1.Gurusamy & Ors. v. The S

B A I L S L I PThe Appellants/Accused Nos.1, 2 & 4, 5 Viz., 1.Gurusamy2.Muttaicose @ Subramani, 3.Govindaraj, 4.Thiruttu Subban @ Subbanwere directed to be released on bail as per order of this Court dated13.8.2007 and made in Crl.MP.No.1/07 in Crl.A.No.618/07 on the fileof this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.618 of 2007 and 750 of 2008C.A.No.618/2008:1.Gurusamy2.Muttaicose @ Subramani3.Govindaraj4.Thiruttu Subban @ Subban.. Appellants/Accused1, 2, 4 & 5vsThe State of Tamilnadurepresented byThe Inspector of PoliceArachalur Police StationErode District(Cr.No.42 of 2004).. Respondent/ComplainantC.A.No.750/2008:State represented byThe Inspector of PoliceArachalur Police StationErode District(Crime No.42/2004).. Appellant/Complainantvs1.Gurusamy2.Muttaicose @ Subramani3.Kalyanasundaram4.Govindaraj5.Thiruttu Subban @ Subban6.Thambi @ Dhanasekaran7.Srinivasan https://hcservices.ecourts.gov.in/hcservices/

8.Duraian @ Karuppannan9.Kumaresan10.Ammini11.Mangayarkarasi12.Rajendran13.Thangamuthu.. Respondents/Accused Nos.1 to 8 & 10 to 14CA 618/2007 preferred under Sec.374(2) of the Code of CriminalProcedure against the judgment of the I Additional Sessions Judge,Erode, made in S.C.No.62 of 2005 dated 12.7.2007.CA 750/2008 preferred under Sec.378 of the Code of CriminalProcedure against the judgment of acquittal made by the I AdditionalSessions Judge, Erode, in S.C.No.62 of 2005 dated 12.7.2007.For Appellants inCA 618/2007 &Respondents 1, 2,4 & 5 inCA 750/2008: Mr.V.Gopinath Senior Counsel for Mr.T.GowthamanFor Respondent inCA 618/2007 &Appellant inCA 750/2008: Mr.N.R.Elango Additional PublicProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)These two appeals have arisen from the judgment of the learned IAdditional Sessions Judge, Erode, in S.C.No.62 of 2005. The formerCA 618/2007 is at the instance of A-1, A-2, A-4 and A-5. Out of 14accused who stood charged and tried, A-1, A-2, A-4 and A-5 were foundguilty and awarded punishment as follows, while all others wereacquitted of all the charges. Regarding that part of order ofacquittal, the State has preferred the latter appeal in CA 750/2008.ACCUSEDCHARGESFINDINGPUNISHMENTA-11 to A-13147 IPCNot guiltyA-1 to A-10 & A-14148 IPCNot guiltyA-3, A-4, A-5,A-8, A-10 & A-13450 IPCNot guilty https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-3 to A-5, A-8,A-10 & A-133(1) Tamil NaduPublic Property(Damage &Destruction) ActNot guiltyA-1, A-2, A-6,A-7, A-9, A-11A-12 & A-143(1) Tamil NaduPublic Property(Damage &Destruction) Actr/w 149 IPCNot guiltyA-3, A-6 & A-7307 IPCNot guiltyA-1, A-2, A-4,A-5, A-8 & A-14307 r/w 149 IPCNot guiltyA-6, A-8 & A-9307 IPCNot guiltyA-1 to A-5, A-7& A-10 to A-14307 r/w 149 IPCNot guiltyA-4, A-5 & A-10307 IPCNot guiltyA-1 to A-3, A-6to A-9 & A-11 toA-14307 r/w 149 IPCNot guiltyA-4324 IPC (2counts)Not guiltyA-1 to A-3 & A-5to A-14324 r/w 149 IPC(2 counts)Not guiltyA-1, A-2, A-4 &A-5302 IPCGuiltyLifeimprisonmentwith a fine ofRs.2000/- anddefault sentenceA-3 & A-6 to A-14302 r/w 149 IPCNot guilty2.The short facts necessary for the disposal of these appealscan be stated as follows:(a) P.W.1 is the son of P.Ws.2 and 3. P.W.4 is the cousin ofP.W.1. P.W.12 is the brother of P.W.3. All these witnesses and theaccused belonged to Elavanatham Village. A-1 and P.W.2 had landedproperties adjacent to each other. Apart from that, they were owninga landed property jointly. They had raised a ridge in between theirrespective properties. They had coconut trees. Regarding theenjoyment of the coconut trees, they had often quarrel. On26.3.2004, the goats belonging to P.W.1 entered into the gardenbelonging to A-1. The mother of the wife of A-1 shouted at theprosecution witnesses. They drove the goats into their land. A-1and A-11 left the place saying that they would deal the matterproperly. (b) At about 9.30 A.M. on the same day, A-14 brought a tempo vanalong with 10 persons. They went to the house of P.W.1, and at thattime, A-2 and A-4 got down from the tempo van and went inside the https://hcservices.ecourts.gov.in/hcservices/ house. They wanted to have panchayat over that incident. Theyreplied that panchayat could not be had that time, and they could putin a common place. At about 4.30 P.M., P.W.1, his uncle's youngerson Yuvraj and a friend Duraisamy were in the house. At that time,A-2 came out of the house of A-1, and he was actually armed with anaruval, A-3 armed with an iron rod, A-4 with a wooden stick, A-5with a crowbar, A-6 with an aruval, A-7 with a wooden log, A-8 with astick, A-9 with a wooden stick, A-10 with a crowbar and A-11 and A-12were also armed with