High Court · 2009

BAIL SLIP---The Appellant/Accused Viz. Ramu, S/o.Natarajan (A-1),Tamilarasan, S/o.Natarajan (A-2) Lakshmanan, S/o.Natarajan (A-3)Sathiya Murugan, S/o.Anjapuli (A-5) Sathyaraj, S/o.Perumal (A-6)Manimaran, S/o.Ponnurangan (A-11) were directed to be released onbail as per order of this Court dated 27.6.2008 and made inCrl.M.P.No.1/2008 in Crl.A.NO.407/2008.----IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:30.07.2009CORAM:THE HON'BLE MR.JUSTICE M.,CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANCRL.A.NO.407 OF 20081.Ramu2.Tamilarasan3.Lakshmanan4.Sathiya Murugan]5.Sathyaraj6.Manimaran ...Appellants/Accused 1 to 3,5,6 and 11Vs.State by Inspector of Police,Reddy Chavadi Police Station,Cuddalore District.(Crime No.257 of 2005) ...Respondent/ComplainantThese criminal appeal has been preferred under Section 374(2) Cr.P.C. against the conviction and sentence imposed in S.C.No.246of 2007 dated 21.5.2008 on the file of Additional District andSessions Judge (Fast Track Court No.2), Cuddalore. For Appellants : Mr.V.Gopinath Senior Counsel for Mr.L.MahendranFor Respondent : Mr.N.R.Elango, Additional Public Prosecutor- - - - https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the order of the Additional Districtand Sessions Judge (Fast Track Court No.2),Cuddalore made inS.C.NO.246 OF 2007 whereby the appellants shown as A1,2,3,5,6 and 11were charged, tried and found guilty as follows:A1 to A3, 5, 6 and 11 were convicted for the offence underSection 148 IPC and sentenced to undergo two years rigorousimprisonment (each); A6 and A11 convicted under Section 324 IPC andsentenced to undergo one year rigorous imprisonment with a fine ofRs.1000/- in default to undergo five years and A2,3,5,6 and 11 wereconvicted under Section 302 read with 149 IPC and sentenced toundergo life imprisonment with a fine of Rs.25,000/- in default toundergo five years. 2. The short facts necessary for the disposal of thisappeal can be stated as follows:a. PW1 is the husband of P.W.8. On 18.12.2005 at about 12noon, A6 and A10 came in a Motor-bike and at that time, one Rajendrancame in TVS 50 in the opposite direction and they dashed against eachother in front of the house of PW8. They fell on the fencing which issituated on the house of PW1. PW8, the wife of PW1 who was standingby the side scolded A6. Then, she informed about the said incident toPW1, who in turn, informed the same to Nattamai. PW1 informed to hiswife PsW8 that it is natural accident occur on the road and not toprecipitate it.b. On 19.12.2005 at about 12 Noon, A6 scolded PW8 in frontof the Arul Bunk Shop and at that time, the deceased came there andquestioned A6 why he was scolding PW8. All the accused beat thedeceased. PW1 came to his house at 1.00 p.m, the deceased informedhim about the accused beating him. Then , PW1 went to the bunk shopwhere A6 was present and asked A6 why he was using abusive language,that too, he belonged to the same village and community. Thereafter,all the accused came to PW1's house and searched for PW1, but PW1 wasnot available. Therefore, they left the place. PW1 returned to thehouse. The deceased informed him that the accused came in search ofPW1. Then PW1, deceased and others went to A2's house and asked whythey were searching for PW1. At that time A1 uttering the words thatthey were resisting for the development of the party and so saying hebeat the deceased on his head with iron pipe. A2 attacked with ironpipe on the on the left fore hand of the deceased. A3 beat thedeceased on the left hand wrist. A4 beat one Durai, the brother of https://hcservices.ecourts.gov.in/hcservices/ the deceased on his left fingers. A5 beat on the left thigh of thedeceased. A6 attacked PW2 on the left shoulder. Then, all the accusedfled away from the scene of occurrence, The deceased was taken toCuddalore Government Hospital, where PW11, on medical examination,declared dead Then he sent death intimation Ex.P.19.c. Subsequently, PW1 went to Reddychavadi Police Station atabout 1 a.m. on 20.12.2005 and gave Ex.P1 report to PW.15, SubInspector of Police, on the strength of which he registered a case inCrime No.257 of 2005 under Sections 147,148,324 and 302 IPC. EX.P.21is printed FIR.d. On 20.12.2005 at 7 a.m., the Investigating Officerproceeded to the scene of occurrence, made an inspection and drewrough sketch EX.P.11. Then he prepared Observation mahazar. He alsorecovered bloodstained earth and sample earth. On 20.12.2005 at about9.30 a.m., he proceeded to the Government