Crl.A.No.415 of 2001 v. State: rep.byInspector of PoliceV-1,Villivakkam Police StationChennai-49

Crl.A.No.415 of 2001The Appellant/ Accused were directed to be released on bail bythe order of this Court dated 29.5.2001 and made inCrl.M.P.No.2728/01.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 20.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.415 of 20011. A.Devadoss2. J.Neelakandan3. L.Ramesh4. D.Johnson5. S.Vinayagam6. B.Parthiban7. R.Raghu8. S.Manimaran9. B.Sampath .. Appellants (A1, A2, A3, A4, A5, A6, A7, A8 and A9)vs.State: rep.byInspector of PoliceV-1,Villivakkam Police StationChennai-49.. Respondent This appeal has been preferred against the Judgment dated30.3.2001, in S.C.No.253 of 1998 on the file of VII AdditionalSessions Judge, Chennai.For Appellants : Mr.S.Doraisamy For Respondent : Mr.V.P.Balasubramaniam Additional Public Prosecutor JUDGMENTThis appeal has been preferred against the judgment inS.C.No.253 of 1998 on the file of VII Additional Sessions Judge,Chennai. There were totally 22 accused, who have been charged underSections 147,148,341, 427, 452, 307,324,326 and 302 of IPC. https://hcservices.ecourts.gov.in/hcservices/

2. After taking the case on file, the learned X MetropolitanMagistrate, Egmore, Chennai, had issued summons to the accused andon their appearance , copies under Section 207 of Cr.P.C. werefurnished to the accused and since the case is triable by the Courtof Sessions, the learned X Metropolitan Magistrate, had committedthe case to the Principal Sessions Judge, Chennai. On the appearanceof the accused, the learned Sessions Judge had framed chargesagainst the accused and when questioned the accused, pleaded notguilty.3. Before the trial Court, P.Ws 1 to 5 are injured witnesses.P.W.6,P.W.7,P.W.8, P.W.9, P.W10, P.W.11, P.W.12, P.W.13, P.W.14,P.W.15 , and P.W.16 have not supported the case of the prosecutionand hence they were treated as hostile witnesses.3a. P.W.1 has not implicated any of the accused in the crimebut P.W.1 has preferred a complaint with the police at the KilpaukMedical College Hospital, while he was under treatment on 21.8.1996at about 10.00p.m.3b. P.W.30 is the Investigation Officer in this case.According to him, the then Inspector of Police Thiru Sundaramurthy,who is now no more , had visited the Kilpauk Medical CollegeHospital at 10.00p.m., after knowing about the occurrence, hadreceived Ex P1 complaint from P.W.1, who registered the case inVillivakkam Police Station Crime No.66 of 1996 under Sections147,148,452,341,427,324,307 and 302 of IPC. Ex P83 is the FirstInformation Report. 3c.The said Inspector of Police Mr.Sundaramurthy had visitedthe place of occurrence, prepared ExP84 Observation Mahazar in thepresence of witnesses and also had drawn a rough sketch Ex P85. Hehad recovered M.O.33 blood stained sand and M.O.34 sample sand fromthe place of occurrence and also recovered M.O.35(series) bloodstained wooden pieces under Ex P86 Mahazar in the presence ofwitnesses. At about 2.00a.m., on the following day, he had recoveredM.O.36(series) blood stained sand and also sample sand M.O.37 andfour blood stained wooden reapers M.O.38 (series) under Ex P87mahazar from the house of P.W.4 Ramesh. He has also recovered M.O.39blood stained sand and M.O.40, sample sand from the place ofoccurrence where the corpse of the deceased was lying under Ex P88mahazar. M.O.41 broken glass pieces were recovered under Ex P89Mahazar from the place of witness Lenin. He has also recoveredblood stained M.O.1 shirt from the witness Santhosh(P.W.2) andM.O.2 blood stained lungi under Ex P90 mahazar. At about 4.15 a.m.,he had recovered from P.W.4 Ramesh, blood stained lungi M.O.27 andM.O.29 blood stained Banian and M.O.42, blood stained shirt fromP.W.3 Suresh.M.O.4, Shirt.M.O.28 blood stained shorts were also https://hcservices.ecourts.gov.in/hcservices/ recovered from P.W.3 Suresh under ExP91 mahazar.3d. He went to the Stanley Medical College Hospital andrecovered M.O.30, Saree ,M.O.31 Jacket from Pappathy, who was takingtreatment