IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.07.2008
CORAM:
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
and
THE HONOURABLE MR.JUSTICE K.N.BASHA
Criminal Appeal No.905 of 2005
1.Murugan
2.P.K.Lingan @ Lakmanan
3.Nandhakumar @ Nandan
4.Jayabal
5.Ramalingam
6.Madhan
7.Saravanan
8.B.K.Rajan
9.Siva .. Appellants/Accused 1 to 9
Vs.
State rep by
Inspector of Police,
E-1, Ooty Rural Police Station,
The Nilgiris District. .. Respondent/Complainant
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Prayer : Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the Judgment of conviction passed by the learned District and Sessions Judge, Ooty, made in S.C.No.25 of 2005 dated 26.10.2005.
* * *
For Appellants 1 to 5 : Mr.C.Ramkumar
For Appellants 6 to 9 : Mr.Sunder Mohan
For Respondent : Mr.N.R.Elango,
Additional Public Prosecutor
J U D G M E N T
(Judgment of the court was delivered by K.N.BASHA, J.)
The appellants, who have been arrayed as A-1 to A-9, have come forward with this appeal challenging the judgment dated 26.10.2005 passed by the learned District and Sessions Judge, Udhagamandalam, in S.C.No.25 of 2005 convicting and sentencing the appellants as follows :
Accused
Conviction under section
Sentence awarded
A-1 to A-9
147 IPC
to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to undergo two months simple imprisonment.
A-1 to A-4 and A-6
148 IPC
to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- each, in default, to undergo four months simple imprisonment.
A-5 and A-7 to A-9
148 r/w 149 IPC
to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- each, in default, to undergo four months simple imprisonment.
A-1 to A-9
452 IPC
to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/- each, in default, to undergo one year simple imprisonment.
A-1, A-2 and A-6
324 IPC
to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- each in default, to undergo four months simple imprisonment.
A-1, A-2 and A-6 (each one count)
A-3 to A-6 and A-7 to A-9 (each two counts)
324 r/w 149 IPC
to undergo rigorous imprisonment for two years for each count and to pay a fine of Rs.1,000/- each, in default, to undergo four months simple imprisonment for each count.
A-7 to A-9
323 IPC
to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- each, in default, to undergo two months simple imprisonment..
A-7 to A-9 (each one count)
A-1 to A-6 (each two counts)
326 r/w 149 IPC
to undergo rigorous imprisonment for six months for each count and to pay a fine of Rs.500/- each, in default, to undergo two months simple imprisonment for each count.
A-4
326 IPC
to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- each, in default, to undergo one year simple imprisonment.
A-1 to A-3 and A-5 to A-9
323 r/w 149 IPC
to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- each, in default, to undergo one year simple imprisonment.
A-3 to A-5
302 IPC
to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default, to undergo one year simple imprisonment.
A-1, A-2 and A-6 to A-9
302 r/w 149 IPC
to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default, to undergo one year simple imprisonment.
The sentences are ordered to run concurrently.
2. The factual scenario, as unfolded during the course of trial through the evidence adduced by the prosecution, is as follows :
(i) P.Ws.1 and 2 are the brothers of the deceased, Raghu. All the accused were the neighbours of the deceased and P.Ws.1 and 2. A-1 said to have attempted to commit rape on one Shalini, daughter of P.W.2. As the said Shalini raised hue and cry, A-1 outraged the modesty and ran away from the scene. A police complaint was given and A-1 was released on bail after his arrest. Thereafter, A-1 threatened the deceased party with dire consequences. While the deceased went to change the ration card to the school, there arose a wordy quarrel between A-1 and the deceased and even in respect of the said occurrence a complaint was preferred to the police. Therefore, there were strained feelings between the family of the deceased and the accused.
