IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05/03/2004 CORAM THE HONOURABLE MR. JUSTICE P. SHANMUGAM AND THE HONOURABLE MR. JUSTICE M. THANIKACHALAM CRIMINAL APPEAL NO.185 OF 1996 1.Mohan@ Mohandas 2.Siruthan @ Mohandas 3.Moorthy @ Natesan 4.Murugesan 5.Kesavan 6.Arasu@ Arjunan ..Appellants -Vs- State by Inspector of Police Mudaliarpet Police Station Pondicherry ..Respondents Criminal Appeal is filed against the judgment dated 18.1.1996 made in S.C.No.46/1995 of the Principal Sessions Judge, Pondicherry. !For appellants 1,3,4 & 6: Mr.R.Sankara Subbu For Appellants 2 & 5 : Mr. N.G.L. Sankaran ^For respondent : Mr.A.P. Suryaprakasam Addl. Public Prosecutor, Pondicherry :J U D G M E N T M.THAKACHALAM,J. The challenge under this Criminal Appeal is the conviction and sentence imposed upon the accused by the Principal Sessions Judge, Pondicherry in S.C.No.46/95 for various offences. 2. The Inspector of Police, Mudaliarpet Police Division, Pondicherry had filed a final report against all the accused/appellants, seeking appropriate punishments under Sections 148, 302 and 324 I.P.C. alleging that on 7.10.94 at about 6.30. p.m., all the accused formed themselves as unlawful assembly, with the common object of committing riot and in pursuance of the same they have wrongfuly restrained some of the prosecution witnesses, as well as one Kuppan; that with an intention to commit murder they have assaulted Kuppan @ Kuppusamy with deadly weapons, thereby causing his death and that they have also inflicted injuries to some of the prosecution witnesses, in this view they should be dealt with accordingly. 3. The learned Principal Sessions Judge satisfying himself to frame charges, originally charged all the accused under Sections 148, 302 and 324 I.P.C (three counts). Later on revised charges were framed against A 1 to A 6 under Section 148 and 341 I.P.C., in addition framing a charge under Section 302 I.P.C. against A 1, A 2, A 5 and A 6, Further a charge against A 3 and A 4 was framed under Section 302 read with 149 I.P.C. For the grievous injuries caused to one Abimannan, a charge under Section 326 I.P.C. is framed against A3, A4, A6 and roping A1, A2, A5 under Section 3 26 read with 149 I.P.C. In addition for causing injury to one Subramaniam, against A3, A4 and A6 charge under Section 324 I.P.C.is framed whereas against A1, A2 and A5 a charge under Section 324 read with 1 49 is framed. For the injuries said to have been caused to Muthulakshmi, against A1 a charge is framed under Section 323 I.P.C. whereas A 2 to A6 were charged under Section 323 read with 149 I.P.C. In the incident one Anitha also sustained injuries, for which A4 was directed to face the charge under Section 323, whereas A1, A2, A3, A5 and A6 were directed to face the charge under Section 323 read with 149 I.P.C. One Prakash also sustained injuries, along which A 3 was directed to face the charge under Section 323 I.P.C whereas other accused were directed to face the charge, under Section 323 read with 149 I.P.C. 4. All the accused have denied their involvement and in this view they pleaded not guilty, thereby compelling the prosecution to march as many as 21 witnesses armed with 71 documents and 28 material objects. To cast cloud upon the prosecution evidence thereby to create doubt, on behalf of the accused, through prosecution witnesses, D 1 to D 4 have been exhibited. 5. The learned Principal Sessions Judge, while evaluating the above materials and evidencing value, had come to the conclusion that no offence is made out against the accused, under Section 148 I.P.C. and consequently, he came to the conclusion, that the read with offence, under Section 149 I.P.C.is not sustainable, whereas he came to the conclusion, that the accused are liable to be dealt with, the substantial offence read with Section 34 I.P.C. In this view, he sentenced A 1 to A 6 to undergo 3 months simple imprisonment, for the offence under Sections 341 read with 34 I.P.C. The accused/appellants were directed to suffer life imprisosnment, for the proved offence under Sections 302 read with 34 I.P.C., in addition imposing a fine of Rs.100/- each, in default, to undergo rigorous imprisonsment for one month. For the offence under Sections 326 read with 34 I.P.C., all the accused have been directed to suffer 10 years rigorous imprisonment plus payment of a sum of Rs.50/- as fine each, in default, to undergo rigorous imprisonment, for one month. All the accused were sentenced, each, to undergo rigorous imprisonment for one year under Sections 324 read with 34 I.P.C. and for the offence under Sections 323 read with 34 I.P.C. they were directed to suffer simple imprisonment, for six months further ordering that the sencente of imprisonment to run concurrently, and the default sentence for the non-payment of fine, consecutively. 