Bail SlipThe v. State rep. byInspector of Police

Bail SlipThe Appellant/Accused No.1 viz.Mohan, S/o.Amirthalingam wasdirected to release on bail as per order of the Court dt.16.10.2008and made in MP.No.1/2008 in Crl.Appeal No.489/2008 on the file ofthis Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.07.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NOS.489 AND 775 OF 2008 AND 212 OF 2009Mohan .. Appellant/Accused No.1 in CA.No.489 of 2008 Vasu @ Vasudevan.. Appellant/Accused No.3 inCA.No.775 of 2008D.Prabhu.. Appellant/Accused No.4 in CA.No.212 of 2009Vs.State rep. byInspector of Police,Saravanampatti Police Station,Coimbatore District(Crime No.603 of 2007) .. Respondent in all the appeals These criminal appeals have been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Sessions Judge forExclusive trial for Bomb Blast Cases, Coimbatore made in S.C.No.50of 2008, dated 28.5.2008. For Appellant in Crl.A.489/08 : Mr.V.BharathidasanFor Appellant in Crl.A.775/08 :Mr.K.GovindarajFor Appellant in Crl.A.212/09 :Mr.A.Abdul LathifFor Respondent : Mr.N.R.Elango, APP - - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern three appeals, namely CriminalAppeal Nos.489,775 of 2008 and 212 of 2009.2.Criminal Appeal No.489 of 2008 has been preferred by A1,Criminal Appeal No.775 of 2008 is filed by A3 and Criminal AppealNo.212 of 2009 is brought forth by A4, challenging the judgment ofthe Sessions Court for Exclusive Trial of Bomb Blast Cases,Coimbatore made in S.C.No.50 of 2008, whereby the appellants hereinalong with others stood charged, tried and found guilty as follows:AccusedChargesFindingsSentence A1 S.307 IPCGuiltySeven Years RI A3 and A4S.307 r/w 34IPCGuiltySeven Years RI A3S.302 IPCNot GuiltyLife Imprisonment andfine Rs.1000/- - i/d 1month R.I.A-1 and A-4S.302 r/w 34IPCGuiltyLife imprisonment eachand to pay a fine ofRs.1000/-, in defaultto undergo one month A-4S.307 IPCModifiedGuilty U/s324 IPC 2 years RIA1,A2 and A3S.307 r/w 34IPCModifiedGuilty U/s324 r/w 34IPCA1/A2/A3 2 years RIA-2 S.324 IPCGuilty 2 years RI A1/A3/A4324 r/w 34 IPCNot Guilty 2 years RIThe sentences were ordered to run concurrently. Out of those fourconvicted by the trial Court, A1,3 and 4 have preferred theseappeals. 3.The short facts necessary for the disposal of these appealscan be stated as follows:a)P.W.1 is the resident of Vennandur, Rasipuram Taluk, NamakkalDistrict. He was working in the construction site in KGISL Complexat Saravanampatti, Coimbatore. The accused were also working alongwith him. They were all working under the supervision of one Ayyavu.A1 was the supervisor for PW1 during the relevant time. A1 to A3were also employed therein and they were staying along with PW1. The https://hcservices.ecourts.gov.in/hcservices/ payments though have to be made by Ayyavu, A1 used to make thepayment to all the workers. The wages were not being paid properlyand there were arrears of two months salary. Due to the non-paymentof wages, their family members advised them to terminate the workand come out of the job. At one stage, the father of PW1 viz.,Kandasamy and father of Raja, viz., Palaniappan came to Coimbatoreon 28.6.2007 to settle the issue of non- payment of wages. Theyapproached Ayyavu for payment, who asked them to meet A1,Mohan,since the cash payment was entrusted to him. b)On 3.7.2007 by around 9 p.m., PW1 and his father Kandasamyapproached Ayyavu and demanded payment,for which, Ayyavu gave aroutine reply. Immediately, PW1 and his father around 12.00midnight went to the hut where Mohan used to stay and found a personsleeping outside, but Mohan was not there. PW1 gave a waking call.The said person viz.,Prabhu woke up and PW1 enquired him aboutMohan. Prabhu shouted at PW1 and in that process, upon hearing thenoise, all the accused came out. When PW1 complained to Mohan aboutthe non-payment of wages, Mohan scolded him in filthy language.When PW1 made a challenge, the first accused caught hold of PW1 andattacked him with a club over his head uttering as to how dare hechallenged and he would talk only if he was allowed to be alive.This was challenged by Kandasamy and Palaniappan. A1 Mohan pointingto the said Palaniappan, told that he