at Ward No.17 under Ex P92 Mahazar. He has examined thewitnesses and recorded their statements. He had conducted inquestbefore the Panchayatars. ExP93 is the inquest report. He had sentthe corpse for post mortem through P.W.19, who had identified thecorpse to the post mortem doctor and after post mortem, he hadplaced the corpse in the mortuary and recorded the confession of A1and EX P94 is the admissible portion of the confession statement ofA1. On the basis of it, A1 had taken him near the east railway gate,Villivakkam and took out M.O.15, iron pipe from the hidden place,which was recovered under Ex P95 Mahazar.3e. He has also arrested the accused Sudhakar, Johnson, Balaji,Baskar @ Auto Sankar, Elagovan and has recorded the confessionstatement of Johnson. The admissible portion of the confessionstatement of accused Johnson Ex P96 and Ex P97 is the admissibleportion of the confession statement of accused Balaji. Ex P98 is theadmissible portion of the confession statement of accused Bhaskar.Ex P99 is the admissible portion of the confession statement ofaccused Sudhakar. Ex P100 is the admissible portion of theconfession statement of accused Elangovan. M.O.11 , the iron pipetaken out and produced by the accused Johnson from the bush, whichwas recovered on confession under Ex P101 Mahazar. M.O.24 , the ironpipe taken out from the hidden place and produced by the accusedBalaji, which was recovered on confession under Ex P102. M.O.18 ,the iron pipe taken out from the hidden place and produced by theaccused Baskar @ Auto Shankar, which was recovered on confessionunder Ex P103. M.O.20, the iron pipe taken out from the hidden placeby the accused Sudhakar, which was recovered on confession under ExP104. M.O.21 , the iron pipe taken out from the hidden place andproduced by the accused Elangovan, which was recovered on confessionunder ExP105 Mahazar. He has examined the witnesses and recordedtheir statements. 3f. He has arrested the accused Neelakandan, Ramesh, Raji,Parthiban, and Manimaran near Thirumangalam Bus stand and recordedthe confession statement of Neelakandan. The admissible portion isExP106. The admissible portion of the confession statement of theaccused Ramesh is Ex P107. The admissible portion of the confessionstatement of the accused Raji is Ex P108. The admissible portion ofthe confession statement of the accused Parthiban is Ex P109. Theadmissible portion of the confession statement of the accusedManimaran is Ex P110.3g. M.O.7 ,the knife taken out from the hidden place andproduced by the accused Neelakandan was recovered under Ex P111 https://hcservices.ecourts.gov.in/hcservices/ Mahazar. M.O.25 , the iron pipe taken out from the hidden place andproduced by the accused Ramesh was recovered under Ex P112.M.O.10 , the iron pipe was taken out from the hidden place andproduced by the accused Raji was recovered under Ex P113 mahazar.M.O.8 the blood stained knife taken out from the hidden place andproduced by the accused Parthiban, was recovered under Ex P114mahazar. M.O.9 , the knife taken out from the hidden place andproduced by the accused Manimaran was recovered under Ex P115Mahazar. He has also arrested the accused Sampath, Vinayagam, Raman,Lakshmanan, Lawrence and Samson and recorded their confessionstatements. Ex P116 is the confession statement of Sampath . ExP117is the confession statement of the accused Vinayagam. Ex P118 is theconfession statement of the accused Raman. Ex P119 is theconfession statement of the accused Lakshmanan. Ex P120 is theconfession statement of the accused Lawrence. Ex P121 is theconfession statement of the accused Samson. 