BAIL SLIPThe 4th v. State & Ors.

BAIL SLIPThe 4th Accused Viz. Senthil Kumar, was ordered to be released on bailon 16.11.2005 as per order of this Court made in Crl.M.P.No.8782/2005 inCA.205/04.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.9.2006CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE M.THANIKACHALAMCriminal Appeal No.205 of 20041. Sathish2. Raji3. Mark Anthony4. Senthil Kumar.. Appellants Vs.State rep. by Inspector of PoliceK-6, T.P.Chatram Police StationChennai... RespondentAppeal under Section 374 of Criminal Procedure Code against thejudgment dated 30.12.2003 made in S.C.No.205 of 2003 on the file oflearned Additional District and Sessions Judge (Fast Track Court No.II),Chennai convicting the Appellants under Section 302, 326 and 324 IPC andsentenced them to undergo imprisonment for life with a total fine ofRs.28,000/-.For Appellants: Mr.R.Gopinath, S.C. Mr.L. Mahendran and Mr.S.Suresh (A1 and A2)Mr.M.Sathish Kumar (A3)Mr.E.M.K.Yashwanth Rao (A4)For Respondent :Mr.C.T.SelvamAddl. Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)The appeal is directed against the judgment dated 30.12.2003 made in Sessions Case No.205 of 2003 on the file of the learned AdditionalDistrict and Sessions Judge (Fast Track Court No.II), Chennai, whereunderthe appellants herein were tried along with three other accused namely A5 https://hcservices.ecourts.gov.in/hcservices/ to A7 therein and convicted and sentenced as mentioned below. 1.

A1 to A6 were charged for the offence punishable under Sections120(B), 147, 148, 324, 326, 307 and 302 IPC and A7 was charged for theoffence punishable under Section 120(B) IPC, in connection with theoccurrence said to have taken place at about 10.15 p.m. on 29.8.1999 infront of Indian Wines shop at Link Road, within the jurisdiction ofrespondent Police Station, Chennai, for having said to have murdered oneUdaya @ Udayaprakash. 2.1. The prosecution case rests upon the statement given by P.W.1 atabout 11.45 pm on 29.8.1999, marked as Ex.P1. Based on the saidstatement, Ex.P1, a First Information Report, Ex.P23 was registered by the Inspector of Police, P.W.21 on 29.8.1999.2.

According to the prosecution, on 17.8.1999, there was a wordyquarrel between P.W.1 to P.W.3 and the deceased of M.S.Nagar and A1 to A7of Mangalapuram, while playing carrom in 7th Street, Mangalapuram, Chetpet, with respect to which, a complaint was lodged by one Surendran in the Chetpet Police Station. Again, on 18.8.1999, there was a quarrel betweenboth the parties at Ambedkar ground, Chetpet and a complaint was lodged byone Manimaran. In view of the above, there was an enmity between both theparties. 2.

Apprehending danger to their lives at the hands of A7, who is abig rowdy, P.Ws.1, 2 and the deceased stayed in the house of P.W.3 atT.P.Chathiram. On 29.8.1999, at about 10.15 pm, when P.Ws.1 to 3 and thedeceased went to Indian Wines shop at Shenoy Nagar to purchase brandy, A1to A4 along with two unknown persons, armed with patta knives, came in twoautorickshaws. On seeing them, P.Ws.1 to 3 and the deceased tried toescape from the place. But, A1 to A4 and the two unknown persons, surrounded P.Ws.1 to 3 and the deceased. 2.

A1 cut P.W.1 on his left leg with patta knife. A2 cut P.W.2 onhis right thumb and wrist. A1 cut P.W.2 with patta knife on his leftwrist and left thumb. A3 cut P.W.3 on his head. A4 cut the deceased onhis left ear and left hand. The two unknown persons stabbed the deceasedon his stomach with the patta knives. A1 and A3 severed the left thumb ofP.W.3. A1 and A3 also cut P.W.3 on his right hand and head. 2.

