High Court · 2009

B A I L S L I PThe Appellant/Accused-1, Viz., Prakash, age 19, S/o Arumugamwas directed to be released on bail as per the order of this Courtdated 11.6.2008 in Crl.MP.No.1/2008 in Crl.A.303/2008.The Appellant/Accused-2, Viz., Neelakrishna @ Leela Krishnan,S/o Kandaswamy was directed to be released on bail as per the orderof this Court dated 3.6.2008 in Crl.MP.No.1/2008 in Crl.A.370/2008.The Appellant/Accused-4, Viz., Sampath alias Sampathkumaralias Silambarasan was directed to be released on bail as per theorder of this Court dated 31.7.2008 in Crl.MP.No.1/2008 inCrl.A.423/2008.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.06.20089CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCriminal Appeal Nos.303, 370 & 423 of 2008Prakash.. Appellant in C.A.303/2008(Accused No.1)Neela Krishnan @ Leela Krishnan .. Appellant in C.A.370/2008(Accused No.2)Sampath alias Sampathkumar alias Silambarasan .. Appellent in C.A.423/2008(Accused No.4).Vs.State represented byAssistant Commissioner of Police,B-5, Police Station (L & O),Coimbatore. (Crime No.261/2007).. Respondent in C.A.303/08 & 423/08The Assistant Commissioner of Police,B-5, Singanallur Police Station,Coimbatore District... Respondent in C.A.370/08 https://hcservices.ecourts.gov.in/hcservices/ These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence passedby the learned Special Court and Principal Sessions judge,Coimbatore made in S.C.No.25 of 2007 dated 10.4.2008For Appellantin Crl.A.Nos.303 & 423/2008 : Mr.Su.SrinivasanFor Appellant inCrl.A.No.370/2008 : Mr.K.KalyanasundaramFor Respondent : Mr.N.R.Elango, APP COMMON JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)All these three appeals namely C.A.Nos.303, 370 and 423 of2008 concentrate in challenging a judgment of the PrincipalSessions Division, Coimbatore, in S.C.No.25 of 2007. Theappellants/accused stood charged, tried, found guilty and awardedpunishment as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-4147 IPCNot guiltyA-1 & A-2148 IPCNot guiltyA-1 to A-43(1)(x) of SC/ST(Prevention ofAtrocities Act),1989A-1 guilty.Others notguilty.6 months RIalong with afine ofRs.1000/- anddefault sentenceA-1 to A-4302 r/w 34 IPCr/w 3(2)(v) ofSC/ST(Prevention ofAtrocities Act),1989A-1 & A-2guilty. A-3 & A-4 not guilty,but guilty underSec.323 IPCA-1 & A-2 – Lifeimprisonmentwith a fine ofRs.1000/- anddefault sentenceA-3 & A-4 - 6months RI alongwith a fine ofRs.1000/- anddefault sentence2.The short facts necessary for the disposal of these appealscan be stated as follows:(a) P.W.1 is a resident of Ondipudur. He has two sons. Hebelonged to Scheduled Caste. The deceased Dhandapani was thesecond son. He was working in Santhi Gears. He used to go for hiswork at about 7.00 A.M. and return at 6.00 P.M. P.Ws.2 and 4 were https://hcservices.ecourts.gov.in/hcservices/ working with the deceased. On 3.3.2007, accompanied by P.Ws.2 and4, he was proceeding to his house. When they were crossingJallikuli Street, they came to know that there was annadhanam(distribution of free food) at Vinayaga Temple. Immediately thedeceased and P.Ws.2 and 4 went there to take food. The deceasedsat along with others to take food. At that time, A-1 also triedto take the seat. On seeing the deceased who was about to takeseat, A-1 uttered "Do you want to sit along with us". Thedeceased questioned that he did not commit anything wrong and whyA-1 should talk ill of his caste. Immediately A-1 took a woodenlog and attacked the deceased on his head. A-2 took anotherwooden log and joined A-1 in attacking him. All the other accusedkicked him on different parts of the body. When a huge crowdgathered and intervened, the accused fled away from the place ofoccurrence with the wooden logs. (b) P.Ws.2 and 4 took the deceased and left him nearby hishouse and went away from the place. P.W.1 on seeing the injuries,enquired the deceased. Then he took him to the clinic of P.W.3 aprivate doctor. P.W.3 medically examined the deceased between10.45 P.M. and 11.00 P.M. and gave the initial treatment.Thereafter, P.W.1 took the deceased to the Government Hospital,Coimbatore. On 4.3.2007, at about 5.37 A.M., when P.W.18, theDoctor, was on duty, he examined the deceased. The accidentregister copy is marked as Ex.P7. Despite the treatment given byP.W.17, another Doctor, he died at about 0915 hours. An intimationwas given to the respondent police. (c) On receipt of the death intimation, Ex.P8, P.W.24 theInspector of Police, proceeded to the Government Hospital andrecorded the statement of P.W.1 which is marked as Ex.P1. On thestrength of Ex.P1, the report, a case came to be registered inCrime No.261/2007 under Sections 147, 148, 302 of IPC and Sec.