IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.7.2009 CORAM THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM and THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL. APPEAL Nos.30 and 31 of 2008 1. Chinnasamy 2. Pullachetty 3. Mayavan 4. Sakthivel 5. Kanniappan 6. Thathukutty @ Chockalingam 7. Krishnan 8. Rajendran 9. Pulavar @ Krishnamoorthy 10. Pulimani @ Mani .. Appellants in C.A.30/2008 1. Gowran 2. Raja 3. Muthu 4. Murugesan 5. Sukkrevedi @ Vedi 6. Sethu 7. Ramamurthy 8. Manjula .. Appellants in C.A.31/2008 Vs. State by the Inspector of Police, Pochampalli Police Station, Krishnagiri District. (Crime No.314/2003) .. Respondent in both Appeals These criminal appeals are preferred under Section 374(2) of Cr.P.C. against the judgment of learned I Additional Sessions Judge, Krishnagiri in S.C.No.294/2004 dated 12.12.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants in Crl.A.30/2008 : Mr.V.Gopinath, Senior counsel for Mr.K.Selvarangan For Appellants in Crl.A.31/2008 : Mr.V.Gopinath, Senior counsel for Mr.John Sathyan For Respondent : Mr.N.R.Elango, 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. 30 and 31 of 2008. Challenge is made to the judgment of the First Additional Sessions Division, Krishnagiri in S.C.No.294/2004 whereby all the appellants along with A9 stood charged, tried and found guilty as follows: First charge: A1, A2, A3 and A9 were found guilty under Section 148 IPC. Second charge: A4 to A8 and A10 to A19 were found guilty under section 147 IPC. Third charge : A1 to A5, A7, A9 and A12 were found guilty under section 302 IPC. Fourth Charge : A6, A8, A10, A11, A13, A14 to A19 were found guilty under section 302 r/w 149 IPC. Fifth charge : A2 and A9 were found guilty under section 326 IPC. Sixth charge : A1, A3 to A8, A10 to A19 were found guilty under section 326 r/w 149 IPC. Seventh charge : A7 and A8 were found guilty under section 324 IPC. Eighth charge : A6 and A9 to A19 were found guilty under section 324 /w 149 IPC. Nineth charge : A4 was found guilty under section 325 IPC Tenth Charge : A5, A10 and A11 were found guilty under section 323 IPC. https://hcservices.ecourts.gov.in/hcservices/ Eleventh charge: A1 to A4, A6 to A9, A12 to A19 were found guilty under section 323 r/w 149 IPC. Twelfth charge : A1 to A4, A6 to A19 were found guilty under section section 325 r/w 149 IPC. Thirteenth charge: A1 was found guilty under section 324 IPC. Fourteenth charge: A2 to A19 were found guilty under section 324 r/w 149 IPC. Fifteenth charge : A5, A10 & A11 were found guilty under section 323 IPC. Sixteenth charge : A1 to A4, A6 to A9 and A12 to A19 were found guilty under section 323 r/w 149 IPC. Seventeenth charge : A2 was found guilty under section 324 IPC. Eighteenth charge : A1, A3 to A19 were found guilty under section 324 r/w 149 IPC. Nineteenth charge : A3 & A4 were found guilty under section 324 IPC Twentieth charge : A1, A2, A5 to A9 were found guilty under section 324 r/w 149 IPC Twenty first charge : A2, A3, A14, A15 and A18 were found guilty under section 323 r/w 34 IPC. Accused Findings Award A1 Guilty u/s 148, 302 & 324 IPC 3 years RI with fine Rs.500/- i/d. 6 months SI; life imprisonment with fine of Rs.100-/- i/d. to undergo 3 years RI and 3 years RI with fine of Rs.500/- i/d. to undergo 6 months SI respectively https://hcservices.ecourts.gov.in/hcservices/ Accused Findings Award A2 Guilty u/s 148, 302, 324 (2 counts), 324 r/w 149, 323 r/w 34 IPC 3 years RI with fine of Rs.500/- i/d. 6 months SI; life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI; 3 years RI for each count with fine of Rs.500/- i/d. to undergo 6 months SI; 3 years RI with fine of Rs.500/- i/d. to undergo 6 months SI; 1 year RI with fine of Rs.1000/- i/d. to undergo 3 months SI respectively A3 Guilty u/s 148, 302, 324, 324 r/w 149, 325 r/w 149 IPC 3 years RI with fine of Rs.500/- i/d. 6 months SI; life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI; 3 years RI with fine of Rs.500/- i/d. to undergo 6 months SI; 3 years RI with fine of Rs.500/- i/d. to undergo 6 months SI and 7 years RI with fine of Rs.1000/- i/d. to undergo 1 year SI respectively A4 Guilty u/s 147, 302, 324, 325, 323 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI; life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI; 3 years RI with fine of Rs.500/- i/d. to