JUDGMENT
Malai Subramanian, J.
1. The accused 7 in number in S.C.No.139/93 on the file of the learned Additional Sessions Judge, Coimbatore faced the trial on 10 charges. The learned Sessions Judge acquitted all the accused of charges 3,4 and 7 to 10 and also acquitted A.3 and A.4 of all the charges, but convicted A.1,A.2,A.6 and A.7 under Sec.148 IPC and A.5 under Sec.147 IPC under Charge No.1 to undergo R.I. For one year each, on the allegation that on 23.5.91 at about 6.30 p.m at Sambalmedu Colony, Thirumurthy Nagar, they formed themselves into an unlawful assembly with the common object to commit murder of Chinnaswami and cause hurt to P.Ws.1,3,4,5 and 8. The accused No.1,2 and 5 to 7 were convicted under Charge No.2 for offence punishable under Sec.302 IPC for having murdered Chinnaswami and were sentenced to imprisonment for Life. The 7th accused was convicted for offence punishable under Sec.324 IPC and was sentenced to 2 years R.I on Charge No.5 for having caused stab injury with knife on P.W.4. A.1,A.2,A.5 and 6 were convicted under Sec.324 read with 148 IPC under Charge No.6 and were sentenced to undergo R.I for two years. A.1,A.2,A.5,A.6 and A.7 challenge their conviction and sentence in this appeal. The brief facts that are necessary to dispose of the appeal are as follows:
2. The deceased and P.Ws.1,3,4 and 5 were the residents of Sambalmedu Colony, Thirumurthi Nagar. They belonged to A.I.A.D.M.K. The appellants belonged to D.M.K. On 23.5.91 there was a procession in Thirumurthi Nagar in connection with the assassination of Rajiv Gandhi and the same was arranged by A.I.A.D.M.K and Congress Party workers. The procession started at 4.30 p.m near Ganapathi temple; went through P.A.P Colony upto Teachers Training School and came back to Ganapathi Temple at about 6.30 p.m. The deceased also participated in the procession. Thereafter, tea was provided to the processionists in the A.I.A.D.M.K Office and after taking tea, P.Ws.1,3,4 and 5 were proceeding towards west to reach their respective residences. When they went near the house of the accused Periarasu (who is no more),he along with accused 1 to 7 who belonged to D.M.K threw stones at the witnesses from the house of Periarasu. Those who crossed the house of Periarasu stayed on the western side of his house and those who were about to cross stayed on the eastern side of the house. At that time, the deceased Chinnaswami came in M.O.1- Cycle with a bunch of grass for his cow. He questioned the witnesses as to why they were standing there. He was informed that stones were thrown from the house of Periarasu. The deceased went saying that he would go to Periarasu and pacify him. When Chinnaswami went near the house of Periarasu, stones were thrown from inside and Chinnaswami shouted “Don’t throw stones” and by warding off the stones with his hands, he went towards the house of Periarasu. The accused Nos.1,2,5,6 and 7 along with the deceased Periarasu came out of the house and surrounded Chinnaswami. The 1st accused stabbed Chinnaswami on his head with spear M.O.2; 2nd accused beat Chinnaswami with M.O.3 thorny stick; A.5 also assaulted Chinnaswami with thorny stick. The 6th accused assaulted him with something like stick or aruval on the head and other parts of the body. The 7th accused stabbed Chinnaswani on his stomach with M.O.