(3)(2)(v) of SC/ST (Prevention of Atrocities) Act. The printed FIR,Ex.P18, was despatched to the Court. (d) P.W.25, the Assistant Commissioner of Police, took upinvestigation, proceeded to the spot, made an inspection andprepared an observation mahazar, Ex.P2 and also a rough sketch,Ex.P19. Then P.W.15, the photographer, took the photos. TheInvestigating Officer conducted inquest on the dead body in thepresence of witnesses and panchayatdars and has prepared an inquestreport, Ex.P20. Then a requisition was sent to the hospitalauthorities for the purpose of postmortem. (e) P.W.18, the Medical Person, attached to the CoimbatoreMedical College and Hospital, on receipt of the said requisition,conducted autopsy on the dead body and has given his opinion in thepost-mortem certificate, Ex.P10, wherein he opined that thedeceased would appear to have died of head injuries sustained byhim. (f) Pending the investigation, on 6.3.2007, A-1 was arrested.He gave a confessional statement. The admissible part is marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.P3, pursuant to which he produced M.O.1, wooden log, which wasrecovered under a cover of mahazar. At the time of arrest, A-4came forward to give a confessional statement which was recorded inthe presence of witnesses. All other accused surrendered beforethe Court. The Investigating Officer obtained the communitycertificate for the deceased from P.W.21, the Tahsildar, wherein itwas shown that he belonged to Arunthathiyar Community. Equally, heobtained the community certificates of A-1 to A-4 marked as Exs.P14to P17 respectively, wherein it was shown that they belonged toKurumba Community. On completion of investigation, the Investigatorfiled the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 25 witnesses and also relied on 23 exhibitsand 5 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. Nodefence witness was examined. The trial Court heard the argumentsadvanced and took the view that the prosecution has proved the casebeyond reasonable doubt and hence found the appellants guilty andawarded punishment as referred to above. Hence these appeals atthe instance of the appellants.4. Advancing the argument on behalf of the appellants learnedcounsel would submit that according to the prosecution, theoccurrence has taken place at 9.00 p.m. on 3.3.2006. When P.Ws. 2,4, 5 and the deceased Dhandapani were going near the Vinayagatemple, they saw distribution of free food at Vinayaga Temple. Thedeceased Dhandapani and P.Ws.2 and 4 went there to take food. Thedeceased sat along with others to take food. On seeing that A1abused by uttering the caste of the deceased and in thattransaction, A1 took a wooden log and attacked the deceased on hishead. A2 also took a wooden log and attacked the deceased, whileA3 and A4 kicked the deceased and as a direct consequenceDhandapani died at about 9.15 a.m., the next day in the GovernmentHospital.5. The learned counsel would submit that in order tosubstantiate the charges levelled against the appellants, theprosecution marched P.Ws. 2, 4 and 5 as eye witnesses. From theirevidence, it would be quite clear that they not only belonged tothe community of the deceased but also they were close friends andrelatives and their houses are situated very nearby to the houseof the deceased. While those witnesses claim that they saw theoccurrence in which the deceased was severely beaten by theaccused and took him to his house since he could not walk, theyleft him in the street itself even without informing to the parentsor relatives of the deceased, which by itself would clearlyindicate to the fact that P.Ws. 2, 4 and 5 would not have seen theoccurrence at all. P.W.1 though not an eye witness would claim thatat about 10.00 p.m., he took the deceased to a private clinic of https://hcservices.ecourts.gov.in/hcservices/ P.W.3 doctor where P.W.3 gave initial treatment. P.W.3 hascategorically stated in his evidence, it was told that thedeceased fell down and sustained injuries. 