IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.11.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.9 OF 2008 1.Settu 2. Selvam 3. Kasinathan 4. Karuppaiah 5. Devar 6. Ulaganathan 7. Rajangam 8. Minor 9. Ramar 10. Sakthivel .. Appellants Vs. State rep. by Inspector of Police, Kunnam Police Station, Perambalur District .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal District and Sessions Judge, Perambalur in S.C.No.111 of 2002 dated 03.12.2007. For Appellants : Mr.Sirajudeen for M/s. Siraj & Siraj For Respondent : Mr.Babu Muthu Meeran, APP - - - - JUDGMENT
(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)
This appeal is directed against the judgment of conviction and sentence passed by the Trial court against the accused A1 to A3, A5,A6,A10 to A14 u/s.147,148,323,324,325,336,302,302 r/w.149 I.P.C as follows:
Accordingly the lower court committed and sentenced A1,A5,A6 and A10 to undergo life imprisonment with fine of Rs.3000/- in default to suffer rigorous imprisonment for three months u/s.302 I.P.C; to undergo one year rigorous imprisonment for each for each of the offences u/s.147 and 323 I.P.C.
As against A2 to undergo life imprisonment and to pay a fine of Rs.3000/- and to undergo rigorous imprisonment for 3 months for the offences u/s.302 r/w.149 I.P.C and to undergo rigorous imprisonment for one year each for the offences u/s.148,323 (2 counts), one year (each count) and 324. I.P.C.
As against A3 to undergo life imprisonment and pay a fine of Rs.3000/- in default to suffer rigorous imprisonment for three months for the offence u/s. 302 r/w.149 I.P.C and to undergo one year rigorous imprisonment for each of the offence u/s. 147 and 323 I.P.C and also to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- in default to suffer rigorous imprisonment for three weeks for the offence u/s.325 I.P.C.
As against A11 to A14 and to undergo life imprisonment and to pay a fine of Rs.3000 in default to suffer rigorous imprisonment for three months for the offence u/s. 302 r/w. 149 I.P.C and to undergo rigorous imprisonment for one year for the offences u/s.147 and 323 I.P.C. and all the sentences are directed to run concurrently.
2. The case against A1 to A15 was taken on file by the Sessions court and after a full fledged trial, all the accused were acquitted on 05.09.2003 and aggrieved by the said judgment of acquittal, P.W.2,wife of the deceased Ravichandran had preferred revision in Crl.R.C.No.1747/2003 in which this court had confirmed the acquittal against A4,A8,A9 and A15 and set aside the acquittal of A1 to A3, A5 to A7, A10 to A14 and ordered de-novo trial of those accused. Accordingly the lower court conducted the de-novo trial against A3,A5 to A7, A10 to A14 and pronounced the judgment of conviction and sentence against the accused as stated above. Aggrieved by the conviction and sentence passed by the Trial court, the accused A1 to A3, A5, A6, A10 to A14 have preferred the present appeal.
