High Court · 2009

Bail SlipThe Appellant herein viz., E.Selvam - A1, Sivakumar - A3,Jayasankar - A6, Panneer - A4, Perumal - A5, Indra - A11, Ramesh -A7, Ramakrishnan - A8, koilmani - A9, A.Kamaraj - A10 said inCrl.A.Nos.354/08, 579, 469, 412, 459 and 463/07 (Accused A1, A3 toA11 in SC.No.303/04 dated 18.04.2007 on the file of the PrincipalSessions Judge, Villupuram District was directed to be released onbail as per order of the Court dated 10.07.2008, 27.07.2007,20.06.2007, 08.05.2007, 19.06.2007 and 19.06.2007 and made in MP.1 of2008 in Cr.A.354/08, MP.1 of 2007 in Cr.A.579/07, MP.1 of 2007 inCrl.A.No.469/07, MP.1 of 2007 in Cr.A.412/07, MP.1 of 2007 inCr.A.459/07, MP.1 of 2007 in Cr.A.463/07.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15-06-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.354 of 2008, 579, 469, 412, 459 and 463 of 2007E.Selvam.. Appellant/Accused No.1 in Crl.A.No.354/20081. Sivakumar2. Jayasankar.. Appellants/Accused No.3 & 6 in Crl.A.No.579/2007Panneer.. Appellant/Accused A4 in Crl.A.No.469/20071. Perumal2. Indra.. Appellants/Accused A5 & A11 in Crl.A.No.412/20071. Ramesh2. Ramakrishnan3. Koilmani.. Appellants/Accused 7,8 & 9 in Crl.A.No.459/2007A.Kamaraj.. Appellant/Accused A10 in Crl.A.No.463/2007 https://hcservices.ecourts.gov.in/hcservices/ ..vs..State byThe Inspector of Police,Vikkarapandi P.S.,Villupuram District.(Crime No.737 of 2003).. Respondent in all criminal appealsThese criminal appeals have been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Principal Sessions Judge,Villupuram District made in S.C.No.303 of 2004, dated 18.04.2007.For Appellants : Mr.Sathyachandran (A-1) in Crl.A.No.354 of 2008 Mr.B.Kumarasamy(A-3, and A-6) in Crl.A.No.579 of 2007 Mr.Mr.B.Kumarasamy(A-4) in Crl.A.No.469 of 2007 Mr.T.P.Sekar (A-5 & A-11) in Crl.A.No.412 of 2007 Mr.B.Kumarasamy (A-7 & A-8) in Crl.A.No.459 of 2007 Mr.T.P.Sekar (A-9) in Crl.A.No.459 of 2007 Mr.John Sathyan (A-10) in Crl.A.No.463 of 2007 For Respondent : Mr.N.R.Elango, APP.,COMMON JUDGMENT(Judgment of the court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern the following criminal appeals,namely, C.A.Nos.354/2008 by A-1, 579/2007 by A-2, A-3 and A-6,469/2007 by A-4, 412/2007 by A-5 and A-11, 459/2007 by A-7 to A-9and 463/2007 by A-10. https://hcservices.ecourts.gov.in/hcservices/

2. All these appeals challenge a judgment of the SessionsDivision, Villupuram, made in S.C.No.303 of 2004, whereby theappellants in these six appeals stood charged, tried and found guiltyas follows:AccusedChargesFindingsSentenceA-1 to A-3and A-6S.148 IPCA-1, A-3 and A-6 GuiltyA-2 died.One year R.I.each andto pay a fine ofRs.500/-, i/d toundergo two monthsR.I. each.A-4, A-5 andA-7 to A-11S.147 IPCGuiltyOne year R.I.each andto pay a fine ofRs.250/-, i/d toundergo one monthR.I. each. A-1 to A-11S.452 IPCA-1 and A-3 toA-11.Two years R.I.eachand to pay a fine ofRs.500/-, i/d toundergo two monthsR.I. each.A-3 and A-6S.324 IPCA-3 Not Guilty.A-6 GuiltyOne year R.I.each andto pay a fine ofRs.500/-, i/d toundergo two monthsR.I. each.A-1S.302 IPCGuiltyLife imprisonment andto pay a fine ofRs.1,000/-, i/d toundergo six monthsR.I.A-3 to A-11S.302 IPCr/w.149 IPCGuiltyLife imprisonmenteach and to pay afine of Rs.1,000/-i/d to undergo sixmonths R.I.A-8 S.323 IPCNot Guilty-The sentences imposed on the respective accused were ordered to runconcurrently. 3.The necessary facts for the disposal of these appeals can bestated thus: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.1 is the cousin brother of the deceased Dhanasekaran.P.W.2 is the wife of the deceased. All the accused and the deceasedbelonged to Wakkur New Colony. P.W.2 was the Panchayat member. Thedeceased was the Secretary of the Republic Party. The deceased and A-2 were on inimical terms because of the previous Panchayat election.There were number of criminal complaints lodged against them atVikkiravandi Police Station. The accused were threatening to do awaywith the deceased. Hence, the deceased was hiding himself for sometime.