Vengatesh @ Dhanasegar & Ors. v. The State

4.Ramesh5.Nagaraj6.Ganesh7.Satish8.Madhan9.Sankar @ Karuppu Sankar10.Vijayarangan11.Azhagu @ Azhagar12.Narayanan13.Saravanan @ Mandai Saravanan14.Mathi @ Mathiyazhagan15.Sridhar16.Prathab Singh Mouria @ Prathab17.Ezhil @ Ezhilarasan18.Ramesh @ Mattuvandi Ramesh19.Sadai Viji @ Viji20.Pragash21.Jegan @ Jeganathan22.Satish @ Sathishkumar23.Suresh @ Azhukku Suresh24.Vijayakannan.. Respondents / A1 to A20 & A22 to A25CRL.R.C.No.1137/2008:Manikandan @ Duiman.. Petitioner (Defacto Complainant)vs1.Murugan2.Ramesh3.Nagaraj4.Ganesh5.Sankar @ Karuppu Sankar6.Vijayarangan7.Azhagu @ Azhagar8.Saravanan @ Mandai Saravanan9.Mathi @ Mathiazhagan10.Sridhar11.Prathab Singh Mouria @ Prathab12.Ezhil @ Ezhilarasan13.Ramesh @ Mattuvandi Ramesh14.Sadai Viji @ Vijayan15.Pragash16.Satish @ Satishkumar17.Suresh @ Azhukku Suresh18.Vijayakannan19. State rep by Inspector of Police,Muduliarpet Police Station,Pondicherry (Crime No.101/04).. Respondents/A2, 4 to 6 9 to 11 13 to 20 & 23 to 25 & Complaint C.A.Nos.156, 157 and 575 of 2008 preferred under Sec.374(2) ofthe Code of Criminal Procedure against the judgment of the IIAdditional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated30.1.2008. https://hcservices.ecourts.gov.in/hcservices/ C.A.No.575/2008 preferred under Sec.378 of the Code ofCriminal Procedure against the order of acquittal made by the IIAdditional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated30.1.2008.Criminal revision case preferred under Sec.397 r/w 401 of theCode of Criminal Procedure against the order of acquittal made bythe II Additional Sessions Judge, Pondicherry, in S.C.No.57/2004dated 30.1.2008. For Appellants: Mr.R.Shanmugasundaram Senior Advocate for Mr.A.Stalin for A-1, A-8 in CA 157/2008 for A-3, A-12 in CA 156/2008 and for RR1, 2, 4, 5, 6, 9 to 11, 13 to 20 & 22 to 24 in CA 575/2008 Mr.V.Gopinath Senior Advocate for Mr.K.Gandhikumar for A-7 in CA 157/2008 for A-22 in CA 156/2008For Petitioner: Mr.C.D.Johnson in CRL.RC 1137/2008For Respondents: Mr.Natarajan Additional PublicProsecutor (Pondy) in CA 156 &157/2008 and Crl.RC 1137/2008 and for Appellant in CA 575/2008COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these three appeals namelyC.A.No.156/2008 by A-3, A-12 and A-22, C.A.157/2008 by A-1, A-7and A-8 and C.A.575/2008 by the State of Pondicherry and alsoCrl.R.C.No.1137 of 2008 by P.W.1. 2.The appellants in CA 156 and 157/2008, six in number, alongwith 19 others stood charged, and on trial A-1, A-3, A-7, A-8, A-12and A-22, the appellants herein, were found guilty as follows. A-21 absconded, and hence the case was split up in his regard inS.C.No.12/2006. https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-24148 IPCA-1, A-3, A-7,A-8, A-12 and A-22 guilty 3 years RI witha fine ofRs.2000/- anddefault sentenceA-1 to A-24302 r/w 149 IPCA-1, A-3, A-7,A-8, A-12 and A-22 guiltyLifeImprisonmentwith a fine ofRs.5000/- anddefault sentenceA-1, A-3, A-12 &A-214(b) of theExplosiveSubstances Actr/w 149 IPCA-1, A-3, A-12guilty5 years RI witha fine ofRs.3000/- anddefault sentenceA-1, A-3, A-12 &A-214(a) of theExplosiveSubstances Actr/w 149 IPCA-1, A-3, A-12guilty5 years RI witha fine ofRs.3000/- anddefault sentenceA-1 to A-24307 (2 counts)r/w 149 IPCA-1, A-3, A-12guilty7 years RI witha fine ofRs.1000/- anddefault sentenceA-1 to A-24333 (2 counts)r/w 149 IPCA-1, A-3, A-12guilty7 years RI witha fine ofRs.1000/- anddefault sentenceA-1, A-3, A-6 toA-8, A-12, A-21,A-22 and A-25109 r/w 302 IPCand Sec.4(a) ofthe ExplosiveSubstances ActNot guiltyA-1, A-3, A-6 toA-8, A-12, A-21,A-22 and A-25120-B r/w 302IPC and Sec.4(a)of the ExplosiveSubstances ActNot guilty3.A-1, A-3, A-7, A-8, A-12 and A-22 were not found guilty inrespect of the other charges levelled against them, and all otheraccused were not found guilty in respect of all the chargeslevelled against them. As against the part of acquittal, theaggrieved State of Pondicherry has brought forth C.A.No.575/2008,and P.W.1 has brought forth Crl.R.C.No.1137/2008.4.Necessary facts for the disposal of the above appeals andrevision case can be stated as follows:(a) P.W.1 is the younger brother of the deceased Jayakumar.On 26.3.2004, the deceased drove the motorcycle bearingRegistration No.PY 01 R 1354 marked as M.O.9. P.W.1 was sitting asa pillion rider. They were returning to the house after meeting anAdvocate in the Court premises. At about 1.40 P.M., they were justreaching the junction of Uppalam Road and Cuddalore Road. At thattime, all the accused were standing in a crowded manner. A-1 andA-3 were riding two motorbikes, while the other two accused were https://hcservices.ecourts.gov.in/hcservices/ sitting behind. They dashed the vehicle against the motorbikewhich was driven by the deceased. P.W.1 and the deceased felldown. Immediately, it was A-1 who attacked the deceased with anaruval on the right shoulder. P.W.1 and the deceased made anattempt to escape. They were running towards Mudaliarpet PoliceStation situated nearby. When they were doing so, it was A-22 whogave a cut on the back of the head of the deceased. Howevermanaging the situation, the deceased and P.W.1 made an entry intothe police station. At that time, it was P.W.3, one Rajaram, theHead Constable of the Station, was on duty, while P.W.4 was thePara Constable. While all the accused chased them, A-3, A-12 andA-21 gave cut injuries. Para Constable, P.W.4, caught hold of A-3,and P.W.3 caught hold of A-22. A-3 attacked