The public, who gathered at the place of occurrence on hearingthe hue and cry, were threatened by the accused by showing the pattaknives. A3 cut two people who were in the wine shop. A1 hurled a bottleon the road. Thereafter, they ran away from the scene of occurrence. 2.

P.W.1 gave a statement, Ex.P1 to the Inspector of Police,P.W.21. F.I.R. was registered on 29.8.1999 at about 11.45 pm on the fileof K6, T.P. Chatiram Police Station, which was marked as Ex.P23. https://hcservices.ecourts.gov.in/hcservices/

2.

The investigating officer, P.W.21, on the basis of the F.I.R.,Ex.P23, undertook the investigation, visited the place of occurrence inthe early hours of 30.8.1999, prepared an Observation Mahazar, Ex.P24 anda Rough Sketch, Ex.P25, recovered material objects from the scene ofoccurrence viz., M.Os.18 to 21 – one thumb, blood stained cement flooring, sample cement flooring, and bottle pieces respectively under seizuremahazar, Ex.P26. The blood stained dresses, MO7 to MO16, worn by P.Ws.1to 4 and the deceased were seized under Mahazar Exs.P16 to P19. Twopetrol bombs, MO2 and six blood stained patta knives, MO1 and MO22 serieswere seized from the house of A7 under Mahazar, Ex.P27. Twoautorickshaws, MO5 and MO6, in which the accused came to the scene ofoccurence were seized under Mahazar, Ex.P28. A1 was arrested on30.8.1999. Based on his confession statement, A2 to A7 were arrested atthe residence of A7.2.

P.W.8 is the Doctor who examined P.Ws.1, 2 and the deceased andissued Accident Register Extracts, Exs.P6, P4 and P5 respectively. P.W.6is the Doctor who examined P.W.3 and issued wound certificate, Ex.P2stating that the injuries are grievous in nature. P.W.7 is the Doctor whoexamined P.W.4 and issued wound certificate, Ex.P3 stating that theinjuries sustained by P.W.4 are simple.2.

P.W.9 is the Doctor, who conducted post mortem at 12.45 pm on30.8.1999 and found 10 external injuries, as certified in the Post MortemCertificate, Ex.P9, opined that the deceased would have died due tomultiple injuries.2.

On 3.9.1999, the material objects were forwarded for chemicalanalysis through the Court and chemical analyst's report is Ex.P30.Serologist's report is Ex.P9. 2.

After completing the investigation, the Inspector of Police,P.W.21, filed the charge sheet on 28.4.2000. 2.

Since the accused denied the charges framed against them, theywere tried in Sessions Case No.205 of 2003 before the learned AdditionalDistrict and Sessions Judge (Fast Track Court No.II), Chennai. 3.1. On behalf of the prosecution, 23 witnesses were examined asP.Ws.1 to 23 and marked Exs.P1 to P32 and M.Os.1 to 22. P.Ws.1 to 5 areinjured eye witnesses. 3.2. P.W.1 speaks about the presence of all the accused and overtacts on himself, P.Ws.2, 3 and the deceased, attributed to A1, A2, A3;P.W.2 also speaks about the presence of all the accused and the overt actsof A1 and A2; P.W.3 though speaks about the incident, did not specify thenames of the accused; P.W.4 speaks about the incident, but mentions thescene of occurrence at different place; even though P.W.5 speaks about the https://hcservices.ecourts.gov.in/hcservices/ incident, his evidence was disbelieved by the trial Court.4. When the accused were questioned under Section 313 Cr.P.C. as tothe incriminating circumstances found against them in the evidence ofprosecution witnesses, they denied the same.