was a person who wastorturing too much and he must be finished off earlier. c)On hearing this, A2 attacked Palaniappan with a woodenlog and A3 attacked with a reaper over his head. The deceased felldown. In that process, A1 attacked PW1 with a wooden log on his headand PW1 ustained injury. A4 attacked PW2 with stick. PW2 alsosustained injury and when hearing the distress cry, all theemployees rushed to the spot. A1 to A4 fled away from the scene ofoccurrence. d)Pws.1 and 2 and the deceased were taken to K.G.Hospital.PW1 was initially examined by PW.13 Doctor and thereafter he wasexamined by PW.16 doctor. Ex.P.4 is wound certificate of PW1 andExP.7 is A.R.Copy.PW2 was examined by PW18, doctor and Ex.P.9 iswound certificate of PW2. The deceased was taken to K.G.Hospital on4.7.2007 by 2.08 a.m and thereafter for further treatment, he wasreferred to CMC Hospital,Coimbatore.e) On intimation from the K.G.Hospital, PW.20, SubInspector of Police proceeded to the Hospital and recorded thestatement of PW1, which is marked as Ex.P.1. On the strength ofEx.P.1, a case came to be registered in Crime No.603 of 2007 underSections 324 and 307 IPC. Ex.P.12, the FIR was despatched to theCourt. f)P.W.21 took up the investigation, proceeded to the spotand made an inspection in the presence of the witnesses. He preparedEx.P.13, the observation mahazar and drew Rough Sketch Ex.P.17.Thereafter, she examined P.W.1 and the witnesses and recorded their https://hcservices.ecourts.gov.in/hcservices/ statements. She arrested the accused persons on 5.7.2007. A1 cameforward to give a confession statement voluntarily and the same wasrecorded in the presence of witnesses, the admissible part of thesame was marked as Ex.P.14, pursuant to which, A-1 produced M.Os.1to 3 Wooden logs and M.O.4 reaper, which were recovered under acover of mahazar. Those accused were sent for judicial remand.g)Thereafter, an intimation was received from the CMCHospital, Coimbatore that the deceased died at the hospital.Subsequently the case was altered into Sections 324 and 302 IPC andthe altered FIR was despatched to the Court. Then, P.W.21 conductedinquest on the dead body of the deceased in the presence of thewitnesses and panchayatdars and prepared Ex.P.16, the inquestreport. Pw.1 examined other witnesses. Then, the dead body was sentto the Coimbatore Medical College Hospital, Coimbatore for thepurpose of autopsy. h)P.W.14, the Tutor in the Forensic Science Division, CMCHospital, Coimbatore on receipt of the requisition, conducted post-mortem on the dead body of the deceased and issued Ex.P.5, the post-mortem certificate, wherein she has opined that the deceased wouldappear to have died of injuries sustained in the skull. i)The place of occurrence was photographed through P.W.19,the photographer. Ex.P.10 (series) photos and Ex.P.11 (series)negatives were marked. The material objects were subjected tochemical analysis by the Forensic Science Department j)PW.22, the Inspector of Police took furtherinvestigation and recorded the statements of the medical officers.On completion of the investigation, he has filed the final report. 3.The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the charges,the prosecution examined 22 witnesses and also relied on 17 exhibitsand 4 M.Os. On completion of the evidence on the side of theprosecution, all the accused were questioned under Section 313Cr.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, after hearing thearguments advanced and looking into the materials available, tookthe view that the prosecution has proved the case beyond reasonabledoubt and found the accused guilty and awarded punishments asreferred to above. Hence these appeals have arisen at the instance of the appellants/accused 1,3and 4. 