3. The gist of the case would be as follows:-
On 27.04.2000, at about 16.00 hours in Kunnam main road, A1 to A15 armed with deadly weapons unlawfully assembled to cause the murder of the witness Jayaveeran due to previous enmity and assaulted the witness Jayaveeran with wooden log on his head and caused grievous injuries and when the deceased Ravichandran intervened to stop the clash, A1 assaulted on the head of Ravichandran with wooden log and A5 assaulted him with reaper on his right eye brow, A6 kicked him with his leg, A7 assaulted him with reaper on his left leg and A8 pelted the stones on his left shoulder, right forehead and right hand. A10 stabbed him with hand on his nose and caused injuries to the said Ravichandran. A11 assaulted Jayakodi wife of Ravichandran when she intervened to stop the clash and he attacked on her head with wooden log. A2 assaulted her with wooden log on her leg. A13 also assaulted her with wooden log on her right hand and caused simple injuries. When the witness Subramanian intervened to stop the clash A2 assaulted him with wooden log on his left shoulder, A3 assaulted with wooden log on his head, A7 assaulted on his left rib with wooden log, A6 assaulted him with hand on his back and A7 assaulted him on his right hand, left thigh, leg with the wooden log. A10 assaulted him with his hand on his chest and caused injuries to him. When the sister of Jayakodi namely Latha came to intervene and end the clash, she was assaulted by A2 with wooden log on her leg. A4 assaulted her with wooden log on her chest. A14 assaulted on her left leg with wooden log. A15 pelted stone on her right hand shoulder and caused injuries. By such activities, A1 to A15 have committed the offences punishable u/s.147,148,149,323,324,336,325,307 and 302 I.P.C. Charge sheet was filed against all the accused A1 to A15. Accordingly a case was taken on file and the same was committed to the Principal District and Sessions Judge and after a full fledged trial all the accused were acquitted. As already stated Criminal Revision Crl.R.C.No.1747/2003 was allowed except the acquittal order passed in favour of A4,A8, A9 and A15 and de novo trial was ordered against A1 to A3, A5, A6, A7, A10 to A14. During the trial A7 upsconded and the case against him was separated and trial continued against rest of them.
4. The prosecution had examined its Witnesses P.W.1 to P.W.17 and produced Exs.P1 to P.22 and M.Os.1 to 5 in order to substantiate its case.
5. The case of prosecution as spoken by the prosecution witnesses in short would be as follows:
(a) P.W.2 is the wife of the deceased Ravichandran. P.W.2,P.W.3, P.W.5 and P.W.7 are the injured witnesses. According to their evidence on 27.04.2000, at about 16.00 hours at Kunnam main road, when they were present there the accused A1 to A4 attacked Jayaveeran and he had prevented with his hand and on seeing that, the husband of P.W.2 namely Ravichandran had intervened to ease the situation, A1 beat her husband with wooden log on his head. A5 assaulted him on his forehead A10 fisted him with his hand. A6 kicked him on his testis, A14 and another attacked with stone all over his body. A11 assaulted with wooden log on her husband. A12 and A13 also attacked him with wooden log, when her younger brother-in-law Subramanian (P.W.3) came, to rescue them A2 to A5 attacked him with the wooden log. Her co-sister Latha (P.W.5) came to ease the situation and she was also beaten by the accused.
(b) The other witnesses had spoken to corroborate the evidence of P.W.2. P.W.4 Doctor who had examined the injured witnesses including the deceased had issued A.R. copies in Exs.P.1 to P.6. Immediately, after the admission of P.Ws.2, 3, 5 and injured Ravichandran and the complainant Jayaveeran, the police recorded the statement from Jayaveeran and had registered the case in Cr.No.153/2000 u/s. 323,324, 307 I.P.C. On that day at about 07.00 p.m , an intimation of the death of injured Ravichandran was received and the F.I.R was altered into Sec.302 I.P.C and alteration report Ex.P.12 was prepared and sent to court. P.W.16-Investigating Officer had visited the scene of occurrence and prepared Observation Mahazar Ex.P.17 and Rough Sketch Ex.P.18 in the presence of P.W.11. P.W.11 had conducted the inquest on 29.04.2000 from 08.30 a.m to 11.30 a.m on the dead body of Ravichandran and prepared Inquest report Ex.P.19 in the presence of Panchayatars and arranged to send the dead body for autopsy.
