BAIL SLIPThe v. State rep. bySub-Inspector of PoliceAruvankadu Police Station

BAIL SLIPThe Appellants [Accused] were released on Bail in and by theOrder of Court dated 12.5.04 in Crl.MP.No.5887/04 in CA.No.664/04.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 21.09.2006CORAMTHE HONOURABLE MR. JUSTICE F.M.IBRAHIM KALIFULLAANDTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAMCRL. APPEAL NO. 664 OF 20041. S.K.Lodh2. Sanjaykumar Jha.. Appellant- Vs -State rep. bySub-Inspector of PoliceAruvankadu Police Station... Respondent Criminal Appeal filed against the conviction and sentence passedby the learned Sessions Judge, Nilgiris at Ootacamund, in S.C. No.41of 2003 dated 29.4.04 as stated therein.For Appellant: Mr.A.RadhakrishnanFor Respondent: Mr.P.Kumaresan, APPJUDGMENT(JUDGMENT OF THE COURT WAS DELIVERED BYM.CHOCKALINGAM, J.)Aggrieved over the judgment of the Principal Sessions Division,Ooty, made in S.C. No.41/03, whereby A-1 was charged under Section307 IPC and A-2 was charged under Section 307 read with 34 IPC at theend of trial, and on being found guilty the appellants were sentencedto life imprisonment. Hence, the appellants have broughtforth thisappeal.2. The short facts necessary for the disposal of this appealcould be stated thus :-P.W.1 is a security officer and P.W.2 is the General ManagerCordite factory, Aravangadu, Ooty. P.W.2, as the General Manager ofthe factory, took severe measures, when he found that illegaltrafficking in narcotic drugs and also finance was being made amongthe staffs and when he implemented the said measures, the same wasnot liked by the employees. Some people were dismissed from serviceand A-1 was one among them. Prior to the occurrence, a show causenotice was issued on A-1 on 11.12.02 and following an enquiry he was https://hcservices.ecourts.gov.in/hcservices/ terminated on 5.2.03. A-2 is also a co-employee in the said factorywith A-1. On 27.2.03, as usual P.W.1 went for walking. At around5.30 a.m., when he was walking on the Aravangadu-Ooty Main Road, atthe road junction, both the accused, A-1 armed with an iron pipe andA-2 armed with a log, attacked him and in the course of the saidoccurrence, he sustained injuries and when he attempted to snatch theiron pipe from the hands of A-1, A-1 sustained injuries and,therefore, A-1 left the same and apart from that A-1 also left one ofhis chappals and both the accused ran away from the place. P.W.2took the material objects available in the place and he also saw boththe miscreants running away from the place. He, thereafter, cameback to his house, informed his wife and, thereafter, informed P.W.1,the security officer of the factory and also P.W.10, the medicalpersonnel over phone. 3. On receiving information over phone from P.W.2, P.W.1 rushedto the house of P.W.2 and took him in an ambulance to the hospital inthe factory and P.W.2 was given initial treatment by P.W.10, whoissued Ex.P-13, the wound certificate. The injuries noted in thewound certificate are :-"1) A linear lacerated wound about 5 cms over theforehead midventral region. Bleeding more present.2) Abrasion left wrist.3) Contusion left thigh (postero lateral aspect).4) Contusion lower portion of left leg (posterioraspect).5) Lacerated wound right knee over the pattella."Then he was taken to the Wellingdon Hospital, where he was giventreatment and, thereafter, he was advised to be taken to K.G.Hospital, Coimbatore for further treatment. Accordingly, P.W.2 wastaken there and treated.4. In the meantime, P.W.1, the security officer, on instructionsfrom P.W.1 gave a report to the Sub-Inspector of Police, who was onduty at that time. The said complaint is Ex.P-1 on the strength ofwhich a case came to be registered by the respondent-police in crimeNo.30/03 under Section 307 IPC. Ex.P-17 is the printed firstinformation report. Express first information report was despatchedto the court and the investigating officer was informed.5. P.W.13 is the Inspector of Police at the investigating policestation during the relevant time. On receipt of a copy of theprinted first information report, he proceeded to the scene ofoccurrence and made an observation in the presence of witnesses andprepared Ex.P-4, observation mahazar and also drew a rough sketch,Ex.P-18. He recovered the material objects available at the scene ofoccurrence and also the material objects produced by P.W.1. A-1 wasarrested on 14.3.03 and at that time he gave a confession statement,the admissible portion of which is marked as Ex.P-15, pursuant towhich M.O.9, iron pipe and also the other chappal worn by A-1 wererecovered under a cover of a mahazar. On the confession of A-1, A-2 https://hcservices.ecourts.gov.in/hcservices/ was also arrested on the same day. As A-2 was having injuries on hisperson, he sent to the hospital for treatment.6. P.W.7 is the doctor at the hospital before whom A-2 was takenfor medical examination. On examination of A-2, the doctor, P.W.7found the following injuries on his person, which is found noted inEx.P-10, the accident register :-"1) Infected wound 1 x 1 cm over dorsum of base of F5left.2) Healed wound ½ x ½ cm over palmer aspect of baseof F5 left."A-2 was thereafter treated by P.W.8, the doctor attached toAravangadu hospital and Ex.P-11 is the wound certificate issued byhim.7. P.W.13, continuing with his investigation, gave a requisitionfor conducting test identification parade. Consequent upon therequisition given by the investigating officer, test identificationparade was conducted in which P.W.2 identified the accused. Thematerial objects