P.W.4, and A-22attacked P.W.3. A-1, A-3 and A-12 who were having bombs in hand,threw on the deceased. When it was thrown, P.Ws.3 and 4 were alsoinjured. Immediately, P.W.1 rushed to his house situated 150meters away. He informed to the relatives and came back. (b) P.W.32 was the Sub Inspector of Police attached to therespondent police station. He received the wireless message fromP.W.3 and rushed to the police station. Then P.W.1 gave acomplaint under Ex.P1 to P.W.32. On the strength of Ex.P1, thereport, a case came to be registered in Crime No.101 of 2004 underSections 147, 148, 302, 307, 330 of IPC and Sec.4 of ExplosiveSubstances Act r/w Sections 35, 109 and 149 of IPC against all the25 accused. The printed FIR, Ex.P53, and other records were sentto the Court. (c) P.W.34, the Inspector of Police, on message proceeded overthere and got a copy of the FIR. Thereafter, he took upinvestigation, proceeded to the spot, made an observation of thescene of occurrence and prepared an observation mahazar, Ex.P56,and also a rough sketch, Ex.P57. Thereafter, P.Ws.3 and 4 weresent to the Government Hospital. P.W.17 examined P.W.3 at 3.00P.M., and also examined P.W.4 at 3.10 P.M. The wound certificatesare marked as Exs.P25 and P26 respectively. Then the Investigatorconducted inquest on the dead body in the presence of witnesses andpanchayatdars and prepared an inquest report, Ex.P60. Arequisition was given to the hospital authorities for conduct ofautopsy. (d) P.W.15, the Chief Medical Officer, Department of ForensicMedicine, JIPMER, Pondicherry, on receipt of the said requisition,conducted autopsy on the dead body of Jayakumar and has issued apostmortem certificate, Ex.P20, with his opinion that the cause ofdeath of the deceased was due to shock due to multiple injuriessustained by the deceased, chief being the head and neck injuries.(e) P.W.34 examined the witnesses and recorded theirstatements. In particular, he examined P.W.12, who spoke about theconspiracy hatched up on 25.3.2004, by the accused pursuant towhich the occurrence has taken place. P.W.13 was examined fromwhom Exs.P17 and P18 were recovered to show that A-2 had attendedduty on 26.3.2004, as part time worker in the Forest Department.Further, sanction was asked for from P.W.31, the DistrictMagistrate of Pondicherry. He has also given sanction underExs.P51 and P52. (f) On 29.3.2004, the absconding accused Suresh, A-12, A-22,A-3, A-8 and A-23 were arrested. The Investigator recovered thematerial objects. They came forward to give confessional https://hcservices.ecourts.gov.in/hcservices/ statements, which were recorded. The admissible parts are marked asExs.P11 to P16 respectively. Pursuant to the same, M.Os.1 to 4,weapons of crime, were recovered under a cover of mahazar. Theywere sent for judicial remand. A-16 was arrested on 30.3.2004. Hegave a confessional statement which was recorded. He was sent forjudicial remand. A-1, A-6 and A-24 were arrested on 6.4.2004. Theycame forward to give confessional statements which were recorded.They were sent for judicial remand. On 24.5.2004, A-7 was arrested,and he gave a confessional statement which was recorded. He wassent for judicial remand. Then on 24.6.2004, the Investigatorarrested A-4, A-5, A-9, A-10, A-11, A-15, A-17, A-18 and A-20.They came forward to give confessional statements which wererecorded. They were sent for judicial remand. (g) On 13.7.2004, A-2 was arrested, and he came forward togive a confessional statement which was recorded. He was sent forjudicial remand. On 25.7.2004, A-14 was arrested, and he cameforward to give a confessional statement, which was recorded. Hewas sent for judicial remand. A-13 was arrested on 30.7.2004, andhe came forward to give a confessional statement, which wasrecorded. Then he was sent for judicial remand. On 3.8.2004, A-25was arrested. He gave a confessional statement, which wasrecorded. He was sent for judicial remand. A-19 surrenderedbefore the Judicial Magistrate's Court. On completion ofinvestigation, the Investigator filed the final report.5.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 35 witnesses and also relied on 69 exhibitsand 34 material objects. On completion of the evidence on the sideof the prosecution, the accused were questioned under Sec.313 ofCr.P.C. as to the incriminating circumstances found in the evidenceof the prosecution witnesses which they flatly denied as false.The defence examined D.Ws.1 to 5 through whom Exs.D1 to D19 weremarked. Ex.C1 was also marked by the Court. The trial Court heardthe arguments advanced on either side and took the view that theprosecution has proved the case beyond reasonable doubt in respectof A-1, A-3, A-7, A-8, A-12 and A-22, and hence found them guiltyand awarded punishment as referred to above. Hence the aboveaggrieved appellants/accused have brought forth C.A.Nos.156 and 157of 2008, while the State aggrieved over the part of order ofacquittal has brought forth C.A.No.575 of 2008 and the revision byP.W.1 in Crl.R.C.No.1137 of 2008.6.Advancing arguments on behalf of A-1, A-3, A-8 and A-12,the learned Senior Counsel Mr.R.Shanmugasundaram would submit thatin the instant case, the prosecution relied on the evidence ofP.Ws.1 to 4 as eyewitnesses to the occurrence; that as far as P.W.2was concerned, the lower Court was not prepared to accept theevidence; that the evidence of P.Ws.1, 3 and 4 were taken up forconsideration by the trial Court; and that as far as the so-calledeyewitnesses are concerned, their evidence was in support of theprosecution. 