IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.676 of 2008 1.Thirugnanasambanda Moorthy 2.Anbarasan 3.Tamilarasan .. Appellants/Accused No 1 to 3 vs State rep. By Inspector of Police Kumaratchi Police Station Kumaratchi Crime No.73 of 2006 .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, (Fast Track Court No.I), Chidambaram, made in S.C.No.281 of 2007 dated 18.7.2008. For Appellants : Mr.S.Ashok Kumar Senior Counsel for Mr.C.D.Johnson For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Chidambaram, made in S.C.No.281/2007 whereby the appellants three in number, stood charged, tried and found guilty as follows ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 294(b) IPC Guilty 3 months RI A-1 307 IPC Guilty 10 years RI with a fine of Rs.5000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-2 & A-3 307 r/w 34 IPC Guilty 10 years RI with a fine of Rs.5000/- and default sentence A-2 & A-3 326 IPC Guilty 10 years RI with a fine of Rs.5000/- and default sentence A-2 302 IPC Guilty Life imprisonment along with a fine of Rs.5000/- and default sentence A-1 & A-3 302 r/w 34 IPC Guilty Life imprisonment along with a fine of Rs.5000/- and default sentence 2.Short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is a native of Nalanputhur Village. A-1 is the father of A-2 and A-3. P.W.1 is the brother of the deceased Kalaimani. The houses of the prosecution witnesses and the accused party were situated next to each other. A tamarind tree in the house of the deceased was stretching its branches towards the property of the accused. They were quarreling with each other on that ground. One day, the accused cut the branches. Then the help of P.W.7, the Village Administrative Officer (VAO), was sought for. He came to the spot, measured the property and found that the tamarind tree was within the property of the prosecution witnesses. Thereafter, P.Ws.1 and 2 put a fence. Aggrieved over the same, A-1 gave a complaint to the respondent police station on 31.5.2006. P.Ws.1 and 2 were summoned, but they did not go to the police station. (b) On 1.6.2006 at about 7.00 A.M., A-1 along with his two sons A-2 and A-3 uttered in filthy language. On hearing this, P.W.2 questioned the accused party why should they speak in filthy language after approaching the police. Immediately, A-2 cut P.W.2 on his head. A-1 and A-3 attacked P.W.2 and in that process, A-2 caused the head injury to the deceased by attacking him with an aruval. P.W.1 also witnessed the occurrence. While the crowd gathered, the accused fled away from the place of occurrence. (c) P.W.1 took both the deceased and also the injured P.W.2 to the Government Kamaraj Hospital, Chidambaram, where P.W.20, the Doctor, medically examined both at 8.00 P.M. and 9.00 P.M. Respectively. The wound certificates are marked as Exs.P16 and P17 https://hcservices.ecourts.gov.in/hcservices/ respectively. Thereafter, both were advised to take further treatment at Rajah Muthiah Medical College and Hospital, Annamalai University. Accordingly, both were taken and at about 9.30 P.M. P.W.19, the Doctor, gave treatment to both. Ex.P14 is the copy of the accident register for the deceased and Ex.P15 for P.W.2. Thereafter they were further advised for better treatment at Pondicherry Institute of Medical Sciences, where they were treated by P.Ws.21 and 23, the Doctors. Ex.P19 is the discharge summary for P.W.2 and Ex.P21 is the medical records for the deceased. (d) P.W.27, the Inspector of Police, attached to the respondent police station, on receipt of the intimation from the Government Kamaraj Hospital, Chidambaram, proceeded to Chidambaram and came to know that he was taken to Rajah Muthiah Medical College and Hospital, Annamalai University, and further he was informed that the deceased was taken to Pondicherry Institute of Medical Sciences. Accordingly, he went to Pondicherry at about 6.30 P.M. on 2.6.2006 and recorded the statement of P.W.1, which is marked as Ex.P1. On the strength of the said statement Ex.P1, P.W.27 registered a case in Crime No.73/2006 under Sections 294, 324, 326 and 307 IPC. The printed FIR, Ex.P29 was despatched to the Court. (e) P.W.27 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P30. Then he recovered the material objects including the bloodstained earth and sample earth, under a cover of mahazar, Ex.P4. He received an intimation on 3.6.2006, that Kalaimani who was under treatment, died. Then the case was altered to Sec.302 and other provisions of IPC. Ex.P31, the amended FIR, was despatched to the Court. An inquest was conducted by the Investigator in the presence of witnesses and pachayatdars, and an inquest report, Ex.P32, was prepared. (f) The dead body