10.4. Next, we have to examine whether A1 to A6 are the persons whoattacked the deceased and they are responsible for the death of thedeceased. In the complaint, Ex.P1 given by P.W.1, it is stated that A1 toA4, along with other two unknown persons armed with knives, came in twoautorickshaws and attacked P.Ws.1 to 3 and the deceased, from which, it isevident that P.Ws.1 to 3 were present at the time of occurrence. ThoughP.W.5 claimed that he saw A1 to A6 armed with knives boardingautorickshaws and that he witnessed the occurrence, in the firstinformation report, Ex.P1 there is no mention about the presence of P.W.5in the scene of occurrence. Further, though P.W.5, in his chiefexamination, has stated that he heard the accused party saying that onlyafter the death of Udhaya (deceased), the Chetpet area would be secured, in his cross-examination he has stated that he did not inform the sameeither to the police, or to the public or to the persons who were presentat P.W.3's house when he immediately visited there.

Hence, the trial Courthas rightly discarded the evidence of P.W.5.10.5. P.W.1, in his evidence, has stated that A2 cut the deceased onhis right knee, whereas P.W.2 has deposed that A1 to A6 cut the deceasedindiscriminately. Even though in Ex.P1 complaint, the names of A1 to A4are found mentioned, P.W.1 has given evidence specifying the name of A2stating that A2 cut the deceased. P.W.2 in his evidence has only statedthat A1 to A6 cut the deceased indiscriminately and his evidence does notspecifically attribute the overt acts to a particular accused. 10.6. The trial Court based on Ex.P1 wherein the names of A1 to A4were mentioned and the evidence of P.W.22 doctor who has stated thatP.W.2 informed him that he was attacked by four known persons, convictedA1 to A4 under section 302 IPC for the death of deceased Udhaya @Udhayaprakash. But, the approach of trial Court is not appreciable, as, except P.Ws.1 and 2, there is no other witness to speak about the attackon the deceased.

Among the two, P.W.1, in his chief examination, hasspecifically implicated A2 in the attack on the deceased, but in cross-examination he has stated that A1 to A6 indiscriminately cut the deceased. As already noticed, it is the evidence of P.W.2 that A1 to A6indiscriminately attacked the deceased. Therefore, when there is noevidence roping in a particular accused in the attack on the deceased, itis not safe to convict A1 to A4 also under section 302 IPC for the deathof the deceased. 10.7. It is pertinent to note that the trial Court discharged A5 andA6 from the charge of murder giving the benefit of doubt on the basis thattheir names were not mentioned in Ex.P1, complaint and that theprosecution witnesses have not stated that A5 and A6 attacked thedeceased. We find substance in the submission of learned counsel for theappellants that when the trial Court extended the benefit of doubt to A5and A6, the same benefit should also be extended to other accused.

It isa settled proposition in criminal jurisprudence that eye-witnesses havingbeen disbelieved partly, resulting in acquittal of the co-accused, it https://hcservices.ecourts.gov.in/hcservices/ would not be safe to believe them qua other accused and other accused arealso entitled to the benefit of doubt and acquittal [vide: LakkappaNingappa Ittappannavar v. State of Karnataka, 1993 Supp (2) SCC 755]. Inthe instant case, there is no cogent and convincing evidence by any of theprosecution witnesses specifically attributing the overt acts to each ofthe accused. Under such circumstances, we hold that A1 to A4 are alsoentitled to the benefit of reasonable doubt in respect of the murder ofthe deceased and accordingly, they are discharged from the charge undersection 302 IPC.10.8. Now, let us consider the conviction under section 326 IPCagainst A1 to A3. The trial Court recorded its finding on the basis ofthe evidence of P.Ws.1 to 3, injured witnesses.

The trial Court found A1guilty under section 326 IPC (2 counts) in respect of injuries caused byhim to P.Ws.1 and 3. P.W.1, in his evidence, has stated that A1 cut himon his left leg. P.W.8 doctor, who examined P.W.1, found an incisedwound, 5 x 2 cm. in size on his left ankle. It is his evidence that boneswere found protruding. P.W.10 doctor, who treated P.W.1, in his evidence, has stated that there was a fracture on his left leg and issued Ex.P11wound certificate opining that it was a grievous injury. The above factswould reveal that A1 had inflicted a grievous injury on P.W.1 explicitlyimplicating him for the offence under section 326 IPC.10.9. The trial Court also based its conviction on A1 under section326 for the injury on P.W.3. It is the prosecution case that P.W.3sustained injuries on his hands and head. Though P.W.3 in his evidence hasstated that he was attacked by a mob, the evidence of P.W.1 is clear thatA1 cut P.W.3 on his left thumb.