6. The facts leading to the conviction as disclosed by the prosecution witnesses in brief: (a) Tmt Muthulakshmi, P.W.6 is the wife of one Kuppusamy whose sons are Ashok(P.W.1) and Prakash (P.W.8) and their daughter is Anitha (P.W.7). The accused/appellants and the abovesaid persons are the residents of Thengaithittu Village, Pondicherry State. Subramanian (P.W.2.), Mannan @ Abimannan(P.W.3) are related to Kuppusamy. Thiru Kuppusamy (P.W.4), Thiru Thangalan (P.W.5) are the brothers of A 6 and A 4 respectively. Thiru Kuppusamy husband of P.W.6 was working as a Watchman in a coconut grove. On 5.10.94 during night hours, the accused/ appellants had stolen some tender coconuts from the said coconut thope. Kuppusamy knowing the same questioned A 1 about his conduct on 6.10 .94 at 5.00 p.m.and slapped A 1 also, on his left cheek, which caused annoyance to him and his relatives. (b) The mother of A 1, in order to have redress for the act done by Kuppusamy, lodged a complaint to Mudaliarpet police station resulting the police summoning Kuppusamy and his relatives. The police warned both the parties, not to indulge in any assault, directing them to meet the Sub-Inspector, on the next day. (c) On 7.10.94 at about 6.00p.m. Kuppusamy, Abimannan, Subramanian and Thangalan went to the police station, where they were warned by the Sub-Inspector of Police. Thereafter, while P.Ws.1,2 and 3 were returning in cycles, they were waylaid and wrongfully restrained by A 1 to A 6, armed with weapons near the junction of the road leading to graveyard. A 1 to A 3 pushed down the cycle driven by Abimannan in which the deceased whereas was a pillion rider, A 4 and A 5 pushed the cycle driven by Subramanian. Unexpectedly, and all of a sudden, the accused assaulted Kuppusamy, P.W.2 and P.W.3 with deadly weapons, causing various kinds of injuries. However, P.W.1 escaped from the assault. After the brutal attack, all the accused ran away from the scene of crime, towards Thengaithittu village. Kuppusamy who sustained multiple injuries died in the spot itself. (d) P.W.6, the wife of Kuppusamy, her son and daughter were standing in front of the house at about 6.45 p.m., on 7.10.94. The accused who had assaulted Kuppusamy, P.Ws. 2 and 3, went to the house of P.W.6 , where A 1 beat P.W.6, A 3 beat P.W.8 and A 4 twisted the left hand of P.W.7, causing fracture. After assaulting P.Ws.6 to 8, all the accused ran towards Naicker's thope, declaring " Fg;gid btl;or; rhfoj;J tpl;n;lhk;/@ (e) P.W.1 returned to the scene of crime after the accused ran away and noticed his father, in a pool of blood dead, in addition P.Ws.2 and 3 with severe bodily injuries. Immediately, he informed the police, who rushed to the scene of crime, admitted Kuppusamy and other injured for treatment by taking them, to the Government Hospital, Pondicherry. (f) At about 8.30.p.m., P.W.1 narrated the entire incident to the Sub-Inspector of Police-P.W.20 who recorded Ex.P 1. On the basis of Ex.P.1, a case was registered against all the accused in Crime No.81/94 . On receipt of the copy of the first information report, P.W.21 took the case for investigation, reached the scene of occurrence, along with P.W.20 where he had prepared the observation mahazar as well as sketch in addition to recovery of certain material objects, such as blood stained earth etc. On 7.10.94 itself P.W.21 conducted inquest over the body of Kuppusamy and prepared the inquest report. (g) The doctors who have examined the injured issued wound certificates giving opinion about the nature of injuries sustained by P.W.2, 3 , 7 and 8. The doctor who conducted autopsy also opined that Kuppusamy died due to shock and haemorrhage caused by multiple injuries. In continuation of the investigation P.W.No.21 arrested the accused, examined them, obtained disclosure statements. On that basis some of the material objects have also been recovered. The material objects recovered were sent for chemical analysis which brought in, the serologist report as well as the chemical report. Examining the injured witnesses, other witnesses and completing the investigation, P.W.21 came to the conclusion that the accused are the cause for the death of Kuppusamy and they are the persons who had caused injuries to P.Ws.2,3,7 and 8. In this way, seeking appropriate punishments for the acts committed by the accused, a final report was filed leading to trial, ending in conviction, as aforementioned which is under challenge before us. 7. Heard the learned Counsel appearing for the appellants 1, 3 4 & 6 , Mr. Sankara Subbu and Mr. N.G.L. Sankaran for the appellants 2 & 5 and the learned Additional Public Prosecutor, Pondicherry. 