undergo 6 months SI; 7 years RI with fine of Rs.1000/- i/d. to undergo 1 year SI and 1 year RI with fine of Rs.1000/- i/d. to undergo 3 months SI respectively A5 Guilty u/s 147, 302 and 325 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI; life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI and 7 years RI with fine of Rs.1000/- i/d. to undergo 1 year SI respectively A6 Guilty u/s 147, 325 r/w 149, 323 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months; 7 years RI with fine of Rs.1000/- i/d. to undergo 1 year months SI and 1 year RI with fine of Rs.1000/- i/d. to undergo 3 months SI respectively A7 Guilty u/s 147, 302 & 324 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI; life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI and 3 years RI with fine of Rs.500/- i/d. to undergo 6 months SI respectively https://hcservices.ecourts.gov.in/hcservices/ Accused Findings Award A8 Guilty u/s 147 & 324 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and 3 years RI with fine of Rs.500/- i/d. to undergo 6 months SI respectively A10 Guilty u/s 147 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI. A11 Guilty u/s 147 and 325 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and 7 years RI with fine of Rs.1000/- i/d. to undergo 1 year SI respectively A12 Guilty u/s 147 & 302 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI respectively A13 Guilty u/s 147 and 302 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI respectively A14 Guilty u/s 147 and 302 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI respectively A15 Guilty u/s 147, 302 r/w 149 and 324 r/w 34 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI; life imprisonment with fine of Rs.1000/- i/d. to undergo 3 years RI and 1 year RI with fine of Rs.1000/- i/d. 3 months SI respectively A16 Guilty u/s 147 and, 323 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and 1 year RI with fine of Rs.1000/- i/d. 3 months SI respectively A17 Guilty u/s 147 and 323 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and 1 year RI with fine of Rs.1000/- i/d. 3 months SI respectively A18 Guilty u/s 147 and 323 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and 1 year RI with fine of Rs.1000/- i/d. 3 months SI respectively A19 Guilty u/s 147 and 323 r/w 149 IPC 2 years RI with fine of Rs.500/- i/d. 3 months SI and 1 year RI with fine of Rs.1000/- i/d. 3 months SI respectively https://hcservices.ecourts.gov.in/hcservices/ Pending trial, A9 died. Hence, the charges levelled against A9 stood abated. 2. The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 is the daughter-in-law of P.W.3, P.W.2 is the father of the deceased Annamalai. P.W.3 is the brother of the deceased. P.W.4 is the grand daughter of P.W.2. P.W.5 is the son of the deceased. P.W.15 is the wife of the deceased. P.W.14 is the paternal uncle of P.W.4 P.W.13 was also a native of the same place. All the accused persons and the above witnesses belongs to Kuriattukarankottai. Four years prior to the occurrence, a Mariamman temple was construction and consecration also took place. The above mentioned prosecution witnesses and also the accused party contributed for the same. After Kumbabishegam , the Karagam was kept in the house of P.W.2. A1 objected for the same. There was a panchayat where it was decided that it should be kept in the house of P.W.2. P.W.2 gave a complaint before Pochampalli Police Station and proceedings under section 107 Cr.P.C. were initiated. The same was amicably solved before the R.D.O that P.W.1 should be allowed to keep the karagam in his house. A1 who objected originally for the karagam to be placed in the house of P.W.2 said that he and his family members should be allowed to use the pathway as a condition, to which course, the opposite party was not amenable. On 10.9.2003 at 3.00 p.m., Vaira/wife of A4 was grazing her cattle in the mango garden of P.W.2. When P.W.3 questioned the same, he was beaten by Vaira , A4 , A7 and A15 and they wanted to go to Police Station. At that time, A4 , A18 and A11 went to the Panchayat President house and they were returning home in a TVS 50. At the same time,the deceased, P.W.2 and P.W.3 who were coming in the opposite direction in another TVS 50 dashed against the TVS 50 of the accused party. Thus, the deceased, P.W.2 and P.W.3 fell down. While they