High Court · 2008

Bail SlipThe Appellants 1 and 2/Accused 1 and 2, Appellants 1 and 2/Accused4 & 5, Appellants 1 and 2/Accused 7 & 9, and Appellants 1 to 3/Accused6, 8 and 10 in Crl.A.Nos.449,470,505 and 426/06 were directed to bereleased on bail in and by the orders of this Court dated (i) 17.10.2006and 12.06.2006 and made in Crl.M.P.Nos.4328/06, 3270/06 and respectively(Crl.A.No.449/06) (ii) 19.06.2006 and made in Crl.M.P.No.3418/06(Crl.A.470/06) (iii) 03.07.2006 and made in Crl.M.P.1/06(Crl.A.No.505/06) and (iv) 30.06.2006 and made in Crl.M.P.No.1/06(Crl.A.No.526/06) respectively.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.07.2008CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE K.N.BASHACriminal Appeal Nos.449, 470, 505 & 426 of 20061) Mukkannan2) Rani3) Velu @ Velmurugan.. Appellants in Crl.A.No.449 of 2006/A-1to A-34)V.Vairakannu5)R.Dakshnamoorthy.. Appellants in Crl.A.No.470 of 2006/ A-4 & A-56)Dasaiyan @ Dasarathan7)Mani.. Appellants in Crl.A.No.505 of 2006/A-7 & A-98)Arumugam9)Nallappan10)Raja.. Appellants in Crl.A.No.526 of 2006/A6,A8 & A-10Vs.State rep byInspector of Police,Bhuvanagiri Police Station,Bhuvagiri,Cuddalore District... Respondent/ComplainantCase No.249 of 2005Prayer : Criminal Appeals filed under Section 374 of the Code ofCriminal Procedure against the Judgment of conviction passed by the https://hcservices.ecourts.gov.in/hcservices/ learned Additional District and Sessions Judge, Fast Track Court No.I,Chidambaram, Cuddalore District, in S.C.No.251 of 2005 dated 09.05.2006.For Appellants in Crl.A.: Mr.R.Shanmugasundaram, Senior Counsel Nos.449, 470 & 505/06 for Mr.A.Stalin (A-1 to A-5, A-7 & A-9)For Appellants in Crl.A.: Mr.K.V.Sridharan No.526/06 (A-6, A-8 & A-10)For Respondent : Mr.N.R.Elango, in all Appeals Additional Public ProsecutorJ U D G M E N T(Judgment of the court was delivered by K.N.BASHA, J.) The appellants/A-1 to A-3, in Crl.A.No.449 of 2006, theappellants/A-4 and A-5 in Crl.A.No.470 of 2006, the appellants/A-7 andA-9, in Crl.A.No.505 of 2006 and the appellants/A-6, A-8 and A-10 inCrl.A.No.526 of 2006 have come forward with these appeals challengingtheir conviction and sentence passed by the learned Additional Districtand Sessions Judge, Fast Track Court No.I, Chidambaram, CuddaloreDistrict, in S.C.No.251 of 2005 dated 09.05.2006.2. The appellants have been convicted and sentenced as follows :A-1, A-2, A-4 to A-6 and A-8 to A-10 have been convicted underSection 147 IPC and sentenced to undergo three months rigorousimprisonment ; A-3 and A-7 have been convicted under Section 148 IPC andsentenced to undergo six months rigorous imprisonment ; A-7 has beenconvicted under Section 324 IPC and sentenced to undergo six monthsrigorous imprisonment ; A-1, A-6 and A-8 to A-10 have been convictedunder Sections 324 r/w 149 IPC and sentenced to undergo six monthsrigorous imprisonment ; A-1 to A10 have been convicted under Sections323 r/w 149 IPC and sentenced to undergo three months rigorousimprisonment ; A-1 to A-10 have also been convicted under Section 341IPC and sentenced to undergo one month rigorous imprisonment ; A-1 to A-10 have also been convicted under Section 302 r/w 149 IPC and sentencedto undergo life imprisonment and also each one of the accused imposed topay a fine of Rs.1,000/- carrying with the default sentence of sixmonths rigorous imprisonment ; Sentences were ordered to runconcurrently.3. The factual scenario, as unfolded during the course of trialthrough the evidence adduced by the prosecution, is as follows :(i) P.W.1 is the husband of the deceased, Lalitha. P.Ws.2 and 6are sons of the deceased. P.W.7 is the daughter of the deceased. P.W.9is the brother of the deceased. A-2 is the wife of A-1. A-3 is the sonof A-1 and A-2. The deceased party and