{"id":260948,"date":"2011-02-04T00:00:00","date_gmt":"2011-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vyahulam-vs-inspector-of-police-on-4-february-2011"},"modified":"2016-07-28T11:10:23","modified_gmt":"2016-07-28T05:40:23","slug":"vyahulam-vs-inspector-of-police-on-4-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vyahulam-vs-inspector-of-police-on-4-february-2011","title":{"rendered":"Vyahulam vs Inspector Of Police on 4 February, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
Vyahulam vs Inspector Of Police on 4 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 04\/02\/2011\n\nCORAM\nTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN\nand\nTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAM\n\nCriminal Appeal (MD) No.484 of 2003\nCriminal Appeal (MD) No.687 of 2003\nCriminal Appeal (MD) No.787 of 2003\nand\nCriminal Appeal (MD) No.942 of 2003\n\nCrl.Appeal (MD)No.484\/2003\n\nVyahulam                          ..  Appellant\n\t\t\t\t\nVs.\n\nInspector of Police\nAaravyal Police Station,\nDevakottai                         ..  Respondent\n(Crime No.10\/97)\n\n\nCrl.Appeal (MD)No.687\/2003\n\nSebastiammal                       ..  Appellant\n\t\t\t\t\nVs.\n\nState represented by its\nInspector of Police\nAaravyal Police Station,\nSivaganga District.                ..  Respondent\n(Crime No.10 of 1997)\n\n\n\nCrl.Appeal (MD)No.787\/2003\n\n1.Joseph\n\n2.Paulraj\n\n3.Karunanidhi\n\n4.Arulanandhi                      ..  Appellants\n\t\t\t\t\nVs.\n\nInspector of Police\nAaravyal Police Station,\nSivaganga District.                ..  Respondent\n(Crime No.10 of 1997)\n\nCrl.Appeal (MD)No.942\/2003\n\n1.Arulrai\n\n2.Savarimuthu\n\n3.Johnpeter\n\n4.Amalanathan                      ..  Appellants\n\t\t\t\t\nVs.\n\nInspector of Police\nAaravyal Police Station,\nSivaganga District.                ..  Respondent\n\nPRAYER\n\nAppeals filed under Section 374<\/a> of Cr.P.C. against the judgment of\nconviction and sentence dated 26.02.2003 made in S.C.No.20 of 1998 by the\nAdditional Sessions Judge-cum-Chief Judicial Magistrate, Sivaganga.\n\n!Mr.M.Kumar\t     ... for appellants\/A1, A4, A6\n                         and A7 in Crl.A.(MD)No.\n                         787 of 2003.\nMr.A.Padmanaban      ... for appellant\/A2 in\n                         Crl.A.(MD)No.484 of 2003\nMr.Ravi\nfor M\/s.R.Karthikeyan... for appellant\/A5 in\n                          Crl.A.(MD)No.687 of 2003\nMr.P.Rathinam        ... for appellants\/A3, A8 to  \t\n\t\t\t A10 in Crl.A.(MD)No.942 of 2003\nMr.M.Daniel Manoharan... for respondent in  all\nAddl.Public Prosecutor   the above appeals\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was
\ndelivered by T.SUDANTHIRAM,J.)<\/p>\n
\tThe appellants in all the appeals are the accused in S.C.No.20 of 1998 on
\nthe  file of the Additional District Judge-cum-Chief Judicial Magistrate,
\nSivaganga.  By judgment dated 26.2.2003 in S.C.No.20 of 1998, they stand
\nconvicted and sentenced as follows:-\n<\/p>\n
Charge
\nRank of the accused
\nConviction under Section\/s
\nSentence for each of the accused
\n1st
\nA1 to A10
\n148 IPC<\/a>
\n2 years rigorous imprisonment
\n2nd
\nA1 to A10
\n449 IPC<\/a>
\n2 years rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment
\n3rd
\nA3
\n302 IPC<\/a>
\nLife imprisonment and fine of Rs.5,000\/-, in default, six months rigorous
\nimprisonment
\n4th
\nA1, A2, A4
\n302 r\/w 34 IPC<\/a>
\nLife imprisonment and fine of Rs.5,000\/-, in default, six months rigorous
\nimprisonment
\n5th
\nA5 to A10
\n302 r\/w 149 IPC<\/a>
\nLife imprisonment and fine of Rs.5,000\/-, in default, six months rigorous
\nimprisonment.\n<\/p>\n
6th
\nA4 & A5
\n307 r\/w 34 IPC<\/a>
\nThree years’ rigorous imprisonment and fine of Rs.3,000\/- in default, six months
\nrigorous imprisonment.\n<\/p>\n
7th
\nA1 to A3,
\nA6 to A10
\n307 r\/w 149 IPC<\/a>
\nThree years’ rigorous imprisonment and fine of Rs.3,000\/- in default, six months
\nrigorous imprisonment.\n<\/p>\n
8th
\nA4
\n324 IPC<\/a> (2 Counts)
\nOne year rigorous imprisonment for each count and fine of Rs.2000\/- for each
\ncount, in default, six months rigorous imprisonment.
