Bail Slip The Appellant/Accused 1 namely Kathirvel was directed to be released on bail as per order of this Court dated 14.11.2006 and made in Crl.M.P.No.1/06 in Crl.A.No.966/06 on the file of this Court. Bail Slip The Appellant/ Accused 2 namely Siva @ Namasivayam was directed to be released on bail as per order of this Court dated 11.1.2007 and made in Crl.M.P.3/2007 in Crl.A.No. 966/06 on the file of this Court. Bail Slip The Appellant/Accused 3 namely S.N. Palanisamy was directed to be released on bail as per order of this Court dated 21.12.2006 and made in Crl.M.P.1/2006 in Crl.A.No.948/2006 on the file of this Court. Bail Slip The Appellant/Accused 4 to 7 namely (A4) Nachimuthu @ Kanagaraj (A5) Kannayal @ Valliyammal (A6) Gopal @ Gopalakrishnan and (A7) Gomathi were directed to be released on bail as per order of this Court dated 9.11.2006 in Crl.M.P.No.2/06 in Crl.A.No.948/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.06.2011 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.A.Nos.948 and 966 of 2006 1.S.N.Palanisamy 2.Nachimuthu @ Kanagaraj 3.Kannayal @ Valliyammal 4.Gopal @ Gopalakrishnan 5.Gomathi .. Appellants in Crl.A.948/2006/Accused 3 to 7 https://hcservices.ecourts.gov.in/hcservices/ 1.Kadirvel 2.Siva @ Namasivayam .. Appellants in Crl.A.966/2006/ Accused 1 & 2 vs. State by Inspector of Police, Appakudal Police Station, Bhavani Taluk. .. Respondent in both Crl.As/ Complainant Common Prayer:- Criminal Appeals filed under Section 374(2) of Cr.P.C., against the judgment of the learned I Additional Sessions Judge, Erode in S.C.No.72/2005 dated 31.10.2006. For Appellants/A.1& 2 :Mr.N.Manokaran For Appellants/A.3, 5 to 7 :Mr.N.Natarajan, Senior Counsel for Mr.G.Ravikumar For Appellant/A.4 :Mr.A.K.Kumarasamy For Respondent in both Crl.As : Mr.I.Subramanian, Public Prosecutor Assisted by Mr.A.N.Thambidurai, Additional Public Prosecutor COMMON JUDGMENT The appellants in Crl.A.No.966 of 2006 are the accused 1 and 2 and the appellants in Crl.A.No.948 are the accused 3 to 7 in S.C.No.72 of 2005 on the file of the learned I Additional Sessions Judge, Erode. Totally, there were 9 accused. The accused 8 and 9 have been acquitted by the trial Court. The appellants/A.1 to 7 have been convicted and sentenced as detailed below:- Accused Offence Sentence Imposed A.1 Under Section 148 I.P.C., 1 year rigorous imprisonment Under Section 324 I.P.C., 1 year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo 3 months rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ Accused Offence Sentence Imposed A.2 Under Section 148 I.P.C., 1 year rigorous imprisonment Under Section 304 (Part II) I.P.C., 10 years rigorous imprisonment A.3 Under Section 148 I.P.C., 1 year rigorous imprisonment Under Section 304 (Part II) I.P.C., 10 years rigorous imprisonment A.4 Under Section 147 I.P.C., 6 months rigorous imprisonment Under Section 325 I.P.C., 2 years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo 3 months rigorous imprisonment A.5 Under Section 148 I.P.C., 1 year rigorous imprisonment Under Section 324 I.P.C., 1 year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo 3 months rigorous imprisonment A.6 Under Section 148 I.P.C., 1 year rigorous imprisonment Under Section 324 I.P.C., 1 year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo 3 months rigorous imprisonment A.7 Under Section 148 I.P.C., 1 year rigorous imprisonment Under Section 325 I.P.C., 2 years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo 3 months rigorous imprisonment Further, the trial Court acquitted the accused from some of the charges as stated below:- https://hcservices.ecourts.gov.in/hcservices/ Accused Offence A.1 Under Sections 342 r/w 149, 302 r/w 149 and 307 r/w 149 I.P.C., (2 counts) A.2 342 r/w 149, 307 r/w 149 I.P.C., (3 counts) A.3 342 r/w 149 and 307 r/w 149 I.P.C., (3 counts) A.4 342 r/w 149, 302 r/w 149 and 307 r/w 149 I.P.C., (2 counts A.5 342 r/w 149 302 r/w 149 and 307 r/w 149, 302 r/w 149 and 307 r/w 149 and 307 r/w 149 I.P.C., (2 counts) A.8 147, 342, 302 r/w 149 and 307 r/w 149 I.P.C., (3 counts) A.9 147, 342, 302 r/w 149 and 307 r/w 149 I.P.C., (3 counts) Challenging the said conviction and sentence, the appellants are before this Court with these appeals. 