the accused party are theresidents of same village. There was a land dispute between P.W.1 and https://hcservices.ecourts.gov.in/hcservices/ A-1. Fifteen days prior to the occurrence, when the deceased went toher garden to tie the cattle, A-2 and A-3 objected for tying the cattle.They pulled the tuft of the deceased and beat her. P.W.1 informed aboutsuch occurrence to the panchayatdar (village headman), A-6. A-6 had notdiscussed about the occurrence and also not allowed them to go to thepolice station. Therefore, there were strained feelings between theaccused and the deceased family.(ii) On 16.04.2005, the deceased informed her brother, P.W.9 aboutthe occurrence took place 15 days earlier to the effect that she wasassaulted by A-2 and A-3 while they objected for tying the cattle.P.W.9 enquired A-1 and others and pacified both the parties.(iii) On the fateful day of occurrence, i.e., on 16.04.2005, in theevening at about 5.00 p.m., the deceased returned to her house aftermeeting her brother P.W.9. The deceased informed P.W.1 about thecompromise talk held by P.W.9. At 7.00 p.m., A-1, A-2, A-3 and A-10came to the house of P.W.1 and questioned the conduct of the deceasedcomplaining against them to P.W.9 and P.W.9 calling and enquiring them.At that time, A-9, A-4 to A-6 and A-8 came there and shouted that theyhave to cut P.W.1 and others and also shouted that they have to set fireto the house. P.W.1 went inside the house and looked the door. A-6,panchayatdar, at that time, requested P.W.1 to open the door for thepurpose of compromise talks and advised them not to fight with eachother. Immediately, P.W.1 opened the door. A-7 took a koduva knife andcut P.W.1 on his left side head. A-9 beat P.W.1 with a stick on hisleft side back. A-4 and A-6 beat P.W.1 on his left thigh, leg and righthand. The deceased came running to the scene from the house. A-1pulled the tuft of the deceased and fisted on her nose. A-3 stabbed thedeceased on her right side neck with a pichuva knife, M.O.2. P.W.2intervened and A-2 snatched the stick from A-6 and beat P.W.2 on theleft side of his back. A-10 snatched the stick from A-2 and beatP.W.2 on his back. A-5 snatched the stick from A-9 and beat P.W.2 onthe right cheek below eye. P.Ws.1 and 2 took the deceased (injured) tothe hospital and the accused prevented them and at that time, the policeofficials came there. Thereafter, P.Ws.1, 2, 7 took the deceased to thehospital.(iv) The Doctor, P.W.3, attached to the Government Hospital,Chidambaram, examined the deceased on 16.04.2005 at 9.15 p.m. brought byP.W.2. It was informed to the Doctor that the deceased was assaulted by10 persons. The Doctor found the deceased already dead and he noticedthe following external injuries :(1)A laceration right side of neck joint above rightclavicle 5 X 6 cm. Clots present.(2)Bleeding from both nostrils present.Ex.P.2 is the Accident Register issued by the Doctor, P.W.3 to thedeceased. https://hcservices.ecourts.gov.in/hcservices/ (v) On the same day at 9.40 p.m., the Doctor, P.W.3, examined P.W.1and found the following external injuries :(1)A laceration left parietal region 3 X 2 cm. Bleedingpresent.(2)Contusion right side back 15 X 5 cm.(3)Contusion left thigh 3 X 4 cm.(4)Contusion right arm 4 X 3 cm.Ex.P.3 is the Accident Register. The Doctor, P.W.3, opined that theinjuries are simple in nature. (vi) At 10.00 p.m., the Doctor, P.W.3 examined P.W.2 and found thefollowing external injuries :(1)A contusion left side back 6 X 3 cm.(2)Contusion right side back 5 X 3 cm.