4.Advancing arguments on behalf of the first appellant,the learned counsel would submit that in the instant case, PW1 to 3were shown as eye witnesses. Even as per the prosecution, theoccurrence took place on 3.7.2007 at 12.30 hours. Since there wasnon-payment of salary, the deceased accompanied by Pws.1 to 3, wentto the place where the accused were actually sleeping at the wee https://hcservices.ecourts.gov.in/hcservices/ hours and quarrelled with them and in that process, the occurrencehad taken place. Learned counsel would stress that while taking intoconsideration the time of occurrence and the manner in which theoccurrence had taken place, in particular, when these accused werenot armed with any weapon or stick or log at the time of occurrence,it would be clearly indicative of the fact that they have no commonintention or pre-meditation to share with and hence the finding ofthe lower court that they have got a common intention, cannot beaccepted. Added further, in the instant case, the prosecution casewas that A1 attacked PW1 with wooden log and caused injury on himand PW1 was examined by PWs.13 and 16 doctors and Ex.P.4 is thewound certificate and Ex.P.7 is the Accident Register Copy. Aperusal of Wound Certificate of PW1 would clearly indicate thatthere are three lacerated injuries found on his head. Even thoughthe prosecution claimed that A2 and A3 attacked the deceased and A4attacked PW2 at the instigation of A1, before P.W..21, theinvestigator, they have categorically admitted that at the time ofoccurrence they were not present in the place of occurrence and itis only at the instigation of A1 they were present, was only adevelopment at the time of trial and in the absence of the saidversion,the prosecution ought to have found the first accusedguilty. Even assuming, the case of the prosecution is found to beproved that A1 attacked PW1 on his head with the wooden log andcaused three lacerated injuries, he has got to be dealt with inaccordance with law.5. The learned counsel for the third appellant, wouldsubmit that in the instant case, the case of the prosecution wasthat it was A2 and A3, who have attacked not only the deceased, butalso PW1. At this juncture, learned counsel would submit that theprosecution marshalled the evidence of Pws.1 to 3. The discrepancieswhich were found in the evidence of all these three witnesses wouldclearly reveal that such an occurrence could not have taken place atall. A2 and A3 could not have any intention or pre-meditation toshare with other accused. Even as per the prosecution case, actuallythey were not armed with any weapon at the time of commencement ofthe occurrence and actually there was a wordy quarrel and in thatprocess, A2 and A3 could have attacked the deceased as well as PW1.Learned counsel would further add that the medical opinion wouldclearly indicate that the injuries sustained could not be the causefor the death, since the occurrence took place on 3.7.2007, but thesaid Palaniappan died after 24 hours i.e. on 4.7.207 and themedical records pertaining to the deceased were not produced beforethe trial court. It is under the said circumstances, it cannot bestated that A3 acted with pre-meditation or with common intention.The quarrel would have suddenly took place, that too, in the weehours. Under such circumstances, the trial court had committed anerror of finding them guilty under Section 302 read with 34 IPC. Ifthe Court comes to the conclusion that the death was occasioned onlyby the act of A2 and A3, it would not attract the penal provision ofmurder, and it has to be considered by this Court.6. According to learned counsel appearing for the fourth https://hcservices.ecourts.gov.in/hcservices/ accused, no evidence was available to the effect that A4 was presentat the time of occurrence. The case of the prosecution was that, itwas A4 who attacked PW2 with the wooden log, whereas the certificatein this regard is marked as Ex.P9 and perusal of Ex.P9 would clearlyindicate that PW2 has stated to the doctor that he was attacked bythree persons. No external injury was noticed and that would clearlyindicate that even assuming A4 was present, he had not attacked PW2as claimed by the prosecution and hence he had no common intentionto share with any of the accused. Hence an inference could be drawnagainst the prosecution and the judgment of conviction renderedagainst A4 has to be set aside. 