(b) On 16.11.2003, Dhanasekaran came to his village. Theaccused, who came to know about the same, visited the house ofP.W.1 Perumal armed with deadly weapons at about 10.30 AM andenquired about Dhanasekaran. When P.W.1 informed that he did not knowanything about him, A-3, A-6 and A-7 attacked him with weapons whileothers attacked him with hands. (c) P.W.2, on coming to know about the said incident, sent herhusband to the house of P.W.4 Mani Balan. P.W.1 immediatelyproceeded to the house of P.W.4 Mani Balan and kept Dhanasekaraninside the house and locked the doors with cycle chain. At that time,all the accused armed with deadly weapons, came there asking thewhereabouts of Dhanasekaran, broke open the lock and went inside. A-1 attacked with Veecharuval on the chest of the deceased and bloodwas sprinkling out. A-2 pierced on the chest of the deceased with acrowbar and by these attacks, Dhanasekaran met with his endinstantly. All of them fled the scene of occurrence along with theweapons. (d) P.W.1 was taken to the Government Hospital, Villupuram.P.W.8, the doctor on duty, at about 11.50 AM, examined him and gavetreatment. The copy of the accident register is marked as Ex.P-10.(e) P.W.9, the Head Constable attached to the VikkiravandiPolice Station, on receipt of information, proceeded to theGovernment Hospital, Villupuram, and recorded the statement given byP.W.1, which is marked as Ex.P-1, on the strength of which, heregistered a case in Crime No.737 of 2003 under Sections 147, 148,448, 323, 324 and 302 IPC. Express FIR, Ex.P-12 was prepared and sentto the concerned authorities.(f) P.W.12, Inspector of the Circle took up investigation,proceeded to the spot, prepared Ex.P-2 observation mahazar and alsoEx.P-13 rough sketch. P.W.13, the photographer, took the photos ofthe scene of occurrence and the photos are marked as M.O.6 series andthe negatives are marked as M.O.7 series. Then, P.W.12 conductedinquest on the body of Dhanasekaran in the presence of witnesses andpanchayatdars and prepared the inquest report Ex.P-14. Then, he sentthe dead body to the hospital for the purpose of postmortem alongwith a requisition. (g) On receipt of the said requisition, P.W.8, doctor attachedto the Villupuram Government Hospital, conducted autopsy on the deadbody of Dhanasekaran and gave a postmortem certificate, Ex.P-11, https://hcservices.ecourts.gov.in/hcservices/ wherein he opined that the deceased would appear to have died ofshock and haemorrhage due to injuries sustained. (h) On 18.11.2003 at about 5.30 A.M., the Investigating OfficerP.W.12 arrested A-3, A-4 and A-13. A-3 gave a confessional statementvoluntarily. The same was recorded, and the admissible part ismarked as Ex.P-4. Following the same, he produced M.O.3, iron pipe,which was recovered under the cover of mahazar, Ex.P-5. Further,P.W.12 came to know that A-1 and A-5 to A-9 had surrendered beforethe Judicial Magistrate, Pondicherry. Then, he made a requisition forpolice custody and the same was ordered and pending interrogation, A-1 gave a confessional statement voluntarily and the admissible partis marked as Ex.P-7. Following the same, he produced M.O.1Veecharuval, which was recovered under the cover of mahazar Ex.P-8.A-2 gave a confessional statement voluntarily and the admissiblepart is marked as Ex.P-9. Following the same, he produced M.O.2crowbar, which was recovered under the cover of mahazar Ex.P-6. Then,all the accused were sent for judicial custody and all the materialobjects were subjected to chemical analysis by the forensicdepartment pursuant to the requisition given by P.W.12. Ex.P-22 isthe chemical analysis report and Ex.P-23 is the serologist report.On completion of investigation, the Investigating Officer filed thefinal report under Sections 147, 148, 448, 323, 324 and 302 IPC. (i) The case was committed to the Court of Session, Villupuramand necessary charges were framed. In order to substantiate thecharges, the prosecution examined 14 witnesses and also relied on 27exhibits and 7 material objects. On completion of the evidence onthe side of the prosecution, the accused were questioned underSec.313 of Cr.P.C. as to the incriminating circumstances foundagainst them in the evidence of prosecution witnesses, which theyflatly denied as false. No defence