6. On 29.04.2000, at about 01.25 p.m P.W.15- Dr.Vijayalakshmi received the requisition from the Investigating Officer for conducting autopsy on the dead body of Ravichandran and commenced post mortem at 02.00 p.m. After completion, the Doctor had given an opinion that the death would have been occurred due to the head injury involving the vital organ brain. As already said the P.W.4 had examined the witnesses and had issued A.R. copies-Ex.P.1 to P.6. The said Doctor P.W.4 had also examined the accused A6,A10,A14,A3, A1 on the injuries found on them and found them as simple in nature and the respective A.R. copies are produced as Ex.D1 to D5. Thereafter, P.W.16 recovered blood stained dress from the dead body from the mother of the deceased Ravichandran under Ex.P.20. On 30.04.2000, at about 11.00.a.m the Investigating Officer arrested the accused A3,A6,A10, A14 and A1 at about 12.30 p.m at Maruthaiyan Kovil. He arrested A9 on 03.05.2000, at PeriyammapalayamMariamman Kovil and he recorded his confession in the presence of the witnesses and in pursuance of his confession leading to the recovery of wooden log near a bush at Kunnam Padachiyar kuttai near tamarind tree bush wooden log was seized under Mahazar Ex.P.14 and remanded him to judicial custody. The accused A10, A1 and A15 surrendered before Lalgudi court on 05.05.2000 and was put in Jayakondam sub-jail and the accused A4 surrendered before Jayakondam Judicial Magistrate and was put in the said sub-jail. The blood stained dress belonging to Subramanian was recovered through Ex.P.22 Mahazar. P.W.17 had taken up the investigation from P.W.16 and obtained wound certificate for the witnesses and recorded the statement of the Doctor and completed the investigation and filed the charge sheet on 20.01.2001.
7. On the basis of evidence adduced by the prosecution witnesses, the accused were examined u/s.313 Cr.P.c and they denied the evidence as false and they had also chosen to examine D.W.1 to D.W.3 as defence witnesses.
8. Trial court has considered the evidence adduced on either side and the arguments advanced by both parties and had ended conviction against A1 to A3,A5,A6,A10 to A14, on the charges framed against them. The appellants have preferred the appeal challenging the said judgment of conviction and sentence passed against them.
9. Heard Mr.Sirajudeen, learned counsel for the appellants. He would submit in his argument that the lower court had not looked into the evidence of the Investigating Officer on the admission that the accused had also sustained injuries in the said occurrence and without coming to a definite conclusion that the injuries sustained by the accused explained by the prosecution, the lower court ended in conviction against the accused persons which is against law. He would further submit in his argument that the origin of occurrence had started only from the prosecution witnesses and the deceased and the prosecution witnesses were responsible for the incident and also for the injuries caused against the accused persons. He would further submit that the lodging of F.I.R was in a delayed manner which was not explained by the prosecution and this would create doubt and the same was not noted by the lower court. The witnesses examined on the side of the prosecution were all relatives to the victim and inimical towards the accused persons and the corroboration from the independent witnesses are lacking for the proof commission of crime against the accused.
10. He would also submit that the injuries said to have been sustained by the deceased as spoken by the witnesses have not been found by the Doctor, especially on his nose and private parts. He would further submit that the evidence of the defence witnesses have not been discussed by the lower court, what the prosecution witnesses had spoken for the improvement of evidence while they were deposing before court. The lower court ought to have disbelieved the evidence of prosecution witnesses when especially enmity was prevailing in between the parties. He would also submit that Investigating Officer had not explained about the case filed against the prosecution witnesses in Cr.No.152/2000 on the file of Kunnam Police Station and therefore, the conviction and sentence passed by the Trial court against the appellants are not sustainable and they may be acquitted and appeal be thus allowed.
11. Heard the learned Additional Public Prosecutor. We have also taken note of his submissions. According to his argument the witnesses produced on the side of the prosecution had spoken correct versions and the overt act spoken against the accused persons in causing the injuries over the deceased person as well as the injured witnesses P.Ws.2, 3 and 5, was corroborated by the evidence of P.W.4-Doctor. The case filed against the prosecution witnesses in Cr.No.152/2000 on the Kumaran Police Station had been referred as to mistake of fact and the injury sustained by the accused are simple in nature. He would also submit that the arrest of A2 and the confession given by him leading to recovery in Ex.P.13, and the seizure of wooden log through Seizure Mahazar Ex.P.14 would go to show that the accused were involved in the offences charged against them. He would also submit that the defence of the accused would categorically show that they did the have attack on the prosecution witnesses and the deceased by way of self defence and they did not commit any offences. However, even if true the evidence would go to show that they exceeded their limit of self defence and had caused brutal injuries on the deceased and other prosecution witnesses and therefore the evidence of prosecution witnesses should have been accepted and the judgment of conviction and sentence passed by the lower court may be confirmed and the appeal may be dismissed.