was subjected to postmortem by P.W.24, the Professor and Head, Department of Forensic Medicine, Pondicherry Institute of Medical Sciences, on a requisition by the Investigator. He has issued a postmortem certificate, Ex.P22, with his opinion that the deceased would appear to have died of cranio-cerebral cut injuries. (g) Pending the investigation, all the accused were arrested on 5.6.2006. They came forward to give confessional statements which were recorded in the presence of two witnesses. The admissible parts are marked as Exs.P33 to P35 respectively. They produced M.Os.1 to 3, knives respectively which were recovered under separate mahazars. They were sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department which brought forth Ex.P12, chemical analyst's report, and Ex.P13, serologist's report. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 27 witnesses and also relied on 36 exhibits and https://hcservices.ecourts.gov.in/hcservices/ 8 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellants guilty and sentenced them to imprisonment as stated above. Hence, this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.S.Ashok Kumar would submit that in the instant case, the prosecution came out with a story that the occurrence has taken place on 1.6.2006 at about 7.00 P.M.; that P.Ws.1 and 2 are shown as eyewitnesses out of whom P.W.2 was an injured witness; that P.W.3, a close relative, has also come to the spot immediately and found P.W.2 and the severely injured Kalaimani, and it was he who accompanied others and took them to the Government Kamaraj Hospital, Chidambaram, and thereafter on advice to Rajah Muthiah Medical College and Hospital, Annamalai University, and then to Pondicherry Institute of Medical Sciences; that though the occurrence is claimed to have taken place at 7.00 P.M. on 1.6.2006, P.W.27 has claimed that he recorded the statement of P.W.1 at Pondicherry Institute of Medical Sciences at about 6.00 P.M. on 2.6.2006, but P.W.7, the VAO, has categorically stated that when he went to the spot by 7.00 P.M. On 1.6.2006, the police was present along with the party; that if really such an occurrence had taken place and the police was also present that time, naturally one would expect a case to be registered immediately; that P.Ws.1 and 3 would claim that they have also accompanied the severely injured namely the deceased and also P.W.2 to the Government Hospital; that Ex.P1 report was given after 24 hours; and that this would be indicative of the false story. 5.Added further the learned Senior Counsel that from the evidence of P.W.7, it would be quite clear that there was a tamarind tree which was stretching its branches towards the house of the accused; that when there was a quarrel, P.W.7 was called, and he went over to the spot and found that the tamarind tree was actually on the divider line, and only on his advice, the prosecution party raised the fence; that the prosecution witnesses were quarreling and thereafter, A-1 was compelled to approach the police on 31.5.2006 when he gave a complaint; that after the receipt of the complaint, the police have summoned; that the prosecution witnesses instead of going to the police station as per the summons, have entered into the house of the accused, damaged the movables and also assaulted the wife of A-1; that this has actually been spoken to by P.W.7, the VAO; that P.W.27, the Investigator, has categorically admitted that a complaint was given by A-1 on the previous day i.e., 31.5.2006, and apart from that, another complaint was given on 1.6.2006, and it was treated as CSR No.67/2006; that he would also further add that it was referred as mistake of fact; that had it been true, what prevented the prosecution from filing the copy of the FIR and also the CSR, etc., remained unknown; that even no documents were marked at all; and that this would be indicative of the fact that it was the https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses who have actually entered into the house of the accused and committed the offences. 6.Added further the learned Senior Counsel that in the instant case, the prosecution has not brought to the notice of the Court the genesis of the occurrence, and thus it did not enable the Court to find out the truth or otherwise of the prosecution case; that P.W.2 though claimed to be an eyewitness, has not spoken the truth, but has given a false version; that even the narration of the incident would clearly indicate that the prosecution witnesses have spoken the falsity; that the trial Court without going to the merits or otherwise of the rival contentions or the defence plea or the non- production of the records in CSR No.67/2006, has entered a judgment of conviction, and hence they are entitled for acquittal in the hands of this Court. 