witness was examined. But, onedocument was marked as Ex.D1. The trial Court heard the argumentsadvanced, found the appellants/accused guilty and awarded thepunishment referred to above. Hence these appeals at the instance ofthe appellants.4. Advancing arguments on behalf of A-1 (appellant in C.A.No.354of 2008), the learned Counsel would urge that the prosecution has notproved the factual position that there was an occurrence as put forthby P.Ws.1 and 2, who are the eye witnesses, and that there are lot ofdiscrepancies in their evidence and even assuming that the evidenceof prosecution is taken to have been proved as to the factualposition, A-1 was juvenile at the time of occurrence. Further, thelearned counsel took the Court to the statement of A-1 under Section313 Cr.P.C. and submitted that at that time, his age was 20. Theoccurrence had taken place in the year 2003 and he was questioned bythe trial court in 2007 and thus, he was only 16 years old at thetime of occurrence and at the time of application for suspension ofsentence was filed, the same plea was raised. Then, there was adirection to the District Court and an enquiry was conducted and a https://hcservices.ecourts.gov.in/hcservices/ report was also received to the effect that the age of A-1 wasreally found as 16 at the time of occurrence. As such, it will bequite clear that he was a juvenile at the time of occurrence andhence, the benefit should go to him by recording the said fact.5. It was also brought to the notice of the Court that pendingtrial, A-2 died. Therefore, no appeal has been preferred. Evenassuming the overt act attributed to A-2 that he had attacked thedeceased with crowbar M.O-2 at the time of occurrence is taken tohave been proved, in view of his death, the charge levelled againsthim stands abated and hence, it has got to be recorded. 6. Advancing arguments on behalf of other appellants, learnedcounsel would submit that in the instant case, the prosecution reliedon the evidence of P.Ws.1 and 2, eye witnesses; that in so far asthe evidence of P.W.1 is concerned, there are lot of discrepancies inhis evidence; according to P.W.1, he was attacked by eight personsarmed with deadly weapons and thereafter, he went to the house ofP.W.4 Mani Balan and when he along with P.W.2, wife of the deceased,locked Dhanasekaran inside the house with cycle chain and came out,the accused persons, 11 in number, came with armed deadly weapons,broke open the cycle chain and got entry into the house of P.W.4 andattacked the deceased with deadly weapons; that it was specificallystated by him that it was A-1 who attacked the deceased withVeecharuval and A-2 with crowbar and nowhere, P.W.1 has stated thatother accused got any overt act.7. Added further the learned counsel that in so far as theevidence of P.W.1 relating to the incident that had taken place inhis house is concerned, in the earliest document i.e. Ex.P-10 the AIRcopy, he has specifically stated that he was attacked by 8 persons;that there was a development at the time of evidence and at one stagehe said that there were 11 persons and at another stage, as seen inthe FIR (Ex.P-1), and thereafter at the time of evidence, hedeveloped to state that there are some more persons along with theaccused persons and thus, he was not sure about the number of theaccused persons.8. Added further the learned counsel that according to P.W.1, heand P.W.2 kept Dhanasekaran inside the room and closed the same andthat there was darkness and if that be so, he could not haveidentified the assailants at all; according to P.W.8 doctor, P.W.1was admitted in the hospital at about 11.50 AM; but, according toP.W.9, Head Constable, who recorded the complaint, after gettinginformation, he proceeded to the hospital and recorded the statementof P.W.1 at about 11.30 AM, which could not have taken place at alland that according to P.Ws.1 and 2, the occurrence took place at10.30 AM. But according to P.W.9, Ex.P-1 was recorded at 11.30 AM inthe hospital. https://hcservices.ecourts.gov.in/hcservices/

