Siva @ Sivakumar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.07.2008CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCriminal Appeal Nos.612 of 2008 and 64 of 2009Siva @ Sivakumar ..Appellant in C.A.No.612/2008/ Accused No.ISubramani @ Subbu @ Suresh ..Appellant inC.A.No.62/2009/Accused No.IIIVs.State represented byThe Inspector of Police,Erode North Police Station,Erode District(Crime No.459/2007) ..Respondent in both the appeals. These criminal appeals have been preferred under Section 374(2)Cr.P.C. against the judgment of conviction and sentence passed by thelearned Ist Additional Sessions Judge, Erode District made inS.C.No.31/2008 dated 01.8.2008.For Appellantin Crl.A.612/2008 : Mr.V.Raghavachari For Appellantin Crl.A.64/2009 : Mr.I.C.VasudevanFor Respondent : Mr.N.R.Elango, APP in both Crl.As.COMMON JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgement shall govern these two appeals viz.,Crl.A.No.612/2008 by A1 and Crl.A.No.64/2009 by A3. https://hcservices.ecourts.gov.in/hcservices/

2. These two appellants along with four others stood charged andon trial they were found guilty as follows:AccusedChargesFindingsSentenceA-1 to A-4148 IPC Not GuiltyA-6147 IPCNot GuiltyA-1 to A-4307 IPCGuilty u/s 307r/w 149 IPC 7 years RI alongwith fine ofRs.500/- i/d. 6months RI. eachA-5 and A-6307 r/w 149 IPCNot GuiltyA-1 & A-3302 IPCGuilty Lifeimprisonmentalong with fineof Rs.1000/-i/d. 6 months RIeachA-2, A-4, A-5& A-6302 r/w 149 IPCNot guiltyA-1307 IPCNot guiltyA-2 to A-6307 r/w S.149IPCNot guiltyA-1 to A-4452 IPCNot guiltyA-1 to A-6427 IPCNot guiltyA-5 and A-6427 r/w 149 IPCNot guiltyThe sentences are ordered to run concurrently.The trial Court made an order of acquittal of A5 and A6.3. The short facts necessary for the disposal of these appealscan be stated as follows:(a) P.W.4 is the wife of P.W.2. P.W.1 is the brother of P.W.4.P.W.2 is running a mineral water shop in the name and style 'PenguinWaters' and P.W.1 was running a bunk shop which is part of thebuilding in which P.W.2 is running the mineral water shop. Duringthe relevant time, P.Ws.1, 2 and 4 were living together at NethajiNagar. On 7.4.2007 at about 5 p.m , during festive occasion inPeriamariamman temple, A1 to A3 broke beer bottles in front of thehouse of P.W.1. The same was questioned by P.W.4 and there was aquarrel between P.W.4 and A1 to A3. P.W.4 reported the same to P.W.1and P.W. 1 questioned the accused but the accused/A1 to A3 assaultedhim. From that time onwards, they were in inmical terms. P.W.4intended to go to Madras on 8.7.2007 for treatment. She went to the https://hcservices.ecourts.gov.in/hcservices/ shop of her husband P.W.2 to inform about the same. When she was justnearing the shop of P.W.2, herself and P.W.1 saw A1 to A4 attackingP.W.2 with aruvals and causing injuries. One Ganapathi who wasactually standing by the side was pacifying the situation. Ganapathyquestioned the conduct of the accused. Immediately, A3 inflicted acut injury on his neck with aruval. Ganapathy fell down. A1 gave stabinjury on his stomach. P.W.3 who was watching T.V. inside the shopcame out and when he questioned A1, he was also attacked by him andhe got severe injury on his wrist. Except these two injuredwitnesses, the other witnesses also witnessed the occurrence. Notsatisfied with the same, they also damaged the furniture in the shopworth Rs.10,000/-. Immediately, the victim was taken to a privatehospital. On the way to hospital, they suspected whether the victimwas dead or alive. Hence, they took him to the Government Hospital.P.W.15 doctor examined the victim and declared him dead. Theaccident Register copy in that regard is Ex.P29. P.W.2 was examinedmedically by P.W.16 in the Government Hospital and wound certificatein that regard is Ex.P28. Equally, the same doctor examined P.W.3 andnoted the injuries found on his body and Ex.P26 is the woundcertificate and Ex.P24 is the accident register copy in that regard. (b) P.W.1 immediately proceeded to the respondent Police Stationand gave Ex.P1 report to P.W.17 Sub Inspector of Police. On thestrength of Ex.P1 report, P.W.17 Sub Inspector of Police registereda case in Crime No.459 of 2007 under sections 427, 307 and 302 I.P.C.The Printed F.I.R. Ex.P31 along with Ex.P1 were sent to Court.