Hospital, Cuddalore andconducted inquest on the dead body of the deceased, in the presenceof witnesses and prepared inquest report Ex.P.23. Then, he sent arequisition for conducting postmortem.e. PW14, doctor attached to the Government Hospital,Cuddalore conducted postmortem on the dead body of the deceased andissued Ex.P.20, postmortem report where he narrated the injuriescaused externally and internally and has opined that the death hasoccurred due to shock and hemorrhage due to injury to brain.f. On 19.12.2005, at abut 9.50 p.m., P. W.2 was taken byP.W.1 to the Government Hospital,Cuddalore. PW11 doctor who gavetreatment to P.W.2 and issued EX.P.16 Accident Register. On the sameday, at about 10 p.m., he gave treatment to one Durai and issuedEx.P.17 Accident Register . On 21.12.2005 at about 8.00 a.m., A1 toA5 and A13 were arrested. The confession statement of A1 wasrecorded and the admissible part is marked as Ex.P.4. Based on theadmissible portion, M.O.1 iron pipe was recovered under the cover ofMahazar Ex.P.5. Based on the confession statement of A2, EX.P.6 isthe admissible portion and M.O.6 was recovered under the cover ofMahazar EX.P.7. Based on the confession statement of A4, Ex.P.10 isthe admissible portion and M.O.7 was recovered under the cover ofMahazar Ex.P.11. Based on the confession statement of A5, Ex.P.12 isthe admissible portion and M.O.5 was recovered under the cover ofmahazar. EX.P.13. On27.12.2005, A6,A8,A10 and A11 were arrested andthe confession statement of A6, the admissible portion is Ex.P.6,M.O.9 was recovered under the cover of mahazar EX.P.15. On 9.2.2006,the investigator filed the final report.3. The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 15 witnesses https://hcservices.ecourts.gov.in/hcservices/ and also relied on 28 exhibits and 12 M.Os. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses. The accused flatly deniedthe same as false. On the side of defence, one Anandan was examinedas DW1 and one Senthilvinayagam was examined as DW2. The trial court,after hearing the arguments advanced and scrutinizing the materialsavailable, took the view that the prosecution had proved the casebeyond reasonable doubt in respect of accused 1,2,3,5,6 and 11 andfound them guilty and awarded punishment as referred to above. Hencethis appeal has arisen at the instance of accused 1,2,3,5,6 and11/appellants herein.4.Advancing arguments on behalf of the appellants, learnedcounsel would submit that in the instant case, the prosecution hasmiserably failed to prove its case. The prosecution though levelledcharges against 14 accused, on some evidence, the prosecution foundthe appellants guilty and acquitted other accused. In the instantcase, Pws.1 to 3 were shown as injured witnesses. Though they claimedto be injured witnesses, no medical evidence was adduced in thatregard. It is highly doubtful whether they were present at the timeof occurrence and no medical certificate has been produced to thateffect and hence the prosecution has miserably failed in its attempt.It casts doubt whether A1 and A3 could have been present in the placeof occurrence at all. They have claimed that PW2 was eye witness tothe occurrence but he was the injured witness. PW11 doctor attachedto the Government Hospital, Cuddalore examined PW2 and AccidentRegister in that regard is EX.P.16. Though Pws.1 to 4 claimed to beeye witnesses, as their evidence would speak about the discrepancy ofthe aspects, it would discredit their evidence. Learned counsel wouldfurther add that the prosecution came forward with the case that PW2was actually injured, a perusal of the charges levelled against himwould clearly indicative of the fact that no charge was actuallyframed by the trial Court in respect of the injuries alleged to havebeen caused to PW2 by the accused. The learned counsel would furtheradd that, in the instant case, as per the prosecution case, on thedate of occurrence, Pws,1,2,3, one Durai along with the deceased wentto the house of A2. PW2 has categorically admitted that excepthimself, all were armed with weapons in their hand. This would beindicative of the fact that all the witnesses along with the deceasedwent to the house of A2 , that too, they were armed with weapons andthey can be called as aggressors. When they went over there, it wasthe deceased who questioned the second accused and the occurrence hadtaken place and it is pertinent to point out that there is nothingindicative of the fact that while the deceased along with PW2 went tothe house of A2's