Bail SlipThe v. State by Inspector of PoliceErode N

Bail SlipThe Appellants/Accused herein namely, 1. Veeran - A1, 2. Pavayee- A2, 3. Balu - A3, 4. Sadayan - A4, 5.Palanisamy - A5, 6. Thirupathi- A6 in Crl.A.Nos.392/08 and 585/08 (Accused in SC.28/08 on the fileof the Additional disteict cum Sessions Court, Fast Track Court No.1,Erode) were directed to be released on bail as per order of the Courtdated 27.06.2008 and 11.08.2008 and made in MP.1/08 inCrl.A.No.392/08 and MP.No.1/08 in Crl.A.No.585/08 respectively.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 13-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.392 and 585 of 20081.Veeran2.Pavayee3.Balu4.Sadayan5.Palanisamy.. Appellants/A-1 to A-5 in CA 392/2008K.Thiruppathi.. Appellant/A-6 in CA 585/2008vsState by Inspector of PoliceErode North Police Station(Crime No.504/2007)Erode Town... Respondent/Complainant in both appealsCriminal appeals preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional Districtand Sessions Judge cum Fast Track Court No.I, Erode, inS.C.No.28/2008 dated 12.5.2008.For Appellants : Mr.A.K.Kumaraswamy in CA 392/2008 Mr.S.K.Raghavan in CA 585/2008For Respondent: Mr.N.R.Elango Additional Public ProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these two appeals in C.A.Nos.392/2008made by A-1 to A-5 and 585/2008 by A-6, who stood charged, tried andfound guilty by the Additional Sessions Division, Fast Track CourtNo.I, Erode, and awarded punishment as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1, A-5, A-6120-B IPCGuiltyLife imprisonment alongwith a fine ofRs.2000/- and defaultsentenceA-1 to A-5147 IPCGuiltyNo separate sentenceA-1 to A-5A-6302 r/w 149 IPC302 r/w 120-BIPCGuiltyGuiltyA-2, A-3 & A-4 – Lifeimprisonment along witha fine of Rs.2000/- anddefault sentenceNo separate sentencefor A-1, A-5 & A-6A-1 & A-3A-2, A-4, A-5323 IPC323 r/w 149 IPCGuiltyGuilty1 year SimpleImprisonment1 year SimpleImprisonmentA-1, A-3, A-5A-2 & A-4323 IPC323 r/w149 IPCGuiltyGuilty1 year SimpleImprisonment1 year SimpleImprisonment2.Necessary facts for the disposal of these appeals can bestated as follows:(a) P.W.1 is the son of the deceased Sengodan. P.W.2 is thebrother of the deceased. P.W.3 is the wife of the other brother ofthe deceased. A-1 is the husband of A-2. A-3 was the juvenileaccused. A-4 is the brother of A-1. A-5 is the son of A-4. A-6 isthe relation of all the other accused. They are all residents ofHarijan Colony at Karattangadu, Veerappampalayam. They were alsoresiding nearby in two streets east-west and north-south. A-5 wasowning a tea stall on the street situated east-west. There was noprevious enmity prevailed over the parties. (b) On 17.7.2007 at about 6.00 P.M., the deceased Sengodan wasjust crossing the house of A-1. At that time, A-2, the wife of A-1,was washing clothes and the soap water sprinkled on the deceased, whoquestioned the same. There was a wordy altercation for half an hour.The same was pacified by the neighbours. Thereafter, on 20.7.2007,at about 6.30 P.M., A-1 and A-6 were in the shop of A-5, and theywere all hatching up a conspiracy. The same was overheard by P.W.4. (c) On 24.7.2007, the date of occurrence, at about 7.30 P.M.,Sengodan went to the shop of A-5 to take a tea. At that time, hefell down when he put his leg on the cowdung which was lying in frontof the shop. It was actually teased by A-1. Then the deceased wenthome and along with his son P.W.1 at about 8.30 P.M., he proceeded tothe house of P.W.2. At that time, A-1 and A-2 were actually standing https://hcservices.ecourts.gov.in/hcservices/ on the way. On seeing them, the deceased questioned A-1 how heshould tie the cattle on the roadside and a wordy altercationfollowed for sometime. On hearing the noise, all other accused whowere inside the house, came out. A-1 gave a slap on the cheeks ofthe deceased. A-2 pushed him down. A-1 attacked him with a woodenlog on his head and chest. A-3 attacked him on the right leg, whileA-4 to A-6 kicked him on different parts of the body. When P.Ws.1and 2 intervened, A-1 and A-3 attacked them with sticks. Theoccurrence was witnessed by P.Ws.1 to 3 in entirety. When there wasa distressing cry, all the neighbours gathered. On seeing this, theaccused fled away from the place of occurrence leaving the woodensticks. Immediately, the severely injured Sengodan and P.Ws.1 and 2were taken to the Government Hospital, Erode, in an auto.