-4 knife. When the witnesses neared, Periarasu threw a bottle covered by a sack cloth to prevent the witnesses coming nearby. Though smoke was coming out from the thread (jphp) it was put down and P.Ws.1,4 and Mylswamy came to that place. At that time 7th accused stabbed P.W.4 Srinivasan with M.O.4 – knife. Periarasu threw another bottle which exploded. M.O.5 series is broken bottle pieces with the sack cloth. Thereafter the accused 1,2,5 and 6 beat P.W.4 with stick. Chinnaswami fell down after sustaining injuries and thereafter Chinnaswani was dragged inside the house of Periarasu by Periarasu, A.1, A.2 to 6, and 7. Meanwhile P.W.2 went in a scooter to Thali Police Station at a distance of 4 kms; informed the police about the rioting. Immediately P.W.17 – Inspector of Police and his men rushed to the scene of crime. Within half an hour they reached the scene of crime. The police officers arrested A.1,A.2 and A.5. 6th and 7th accused escaped. When P.Ws.1,3,4 and 5 went inside the house of Periarasu along with P.W.17 and other police officials, they saw Chinnaswami lying dead in a pool of blood. P.W.1 gave a statement and the same was reduced into writing. Ex.P.1 is the statement. P.W.17 sent the same through P.W.16 – Sub Inspector of Police with the direction to register a case and bring the printed First Information Report. Accordingly, P.W.16 – Sub Inspector of Police went to Thali Police station and registered a case in Cr.No.76/91 for offences punishable under Secs.147,148,323 and 324 and 302 IPC and prepared printed First Information Report Ex.P.24 and sent the copy of Ex.P.24 through a Constable to P.w.17. He also forwarded Exs.P.1 and P.24 to Judicial Magistrate, Udumalpet. At about 9.30 p.m., on that day, 6th accused appeared before P.W.16 and gave a statement and on his statement a case was registered in Cr.No.77/91 for offences punishable under Secs.147,148,323 and 324 IPC and P.W.16 prepared Ex.P.25 printed First Information Report. He also seized M.O.11 – blood stained dhoti produced by A.6 and M.O.12 – sleeveless banian under Ex.P.26 Form 95. The Sub Inspector of Police forwarded the First Information Report in Cr.No.77/91 also to the Magistrate concerned and a copy to the Inspector of Police P.W.17.
3. P.W.17 – Inspector of Police took up investigation and held inquest between 9.00 p.m. on 23.5.91 and 1.00 a.m. on 24.5.91 and during inquest he examined P.W.1 and others. He prepared Inquest Report Ex.P.27. After inquest, he forwarded the body of Chinnaswami with a requistion Ex.P.13 through P.W.14 – constable for autopsy. In the meantime P.W.4,P.W.3,and P.W.5 and other injured went to the Government Hospital, Udumalpet at about 8.30 p.m on that day. P.W.9. Rajammal, Civil Assistant Surgeon, Government Hospital, Udumalpet examined P.W.4 Srinivasan and found a “V” shaped cut injury with regular edges of 2 1/2 cm x 2 cm x 2 1/2 cm over the left side of back near the interior angle of scapula. Another “L” shaped injury of 10 cm in length exposing the bone running vertically upwards from the bridge of nose running laterally to the right was also seen. She also noticed a lacerated injury 2 cm x 1/2 cm x 1/4 cm over the left parietal region of scalp and an abrasion of 1/2 cm x 1/4 cm over the front of right upper arm. P.W.4 was admitted as inpatient. Ex.P.2 is the Wound Certificate issued to him.
4. P.W.9 at about 8.30 p.m examined P.W.3 Raman @ Ramasamy and found a lacerated injury of 1 1/2 cm x 1 cm x 1 cm over the left parietal region of scalp and another lacerated injury of 1 1/2 cm x 1/2 cm x 1/2 cm over the occipital region of scalp. Ex.P.4 is the Wound Certificate.
5. She then examined Thirumalaiswami – P.W.5 at about 9.00 p.m and found lacerated injury of 3 cm x 1 cm x 1 cm running obliquely over the terminal inter phalangeal joint of right thumb. Extensor tendon was cut. There was fracture of terminal phalanx. Rc.P.5 is the Wound Certificate.