12. On giving anxious thoughts to the arguments submitted on either side, we could follow that the alleged occurrence had taken place on 27.04.2000 at about 16.00 hours in Kunnam main road and a clash had taken place in between the accused persons and the prosecution witnesses including the deceased over the previous enmity. According to the case of the prosecution, A1 to A15 had come with wooden logs, stone and other weapons and had caused serious injuries against P.Ws.2,3 and 5 and also against one Ravichandran the husband of P.W.2 and had caused serious injuries on him. According to the evidence of P.W.2, A1 had assaulted with wooden log on the head of the deceased Ravichandran, A5 attacked with the wooden log on the fore head and A10 fisted him with his hand and A6 kicked on his testes A14 had assaulted with stone all over his body. A12 attacked with wooden log on her person. Doctor who had examined the said Ravichandran had issued A.R. copy in Ex.P.1. The injuries said to have been committed by A1 and A5 are corroborated by the said Accident Register Ex.P1. During the cross examination of P.W.2, it has been suggested by the defence that the occurrence had taken place in the Kunnam Bazaar and at that time the husband of P.W.2 had attacked A1 on his head and kicked A1 on his testis and A1 fainted and in order to save A1, A6,A10, A14 , A3 had approached them and P.W.3 Subrmanian ,one Jayaveeran had also joined with the husband of P.W.2 in assaulting A1 and in the course of saving A1, the said accused A6, A10,A14 and A3 had assaulted against the deceased and in the incident A6,A10,A14 also sustained injuries.
13. It is further suggested to P.W.3 that P.W.2 and P.W.5 sustained injuries due to stone throwing in the said occurrence and the accused were not responsible for the said injuries.
14. On a careful perusal of the said suggestion, it can be inferred that the occurrence is admitted and the accused have only pleaded that the injuries sustained against the accused were only as self defence. When the occurrence has been admitted, whether it is the accused who had exceeded the limit of self defence and caused serious injuries at P.Ws.2,3 and 5 and also against the deceased Ravichandran. The Post Mortem Certificate issued by P.W.15 Doctor, which is produced as Ex.P.16. It would go to show the death of Ravichandran was caused due to the head injury which affected the vital organ brain. The Doctor also had opined in Ex.P.1- Accident Register that the said Ravichandran was assaulted near Casurina club Kunnam main road on 27.04.2000. Therefore, the injuries sustained by the deceased Ravichandran would categorically show that the version of the defence that they have acted as self defence to the attack against the said Ravichandran, Jayakodi and Subramanian appears to be doubtful. It is also elicited in the cross examination of Investigating Officer – P.W.17 that the case registered against the prosecution witnesses in Cr.No.152/2000 was referred as to the mistake of fact. A.R. copies issued by P.W.4 for the injuries sustained by the accused A1,A3,A6,A10,A14 in Ex.D5,D4,D1 to D3 disclose only simple injuries sustained by them. Admittedly enmity prevailed in between two groups of persons. If really the accused had elected to attack on P.Ws.2,3,5 and the deceased Ravichandran as self defence they would not have gone to the extent of hitting against Ravichandran’s head which would be resulting in death of Ravichandran. When the injury sustained by the accused A1,A3,A6,A10,A14 are simple in nature and the injury sustained by the deceased Ravichandran and the P.Ws.2,3 and 5 are found in excessive the theory of self defence cannot be accepted at any stretch of imagination.