(d) P.W.6, the Doctor, on medical examination, declared Sengodandead. He also examined P.Ws.1 and 2 and recorded the injuries in thewound certificates, Exs.P4 and P5, respectively. (e) P.W.11, the Sub Inspector of Police, attached to therespondent police station, on receipt of the intimation, proceeded tothe hospital and recorded the statement of P.W.1, which is marked asEx.P1. On the strength of Ex.P1, the report, a case came to beregistered in Crime No.304 of 2007 under Sections 147, 323 and 302 ofIPC at about 11.30 P.M. on 24.7.2007 itself. Ex.P12, the printedFIR, along with Ex.P1 were despatched to the Court.(f) P.W.12, the Inspector of Police, on receipt of the copy ofthe FIR, took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P2, and also arough sketch, Ex.P13. Then he recovered the material objects fromthe place of occurrence under a cover of mahazar. He conductedinquest on the dead body of Sengodan in the presence of witnesses andpanchayatdars and prepared an inquest report, Ex.P14. Thephotographs were caused to be taken through a photographer, P.W.10.The photos and negatives were marked as M.Os.8 and 9 seriesrespectively. A requisition was forwarded to the hospitalauthorities for the purpose of autopsy.(g) The dead body was subjected to postmortem by P.W.7, theCivil Assistant Surgeon, attached to the Government Hospital, Erode.He gave a postmortem certificate, Ex.P10, wherein he has opined thatthe deceased would appear to have died of shock and haemorrhage dueto head injury 14 to 20 hours prior to autopsy. (h) All these accused persons were arrested on 25.7.2007 andsent for judicial remand. On completion of investigation, theInvestigating Officer filed the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution marched 12 witnesses and also relied on 14 exhibits and 9material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case inentirety and hence found them guilty and awarded punishment which isthe subject matter of challenge before this Court. https://hcservices.ecourts.gov.in/hcservices/

4.The learned Counsel for the appellants in CA 392/2008Mr.A.K.Kumaraswamy would submit that the occurrence, according to theprosecution, has taken place on 24.7.2007 at about 8.30 P.M.; thatthe prosecution originally rested its case on a conspiracy alleged tohave taken place on 20.7.2007 in the shop of A-5; that according tothe prosecution, there was an incident that had taken place on17.7.2007 when the deceased was just crossing the house of A-1, andA-2 was washing the clothes, and soap water sprinkled on him, andthere was a wordy altercation; that the evidence was so clear thatactually that situation was pacified and there was nothing for theaccused to carry on any grudge or any inimical terms that prevailedbetween the parties; that on 20.7.2007, according to the prosecution,there was a conspiracy that was hatched at about 5.30 P.M. in theshop of A-5; that the only witness examined in this regard, wasP.W.4; that P.W.4 was a close relative of the deceased; that had itbeen true that he overheard the conspiracy, he would have informed toany one of his relatives but not done so; that added circumstance todisbelieve the conspiracy was that though the prosecution claimedthat the statement of P.W.4 was recorded on 28.7.2007, within twodays from the date of occurrence, it has reached the Court on25.9.2007 long after a lapse of two months; that apart from this,while the situation did not prevail for any conspiracy to be hatchedup, the entire prosecution story regarding conspiracy part wasnothing but false; and that the trial Court should have rejected butfailed to do so. 5.Added further the learned Counsel that as far as theoccurrence was concerned, the prosecution examined three witnessesnamely P.Ws.1 to 3; that all of them have categorically admitted thaton the date of occurrence, the deceased went to the tea stall of A-5where he fell down when he put his leg on the cowdung, andimmediately he went home and brought his son P.W.1, to the placewhere A-1 and A-2 were available; that