got up, the occurrence has commenced. A4, A11 and A18 went and brought A1 along with the other accused. A1 was armed with a knife. A2 was armed with a stick. A3 was armed with iron rod. At the time of occurrence, A1 made a cut on the left knee of the deceased. A3 made a cut on the right ear of the deceased. A10 beat the deceased on the right wrist with a stick, A2 beat him on the right hand. A11 and A5 beat him on the back. P.W.3 was assaulted by A2, A9, A7 and A8 and A3 attacked the deceased with knife on the left side of the head. A1 beat the deceased with stick on the left side of the head. A9 beat on the right fore head with iron rod, A12 beat him on the right side of the ear, A13 beat him on the right jaw, A4 attacked him with stone on the left wrist, A15 beat him with stone and stick on the back side of the head , A2 beat himon the left shoulder and head with the stone. A7 beat with stone. P.W.4 was attacked by A2, A4, A6, A16, A18 and A19. P.W.1 attacked A2 to A4. After the occurrence, all the accused left the place of occurrence. https://hcservices.ecourts.gov.in/hcservices/ (b) P.W.14 brought a tempo and took the injured to the Government Hospital at Dharmapuri. They were all examined by the doctor. P.W.1 was examined by P.W.8 doctor and the accident register copy was marked as Ex.P5. P.W.2 was examined by P.W.6 doctor and the accident register copy was marked as Ex.P3. P.W.3 was examined by P.W.6 doctor and the accident register copy was marked as Ex.P2. P.W.4 was examined by P.W.7 doctor and the accident register copy was marked as Ex.P4. Equally, on the very day the accused persons A2, A3, A4, A7, A11, A15, A17, A18 and A19 all took treatment in the Government Hospital at Krishnagiri. The accident register copies were marked as Exs.P.16, 13, 12, 14, 8, 10, 7, 11 & 9 respectively. (c) P.W.30- Sub-Inspector, on information, sent P.W.29-Head Constable to Dharmapuri Hospital. Thereafter, P.W.30 proceeded to Krishnagiri Hospital and recorded the statement-Ex.P29 of A11/Murugan. P.W.29 recorded the statement from P.W.1 at 12 noon at Dharmapuri Hospital which was marked as Ex.P1 and returned to the Police Station and handed over the report to P.W.30. P.W.30 who went over to the Dharmapuri Hospital recorded the statement of A11 and he also brought that statement to the Police Station. Two cases were registered, one in Crime No.313/2003 under section 147, 148, 323, 324, 341 and 307 I.P.C. on the strength of statement Ex.P39 given by A11. Equally, P.W.30 registered another case on the report given by P.W.1 in Crime No.314/2003 under Sections 147, 148, 323, 324, 141 and 307 IPC. Ex.P1 is the report of P.W.1. Ex.P40 and Ex.P41 are the printed F.I.R. of Crime No.313 and 314/2004 respectively. (d) P.W.31 Inspector of Police attached to Barur Police Station took up investigation of the case in Crime No.313/2003 He went to the scene of occurrence and prepared the observation mahazar Ex.P27 and also drew a rough sketch Ex.P42 and the photographs were taken. He also seized the stick, ripper, iron rod , reaper, chappals and mudguard of TVS 50, blood stained earth and sample earth under a cover of mahazar in the presence of witnesses. The investigating officer went to Dharmapuri hospital and examined P.W.2, 3, 4 and on 11.9.2003 he went to the Gokulam Hospital at Salem and found the deceased in unconscious stage and examined the wife of the deceased and seized the blood stained pant belonged to the deceased which was produced by P.W.15. He got information about the death of the deceased on 12.9.2003 at 9.00 p.m. He received Ex.P.14 death intimation. Hence, the case was altered to section 302 I.P.C. at 5 'O' clock on 13.9.2003. The amended F.I.R. Ex.P44 was sent to Court. (e) The investigating officer P.W.31 conducted inquest on the dead body of the deceased in the presence of the witnesses and prepared Ex.P45 inquest report and the dead body was subjected to post mortem. P.W.11 doctor attached to Government Hospital, Salem conducted autopsy on the dead body of the deceased Annamalai and gave Ex.P17 post mortem certificate wherein he has opined that the https://hcservices.ecourts.gov.in/hcservices/ deceased would have died due of the head injuries. P.W.26 made requisition to the Judicial Magistrate for the material objects to be sent for Forensic Department for analysis and the same