sticks. A-1 came to the place in a scooter andtook out a wooden log from behind. A-1 instigated others to attackthe prosecution witnesses. Fearing over the same, all theprosecution witnesses got inside and closed the doors. At that time,immediately A-3 and A-5 broke open the doors and got inside thehouse. A-3 and A-5 damaged the television, VCD with iron rods, etc.A-5 also damaged the tube light, ceiling fan, window and clock, etc.On seeing this, all these witnesses got into a room and closed thedoor. Immediately, it was broken open by A-3 and A-4, and all ofthem got inside. A-7 beat P.W.2 on his hands. A-3 beat P.W.2 on thehead and both the shoulders. P.W.3 intervened and A-6 cut on hishead twice. A-8 beat on the hands of P.W.3. A-4 beat on the leftforearm. A-3 beat on the right hand. A-10 beat on the shoulder andback and other parts of the body. P.W.7 was beaten by A-8 and A-9.P.W.4 was attacked by A-4. P.Ws.1, 4 and 7 ran out of the housefollowed by P.Ws.2 and 3. On hearing the noise, the deceased camethere. A-1, A-2, A-4 and A-5 chased him. A-2 cut on the head of thedeceased twice. A-5 beat on the legs and also on the thigh. A-4beat on the right leg and chest. A-1 beat on the left forearm. Onhearing the distressing cry, a crowd gathered. The accused fled awayfrom the place of occurrence. (c) P.W.11 took all these injured persons and the deceased, andthey were originally taken to the Government Hospital, Erode.Thereafter the injured were taken to Lotus Hospital. A message wasgiven to the respondent police station. Immediately, P.W.27, the SubInspector of Police, proceeded to the Government Hospital at about9.00 P.M. and recorded the statement of P.W.1, which is marked asEx.P1. Then, he proceeded to the respondent police station andregistered a case in Crime No.42 of 2004 under Sections 147, 148,447, 448, 452, 427, 324, 307 and 302 of IPC. The printed FIR Ex.P48was sent to the Court along with the statement, Ex.P1. The copies ofthe same were sent to the higher officials. (d) P.W.28, the Inspector of Police, on receipt of the messagewent to the scene of occurrence, took the FIR copy and prepared anobservation mahazar, Ex.P37, and a rough sketch, Ex.P49. He causedphotographs to be taken through P.W.21. He seized broken articlesand scooter under a mahazar. He received the death intimation Ex.P15of the deceased. Then he went to the hospital and conducted inqueston the dead body in the presence of witnesses and panchayatdars andprepared Ex.P51, the inquest report. He examined P.Ws.1, 4, 7 and 13and recorded their statements. He proceeded to the Lotus Hospitaland examined P.Ws.2 and 3 and also seized the bloodstained clothes ofP.Ws.2 and 3. (e) P.W.9, the Doctor, attached to the Government Hospital,Erode, examined P.Ws.4 and 7 and gave the wound certificates whichare marked as Exs.P20 and P22 respectively. https://hcservices.ecourts.gov.in/hcservices/ (f) P.W.10, the Civil Assistant Surgeon, attached to theGovernment Hospital, Erode, on receipt of the requisition conductedautopsy on the dead body of Nataraj on 26.3.2004 at about 11.45 A.M.and he also issued a postmortem certificate Ex.P23 with his opinionthat the deceased would appear to have died of shock and haemorrhagedue to head injury. (g) On 28.3.2004, on information P.W.28 arrested A-10 and A-13and recorded their confessional statements in the presence of P.W.5.He seized a crowbar. Then he took police custody of A-6. Hisconfessional statement was recorded, and he also seized the aruvalproduced by him. He also seized the van in the presence of P.W.19.A-3 was arrested on 5.5.2004 and he also recorded the confessionalstatement. An iron rod was also seized. A-5 was taken to policecustody and pursuant to his confession, a crowbar was recovered. On26.2.2004, A-2 was taken to police custody. Pursuant to hisconfessional statement, an aruval was recovered. P.W.28 examinedP.Ws.9, 10 and others. All the material objects were subjected tochemical analysis, and reports were also received. Ex.P42 is thechemical analysis report while Exs.P43 and P44 are the serologyreport. On completion of the investigation, P.W.28 filed the finalreport. 