it would clearly indicate thatthe deceased and his son were the aggressors; that P.Ws.1 to 3 havecategorically spoken to the fact that there was a wordy quarrelbetween A-1 and the deceased for nearly about half an hour, and itended, and after hearing the noise, A-2 to A-6 came from the house;that it is further to be pointed out that in the wordy altercation,according to the prosecution, A-1 and A-3 have attacked the deceasedwhen A-2 pushed him down; that P.W.1 has categorically admitted thatthe injuries sustained by his father on the head was actually due tothe falling when he put his leg on the cowdung; and that under thecircumstances, the trial Court should not have found any one of theaccused guilty under Sec.302 IPC since the medical opinion canvassedby the prosecution before the trial Court was that the head injurywas fatal. 6.Added further the learned Counsel that in the instant case, itis highly doubtful whether Ex.P1, the report, and the correspondingFIR could have come into existence as put forth by the prosecution;that the prosecution claimed that on hearing the information, P.W.11,the Sub Inspector of Police, went to the Government Hospital and https://hcservices.ecourts.gov.in/hcservices/ recorded the statement of P.W.1, Ex.P1, and he returned to the policestation and registered a case at about 11.30 P.M.; that on thecontrary, P.W.3 has categorically admitted that after the occurrencewas over, the police officials came there, and on enquiry, they weresent to the hospital for medical treatment; that this would clearlyindicate that the police people came to the spot and made an enquiry,and thus Ex.P1 document could have come into existence even earlier;and that under the circumstances, the claim made by the prosecutionas regards Ex.P1, was false. 7.Added further the learned Counsel that P.Ws.1 to 3 havecategorically stated that they came to the place of occurrence onlysubsequent to the occurrence; that all would go to show that P.Ws.1to 3 could not have seen the occurrence at all, and hence theprosecution case should have been entirely rejected.8.The learned Counsel in the second line of his arguments wouldsubmit that even assuming that the prosecution is said to have provedits factual position, there is no overt act attributed to A-4 to A-6;that no corresponding injuries are found; that the same would clearlyindicate that A-4 to A-6 were simply standing nearby; that there wasno common intention since as per the evidence, A-4 to A-6 wereactually inside the house; that after hearing the noise due to thewordy altercation, they came out of the house; that under thecircumstances, A-4 to A-6 have nothing to do with the crime inquestion; that it was A-2 who pushed him down; that actually headinjury has been sustained by the deceased, and death followed; thatthe act of the accused is neither intentional nor premeditated; andthat if at all, A-2 can be found guilty under Sec.323 of IPC.9.Added further the learned Counsel that A-1 and A-3, under thecircumstances, could have caused simple injuries; that they could befound guilty under Sec.323 IPC, and thus the judgment of the trialCourt was erroneous both factually and legally, and judgment has gotto be rendered by this Court. 10.The learned Counsel for the appellant/A-6 in CA 585 of 2008has adopted the arguments put forth by the other learned Counsel.11.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 12.It is not in controversy that in an incident that had takenplace at about 8.30 P.M. on 24.7.2007, at the place of occurrence,one Sengodan, the father of P.W.1, died, and when the dead body wastaken to the hospital, it was P.W.6, the Doctor, attached to theGovernment Hospital, Erode, who on examination, declared him dead.Following the registration of the case by the respondent police, theinquest was made by P.W.12, the Investigating Officer. Following thepreparation of the inquest report, the postmortem was done by P.W.7,the Doctor, who has given a categorical opinion that the deceasedwould appear to have died of shock and haemorrhage due to the headinjury. The fact that Sengodan died out of homicidal violence was https://hcservices.ecourts.gov.in/hcservices/ never disputed by the appellants before the