7.The learned Senior Counsel at the outset would submit thatP.W.1 was shown as an eyewitness, through whom according to theprosecution, Ex.P1, the report, has come into existence; that P.W.1 https://hcservices.ecourts.gov.in/hcservices/ could not have been in the place of occurrence at all; that he wasonly a 19 years old boy who was studying X Standard; that theoccurrence, according to the prosecution, has taken place at about1.45 P.M. that was on a working day; and that though P.W.1 claimedto be present, his name does not find place in the contemporaneousdocument namely the G.D. which is marked as Ex.P3. Added furtherthe learned Senior Counsel that it would be quite clear that thoughhe claimed to be present in the place of occurrence, it is curiousthat he was not attacked by any one out of 25, and he was not foundwith any bloodstain; that it is pertinent to point out that the FIRhas reached the Court at about 12.00 A.M. night; that P.W.32 wouldclaim that the case was registered at 2.00 P.M.; that if to be so,why there was a huge delay remained unexplained; that P.W.34 whenhe was cross-examined in that regard, has deposed that he did notenquire how the delay was caused; and that as far as P.W.1 wasconcerned, had he been present, his presence should have been mademention anywhere, but not done so. 8.Added further the learned Senior Counsel that D.W.5, theNews Reporter, was examined; that within a short span of 15minutes, he rushed to the place and took photographs, and the samewere published in the newspaper next day as a news item; but, thepresence of P.W.1 was not whispered anywhere. 9.Added further the learned Senior Counsel that P.W.1 couldnot have been in the place of occurrence for the reason that A-1 toA-25 have been added by entering their names, addresses, features,etc., which are found place; that the evidence of P.W.3 would go toshow that the entry that was made by the Sub Inspector of Policenowhere indicates the presence of P.W.1 at the time when the G.D.entry was made; and that so long the GD entry does not speak aboutthe presence of P.W.1, through whom the complaint has come intoexistence, it would be indicative of the fact that P.W.1 could nothave been present at the place of occurrence at all. 10.Added further the learned Senior Counsel that as far asP.Ws.3 and 4 are concerned, the trial Court has placed muchreliance on their evidence; but, their evidence was found to bethoroughly discrepant; that both the witnesses according to theInvestigator, were taken to the hospital immediately; that P.Ws.3and 4 have categorically stated to P.W.17 the Doctor, that fourpersons attacked them; that at the time of evidence, P.W.3 hascategorically spoken to the fact that he was attacked by A-21 only;that equally, P.W.4 has also spoken to the same fact; that underthe circumstance, the attack was by only one; that had it been truethat they gave such a statement to the Doctor that they wereattacked by four persons, it is highly doubtful; that equallyaccording to P.W.34, he received a message, and immediately herushed to the spot and when he received the wireless message, onlythe names of three accused were mentioned and some others andneither 22 persons nor the involvement of any other accused; andthat all would go to show that the earliest document G.D. or theinformation given to P.W.34 does not implicate or show theinvolvement of these accused persons. https://hcservices.ecourts.gov.in/hcservices/

11.The learned Senior Counsel would further add that all theseaccused persons are related to each other; that A-1, A-2, A-4 andA-5 are brothers; that A-3 is the son of A-25; that A-6 and A-7 arebrothers of A-3; that A-8 and A-12 are brothers; that A-9 is thenephew of A-8; that A-21 and A-22 are brothers, and thus they areall related to each other; that the police would have added theirnames or P.W.1 at the instigation of his friend who was involved inthe earlier murder, should have roped in all these accused persons;that they have nothing to do with the crime; that the motive partwhich was attributed by P.W.1 is found to be entirely different;that in the FIR, he has stated that the deceased implicated A-1 ina murder case, and thus A-1 was aggrieved, and he hatched up aconspiracy, and it has culminated in the murder; but, he has givena version in the evidence contra; that according to his evidence,it was A-1 who implicated the deceased in an earlier murder case,and thus, contradictory version as to the motive was spoken to byP.W.1; that this would be indicative of the fact that P.W.1 withdifferent versions has gone on his own grudge; that P.W.1 is alsoshown to have involved in number of criminal cases, and thus, hisevidence could not be believed; that P.W.3 was the Head Constableand P.W.4 was the Para Constable at the police station; that P.Ws.3and 4 though claimed that they were injured at the time of theoccurrence, they are expected to give special reports; but, eitherP.W.3 or P.W.4 have not given any special report at all; that noexplanation was forthcoming in that regard; that as far as P.Ws.3and 4 are concerned, they have given evidence, and the originalstatements given by them are found to be different; that it is acase where the occurrence has taken place in a police station; thatnot only a murder has taken place, but also P.W.3 Head Constable,and P.W.4 Constable, were injured; that bombs were also hurled;that under the circumstances, the higher officials should have cometo the police station immediately and that too in the State ofPondicherry; but, in the instant case, the FIR has reached theCourt at about 12.00 A.M. night; that no explanation is tendered;that ordinarily mere delay will not suffice to reject theprosecution case; but, in the case on hand, the unexplained andinordinate delay would tell upon the prosecution case and that toothe occurrence has taken place inside the police station; and thatunder the circumstances, the evidence forthcoming from theprosecution side should not be accepted. 