3h. The accused took the Investigation Officer and produced theweapon used by them in the occurrence. M.O.5 , the knife taken outand produced by Sampath, was recovered under Ex P122 Mahazar. M.O.17, the iron pipe taken out from the hidden place and produced by theaccused Vinayagam, was recovered under ExP123 Mahazar. M.O.23 , theiron pipe taken out from the hidden place and produced by theaccused Raman was seized under Ex P124 Mahazar. M.O.12 , the ironpipe was taken out from the hidden place and produced by the accusedLakshmanan, was recovered under Ex P125 Mahazar. The iron pipeproduced by the accused Lawrence was recovered under ExP126Mahazar. M.O.19 , the iron pipe was taken out and produced by theaccused Samson was recovered under Ex P127 Mahazar. The accusedwere produced before the Judicial Magistrate for remand.3i. M.O.43, the Sandal coloured polyster shirt recovered fromthe corpse of the deceased was produced by Grade I P.C. Krishnakumarwhich was seized under Ex P128 Mahazar. On 3.7.1996, theInvestigation Officer had arrested the accused Kabilan andKothandaraman and recorded their confession statements. Ex P129 isthe admissible portion of the confession statement of the accusedKabilan. Ex P130 is the admissible portion of the confessionstatement of the accused Kothandaraman. The accused Kabilan hadtaken out from the hidden place and produced M.O.26 iron pipe wasrecovered under Ex P131 Mahazar. M.O.22 Iron pipe taken out fromthe hidden place and produced by the accused Kothandaraman wasrecovered under ExP132 Mahazar. 3j. The accused Kannan and Raghu were arrested on 11.7.1996.ExP133 is the confession statement of the accused Raghu. Ex P134 isthe confession statement of the accused Kannan. The accused Raghuhad taken out from the hidden place the blood stained knife M.O.6and produced was recovered under ExP135 Mahazar. M.O.16 taken out https://hcservices.ecourts.gov.in/hcservices/ from the bush and produced by the accused Kannan, was also recoveredunder ExP136 Mahazar. Both the accused were remanded to judicialcustody.3g. He had given Ex P56 requisition to the Court for sendingthe material objects connected with this case for chemicalexamination.ExP57 is the order of the Judicial Magistrate forsending the material objects for chemical examination. Ex P.137 isthe biological report. Ex P138 is the Serologist's report . Ex P139is the wound certificate relating to Pappathy.4. After the death of the previous Investigation Officer, ThiruSundaramurthy P.W.30 Shanmugam, became the Investigation Officer inthis case and on 28.2.1996 at 9.45 a.m., he had arrested theaccused Gandhi and recorded his confession statement under Ex P140.On the basis of the confession statement, M.O.13 was taken out fromthe hidden place and produced by him was recovered under Ex P141Mahazar.4a. P.W.17 is the doctor who had examined Santhosh(P.W.2) on23.6.1996 and on examination, he would say that a fracture on hisright leg was found, after taking X-Rays, P.W.2 was discharged on25.6.1996.. Ex P54 is the wound certificate. The doctor has opinedthat it is an injury which is grievous in nature. P.W.18 is thedoctor, who had conducted postmortem on the corpse of Mathi @Mathivanan. The doctor has opined that the death would have occurredsome 12 hours to 18 hours prior to post mortem . Ex P55 is the postmortem certificate. 4b. P.W.20 is an Assistant in the property room in ChiefMetropolitan Magistrate's Court. He had entered 21 items of M.Os inthis case in the relevant register kept in the property room andhas assigned property No.875/1996 and as per the requisition Ex P57of the Investigation Officer, the material objects were sent forchemical examination. Ex P58 is the letter of requisition by theCourt. 4c. P.W.21 is the Photographer, who had taken M.O.32photographs and negatives for the place of occurrence. P.W.22 hasnot supported the case of the prosecution and hence he was treatedas a hostile witness. P.W.23, the doctor, who had examined P.W.4 andissued ExP73 copy of the accident register and examined Pappathy andissued ExP74 and the same day, he has examined P.W.3 Suresh for theinjuries, he had sustained and issued Ex P75 copy of the accidentregister on the same day, he had examined Babu and issued Ex P76copy of the accident register and he has also examined Santhosh(P.W.2) for the injuries, he had sustained and issued Ex P77 copy ofthe accident register. https://hcservices.ecourts.gov.in/hcservices/ 