IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.4.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.848 of 2009 Sellappan @ Pavadai Rajan .. Petitioner Vs. State rep. by the Station House Officer, Grand Bazar Police Station, Puducherry. (Crime No.284 of 2004) .. Respondent Criminal Revision Case against the judgment dated 21.8.2009 in Crl.A.No.6 of 2007 on the file of the Principal Sessions Court, Puducherry, against the order dated 20.3.2007 in S.C.No.68 of 2005 on the file of the Assistant Sessions-cum-Chief Judicial Magistrate's Court, Puducherry. For petitioner: Mr.S.Sundaresan For respondent: Mr.M.R.Thangavel, Govt. Advocate (Puducherry) ORDER The Crl.R.C. is preferred against the judgment dated 21.8.2009 in Crl.A.No.6 of 2007 on the file of the Principal Sessions Court, Puducherry, whereby the revision petitioner/A1 was convicted for the offence under Section 323 read with 34 IPC and sentenced to undergo one year rigorous imprisonment and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for two months, by modifying the order dated 20.3.2007 in S.C.No.68 of 2005 on the file of the Assistant Sessions-cum-Chief Judicial Magistrate's Court, Puducherry, whereby the revision petitioner/A1 was convicted for the offence under Section 304 (Part 2) IPC and sentenced to undergo three years' rigorous imprisonment and to pay fine of Rs.500/-, in default, to undergo two months' simple imprisonment. 2. The skeleton of the prosecution case is as follows: The deceased Natarajan is the friend of P.W.1 Diwakaran. The deceased Natarajan's father is P.W.5 Rajendran. The deceased Natarajan is doing the CD business in the Sunday Market. On the fateful day, i.e. on 4.7.2004 at about 8.30 p.m., when P.W.1 https://hcservices.ecourts.gov.in/hcservices/ Diwakaran and his friend, the deceased Natarajan, were standing opposite to Balaji Hotel and chatting with each other, the revision petitioner/A1 and the other three accused, A-2 to A-4, were purchasing CD from the shop of the deceased Natarajan, which was conducted by P.W.2 George. When they bargained the price from Rs.20/- to Rs.15/-, P.W.2 George who was in-charge of the CD shop, intimated the fact that his owner, the deceased Natarajan, was standing outside and he was the person to decide the price of the CD. Then, A-1 to A-4 rushed there and they questioned P.W.1 as to why they were starring at them. At that time, P.W.1 stated that he has not starred at them and immediately, the deceased Natarajan picked up quarrel and due to the wordy altercation, the accused pushed down the deceased, and the deceased fell down on the scooter and then to the ground, and sustained head injury. P.W.1 was also assaulted by the accused. P.W.1 went to intimate the same to the brother of the deceased Natarajan, to intimate the same, who was also doing CD business. In the meanwhile, P.W.2 George and P.W.7 Jalal, who were working in the shop of the deceased Natarajan, took him to hospital. The Doctor declared him as dead. P.W.3 Pandu who is the neighbour, is not the eye-witness. P.W.1 Diwakaran went to the Police Station and gave a complaint before P.W.11 Sub-Inspector of Police at 10.30 p.m., and he received Ex.P-1 complaint and registered a case in Cr.No.284 of 2004 for the offences under Sections 304, 323 read with 34 IPC and prepared the printed FIR Ex.P-11. P.W.11 Sub-Inspector of Police sent P.W.1 for treatment on the day of occurrence, i.e. on 4.7.2004. P.W.9 Dr.Kannan treated him and issued Ex.P-6 wound certificate. He examined P.W.1 and went to the place of occurrence. He conducted inquest on the very next day from 9 am to 11 am and prepared the inquest report Ex.P-12. He gave requisition to P.W.6 Dr.Balaraman, who on receipt of the request, conducted autopsy on the body of the deceased and issued Ex.P-2 post-mortem certificate and sent the viscera for medical analysis and the report of the same is Ex.P-3. After receipt of the viscera report, P.W.6 Doctor issued final opinion in Ex.P-4. He also arrested A1 and his confession was recorded in the presence of P.W.8 Manivannan. He also arrested the other accused. After the arrest of the accused, they were remanded for judicial custody. The investigating agency gave requisition Ex.P- 7 for conducting the identification parade. P.W.10 