12.The learned Senior Counsel pointing to the original FIR,would contend that the serial number is 2301; that the next numberas could be seen is 2303, and Sl.No.2302 is found missing; that noexplanation was forthcoming; that added further, as expected by theprocedure, the carbon copies should have been despatched to theauthorities; that in the instant case, photocopies were actuallysent; that the photocopies which were placed before the higherofficials would clearly indicate that they could not have beenprepared from the original since discrepancies are found; that forinstance, A-21's name is not in the original FIR, and it has beeninterpolated in the photocopy; that equally, in the column"receiving the copy of the FIR" at the second page, no signature isfound in the original; but in the photocopy it has been added; thatall would go to show that the FIR could not have come into https://hcservices.ecourts.gov.in/hcservices/ existence as put forth by the prosecution; and that the abovecircumstances would clearly indicate that P.W.1 could not have beenpresent at the place of occurrence. 13.The learned Senior Counsel would further add that in theinstant case, there was a preliminary charge sheet and later therewas an additional charge sheet; that the preliminary charge sheetcontained only 20 names; that the additional charge sheet wouldcontain 25 names; but the Investigator has categorically admittedthat after the preliminary charge sheet was filed, no investigationwas done; and that under the circumstances, five names should havebeen added without any reason whatsoever. 14.Added further the learned Senior Counsel that as far as thename of P.W.1 is concerned, another important factor which wouldcast a doubt whether Ex.P1 could have come into existence as putforth by the prosecution, was that P.W.1's name is found in Ex.P1as Duiman @ Manikandan; but, it is found in evidence as Veeman @Manikandan, and thus it would be quite clear that Ex.P1 could nothave been prepared when P.W.1 was present; that his signatureshould have been obtained after its preparation, and thus Ex.P1 ishighly doubtful. 15.Added further the learned Senior Counsel that as far as thepresence of P.W.2 is concerned, the evidence of P.W.2 was rightlyrejected by the trial Court; that if the presence of P.W.1 isdoubtful, what could be available for the prosecution is theevidence of P.Ws.3 and 4; that they were police personnel; thatapart from that, they have given different versions before theDoctor and also in the evidence; that the GD entry is also found tobe different; and that all would go to show that no credit could beattached to the evidence of P.Ws.3 and 4. 16.Added further the learned Senior Counsel that the furtherevidence of P.W.1 that at the time when they were actually comingin the bike, it was A-3 who was riding one bike and A-1 anotherbike; that as regards pillion riders, no statement was given beforethe Court; that P.W.34, the Investigating Officer, has stated inhis inquest report that at the time of occurrence, A-21 was ridingone bike and A-3 was riding another bike and in the first bike, A-1and A-2 were pillion riders; that as per the remand report, A-8 andA-22 were the pillion riders and thus inconsistent versions werefound; and that all would go to show that the prosecution hasmiserably failed to prove the presence of the accused persons whowere found guilty by the trial Court. 17.The learned Senior Counsel would further add that as far asA-1 was concerned, he had fracture on the third metabone right footand had treatment with D.W.1, the Doctor, who advised him to takerest for 40 days; that he was actually very well available in thehouse; that a condolence has taken place in the opposite house, andhe was found present in his house till 3.00 P.M. on that day, andthus, he could not have participated in the occurrence at all; thatthe defence has brought forth sufficient evidence to disprove theprosecution story; but, the trial Court has not adverted itsattention in any one of the aspects; that apart from that, it is a https://hcservices.ecourts.gov.in/hcservices/ case where there is thorough lack of evidence; that under thecircumstances, the prosecution has miserably failed to prove itscase, and hence they are entitled for acquittal.18.Advancing arguments on behalf of A-7 and A-22, the learnedSenior Counsel Mr.V.Gopinath, would urge that the FIR has reachedthe Court at 12.00 A.M. night; that P.W.34 has not given anyexplanation at all; that the evidence of P.Ws.3 and 4 was shaky asto their presence and that of P.W.1; that in a given case likethis, the higher officials immediately on reaching the policestation, should have verified whether the FIR has been sent or not;that in the case on hand, the FIR was not sent immediately, but hasreached the Court at 12.00 A.M.; that this would clearly indicatethat sufficient developments