The above statement is corroborated withthe evidence of the doctor P.W.6 who deposed that he did not find the leftthumb of P.W.3, at the time of examination. P.W.11 doctor also treatedP.W.3. According to the medical evidence the above injury is grievous innature. Further, the severed thumb was seized under mahazar, Ex.P26.Hence, we are of the view that the trial Court is justified in convictingA1 under section 326 IPC for the grievous injury sustained by P.W.3.10.10. So far as P.W.3 is concerned, it is the case of the prosecutionthat A3 also inflicted injury on him. The trial Court rendered itsfinding that A3 cut P.W.3 on the basis of evidence of P.Ws.1 and 3. Asalready observed, P.W.3 has not stated anything as to who had inflictedinjury on him, but from the evidence of P.W.3 it is deducible that hesustained injuries on his hands and head. On the other hand, P.W.1 in hisevidence has stated that P.W.3 was also attacked by A3. The doctor P.W.6,who examined P.W.3, found injury on his right hand and opined that thesaid injury is grievous in nature. Hence, we hold that the trial Courthas correctly convicted A3 under section 326 IPC for the injury sustainedby P.W.3. https://hcservices.ecourts.gov.in/hcservices/

10.11. As regards A2, the prosecution claimed that he caused injurieson P.W.2. P.W.2 in his evidence has stated that A2 cut him on his rightindex finger, which is corroborated with the evidence of P.W.1. Themedical evidence, viz., P.W.8 doctor, is to the effect that there wasfracture in the right index finger of P.W.2. Ex.P4 is the accidentregister extract issued in respect of P.W.2 showing that there was afracture in the right index finger of P.W.2. We are, therefore, of theview that the trial Court was correct in convicting A2 under section 326 IPC for the injuriessustained by P.W.2.10.12. However, learned counsel appearing for the appellants contendedthat P.W.3 in his evidence has not stated as to who attacked him andthough the other injured witnesses P.Ws.1 and 2 have attributed specificovert acts in respect of injuries on P.Ws.1 to 3 to A1 to A3, in theabsence of corroboration by P.W.3, it is not safe to convict A1 to A3 forthe offence under section 326 IPC. We are unable to accept the abovecontention, because, it would be practically impossible for any injuredwitness to exactly notice and memorise which accused was causing injurieson him and if any such statement is made, it may amount to an exaggerationbecause when a number of assailants are there, injuries are not inflictedin a manner which could be exactly noted by the witnesses [vide: State of Rajasthan v. Major Singh (1999) 9 SCC 106].10.

The trial Court found A1 guilty under section 324 IPC for theinjury on the left wrist of P.W.1. But, P.W.2 has only stated that A1caused injury on his left leg. Further, the doctors (P.Ws.8 and 11) whogave treatment to P.W.1 have not found any such injury on P.W.1. Exs.P6and Ex.P11 are also silent as to the injury on the left wrist. We,therefore, hold that there is no basis for the trial Court to base itsconviction under section 324 IPC against A1 for the injury on left wristof P.W.1. Accordingly, we hold that the prosecution has failed to provethe guilt of A1 under section 324 IPC for the injury on the left wrist ofP.W.1.10.

As a result of the above discussion, we hold that theprosecution has only proved the guilt of A1 to A3 for the offence undersection 326 IPC as follows: (i) 1st accused ... under Section 326 IPC (2 counts)(ii) 2nd accused ... under Section 326 IPC (iii) 3rd accused ...under Section 326 IPC However, the prosecution has miserably failed to prove the guilt of A1 toA4 under section 302 IPC and the guilt of A1 under section 324 IPC. https://hcservices.ecourts.gov.in/hcservices/