Judicial Magistrate received the requisition and issued Ex.P-10, the proceedings to make arrangement at Central Jail for conducting identification parade. The witnesses were summoned under Ex.P-9. After following the procedures, the learned Judicial Magistrate P.W.10 conducted the identification parade and the proceedings have been marked as Ex.P-8. After receipt of the proceedings of the identification parade, the investigating officer concluded his investigation and filed the charge sheet against A-1 to A-4 for the offences under Sections 304, 323 read with 34 IPC. 3. The trial Court, after considering the evidence of P.Ws.1 to 11 and marking Exs.P-1 to P-12, acquitted A-2 to A-4 from the https://hcservices.ecourts.gov.in/hcservices/ offences under Sections 304 and 323 read with 34 IPC and also acquitted A-1 from the offence under Section 323 read with 34 IPC and convicted the revision petitioner/A1 for the offence under Section 304 (Part 2) IPC and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for two months, against which, the revision petitioner/A1 preferred appeal and the first appellate Court modified the conviction and sentence and convicted the revision petitioner/A1 for the offence under Section 323 read with 34 IPC and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for two months, against which, the present Crl.R.C. is preferred by the revision petitioner/A1. 4. Challenging the conviction and sentence passed by the first appellate Court, learned counsel appearing for the revision petitioner/A1 submitted that in the FIR, no name has been mentioned, even though as per the evidence of P.W.1 Diwakaran and P.W.4 Razack, A-1 is belonging to P.W.4's native place and before P.W.1 has given the complaint, he was aware of the name of the accused, but no name has been mentioned in the FIR. So, the revision petitioner/A-1 was falsely implicated later. He further stated that P.W.4 is having enmity between A-1, who is alleged to be the native of his place. So, the evidence of P.W.4 cannot be looked into. He further submitted that the identification parade conducted by P.W.10 Magistrate is not in accordance with law, because, during the identification parade, the accused intimated that they were arrested three days before and the photographs have been taken and that has been shown to the witnesses to identify the accused during the identification parade. He further stated that except the evidence of P.Ws.1 and 4, no other independent witness was examined and P.W.4 is also not the eye- witness and only P.W.1 is the eye-witness. P.W.1 has not stated that this revision petitioner/A1 alone pushed down the deceased, which resulted in the fatal injury. As per the FIR as well as in the evidence, all the four accused made wordy altercation and then pushed down the deceased, which resulted in the death of the deceased. In such circumstances, no specific overt act has been attributed against the revision petitioner/A1. The trial Court and the first appellate Court committed error in convicting the accused for the offence under Section 304 (Part 2) IPC and under Section 323 read with 34 IPC, respectively. He further submitted that as per the evidence of P.W.1, first, the deceased alone picked up quarrel with the accused and he attempted to assault them and hence, using private defence, out of sudden provocation, the accused pushed down the deceased. If at all, the revision petitioner/accused could be convicted under Section 334 IPC and not under Section 323 read with 34 IPC and prayed for setting aside the conviction and sentence passed by both the Courts below. 5. Repudiating the said contentions, learned Government Advocate (Pondicherry) submitted that it is true that there is no motive for https://hcservices.ecourts.gov.in/hcservices/ commission of murder, but it occurred due to sudden provocation, which resulted in the death of the deceased. So, the trial Court convicted the revision petitioner/A1 for the offence under Section 304 (Part 2) IPC, but however, the first appellate Court considered the fact that the deceased has not sustained external injury, but only brain haemorrhage, which resulted in his death and the injury is simple in nature and therefore, the first appellate Court convicted the