have been made; and that allembellishments possible have also been made. 19.The learned Senior Counsel would further add that the trialCourt has not marshaled the evidence proper and the totality of theevidence what was available that P.W.1 was not present; that P.Ws.3and 4's evidence was shaky and thoroughly unbelievable and notbecause of the reason that they were police personnel; but, theyhave given different versions regarding the way in which theoccurrence has taken place and they were also attacked; that underthe circumstances, the prosecution has miserably failed to proveits case, and hence they are entitled for acquittal in the hands ofthis Court.20.The learned Additional Public Prosecutor (Pondicherry)assailing the judgment of the trial Court in respect of the part ofacquittal and also in answer to the above contentions put forth bythe learned Senior Counsel for the appellants/accused, would submitthat in the instant case, the prosecution has proved the conspiracytheory by examining P.W.12, who has given a categorical evidencethat he was present at the time when the conspiracy talks weregoing on; and that the statement would clearly indicate that theconspiracy has been proved; but, the trial Court has erroneouslyrejected the same without any reason whatsoever. 21.Added further the learned Additional Public Prosecutor thatin the instant case, P.W.1 was the person who actually accompaniedthe deceased at the time when they went by M.O.9, a two-wheeler;that this part that he actually travelled with the deceased isfound place in Ex.P1 document, and thus it would be quite clearthat the first part of the occurrence has taken place outside thepolice station when P.W.1 has accompanied the deceased and when A-1and others came in two wheelers and dashed against them; that P.W.1has categorically deposed that the deceased who was riding themotorbike and P.W.1 who was the pillion rider fell down and theyimmediately attempted to escape and it was A-1 who gave a cut onthe shoulder of the deceased and even then he made an attempt toran from the place and at that time, it was A-22, who gave anothercut on the backside of the head with which both of them managed toget into the police station, and thus it would be quite clear thatthe contentions put forth by the appellants' side that P.W.1 couldnot have been in the place of occurrence cannot be believed; thatmerely because of the reason that the presence of P.W.1 does not https://hcservices.ecourts.gov.in/hcservices/ find place in the GD entry or there was a delay in FIR reaching theCourt or the news item that was published in the newspaper in thenext morning did not speak of the presence of P.W.1 at the place ofoccurrence, it cannot be stated that P.W.1 could not have beenpresent at all; that it is true that the photocopies were preparedand they were all sent as they are placed before the Court; that itis not correct to state that when the original charge sheet wasfiled, 20 names were there and thereafter five names were added;that it is pertinent to point out that that 25 names were actuallydescribed in Ex.P1 document; but they were omitted to be mentionedin the first charge sheet and then additional charge sheet wasfiled; and that under the circumstances, it cannot take away thetruth of the prosecution case. 22.Added further the learned Additional Public Prosecutor thatthe trial Court should not have rejected the evidence of P.W.2;that P.W.2 was actually a tea shop owner who was actually standingnearby, and he has actually seen the first part of the occurrence;that he has given a clear narration; but, without any reasonwhatsoever, the trial Court has rejected the evidence of P.W.2;that as far as P.Ws.3 and 4 were concerned, they were on duty inthe police station; that except these two police personnel, no bodywas inside the police station; that these accused persons have gotinside and attacked them; that P.Ws.3 and 4 have given a clearnarration of the entire incident; that they have gone to the extentof stating that they knew all the accused persons by names sincethey were actually involved in number of cases; that they haveactually identified the persons who have actually got inside andattacked them and also hurled bombs, and thus they have witnessedthe murder; that apart from that, they have also been injured; thatso long as they were actually injured in the same transaction,their evidence cannot be in any way suspected or doubted; thatadded circumstance in favour of the prosecution was that P.W.3 wasexamined by P.W.17, the Doctor, at 3.00 P.M. within an hour andP.W.4 at 3.10 P.M.; that they have mentioned that they wereattacked at the police station and they had sustained injuries;that they have also mentioned that they were attacked by four knownpersons; that mentioning 4 cannot be taken that only four personswere present at the time of occurrence; that it remains to bestated that when both the persons were taken from the policestation to the hospital, one could visualize the anxiety withinwhich they could have been put, and under the circumstances, muchreliance cannot be placed on the same. 23.Added further the learned Additional Public Prosecutor thatmerely because there was a delay in FIR reaching the Court, theprosecution case cannot be suspected or it cannot be stated thatnumber of accused persons who were actually inimical to theprosecution witnesses, were actually put in. The learnedAdditional Public Prosecutor would add