9.Added further the learned counsel that P.W.5, the VillageAdministrative Officer has stated that he sent the information tothe Tahsildar through phone but he did not record anything and hecame to the spot after the arrival of police and it would go to showthat there was an information and the same has been suppressed. Addedfurther the learned counsel that so far as A-10 is concerned, hisname was really found as Kamaraj; but in Ex.P-1 complaint and also inEx.P-12, the FIR, the name of A-10 is shown as Ramaraj; that then anenquiry was made in which P.W.1 said that it was a mistake done; andthus, the identity of A-10 is highly doubtful. Added further thelearned counsel that these discrepancies found in the evidence ofP.Ws.1 and 2 would go to the root of the matter, raising a doubt asto whether any such incident had taken place at all and thediscrepancy as to the number of accused persons and the number ofassailants would clearly raise a doubt whether any unlawful assemblyhaving a common object attacked the deceased and the deceased died onaccount of the injuries sustained and that the prosecution hasmiserably failed to prove the guilt of the accused and that they areentitled for an acquittal in the hands of this Court.10. The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.11. It is not in controversy that one Dhanasekaran, the husbandof P.W.2 was done to death in an incident that had taken place in thehouse of P.W.4 at about 10.30 AM as put forth by the prosecution.Following the inquest made by the Investigating Officer, the deadbody was subjected to postmortem by P.W.8, the Medical Officer, whohas given his opinion as a witness before Court and also through thecontents of the postmortem certificate, Ex.P-11, that the deceaseddied of shock and haemorrhage due to the injuries. The fact that hedied out of homicidal violence was never disputed by the appellantsat any stage of the proceedings. Hence no impediment is felt inrecording so.12. As could be seen above, the gist of the case of theprosecution is that in pursuance of common object to cause death ofDhanasekaran, the accused went to the house of P.W.1 and attacked himand thereafter, they proceeded to P.W.4 Mani Balan's house and brokeopen the lock, went inside and A-1 and A-2 attacked Dhanasekaran withdeadly weapons, namely, Veecharuval and crowbar respectively andother accused were standing nearby and due to the severe injuriessustained, he died. 13. At the outset, it has to be noted that P.W.1 has stated thatall the accused persons were actually armed with deadly weapons. Theyfirst enquired and attacked P.W.1 and thereafter, proceeded to the https://hcservices.ecourts.gov.in/hcservices/ house of P.W.4. P.W.4's house was actually locked with a cycle chainby P.Ws.1 and 2 and the same was broken open and they went inside. 14. In so far as A-3 to A-11 are concerned, their participationin the incident remains doubtful in view of the following suspiciouscircumstances. In a given case like this, when all the accusedpersons assembled in furtherance of the common object of attackingthe deceased Dhanasekaran and they were also armed with deadlyweapons, it would be naturally expected that all would attack thedeceased. According to P.Ws.1 and 2, all accused armed with deadlyweapons, broke open the lock and went inside, but A-1 and A-2 aloneattacked the deceased and others did not attack the deceased and theyremained as silent spectators. 15. Further, the earliest document that has come into existenceis Ex.P-10, the copy of accident register, wherein it is mentionedthat the assailants, who attacked the deceased are 8 in number.Subsequently, in the first information report Ex.P-12, FIR copy, itis found that they are 11 in number and before the Court, P.W.1deposed that apart from 11 accused, there were some more persons, whowere actually not known. It could be seen from the evidence ofP.W.1, who has actually been attacked, that he went to the house ofP.W.4 and all these accused assembled again unlawfully and made acriminal trespass and attacked the deceased. Considering all thesecircumstances, it is highly doubtful, whether all these persons couldhave participated in the crime and in the instant case, thediscrepancies in the evidence of P.Ws.1 and 