revision petitioner/A1 for the offence under Section 323 read with 34 IPC. The first appellate Court considered all the aspects in proper perspective and came to the correct conclusion and hence, the conviction and sentence does not warrant any interference and prayed for dismissal of the Crl.R.C. 6. Considering the rival submissions made on either side, as well as the materials available on record, firstly, this Court has to consider the evidence of P.W.1. Admittedly, P.W.1 alone is the eye- witness. P.W.2 is the salesman in the shop of the deceased Natarajan. P.W.2 has not deposed about the occurrence. P.W.3 Pandu, the neighbour, has not deposed about the occurrence. P.W.4 Razack in his evidence stated that when he was approaching P.W.1 Diwakaran, he witnessed three persons running away from the place and they were chased by P.W.1 and when he made enquiry, he came to know that they pushed down the deceased Natarajan and at that time, he proclaimed that he noted the person who belongs to his native place and then only, P.W.1 Diwakaran went to the brother of the deceased Natarajan, where he was doing CD business. In such circumstances, the star witnesses are P.Ws.1 and 4. 7. While perusing the evidence of P.W.4, who in his evidence, did not state the name of the accused. Furthermore, admittedly, when P.W.1 was chasing the accused, he never mentioned the name of A-1. During investigation only, he identified A-1 to P.W.11 Sub-Inspector of Police. Even though P.W.8 Manivannan was examined to prove the confession, it is not relevant, because, no material object has been involved in this case. Furthermore, it is true that the case has been registered against the four unknown persons. In the FIR, it is not stated that A-1 was one of the persons belonging to the village of P.W.4. But, in Exs.P-1 complaint, it was specifically mentioned that four unknown male persons. In Ex.P-1 complaint and Ex.P-11 FIR, P.W.1 Diwakaran has not referred to P.W.4 Razack. So, it has clearly proved that P.W.4 was inducted later. 8. It is well settled principle of law that if a case has been registered against unknown persons, during investigation, the accused could be fixed and merely because of non-mentioning of the accused in the FIR, it will not be fatal to the case of the prosecution. So, the argument advanced by learned counsel appearing for the revision petitioner/A-1 that before giving the complaint, P.Ws.1 and 4 were not aware of A-1, and so they have not mentioned the name of A-1, does not merit acceptance. https://hcservices.ecourts.gov.in/hcservices/ 9. Regarding the conduct of identification parade, while considering the evidence of P.W.10 Magistrate and Exs.P-7 and P-10, it is seen that A-1 has not given any complaint before the Magistrate regarding the identification of the accused. Only A-2 to A-4 made complaint stating that they were arrested three days before, and the photographs have been taken. Already A-2 to A-4 were acquitted even by the trial Court and no appeal has been preferred by the State. Hence, the argument of the learned counsel appearing for the revision petitioner/A1, that the identification parade has not been conducted in accordance with law, does not merit acceptance. 10. Now, this Court has to decide as to whether the first appellate Court is correct in holding that the revision petitioner/A1 is guilty of the offence under Section 323 read with 34 IPC. Learned counsel appearing for the revision petitioner/A1 mainly focussed his argument upon the ingredients of Section 34 IPC. Admittedly, there is no common intention, because, the accused went to the CD shop for purchase of CD, where PW.2 George was doing business and at the time of negotiation, since P.W.2 stated the price of the CD at Rs.20/-, the accused bargained the price for Rs.15/- and they have not purchased the CD. They have returned back and they witnessed P.W.1 and the deceased starring at them and at that time, they questioned P.W.1 as to why he is starring at them. At that time, the deceased alone has been abusing in filthy language and that has been mentioned in the FIR. In the complaint, it was specifically mentioned as follows: @//////mg;nghJ ahnuh ehY ngh; eluh$d; nfrl; filapy; CD nfrl; tpiy ngrptpl;L nfrl; th';fhky; eh';fs; epd;wpUe;j ,lj;jpdUnf cs;s CD nfrl; filf;F te;jth;fs; vd;idg; ghh;j;J vd;dlh v';fisg; ghh;j;J Kiwf;fpwha; vd;W nfl;lhh;fs;/ ehd; c';fisg; ghh;j;J Kiwf;ftpy;iy vd;W brhd;ndd;/ gf;fj;jpype;j ez;gd; eluh$d; mth;fis mrp';fkhf jpl;odhh;/ mjdhy; me;j ehY ngUk; eluh$id ifahy; moj;J js;sptpl;lhh;fs;/ mjdhy; eluh$d; mUfpy; epd;wpUe;j !;Tl;llh;nky; tpGe;J mjpypUe;J ky;yhf;fhf fPnH jiuapy; tpGe;jhh;//////@ The above contents of the complaint shows that first, the deceased alone has abused the accused, and all the four pushed down the deceased, which resulted in his death. 