8. The learned Counsel for the appellants, attempted to assail the conviction and sentence imposed by the trial Court on the following grounds, namely, that; (i)The alleged motive has not been proved by the prosecution; (ii)There is irreconciliable contradiction even in the oral evidence of the alleged eyewitnesses, which could not be relied on sasfely to sustain the convition; (iii)There is no clinching evidence indicating which injury was caused by which accused, in order to fix the liability of the accused individually; (iv)In the absence of a specific charge under Section 34 I.P.C. read with main offence conviction slabed by the trial Court without giving an opportunity to the accused is against law; (v)That the oral evidence of P.Ws.1 to 3 is not in confirmity with the complaint given by P.W.1, thereby creating natural, reasonable doubt, to which the accused are entitled to the benefit of the same; (vi)At any event, no case is made out against A3, A4 and A5 for the offence under Section 302 readwith 34 I.P.C., and (vii)The act said to have been committed by the other accused, if at all, would attract only Section 304 I.P.C. and certainly not Section 302 I.P.C. In this view, the learned counsel appearing for the appellants made a strenuous argument, for acquittal of all the accused, or acquittal of some of the accused, or modification of the sentence also, as an alternative submission. 9. The learned Public Prosecutor while opposing the above arguments, submits that all the accused due to previous enmity formed themselves as unlawful assembly members with an intention to commit murder and in that process they have brutally attacked the deceased Kuppusamy, as well as the persons accompanied him namely P.Ws.2 and 3, which should be viewed very seriously, as did by the trial Court, since the acts of the accused have been proved by the convincing oral evidence of P.Ws.1,2,3,6 and 8, not warranting any interference by this Court. It is the further submission of the learned Public Prosecutor, that the trial Court elaborately discussing the evidence available on record, consistent with law, had come to the conclusion regarding the guilt of the accused, which deserves approval by this Court and the result should be the dismissal of the appeal. 10. The contention of the learned counsel for the appellants that the prosecution has failed to prove the motive part leading to the incident on 7.10.94 at about 6.30 p.m.is unacceptable to us because of the overwhelming evidence available on record that too confirmed by the defence documents also. The deceased Kuppusamy was working as Watchman in a coconut thope is spoken by his son P.W.1, not under challenge. It is the case of the prosecution that on 5.10.94 during night hours, the accused had stolen away the tender coconuts, from the coconut thope in which Kuppan @ Kuppusamy was working as Watchman which was questioned by him on 6.10.1994 at about 5 p.m. leading to slapping of A 1 by the deceased. This part of the case spoken by P.W.1 is convincingly supported by P.W.2, who is an injured witness. It seems as spoken by the Inspector of Police, the deceased Kuppusamy had involved in some other case including a murder case. A1's mother by name Amudha apprehending danger from Kuppusamy preferred a complaint to the police on 6.10.94 at about 10.00 p.m.as evidenced by Ex.D3. In pursuance of the complaint given by A1's mother, as proved by D4, Kuppan (deceased), Ashok-P.W.1, Amavasai, Arumugam were summoned to the police station at about 11.00 p.m. and inquired. Both the parties were warned by the HC 391, and the matter was placed before the SubInspector of Police, for further action, if any. Thus, it is proved by the oral evidence of P.Ws.1 and 2 as well as by D3 and D4, that there was a dispute between the deceased and A1 and the dispute must be with reference to the stealing of tender coconuts, from the thope which was under the control of the deceased Kuppan though the actual mode of offence or the theft of tender coconuts is not speficically mentioned in D 3 and D 4. The complaint was given by A 1's mother, who was accused by the deceased, for committing theft of tender coconuts. Therefore, we cannot expect from the mother of A 1, that fact would be disclosed in the complaint. Probably, only in this way suppressing the act committed by A1, his mother had preferred a complaint, accusing the deceased Kuppusamy, Ashok etc. Because of this reason alone, nothing is said about the theft of tender coconuts in Exs. D 3 and D 4. The attempt made by the learned counsel for the appellants, taking advantage of this fact, that the prosecution has failed to prove the motive part, namely, theft of tender coconuts, on the previous day is not acceptable to us. Whether it is a theft of tender coconut, or otherwise, there was a dispute between the deceased and A 1 and his friends is more or less admitted, and accepting the oral evidence of P. Ws.1 and 2 we conclude that there was a strong motive for A 1 and his friends to attack the deceased Kuppusamy since he had assaulted a 1, previously, i.e.on 6.10.94. 