6. P.W.8 Muniammal was examined at about 10.40 p.m by P.W.9 who found a diffused contusion occupying over the lateral area of left ankle joint extending to the dorsal area of left foot and also multiple irregular abrasions over the left foot. Ex.P.6 is the Wound Certificate.
7. P.W.9 examined A.6 Marimuthu at about 10.55 p.m and found a lacerated injury of 4 cm x 1/4 cm x 1/4 cm over the right parietal region of scalp and also a contusion of 2 cm x 2 cm over the left shoulder. Ex.P.7 is the Wound Certificate.
8. P.W.11 – Dr.B. Thiagarajan, formerly Professor, Coimbatore Medical College Hospital,. Coimbatore received Ex.P.13 requisition from P.W.17 and commenced Post Mortem on the body of Chinnaswami at about 9.50 a,m on 24.5.91 and found the following injuries:
“1. An oblique stab injury on the front of abdomen in the contro 2 cms below and left of umbelicaus, 2.5 cms x 1 cm x watering abdominal cavity, with regular margins and upperend acute and lower and acute. On dissection the wound passes obliquely downwards and inwards 2.5 cms in the muscle plane and piercing the small intestine in two places each 2 cm x linear x through and through the lowmen in both walls and tear in the mesentery cutting the mesenteric vessels also the area full of extravasated blood clots, cavity of the abdomen contains 1250 gms blood, with clots. Intestine nal counts oozing. The wound situated 65 cm and 95 cms from the illiacascal junction.
2. An transverse cut injury chin 4.5 cms x 3 cms x bone deep skinflab downwards.
3. Oblique cut injury front of the forehead 6 x 0.5 cm x bone deep underlying LT frontal bone for 4 cms
4. An obligue cut injury left parietal 8 x 4 cms x bone deep skin flab downwards. Vertical cut injury in the top of scalp 9 x 0.5 cms x bone deep underlying a full of blood clots.
5. Oblique cut injury in the back of scalp 9 x 3 cms x bone deep skin flab downwards.
6. Incised wound on the left side hip oblique 4 cms x linear x muscle deep,.
7. Linear incised wound front of right thigh 9 cms x linear above downwards.
8. Abrasionn inner side of left head 4 x 3 cms
9. Four abrasions front of chest and right shoulder oblique measuring 4 x 1 shoulder, 3 x 1 cms three in number close to each other below the collar bone
10.Thre linear oblique contusions seen on the back of RT side 2 in the shoulder blade 8 x 2 cms, 6 x 1 cms separated by 3 cms one on the left shoulder blade and fore arm 10 x 2 cms.
11. Linear contusion oblique front and outer side middle lower third 15 x 2 cms
12. Abrasion below the knee right 3 x 2 cms.
13. Abrasion with surrounding contusion left knee 4 x 3 cms
14. Abrasion with contusion left leg front above ankle 4 x 2 cms
15. Abrasion forehead right close to eyebrow 5 x 2 cms.”
He issued Ex.P.14 Post Mortem Certificate with the opinion that the deceased died as a result of shock and hemorrhage due to stab injury No.1 with corresponding internal injures(Injuries to the small intestine and mesenteric vessels).
9. P.W.17 while continuing his investigation examined P.Ws.12 and 13 on 24.5.91. He also went to the scene of crime and prepared Ex.P.15 Observation Mahazar and drew a rough sketch Ex.P.2. He also caused the scene to be photographed. He also seized M.O.6 – patta knife; M.O. Thorny stick; M.O.13 series broken bricks;M,O.14 series stones; M.O.7 – blood stained mud; M.O.15 sample mud; M.O.4 blood stained knife; M.O.5 series broken bottles of a country bomb with a sack cloth; M.O.1 – cycle and another bottle covered a sack cloth – M.O.2 – with the country bomb under Ex.P.16 Mahazar in the presence of P.Ws.12 and 13. He also seized TVS 50 bearing Registration No.TN 414236(the same was returned to one Kumar through Court). At about 9.00 a.m P.W.7 returned to the Police Station, arrested A.1 to A.5. Since A.1 and A.2 suffered injuries, sent them with police memo to the Government Hospital, Udumalpet for treatment and the other accused were remanded to Judicial Custody.