2.The case of the prosecution in brief is as follows:- The deceased in this case was one Mr.Palanisamy. P.W.1 is his younger brother. P.W.2 is the wife of the deceased and P.W.3 is the wife of P.W.1. All these witnesses were residing at Kambukaranthottam in Vembathi Village, Erode District. P.W.1 and the deceased, being the brothers, had jointly purchased 10 acres of land from one Mr.S.M.Chenniappan few years before the occurrence. The third accused Mr.Palanisamy had his land on the East of the said land. All these accused are also closely related to each other. They also hail from the same village. In respect of the boundary lying between the above said land belonging to P.W.1 and the deceased and that of the third accused, there were frequent quarrels between the two groups. On 12.09.2004, P.W.1, the deceased, the wife of the deceased Mrs.Palaniammal, P.W.2, P.W.3 and one Tamilarasi were engaged in removing weeds in the above said land. It was 11.30 a.m. At that time, the third accused had engaged a bulldozer to level his land. P.W.7, Mr.Kumarasamy was the Driver of the bulldozer. While so levelling, the sand was pushed into the land belonging to P.W.1 and the deceased thereby encroaching upon their land. This was questioned by the deceased and P.W.1. A.3, Palanisamy retorted saying that they would do so only. Suddenly, all the accused came to the place of occurrence, all armed with weapons. A.1 was armed with an Iron Rod; A.2 was armed with a “Kutheeti” (spear); A.3 was armed with Aruval; A.4 was armed with Stick; A.5 was armed with Spade; A.6 was armed https://hcservices.ecourts.gov.in/hcservices/ with Aruval; A.7 was armed with Spade handle and A.8 and A.9 were not armed with any weapon. On emerging at the place of occurrence, suddenly, they started mounting attack on the prosecution party. A.8 and 9 (since acquitted), held P.W.1 and restrained him from escaping. A.1 attacked Rajammal (died before trial) with Iron Rod on her head causing a single injury. For this overt act, he stood charged for offence under Section 307 I.P.C. A.2 attacked the deceased on his head with spear causing a long injury. A.3 attacked the deceased with Aruval on his head causing a long injury. A.4 attacked P.W.2 with stick on the right fore hand of P.W.2. A.5 attacked P.W.2 with spade on her head. A.6 attacked P.W.3 with Aruval on her head. A.7 attacked P.W.3 with Spade handle on her right hand. In the said occurrence, as stated above, P.Ws.2 and 3, the deceased Palanisamy and Mrs.Rajammal sustained injuries. The occurrence was witnessed by P.W.7, the Driver of the bulldozer. They raised alarm which attracted P.W.4 towards the place of occurrence. 3. On reaching the place of occurrence, P.W.4 found the injured lying on the ground with extensive bleeding injuries. Immediately, P.W.4 along with one Gurusamy and Chinnappan made arrangement to rush the injured to the Lotus Hospital at Erode. 4. P.W.6 Dr.John Gurupatham, examined all the injured on 12.4.2009 at about 2.40 p.m. So far as the deceased is concerned, he found as many as 9 external injuries. Ex.P.7 is the Accident Register copy relating to the deceased. The following are the injuries (as described in Ex.P.7) :- “1.A lacerated injury with exposing bone fronto temporo parital region with oozing blood; 2.A lacerated injury measuring 10x4 cm on the right parital region with oozing blood; 3.Swelling and ecchymosis of both eyes noticed; 4.Swelling on the left hand dorsum; 5.A small ½ cm length laceration on the left knee; 6.A small ½ cm laceration on the left leg toe; 7.Oozing of blood on the left ear; 8.Bleeding was found through nose and mouth; and 9.A small contusion on the right upper leg. Scan examination was conducted on the head of the deceased which revealed as follows:- “1.Diffuse Subarachnoid Haemorrhage. 2.RT.Fronto Parietal ICH. 3.Diffuse Cerebral Edema. 4.Pneumocephalus. 5.Depressed fracture in the left fronto parietal region.” While on treatment, he died on 14.09.2004 at 3.30 p.m. 5. P.W.6, on the same day, examined Rajammal (since deceased). He noticed a lacerated wound measuring 5x2x2 cms on the left parietal region and the underlying bone was found exposed. There was bleeding https://hcservices.ecourts.gov.in/hcservices/ also on the said injury. Ex.P.10 is the Accident Register for Mrs.Rajammal. On the same day, at 2.40 p.m., he examined P.W.2 Mrs.Eswari. He found as many as 8 injuries on her which are as follows:- 1. A lacerated wound measuring 2x2 cms on the right parietal area; 2. A lacerated injury measuring 4 cm and 2 cm on the frontal area; 3.A lacerated injury measuring ½ cm x ½ cm near the root of the nose; 4.Two contusions measuring ½ x ½ x2x2 cms found on the right cheek; 5.A contusion measuring 4x2 cms on the right shoulder; 6.A small contusion on the middle of left thigh; 7.A contusion measuring 3x3 cms on the right fore hand; and 8.A contusion measuring 2x2 cms on the left fore hand. 6. Exhibit P.12 is the Accident Register issued by him. X-ray taken on the right hand disclosed fracture of the radius. Ex.P.13 is the Wound Certificate. The injuries 1, 2 and 7 are grievous hurts. According to his opinion, all these injuries would have been caused by attack with spade handle and stick. 