IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2010
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
Crl.A.Nos.186 & 504/2003
1.S.Sekar Appellant/A3 in Cr.A.186/03
2.E.Kannan
3.Murugan
4.Venkatesan
5.Balaji
6.Gopal
7.Mani
8.Kumarakuru
9.Velayudam
10.Ranganathan
11.Dayalan Appellants/A1, A2, A4 to
A11 in Cr.A.504/2003
Vs
State by Inspector of Police
Kanchi Taluk Police Station
Kancheepuram Respondent in both Appeals
Prayer:- These Criminal Appeals are filed against the judgement dated 23.01.2003 passed in SC.No.48/2001 by the learned Additional Sessions Judge (FTC) Kancheepuram, convicting and sentencing the appellant/A1 for the offence under Section 148 of IPC to undergo four years Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two weeks Rigorous Imprisonment and for the offence under Section 324 of IPC (two counts) to undergo four weeks of Rigorous Imprisonment and to pay a fine of Rs.1500/-, in default to undergo three months Rigorous Imprisonment and convicting the Appellant/A3 for the offence under Section 147 of IPC to pay a fine of Rs.300/- in default to undergo two weeks Rigorous Imprisonment and for the offence under Section 436 of IPC to undergo three years of Rigorous Imprisonment and to pay a fine of Rs.10000/-, in default to undergo three months Rigorous Imprisonment and convicting and sentencing the Appellants /A2, A4 to A11 for the offence under Section 147 of IPC to pay a fine of Rs.300/-, in default to under go two weeks Rigorous Imprisonment and ordering the sentences to run concurrently.
For Appellant : Mr.J.Siva Ganesh
For Respondent : Mr.A.Saravanan, GA
JUDGEMENT
These Criminal Appeals are filed against the judgement dated 23.01.2003 passed in SC.No.48/2001 by the learned Additional Sessions Judge (FTC) Kancheepuram, convicting and sentencing the appellant/A1 for the offence under Section 148 of IPC to undergo four years Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two weeks Rigorous Imprisonment and for the offence under Section 324 of IPC (two counts) to undergo four weeks of Rigorous Imprisonment and to pay a fine of Rs.1500/-, in default to undergo three months Rigorous Imprisonment and convicting the Appellant/A3 for the offence under Section 147 of IPC to pay a fine of Rs.300/- in default to undergo two weeks Rigorous Imprisonment and for the offence under Section 436 of IPC to undergo three years of Rigorous Imprisonment and to pay a fine of Rs.10000/-, in default to undergo three months Rigorous Imprisonment and convicting and sentencing the Appellants/A2, A4 to A11 for the offence under Section 147 of IPC to pay a fine of Rs.300/-, in default to under go two weeks Rigorous Imprisonment and ordering the sentences to run concurrently.
2. The case of the Prosecution is as follows:-
a. PW.1 Harikrishnan, PW.2 Sundaramurthy, PW.4 Jayalakshmi and PW.5 Thulasi are the sons and daughters of PW.3 Annammal. On 13.3.1999 PW.5 went to the lake for washing cloths. On that day, at 3.00 p.m., one Mohan, son of one Balu Naicker, who is belonged to the same area, waylaid PW.5 and misbehaved with her and PW.5 escaped from him and came to her house and told about the same to her mother PW.3. Subramani, the father of PW.5 on 14.3.1999 went to the Panchayatars to inform about the same. On that day at 7.00 a.m. Balunaicker came to the house of PW.3 and offered to give compensation for the said incident and told not to inform about the same to the Panchayatars. At that time, the accused persons came there with weapons viz. spade, sticks and club. A1 attacked PW.2 with spade MO.1 on his face and PW.4 warded off the said attack. A1 also attacked PW.1 with a stick on his shoulder, due to which, PW.1 fell down. A2 attacked PW.4 with a stick on her back. A5 and A4 attacked PW.4 with hands. A3, A7 and A8 attacked PW.3 and PW.4 with sticks. A5 attacked PW.4 with a stick on her wrist. A3 took the kerosene light Mo.2 from the house of PW.3 and poured kerosene on the thatched hut and set fire and the thatched hut fully was burnt and destroyed. PW.1 to PW.5 came out of the hut and ran away by raising alarm. The value of the damaged articles is Rs.70,000/-. The injured persons went to the Hospital for treatment. PW.1 went to the Kancheepuram Taluk Police Station and gave the complaint Ex.P1.
b. On receipt of information from the Sub Inspector of Police, PW.9 Fire Officer came there in a fire extinguishing vehicle and extinguished the fire and assessed the damage caused to the articles at Rs.9000/-.
c. PW.8 Doctor Sathya Narayanan gave treatment to PW.4, PW.2 and PW.3 and issued accident registers Ex.P6, Ex.P7 and PW.3 Ex.P8 and found the following injuries:-
“PW.4 Jayalakshmi:-
1.A contusion 10 x 8 cm in the left back.