that it is well settledproposition of law that for application of Sec.149 IPC, no overtact could be attributed; that what is all required is that theconcerned person must be a member of unlawful assembly and heshould have acted in furtherance of the common object which theassembly had; that in the instant case, all the persons were armedwith weapons and also some of them with bombs; that some of them https://hcservices.ecourts.gov.in/hcservices/ entered into the police station where the occurrence has takenplace; that the conduct and act of the accused would speak volumeof the common object and design which they entertained at thattime; that under the circumstances, the presence of the otheraccused persons who were ordered to be acquitted by the trial Courtif proved, then automatically they are also members of the unlawfulassembly, and they should be dealt with equally along with theappellants/accused; that the prosecution by examining P.Ws.1, 2, 3and 4 has proved the presence of the other accused; but, the trialCourt has taken an erroneous view that Sec.149 cannot be appliedagainst others, which is against the settled principles of law;that the prosecution has proved their presence, and all otheraccused had the common object which the persons who have beenconvicted by the Court had, and hence they are to be dealt with bythe Court. The learned Additional Public Prosecutor brought to thenotice of the Court the ratio rendered by the Apex Court in thisregard. He would further submit that the accused persons who havebeen acquitted by the trial Court, have got to be dealt with inaccordance with law. 24.The Court had a thorough scrutiny of the materialsavailable and paid its anxious consideration on the submissionsmade.25.It is not in controversy that one Jayakumar, the elderbrother of P.W.1 was done to death at about 1.45 P.M. On 26.3.2004,in Mudaliarpet Police Station. Following the inquest made byP.W.34, the Investigator, the dead body was subjected to postmortemby P.W.15, the Doctor, who has given a postmortem certificate,Ex.P20, with his opinion that the deceased died due to shock due tomultiple injuries sustained by him, chief being the head and neckinjuries. This fact was never disputed by the appellants before thetrial Court. Hence the trial Court has recorded that he died outof shock and haemorrhage and rightly too. 26.At the outset, it has to be pointed out that theprosecution story commenced with a conspiracy theory alleged tohave been hatched up by A-25 and his son A-3 along with A-1 on theprevious day of occurrence i.e., 25.3.2004 at about 6.00 A.M. Theonly witness examined in this regard is P.W.12. According toP.W.12, he was just proceeding in his way and crossing the house ofA-25, and at that time, he found number of motorbikes parkedoutside, and then he peeped in and over heard the talks between A-25 and his son A-3 that the deceased was the hurdle and was givingproblems to them, and he should be finished off, and at that time,A-1 was also present, and he also took the words, and A-1 wasdesigned as the leader in order to finish him off, and followingthe same, the occurrence has taken place on the next day. Thetrial Court has disbelieved this theory. Aggrieved over this, theprosecution in the course of its appeal made the submissions asstated above. This Court is of the considered opinion that therejection of the prosecution case in respect of conspiracy theory,by the trial Court was perfectly correct. The evidence of P.W.12was highly artificial. So long as he is in the camp of theprosecution witnesses, there is no question of himself over hearingwhat has been taking place, and that too at 6.00 A.M. on the https://hcservices.ecourts.gov.in/hcservices/ morning of 25.3.2004. The evidence of P.W.12 cannot but be brushedaside since his statement has reached the Court after four or fivemonths. It is true that the prosecution wanted to make out someevidence, and for that purpose, P.W.12 has been introduced, and hisstatement has been recorded, and he was projected as a witnessbefore the Court. Under the circumstances, the trial Court wasperfectly correct in rejecting the prosecution story as toconspiracy, and this Court is unable to notice anything to disturbthat part of the judgment. 27.In order to prove the other part of the case, theprosecution marched P.Ws.1 to 4 as eyewitnesses to the occurrence.As seen from the available materials and the case as placed beforethe trial Court, a part of the occurrence has taken place outsideMudaliarpet Police Station, and the other part was inside thepolice station. According to the prosecution, P.W.1 accompaniedthe deceased brother, and they came in a two wheeler, and theaccused persons were found gathering nearby the police station, andA-1 and A-3 who were actually riding the two wheelers dashedagainst the two wheeler driven by the deceased, and they fell down,and immediately, it was A-1 who gave a cut on the shoulder of thedeceased, and in order to escape both of them ran, and at thattime, A-22 cut him on the back of his head, and he sustained severeinjuries, and with oozing of blood, he just got inside the policestation. This part of the occurrence is spoken to by P.Ws.1 and 2.The trial Court has marshalled the evidence proper insofar asP.W.2, and has found that P.W.2 could not have seen the occurrenceat all. The reasons adduced by the trial Court, in the opinion ofthis Court, were perfectly correct, and thus the rejection of theevidence