11. It is the specific case of the prosecution, that while P.Ws. 1 to 3 and Kuppan were returning from the police station, the incident had taken place, near a road junction leading to graveyard. If we should accept this case, it must be shown that the deceased and injured were returning from the police station. According to the submission of the learned counsel for the appellants, that the previous dispute between the parties were over and closed on 6.10.94 itself at about 11.00 p.m. and thereafter, there was no chance, for the deceased and his men to go to the police station on 7.10.94 which should follow, the alleged assault by the accused must be incorrect. By going through the oral evidence of P.Ws.1,2 and 3 and the recitals found in Exs. D 3 and D 4 we are unable to affix our approval, to the abovesaid contention. It is not the case of the police, as seen from Exs. D3 and D4 that the dispute between the accused and the deceased were finally closed. On the other hand, Ex.D4 says, that the matter has to be placed before the Sub-Inspector of Police, probably for further action. This Sub-Inspector has been examined as P.W.20. Only through P.W.2 0, during the cross-examination Exs.D3 and D4 were exhibited. It is not the case of the accused, that when P.W.20 was in the box, a competent person to speak about the disposal of the complaint given by A 1 's mother, that the matter came to an end on 6.10.94 itself and thereafter police had not summoned neither Kuppan nor his men on 7.10.94. In the absence of any such case considering the fact that the matter was placed before the Sub-Inspector of Police for further action, accepting the oral evidence of P.Ws.1,2 and 3, we are constrained to conclude that the deceased and his men might have gone to the police station, on 7.10.94, as directed by the police, is supported by Ex.P 1, which came into existence, immediately after the incident, without any loss of time. 12. In Ex.P1, P.W.1 has stated that in pursuance of the complaint given by A1's mother, the father had been to police station and thereafter on 7.10.94, he along with others had been to Mudaliarpet informed Muruganandham about the police case and were returning at about 8.30 .p.m. The time appears to be incorrect. Accordance with this statement alone, P.W.1 has stated that on 7.10.94 at about 6.00 p.m. he had been to police station, along with his father, Abimannan, Susbramanian and Thangalan. It is the further case of P.W.1, that the police have warned them, not to indulge in any such act, to assault and while returning the incident had taken place. It is clarified further from P.W.1, how they had been to the police station on 7.10.94, to have some recommendations, by using the influence of one Muruganandham. P.W.2, though failed to give detailed account, how they were returning from the police station, during the examination in chief, it is elicited during cross-examination, in detail. He has stated, on 7.10.94 about 6.30.p.m. the Sub-Inspector advised them not to indulge in any more assault, and thereafter, they were proceeding in the cycle. Nothing is elicited to discredit the oral testimony of P.Ws.1 and 2, which is well supported by Ex.P.l also regarding their return from the police station when the incident had taken place. Therefore, the contention of the learned counsel for the appellants, that the story of the prosecution that the incident had taken place, while the deceased and others were returning is unacceptable; is not acceptable to us in view of the overwhelming evidence, pointed out supra. In this view of the matter, we come to the cconclusion that the incident might have taken place while the deceased, P.Ws.1 to 3, were returning from the polices station and that is why immediately the police had also rushed to the spot, on information and quickly, acted in apprehending the accused, preceded by investigation. Thus, fixing the motive and concluding that there is every reason to believe that the accused might have attacked the deceased, we have to see whether the accused had actually attacked the deceased, P.Ws.2,3, 6 and 8. 