3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 28 witnesses and also relied on 52 exhibits and37 material 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. They flatly denied them as false. On theside of defence, D.W.1 was examined, and Ex.D1 was marked. Oncompletion of the evidence, the trial Court heard the argumentsadvanced and found A-1, A-2, A-4 and A-5, the appellants herein,guilty under charge No.14 and in respect of the other charges, theywere acquitted, and the other accused were acquitted of all thecharges. Hence C.A.No.618/2007 has arisen at the instance of theappellants. Aggrieved over that part of the order of acquittal, theState has preferred CA 750/2008. Both these appeals are in the handsof this Court for disposal.4.Advancing arguments on behalf of the appellants, the learnedSenior Counsel Mr.V.Gopinath would submit that the prosecution camewith the story that the occurrence has taken place at about 4.30 P.M.On 26.3.2004 and the Sub Inspector of Police has reached the hospitaland has taken the statement of P.W.1 at about 10.00 P.M. andregistered the case at about 11.30 P.M.; that in the instant case,there were 15 charges levelled against; that out of 15, theprosecution came forward to march five witnesses as injured witnesseswho are P.Ws.1 to 4 and also P.W.7; that out of these witnesses,P.W.7 has turned hostile; that P.Ws.1 to 4 were not only shown aseyewitnesses, but also injured witnesses; but the lower Court was notready to believe their evidence and also the medical evidence andacquitted all other accused in respect of 14 charges; but as a matterof surprise the trial Court found these appellants guilty only oncharge No.14, a charge of murder; and that while the lower Court was https://hcservices.ecourts.gov.in/hcservices/ not ready to believe the evidence of the injured witnesses P.Ws.1 to4 in respect of the injuries sustained by them and rejected theirevidence, their evidence should have also been rejected in toto, buthas relied on their evidence. 5.The learned Senior Counsel would further add that in theinstant case, the prosecution came with a case that lot of propertieswere also damaged; that in that count also, the trial Court was notready to believe the case; that P.W.1 is the son of P.Ws.2 and 3;that P.W.4 is the cousin brother of P.W.1; that P.W.12 is the brotherof P.W.3 and thus they are all closely related to each other; thatthis fact would clearly indicate that they are all partisanwitnesses, and they have given interested testimony; that now at thisjuncture, it is pertinent to point out that the defence came forwardwith the specific plea that there was really a quarrel regarding thegrazing of goat; that there was a panchayat that was to be convenedat about 4.30 P.M.; that it was to be presided over by the wife ofthe MLA and she did not come to the spot, and at that juncture, theincident has arisen; that this plea put forth by the defence wasactually fortified by the evidence of P.W.3; that she hascategorically admitted all the above; that from the FIR and also theevidence of P.W.3, it would be quite clear that there was a quarreland also a free fight among the parties; that in that process, notonly P.Ws.1 to 4 were injured, but also A-2 got a head injury; thatthe prosecution had no explanation to offer how he sustained headinjury; that this would be fatal to the prosecution case; and thatthe non-production of any evidence or explanation regarding the headinjury sustained by A-2 would suffice to reject the prosecution casein toto. 6.Added further the learned Senior Counsel that in this case, asfar as the deceased was concerned, he actually intervened when thefree fight was going on, and in that process he sustained injurywhich would clearly indicate that no one of the accused namely A-1,A-2, A-4 or A-5 could have got any intention or premeditation toattack him; that under the circumstances, it was not a fit case toattract the penal provisions of murder; that apart from that, whenthere was a free fight and in that process number of witnesses and A-2 have also been injured, there was unexpected intervention by thedeceased, and it was also the outcome of the injuries sustained byhim; that in such circumstances, A-1, A-2, A-4 and A-5 should nothave been found guilty, and they are entitled for acquittal; but, thelower Court has actually misled itself; and that while it has not notbelieved the entire story of the prosecution regarding the damage ofthe properties or the injuries sustained by P.Ws.1, 2, 3 and 4, ithas believed their evidence only to the part for convicting A-1, A-2,A-4 and A-5 in respect of the injuries sustained by the deceasedNataraj. 7.Added further the learned Senior Counsel that even assumingthat they have actually attacked the deceased at the time ofoccurrence, they could not be found guilty under Sec.302 IPC; that itwas not their intention nor had they premeditation; and that in anyevent, they had attempted to cause injuries which in the ordinary https://hcservices.ecourts.gov.in/hcservices/ course of nature are likely to cause death. The learned SeniorCounsel would further add that all these factual position and legalposition have escaped the vision of the trial Court, and under thecircumstances they are entitled for acquittal in the hands of thisCourt. 