\n9th
\nA6
\n324 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment.\n<\/p>\n
10th
\nA7
\n324 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment.\n<\/p>\n
11th
\nA10
\nA8 & A9
\n324 IPC<\/a>
\n324 r\/w 34 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment.\n<\/p>\n
12th
\nA3
\nA1 & A2
\n324 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment.\n<\/p>\n
13th
\nA4 to A9
\n324 r\/w 149 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment.\n<\/p>\n
14th
\nA1 to A7
\n 324 r\/w 149 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment.\n<\/p>\n
15th
\nA7
\n326 IPC<\/a>
\n(2 Counts)
\nTwo years rigorous imprisonment for each count and fine of Rs.2,500\/-, for each
\ncount, in default, six months rigorous imprisonment.\n<\/p>\n
\t2. Challenging the above conviction and sentence, the accused have
\npreferred these appeals.\n<\/p>\n
The case of the prosecution in brief is as follows:\n<\/p>\n
\t(i)\tThe prosecution party and the accused party are all residents of
\nMulligundu village.  The prosecution party belong to Dalit Hindu community and
\nthe accused party belong to Dalit Christian community.\n<\/p>\n
\t(ii) PW.1 and others wanted to construct a Hindu Temple in the area where
\nthey were residing.  They also gave a requisition to the Sub-Collector seeking
\npermission to build a Hindu Temple.  There was some vacant space in front of the
\nhouse of PW.1.  That land belonged to the Government.  Oral permission was given
\nand a small Temple was constructed.  Near the house of PW.1, the first accused
\nand other accused were residing.  Accused Nos.2, 7 and 8 are brothers.  Accused
\nNos.1, 6, 4 are the sons of A7.  A3, A9 and A10 are sons of A8.  All the accused
\nhad objected to the construction of Temple that was constructed.  Sub-Collector,
\nTahsildar and the police visited at the place and they permitted PW.1 to set a
\nTemple near the house of PW.1.  In order to set up a Temple, they constructed a
\nsmall stage near the house of PW.1\n<\/p>\n
\t(iii) Two or three days later, on 2.7.1997, the police from Aravoyal
\nPolice Station came to the house of PW.1 and stated that A5 gave a report
\nagainst PW.1 and others complaining that a sum of Rs.15,000\/- was stolen and
\nhence, they wanted to enquire in the matter.  PW.1 informed the police that most
\nof the persons had gone to attend their job and he said that he would appear
\nalong with others in the evening at around 4.00 p.m.,.  PW.1 did not go for job
\nand he applied for leave.  PW.1 discussed with the wife, brother and others in
\nhis house about the complaint given against him.  At that time, PW.7 came to his
\nhouse and he wanted a sum of Rs.100\/- from PW.1.\n<\/p>\n
\t(iv) At about 10.30 a.m., Accused Nos.1, 2, 3 and 5 entered into the house
\nof PW.1 through the front door.  A3 was holding an axe and the other accused
\nwere holding aruval.  The other accused i.e. A4, A6 to A10 entered into the
\nhouse through back entrance and they were also holding aruval in their hands.
\nA3 attempted to attack PW.1 with the axe.  PW.1’s mother, father, wife and PW.7,
\nall tried to prevent and at that time, the deceased Selvaraj rushed into the
\nhouse along with PW.5, PW.6 and PW.8.  A3 instigated the other accused to
\nattack.  A1 pushed down the deceased Selvaraj.   The deceased Selvaraj fell
\ndown.  A2 sat on his back and instigated the others to attack.  A3 attacked the
\ndeceased with the axe repeatedly.  The cut fell on the head of the deceased.  A4
\nstamped the deceased. PW.9 rushed inside.  He was attacked on his head by A7
\nwith an aruval.  PW.3 was attacked on her head by A4.  A5 caught hold of PW.3.