2 as to the number ofparticipants, number of assailants and also the time of occurrencecast a doubt whether A-3 to A-11 would have participated in thecommission of offence. All these things indicate the fact that thenames of these accused persons could have been added subsequently.But the trial court has not taken into account these discrepanciesand it has believed the evidence of P.Ws.1 and 2. Therefore, in viewof the discrepancies noticed above, this Court is of the consideredopinion that it is highly doubtful at all whether A-3 to A-11 wouldhave been at the time of occurrence at all and place of occurrence.Thus, that part of the evidence of P.Ws.1 and 2 could not be believedand this Court is of the considered view that A-3 to A-11, who stoodcharged for various offences, have got to be acquitted. 16. But in so far as A-1 and A-2 are concerned, a carefulanalysis of the entire evidence would clearly reveal that there isdirect evidence to accept the case of prosecution, which issufficient to prove the guilt of A-1 and A-2 i.e., attacking andcausing simple injury on P.W.1 and thereafter, attacking the deceasedDhanasekaran and causing his instantaneous death. Therefore, it isquite clear that A-1 and A-2 proceeded to the place of occurrence,first attacked P.W.1 and then broke open the door of P.W.4's houseand went inside and attacked the deceased and caused his https://hcservices.ecourts.gov.in/hcservices/ instantaneous death and thereby, both of them shared the commonintention and hence, they have got to be found guilty under Sections302 and 324 IPC. At this juncture, it is to be noted that A-2 isdead and hence, the conviction and sentence against him stand abated.17. So far as A-1 is concerned, as rightly pointed out by thelearned counsel, he was a juvenile at the time of occurrence since hewas only 16 years old. At the time of questioning under Section 313Cr.P.C., it was brought to the notice of the trial court that A-1 was20 years old. Hence, in 2003 when the occurrence took place, he wasonly 16 years old. When A-1 filed an application seeking suspensionof sentence of imprisonment before this Court, an enquiry was orderedand the learned trial Judge conducted enquiry and sent a report whichrevealed that A-1 was only 16 years at the time of commission ofoffence. 18. When A-1 was a juvenile, the question would naturally arisewhether the judgment of the trial court in respect of A-1 could beset aside and the matter could be remitted for fresh considerationbefore the Court of Juvenile Justice. But in the instant case, nopurpose will be served for the simple reason that he crossed 16 yearsnow. Even if the Juvenile Justice Court is directed to conduct anenquiry against A-1, no useful purpose would be served. Under thesecircumstances, he has to be set at liberty, giving the benefit underJuvenile Justice Act.In the result, all the criminal appeals are allowed. Theconviction and sentence imposed by the trial court in respect of A-3to A-11 are set aside, and they are acquitted of all the chargeslevelled against them. In so far as A-2 is concerned, the convictionand sentence imposed on him stand abated since he is dead. In so faras A-1 is concerned, he is set at liberty, giving the benefit underJuvenile Justice Act. The fine amounts, if any, paid by A-1 and A-3to A-11 will be refunded to them.Sd/Asst.Registrar/true copy/Sub Asst.Registrargl https://hcservices.ecourts.gov.in/hcservices/ To:1.The Principal Sessions Judge Villupuram District.2. The Judicial Magistrate No.II, Villupuram.3. The Chief Judicial Magistrate, Villupuram (for information)4. The Superintendent, Central Prison, Cuddalore.5. The Director General of Police, Chennai.6. The District Collector, Villupuram District at Villupuram.7.The Inspector of Police, Vikkiravandi Police Station, Villupuram District. (Crime No.737 of 2003)8.The Public Prosecutor High Court, Madras.9. The Section Officer, Criminal Section, High Court, Madras.1 cc To Mr.B.Kumarasamy, Advocate, SR.23550.2 cc To Mr.T.P.Sekar, Advocate, SR.23488, 23487.1 cc To Mr.R.Johnsathyan, Advocate, SR.23205. Crl.A.Nos.354/2008,579,469,412, 459 and 463/2007PUR(CO)RVL 26.06.2009