(ii) On the fateful day of occurrence, i.e., on 07.12.2003, the deceased party were celebrating Karthigai Deepam in their village. At about 7.00 p.m., the electric light was burning apart from Deepam lights. At that time, A-1 along with other accused removed the fence and entered inside the house of the deceased. A-1 stated that he would kill the persons who are all responsible for sending him to the jail and instigated A-4 to cut P.W.1. A-4 cut P.W.1 on his head with a knife. While P.W.2 intervened A-1 cut P.W.2 on his forehead. A-2 cut P.W.2 on his left eye-brow. While the deceased intervened, A-3 cut the deceased on the backside of his head near the ear. A-5 beat the deceased with a stick on his head. A-6 cut the deceased with a knife on his hand. A-7 and A-8 beat the deceased with sticks on the left leg. A-9 fisted on the right shoulder of P.W.1. There was a scuffle which resulted injury to the accused. Thereafter, all the accused ran away from the scene. The injured including the deceased admitted at the Government Hospital, Udhagamandalam and thereafter, they have been sent to Coimbatore Government Medical College Hospital.
(iii) The Doctor, P.W.9, attached to the Government Hospital, Udhagamandalam, examined P.W.2 at 9.35 p.m. on 07.12.2003 and found the following injuries :
(1)Bleeding from the right ear present.
(2)Laceration 3 X 1 X 1 cm near right ear.
(3)Bleeding from right nose present.
(4)Linear abrasion in right arm present.
(5)Laceration 2 X 0.5 X 0.5 cm in the left leg.
(6)Abrasion 2 X 2 cm in left foot.
Ex.P.12 is the wound certificate. All the above said injuries are simple injuries and an injury sustained by P.W.2 on his tooth is a grievous injury.
(iv) The Doctor, P.W.9, on the same day i.e., on 07.12.2003 at 9.45 p.m. examined the deceased and found the following injuries on him :
(1)Laceration 3 X 1 X 1 cm over the forehead.
(2)Laceration 2 X 0.5 X 0.5 cm above the left eye.
(3)Bleeding from both nostrils present.
CT Brain Depressed fracture occipital bone with pneumatocele in the right cerebellar region. The Doctor, P.W.9 opined in Ex.P.11, the wound certificate that the injury is grievous one.
(v) On the same day at 10.00 p.m., he examined P.W.1 and found a laceration 4 X 1 X 1 cm in the scalp. Ex.P.10 is the Accident Register.
(vi) At 9.15 p.m. on 07.12.2003, the Doctor, P.W.9, examined A-3 and found the following injuries :
(1)Laceration 7 X 3 X 2 cm in the left side of neck.
(2)Laceration 3 X 0.5 X 0.5 cm in the right thumb.
Ex.P.19 is the wound certificate. He opined that the injuries are simple in nature.
(vii) On the same day, i.e., on 07.12.2003 at 9.20 p.m. he examined A-2 and found the following injuries :
(1)Linear abrasion in left arm.
(2)Abrasion 2 X 2 cm in right side scalp.
(3)Laceration 4 X 1 X 1 cm in the left foot.
(4)Abrasion 2 X 2 cm in left lateral chest.
Ex.P.18 is the wound certificate. He is of the opinion that the injuries are simple in nature.
(viii) Meanwhile P.W.10, Sub Inspector of Police, Udhagamandalam Police Station, received the message at 10.00 p.m. on 07.12.2003 and went to the hospital at 10.15 p.m. He recorded the statement under Ex.P.1 from P.W.1 and registered the case in Crime No.153 of 2003 for the offence under Sections 147, 148, 447, 324, 323 and 307 IPC. Ex.P.20 is the First Information Report and he sent the same to the Magistrate’s Court and to the higher police officials.
(ix) P.W.10 also received the report from A-3 at 12.00 mid night and registered the case in Crime No.154 of 2003 for the offence under Sections 323 and 324 IPC. Ex.P.21 is the First Information Report.