6. Added further learned counsel, the deceased was taken tothe Government Hospital at 4.00 a.m. where P.W.16 doctor gavetreatment to the deceased and the accident register copy was alsomarked as Ex.P7 wherein it is clearly stated that he sustainedinjuries while riding bicycle and fallen into a pit on the road at9.00 p.m. on 3.3.2007 near Ondipudur. Thus, it would be quite clearboth the statement made by P.W.3 and P.W.16 doctors and also whichis found in record in Ex.P.7 would go against the prosecution casethat the deceased was attacked by the accused at the place ofoccurrence. Thus, it would bely the evidence of the prosecutionwitness. Learned counsel would further add, much reliance wasplaced on the recovery of M.O.1-wooden log pursuant to theconfessional statement alleged to have been made by A1 on 6.3.2007.though it was claimed that recovery was made in a public placewhere there was number of independent witnesses, no independentwitness was examined. The prosecution examined R.D.O and the R.D.O.would claim that he travelled in the jeep along with the AssistantCommissioner during recovery. On the contrary, the InvestigatingOfficer/Assistant Commissioner has deposed that he travelled onlywith a police personnel and the discrepancies in the evidence wouldclearly indicate the fact that the recovery of M.O.1 as alleged bythe prosecution cannot be but false and the prosecution cannothave advantage of that evidence. 7. Learned counsel would further add that P.W.1 would claimthat P.W.2 4 and 5 came to the hospital at 9.30 a.m. after thedeath of his son and gave information to him. If to be so, itshould have been brought to the notice of the police immediately,but the case was actually registered in Ex.P1 report at about 1.30p.m. on the same day. Thus, the delay would clearly indicate thatEx.P1 was a fabricated one and it is an afterthought. Under suchcircumstances, the prosecution case actually suffers from allangles. 8. Coming to the second line of argument, learned counselwould submit that in the instant case, there is nothing to indicatethat the accused had any common intention to kill the deceased orshared the same. Under such circumstances, the injuries that hasbeen sustained were only simple in nature and the same has to beconsidered by this Curt.9. Learned counsel appearing for Crl.A.No.370/2007 wouldsubmit that the prosecution did not place any evidence that A2 hadany common intention to kill the deceased or share the same. On thecontrary the evidence would clearly indicate that he caused simplyinjury below the eye of the deceased. Even assuming the factualposition putforth by the prosecution is taken to be not proved, itwould not certainly attract the penal provision of murder but heshould be found guilty for the simple injuries caused to the https://hcservices.ecourts.gov.in/hcservices/ accused. Under such circumstances, this has got to be considered bythis Court.10. The Court heard the learned Additional Public Prosecutoron the above contentions and paid its anxious consideration on thesubmissions made.11. It is not in controversy that the son of P.W.1, followingthe incident that took place at 9.00 p.m. on 3.3.2007 was taken toprivate hospital of P.W.3 doctor and thereafter to GovernmentHospital Coimbatore, where despite treatment given, died at9.15 a.m on 4.3.2007. Following the inquest made by theInvestigation officer/Assistant Commissioner, the dead body wassubjected to post mortem by P.W.18 and he has given categoricstatement as a witness before the Court and also through the postmortem certificate marked as Ex.P.10 that the deceased would appearto have died of head injuries sustained by him. The fact that