13. Subramanian-P.W.2 was admitted in the Government Hospital on 7.1 0.94 at about 8.30 p.m. He reported to the police, that he was assaulted by known six persons on 7.10.94 around 7.30.p.m. near Mudaliarpet Sudukadu Pathai thereby indicating the involvement of six accused/ appellants. The doctor-P.W.16 who attended P.W.2 noted the following injuries as seen from Ex.P.22 and they are (1)Cut injury Left forearm about 10 cm X 4 cm x 2 cm x semicircular cut injury (2)Linear abrasison in the left scapular area about 15 cm in length extending upto left shoulder. The injuries sustained by P.W.2, is simple in nature and it could have been caused by deadly weapons. Therefore, if this injury was caused by any of the accused they should be convicted under Section 324 I.P.C. 14. The doctor N.L.Thandapani (P.W.15) admitted Abimannan (P.W.3) for treatment on 7.10.94 at about 7.30.p.m. On examination he had noticed the following injuries: 'Incised wounds over the scalp ( 10 cm x 3 cm x 2 cm), Left forearm (frontal region) (4 cm x 3 cm x 2 cm ), Right shouler 4cm x 3 cm x 2 cm )' as indicated in Ex.P.21. Considering the Expert's Report which disclosed fracture of frontal bone, the doctor opined that P.W.3 sustained grievous injuriy. The nature of injury though attempted to be dislodged, we find no reason to ignore the finding, given by the Expesrt namely P.W.15. Accepting the oral evidence of P.W.15, we conclude that P.W.3 sustained grievous injuries, in the incident narrated in the final report. 15. Abimannan has reported to the doctor, as if some unknown persons had assaulted him near Thengaithittu at about 7.00 p.m.on 7.10.94. Taking advantage of the same, the learned counsel for the appellants contended that the oral evidence of P.W.3 could not be accepted and acted upon, since he had stated to the doctor, as if he was assaulted by unknown persons. It is not known under what circumstances, the doctor had written so. When P.W.3 had spoken about the identity of the accused, it is not the case of the accused, that he is a stranger and he could not identify them. In this view, ignoring the entry in Ex.P.21, we proceed that P.W.3 would have sustained injuries, in the hands of the known persons, and if it is proved that one of the accused or some of the accused are responsible for the grievous injuries caused to P.W.3, then they should be dealt with under Section 326 I.P.C. as did by the trial Court. 16. The doctor R.Balaraman-P.W.17, at the request of the investigating officer conducted autopsy over the body of Kuppusamy on 8.10.94 between 1.00 p.m. and 2.00 p.m. It revealed the following injuries, as indicated in Ex. P.26. 1.Multiple Incised wounds present all over back of head over an area of 22 X 18 cms exposing fractured skull and brain matter. 2.Incised wound 2 x 0.5 x 0.5 cms over right side of right eye. 3.Incised wound 12 x 2 x 2 cms over right side of face between right ear and mouth. 4.Incised wound 6 x 1 x 1 cms below lower lip on right side cutting bone partly. 5.Incised wound 10 x 2 x 2 cms over left side of face cutting left ear partly. 6.Incised wound 10 x 2 x 3 cms over left side of face extending upto angle of mouth. 7.Incised wound 8 x 2 x 1 cms over middle of left forearm. 8.Incised wound 3 x 0.5 x 0.5 cms over chest hear right axilla. 9.Incised wound 5 x 1 x 2 cms over right hand below thumb. 10.Incised wound 6 x 1 x 1 cms over right side of lower abdomen. 11.Incised wound 2 x 1 x 1 cms over left side of lower abdomen. 12.Incised wound 8 x 1 x 1cms over back of neck (Transversely placed) 13.Parallel linear contusions 11 x 9 cms present over back of right leg. 14.Contusion 10 X 1 cmsa present over left side of neck Internal Examination : Skull - comminuted fracture of vault of skull present. Brain - Extensively lacerated. He had opined on the basis of the external injuries, as well as internal examinations of the deceased, considering the effect of injuries, that Kuppusamy died of shock and haemorrhage, which caused due to multiple injuries. 17. During the cross-examination he has stated that the fracture of the skull, as such alone cannot cause death, adding that it can cause death, if it is associated with internal bleeding. The first injury is described as multiple incised wounds, all over back of head, over an area an area of 22 X 18 cms exposing fracture of skull and brain matter and the internal examination also revealed, comminuted fracture of vault of skull. Thus, it is seen, in the head injury, there was internal bleeding exposing the brain which should be fatal causing death. As spoken by the witnesses Kuppusamy died instantaneously because of the chopping all over the body causing number of incised wounds.