(x) P.W.11, Inspector of Police, Udhagamandalam, received the First Information Report on 08.12.2003 at 00.15 mid night. He took up investigation and went to the scene of occurrence at 1.00 a.m. and prepared the observation mahazar, Ex.P.6 and rough sketch, Ex.P.22. He made arrangements to take photographs, Ex.P.23 series. At 4.00 a.m., he went to C.M.C.Hospital and examined P.W.1 and recorded his statement. He recovered bloodstained clothes, M.Os.1 to 3 from P.W.1 under Ex.P.24. He examined the deceased and recorded his statement and recovered the bloodstained shirt, M.O.14 and banian, M.O.15 under Ex.P.25. He examined P.W.2 and recorded his statement. He also recovered bloodstained clothes, M.Os.6 to 8 from P.W.2 under Ex.P.26. He went to the Government Hospital, Udagamandalam, at 10.45 a.m. and examined A-2 and recorded his statement. He recovered M.O.16, bloodstained shirt under Ex.P.27 from A-2 in respect of counter case. At 11.00 a.m., he examined A-3 and recorded his statement in respect of the counter case. He recovered M.O.17, banian, M.O.18, shirt under Ex.P.28. At 1.30 a.m., he went to the scene of occurrence and examined the other witnesses. On the same day at 3.00 p.m., he arrested A-1. In pursuance of the admissible portion of his confession under Ex.P.8, he recovered M.Os.4 and 5, Vettu knife under Ex.P.9. A-1 was remanded to judicial custody through the Court. On 19.02.2003 at 11.30 p.m., he arrested A-2 and A-3. Both of them remanded to judicial custody through the Court. He sent the material objects to the judicial Magistrate with requisition, Ex.P.29, for chemical examination.
(xi) Meanwhile the Doctor, P.W.5, attached to the Coimbatore Medical College, examined the deceased on 08.12.2003. He found a depressed fracture occipital bone with pnematocele in the right cerebellar region. Ex.P.3 is the medical note, in which, the Doctor gave opinion to the effect that the injury is grievous injury. He received question and answer report, Ex.P.4 and filled up the same and gave it to the Inspector.
(xii) The Doctor, P.W.6 examined P.W.1 and gave the medical note, Ex.P.5, in which, he opined that the injuries are simple in nature.
(xiii) The Doctor, P.W.3, examined P.W.2 on 10.12.2003 and found the fourth teeth was broken. He gave medico legal opinion under Ex.P.2 in which he is opined that the injury sustained by P.W.2 is a grievous one. The Doctor, P.W.4, on perusal of Ex.P.2, gave his opinion to the effect that the injuries are grievous in nature in respect of P.W.2.
(xiv) The deceased was discharged from the hospital on 06.01.2004. The Doctor, P.W.5, has given opinion as per Ex.P.4 that at the time of discharge, the deceased was completely cured. On 22.02.2004 at 8.30 a.m., the deceased died, as per the death intimation, Ex.P.33.
(xv) P.W.11 altered the offence to one under Section 302 IPC from 307 IPC. Ex.P.34 is the altered First Information Report. He held inquest on the dead body from 9.00 a.m. to 12.00 noon. Ex.P.35 is the inquest report. During inquest, he examined P.Ws.1 and 2 and other witnesses. He sent the body for post-mortem.
(xvi) The Doctor, P.W.9, conducted post-mortem on 22.02.2004 at 1.15 p.m. and found the following injuries :
Hands are empty. Eyes and mouth closed. Tongue within the mouth. Stomach contains 200 ml. of partially digested food particles. Liver, Kidney Congested. Intestine contains gas. Hyoid bone Intact. Heart Chambers empty. Lungs congested.
On cut section : froth came out with blood. Healed wound with scalp behind right ear. Fracture temporal bone seen. An healed wound with suture material seen over the surface membrane of the brain in right temporal region. 200 ml of whitish yellow fluid seen inside that surface membrane in the temporal region.
Ex.P.14 is the Post-mortem certificate ; Viscera Report is Ex.P.15 ; and the final opinion was given under Ex.P.16, in which the Doctor, P.W.9 opined that cause of death is probably brain abscess.