was ordered and Ex.P35 chemical report and two serologist reports viz.,Ex.P.36 and Ex.P37 were received and they were sent to Court. (f) Pending investigation P.W.31 arrested A2 to A4 , A6, A7, A15, A17, A18 and A19 on 13.9.2003 at 9.30 p.m. at Mathur Road. Further, A3 gave the confession statement voluntarily which was recorded by the investigating officer in the presence of witens pursuant to which he seized M.O.5 iron rod and knife under Ex.P47 mahazar. The admissible part of the confession statement of A3 is Ex.P.46. (g) P.W.31 handed over the case records to P.W.32 Inspector of Police. Further investigation was taken up by P.W.32. He examined the witnesses and recorded their statement. Further, he arrested A9, A12, A13, A14 and A16 on 18.9.2003 and all of them were produced before Court. TVS 50 was seized from A5 which was recovered under a cover of mahazar. Request was made to the Motor Vehicle Inspector P.W.12, to examine the vehicle who gave a report Ex.P18. Then, the investigating officer examined the witnesses with reference to Crime No.313 of 2003 and closed the same as a mistake of fact and filed the final report in Crime No.314 of 2003 before the Court. (h) The case was committed to the Court of Sessions. Necessary charges were framed. Pending trial, A9 died. In order to substantiate the charges levelled against the accused, the prosecution examined 32 witnesses and relied on 49 exhibits and relied on 27 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 were examined on the side of the defence but a document,Ex.D1 was marked. The 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, Mr. V.Gopinath, the learned Senior counsel would submit that in the instant case, the prosecution has miserably failed in all aspects to bring home the guilt of the accused. According to the prosecution case, P.Ws. 1 to 4 were actually injured. Equally on the side of the accused, out of 19 accused, 9 accused were injured. Insofar as the prosecution witnesses were concerned, they were all taken to Dharmpuri Hospital. On the other hand, all the injured accused were given treatment at Government Hospital,Krishnagiri.Both parties have given the time of occurrence to their respective doctors as 4.00 p.m.. Thus, it is quite clear that the occurrence has taken https://hcservices.ecourts.gov.in/hcservices/ place at 4.00 p.m. on 10.9.2003. The time of occurrence, though was actually at 4.00 p.m. they made an attempt to make it as 4.30 p.m in the F.I.R and also as 5.00 or 5.30 p.m. at the time of recording evidence. Without any reason, the prosecution witnesses wanted to rope in A1. A1 is a School teacher. He has attended the School till 4.05 p.m. P.Ws. 22 and P.W.23 who were also teachers of the same school where A1 was working have stated that A1 was in the school and there was also special class conducted which also extends upto 5.30 p.m. The attendance register was brought to the Court but the same was not marked through the prosecution but it was marked by the defence side which would clearly indicate that A1 could not have been in the place of occurrence at that time. Therefore, for that purpose, they wanted to shift the time of occurrence. 4. The learned counsel would further add that Ex.P1 was the report given by P.W.1 wherein it is clearly stated the names of A1 to A6 and 25 others and nowhere the names of A7 to A19 were mentioned in the report. It is pertinent to point out, according to the prosecution witnesses, there were two incidents that had taken place prior to the occurrence. A4's wife Varai grazed the cattle in the mango garden of P.W.2 and P.W.3 questioned the same. Immediately, Vaira and some of the accused attacked P.W.3. Thus, they were aggrieved. Equally, when the accused proceeded to the Panchayat President's house and were returning back in a TVS 50, at that time , some of the accused also came in TVS 50 in the opposite direction and dashed against them and hence,there was quarrel between them. These two incidents were spoken by the prosecution witnesses at the time of evidence but nowhere it is mentioned in Ex.P1 report. But these two incidents were averred in Ex.P39 complaint given by A11 to P.W.30 Sub Inspector of Police, on the strength of which, a case in Crime No.313/2008 came to be registered. A reading of Ex.P1 report would indicate as if the occurrence has suddenly taken place. But it was not so which would clearly indicative of the fact that the prosecution witnesses were the aggressors. 