7. On the same day, he examined P.W.3 Suseela. He noticed the following 5 injuries:- 1.A lacerated injury measuring 5x2x2cms on the occipital region of the head; 2.An abrasion measuring 2x2 cms below the said injury; 3.An abrasion measuring 1x1 cm on the right fore hand; 4.She complained of pain in her dorsum of the right hand and she was not able to move her fingers; and 5.She complained of pain in her dorsum of the right hand and she was not able to move her fingers. 8. Exhibit P.14 is the Accident Register. X-ray taken revealed that the injuries 2 and 3 are grievous in nature as there were fractures. He issued Wound Certificate under Ex.P.15. According to him, these injuries would have been caused by weapons like Aruval and Spade handle. 9. While they were in the said hospital, P.W.14, the then Sub Inspector of Police attached to Apakudal Police Station received intimation from the hospital about the occurrence and admission of the injured in the hospital at 4.00 p.m.. On the same day, he proceeded to the Lotus Hospital and found that none of the injured was in a position to speak. Therefore, he recorded the statement of P.W.1 under Ex.P.1. On returning to the police station, at 6.00 p.m., he registered a case in Crime No.249 of 2004 under Sections 147, 148, 341, 324, 325, 326 and 307 I.P.C. In the F.I.R, P.W.1 had mentioned about the participation of all the 9 accused and their individual overt acts. P.W.14 forwarded the F.I.R and the complaint to the Court https://hcservices.ecourts.gov.in/hcservices/ immediately and the same was received by the learned Judicial Magistrate at 9.15 p.m., on 12.09.2004. Admittedly, the distance between the police station and the house of the learned Judicial Magistrate is 8 k.ms. Thereafter, P.W.14 forwarded the case diary to the Inspector of Police for investigation. 10. P.W.15, who was the then Inspector of Police-in-charge of Apakudal Police Station, took up the case for investigation. At 7.00 p.m., on the same day, he proceeded to the place of occurrence and examined one Tamilarasu. Since it was so dark, he could not prepare Observation Mahazar. Thereafter, he returned to the Lotus Hospital where he examined P.W.4 and Mr.Chinnappan who had brought all the injured to the hospital. On 13.09.2004, at 6.30 a.m., again P.W.15 went to the place of occurrence and prepared an Observation Mahazar in respect of the place of occurrence in the presence of P.W.8 and another witness. At that time, however, he did not recover the blood stained earth from the place of occurrence. He recovered the material objects (the weapons used in the occurrence) M.Os. 3 to 7 from the place of occurrence. Some of the weapons were stained with blood. Then, he returned to the Lotus Hospital where he examined P.Ws.1 to 3 and recorded their statements. Then, on secret information, he went to Thalavaipettai Bus stop and arrested A.2,3,5 in the presence of P.W.7 and another witness. On such arrest, the third accused gave a voluntary confession in which, he had disclosed that 'Kutheeti' and Aruval had been hidden in a thorn bush. The said statement was recorded. Based on the said confession, the accused took the police and the witnesses to his land and produced the weapons (Kutheeti and Aruval) M.Os.1 and 2 from there. They were recovered under the Mahazar in the presence of witnesses. 11. While the investigation was in progress, on 14.09.2004, at 3.30 p.m., P.W.15, received intimation from the Lotus Hospital about the death of the deceased. Therefore, he altered the case into one under Sections 147, 148, 341, 324, 325, 326, 307 and 302 of I.P.C. He forwarded a report to the Court forthwith under Exhibit P.29. 12. P.W.15 thereafter, held inquest on the body of the deceased and then forwarded the body for postmortem to the Government Hospital at Erode. P.W.5 conducted autopsy on the body of the deceased and he noticed injuries which are as follows:- External Injuries:- 1.A sutured wound 10 cm length present in the left side of the head extending from left frontal to parietal bones; 2.A sutured wound of 6 cm in length present in the mid parietal region extending to the occipital region; 3.Bleeding left ear with blood clot present; and 4.A sutured abrasion in the left shoulder. Internal injuries:- On opening the scalp : Extensive blood clots present over the https://hcservices.ecourts.gov.in/hcservices/ left parietal, frontal and temporal region; 2.Multiple irregular fracture of left side skull bone of frontal, parietal and temporal and occipital bones with displacement; 3.There was loss of bone in the left frontal bone. Sutured material was seen in that area; 4.There was fracture in the right side of the skull bone extending from parietal to