(3)Contusion right side of face near eyebrow 4 X 3 cm.Ex.P.4 is the Accident Register, in which, the Doctor, P.W.3, opinedthat the injuries are simple in nature. (vii) P.W.16, Sub Inspector of Police, received the message aboutthe occurrence on 16.04.2005 at 9.30 p.m. He went to the GovernmentHospital, Chidambaram, and examined P.W.1 and recorded the report,Ex.P.1. He registered the case in Crime No.249 of 2005 for offencesunder Sections 147, 148, 341, 324, 323 and 302 IPC. Ex.P.16 is theFirst Information Report. He sent the First Information Report to theMagistrate's Court and to the higher police officials.(viii) P.W.18, Inspector of Police, received the message about theoccurrence on 17.04.2005 at 2.00 a.m. and reached the police station andreceived the First Information Report. He took up investigation andwent to the hospital at 7.00 a.m. and held inquest on the dead body ofthe deceased. Ex.P.17 is the inquest report. He sent the body forpost-mortem.(ix) The Doctor, P.W.4, conducted post-mortem on 17.04.2005 at12.00 noon and found the following injuries on the deceased :External Injuries : An incised wound 2 1/2 cm X 2 cm X 10 cm onthe right lateral aspect of neck. On gently probing woundgoing downwards oblique towards the centre (n.c.)Internal injury : Muscles were cut transversely, blood vesselsand nerves cut on the (N.C.) Trachea ring cutting linearly,obliquely. Chest symmetrical, ribs intact. Heart pale,Chambers empty.Injuries :Lacerated wound of the left apex of the lung 2 X 2 X 2 cm.Thorax cavity contains 300 ml of blood. Hyoid : Intact.Stomach distended with gas partially digested food 200 mlpresent. Liver, spleen, kidneys are pale. Uterus : atrophied.Bladder : empty. (N.C.) Opening of skull. Skull intact.Membrane intact. Ex.P.5 is the Post-mortem certificate. The Doctor, P.W.4, opined that https://hcservices.ecourts.gov.in/hcservices/ the deceased would appear to have died of extensive injuries to themuscles, the neck, blood vessels, trachea, lungs, heart and shock due toit.(x) P.W.18 went to the scene of occurrence and prepared observationmahazar, Ex.P.12 and the rough sketch, Ex.P.18. He recovered M.O.6,bloodstained tar rods, M.O.7, sample tar rods in the presence ofwitnesses. On information, he went to Kothavacherry bus stop andarrested A-1, A-3, A-5, A-6, A-8 and A-9. In pursuance of theadmissible portion confession of A-3 under Ex.P.14, he recovered M.O.1,aruval, M.O.2, pichuva knife, and M.Os.3 to 5, sticks. Thereafter, theaccused have been remanded to judicial custody through the Court. Herecovered M.Os.8 to 10, bloodstained clothes of the deceased. Heexamined P.W.9, P.W.11, P.W.4 and others and recorded their statements.He examined the Doctors, P.Ws.3 and 5 and others. He received theSerologist's report, Ex.P.11 and the Post-mortem certificate, Ex.P.5.After completing the investigation, he filed the charge sheet againstthe accused on 03.06.2005 for offence under Sections 147, 148, 341, 323,324 and 302 r/w 149 IPC.4. The prosecution, in order prove its case, examined P.Ws.1 to 18,marked Exs.P.1 to P.18 and M.Os.1 to 10.5. When the accused were questioned under Section 313 Cr.P.C. inrespect of the incriminating circumstances appearing against each one ofthem, all the accused denied their complicity with the crime and statedthat they are contrary to the facts. It is further stated by A-5 thatonly the deceased party, namely, the deceased and P.W.2, came to attackthem and while A-5 warded off, he sustained injury on the right hand.Thereafter, on seeing the attack, the villagers came and prevented thedeceased party and pushed them down. At that time, the deceased felldown on an iron rod and sustained injury on her neck. A-1 alsosustained injury at the hands of the deceased party. It is furtherstated that they have been sent to the Government Hospital, Chidambaram,by the police.6. The defence also examined D.Ws.1 and 2. D.W.1 stated that therewas a wordy quarrel between the deceased and the accused party. Thedeceased beat A-1 on his neck. P.W.2 