(c) P.W.21 Inspector of that circle took up investigation. Heproceeded to the spot made an inspection and prepared the ObservationMahazar Ex.P2 and drew a rough sketch Ex.P35 and thereafter, heconducted inquest on the dead body of the deceased Ganapathy andprepared Ex.P.36 inquest report in the presence of witnesses andrecorded the statement of the witnesses and recovered the materialavailable from the place of occurrence. Pursuant to the request made,P.W.19 doctor conducted post mortem on the dead body and gave hisopinion Ex.P33 post mortem certificate that "the deceased wouldappear to have died, 16 – 18 hrs prior to autopsy due to injuries –Shock & haemorrhage." (d) Pending investigation, A4 was arrested on 12.7.2007 and hecame forward to give confession statement the same was recorded. Theadmissible part was marked as Ex.P5. He produced the aruval which wasmarked as M.O.8 and the same was recovered under a cover of mahazarEx.P6. Equally, A1 to A3 were arrested on 16.7.2007 and A2 cameforward to give confession statement which was recorded and theadmissible part of the same was marked as Ex.P7. He produced M.O.9aruval which was recovered under a cover of mahazar Ex.P.8 and theconfession statement of A1 was recorded and the admissible part ismarked as Ex.P9. He produced M.O.10 aruval which was recovered undera cover of mahazar Ex.P10. The confession statement of A3 was https://hcservices.ecourts.gov.in/hcservices/ recorded and the admissible part was marked as Ex.P11. He producedM.O.11 aruval and also M.O.12 banian which were recovered under acover of mahazar Ex.P.12. All the accused were sent for judicialremand. When the investigator came to know that the other accusedviz., A5 and A6 were also involved, they were arrested and both cameforward to give confession statement on 30.7.2007 and the admissiblepart of the confession made by A5 was marked as Ex.P13. A5 producedM.O.13 TVS 50 and M.O.14 TVS 50 key and they were recovered under acover of mahazar Ex.P14 and he also produced M.O.18 aruval and itwas recovered under a cover of mahazar Ex.P.17. A6 also gaveconfession statement and the admissible part was marked as Ex.P.15.He produced Hero Honda Motor - M.O.15 and Hero Hondo key -M.O.16 andthe same were recovered under a cover of mahazar Ex.P16. The accusedwere sent to judicial remand. (e) All the material objects, pursuant to the requisition made,were subjected to chemical analysis by the Forensic department, as aresult of which Exs.P.20, 21, and 22, chemical and serologistreports respectively were received and produced before the Court. Oncompletion of the investigation, the investigating officer filed afinal report. (f) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 21 witnesses and relied on 36 exhibits and 22material objects. On completion of evidence on the side of theprosecution, the accused were questioned under section 313 Cr.P.C. asto the incriminating circumstances found in the prosecution witnessesand they denied them as false. No defence witness was examined. TheCourt, on hearing the arguments advanced on either side, took a viewthat the prosecution has proved its case beyond reasonable doubt inso far as A1 to A4 are concerned and found A1 to A4 guilty undersection 307 r/w 149 IPC and awarded 7 years rigorous imprisonmentalong with fine of 500/- each, in default, to undergo six monthsrigorous imprisonment and found A1 and A3 guilty under section 302I.P.C. and awarded life imprisonment along with fine of Rs.1000/-each, in default, to undergo six months rigorous imprisonment. Thetrial Court made an order of acquittal insofar as A5 and A6 areconcerned. These appeals have been brought forth only by A1 and A3respectively.4. Advancing the argument on behalf of the appellants learnedcounsel would submit, in the instant case, the prosecution hasmiserably failed to prove its case. The trial Court was not ready tobelieve the evidence of P.Ws.1 to 4 in respect of the charges whichended in acquittal, but the trial court has found A1 to A4 guiltyunder section 307 r/w 149 I.P.C. and A1 and A3 guilty under section302 IPC. Out of the eye witnesses, P.Ws. 1 to 4, P.Ws.2 and 3 wereshown as injured witnesses. In the instant case, the evidence ofP.W.2 and P.W.3 would clearly indicate that such an occurrence could https://hcservices.ecourts.gov.in/hcservices/ not have taken place at all. According to the prosecution, the motiveto the incident was the incident that had taken place on 7.4.2007just three months prior to the occurrence on question. On 7.4.2007,the accused A1 to A3 broke the beer bottle in front of the houseof P.W.4 and there was wordy altercation. Even according to thewitnesses, the accused used to pass the shop of P.W.2 and also thepetty shop of P.W.1 everyday. Under such circumstances, the earlierincident, occurred prior to three months, is the motive which is nowattributed in the present incident, could not be true or genuine.There was no intention or premeditation so far as the deceasedGanapathy was concerned. Unless he interfered in the wordyaltercation between the parties, he could not have been attacked andno intention could be attributed on the accused. 