4d. P.W.24 has examined Ramesh(P.W.4) and issued Ex P78 copy ofthe accident register. P.W.25 has examined Pappathy and issued ExP79 copy of the accident register. P.W.26 has not supported the caseof the prosecution and hence he was treated as a hostile witness.P.W.27, the doctor, who would depose that he knows the signature ofDr.Thiyagarajan who had gone to Saudi Arabia and Ex P.80 is thewound certificate which contains the signature of DoctorThiyagarajan, which was issued for having examined Suresh(P.W.3) byDoctor Thiyagarajan. P.W.28 has not supported the case of theprosecution and hence he was treated as a hostile witness. P.W.29knows the signature of Dr.Saraswathi, who had examined P.W.4 Rameshand issued ExP81 copy of the accident register. Ex P78 is the woundcertificate issued to Ramesh. Dr. Saraswathi has also examined P.W.3Suresh and issued Ex P82 the copy of the accident register and ExP80 is the wound certificate. After completing the investigation andafter following the formalities, P.W.30 has filed the charge sheetagainst the accused.5. When the incriminating circumstances were put to theaccused, they have denied their complicity with the crime.6. After going through the evidence both oral and documentary,the learned trial Judge has come to a conclusion that A1 to A9 aloneare guilty under Sections 326 r/w 149 IPC,148 IPC, 452 IPC and underSections 324 IPC r/w 149 IPC. A1 to A9 were convicted under Section326 IPC r/w 149 IPC to undergo three years rigorous imprisonment andslapped a fine of Rs.250/- each with default sentence. UnderSections 148 IPC, and 452 IPC and under Sections 324 r/w 149 IPC ,A1 to A9 were sentenced each to undergo one year rigorousimprisonment and slapped a fine of Rs.250/-each with defaultsentence. A1 to A9 were acquitted from the remaining charges. A10to A22 were acquitted from all the charges levelled against them.Aggrieved against the findings of the trial Judge, A1 to A9 havepreferred this appeal.7. Now the point for determination in this appeal is whetherthe conviction and sentence imposed by the learned trial Judge inS.C.No.253 of 1998 on the file of VII Additional Sessions Judge,City Civil Court, Chennai against A1 to A9 is sustainable for thereasons stated in the memorandum of appeal?8. Heard Mr.S.Doraisamy, learned counsel for the appellants andMr.V.R.Balasubramaniam, learned Additional Public Prosecutor for theState and considered their rival submissions.9.The Point:Even though A1 to A9 were convicted by the learned Sessions Judgeunder Sections 148,452, 324 and 326 of IPC, the overt-act attributedagainst each of the above said accused is to be weighed with the https://hcservices.ecourts.gov.in/hcservices/ evidence of the injured witness coupled with the medical evidenceavailable in this case. P.W1 to P.W.5 alone are ocular witnesses.They are also the injured witnesses. P.w.1 has not assigned anyspecific overt-act against any of the accused in this case. Hespeaks only about the occurrence and also about the filing of thecomplaint Ex P1.9a. P.W.2 in his evidence would depose that A2 has assaultedhim with a knife on his right knee and also on the left thigh.According to him, A5 has assaulted him with iron pipe on the righthand . A4 has assaulted him with iron pipe on the right hand and A3has assaulted him with iron pipe on the right hand. He would furtherdepose that A2 has assaulted P.W.3 on the right hand with a knifeand A8 has caused a cut injury on the head of P.W.3. P.W.2 wasexamined by P.W.23 doctor and also by P.W.17 the doctor. P.W.23 thedoctor has examined P.W.2 and issued Ex P77 copy of the accidentregister which shows that a cut injury measuring 1 cm was seen onthe right elbow and another cut injury was seen on the right knee ofP.W.2.9b. According to P.W.17, the doctor, who had given his opinionon the basis of the injury sustained and X-ray report that theinjuries sustained by P.W.2 on the right leg is a fractured injurywhich is grievous in nature. To that effect P.W.17 the doctor hasissued Ex P54 wound certificate. There