(xvii) On 04.03.2004, P.W.11 examined the Doctors, P.Ws.3, 4, 5, 6 and 8. He also received the post-mortem certificate, Ex.P.14, Viscera Report, Ex.P.15 and the final opinion, Ex.P.16 apart from Ex.P.4, question and answer report from the Doctor, P.W.5. He also received the chemical examination report, Ex.P.31. Serologist’s report, Ex.P.32. After completion of investigation, he filed the charge sheet on 30.06.2004 for the offence under Sections 147, 148, 452, 323, 324, 326 and 302 r/w 149 IPC.
3. The prosecution, in order prove its case, examined P.Ws.1 to 11, marked Exs.P.1 to P.44 and M.Os.1 to 22.
4. When the accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them, each of the accused have denied their complicity with the crime and stated that they have been falsely implicated in this case. They have examined D.Ws.1 to 3 and among them D.W.3 is A-3. They have also marked Exs.D.1 to D.3. It is their defence that only they have been attacked by the deceased party.
5. Learned counsels appearing for the appellants vehemently contended that the prosecution has not proved its case by adducing clear and consistent evidence. It is contended that there are contradictions in material particulars between the evidence of the eye-witnesses, P.Ws.1 and 2. It is further submitted that A-2 and A-3 have also sustained injuries and the prosecution has not explained the injuries sustained by the accused and as such the genesis and origin of the occurrence was suppressed by the prosecution. It is submitted that the occurrence is said to have been taken place on 07.12.2003 and the deceased was discharged from the hospital on 16.01.2004 and he died only on 22.02.2004 and as such the death is only due to improper treatment and medical complication. It is pointed out by the learned counsel that the evidence of the Doctor, P.W.9 discloses that during the course of internal examination, he found a thread inside the head which clearly shows the negligence of the Doctor, who operated at the time of admission of the deceased, which resulted in complication, ultimately causing the death of the deceased. The learned counsel would submit that therefore, the accused could not be held liable for the death of the deceased.
6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has come forward with clear and cogent evidence through the eye-witnesses, P.Ws.1 and 2. It is submitted that there is no infirmity in the evidence of P.Ws.1 and 2. The learned Additional Public Prosecutor would contend that only the accused are the aggressors and they have forcibly entered into the house of the deceased by removing the fence of the house and thereafter, attacked P.Ws.1 and 2 and the deceased. It is submitted that even in the report, Ex.P.1, there is a clear explanation about the injuries sustained by A-2 and A-3. It is further pointed out that P.Ws.1 and 2 have also explained about the injury sustained by the accused in their evidence. It is contended that the version of the eye-witnesses, P.Ws.1 and 2, is also corroborated by the medical evidence.
7. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire materials available on record and perused the impugned judgment of conviction.
8. The prosecution heavily placed reliance on the evidence of the eye-witnesses, P.Ws.1, 2 and 7. P.W.7 has completely turned hostile and as such his evidence is neither helpful to the prosecution nor to the defence. Therefore, the case of the prosecution is left with the evidence of P.Ws.1 and 2. It is seen that both P.Ws.1 and 2 have also sustained injuries at the hands of the accused. At the outset, we are of the considered view that the evidence of P.Ws.1 and 2 is quite clear and natural and we are unable to see any infirmity in their evidence. Both P.Ws.1 and 2 have categorically implicated all the accused by alleging specific overt acts against each one of them. It is seen that A-3, A-5, A-6, A-7 and A-8 have attacked the deceased as per the evidence of P.W.1. P.W.2 implicated A-3, A-5, A-7 and A-8 in respect of attacking the deceased. We are not able to see any serious inconsistency between the evidence of P.W.1 and his report, Ex.P.1.