of P.W.2 has been rightly done. Therefore this Court isunable to accept the contention put forth by the learned AdditionalPublic Prosecutor before this Court to believe the evidence ofP.W.2.28.The learned Senior Counsel for the appellants brought tothe notice of the Court that P.W.1 could not have been at the timeof occurrence for the reasons stated by them; that Ex.P1 has notcome into existence as claimed by P.W.32 at about 2.00 P.M.; thatit has reached the Court at about 12.00 A.M.; that there was aninordinate delay remained unexplained; and that both the policestation and Judicial Magistrate's Court are in the State ofPondicherry. The further contentions are that in thecontemporaneous document namely General Diary (G.D.), the presenceof P.W.1 is not shown; that equally, in the press report which waspublished in the next day, the presence of P.W.1 is not mentioned;that P.W.1 has given a version that A-3 and A-1 drove twomotorbikes respectively; but, in the remand report, it is statedcontra; and that all would indicate that P.W.1 could not have beenin the place of occurrence at all. Added further the learnedSenior Counsel that the FIR is only a manipulated one after thearrival of P.W.1 with the connivance of his friend, and all thenames of the accused have been added there. 29.As could be seen from the available materials, the presenceof P.W.1 at the initial stage of the occurrence cannot be ruled outin the considered opinion of the Court. From the evidence of https://hcservices.ecourts.gov.in/hcservices/ P.W.1, it would be quite evident that the first part of theoccurrence has taken place outside the police station, and at thattime, it was A-1, who gave a cut on the shoulder of the deceased,and it was A-22 who gave a cut on the backside of his head, andwith bleeding injuries, the deceased has actually made entry intothe police station. Now, at this juncture, it is pertinent topoint out that immediately after seeing this part of theoccurrence, P.W.1 could have gone home to inform the persons, or hecould have been under the grip of fear since the deceased withbleeding injuries got into the police station. Under thecircumstances, when the G.D. entry was made, the name of P.W.1 doesnot find place there. It would also make it clear that P.W.1 couldnot have seen the occurrence what has taken place inside the policestation. However, in the considered opinion of this Court, Ex.P1,the report, can be acted upon for the purpose of setting thecriminal law in motion. 30.As far as the occurrence that has taken place inside thepolice station was concerned, this Court is of the consideredopinion that the evidence of P.Ws.3 and 4, the Police Personnel,would suffice. P.W.3 was a Head Constable, and P.W.4 was the ParaConstable, and they were the only two persons present atMudaliarpet Police Station at about 1.45 P.M. on that day. Itremains to be stated that their presence in the Police Station wasnot a fact in dispute. Immediately after the occurrence, both weretaken to the Medical Officer for treatment. P.W.17 the Doctor, hasmedically examined them. Exs.P25 and P26 are the wound certificatesrespectively. The time and place of occurrence all are mentionedtherein. Apart from this, P.Ws.3 and 4 have stated to the Doctorthat four persons have attacked them. Now, the learned SeniorCounsel for the appellants brought to the notice of the Court thatat the time of evidence, they have categorically deposed that theywere attacked by only one person. At this juncture, the G.D., acontemporaneous document, which has come into existence, clearlyspeaks about the names of three persons, and also some others.Equally, according to P.W.34, the Inspector of Police, he receiveda message where the names of three persons are mentioned and someothers are also stated. Thus it would be quite clear that P.Ws.3and 4 have categorically deposed that the accused persons areknown. At this juncture, it is pertinent to point out that eitherin the GD entry, or in the message given, or in the woundcertificates, Exs.P25 or P26, nowhere number of accused arementioned as 25, but some others. 'Some others' cannot mean 25.But, it would be quite clear that when they witnessed that part ofthe occurrence, these two persons were injured in the course of thesame transaction. It is settled principle of law that in a givencase when the eyewitnesses happened to be injured witnesses, unlessand until strong circumstance or reason is brought to the notice ofthe Court, their evidence should not be discarded. That part of theoccurrence has taken place inside the police station, and they werethe only persons on duty. That apart, the deceased has come withthe bleeding injuries, and in that process, they went to therescue. At that time, P.W.3 actually caught one accused, and P.W.4caught another accused and in that, they were attacked. It is alsopertinent to note that at that time, it was A-1, A-3 and A-12have hurled bombs against the deceased, and as a direct https://hcservices.ecourts.gov.in/hcservices/ consequence, he died inside the police station. Apart from this,they have given evidence that A-1, A-3, A-7, A-8, A-12 and A-22were present. Thus it would be quite evident that there was allpossibility for P.Ws.3 and 4 seeing the accused persons inside thepolice station. 