10. P.W.10 Dr.Gowri Paramasivam, Civil Assistant Surgeon, Government Hospital, Udumalpet examined A.1 at about 5.30 p.m on 24.5.91 and found a lacerated wound of 2 cm x 1/2 cm x skin deep over the left forearm and a lacerated wound of 2 cm x 1 cm x skin deep over the left leg and also a contusion of 10 cm x 7 cm over the right calf region. Ex.P.11 is the Wound Certificate.
11. At about 5.50 p.m he examined A.2 and found a lacerated wound running obliquely in the upper part of left leg – 2 cm x 1/4 cm x skin deep and a lacerated wound 2″ beneath the above wound – 1 cm x 1/4 cm x skin deep and also a contusion of 2 cm x 1 cm over the right knee. Ex.P.12 is the Wound Certificate. Thereafter, A.1 and A.2 were also remanded to Judicial custody.
12. P.W.17 took up investigation in Cr.No.77/91 also and on 24.5.91 he examined P.Ws.15,13 and 14. He also examined A.1,A.2, A.3, A.4 and A.6 and other persons. On 25.5.91 he examined P.Ws.2,3,4,5 and 7 and recorded their statements. On 26.5.91 he examined P.W.8 and some others. He then forwarded the seized materials to Court. On 28.5.91 at about 9.00 p.m 6th accused was arrested and brought to the police station at about 10.00 p.m. He was remanded to custody on the next day. P.W.1 and some others were again questioned by P.W.17. Then P.W.17 also gave a requisition Ex.P.19 to the Court to send the seized objects for Chemical Analysis on 10.6.91. He examined P.W.11. On 29.6.91 he arrested A.7 at Kurichi Kottai at about 5.00 p.m and forwarded him for remand. On 13.8.91 he examined P.Ws.9 and 10. On 23.8.91 he further examined P.W.9 and on 29.8.91 after investigation he found that the case in Cr.No.77/91 is false on facts and therefore, he issued a referred charge sheet Ex.P.29. Thereafter, he was transferred from Madathu Kulam.
13. P.W.18 – who succeeded P.W.17 – took up further investigation on 5.10.91. He examined P.W.9 again. After completing investigation, he laid final report against the accused on 30.3.92 for offences punishable under Secs.147,148 and 302 IPC.
14. After the evidence of prosecution was over, the trial Judge questioned the accused under Sec.313 Cr.P.C to enable them to explain the circumstances appearing in evidence against each of them and their statements were also recorded.
15. The plea of the accused is that the workers of A.I.A.D.M.K and Congress started setting fire to the party office of D.M.K on 22.5.91 and the next day at about 5.30 p.m, P.Ws.1,3,4,5 and others came with dangerous weapons and attacked them. They would further say that the signature of A.6 was obtained in a blank paper that A.1 to A.6 were not there in the scene of crime and A.7 surrendered at Madathukulam police station and all are innocent. According to them, a false case has been filed against them due to political enmity. No witnesses were examined on the side of the defence.
16. The prosecution case that Chinnaswani died due to homicidal violence has been proved through P.W.11 – Dr.Thiagarajan, who did autopsy over the body of Chinnaswami. According to him, though Chinnaswami sustained as many as 17 cut injuries amongst those there were stab injuries, cut injuries, contusions and abrasions, Chinnaswami died due to the 1st injury viz., an oblique stab injury in front of abdomen passing downwards and inwards 2.5 cms in the muscle plane and piercing the small intestine in two places and tearing the mesenteric vessels. According to the doctor, this injury is fatal. Therefore, we have no hesitation to hold that Chinnaswami died due to homicidal violence which is also not objected to by the defence.