2.A contusion 8×8 cm on the left side gluteral region.
3.A contusion 6×4 cm on the right shoulder
4.C/o Bleeding P.V.
5.C/o pain all over the body.
PW.2 Sundaramurthy:-
1. A lacerated wound 3×1/4×1/4 cm over the left side of upper lip.,
2.An abrasion 1-1/2 x 1/4 over the nose.
3.A contusion 4×3 cm on the right cheek.
4.C/o pain left upper arms.
PW.3 Annammal:-
1. A contusion 10×8 cm on the left side of left thigh.
2.A contusion 8×6 cm with an abrasion 1-1/2×1 cm over the posterior side of left forearms.
3.C/0 pain epigastrium.”
c. On receipt of Ex.P1 complaint from PW.1, PW.7 the Head Constable attached to the said Police Station registered a case in Cr.NO.205/1999 for the offences under Sections 147, 148, 323, 324, 307 and 436 of IPC and prepared FIR Ex.P5 and handed over the documents to PW.11 the Inspector of Police for further investigation. PW.11 took up the case for further investigation and went to the place of occurrence on 14.9.1999 and prepared observation mahazar Ex.9 and prepared a rough sketch Ex.P10 in the presence of the witnesses Charles and Venkatesan and seized kerosene light, stick, stainless steel house hold articles and ropes, spade under a mahazar Ex.P11 in the presence of the witnesses and recorded their statements and examined PW.9 Fire Officer and recorded his statement. On 16.3.1999 PW.11 went to the Government Hospital and examined the witnesses Jayalakshmi, Annammal, Sundaramoorthy and recorded their statements and thereafter arrested the accused and sent them for judicial custody and also examined the Doctor who gave treatment to the injured persons and recorded his statement. On 18.8.1999, PW.11 after completing investigation, filed a final report against the accused under Sections 147, 148, 436, 307 of IPC and 4 of the Tamil Nadu Public Properties Act. IPC.
3. The case was taken on file in SC.No.48/2001 by the learned Additional Sessions Judge (FTC) Kancheepuram and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 11 witnesses (PW.1 to PW.11} and also relied on Exs.P1 to P12 and eight material objects (Mos.1 to 8).
4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.
5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.
6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.
7. Mr.J.Siva Ganesh, the learned counsel for the Appellants pointing out to the previous enmity, the witnesses had against the accused persons, that a criminal case is pending against PW.1, her father, her brother Gurumurthy on a report given by A1, strenuously argued that the accused persons have been falsely implicated in the case and also pointed out to certain contradictions in the testimonies of PW.1 to PW.5, who according to him, are all highly independent witnesses and contended that it is not safe to rely upon such evidence.
8. On the other hand, the learned Government Advocate supported the judgement of the Trial Court, by placing reliance on the evidence adduced by the Prosecution, which according to him is cogent and reliable.
9. It is settled law that when the evidence of the eye-witnesses is found reliable, the benefit of certain infirmities or minor contradictions which are not vital cannot be given to the accused. In this case, PW.2 Sundaramoorthy, PW.3 Annammal and PW.4 Jayalakshmi are the injured witnesses. Their evidence clearly indicated that PW.2 was attacked by A1 on his face, PW.3 and PW.4 was assaulted with hands by A4 and A5 and A2 attacked PW.3 with a club. The testimony of PW.2 and PW.4 are consistent with the medical evidence and no material is elicited to discard their evidence. The evidence revealed that PW.5, the daughter of PW.3 was molested by one Mohan, who is the son of Balu Naicker and on being informed by PW.5, her father went to the Panchayatars for taking action against the said person. It is seen that Balu Naicker had come in person to the house of PW.3 and had requested the Prosecution party not to insist for holding any Panchayat. According to the witnesses at that time, all the accused came to their house and started attacking PW.2 to PW.4 with spade and wooden log.