came with a knife and attemptedto attack and while A-5 warded off the cut, he sustained an injury onhis hand. D.W.2 also stated about the quarrel and attack as stated byD.W.1.7. Mr.R.Shanmugasundaram, learned senior counsel appearing for A-1to A-5, A-7 and A-9 vehemently contended that the prosecution casesuffers from serious infirmities and inconsistencies. It is contendedthat A-5 and A-1 have also sustained injuries, as per the AccidentRegisters, Exs.D.1 and D.2, but the prosecution has not given anyexplanation for such injuries sustained by A-5 and A-1 and as such thegenesis and origin of the occurrence is suppressed by the prosecution.It is submitted by the learned senior counsel that there was a wordy https://hcservices.ecourts.gov.in/hcservices/ quarrel between the prosecution party and the accused party and onlythereafter, the actual occurrence took place. The learned seniorcounsel would submit that there is no common intention or common objectfor all the accused to cause the death of the deceased. The learnedsenior counsel further submitted that A-2 has also given a report, asadmitted by P.W.16, and in that report, A-2 has implicated P.W.1 and thedeceased for attacking the accused party and the investigating officerhas not investigated the report given by the accused. It is contendedthat the entire occurrence took place due to a sudden quarrel and bothsides have attacked each other and as such this is a case of free-fightand therefore, each one of the accused should be held liable for theirindividual acts. It is contended that only A-1 and A-3 were said tohave attacked the deceased and among them, A-1 has not used any weaponand only A-3 was said to have stabbed the deceased with a pen knife andas such A-1 and A-3 are liable to be punished only for lesser offences.It is pointed out by the learned senior counsel that the other accusedhave not attacked the deceased and they were alleged to have attackedonly P.Ws.1 and 2.8. Mr.K.V.Sridharan, learned counsel appearing for A-6, A-8 and A-10 submitted that there is absolutely no common object or commonintention for A-6, A-8 and A-10 to cause the death of the deceased. Itis contended that even as per the admitted version of the prosecution,A-6, A-8 and A-10 have not attacked the deceased and they were only saidto have attacked P.Ws.1 and 2. The learned counsel adopted the othercontentions put forward by the learned senior counsel appearing for theother appellants/accused.9. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor,contended that A-1 and A-5 sustained only simple injuries and as suchthe non-explanation of the injuries sustained by A-1 and A-5 is notfatal to the prosecution case. It is submitted that the injuries foundon A-1 and A-5 show that they have participated in the allegedoccurrence. It is contended that the evidence of the eye-witnesses,P.Ws.1, 2, 6 and 7 is quite clear and natural and there is no infirmityin their evidence. The learned Additional Public Prosecutor wouldfurther contend that the version of the eye-witnesses is alsocorroborated by the medical evidence as the perusal of the post-mortemcertificate, Ex.P.5 and the wound certificates in respect of P.Ws.1 and2, namely, Exs.P.3 and P.4, disclose corresponding injuries on them.10. We have given our careful and anxious consideration to therival contentions put forward by either side and thoroughly scrutinizedthe entire materials and perused the impugned judgment of conviction.11. The prosecution mainly placed reliance on the evidence of theeye-witnesses, P.Ws.1, 2, 6, 7 and 11. It is seen that one of the eye-witnesses, P.W.8, has turned hostile. Yet another eye-witness, P.W.11,has not implicated any one of the accused by mentioning the names of theaccused and as such his evidence is