8.The learned Additional Public Prosecutor was heard on all theabove contentions.9.Advancing arguments on behalf of the State in the appeal inwhich that part of the judgment of acquittal was challenged, thelearned Additional Public Prosecutor would add that in the instantcase, not only P.Ws.1 to 4 were eyewitnesses, but also they wereinjured witnesses; that they were all taken to the hospital; thatthey have all given clinching and cogent evidence; that the accidentregister copies in respect of P.Ws.1 to 4 were marked as Exs.P8, P11,P14 and P19 respectively; that the wound certificates were marked asExs.P9, P12, P15 and P20 respectively; that it is true that P.W.7 hasturned hostile; that even after rejecting his evidence, there isevidence of P.Ws.1 to 4 who were all injured witnesses; that theyhave given cogent evidence by which accused they were attacked andhow the injuries were sustained; that it is true that there werediscrepancies in the evidence; that in a given case like this wherethere are number of persons, such discrepancies are hound to occur;that if they are looked into, they would clearly indicate that theywere all minor most and by that, the case of the prosecution shouldnot be rejected. 10.The learned Additional Public Prosecutor would further addthat in a given case like this, when the eyewitnesses happened to beinjured witnesses, their evidence should not be rejected unless anduntil strong circumstance is noticed by the Court; that in theinstant case, the trial Court did not point out any circumstance orreason to reject their evidence, but has acquitted all other accusedonly on flimsy reasons, and under the circumstances, that part of thejudgment of the trial Court on that ground has got to be reversed andhas to be set aside on the evidence available, and they are to bedealt with in accordance with law.11.The Court paid its anxious consideration on the submissionsmade.12.It is not in controversy that one Nataraj following theincident that had taken place on 26.3.2004 at 4.30 P.M., died, andfollowing the inquest made by the Investigating Officer, P.W.28, andthe preparation of the inquest report, the dead body was subjected toautopsy by P.W.10, the Medical Person, who has given categoricalopinion that he died out of shock and haemorrhage due to head injury.This fact was never disputed by the appellants before the trialCourt, and hence no impediment is felt in recording that the deceaseddied on account of homicidal violence.13.The gist of the case of the prosecution was that following aquarrel regarding the grazing of the goats, A-1 along with others https://hcservices.ecourts.gov.in/hcservices/ went to the house of the prosecution witnesses and called for apanchayat, and accordingly a panchayat was scheduled to take place at4.30 P.M. on 26.3.2004. But, at that time, no panchayat wasconducted; on the contrary, the incident in question had taken place.It is true that P.Ws.1, 2, 3, 4 and 7 were actually injured in thatincident, and they were all taken to the Government Hospital andthereafter to Lotus Hospital, Erode, where they were all givenmedical treatment. It is also true that the wound certificatesregarding the injuries sustained by them were all marked before thetrial Court. Now, this Court is mindful of the caution made by theApex Court and also by the settled principles of law that in a givencase like this, where the eyewitness happened to be injured witness,the Court should not discard his evidence. But, in the instant case,a perusal of the judgment of the trial Court would clearly indicatethat the trial Court had no option than to acquit the accused in thatregard. It is true that they were all injured. Even from theevidence of P.W.3 it would be quite clear that at about 4.30 P.M.,when the panchayat was to be conducted, the wife of the MLA who wasto preside over the panchayat, did not come, and on the contrary, A-2came there, and a commotion arose, and actually there was a freefight, and in that free fight, P.Ws.1 to 4 and 7 were injured. Fromthe evidence, it would be abundantly clear that not only thesepersons were injured, A-2 was also injured, and he has got headinjury. The prosecution had no evidence or explanation to offerbefore the trial Court. Thus the non-explanation of the injuriessustained by A-2 coupled with the injuries sustained by P.Ws.1 to 4along with the evidence of P.W.3 that there was a free fight allwould go to show that in the commotion and in the free fight