\nAt that time, PW.2 intervened and pulled PW.3, and the attack made by A4 fell on
\nPW.2.  A4 also attacked once again on her hip.   At that time, A1 also attempted
\nto attack PW.2 but it fell on the head of A4.  PW.5 was caught hold by A8 and
\nA9.  A10 attacked PW.5 on his head and left leg.  At that time, PW.5 was caught
\nhold by A8 and A9.  As such, the cut fell on A8.  A3 also attacked PW.4 on the
\nright shoulder with an aruval.  A3 also attacked PW7 on his right hand.  PW.1
\nwas caught hold by A1 and A2.  As the axe fell on the ground, A3 got the aruval
\nfrom A.10 – Amalnath and attacked on PW.1’s head.  A4 also attacked PW.8 with
\nthe back portion of aruval.  A6 attacked PW6 on his head.  A7 attacked PW.9 on
\nhis head.  The accused had run away from the scene of occurrence.  While running
\nA7 fell on the ground and he got up and ran away from the scene.  The deceased
\nwas unconscious and he was taken to the Government Hospital, Devakottai.\n<\/p>\n
\t(v) PW.10 Doctor, examined the injured Selvaraj (deceased) and she found a
\nlacerated cut injury about 7 cms circular in the back of scalp (left side) and
\nshe prepared Wound Certificate Ex.P.2. The opinion of PW.10 Doctor was that the
\nabove injury is grievous in nature.\n<\/p>\n
\t(vi) PW.10 also examined PW.1 and found (a) an incised wound about 7 cms
\nin length 1cm deep, transverse direction in the back of scalp right side, (b)
\nabrasion about 3 cms in shoulder area and she prepared Wound Certificate,
\nEx.P.3. The opinion of the Doctor was that the above mentioned injuries are of
\nsimple in nature.\n<\/p>\n
   (vii)PW.3 was also examined by PW.11 Doctor. PW.11 found (i) a cut injury
\nabout 4 cms in the left side of forehead, (ii) Oblique cut injury 4 cms in
\nlength in the base of right ring finger(iii) Cut injury about 4 cms tranverse in
\ndirection below right scapula.  She prepared Wound Certificate  Ex.P.4.  The
\nopinion of the Doctor was that the above mentioned injuries are of simple in
\nnature.\n<\/p>\n
\t(viii) PW.2 was also examined by Doctor PW.11.  PW.11 found (i) a cut
\ninjury about 3 cms in length vertical in direction in the left eyebrow and (ii)
\nan abrasion 4 cms in length in the left side of back below scapula transverse in
\ndirection.  She prepared the Wound Certificate  Ex.P.5.  The opinion of the
\nDoctor was that the above mentioned injuries are of simple in nature.\n<\/p>\n
\t(ix) PW.11 also examined PW.4 and she found a cut injury transverse in
\ndirection  5 cms in length upper side of the right shoulder and an abrasion
\nabout 7 cm oblique direction in the upper side of right scapula, and she
\nprepared Would Certificate Ex.P.6.  PW.11 opined that the above mentioned
\ninjuries are grievous in nature.\n<\/p>\n
\t(x) PW.11 also examined PW.9 and she found a cut injury about 5 cms
\nvertical in direction in the left side of scalp just above forehead and she
\nprepared Wound Certificate Ex.P.7.  She opined that the above mentioned injuries
\nare simple in nature.\n<\/p>\n
\t(xi) PW.11 also examined PW.6 and she found (a) a cut injury about 8 cms
\nin length vertical in the right forearm 3 cm above right writ and (b) cut injury
\nabout 2 cms length vertical in the middle of scalp and she prepared Wound
\nCertificate Ex.P.8.  She opined that the above mentioned injuries are simple in
\nnature.\n<\/p>\n
\t(xii) Then, PW.11 also examined PW.5 and she found (a) a cut injury about
\n4cms transverse direction in the back of scalp in the middle (b) another cut
\ninjury vertical in direction 4 cms , 3 cms above 1st injury (c) a cut injury
\nvertical  on the left leg 4 cms below left knee and (d) a cut injury 1 cm on the
\nright thigh 4 cm above right knee. She prepared Wound Certificate Ex.P.9.  The