thedeceased died out of homicidal violence was never disputed by theappellants before the trial Court Under such circumstances, noimpediment is felt by this Court in recorded so.12. In order to substantiate that the accused persons at thetime of occurrence at 9.30 a.m on 3.3.2006, attacked the deceasedwith wooden log, the prosecution marched P.Ws.2, 4 and 5 as eyewitnesses. True it is, P.W.2, 4 and 5 were not only friends butalso relatives and residing in the same area where the deceasedwas living. The Court is very mindful of the caution made by thelearned counsel for the appellants and also the settled principlesof law that in a given case like this when the witnesses are closerelatives, their evidence must be accepted after careful scrutiny.When the evidence of P.Ws.2, 4 and 5 are marshalled properly andafter the application of the test of careful scrutiny, the Court isthoroughly satisfied that their evidence has got to be accepted.13. In the instant case, P.Ws.2, 4 and 5 have spoken in onevoice that after the work was over they accompanied the deceasedand while they were crossing the Vinayaka temple, they saw thatfree food distribution was going on. Immediately, the deceased wentto take food along with others. At that time, A1 found faultwith the deceased and made utterance of the community to which thedeceased belong. Immediately, the deceased questioned him aboutwhat was wrong committed by him. Suddenly, A1 took a wooden logand attacked the deceased on his head and A2 got the wooden logfrom A1 and attacked the deceased. Further, A3 and A4 kicked andbeat the deceased. All the three witnesses have spoken to this factand despite cross examination in full their evidence remain unshakyand it inspires the confidence of the Court. Apart from this, theocular testimony projected before the trial Court through thesewitnesses fully corroborates with the medical evidence. The postmortem certificate clearly indicate that there were injuries foundon the back side of the head and also simple injuries below theright eye. https://hcservices.ecourts.gov.in/hcservices/

14. Yet another circumstance in favour of the prosecution wasthe recovery of M.O.1 pursuant to the confessional statementvoluntarily given by the first accused and recovered by theAssistant Commissioner Investigating officer. This recovery ofweapon of crime which was identified by the witnesses before theCourt would show the nexus between the crime and the accused.Hence, the trial Court is perfectly correct in accepting theevidence of P.Ws.2, 4 and 5. Now, the contention putforth by thelearned counsel for the appellants that the ocular testimonyprojected through P.Ws.2 4 and 5 should be rejected since they havenot brought to the notice of the father or relatives of thedeceased immediately about the incident but they kept calm, cannotbe countenanced. It could be well stated that when such an incidenthad taken place, they have taken it lightly since the injuries werenot found outside the body of the deceased Dhandapani. Thus, theydid not make the matter much and they went to their respectivehouses. 15. It is also pertinent to point out that when the deceasedgot into the house, his father enquired him what had happened buthe was unable to express the same and showed in action that he hasgot some pain in his head. P.W.1 immediately took him to P.W.3clinic and gave initial treatment and brought him back home. Thus,no one had informed P.W.1 about the incident and thereafter, P.W.1kept quiet. At about 4.00 a.m., on seeing the physical condition ofhis son, he took his son to the Government Hospital. It is truethat he informed to the doctor P.W.16 that his son sustainedinjuries by falling down from a cycle. At this juncture, it ispertinent to point out that this answer of P.W.1 to P.W.16 isimaginary since P.W.1 was not informed by anybody either by thedeceased or by P.Ws.2, 4 and 5 how the incident had taken placeand how he sustained injuries. It is further to be pointed out thatthe information passed on to P.W.16 only by P.W.1 and not by thedeceased. The explanation actually tendered by P.W.1 at the time ofcross