recovered were forwarded to the court with arequisition to send the same for chemical analysis and, accordingly,they were sent and the relevant certificates were obtained and placedbefore the court. On completion of the investigation, theinvestigating officer filed the final report against the accused, thecase was committed to the Court of Sessions, necessary charges wereframed and the case was tried by the trial court. In order tosubstantiate the charges, the prosecution examined thirteen witnessesand relied on twenty exhibits and ten material objects. After theevidence on the side of the prosecution was over, the courtquestioned the accused under Section 313 Cr.P.C. on the incriminatingcircumstances appearing against them. They denied all thecircumstances as false. No defence witness was examined. Afterhearing the arguments advanced by the counsel on either side and onscrutiny of the materials, the court was of the opinion that theprosecution has proved the case against both the accused and foundthat it is a case of attempt to murder and, therefore, must be viewedseriously, and, therefore, imposed the punishment of life sentence,which is being challenged in this appeal.8. Learned counsel appearing for the appellants, at the time ofarguments, would make the following submissions. Firstly, theprosecution had not proved the motive for the appellants to committhe offence. P.W.2 is the General Manager of the factor. He tookrigorous measures against the employees and so far as A-1 isconcerned, a show cause notice was issued on 11.12.02 and atermination order was served on 5.2.03. According to theprosecution, the occurrence has taken place on 27.2.03, which isafter a period of 22 days. If at all A-1 had been aggrieved over hisdismissal from service, he would not have waited for 22 days, butwould have committed the offence even earlier and, therefore, thereis a gap of 22 days from the date of termination to the date of https://hcservices.ecourts.gov.in/hcservices/ occurrence, which is definitely a dent in the prosecution case asregards the motive. Insofar as A-2 is concerned, learned counselwould contend that A-2 was in the employ in the factory till thetrial of the case and there was also no motive for A-2 at all tocommit the crime as putforth by the prosecution. In the instantcase, according to the prosecution, P.W.2, who was going for a walkat 5.30 a.m. in the morning, was attacked by two persons. But it ispertinent to point out that he has not given the complaint to thepolice. The evidence of P.W.2 would disclose that after theassailants attacking him and escaping from the place of occurrence,he gathered all the material objects, went to his house and informedhis wife and, thereafter, informed P.W.1, the security officer andP.W.7, the doctor over phone, but he has not informed the police. Itis further to be added that P.W.2 did not given the complaint, butthe complaint, Ex.P-1, was by P.W.1. In the said complaint it isfound that two persons were involved in the occurrence and that P.W.1had not given the name of the assailants or any description asregards their appearance or age or that they were employed in thefactory and there is no whisper at all about any of the above inEx.P-1, the complaint given by P.W.1. Even P.W.2 has not spokenanything about the accused being workers in the factory. Therefore,only on surmises and conjectures, the prosecution has thought it fitto implicate the accused in the crime. P.W.1, who was in no wayconnected with the occurrence has given the complaint and in suchcircumstances, P.W.2, who is alleged to have been injured in theoccurrence has not given the said complaint and, therefore, Ex.P-1loses its effect. Added further the learned counsel, in the instantcase, test identification parade was conducted on 18.3.03 and theaccused were arrested on 14.3.03 and in the intervening period offour days the photographs of the accused were shown to P.W.2 and,therefore, he had identified the accused, as their photographs wereavailable in the registers and, therefore, the test identificationparade cannot be given any importance at all. Added further thelearned counsel, in the instant case, the alleged confession and therecovery of the material objects were nothing but subsequentintroduction to strengthen the prosecution case. As regards A-2,there is no material at all and only on the confession given by A-1,A-2 has been arrested and, the confession of A-1 would in no way bindA-2. Added further the learned counsel, even assuming there is acase of attempt to murder against the accused, yet the same would notfall under the penal provision and the lower court has taken anextreme step to find the accused guilty of the offence under Section307 IPC and awarded life imprisonment, which, on the facts of thecase, is not sustainable.9. The Court heard the learned Addl. Public Prosecutor appearingfor the State on the above contentions and also paid its anxiousconsiderations to the submissions made. In the instant case, A-1 andA-2 stood charged under Sections 307 and 307 read with 34 IPCrespectively for an offence that took place on 27.2.03 at about 5.30a.m. When P.W.2, the General Manager of the factory was going for awalk on the road. From the evidence of P.W.2 it would be clear thathe was able to identify the accused even at that time, though he didnot know their names or that they worked in the factory and that https://hcservices.ecourts.gov.in/hcservices/ immediately after the occurrence at 5.30 a.m., he went back to hishouse, informed his wife and, thereafter, informed P.W.1 and P.W.7over phone and P.W.1 came with an ambulance and took P.W.2 to thedoctor. P.W.1 thereafter went to the police station and gave thecomplaint, Ex.P-1. It is to be noted that even in Ex.P-1, P.W.1 hasmentioned that two assailants had attacked P.W.2 and their act wasalso mentioned. In the instant case, the contention putforth by thelearned counsel for the appellants that P.W.1, who was not injuredeither or an eye witness to the occurrence, has given the complaintand, therefore, Ex.P-1 loses its significance has got to be rejectedfor the simple reason that Ex.P-1 would only serve to the extent ofsetting the criminal law in motion. 