuries caused externally and internally and has opined that the death has occurred due to shock and hemorrhage due to injury to brain. f. On 19.12.2005, at abut 9.50 p.m., P. W.2 was taken by P.W.1 to the Government Hospital,Cuddalore. PW11 doctor who gave treatment to P.W.2 and issued EX.P.16 Accident Register. On the same day, at about 10 p.m., he gave treatment to one Durai and issued Ex.P.17 Accident Register . On 21.12.2005 at about 8.00 a.m., A1 to A5 and A13 were arrested. The confession statement of A1 was recorded and the admissible part is marked as Ex.P.4. Based on the admissible portion, M.O.1 iron pipe was recovered under the cover of Mahazar Ex.P.5. Based on the confession statement of A2, EX.P.6 is the admissible portion and M.O.6 was recovered under the cover of Mahazar EX.P.7. Based on the confession statement of A4, Ex.P.10 is the admissible portion and M.O.7 was recovered under the cover of Mahazar Ex.P.11. Based on the confession statement of A5, Ex.P.12 is the admissible portion and M.O.5 was recovered under the cover of mahazar. EX.P.13. On27.12.2005, A6,A8,A10 and A11 were arrested and the confession statement of A6, the admissible portion is Ex.P.6, M.O.9 was recovered under the cover of mahazar EX.P.15. On 9.2.2006, the investigator 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 15 witnesses https://hcservices.ecourts.gov.in/hcservices/ and also relied on 28 exhibits and 12 M.Os. 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 evidence of prosecution witnesses. The accused flatly denied the same as false. On the side of defence, one Anandan was examined as DW1 and one Senthilvinayagam was examined as DW2. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution had proved the case beyond reasonable doubt in respect of accused 1,2,3,5,6 and 11 and found them guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of accused 1,2,3,5,6 and 11/appellants herein. 4.Advancing arguments on behalf of the appellants, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case. The prosecution though levelled charges against 14 accused, on some evidence, the prosecution found the appellants guilty and acquitted other accused. In the instant case, Pws.1 to 3 were shown as injured witnesses. Though they claimed to be injured witnesses, no medical evidence was adduced in that regard. It is highly doubtful whether they were present at the time of occurrence and no medical certificate has been produced to that effect and hence the prosecution has miserably failed in its attempt. It casts doubt whether A1 and A3 could have been present in the place of occurrence at all. They have claimed that PW2 was eye witness to the occurrence but he was the injured witness. PW11 doctor attached to the Government Hospital, Cuddalore examined PW2 and Accident Register in that regard is EX.P.16. Though Pws.1 to 4 claimed to be eye witnesses, as their evidence would speak about the discrepancy of the aspects, it would discredit their evidence. Learned counsel would further add that the prosecution came forward with the case that PW2 was actually injured, a perusal of the charges levelled against him would clearly indicative of the fact that no charge was actually framed by the trial Court in respect of the injuries alleged to have been caused to PW2 by the accused. The learned counsel would further add that, in the instant case, as per the prosecution case, on the date of occurrence, Pws,1,2,3, one Durai along with the deceased went to the house of A2. PW2 has categorically admitted that except himself, all were armed with weapons in their hand. This would be indicative of the fact that all the witnesses along with the deceased went to the house of A2 , that too, they were armed with weapons and they can be called as aggressors. When they went over there, it was the deceased who questioned the second accused and the occurrence had taken place and it is pertinent to point out that there is nothing indicative of the fact that while the deceased along with PW2 went to the house of A2's house and it was the deceased who questioned the second accused and the second accused replied and at that time all the accused have acted so. It is pertinent to point out that the witnesses Pws.1,3 and the deceased were actually armed with weapons https://hcservices.ecourts.gov.in/hcservices/ and thus the case of the prosecution that the accused had any common intention or object or at any circumstances to murder anybody cannot even be inferred. Under such circumstances, even if the Court believes the prosecution case as to the factual position that A1,2,3 and 5 actually attacked the deceased and they have acted without any common intention or object, their individual act has to be taken into account. They have got to be dealt with individually. Insofar as A6 and A11 were concerned, they did not cause any injury at all. Under such circumstances, they are entitled for acquittal. The prosecution had not proved the case beyond reasonable doubt. 5. Learned counsel would further add that insofar as the recovery, the prosecution would claim that all the weapons were recovered from the accused, pursuant to the confession statement given by them voluntarily, but this part of the evidence cannot be true, in view of the evidence of PW2 at the time of cross examination . According to PW2, all the accused persons threw weapons on the ground and fled away from the scene of occurrence, if to be so, all the weapons should have been recovered from the place of occurrence by the Investigating Officer, at the time when he inspected the scene of occurrence. Per contra, in order to strengthen the case, if possible, all the documents and records should be produced pertaining to confession and recovery of Mos, but it has not been done so and hence that part of the evidence should have been rejected by the trial Court. The trial Court has taken an erroneous view and hence it is a fit case where the judgment of the trial Court has got to be set aside. 