is no corresponding injuryon the right hand to implicate A3 to A5 against P.W.2 as deposed byP.W.2. So, as against A3 , A4 , and A5, there is no overt-act hasbeen made out against P.W.2. Even though P.W.2 would depose that A8had caused a cut injury on the head of P.W.3 and A2 has causedinjury on the right hand of P.W.3 with a knife, the said evidencewas not corroborated by any medical evidence.9c. According to P.W.2, A5 has assaulted P.W.3 with iron pipeon the hand. But P.W.3 himself says that A5 has assaulted him on theshoulder. But this evidence was also not corroborated by any medicalevidence because P.W.3 was examined by P.W.23. According to theDoctor's evidence, one cut injury was seen on the right elbow ofP.W.3 and there was a cut injury measuring 2 cm on the back of thehead of P.W.3 and blood was oozing out from the right ear. Ex P75 isthe wound certificate. So the overt-act suggested against A2, A8 andA5 against P.W.3 by P.W2 is not supported by medical evidence.9d. P.W.3 would depose that at the time of occurrence, A9 hadassaulted him with an iron pipe on the right hand and A8 hadassaulted him on the head with a knife and A2 had assaulted him witha knife on the right wrist and A5 has assaulted him with iron pipe.P.W.3 was examined by P.W.23 and issued Ex P75 wound certificate.There is no corresponding overt-act as spoken to by P.W.3 as seenin Ex P75 wound certificate given by Dr. P.W.23 regarding the https://hcservices.ecourts.gov.in/hcservices/ injuries on the right wrist or on the right shoulder said to havebeen caused by A2 and A5 respectively. But as far as A8 isconcerned, according to P.W.3, A8 had assaulted him with a knife onthe head. This has been corroborated by the medical evidence ofP.W.23 and Ex P75 wound certificate which shows that P.W.3 hadsustained a cut injury measuring 2 cm on the back of the head.9e. P.W.4 another injured witness would depose that at the timeof occurrence, A7 had assaulted on the left side of the head with aknife and A6 had assaulted on the right leg and right arm with ironpipe and A4 had assaulted him with iron pipe on the right arm. P.W.4was examined by the Doctor P.W.23 and issued Ex P73 the copy of theaccident register. In Ex P73 the copy of the accident register thefollowing injuries were noted on P.W.4."1.Cut injury on the left elbow measuring 2 cm2. Cut injury on the head measuring 1 cm3. Contusion on the chest.''9f. So,the injuries mentioned under Ex P73 correspondence onlyto the overt-act attributed to A7 and A5 only and there is nocorresponding injury seen in Ex P73 for the overt-act attributedagainst A4 and A6 as against P.W.4.10. According to P.W.5, she was assaulted on the left cheekwith a knife by A6 and the left wrist with iron pipe by A7 and A2and A8 have repeatedly assaulted P.W.2 and P.W.3. But P.W.2 andP.W.3 have not implicated A2 and A8 with any overtact. P.W.5 wasexamined by the doctor P.W.23 and issued Ex P74 copy of the accidentregister. In Ex P74 copy of the accident register,the followinginjuries were noted on P.W.5."1. 3 cm cut wound left side chest.2. 2cm cut right hand elbow3.ring finger was cut and hanging on the righthand".So,the injuries mentioned in Ex P74 for P.W.5 do not correspond withthe evidence of P.W.23 to implicate A6 and A7 against P.W.5.11. Under the above circumstances, A2, A5, A7 and A8 alone areliable to be convicted against the charges as mentioned hereunder.A2 is liable to be convicted and sentenced under Section 326 of IPC,148 of IPC and 452 of IPC. A5, A7, and A8 are liable to be convictedand sentenced under Sections 148,452 and 324 of IPC.12. Mr.S.Doraisamy, learned counsel appearing for theappellants would represent that another First Information Report waspreferred by the mother of the deceased against the prosecutionwitnesses in respect of the same occurrence in which the mother ofthe deceased was also sustained injuries at the hands of theprosecution witnesses. Ex D2 is the First Information report filedby the mother of the deceased dated 8.10.1996 But the