all wereinjured. But, how these injuries were sustained could not be spokento properly. On the other hand, there was thorough discrepancy inthe evidence on material aspects. Thus the trial Court was perfectlycorrect in acquitting the accused regarding those charges. At thisjuncture, it is pertinent to point out that in a given case like thiswhere the trial Court on appreciation of evidence has made an orderof acquittal, the appellate Court should not ordinarily interfereunless and until the judgment was perverse or the order of acquittalwas thoroughly lacking in reason. In the case on hand, this Court isunable to notice either of the reason. Under the circumstances, thisCourt is of the considered opinion that the acquittal part of thejudgment regarding those charges was actually based on reasons, andit has got to be sustained. Thus the appeal by the State is liableto be dismissed.14.As far as the appeal made by the appellants are concerned,from the evidence it would be quite clear that the deceased Natarajwhen that commotion was going on, intervened to pacify the situation,and at that time, A-1, A-2, A-4 and A-5 have attacked him. Thus itwould be quite evident that there could not have been anypremeditation or any intention to attack him. But, when the freefight was going on between different persons, one of the persons whois actually interested and related to the prosecution witnesses,namely the deceased Nataraj, has intervened. Under thecircumstances, A-1, A-2, A-4 and A-5 should have attacked him.Hence, they have got to be dealt with in respect of their individual https://hcservices.ecourts.gov.in/hcservices/ acts. The medical opinion was canvassed through the postmortemDoctor and his opinion. The postmortem certificate would clearlyindicate that the injury that was caused on the head with an aruvalwas fatal. According to the prosecution, it was caused by A-2 whilehe attacked him with the aruval. A-1 has caused injury on the leftforearm with a stick. A-4 has caused injury with a stick on thelegs, and A-5 also caused injury with a crowbar on the leg. Theseinjuries caused by A-1, A-4 and A-5 were actually simple in nature,and thus it cannot be stated that they intended to cause death orthey caused injuries which were in the ordinary course of naturelikely to cause death. But, at the same time, the injury that wascaused by A-2 on the head of Nataraj was fatal. At this juncture,the Court must see whether there was any justification for A-2 tocause such an injury and cause his death. This Court is of theconsidered opinion that A-2 could not have any justification at allto cause injury to the deceased when he wanted to intervene to pacifythe situation. It was not the case of the prosecution or the defencethat he was armed with any weapon. He was actually coming at thetime when the panchayat was scheduled to take place. When thecommotion arose and there was a free fight, the deceased intervenedto pacify. But, at that time, A-2 without any justification attackedhim on the head with the aruval and caused fatal injury leading tohis death. Thus the act of A-2 would, no doubt, attract the penalprovision of murder. The conviction and sentence imposed by thetrial Court on A-2 under Sec.302 IPC has got to be sustained.Accordingly, they are sustained.15.As regards A-1, A-4 and A-5, for the reasons recorded above,their acts would attract Sec.324 of IPC, and awarding of two yearsRigorous Imprisonment, in the opinion of this Court, would suffice.Accordingly, the conviction and sentence imposed by the trial Courton A-1, A-4 and A-5 under Sec.302 of IPC are set aside, and instead,they are convicted under Sec.324 of IPC for which they are directedto suffer two years Rigorous Imprisonment. The fine amount imposedby the trial Court will hold good. The sentence already undergone bythem shall be given set off. Since A-1, A-2, A-4 & A-5 are on bail,the Sessions Judge shall commit them to prison to undergo thesentence.16.With the above modification in conviction and sentence,C.A.No.618 of 2007 is dismissed. C.A.No.750 of 2008 is dismissed.nsvSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1.The I Additional Sessions Judge Erode2.Do Through The Prl Sessions Judge, Erode.3.The Judicial Magistrate No.II, Erode.4.Do Through the Chief Judicial Magistrate, Erode.5.The Superintendent, Central Prison, Coimbatore.6.The District Collector, Erode7.The Director General of Police, Chennai8.The Inspector of Police Arachalur Police Station Erode District 9.The Public Prosecutor High Court, Madras.+ 1 cc to MR. T. Gowthaman, Advocate SR No.25453GV(CO)SR/7.7.2009C.A.Nos.618 of 2007and 750 of 2008