10. In the instant case, even according to the prosecution therewas no eye witness. It was only P.W.2, who was walking at that timewhen he was attacked and, therefore, P.W.2 was the competent personto speak about the same. The evidence of P.W.2 clearly disclosesthat the accused attacked him with an iron pipe and stick and thenthey ran away from the place. Thereafter, he collected all thematerial objects and he went to his house and informed his wife and,thereafter, he informed P.W.1, the security officer and P.W.7, themedical officer over phone and they arrived and he was given medicaltreatment. The earliest document, which has come into existence inthis case is Ex.P-13, where he has clearly mentioned that at theplace of occurrence two assailants attacked him with weapons and thiswould go to show that such an occurrence, as putforth by P.W.2, hastaken place. 11. Learned counsel for the appellants would contend that P.W.2could have identified the accused in the test identification paradeonly because their photographs were shown to him as they wereavailable in the official registers. In the instant case, it ispertinent to point out that both the accused were arrested on 14.3.03and A-1 gave a confession statement which led to the recovery of thematerial objects. It is pertinent to point out that one chappal wasrecovered by the investigating officer from the place of occurrenceand the other chappal was recovered on A-1 pointing out the place,which definitely implicates A-1 as one of the assailants on P.W.1.P.W.2 has clearly identified the accused at the time of theidentification parade. Therefore, on the basis of the materialsdiscussed above, the contention of the counsel that photographs,which were available in the register were shown to P.W.2 so as toenable him to identify the accused has got to be brushed aside. Ifthis contention has got to be accepted in every case where theemployees attack the managerial personnel, as their photographs wouldbe available in the registers, then, in each and every case of thisnature, the arrest and test identification parade has got to beeschewed. In the instant case, without any lapse of time and thattoo within a period of three days test identification parade has beenconducted in which P.W.2 has identified the accused and this wouldclearly point out that he saw the assailants during the attack on him.12. Apart from this, in the instant case, A-1 has got sufficientmotive as he was served with termination on 5.2.03 following which https://hcservices.ecourts.gov.in/hcservices/ within 22 days the occurrence has taken place and that P.W.2 has alsoidentified him and all the other attendant circumstances put togetherwould clinchingly point the finger on A-1 for recording a conviction.But insofar as A-2 is concerned, there is no material available inthe evidence as putforth by the prosecution and it is also pertinentto point out that he had served in the factory until his arrest.Apart from that, no motive also has been attributed to A-2 and in theabsence of any material, the prosecution has definitely failed toprove their case as against A-2. Insofar as A-1, is concerned,though this Court has found him guilty of causing injury to P.W.2,yet, the wound certificate, Ex.P-13 issued to P.W.2, would only showthat P.W.2 had suffered a grievous hurt on the skull. It is truethat A-1 attacked P.W.2 with an iron pipe, but there is nothing toshow that it was an attempt to commit the murder of P.W.2. In thecircumstances, the act of A-1 will not attract the penal provisionunder Section 307 IPC, but would only fall under Section 326 IPC, forwhich a sentence of five years rigorous imprisonment could be awardedto A-1, which would meet the ends of justice.13. In the result, the appeal is allowed in part. The judgmentof the trial court finding A-1 under Section 307 IPC is set aside andinstead it is modified to one under Section 326 IPC for which hestands sentenced to rigorous imprisonment for a period of five years.Insofar as the judgment of the trial court finding A-2 guilty underSection 307 read with 34 IPC is set aside and he is acquitted of thecharge framed against him. It is reported that A-1 is on bail. Thelearned Sessions Judge is directed to take steps to secure A-1 andcommit him to prison to serve the remaining period of sentenceimposed upon him. Bail bonds executed by A-2 shall stand cancelled. (GLNSd/-Asst. Registrar//true copy//Sub Asst.RegistrarTo1) The Sessions Judge, The Nilgiris.2) The Judicial Magistrate, Coonoor.3) – Do – Thro' The Chief Judicial Magistrate, The Nilgiris.3) The District Collector, The Nilgiris.4) The Director General of Police, Chennai.5) The Public Prosecutor, High Court, Madras.6) The Superintendent of Central Prison, Coimbatore.7) The Sub-Inspector of Police, Aruvankadu Police Station, Nilgiris.+ Two Ccs to Mr.A.Radhakrishnan, Advocate Sr.No.44316.GV (CO)RSM/11.10.2006 CRL.A.NO.664 OF 2004