7. Learned counsel for the appellants would submit thatall put together would go to show that the prosecution thoughmarched three witnesses, they have not spoken so and the recordsproduced by the prosecution are in no way supporting their case.Apart from that, the medical opinion also did not corroborate theprosecution case. Hence the prosecution has miserably failed toprove its case. The lower court has taken an erroneous view, whichhas got to be set aside by acquitting the accused 1,3and4/appellants. 8.The court heard the learned Additional Public Prosecutor onthe above contentions and has paid its anxious consideration on thesubmissions made. 9.It is not in controversy that Palaniappan, died in anincident that took place on 3.7.2007 at about 12.30 mid-night.Following the incident on 3.7.2007, he was taken to K.G.Hodpital andthereafter he was referred to CMC hospital, Coimbatore, where he wasdeclared dead on 4.7.2007. Originally a case was registered underSections 324 and 307 IPC against the appellants along with A5.Thereafter, on the death of Palaniappan, the case was altered intoone under Section 302 IPC. Following the inquest made by P.W.21, theInvestigating Officer, the dead body was subjected to post-mortem byP.W.14, the Doctor, who has given categorical opinion that thedeceased died due to the injuries sustained to the skull. Themedical evidence canvasses that the deceased died of homicidalviolence and the said fact was never disputed by the appellantsbefore the trial court, Now, the learned counsel for the thirdappellant has argued before this Court, with feeble evidence,theprosecution is unable to countenance the same and the prosecutionhas not proved the case with sufficient evidence. 10.In order to substantiate the factual position that thedeceased died out of the act of A2 and A3 and A2 attacked withwooden log and A3 attacked with reaper, at the time of occurrence,viz. 12.30 mid-night at 3.7.2007, the prosecution examined Pws1 to3. It is well settled proposition of law that in a given case likethis, where the eye witnesses happen to be the injured witnesses,the Court should not discard their evidence,unless and until, strongcircumstance is noticed or reason is brought forth. In the instantcase, no such reason or circumstance has been brought to the notice https://hcservices.ecourts.gov.in/hcservices/ of the Court by the appellants. 11. The case of the prosecution, as could be seen, fromthe evidence of Pws.1 to 3 is that due to the non-payment of wages,all of them went along with the deceased. The said Ayyavu directedthem to meet A1. Accordingly, they met A1,Mohan by 12.30 mid-nighton 3.7.2007 when he was sleeping and when he came out, the deceasedquestioned him as to the salary, since it was wee hours, apart fromthe fact that A1 was also sleeping, he got irritated and a quarrelarose between the parties and in that process, the evidence woulddisclose that A1 attacked PW1 and A2 and A3 attacked the deceasedwith wooden log and reaper respectively, apart from A4 attackingPW2. The evidence in this regard spoken to by Pws.1 to 3 remain inone voice. 12. In this incident, Pws.1 to 3 were actually examined bythe Medical Officer. PW1 was examined by PW.13 doctor originally andthereafter by P.W.16 at KG Hospital and PW2 was examined by PW18doctor and Wound certificate of PW1 is marked as EX.P.4 and PW2marked as Ex.P.9. A perusal of these two documents would clearlyindicate that such an occurrence would have taken place as spoken toby the witnesses. Further, PW2 has categorically spoken to the factthat he was attacked by A4 with a wooden log. With this factualposition, no question would arise as to whether they have got anypre-meditation or common intention to share with. The answer isnegative for the simple reason that Pws.1 to 3 along with A1 wassleeping and the deceased gave a wake up call through onePrabhu,thereafter he came out and a quarrel arose and thus he gotirritated and in that provocation, the occurrence had culminated.Under such circumstances, taking into consideration the time and themanner in which the occurrence had taken place as narrated above, atno stretch of imagination, it could be stated that A1 to A4 had anycommon intention to share with. 13. It is brought to the notice of the Court that thoughthe prosecution came forward with the story that it was A1 he whoinstigated the other accused, PW21, the investigator