7.Added further the learned Senior Counsel in the second line of argument that even assuming that the factual position put forth by the prosecution that A-2 attacked the deceased with an aruval on the head, and A-1 to A-3 attacked P.W.2, this has actually happened subsequent to the damage of the property and also the assault made on the wife of A-1; that if to be so, they have got sufficient provocation, and they could not have any intention or premeditation; that the same could have been in exercise of their private defence, and it has got to be accepted for recording an order of acquittal by this Court. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that following an incident that took place at about 7.00 P.M. on 1.6.2006, one Kalaimani, the brother of P.W.1, was taken to the Government Kamaraj Hospital, Chidambaram, and thereafter to Rajah Muthiah Medical College and Hospital, Annamalai University, and then to Pondicherry Institute of Medical Science where he died on 3.6.2006. Originally the case was registered under Sections 324, 326 and 307 IPC against all the three accused, and on his death, it was converted to a case of murder. Following the inquest made by P.W.27, the Investigator, the dead body of Kalaimani was subjected to postmortem by P.W.24 who has given a categorical opinion that he died out of cranio-cerebral cut injuries. The fact that Kalaimani died out of homicidal violence was never disputed by the appellants before the trial Court. Thus the trial Court was perfectly correct in recording a finding that Kalaimani died out of homicidal violence. 10.In order to substantiate that at the time of the occurrence, it was A-2 who attacked the deceased with the aruval on the head, and A-1 attacked P.W.2 with a knife, and also A-2 and A-3 attacked P.W.2 with aruvals, the prosecution rested its case on the direct evidence of P.Ws.1 and 2, the eyewitnesses. Out of these witnesses, P.W.2 was an injured witness. It is settled principle of law that in a given case like this when one of the eyewitnesses happened to be an injured https://hcservices.ecourts.gov.in/hcservices/ witness, unless and until a strong circumstance is noticed or reason is brought about, the evidence of that witness cannot be discarded. As could be seen from the available materials and the admitted position also, there was a tamarind tree situated inside the house of P.Ws.1 and 2 stretching its arm towards the house of the accused party. The accused party made an attempt to cut the same. P.W.7, the VAO, made a visit along with P.Ws.8 and 9, his Assistants, who measured the property, and also pacified the situation. Thereafter a fence was raised by the prosecution witnesses. On the contrary, according to the accused, they raised the fence. Further, it is also clear that a complaint was given by the accused party to the respondent police on 31.5.2006, and the prosecution witnesses were actually called; but, they did not go there. On the contrary, the occurrence has taken place on the next day namely 1.6.2006. In the instant case, P.W.7, the VAO, has categorically spoken to the fact that the movable properties of A-1 situated in his house, were damaged, and also the wife of A-1 was attacked. Now the VAO was not a party to the dispute. Though he did not witness the occurrence, when he went to the spot after the occurrence was over, he came to know about the same. He would further add that there was police picketing. When the VAO went over to the spot, it is pertinent to note that the incident in question has already occurred. 11.It is also true that there was a complaint given by A-1 to P.W.27, and CSR number was assigned as 67/2006; but no documents were forthcoming before the Court. From the available materials, it could be seen that since the police complaint was given by A-1 on 31.5.2006, P.Ws.1 and 2 were aggrieved over the same, and instead of going to the police station, they wanted to settle the affair directly with the accused, and in that process, they have actually entered into the house, damaged the property and also assaulted the wife of A-1. In such circumstances, the incident in question has arisen, and thus no intention or premeditation could be attributed. It was an occasion where A-1 and the sons A-2 and A-3 were to exercise their private defence, but it has gone to the extent of A-2 attacking the deceased on his head with the aruval, which has directly caused his death. A-2 and A-3 have attacked P.W.2 on the left hand and thereby caused injuries. A-1 has actually cut P.W.2 on the skull. All would clearly indicate that they