9. We are also unable to accept the contention of the learned counsel for the appellants that only the deceased party are the aggressors and A-2 and A-3 sustained injuries at the hands of the prosecution party and the prosecution has not explained the injuries on the accused. It is pertinent to be noted that even in Ex.P.1, it is clearly mentioned that as they were attacked by the accused, they have also attacked the accused which resulted in injuries on A-1 and A-2. P.Ws.1 and 2 have also categorically explained about the injuries sustained by A-2 and A-3 in their hands. The fact remains that the occurrence took place inside the house of the deceased and P.W.1. A perusal of the observation mahazar, Ex.P.6 discloses that the fence of the house of P.W.1 and the deceased was broken. There was also bloodstains found on the ground of the house of P.W.1. Therefore, it is crystal clear that the accused party had broken the fence of the house of P.W.1 and the deceased and entered inside, attacked P.Ws.1, 2 and the deceased and the occurrence took place in front of the house of P.W.1 and the deceased and as such it is only the accused party are the aggressors. As pointed out by the learned Additional Public Prosecutor, the prosecution party have rightly resisted the attack of the accused which resulted in injuries on A-2 and A-3. It is pertinent to be noted that the perusal of the wound certificates, Ex.P.18 and Ex.P.19 clearly disclose that A-2 and A-3 sustained only simple injuries.
The Hon’ble Apex Court has held in Shajahan V. State of Kerala reported in 2007 AIR SCW 2123 that,
“17. …. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. ….”
The above well-settled principle of law laid down by the Hon’ble Apex Court is squarely applicable to the facts of the instant case as in this case as already pointed out, A-2 and A-3 sustained only simple injuries and the prosecution also has explained those injuries sustained by the accused to the effect that according to P.W.1 there was a scuffle between the prosecution party and the accused and as such the accused could have sustained injuries. P.W.1 further stated that as they have been attacked by the accused party they have also assaulted the accused party to resist the attack of the accused. P.W.2 has also explained the injuries sustained by the accused to the effect that they have snatched the stick from the accused and attacked A-2 and A-3 in order to resist the attack of the accused. It is also pertinent to be noted that even in the report, Ex.P.1, the injuries sustained by the accused was explained as it was stated that as the prosecution party was attacked by the accused party, they have also attacked the accused party. Therefore, it is clear that the prosecution as a matter of fact, explained the injuries sustained by A-2 and A-3. It is also pertinent to be noted that there are nine accused on the accused side and on the side of the deceased including the deceased there are three persons, viz., the deceased and P.Ws.1 and 2. Therefore, we have no hesitation to hold that only A-1 to A-9 are the aggressors.
10. Now let us examine whether the deceased died due to the injuries sustained at the hands of the accused and whether the injuries caused on the deceased are sufficient to cause death in the ordinary course of nature.
11. It is seen that the occurrence is said to have been taken place on 07.12.2003 and the deceased was discharged from the hospital on 16.01.2004 and thereafter, the deceased died only on 22.02.2004. A perusal of Ex.P.4 given by the Doctor, P.W.5 discloses that the deceased was discharged from the hospital after he was fully cured. This vital aspect was also admitted by the Doctor, P.W.5 is his evidence. The fact remains from the materials available on record to the effect that the deceased was discharged and he was sent to his residence and he was asked to come for periodical check-up.
12. Yet another disturbing feature is that the Doctor, P.W.9, who has conducted post-mortem has categorically stated that during the course of internal examination, he found a thread inside the head. It is pertinent to be noted that it was found by the Doctor, P.W.9 as per his final opinion under Ex.P.16 that the cause of death is probably brain abscess. The medical evidence through the Doctor, P.W.9, who has conducted post-mortem does not disclose that the injury sustained by the deceased is sufficient in the ordinary course of nature to cause death. Therefore, it is quite clear that the accused, who have attacked the deceased, could not have been imputed with the intention of causing the death of the deceased and as such the accused, who have attacked the deceased are liable to be convicted for lesser offences.
13.1. The categorical version of P.Ws.1 and 2 is to the effect that A-3 cut the deceased on the head and right ear. In Ex.P.1 also it is specifically mentioned that A-3 cut the deceased on his right ear. A perusal of Ex.P.11, the wound certificate, issued after the examination of the deceased by the Doctor, P.W.9, discloses that there was a depressed fracture on occipital bone with pneumatocele in the right cerebellar region and it is opined by the Doctor that the injuries are grievous in nature. In Ex.P.3 also it is mentioned that the deceased sustained depressed fracture on occipital bone and the injuries are grievous in nature. Therefore, A-3 is liable to be convicted for the offence under Section 326 IPC in respect of attacking the deceased.