hascategorically stated that the witnesses have not given any suchevidence when it was recorded under Section 161 of Cr.P.C. whichwould indicate that there was no instigation made by A1. Under suchcircumstances, neither there was instigation by A1 nor there waspre-meditation or common intention to share with the other accusedand hence this has got to be taken into consideration. Tthe accusedhave got to be dealt with according to their act. s14. A1 attacked PW1 with wooden log and caused threelacerated injury on the head as could be seen from Ex.P.4 woundcertificate and EX.P7, AR copy and those injuries are termed only assimple in nature. Under such circumstances, the act of the firstaccused would attract the penal provision under Section 324 IPC andawarding punishment of 1 year RI would meet the ends of justice. 15. From the evidence, it would be quite clear that A2 https://hcservices.ecourts.gov.in/hcservices/ attacked the deceased with wooden log and A3 with reaper and thuscaused the injuries on the head which were fatal as could be seenfrom the post-mortem certificate and as per the opinion of thepostmortem doctor. Though the act done by the third accused cannotbe said to be either intentional or premeditated, he has got theknowledge that by the attack with the reaper on his head, the deathwould likely to be ensued. Under these circumstances, the act of theaccused would not attract the penal provision of murder, but itwould be one culpable homicide not amounting to murder. Hence theact of A2 and A3 would attract the penal provision of section 304(I) I.P.C and awarding punishment of 7 years R.I. would meet theends of justice. 16. Insofar as A4 is concerned, PW2 has categoricallyspoken to the fact that he was attacked by A4 with a wooden log. Itis true that Ex.P.9 AR copy was issued for PW2, which does not speakabout any injury, but at the same time,from the evidence of PW2 itwould be quite evident that he was taken to the hospital andtreatment was given. Merely because there was no external injury, itcannot be stated that the prosecution case in that regard was falsefrom the evidence of PW2 and moreover when it was corroborated byPW1, who was medically examined. Therefore, the act of the fourthaccused would attract the penal provision under Section 324 IPC andawarding punishment of 1 year RI would meet the ends of justice.Hence, the judgment of the trial Court is modified as follows: (i) The conviction and sentence imposed on the firstaccused is modified. The first accused is convicted under Section324 IPC and sentenced to undergo one year RI. The fine amount, ifany, paid by the first appellant is ordered to be refunded to him. (ii) The third accused is convicted under section 304(I)I.P.C and sentenced to undergo 7 years R.I. The period of sentence already undergone by the third accused is orderedto be given set off. (iii) Insofar as A4 is concerned, the conviction andsentence imposed upon him is modified and he is convicted U/s.324IPC and sentenced to undergo one year R.I and he is acquitted of allthe other charges levelled against him. (iv) Now it is brought to the notice of the Court by thelearned counsel for the fourth accused that he is in jail for thepast one year, which statement is recorded. Under thesecircumstances, the Superintendent of Central prison Coimbatore isdirected to act accordingly. The fine amount if any paid is orderedto be refunded to him. https://hcservices.ecourts.gov.in/hcservices/

17.In the result, the above Criminal Appeals are disposedof. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVJYTo1.The Sessions Judge for Exclusive Trial of Bomb Blaset Cases, Coimbatore.2.-do- thro The Principal Sessions Judge,Coimbatore.3.The District Collector, Coimbatore.4.The Director General of Police,Mylapore,Chennai-4.5.The Commissioner of Police,Coimbatore.6.The Superintendent,Central Prison, Coimbatore7.The Inspector of Police, Saravanampatti Police Station, Coimbatore.8.The Public Prosecutor, High Court, Madras. +1cc to Mr.A.Abdul Lathif, Advocate Sr 33136+1cc to Mr.K.Govindaraj, Advocate Sr 32955+1cc to Mr.V.Bharathidasan, Advocate Sr 33179MSM(CO)km/10.8.Crl.A.Nos.489 AND 775 OF 2008 AND 212 OF 2009