6. The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the dead body of Sadasivam, following an incident that had taken place on 19.12.2005 at about 6 p.m. was taken to Government Hospital,Cuddalore where he declared dead. Following the inquest made by the P.W.15, Investigating Officer, the dead body was subjected to post-mortem by P.W.14 doctor, He has deposed before the Court and that postmortem certificate also marked before the Court and that part of the evidence adduced by the prosecution would clearly indicative of the fact that Sadasivam died of homicidal violence. This fact was also never disputed by the appellants before the trial court and hence it has got to be recorded so. 8. In order to substantiate the case that Sadasivam was actually attacked by the accused party, the prosecution examined four witnesses. As per the records, the prosecution had examined five eye witnesses, but Durai died pending investigation. Hence, he could not be treated as witness. Out of five witnesses, according to the https://hcservices.ecourts.gov.in/hcservices/ prosecution, Pws.1,2 and 3 are injured witnesses. Though Pws1 and 3 have given evidence that they were actually attacked at the time of occurrence and at the time of investigation, no injury was shown in the medical opinion nor any evidence was produced and thus it would be quite clear that the charges levelled against the accused in respect of the injuries sustained by Pws.1 and 3 could not be brought forth. Had it been true that they had not witnessed the occurrence, the narration of the occurrence by Pws1 and 3 would clearly indicative of the fact that they have witnessed the occurrence. Insofar as PW2, equally he was also sustained injury at the time of occurrence. PW11 doctor attached to the Government Hospital, Cuddalore examined PW2 and Accident Register in that regard is EX.P.16 was correct. But, at the same time, the trial Court on perusal of the charges levelled has not specifically framed any charge in respect of injuries sustained by PW2 and hence that part of the order cannot be sustained. Initially, on the previous day, PW8 scolded PW6 and following the same, next day, on the date of occurrence i.e. On 19.12.2005 at 12 noon, it was PW6 who abused in filthy language against PW8, who in turn, informed her husband PW1 and at that time, the deceased has questioned A6 and following the same, the occurrence had taken place. It is pertinent to point out that even as per the prosecution, Pws.1,2 and 3 along with the deceased went to the house of A2 to question as to why they are searching for PW1 and others. At this juncture, from the evidence of PW2, it is quite clear that he had not only admitted that he accompanied others to the house of A2 , but also they were all armed with weapons except himself. This would be indicative of the fact that when they went over to the house of A2, carrying arms in their hands and that would mean that they have not only questioned the accused persons, but actually something could have been happened further. At this juncture it is pertinent to point out that according to the prosecution witness, they went to the house of A2 and A2 replied and at that time, all the other accused persons came from the backside of the house with weapons and attacked them. Thus, it would be quite clear that when the occurrence had taken place, they could not have been acted with the common object causing the death of the deceased, but due to the circumstances, they have acted so. Now,the Court is unable to see any material to indicate that they have acted in furtherance of the common object to went over to house of deceased and hence Section 149 IPC cannot be attracted, but at the same time from the medical evidence and from the evidence of all the eye witnesses, it would be quite clear that insofar as A1 is concerned, he attacked the deceased with iron pipe on his head and as per the medical opinion canvassed, it was a fatal injury and it has caused the death of the said Sadasivam, while A2, A3 and A5 attacked the deceased on the left fore hand, left hand wrist and left thigh respectively. As per the medical opinion canvassed, it would be evident from the Accident Register that the injuries sustained by the deceased were simple in nature and thus they were not termed as https://hcservices.ecourts.gov.in/hcservices/ fatal. Though A6 and A11 were armed, nothing would indicate that they attacked or caused any injury on the deceased. Though they are found to be overt act, the death was caused by the fatal injury caused by A1 and the act of A1 attacking the deceased with iron pipe on the head causing instantaneous death, which in the opinion of the court, though not caused with any intention to cause death, it can be well stated that he had the intention to cause such a fatal injury which in the ordinary course of action will cause death. Thus, it would be sufficient to define as murder. Under such circumstances, A1 has got to be found guilty under Section 302 IPC and he has got to be awarded life imprisonment and the same is confirmed. A2,3,5 are concerned, they have caused simple injury on the deceased with iron pipe and hence the act of the accused2,3 and 5 would attract the penal provision of Section 324 IPC and awarding punishment of 2 years R.I. would meet the ends of justice. So far as A6 andA11 are concerned, they got to be acquitted and accordingly they are acquitted. 9. Accordingly, the judgment of conviction and sentence of the trial Court is modified. (i) The 1st appellant/A1 is convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment and he is acquitted of other charges levelled against him; The fine imposed on the first accused has got to be confirmed and the same is sustained. The period of sentence already undergone by the first appellant is ordered to be given set off. (ii)Insofar as, Appellants 2,3 and 5/A2,3 and 5 are concerned, they are convicted for the offence under Section 324 IPC and sentenced to undergo two years rigorous imprisonment and they are acquitted of the other charges levelled against them. The fine amount if paid shall be refunded to them. (iii) Insofar as A6 and A11 are concerned, they are acquitted of all the charges levelled against them. Accused 6 and 11 are directed to be released forthwith unless their presence is required in connection with any other case. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar VJY https://hcservices.ecourts.gov.in/hcservices/ To 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, (FAST TRACK COURT NO.2) CUDDALORE. 2. THE INSPECTOR OF POLICE REDDY CHAVADI POLICE STATION CUDDALORE DISTRICT 3. THE ADDITIONAL PUBLIC PROSECUTOR, HIGH COURT, MADRAS 4. THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, (FAST TRACK COURT-2) CUDDALORE. 5. THE JUDICIAL MAGISTRATE NO.1, CUDDALORE 6. THE CHIEF JUDICIAL MAGISTRATE, CUDDALORE. 7. THE SUPERINTENDENT, CENTRAL PRISON, CUDDALORE. +1 cc to M/s.R.Vijaya, Advocate, SR.No.33686 +1 cc to Mr.L.Mahendran, Advocate, SR.No.33522 CRL.A.NO.407 OF 2008 PKB {CO} TP/18.8.2009. https://hcservices.ecourts.gov.in/hcservices/