17. P.Ws.1,3,4,5 and 8 were examined by the prosecution to speak about the occurrence. P.W.8 turned hostile. P.W.1 in his evidence would state that the deceased Chinnaswami was surrounded by accused 1,2,5,6 and 7 and A.1 stabbed the deceased with spear on his head while A.2 and A.5 attacked him with thorny sticks on various parts of his body. It is his further evidence that the 6th accused also beat him with some weapon like aruval, stick etc., which he could not remember and the 7th accused stabbed the deceased with M.O.4 – knife on his abdomen. P.W.3 also witnessed the occurrence, but he saw the 1st accused assaulting the deceased with M.O.2 – Spear and thereafter A.2 and A.7 along with A.1 dragging the deceased inside. He could not see the entire occurrence because according to him, some ladies threw chilli powder in his face and he sustained some stone hits also and he fell down unconscious. P.W.4 corroborates the evidence of P.W.1 with regard to the overt acts of A.1,A.2 and A.5 insofar as the assault on the deceased is concerned. P.W.5 was able to see A.5 and A.7 attacking the deceased. In a case of this type it is very difficult to find corroboration of the overt acts of each accused from all the eye witnesses especially when the witnesses also sustained injuries during the course of same transaction. Insofar as P.W.1 is concerned, nothing has been elicited in the cross examination to discredit his testimony. P.Ws.3,4 and 8 are injured witnesses whose presence cannot be doubted.
18. The learned senior counsel Mr.V. Gopinath appearing for the appellant only contends that there was an aggression by the prosecution party and thereafter, the deceased and the prosecution witnesses sustained injuries. He based his argument on the statements of the deceased and P.Ws.3,4 and 5 before P.W.9 – doctor Rajammal, to whom they would say that the occurrence took place at about 5.30 p.m on 23.5.91. The learned senior counsel submits that there were two incidents – one at 5.30 p.m and the other at 6.30 p.m; but the Investigating Officers combined both the incidents into a single incident as if it happened at 6.30 p.m on that day. Of course P.Ws.3,4 and 5 would tell P.W.9 that they sustained injuries at 5.30 p.m at Sambalmedu Colony, Thirumurthi Nagar. P.W.8 is said to belong to the accused party. According to P.W.8 and A.6 , incident took place at 6.30 p.m as they have stated so to P.W.9. A.1 and A.2. informed P.W.10 – Dr. Gowri Paramasivam that they sustained injuries due to stone throwing and stick at about 5.30 p.m at Sambalmedu colony, Thirumurthinagar. Out of the three accused, who were examined by two doctors, A.6 would say to P.W.9 that he sustained injuries at about 6.30 p.m while A.1 and A.2 told P.W.10 that they sustained injuries at about 5.30 p.m. That means even the accused were not consistent with the time of occurrence . After all the injured witnesses as well as the accused are only villagers and they gave only the approximate time of incident to the doctors. Therefore, it cannot be said that there were two incidents especially when there is no consistence regarding the time of occurrence in between the accused themselves. Moreover, P.Ws.3,4 and 5 go to P.W.9 of their own accord with the help of their relatives and P.W.9 had seen them at 8.00 p.m and examined one after another. Under such circumstances, it is more probable that the incident should have taken place at 6.30 p.m as claimed by the prosecution.
19. The main contention of the learned senior counsel is that it was the prosecution party who started the assault and thereafter only the prosecution witnesses sustained injuries in a melee. We are unable to appreciate this argument in the teeth of the suggestion put to the injured witnesses during the course of their cross examination. What was suggested to them was that P.Ws.3,4 and 5 informed P.W.1 and others who were coming in the procession that they were assaulted by the accused and thereafter P.W.1 and his party went to the house of Periarasu and assaulted every body including ladies. This is the uniform suggestion put to all the injured witnesses. The suggestion only means that the injured witnesses were already assaulted before an assault was mounted on the accused party. But now the defence takes a volte-face and it is argued before us that the accused sustained injures first and the prosecution parties would have sustained injuries in the melee. Therefore, we are unable to accept the contention of the learned senior counsel.