10. The Prosecution witnesses PW.1 to PW.5 have stated that in the course of said attack, A3 Sekar went inside the house of PW.1, brought MO.2 lamp, poured the kerosene over their thatched house and lit fire to the house. It is seen that on receiving information, fire engine had come to the spot and they have extinguished the fire. PW.9 Fire Officer has spoken to the said fact and has also given the value of the damaged articles as Rs.9000/-. The Prosecution has proved by adducing evidence that the house of PW.1 to PW.5 had been destroyed by the act of A3 who had set fire to their house.
11. During the cross examination, PW.1 has stated that on being assaulted by the accused, PW.4 got enraged, snatched the spade from one of the accused and attacked A1 and A2, as a result of which, they also sustained injuries. There is a plausible and acceptable explanation from the Prosecution side for the injuries sustained by the accused persons and the fact that the entire incident had occurred near the house of PW.1 would evidently show that it is the accused persons who have come to the place of occurrence with weapons with an intention to attack the Prosecution witnesses. The testimony of the injured witnesses do not suffer from any material infirmities and the narration of the incident by them before the court is cogent and reliable.
12. It is well settled that the presence of the injured witnesses at the place of occurrence cannot be doubted and their evidence cannot be discarded merely because of certain minor contradictions in their evidence. The presence of PW.2 to PW.4 and the fact that they received injuries are mentioned in the FIR, which was lodged by PW.1 on the same day at 11.30 hours. The occurrence had taken place at 7.30 hours and the distance between the place of occurrence and the Kancheepuram Taluk Police Station where the FIR is lodged is about 7 kms. There is no delay in giving the FIR. In the FIR, PW.1 has narrated all the details of the incident, which is corroborated by evidence of the other witnesses.
13. The evidence led by the Prosecution clearly established that PW.1 to PW.5 were residing in the said thatched hut, which was set fire by A3. The learned counsel for the Appellants pointing out to the evidence of PW.5 and argued that the contradictory version stated by her that quarrel between the accused persons and the Prosecution party erupted only after setting of fire raised a doubt as to whether the incident occurred as alleged by the Prosecution and contended that the Prosecution witnesses had motive to falsely implicate the accused in view of previous enmity. I am not impressed by this submission, as PW.1 to PW.4 have consistently and cogently have deposed that the accused persons first assaulted them and in the course of said assault, particularly A3 set fire to the house after pouring kerosene from a small lamp taken from the house of PW.1. There is no reason to discard their evidence more so, when their evidence is corroborated by medical evidence. An analysis of the sequence of events apparent from the records would clearly reveal that the accused have assaulted PW.2 to PW.4 and PW.4 enraged over assault made on her has attacked A1 and A2. While in the course of such attack, A3 indulged in setting fire to the house.
14. The learned counsel for the Appellants raised a doubt regarding the presence of PW.1 at the place of occurrence. It is not disputed that PW.1 is the brother of PW.2, PW.4 and PW.5 and son of PW.3 and residing in the same house. There is nothing improbable in PW.1 being present at the place of occurrence at the relevant time and it is relevant to note that nothing was brought out in his cross examination to disbelieve his testimony. Hence, I do not find any merit in the submission made by the learned counsel for the Appellant. The ocular evidence of PW.1 to PW.4 and the medical evidence coupled with the evidence of PW.9, the Fire Officer would lead to an irresistible conclusion that the Appellants are guilty of the charges levelled against them and the court below has rightly convicted all of them for the charged offences.
15. The learned counsel for the Appellants submitted that having regard to the facts and circumstances of the case and also since eleven years have elapsed since the date of occurrence, leniency may be shown, pointing out that both the parties are living in peace and no further untoward incident had taken place.
16. It is evident from the records that all the accused are of young age having their wives and small kids and they are the only earning member of their families. The Appellant/A3 in CA.No.186/2003 is a Mason by profession and he is a young married man having children and he had been in jail for more than 30 days and the incident is of the year 1999. Considering the nature of allegations, the subsequent developments referred to above and their age and the facts and circumstances of the case, I am of the considered view that ends of justice would be met by confirming the conviction of the Appellants, but however reducing the sentences to the period already undergone by them.
17. In the result, these Criminal Appeals are partly allowed. The conviction of the Appellant/A3 is confirmed and sentence of A3 is reduced to the period already undergone by him and A3 is imposed an additional fine of Rs.10,000/-, which shall be paid as compensation to PW.3, the owner of the house. In so far as the other Appellants/A1, A2, A4 to A11 are concerned, conviction is confirmed and the sentence is reduced to the period already undergone by them and in all other respects, the judgement of the court below shall stand unaltered.
Srcm
To:
1.The Additional Sessions Judge (FTC) Kancheepuram
2.The Public Prosecutor, High Court,
Madras