examination was, in order to save his son, he gave such aninformation to the doctor.16. After the death of the deceased P.Ws.2, 4 and 5 havereached the hospital and they informed P.W.1 how the incident hadtaken place and only then P.W.1 came to know about the incidentand the injuries sustained by his son. Thereafter, he brought thesame to the notice of the police. It is true that there was delay,but for this delay, the case of the prosecution, cannot berejected. The contention putforth by the learned counsel for theappellants and recorded above, do not carry any merits whatsoever.The Court is satisfied that there are sufficient evidence toindicate that A1 and A2 assaulted the deceased with wooden logwhile A3 and A4 kicked the beat him. 17. From the narration of the incident that had taken place,it would be quite clear that none of the accused had any intentionor pre-meditation to kill the deceased but only due to the suddenact of the accused, the incident had happened. A1 was not armed https://hcservices.ecourts.gov.in/hcservices/ with any weapon and the wooden log was taken suddenly at the spot.Thus, it is clearly ruled out that they got any intention or pre-mediation but the act of the accused has caused the death of thedeceased as a direct consequence. Therefore, the Court is of theopinion that the act of the first accused would not attract thepenal provision of murder but would attract Section 304(ii) ofI.P.C. r/w 3(1)(x) of SC/ST (Prevention of Atrocities Act),1989,and the award of five years rigorous imprisonment would meet theends of justice. A2 has caused only simple injuries and there isnothing to indicate that he has common intention of causing deathof the deceased and therefore, the Court is of the opinion that theact committed by A2 would not attract the penal provision ofmurder but would attract section 323 I.P.C. and the award of sixmonths rigorous imprisonment would meet the ends of justice. Asfar as A3 is concerned, he has not preferred any appeal before thisCourt. As far as A4 is concerned, the conviction under Section 323I.P.C. and the sentence of six months rigorous imprisonment awardedby the trial Court are sustained.18. In the result, the judgment of conviction and sentenceimposed on A1 under Section 3(1)(x) of SC/ST (Prevention ofAtrocities Act), 1989 is confirmed. The conviction and sentenceimposed on A-1 under Section 302 r/w 34 of I.P.C r/w 3(2)(v) ofSC/ST (Prevention of Atrocities Act) 1989 are modified, insteadA1 is convicted under Section 304(ii) of I.P.C. and sentenced toundergo five years rigorous imprisonment. The judgment ofconviction and sentence imposed on A-2 under Sections 302 r/w 34of I.P.C. r/w 3(2)(v) of SC/ST (Prevention of Atrocities Act) 1989are modified, instead A2 is convicted under Section 323 ofI.P.C. and sentenced to undergo six month years rigorousimprisonment. The fine amount imposed by the trial Court on A1 & A2will hold good. As far as A4 is concerned, the conviction underSection 323 I.P.C. and the sentence of six months rigorousimprisonment awarded by the trial Court are confirmed.19. With the above modification in conviction and sentence,the criminal appeals are disposed of. It is reported that theappellants are on bail. The learned Sessions Judge is directed totake steps to secure the presence of the appellants and commit themto prison to serve the remaining period of sentence imposed uponthem.vsiSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate No.III, Coimbartore.2. Do Through The Chief Judicial Magistrate, Coimbatore.3. The Special and Principal Sessions Judge, Coimbatore.4. The Assistant Commissioner of Police, B-5, Police Station (L & O), Coimbatore.5. The Assistant Commissioner of Police, Coimbatore City East, B-5, Singanallur Police Station, Coimbatore.6. The Superintendent of Central Prison, Coimbatore.7. The District Collector, Coimbarore.8. The Director General of Police, Mylapore, Chennai 4.9. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. S.V. Srinivasan, Advocate, SR No.27442+ 1 cc to Mr. K. Kalyanasundaram, Advocate, SR No.27411Crl.Nos.303, 370 and 423 of 2008CU(CO)SR/20.7.2009