5. Added further learned counsel, insofar as the place ofoccurrence is concerned, according to the prosecution, the occurrencehas taken place in front of the shop but according to P.W.3 he wasactually attacked inside the shop and blood stains were alsocollected from inside the shop. All would go to show that the placeof occurrence is not as one putforth by the prosecution. Further,once the place of occurrence would differ the so called eye witnessescannot be believed. The learned counsel would further add, themedical opinion canvassed was not in favour of the prosecution. Therecovery of material objects alleged to have been made pursuant tothe confession statement is nothing but development made by theinvestigating agency in order to strengthen the prosecution case.Hence, it should have been rejected by the trial Court. In short, thelearned counsel would submit that the prosecution has not proved itscase beyond reasonable doubt and the benefit of doubt should be givento the accused/appellants to which they are entitled to. 6. The learned counsel would further submit that even assumingthe factual position of the prosecution case is taken to have beenproved, the act of the accused/ A1 and A3 would not attract thepenal provision of murder. They had no intention or premeditationwhen there was a quarrel going on between the accused on the oneside and P.Ws. 1, 2 and 4 on the other side. The deceasedunnecessarily interfered. Under such circumstances, being provoked A1to A3 should have attacked him. Hence, the act of the accused wouldnot attract the penal provision of murder but it would fall under theexception to definition of murder. Hence, this legal aspect has gotto be considered by this Court. 7. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.8. It is not in controversy that one Ganapathy was done to deathin an incident that had taken place at 7.30 p.m. on 8.4.2007.Following the inquest made by the Inspector of Police of that https://hcservices.ecourts.gov.in/hcservices/ circle, the dead body was subjected to post mortem. The post mortemdoctor P.W.9 has given his opinion in the post mortem certificateEx.P.33 that Ganapathy died due to shock and haemorrhage out to theinjuries sustained by him. The fact that Ganapathy died of homicidalviolence was never disputed before the trial Court. Thus, the trialCourt was perfectly correct in recording so. 9. In order to substantiate the act of the accused/appellantsthat in the incident that had taken place on 8.4.2007, A1 to A4attacked P.W.2, A1 attacked P.W.1 and apart from that, in thattransaction, A1 and A3 attacked the deceased and caused his deathinstantaneously, the prosecution relied on the evidence ofP.Ws.1 to 4. It is true, P.W.1 is the brother-in-law of P.W.2 andP.W.4 is the wife of P.W.2 and they were all living together.Merely because of the relationship of the parties, their evidencecannot be rejected but before acceptance, it must be subjected tocareful scrutiny test. The Court is mindful of the caution made bythe settled principles of law. Even after application of the test,the Court is thoroughly satisfied that the evidence has inspiredthe confidence of the Court.10. The first comment made by the learned counsel for theappellants was that the earlier incident had taken place on7.4.2007 and the present occurrence had taken place on 8.7.2007 andthere was interval of three months. Hence, the motive attributed tothe accused/appellants cannot be true. This contention cannot beaccepted at all. All these witnesses have clearly spoken to the factthat from the time of earlier incident that was on 7.4.2007, theywere on inmical terms. Apart from this, on 8.7.2007 the occurrencehas taken place at 7.30 p.m. when P.Ws. 1, 2 and 4 were in front ofthe shop and at that time P.W.3 was also inside the shop. As couldbe seen from the available materials, the petty shop of P.W.1 is justin front of Penguin Water shop. It is pertinent to point out that A1to A4, armed with deadly weapons had gone to the place of occurrenceand in that process, when wordy altercation was going on, it was A1,A2, A3 and A4 actually attacked P.W.2 with aruval and causedinjuries. When it was questioned by P.W.3, A1 attacked him witharuval on his wrist and caused grievous injury. 