have actually acted in exercise of the private defence. Under the circumstances, they have got to be dealt with individually for the respective acts. 12.It is true that there was a delay in giving the FIR; but this Court is able to see that immediately after the occurrence was over, they were taken to the Government Kamaraj Hospital, Chidambaram, and thereafter to Rajah Muthiah Medical College and Hospital, Annamalai University, and then to Pondicherry Institute of Medical Science, and the Doctors who treated them have been examined as referred to above. The accident register copies have also been placed. All would go to show that they have spoken about the place of occurrence, and all three were available in the occurrence spot. All would clearly indicate that though the FIR has come into existence with a delay, by that this Court is unable to agree with the defence plea placed before this Court that it was a false case. In the instant case it https://hcservices.ecourts.gov.in/hcservices/ cannot be stated that the origin of the occurrence is actually suppressed. It is true that the records relating to CSR No.67/2006 were not placed before the Court; but, the evidence available would clearly indicate that aggrieved over the complaint given by the accused party, P.Ws.1 and 2 have actually damaged the movable properties, and also attacked A-1's wife, and following the sudden provocation, they had acted so. As stated above, they have got to be dealt with for the individual act. As far as A-2 was concerned, he has caused injury on the head of the deceased with the aruval, and as a direct consequence, he died. Though it was not with intention, it has got to be pointed out that he should have got the knowledge that causing such injury would cause death. Taking into consideration and in appraisement of the totality of the circumstances, the act of A-2 in respect of the deceased would attract the penal provisions of Sec.304(Pat II) of IPC and awarding 5 years Rigorous Imprisonment would meet the ends of justice. 13.As regards the attack on P.W.2 by A-1 to A-3 is concerned, A- 1 stabbed P.W.2, and all the injuries sustained by him are actually noted in the accident register copies, and the Doctor has also spoken to the same. Hence the case of the prosecution that A-1 to A-3 attacked P.W.2 and caused such injuries has got to be accepted by the Court. Since they have got no intention or shared common intention, they have got to be found guilty under Sec.326 of IPC and awarding punishment of three years Rigorous Imprisonment would meet the ends of justice. 14.Accordingly, the conviction and sentence imposed by the trial Court on A-1 to A-3 under Sec.294(b) IPC are sustained. 15.The conviction and sentence imposed on A-1 under Sec.307 IPC are set aside, and instead he is convicted under Sec.326 IPC and directed to undergo 3 years Rigorous Imprisonment. The fine imposed by the trial Court will hold good. 16.The conviction and sentence imposed on A-2 and A-3 under Sec.307 read with 34 IPC are set aside, and they are acquitted of that charge. The fine amounts if any paid by them will be refunded to them. 17.The conviction of A-2 and A-3 under Sec.326 IPC is confirmed; but the sentence imposed by the trial Court is reduced to three years Rigorous Imprisonment. The fine imposed by the trial Court will hold good. 18.The conviction and sentence imposed on A-2 under Sec.302 IPC are set aside, and instead he is convicted under Sec.304 (Part II) IPC and directed to suffer five years Rigorous Imprisonment. The fine imposed by the trial Court will hold good. 19.The conviction and sentence imposed by the trial Court on A-1 and A-3 under Sec.302 read with 34 IPC are set aside, and they are acquitted of that charge. The fine amounts if any paid by them will be refunded to them. https://hcservices.ecourts.gov.in/hcservices/ 20.The sentences are to run concurrently. The sentence already undergone shall be given set off. 21.Accordingly, with the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Additional District and Sessions Judge Fast Track Court No.I Chidambaram 2.-do- The Principal District and Sessions Judge, Cuddalore. 3. The District Munsif-cum-Judicial Magistrate, Kattumannarkoil, Cuddalore. 4.-do- The Principal District and Sessions Judge, Cuddalore. 5. The Superintendent, Central Prison, Cuddalore. 6.The Inspector of Police Kumaratchi Police Station Kumaratchi Crime No.73 of 2006 7. The Public Prosecutor High Court, Madras. 8. The District Collector, Cuddalore. 9. The Director General of Police, Mylapore, Chennai-4. +1 cc to Mr.C.D.Johnson, Advocate, SR.No.33508 C.A.No.676 of 2008 KSK {CO} TP/30.7.2009. https://hcservices.ecourts.gov.in/hcservices/