20. In view of the above circumstances, we could not blame the prosecution for non explanation of the injuries sustained by the accused. The prosecution is bound to explain the injuries found on the accused only when it is established that both sides sustained injuries in the course of a single transaction. If one party sustained injury initially and thereafter the injured party retaliated after some time, two crimes would be registered and investigated. In such an eventuality the prosecution is not expected to explain the injuries sustained by the accused. Therefore, the further contention of the learned senior counsel that non explanation of the injuries on the accused by any of the eye witnesses is fatal to the prosecution has to be rejected out right.
21. The learned senior counsel further argues that there is discrepancy in the evidence of P.Ws.3,4 and 5 and they did not give cogent version regarding the overt acts of each and every accused. It is already stated by us that in a case of participation of large number of accused and in the light of the witnesses also sustaining injuries it may not be possible to each witness to give a parrot like version before Court regarding the overt acts of each and every accused. The presence of P.Ws.3,4 and 5 is proved by the injuries found on them. The evidence of P.W.1 cannot be disbelieved merely because he escaped the assault without sustaining injuries. As a matter of fact it was P.W.2 who rushed to the police station in a scooter and gave an information about the rioting even while the occurrence was taking place and pursuant to his information P.W.17 and his party came to the scene of crime by which time the occurrence was over and immediately P.W.1 who was present has given a statement Ex.P.1 at about 7.45 p.m, and the same came to be registered as First Information Report. Moreover, some of the accused were arrested then and there.
22. In view of this overwhelming evidence, we are unable to dislodge the prosecution case in spite of the persuasive argument of the learned senior counsel. Therefore, we hold that A.7 caused fatal injury on the deceased Chinnaswami while A.1,2,5 and 6 also assaulted Chinnaswami and caused injuries on him. Of course the learned trial Judge convicted A.1,A.2 and A.5 to A.7 for offence punishable under Sec.302 IPC. In view of a specific charge and also in view of specific evidence that Chinnaswami died due to injury to the abdomen which, according to the eye witnesses, was caused only by A.7, we are inclined to hold A.7 guilty of the offence punishable under Sec.302 IPC and A.1,A.2,A.5 and A.6 for offences punishable under Secs.302 read with 149 IPC, as they shared the common object of committing murder of Chinnaswami as members of the unlawful assembly. We also hold that the conviction of A.5 under Sec.147 and A.1,A.2,A.6 and A.7 under Sec.148 IPC under charge No.1 is also perfect in law and we have no reason to interfere.
23. Insofar as the conviction of A.7 under Sec.324 IPC on Charge No.5 for having caused knife injury to P.W.4 there is the evidence of P.Ws.1 and 4 who would say that the 7th accused stabbed P.W.4 and corresponding injury was also found by P.W.9. Therefore, we are inclined to uphold the conviction of A.7 under Charge No.5 for the offence punishable under Sec.324 IPC. Similarly since the accused Nos.1,2,5 and 6 were proved to be the members of the unlawful assembly, they are liable to be convicted under this section by invoking Sec.149 IPC and they were rightly convicted so by the trial Judge under Charge No.6.
24. Therefore, we uphold the conviction and sentence awarded to A.1,A.2,A.6 and A.7 under Sec.148 IPC; A.5 under Sec.147 IPC; A.7 under Sec.324 IPC and A.1,A.2,A.5 and A.6 under Sec.324 read with 149 IPC.. We also uphold the conviction and sentence imposed on A.7 under Sec.302 IPC but we alter the conviction and sentence on A.2,A.5,A.6, and A.7 from one under Sec.302 IPC simplicitor to one under Sec.302 read with 149 IPC. Ultimately, the appeal stands dismissed.