not helpful to the prosecution case.Excluding the evidence of P.Ws.8 and 11, we are left with the evidence https://hcservices.ecourts.gov.in/hcservices/ of eye-witnesses, P.Ws.1, 2, 6 and 7. The fact remains that all theseeye-witnesses are closely related to the deceased and on that scoreitself, we cannot discard their evidence and only we have to scrutinizetheir evidence with great care and caution.12. The evidence of eye-witnesses, P.Ws.1, 2, 6 and 7, is quiteclear and natural. They have come forward with the categorical andconsistent version and there is absolutely no infirmity in theirevidence. Though it is contended by the learned senior counsel that theprosecution has not explained the injuries sustained by A-1 and A-5 andas such the prosecution suppressed the genesis and origin of theoccurrence, the prosecution case cannot be discarded altogether in viewof the clear, cogent and consistent version of the eye-witnesses.13. The Hon'ble Apex Court has held in Shajahan V. State of Keralareported in 2007 AIR SCW 2123 that,"17. .... Non-explanation of the injuries sustained bythe accused at about the time of occurrence or in the courseof altercation is a very important circumstance. But merenon-explanation of the injuries by the prosecution may notaffect the prosecution case in all cases. This principleapplies to cases where the injuries sustained by the accusedare minor and superficial or where the evidence is so clearand cogent, so independent and disinterested, so probable,consistent and credit-worthy, that it far outweighs the effectof the omission on the part of the prosecution to explain theinjuries. ...."As far as the instant case is concerned, the fact remains that A-1 andA-2 sustained only simple injuries, as per the opinion of the Doctor,P.W.3 and as per the Accident Registers, Exs.D.1 and D.2, and as suchthe clear, cogent and consistent evidence of the eye-witnesses cannot berejected.14. Yet another aspect to be borne in mind is that A-1, A-2, A-3and A-10 first came to the house of P.W.1. Thereafter, there was awordy quarrel between them. At the time of wordy quarrel, the otherremaining accused, A-4, A-5, A-6, A-8 and A-9 came to the scene. Theaccused were said to have attacked P.W.1 at the first instance and whilethe deceased came there she was attacked by A-1 and A-3. The factremains that A-1 only pulled the tuft of the deceased and fisted on hernose. A-3 was said to have given a single stab on the right side neckof the deceased. Therefore, except A-1 and A-3 none of the otheraccused touched or attacked the deceased and the other remaining accusedonly attacked P.W.1 and P.W.2. As pointed out by the learned seniorcounsel, A-1 and A-5 have also sustained injuries and of-course, theinjuries are simple in nature. The entire occurrence was said to havetaken place after a wordy quarrel. It is seen that before the actualoccurrence of attacking the deceased and P.Ws.1 and 2, A-1, A-2, A-3 andA-10, who came first to the house of P.W.1, have not immediatelyattacked P.W.1. It is pertinent to be noted that A-6, who camesubsequently with the other remaining accused, requested P.W.1 to come https://hcservices.ecourts.gov.in/hcservices/ out from the house for compromise talk to sort out the dispute and it isalso seen that A-6 is a village headman (panchayatdar) and onlythereafter, the occurrence is said to have taken place. Therefore,considering the sequence of events and totality of circumstances, we areunable to hold that all the accused came to the scene with the commonobject of causing the death of the deceased. Considering the injuriessustained by A-1 and A-5, we are of the considered view that this is acase of free-fight and as such each one of the accused is liable fortheir individual acts. In view of such