11. From the evidence of P.W.2 and P.W.3, it would clearlyindicate that at the time the deceased was actually standing in frontof the shop and on seeing P.W.2 being attacked by the accused, quitenaturally, he questioned the conduct of the accused. The deceasedGanapathy was an utter stranger and there is nothing to suggest thatexcept questioning the conduct of the accused, he had acted in anymanner. While the matter stood thus, A3 attacked him on the neck andA1 stabbed in the stomach and the opinion canvassed through the postmortem doctor would indicate that he died out of shock andhaemorrhage due to the injuries sustained on him. Thus, the act of A1and A3 conjointly has brought forth the death of the deceased. https://hcservices.ecourts.gov.in/hcservices/

12. In the instant case, it is true A1 to A4 armed with deadlyweapons went over there and they had wordy quarrel. They originallyattacked P.W.2 and they actually wanted to attack P.W.2 with deadlyweapons. First, when P.W.3 questioned the same, A1 attacked him witharuval and caused injury. Now, at this juncture, the Court has toaccept the contention made by the learned counsel for the appellantsthat A1 and A3 did not have any intention to cause the death ofGanapathy, but A3 attacked Ganapathy on his neck, A1 attacked him onhis stomach. It was nothing but causing bodily injury to thedeceased and they knew that it would likely cause death of a personwhen such injury was caused. When such is the case, though A1 and A3did not have intention to cause death, when they caused such bodilyinjury, in the ordinary course, they knew that it would causedeath, hence, it would attract the penal provision of murder. Thecontention putforth by the learned counsel for the appellants that A1and A3 did not have the intention to cause death though can beaccepted, the Court is of the view that they have got the intentionwhile they attacked him with aruval one on the neck and theother on the stomach. They knew that causing such injury would causedeath. Therefore, the act of A1 and A3 would be termed only asmurder and the life imprisonment awarded by the trial Court has gotto be sustained. 13. The findings of the trial Court that the accused were foundguilty under section 307 r/w 149 IPC. has got to be set aside for thesimple reason, the trial court was not ready to believe the case ofthe prosecution regarding A5 and A6 therefore, the question ofattracting the provision of section 149 IPC would not arise. A1,A2, A3 and A4 attacked P.W.2 and have caused simple injuries ascould be evidenced from the wound certificate Ex.P28 and the accidentregister Ex.P27. Hence, the appellants were found guilty undersection 324 IPC. 14. Accordingly, the judgment of conviction and sentence imposedon the appellants by the trial Court under Section 302 IPC issustained. The conviction and sentence imposed on the appellantsunder section 307 r/w 149 IPC are modified and instead, theappellants are convicted under Section 324 IPC and sentenced toundergo 2 years rigorous imprisonment each. The period of sentencealready undergone by the appellants are ordered to be given set off.The fine amount and the default sentence imposed by the trial courtwill hold good. The sentences are ordered to run concurrently.15. With the above modification in conviction and sentence, thecriminal appeals are dismissed.sd/-Asst.Registrar/true copy/vsiSub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The I Additional Sessions Judge, Erode District.2. -do- Through The District & Sessions Judge, Erode.3. The Judicial Magistrate, Erode.4. -do- Through The Chief Judicial Magistrate, Erode.5. The District Collector, Coimbatore.6. The Director General of Police, Mylapore, Chennai.7. The Superintendent, Central Prison, Coimbatore.8. The Inspector of Police, Erode North Police Station, Erode District.9. The Public Prosecutor, High Court, Madras.10. The Section Officer, Criminal Section, High Court, Madras.+ 1 c.c. to Mr. V. Raghavachari, Advocate. S.R.No.34024. Crl.Nos.612 of 2008 & 64 of 2009NTK (CO)GSK 10.08.2009.