trial Court. In suchcircumstances, no impediment is felt in recording so.13.In order to substantiate the theory of conspiracy and themurder that followed, the prosecution relied on the evidence ofP.Ws.1 to 4. P.W.4 was the sole witness examined to prove theconspiracy part, while P.Ws.1 to 3 were actually occurrencewitnesses. As far as the conspiracy alleged to have been hatched upby A-1 and A-6 on 20.7.2007, in the tea shop of A-5 is concerned, thetrial Court has agreed with the case of the prosecution. But, thisCourt is afraid whether it can agree with the case of conspiracy asput forth by the prosecution for the following reasons.14.The case of the prosecution was that on 17.7.2007 at about6.30 P.M., the deceased was actually proceeding towards his house;that when he was just crossing the house of A-1, it was A-2 who waswashing the clothes; that the soap water sprinkled on the deceased;that he questioned the same; and that there was a wordy altercationbetween A-2 and the deceased for about half an hour. At that time,even as per the evidence of the witnesses, all other personsintervened and pacified the situation. It remains to be stated thatif the situation was pacified, then the accused persons could nothave carried on any animosity against the deceased person. Further,the alleged conspiracy has taken place in the tea shop of A-5 atabout 6.30 P.M. on 20.7.2007. It is highly doubtful whether such aconspiracy for doing away with a person could take place and that tooin a tea shop in the evening hours and whether P.W.4 who was relatedto the other witnesses, could have overheard the conspiracy. If itis true, he would have certainly informed to the other witnesses, butnot done so. 15.Added circumstance to doubt the conspiracy theory was thatthough the Investigator claimed that the statement of P.W.4 underSec.161 of Cr.P.C. was recorded on 26.7.2007, it has reached theCourt after two months' delay i.e., on 25.9.2007. Thus, by such afeeble and unacceptable evidence, it cannot be taken that theprosecution has brought home the theory of conspiracy. Hence thetrial Court should have rejected that part of the case. Accordingly,the theory of conspiracy put forth by the prosecution fails.16.As far as the occurrence is concerned, the prosecutionmarched three witnesses who are P.Ws.1 to 3, from whose evidence, itwould be quite clear that on the day of occurrence, the deceasedactually went to the tea shop of A-5 to have a tea; that at thattime, he fell down when he put his leg on the cowdung; that A-1teased the same; that by that the deceased was actually raged; andthat he went home with that anguish and brought his son P.W.1 inorder to inform the same to P.W.2. The evidence would further go toshow that on the way, they met A-1; that suddenly the deceasedquestioned A-1 how he tied the cattle in the public street; and thathe replied that he would do so. At this juncture, as rightly pointedout by the learned Counsel for the appellants pointing to theevidence of P.Ws.1 to 3, there was a quarrel between A-1 on the oneside and the deceased and P.W.1 on the other for nearly about half an https://hcservices.ecourts.gov.in/hcservices/ hour. On the noise created, A-2 to A-6 have come out of the house.Actually it was A-1 who slapped the deceased on his cheek. A-2pushed him down, and thereafter, A-1 attacked him on the head andchest. A-3 attacked him on the right leg. So far as this part ofthe occurrence is concerned, P.Ws.1 to 3 have given their evidence inone voice. This ocular testimony projected through P.Ws.1 to 3 stoodfully corroborated by the medical evidence through the postmortemDoctor. He has categorically opined that death would have beencaused due to the head injury, and the corresponding external injuryfound on the temporal region. Thus, it would be quite clear thatthose injuries could not have been caused by falling down when he waspushed down by A-2; but, it should have been caused when he wasactually attacked by A-1. As far as the attack made by A-1 areconcerned, the corresponding injuries are noticed, and equally, theinjury caused by A-3 on the right leg of the deceased is also notedin the postmortem certificate. Thus, the act of A-1 was a fatal one,and the death has