finding, only A-1 and A-3 weresaid to have attacked the deceased.15. As far as A-1 is concerned, he has not used any weapon and heis only said to have assaulted the deceased by fisting on her nose andas such he would be held liable for the offence under Section 323 IPC.16. As far as A-3 is concerned, it is seen that he has given asolitary stab on the right side neck of the deceased by a sharp-edgedweapon, namely, pichuva knife, M.O.2. A perusal of the post-mortemcertificate, Ex.P.5, shows that the deceased sustained an incised wound2 1/2 cm X 2 cm X 10 cms on the right lateral aspect of neck, oninternal examination, it is seen that the muscles were cut transversely,blood vessels and nerves Trachea ring cutting linearly and obliquely.The Doctor, P.W.4, has opined that the deceased appeared to have died ofextensive injuries to the muscles, the neck, blood vessels, trachea,lungs, heart and shock due to it. Therefore, it is seen that A-3 hasgiven severe stab as a result of which there were injuries to themuscles, blood vessels, nerves and trachea ring. It is needless tostate that A-3 was said to have given a stab on the vital part namely,on the neck of the deceased. It is pertinent to be noted that A-3 hasnot attempted to give further stabs. Therefore, we have no hesitationto hold that A-3 must be imputed with the intention to cause such bodilyinjury as was likely to cause death, if not, the intention of causingdeath and as such it would be appropriate to convict A-3 for the offenceunder Section 304 (I) IPC.17.1. In view of the aforesaid findings, the conviction andsentenced imposed on the appellants/accused by the learned AdditionalDistrict and Sessions Judge, Fast Track Court No.I, Chidambaram,Cuddalore District, in S.C.No.251 of 2005 by the judgment dated09.05.2006, for the offence under Sections 147, 148, 324, 324 r/w 149,323 r/w 149, 341 and 302 r/w 149 IPC are hereby set aside and insteadthe appellants stand convicted and sentenced as follows :(i) A-3 is convicted under Section 304 (I) IPC andsentenced to undergo seven years rigorous imprisonment forattacking the deceased ;(ii) A-1 is convicted under Section 323 IPC andsentenced to undergo six months rigorous imprisonment forattacking the deceased ;(iii) All the accused are convicted under Section 324IPC and sentenced to undergo six months rigorousimprisonment for causing injuries on P.Ws.1 and 2 ; https://hcservices.ecourts.gov.in/hcservices/ (iv) Conviction and sentence imposed on A-1 and A-3 bythis Court are ordered to run concurrently ;17.2. The trial Court is directed to secure the custody of theaccused and thereafter, to commit them to jail in order to undergo theremaining period of sentence, if any.17.3. Fine amount imposed on the appellants by the learned trialJudge is hereby set aside and as such fine amount paid, if any, isdirected to be refunded to them.With the above modification in conviction and sentence, theseappeals are partly allowed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarggTo1. The Additional District and Sessions Judge, Fast Track Court No.I, Chidambaram.2. - do – thro" The Principal Sessions Judge, Cuddalore.3. The District Munsif-cum-Judicial Magistrate, Portonovo.4. - do – thro" The Chief Judicial Magistrate, Cuddalore.5. The Inspector of Police, Bhuvanigiri Police Station, Chidambaram, Cuddalore District. 6. The Public Prosecutor, High Court, Madras.7. The Judicial Magistrate, Parangipettai.8. The Superintendent, Central Prison, Cuddalore.9. The Superintendent, Central Prison for Women, Vellore.10. The Chief Judicial Magistrate, Chenglepet.11. The Chief Judicial Magistrate, Vellore.1 cc To Mr.K.V.Sridhar, Advocate, SR.41928.1 cc To Mr.A.Stalin, Advocate, SR.41793.Crl.A.Nos.449, 470 505 & 526 of 2006 KG(CO)RVL 12.08.2008