temporal bone; 5.On removing the fractured bones from the left side of the skull suturing was done in the dura matter of brain left side; 6.On opening the dura extending blood clots present over the both side of the brain; and 7.Fracture basal on both side present. On opening the Thorax: About 300 ml of blood clots present in the left side thoracic cavity. Fracture of 2,3, 4th ribs present in left side.” 13. According to the Doctor, the death was due to shock and hemorrhage due to the said injuries. The said injuries, according to him, would have been caused by M.Os.1 and 2. Thereafter, the investigation was handed over to P.W.16. Continuing the investigation, P.W.16 examined P.Ws.10 and 12 and recorded their statements. Then, he arrested A.1,4,6,8 and 9 on 16.09.2004 at 2.30 p.m. They were sent for judicial remand. Then, he gave a request to the Court for sending the material objects (M.Os.1 and 2) for chemical examination. M.Os.1 and 2 were sent for chemical examination by the learned Judicial Magistrate. The reports of Forensic Lab are under Exhibits P.33 and 34. According to the said reports, human blood was found in the said weapons. Then, on completing the investigation, he laid charge sheet on 21.04.2004 against all the 9 accused under Sections 147, 148, 342, 342 r/w 349, 307, 307 r/w 149, 302, 302 r/w 149 I.P.C. 14. Based on the above materials, the trial Court framed as many as 12 charges, which are as follows:- Charge Numbers Accused Offence under Sections Charge No.1 A.4,8 and 9 147 of IPC Charge No.2 A.1,2,3,5,6 and 7 148 of IPC Charge No.3 A.8 and 9 342 of IPC Charge No.4 A1 to 7 342 r/w 149 of IPC Charge No.5 A.1 307 of IPC Charge No.6 A.2 to 9 307 r/w 149 of IPC Charge No.7 A.2 and 3 302 of IPC Charge No.8 A.1 to 4 and 9 302 r/w 149 of IPC Charge No.9 A.4 and 5 307 of IPC Charge No.10 A.1 to 3 and 6 to 9 307 r/w 49 of IPC https://hcservices.ecourts.gov.in/hcservices/ Charge Numbers Accused Offence under Sections Charge No.11 A.6 and 7 307 of IPC Charge No.12 A.1 to 5, 8 and 9 307 r/w 149 of IPC 15. Since all the accused denied the charges, the trial Court went ahead with the trial. During the trial, on the side of the prosecution, as many as 16 witnesses were examined and 34 documents were exhibited besides the Material Objects 1 to 9. Since Mrs.Rajammal, one of the injured in the said occurrence died during the course of trial, she could not be examined. P.Ws.2 and 3 are the injured eye witnesses. P.Ws.1 and 7 are eye witnesses to the occurrence, but not injured. P.W.4 is the person who took all the injured to the hospital. P.W.6 is the Doctor who treated the injured at Lotus Hospital, Erode and P.W.5 is the Doctor who conducted Postmortem on the body of the deceased. P.W.8 is the Village Administrative Officer in whose presence, the Observation Mahazar was prepared and recovery of material objects were made either from the place of occurrence or on the confession of A.3. P.W.9 has spoken to about the photographs taken by him regarding the place of occurrence. P.W.13 is the Doctor who treated the injured at Lotus Hospital. The others are police officials. 16. When the incriminating evidences were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not chose to examine any witness on their side nor did they mark any documents. Having considered the above materials, the trial Court acquitted A.8 and A.9 holding that the prosecution has not proved the case against them beyond reasonable doubt. Relying on the evidences of P.Ws.1 to 3 and 7 coupled with the medical evidence, the trial Court found A.1 to 7 guilty and accordingly convicted them as detailed in the first paragraph of this judgment. That is how, the appellants are before this court with this appeal. 17. I have heard Mr.N.Manokaran, learned counsel appearing for A.1 and A.2; Mr.N.Natarajan, learned Senior Counsel appearing for A.3,5 to 7; Mr.A.K.Kumarasamy, learned counsel appearing for A.4 and Mr.I.Subramanian, learned Public Prosecutor appearing for the State and also perused the records carefully. 