house and it was the deceased who questioned thesecond accused and the second accused replied and at that time allthe accused have acted so. It is pertinent to point out that thewitnesses Pws.1,3 and the deceased were actually armed with weapons https://hcservices.ecourts.gov.in/hcservices/ and thus the case of the prosecution that the accused had any commonintention or object or at any circumstances to murder anybody cannoteven be inferred. Under such circumstances, even if the Courtbelieves the prosecution case as to the factual position that A1,2,3and 5 actually attacked the deceased and they have acted without anycommon intention or object, their individual act has to be taken intoaccount. They have got to be dealt with individually. Insofar as A6and A11 were concerned, they did not cause any injury at all. Undersuch circumstances, they are entitled for acquittal. The prosecutionhad not proved the case beyond reasonable doubt. 5. Learned counsel would further add that insofar as therecovery, the prosecution would claim that all the weapons wererecovered from the accused, pursuant to the confession statementgiven by them voluntarily, but this part of the evidence cannot betrue, in view of the evidence of PW2 at the time of cross examination. According to PW2, all the accused persons threw weapons on theground and fled away from the scene of occurrence, if to be so, allthe weapons should have been recovered from the place of occurrenceby the Investigating Officer, at the time when he inspected the sceneof occurrence. Per contra, in order to strengthen the case, ifpossible, all the documents and records should be produced pertainingto confession and recovery of Mos, but it has not been done so andhence that part of the evidence should have been rejected by thetrial Court. The trial Court has taken an erroneous view and henceit is a fit case where the judgment of the trial Court has got to beset aside. 6.The court heard the learned Additional PublicProsecutor on the above contentions and paid its anxiousconsideration on the submissions made. 7. It is not in controversy that the dead body ofSadasivam, following an incident that had taken place on 19.12.2005at about 6 p.m. was taken to Government Hospital,Cuddalore where hedeclared dead. Following the inquest made by the P.W.15,Investigating Officer, the dead body was subjected to post-mortem byP.W.14 doctor, He has deposed before the Court and that postmortemcertificate also marked before the Court and that part of theevidence adduced by the prosecution would clearly indicative of thefact that Sadasivam died of homicidal violence. This fact was alsonever disputed by the appellants before the trial court and hence ithas got to be recorded so. 8. In order to substantiate the case that Sadasivam wasactually attacked by the accused party, the prosecution examined fourwitnesses. As per the records, the prosecution had examined five eyewitnesses, but Durai died pending investigation. Hence, he could notbe treated as witness. Out of five witnesses, according to the https://hcservices.ecourts.gov.in/hcservices/ prosecution, Pws.1,2 and 3 are injured witnesses. Though Pws1 and 3have given evidence that they were actually attacked at the time ofoccurrence and at the time of investigation, no injury was shown inthe medical opinion nor any evidence was produced and thus it wouldbe quite clear that the charges levelled against the accused inrespect of the injuries sustained by Pws.1 and 3 could not be broughtforth. Had it been true that they had not witnessed the occurrence,the narration of the occurrence by Pws1 and 3 would clearlyindicative of the fact that they have witnessed the occurrence.Insofar as PW2, equally he was also sustained injury at the time ofoccurrence. PW11 doctor attached to the Government Hospital,Cuddalore examined PW2 and Accident Register in that regard isEX.P.16 was correct. But, at the same time, the trial Court onperusal of the charges levelled has not specifically framed anycharge in respect of injuries sustained by PW2 and hence that part ofthe order cannot be sustained. Initially, on the previous day, PW8scolded PW6 and following the same, next day, on the date ofoccurrence i.e. On 19.12.2005 at 12 noon, it was PW6 who abused infilthy language against PW8, who in turn, informed her husband PW1and at that time, the deceased has questioned A6 and following thesame, the occurrence had taken place. It is pertinent to point outthat even as per the prosecution, Pws.1,2 and 3 along with