been caused. A-2 has pushed him down, and it wasA-3 who attacked him on the leg. 17.As far as A-4 to A-6 are concerned, they were not attributedwith any overt act. They had no role to play. Added circumstance isthat even according to P.Ws.1 to 3, number of persons were alsostanding by the side, and thus nothing could be attributed to A-4 toA-6. Hence they are entitled for acquittal.18.As far as A-1 is concerned, as stated above, it was he whocaused the fatal injury. The above circumstances, when noticed,would indicate that there was a wordy altercation for about half anhour, and in that process, A-2 to A-6 came out of the house, and thusit would be quite clear that there should not have been any commonobject in furtherance of which they have acted either, or they hadcommon intention to share with. Under the circumstances, individualact has got to be dealt with. As far as A-1 is concerned, he hascaused fatal injury, but without intention or premeditation, and hehas also attacked him with the wooden log, and that too following thequarrel that went for half an hour. Under the circumstances, A-1could not be found guilty for the act of murder, but could be foundguilty under Sec.304 (Part II) of IPC, and awarding five yearsRigorous Imprisonment would meet the ends of justice. As far as A-2and A-3 are concerned, they have caused simple injuries to thedeceased, and hence they have got to be found guilty under Sec.323 ofIPC instead of murder, and awarding of one year Simple Imprisonmentwould meet the ends of justice. Apart from that, A-1 and A-3 havecaused simple injuries to P.Ws.1 and 2, and the judgment of the trialCourt in that regard has got to be sustained. 19.Accordingly, the judgment of conviction and sentence passedby the trial Court on A-4 to A-6 is set aside, and they are acquittedof the charges levelled against them. The bail bonds executed bythem shall stand terminated. The fine amounts if any paid by them,will be refunded to them. https://hcservices.ecourts.gov.in/hcservices/

20.The conviction of A-1 under Sec.302 read with 149 IPC is setaside, and instead, he is convicted under Sec.304 (Part II) of IPCand is directed to suffer five years Rigorous Imprisonment. Thesentence already undergone by him shall be given set off.21.The conviction and sentence imposed by the trial Court on A-1under Sec.120-B IPC are set aside, and he is acquitted of thatcharge. However, the fine amount imposed by the trial Court shall betreated as fine imposed under Sec.304 (Part II) of IPC. 22.The conviction and sentence imposed by the trial Court on A-2and A-3 under Sec.302 r/w 149 of IPC are set aside, and instead, theyare convicted under Sec.323 of IPC and directed to undergo one yearSimple Imprisonment. The fine amount if any paid by them in thatregard will be refunded to them. 23.As regards the conviction under Sec.147 of IPC, the same isset aside, and A-1 to A-3 are acquitted of that charge. As regardsthe conviction and sentence imposed by the trial Court on A-1 and A-3under Sec.323 (2 counts) IPC, they are sustained. As far as theconviction and sentence imposed by the trial Court on A-2 underSec.323 read with 149 IPC (2 counts) are concerned, they are setaside, and A-2 is acquitted of that charge. The sentences imposedon A-1 and A-3 are to run concurrently.24.In the result, C.A.No.585/2008 is allowed, andC.A.No.392/2008 is partly allowed. It is reported that A-1 to A-3are on bail. Hence the Sessions Judge shall take steps to committhem to prison to undergo the remaining period of sentence.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The Additional District and Sessions Judge Fast Track Court No.I, Erode.2.The Inspector of Police Erode North Police Station (Crime No.504/2007) Erode Town.3. The Judicial Magistrate No.1, Erode. https://hcservices.ecourts.gov.in/hcservices/

4. The Chief Judicial Magistrate, Erode, (for information)5. The Judicial Magistrate No.I, Salem.6. The Superintendent, Central Prison, Coimbatore.7. The District Collector, Erode.8. The Director General of Police, Chennai.9.The Public Prosecutor, High Court, Madras.1 cc To Mr.A.K.Kumarasamy, Advocate, SR.30528.2 cc To Mr.S.K.Raghavan, Advocate, SR.30473.C.A.Nos.392 and 585/2008PUR(CO)RVL 23.07.2009