18. The foremost contention of the learned Senior Counsel appearing for the appellants is that the prosecution has not come forward with clean hands and there are lot of doubts in the case of the prosecution entitling the accused for acquittal. He would submit that though it is stated that there was profuse bleeding out of the injuries sustained by the injured in this case and though it is stated that the blood had fallen at the place of occurrence, the same was not recovered from the scene of occurrence. He would further submit that even the blood stained clothes belonging to the witnesses have not been recovered. This, according to the learned Senior https://hcservices.ecourts.gov.in/hcservices/ Counsel, is a very serious lapse on the part of the Investigating Officer which goes to the very root of the case of the prosecution. He would also submit that the non-recovery of the blood stained earth from the place of occurrence would go a long way to show that the very origin of the case is doubtful. He would further submit that the medical evidence in respect of the injuries sustained by the deceased also does not corroborate the so called eye witness account. For this purpose, the learned Senior Counsel would take me through the evidence of P.W.6 who would say that the injuries found on the body of the deceased would not have been caused by M.Os.1 and 2 as it is alleged by the prosecution. Thus, according to the learned Senior Counsel, the medical evidence would completely falcify the evidences of the eye-witnesses. The learned Senior Counsel would also submit that though it is stated in the recovery mahazar that many of the weapons seized were stained with blood, only M.Os.1 and 2 were sent for chemical examination and there is no explanation offered by the prosecution as to why the rest of the weapons were not sent for chemical examination. 19. The learned Senior Counsel would nextly point out that the recovery of the Material Objects, namely, M.Os.1 and 2 at the instance of the 3rd accused on his disclosure statement cannot be true. For this purpose, the learned Senior Counsel would take me through the evidences of P.W.2, who would say that the Material Objects, namely, M.Os.1 and 2 were thrown at the place of occurrence immediately after the occurrence by the assailants and they were recovered by the police from the spot. The learned Senior Counsel would further submit that since there are number of accused, number of injured, number of injuries and number of weapons, there is every possibility of false implication of these accused and the same cannot be ruled out. He would also submit that if an overall view of the entire materials placed before the Court is made, it would definitely go to show that the prosecution has not come forward with the true version of the occurrence and therefore, it is not safe to sustain the conviction of these appellants, solely based on the above partisan evidences of P.Ws.1 to 3 and 7. Thus, according to the learned Senior Counsel, the prosecution has failed to prove the case beyond reasonable doubts and so, the accused are entitled for acquittal. The learned Counsel for the other appellants have adopted the said argument of Mr.N.Natarajan. 20. But the learned Public Prosecutor appearing for State would stoutly refute all the above grounds raised by the learned Senior Counsel for the accused/appellants. According to him, though it is true that there is a lapse on the part of the Investigating Officer as he has failed to recover the blood stained clothes from the injured witnesses, that by itself cannot be a ground to doubt the case of the prosecution. In respect of non-recovery of the blood stained earth from the place of occurrence, the learned Public Prosecutor would submit that since it was too late in the night on https://hcservices.ecourts.gov.in/hcservices/ the day of occurrence, when P.W.15 visited the place of occurrence, he could not recover the blood stained earth from the place of occurrence. On the next day, when he went to the place of occurrence at 6.30 a.m. since there was no blood stains found, he recorded the same. That is the reason why the blood stained earth could not be recovered. The learned Public Prosecutor would further submit that the non-recovery of the blood stained earth from the place of occurrence cannot be a ground at all to doubt the case of the prosecution or to reject the case as a whole as false. He would also submit that in this case the presence of P.Ws.2 and 3 and the injured witnesses in the place of occurrence cannot be doubted. He would further submit that as per the settled position of law, their evidences should generally be accepted by this Court unless there are certain material infirmities in their evidences. He would also submit that a close scrutiny of the evidences of the injured eye- witnesses and the evidences of P.Ws.1 and 7 is made, it would certainly go to show that they have spoken to only the truth and truth alone. The evidences of P.Ws.2 and 3 are duly corroborated by the evidences of P.Ws.1 and 7, the learned Public Prosecutor contended. 21. That apart, according to him, the medical evidence also clearly goes to corroborate the eye-witness account, more particularly, the account of the injured eye witnesses. He would further add that it is not the case where there is a delay in preferring the complaint. The complaint was preferred within a