thedeceased went to the house of A2 to question as to why they aresearching for PW1 and others. At this juncture, from the evidence ofPW2, it is quite clear that he had not only admitted that heaccompanied others to the house of A2 , but also they were all armedwith weapons except himself. This would be indicative of the factthat when they went over to the house of A2, carrying arms in theirhands and that would mean that they have not only questioned theaccused persons, but actually something could have been happenedfurther. At this juncture it is pertinent to point out that accordingto the prosecution witness, they went to the house of A2 and A2replied and at that time, all the other accused persons came from thebackside of the house with weapons and attacked them. Thus, it wouldbe quite clear that when the occurrence had taken place, they couldnot have been acted with the common object causing the death of thedeceased, but due to the circumstances, they have acted so. Now,theCourt is unable to see any material to indicate that they have actedin furtherance of the common object to went over to house ofdeceased and hence Section 149 IPC cannot be attracted, but at thesame time from the medical evidence and from the evidence of all theeye witnesses, it would be quite clear that insofar as A1 isconcerned, he attacked the deceased with iron pipe on his head and asper the medical opinion canvassed, it was a fatal injury and it hascaused the death of the said Sadasivam, while A2, A3 and A5 attackedthe deceased on the left fore hand, left hand wrist and left thighrespectively. As per the medical opinion canvassed, it would beevident from the Accident Register that the injuries sustained by thedeceased were simple in nature and thus they were not termed as https://hcservices.ecourts.gov.in/hcservices/ fatal. Though A6 and A11 were armed, nothing would indicate that theyattacked or caused any injury on the deceased. Though they are foundto be overt act, the death was caused by the fatal injury caused byA1 and the act of A1 attacking the deceased with iron pipe on thehead causing instantaneous death, which in the opinion of the court,though not caused with any intention to cause death, it can be wellstated that he had the intention to cause such a fatal injury whichin the ordinary course of action will cause death. Thus, it would besufficient to define as murder. Under such circumstances, A1 has gotto be found guilty under Section 302 IPC and he has got to be awardedlife imprisonment and the same is confirmed. A2,3,5 are concerned,they have caused simple injury on the deceased with iron pipe andhence the act of the accused2,3 and 5 would attract the penalprovision of Section 324 IPC and awarding punishment of 2 years R.I.would meet the ends of justice. So far as A6 andA11 are concerned,they got to be acquitted and accordingly they are acquitted. 9. Accordingly, the judgment of conviction and sentence ofthe trial Court is modified. (i) The 1st appellant/A1 is convicted for the offence underSection 302 IPC and sentenced to undergo life imprisonment and he isacquitted of other charges levelled against him; The fine imposed onthe first accused has got to be confirmed and the same is sustained.The period of sentence already undergone by the first appellant isordered to be given set off.(ii)Insofar as, Appellants 2,3 and 5/A2,3 and 5 areconcerned, they are convicted for the offence under Section 324 IPCand sentenced to undergo two years rigorous imprisonment and they areacquitted of the other charges levelled against them. The fine amountif paid shall be refunded to them.(iii) Insofar as A6 and A11 are concerned, they areacquitted of all the charges levelled against them. Accused 6 and 11are directed to be released forthwith unless their presence isrequired in connection with any other case. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrar VJY https://hcservices.ecourts.gov.in/hcservices/ To1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, (FAST TRACK COURT NO.2) CUDDALORE.2. THE INSPECTOR OF POLICE REDDY CHAVADI POLICE STATION CUDDALORE DISTRICT 3. THE ADDITIONAL PUBLIC PROSECUTOR, HIGH COURT, MADRAS4. THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, (FAST TRACK COURT-2) CUDDALORE.5. THE JUDICIAL MAGISTRATE NO.1, CUDDALORE6. THE CHIEF JUDICIAL MAGISTRATE, CUDDALORE.7. THE SUPERINTENDENT, CENTRAL PRISON, CUDDALORE.+1 cc to M/s.R.Vijaya, Advocate, SR.No.33686+1 cc to Mr.L.Mahendran, Advocate, SR.No.33522 CRL.A.NO.407 OF 2008PKB {CO}TP/18.8.2009.