11. At this juncture, it is appropriate to consider Exs.P-3 and P-4. In the viscera report Ex.P-3, it was mentioned that at the time of occurrence, the deceased consumed alcohol. In Ex.P-4 final opinion, it was mentioned that the death was due to the injury sustained on his head injury and the individual has consumed alcohol. But while P.W.6 Dr.Balaraman was in the witness box, he stated that, "if a person having consumed liquor falls to the road such kind of injuries is also possible". In this regard, it is appropriate on the https://hcservices.ecourts.gov.in/hcservices/ part of this Court to consider Ex.P-2 post-mortem report. On perusing the same, it is seen that he has not sustained any blood injury on his head. The Doctor in the post-mortem report mentioned only two partially healed old arbasions, over the left and right knee. During the internal examination, it was found that there was brain haemorrhage. In such circumstances, it is unsafe to conclude that because of the pushing by the accused, the deceased sustained such internal head injury, which resulted in the death of the deceased. The first appellate Court committed error in coming to the conclusion that the accused is guilty of the offence under Section 323 read with 34 IPC and the first appellate Court would have either confirmed the conviction passed by the trial Court under Section 304 (Part 2) IPC, or would have acquitted the accused. But, the first appellate Court modified the conviction from Section 304 (Part 2) IPC to Section 323 read with 34 IPC. 12. Even if it is assumed that all the four accused pushed down the deceased, in the result, he sustained injuries, which resulted in his death, the criminal liability could not be fastened upon the single accused. There is no specific evidence that the revision petitioner/A1 alone pushed down the deceased and he fell down on the scooter and subsequently fell on the ground, which led to internal brain haemorrhage. So, the prosecution has miserably failed to prove that the revision petitioner/A1 alone caused such internal head injury to the deceased which resulted in his death, beyond reasonable doubt. So, the revision petitioner/A1 is entitled to be given the benefit of doubt. The trial Court and the first appellate Court have not considered the fact that there is no specific overt act against the revision petitioner/A1. Hence, I am forced to differ with the findings given by both the Courts below. The prosecution has not proved that the present revision petitioner/A1 is guilty of the offence, either under Section 304 (Part 2) IPC, or under Section 323 read with 34 IPC, beyond reasonable doubt. Hence, the revision petitioner/A1 is entitled to be given the benefit of doubt. 13. In fine: (a) The Crl.R.C. is allowed. (b) The conviction and sentence passed by the first appellate Court are set aside. (c) The revision petitioner/A1 is acquitted from the charges. (d) The bail bond, if any executed by the revision petitioner/A1 shall stand cancelled. https://hcservices.ecourts.gov.in/hcservices/ (e) The fine amount, if paid by the revision petitioner/A1, shall be refunded. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar cs To 1. The Principal Sessions Judge, Puducherry. 2. The Assistant Sessions Judge-cum-Chief Judicial Magistrate, Puducherry. 3. The Station House Officer, Grand Bazar Police Station, Puducherry. (Crime No.284 of 2004) 4. The Public Prosecutor (Puducherry), High Court, Madras. 5.The Record Keeper, Criminal Section, High Court, Madras. 1 cc to Spl.Government Pleader, (Pondy) Sr.No.30734 1 cc to Mr.S.Sundaresan, Advocate, Sr.No.29233 Crl.R.C.No.848 of 2009 TEJ {CO} TP/12.5.2011. https://hcservices.ecourts.gov.in/hcservices/