31.It is true that nowhere in the contemporaneous documentwhich has come into existence at the earliest namely G.D., or inthe information to the higher officials or in the woundcertificates Exs.P25 and P26, these 25 persons were named. Now,their evidence before the Court would go to show that except thenames mentioned therein, some others were also involved. But, thecorresponding entries are made in the G.D. mentioning the names ofthe accused four in number, and also some others. The evidencegiven before the trial Court by P.Ws.3 and 4 would clearly indicatethat they were present at the time when the occurrence has takenplace. That apart, some of the accused namely A-1, A-3 and A-12,have hurled bombs against the deceased, and they have actuallydeterred the police officials from performing their duties at thattime. Added further, they have not only caused injuries to P.Ws.3and 4 being public servants in the discharge of their duty, butalso deterred them from lawfully discharging their duty. 32.In the case on hand, A-1, A-3, A-7, A-8, A-12 and A-22 allwere not attributed with the injuries caused to the deceased. But,once they were found with bombs and also lethal weapons andentering into a police station and that too during day hours, orchasing the deceased inside the police station, it cannot but beeasily understood that they have entered so in furtherance of thecommon object of killing him. As rightly pointed out by thelearned Additional Public Prosecutor, mere presence of thesepersons at the time of occurrence in furtherance of the commonobject would suffice to constitute the offence. 33.As regards the contention that the FIR has reached theCourt after a long interval, it was evident that immediately afterthe occurrence, the shutters were closed in the police station, andthere was a commotion. Two of the police personnel were injured inthe occurrence, and they were taken to the hospital immediately.Quite natural that the delay could have been caused by such events.It is true that some more delay has occasioned. But, because ofthe delay, when the Court is able to notice sufficient evidence inrespect of the occurrence in question, the Court should not rejectthe prosecution case. 34.The comment made by the learned Senior Counsel for theappellants that the FIR Serial No.2301 is pertaining to CrimeNo.101/2004, and the FIR serial No.2302 is found missing; but,Sl.No.2303 is found, and hence it would cast a doubt on the FIRcannot be accepted for three reasons. Firstly, in all the pages ofthe FIR Book, the serial numbers are found continuous. Secondly,missing of subsequent number will not in any way affect the presentcase. Thirdly, the contemporaneous document G.D. contained shortnarrative of the incident in question. https://hcservices.ecourts.gov.in/hcservices/

35.For the reasons stated above, it can be well stated thatthe trial Court has marshaled the evidence proper and has come tothe correct conclusion that the appellants herein namely A-1, A-3,A-7, A-8, A-12 and A-22 have committed the offences. 36.As far as the appeal by the State and revision by P.W.1 areconcerned, this Court is unable to notice any merit in thecontentions put forth by the learned Additional Public Prosecutoror by the learned Counsel for the revision petitioner for thereasons stated above, and they are liable to be rejected andaccordingly, rejected.37.As far as the conviction and sentence imposed by the trialCourt on A-1, A-3, A-7, A-8, A-12 and A-22 under Sections 148 and302 r/w 149 IPC are concerned, they have got to be sustained.Accordingly, they are sustained.38.The conviction and sentence imposed on A-1, A-3 and A-12under Sec.4(a) and (b) of the Explosive Substances Act r/w 149 IPCare sustained.39.As regards the conviction under Sec.333 (2 counts) r/w 149IPC is concerned, it has got to be sustained. Accordingly, it issustained; but, the sentence of seven years Rigorous Imprisonmentimposed by the trial Court is reduced to 5 years RigorousImprisonment. 40.So far as the attack on P.W.3 was concerned, the injuryinflicted was simple. Under the circumstances, the conviction andsentence imposed by the trial Court on A-1, A-3 and A-12 underSec.307 r/w 149 IPC are set aside, and instead, they are convictedunder Sec.324 IPC and directed to undergo three years RigorousImprisonment.41.As regards the attack on P.W.4, grievous injury has beencaused. In such circumstance, the conviction and sentence imposedon A-1, A-3 and A-12 under Sec.307 r/w 149 IPC are set aside, andinstead they are convicted under Sec.326 IPC and directed tosuffer five years Rigorous Imprisonment.42.The sentences are to run concurrently. The sentencealready undergone by the respective accused shall be given set off.The fine imposed by the trial Court will hold good.43.In the result, with the above modification in convictionand sentence, C.A.Nos.156 and 157 of 2008 are dismissed.C.A.No.575 of 2008 and Crl.R.C.No.1137 of 2008 are dismissed. NsvSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1.The II Additional Sessions Judge, Pondicherry 2.Do Through The Prl Sessions Judge, Pondicherry.3.The Judicial Magistrate No.1, Pondicherry.4.Do Through The Chief Judicial Magistrate, Pondicherry.5.The Superintendent, Central Prison, Pondicherry.6.The Inspector of Police, Mudaliarpet Circle, Pondicherry, 7.The Public Prosecutor High Court, Madras.8.The District Collector, Pondicherry.9.The Director General of Police, Chennai.+ 2 ccs to Mr. A. Stalin, Advocate SR Nos.32874, 32875+ 1 cc to Government Pleader – cum – Senior Public Prosecutor,(Pondicherry) CCSR Nos.34801CRL.A.Nos.156, 157 and575 of 2008 andCRL.R.C.1137 of 2008GV(CO)SR/28.8.2009