13.2. As far as A-5 is concerned, it is specifically stated by P.W.1 in his evidence that A-5 beat the deceased on his head with a stick. In Ex.P.1 also P.W.1 categorically mentioned that A-5 beat the deceased with a stick near right ear. P.W.2 also stated that A-5 attacked the deceased on the ear. As already pointed out the perusal of the Post-Mortem certificate, Ex.P.14, Medical opinion, Ex.P.3 and wound certificate, Ex.P.11 discloses that the deceased sustained a fracture on the occipital region and as such A-5 is also liable to be convicted for the offence under Section 326 IPC in respect of attacking the deceased.
13.3. The other accused, namely, A-6, A-7, A-8 who have also said to have attacked the deceased, are liable to be convicted under Section 324 IPC.
13.4. The other remaining accused, namely, A-4 and A-9 and A-1 and A-2 alleged to have attacked the witnesses, P.Ws.1 and 2, respectively and as such they are also liable to the convicted under Section 324 IPC.
14.1. For the aforesaid reasons, the conviction imposed on the appellants/accused by the learned District and Sessions Judge, Udhagamandalam, in S.C.No.25 of 2005 by the judgment dated 26.10.2005, for offence under Section 452 IPC is hereby confirmed and while confirming the fine amount, sentence is modified to the effect that the appellants shall undergo six months rigorous imprisonment ; the conviction and sentence imposed on the appellants for the offence under Sections 147, 148, 148 r/w 149, 324, 324 r/w 149, 323, 323 r/w 149, 326, 326 r/w 149, 302 and 302 r/w 149 IPC are hereby set aside and instead the appellants stand convicted and sentenced as follows :
(i) A-3 & A-5 are convicted under Section 326 IPC in respect of attacking the deceased and each of them are sentenced to undergo three years rigorous imprisonment and also to pay a sum of Rs.15,000/- each under Section 357 (4) Cr.P.C. as compensation to the victim, wife of the deceased, within a period of eight weeks from the date of receipt of a copy of this judgment, in default, to undergo one year rigorous imprisonment each ;
(ii) A-1 and A-2, A-4 and A-6 to A-9 are convicted under Section 324 IPC in respect of attacking the deceased and P.Ws.1 and 2 and each of them are sentenced to undergo six months rigorous imprisonment and also to pay a sum of Rs.10,000/- each under Section 357 (4) Cr.P.C. as compensation to the victim, wife of the deceased, within a period of eight weeks from the date of receipt of a copy of this judgment, in default, to undergo two months rigorous imprisonment each ;
(iv) Sentences imposed on the appellants by this Court are ordered to run concurrently ;
14.2. The fine amount imposed on the appellants by the trial Court for offence under Section 452 IPC, if paid, is directed to be adjusted with the above said compensation amount imposed by this Court and the remaining compensation amount, if any, to be paid by the appellants is directed to be paid by the concerned appellants within a period of eight weeks from the date of receipt of copy of this Judgment and thereafter, the learned trial Judge is directed to hand over the compensation amount to the victim, wife of the deceased, forthwith. If fine amount paid, in excess, is directed to be paid to the concerned appellants/accused.
14.3. The trial Court is directed to take steps to secure the custody of the appellants/accused and thereafter, to commit them to jail in order to undergo the remaining period of sentence, if any.
With the above modification in conviction and sentence, this appeal is partly allowed.
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To
1. The District and Sessions Judge,
Udhagamandalam, The Nilgiris District.
2. The Judicial Magistrate, Udhagamandalam.
3. – do thro” The Chief Judicial Magistrate,
The Nilgiris @ Udhagamandalam.
4. The Chief Judicial Magistrate, Pudukkottai.
5. The Superintendent, Central Prison, Coimbatore.
6. The Inspector of Police,
E-1, Ooty Rural Police Station,
The Nilgiris District.
7. The Public Prosecutor, High Court,
Madras