5. The learned counsel would further add, in the instant case, A2, A3, A4, A7, A11, A15, A17, A18 and A19 were all injured. They were immediately taken to Krighnagiri Government Hospital. They were all given treatment by the doctors. The accident Register copies were also marked by the prosecution side. It is true those injuries notices were simple injuries but the cut injury were sustained by A11, A15 and A18 as could be seen from the Accident Registrar copies but no explanation was tendered by the prosecution witnesses when the eye witnesses P.Ws. 1 to 4 were examined. These witnesses have clearly deposed that no injury was sustained by the accused party. P.W.13 and P.W.14 were also examined as eye witnesses and through them, the prosecution made an attempt to give feasible explanation that the injuries were sustained by the accused side also at the time when the prosecution witnesses threw stones in order to protect themselves. The learned counsel would further add all these eye https://hcservices.ecourts.gov.in/hcservices/ witnesses have categorically stated that the investigating officer have not examined them in respect of the injuries sustained by the accused. It would be quite clear that the investigation was not properly done in Crime No.313/2003 which was registered on the complaint given by A11 under Ex.P.39. 6. The learned counsel would further add, the occurrence has taken place on the evening hours of 10.9.2003. P.W.14 has stated that his sons were taken by the police on the night of the occurrence. P.W.1 has stated that the police came to the place of occurrence at 8.00 p.m. on the same day. P.W.30 has stated that they went to the place of occurrence at 8.00 a.m. the next morning. However, the case was registered in Crime No.314/2003 at 2.00 p.m. on 11.9.2003 which would clearly indicate that there was inordinate delay and the prosecution never explained how this delay has caused. The learned counsel would further add, in the instant case the names of A7 to A19 were actually not found in Ex.P.1. At the time of investigation, their names were added since they were actually found with injuries. In order to explain the same, their names were added. 7. Added further learned counsel P.W.32 has categorically admitted that A2 to A4, A7, A11, A15, A17 and A19 were injured in the same transaction. If to be so, proper investigation should have been done, but not done so. Added further, P.W.13 has categorically stated that at the time of occurrence there was pelting of stones on both sides. Thus, it is clear that when such an occurrence has taken place, the prosecution was unable to explain how the injuries were sustained. The prosecution witnesses are the aggressors and the delay was not explained. All would go to show that the prosecution has not brought home the guilty of the accused. The investigation was not properly done in Crime No.313 of 2003 and benefit of doubt would go to the accused/appellants and they are entitled to be acquitted in the hands of this Court. 8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that the occurrence had taken place in the evening hours on 10.9.2003. The husband of P.W.15 one Annamalai was severely injured and he was taken along with the injured P.Ws. 1 to 4 to Dharmapuri Government Hospital and P.W.1 to 4 were given treatment along with the deceased. Despite treatment, the deceased died. The case was originally registered on the strength of Ex.P.1 complaint given by P.W.1 in Crime No.314/2003 at about 2.00 p.m. on 11.9.2003. The case which was originally registered for offence under section 307 IPC and other provisions. On receipt of the intimation that Annamlai died, the case was altered to section 302 I.P.C. P.W.32, who took up further investigation. After conduct of inquest on the dead body of Annamalai, the dead body was subjected to https://hcservices.ecourts.gov.in/hcservices/ post mortem. P.W.11 doctor conducted post mortem and gave his opinion in the post mortem certificate Ex.P17 issued by him and also as a witness before the Court that Annamalai died out of shock and haemorrhage due to the injuries sustained by him. The fact that Annamalai died out of homicidal violence was not in