occurrence, https://hcservices.ecourts.gov.in/hcservices/ according to the prosecution case, took place on 23.6.1996 at 8.30p.m but Ex D2 was preferred only on 8.10.1996 ie., 3 ½ months, afterthe date of this occurrence. So it cannot be said that both theoccurrence took place at one and the same time.13. Today, the learned counsel appearing for theappellants/A2,A5,A7 and A8 has filed a petition in Crl.M.P.No.364 of 2007 under Section320 of Cr.P.C. contending that the saidconvicted accused have entered in to a compromise with P.W.2Santhosh, P.W.3 Suresh, P.W.4 Ramesh and P.W.5 Pappathi. The victimP.W.2 is before this Court and he says that instead of convictingand sentencing A2 under Sections 148,452 and 326 of IPC, he will besatisfied with a compensation of Rs.5000/-(Rupees Five thousand)only. P.W.3 is present before this Court. He would represent thatinstead of convicting and sentencing A8 under Sections 148,452 and324 IPC, he will be satisfied with a compensation of Rs.3,000/-(Rupees three thousand ) only. P.W.4 is present before this Courttoday. He would represent that instead of convicting and sentencingA5 and A7 under Sections 148,452, and 324 of IPC, he will besatisfied if a compensation amount of Rs.3,000/( A5-Rs 1500/- andA7-Rs 1500/-)is ordered to be paid by A5 and A7.14. The learned Additional Public Prosecutor would representthat in a case of similar nature, the Honourable Apex Court in RamLal and another-v- State of Jammu and Kashmir(AIR 1999)Supreme Court895) has held that even in a case falls under Section 326 of IPC ,if the victim is willing to compound the offence with the accusedconcerned, then the Court taking into consideration ,the facts andcircumstances of the parties, can pass suitable orders. In the abovesaid dictum, the accused who were convicted and sentenced underSection 326 of IPC by the trial Court and on appeal before the ApexCourt an application filed under Section 320 of Cr.P.C., The Courtafter admitting the application has modified the sentence of theaccused to a period already undergone instead of six months . Whileapplying the same yardstick in this case also, I am of the view thatsince both the victim as well as the accused have compoundedthemselves, the appeal can be disposed of by awarding thecompensation as claimed by the victim as indicated above.15. In the result, the appeal preferred by A2, A5,A7, and A8are dismissed. A2 is convicted under Sections 148,452 and 326 of IPCand the sentence alone is modified to that of a compensation ofRs.5,000/-(Rupees Five thousand) only. A8 is convicted underSections 148,452 and 324 of IPC and sentence alone is modified tothat of a compensation of Rs.3,000/-(Rupees three thousand) only. A5and A7 are convicted under Sections 148,452 and 324 of IPC andsentence alone is modified to that of a compensation of Rs.3,000/-(Rupees three thousand) only(A5-Rs. 1500/- and A7-Rs 1500/- ). Theappeal is disposed of in the above lines. The appeal preferred by https://hcservices.ecourts.gov.in/hcservices/ A3, A4,A6, and A9 is allowed and are acquitted from the chargeslevelled against them. As far as A1 is concerned, death memo isfiled and recorded. The appeal abates as against A1. The learnedcounsel appearing for the appellants/A2,A5,A7,and A8 submits thatthe above accused may be given a weeks time to pay the abovesaidamount of compensation. A2, A5,A7 and A8 are directed to appearbefore this Court on 27.6.2007 for payment of the compensation.The fine imposed by the trial Court against A2, A5,A7 and A8 willsustain. The fine amount paid by A3, A4, A6 and A9 shall berefunded to them.Call on 27.6.2007Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1. VII Additional Sessions Judge, Chennai2.-do- through the Principal Sessions Judge, Chennai3.The Public Prosecutor, High Court, Madras4. The Inspector of Police, V-1,Villivakkam Police Station, Chennai-495. The X Metropolitan Magistrate, Chennai.6. The Section Officer,Criminal Section,High Court, Madras.(for calling the case on 27.6.07)Crl.A.No.415 of 2001BV (CO)kk 25/6