15. However, when we scrutinise the evidence of the prosecution, we could see that the injuries caused by A1,A5,A10,A6,A12 and A14 are not serious injuries except the lethal blow given by A1 on the head of Ravichandran with a wooden log. Therefore, the said overtact of A1 alone caused the death of the said Ravichandran which is also supported by the medical evidence.
16. In these circumstances, we are of the considered view that the roping of A10,A14,A12 and the accused A2 in the charge of murder of the deceased Ravichandran cannot be sustained. Similarly the charge u/s. 302 against A11 is also not maintainable since there is no evidence came against him from the mouth of the prosecution witnesses.
17. As regards the attack against the P.Ws.2,3 and 5 are concerned the evidence of P.W.2,3 and 5 would go to show that A13 attacked on the right head of P.W.2. A2,A3,A5 attacked P.W.3 with wooden log. Her evidence was corroborated by the P.W.3 another injured witness. P.W.5 had spoken to the effect that she was assaulted by A3,A6 and A14 and she also sustained injuries. The A.R. copy of P.W.2,3 and5 are produced as Exs.P2,P5 and P6 respectively. These documents coupled with evidence of P.W.4, the Doctor who issued those certificates categorically corroborate the evidence of P.Ws2,3 and P.W.5. In the aforesaid circumstances, the accused A2,A3,A5,A6,A13 and A14 are found to have committed the offence for causing such of these injuries to the witnesses P.Ws.2,3 and 5. As regards the injuries caused to P.W.3 and P.W.2 are concerned they were found to have caused by weapons and therefore A2,A3,A5,A14 have been attracted u/s. 324 I.P.C. As regards the injury caused to P.W.5 by A6 is concerned it is only a simple injury caused through hand. Therefore A6 is found to have committed offence u/s. 323 I.P.C.
18. In the evidence adduced by the prosecution there was nothing to indicate common intention among the accused persons to commit a crime of murder along with A1. Especially the incident was originated in a clash in between both the parties. The aforesaid appraisal of evidence and findings would go to show that the conviction and sentence passed by the lower court against all the appellants u/s. 302 r/w. 149 I.P.C found to be incorrect except the 1st accused. Therefore it has become necesary for us to interfere with the judgment of conviction and sentence passed by the lower court and to set aside the same with the following modifications.
19. Accordingly the appeal is partly allowed and the conviction and sentence passed by the Trial Court are set aside and modified as thus:-
A10,A11 and A12 are acquitted from all the charges framed against them and they are set at liberty. Bail bond executed by the appellants/accused shall stand cancelled. Fine amount if any paid by them shall be refunded.
A1 is convicted and sentenced u/s. 302 I.P.C to undergo life imprisonment and to pay a fine of Rs.3000/- in default to under go R.I for three months.
A2,A3,A5,A13 and A14 are each convicted and sentenced to undergo R.I for two years each u/s. 324 I.P.C.
A6 is convicted and sentenced to undergo six months simple imprisonment for the offence u/s. 323 I.P.C.
Period of sentence passed against the accused A1,A2,A3,A5,A6,A13 and A14 shall run concurrently and the period of detention already undergone are ordered to be set off. Since the conviction and sentence passed by the lower court against A1,A2,A3,A5,A6,A13 and A14 in respect of other offences except those mentioned above are set aside and they are acquitted from the said respective charges, the fine amount paid by the accused for those offences in which they are acquitted ordered to be refunded.
The appellants/accused A2,A3,A5,A13,A14 are on bail. The bail bonds executed by them shall stand cancelled forthwith and the learned Principal District and Sessions Judge, Perambalur is directed to take steps to secure the presence of the appellants/accused A2,A3,A5,A13 and A14 and commit them to jail to undergo the remaining period of sentence if any to be served. The period of sentence already undergone by them shall be given set off.
kpr
To
1. The Principal District and Sessions Judge,
Perambalur
2. Inspector of Police,
Kunnam Police Station,
Perambalur District.
3. The Public Prosecutor,
High Court,
Chennai