\nopinion of the Doctor is that the above injuries are simple in nature.\n<\/p>\n
\t(xiii) PW.11 also examined PW.7 and she found a cut injury about 4 cms in
\ndirection 5 cms below right elbow and she prepared the Wound Certificate
\nEx.P.10.  She opined that the above injury is of grievous in nature.\n<\/p>\n
\t(xiv)\tPW.11 also examined PW.8 and she found an abrasion about 3 cms in
\nthe right knee  transverse in direction and she prepared the Wound Certificate
\nEx.P.11.  She opined that the above injury is of simple injury.\n<\/p>\n
\t(xv)The deceased died in the hospital.  PW.12 who was the Head Constable
\nof the Aravoyal Police Station during the relevant period of time, on receiving
\ninformation over phone from the hospital,  went to the hospital and received
\nEx.P1 complaint from PW.1 at about 12.15 p.m., and he came back to the Police
\nStation and registered a case in Crime No.10\/97 under Sections 147<\/a>, 148<\/a>, 341<\/a>,
\n324<\/a>, 307<\/a> and 302<\/a> IPC.,. Ex.P.16 is the FIR.\n<\/p>\n
\t(xvi) PW.17, Inspector of Police received a copy of the FIR and took up
\ninvestigation.  He held inquest over the body of the deceased from 1.45 to 3.45
\np.m., and recorded statements of the witnesses and he prepared an Inquest Report
\nEx.P.33 and he also gave a requisition for conducting post-mortem.
\n\t(xvii) One Doctor Lakshmanan conducted post-mortem examination over the
\nbody of the deceased.  The said Doctor died in an accident before the
\ncommencement of the trial.  The said Doctor had issued Post-Mortem Report
\nEx.P.12 wherein the following injuries are noted:-
\nInjuries:\n<\/p>\n
\t1. An incised wound on parietal right 8 cm x 5 cm x 5 cm.\n<\/p>\n
\t2. A punctured wound on right orbit outer aspect 1 cm in diameter x 2 cm
\nin depth.\n<\/p>\n
\t3. An incised wound on Ear Pinna Right 5 cm x 2 cm x 1cm
\n\tEye lids closed, Tongue inside, Jaws clenched,
\nTeeth 8 8
\n      8 8
\n\tInternals
\n\tInjury No.1 Fracture of parietal (right) bone
\n     present.\n<\/p>\n
\tHeart Chambers empty.  Cut Section of Heart, Liver, Kidney, Brain and
\nLungs Pale.  Stomach contains partly digested rice particles 300 ml present
\nintestine distended with Gas Bladder empty.
\n\tBrain lacerated in the parietal area right and clotted blood about 200 ml
\npresent inside the dura.\n<\/p>\n
Opinion as to cause of death:-\n<\/p>\n
\tThe deceased would appear to have died of Hypovolemic Shock due to Injury
\nNo.1 and would appear to have occurred about 4 hours prior to Post-Mortem.
\n\t(xviii) PW.17 Inspector of Police, who took up the investigation went to
\nthe scene of occurrence at about 4.30 p.m., and prepared an Observation Mahazar
\nEx.P19 and Rough Sketch Ex.P34 and he recovered MO.7 wooden log and also MO.6
\naruval under Mahazar Ex.P20.  On 3.7.1997, he recorded the statement of the
\nwitnesses who were in the hospital.  At about 4.00 p.m., he arrested A4, A7 and
\nA8 who were taking treatment in the hospital.  A7 also gave a complaint Ex.P31,
\non the basis of which, a case was registered in Crime No.11\/1997 under Sections
\n147<\/a>, 148<\/a>, 341<\/a>, 323<\/a>, 324<\/a> IPC and FIR Ex.P.32 was prepared.
\n\t(xix) PW.17, on coming to know that some of the accused had surrendered
\nbefore the Court, applied before the Judicial Magistrate for the custody and on
\ntaking them to police custody, he recorded the confession statement of the
\naccused and in pursuance of the confession statement, MOs.5, 6 and 8 were
\nrecovered.    The case in Crime No.11\/97 was investigated by one Inspector of
\nPolice, Adinarayanan.  After investigation, it was referred as a mistake of
\nfact.  PW.17 after completing the investigation, he laid final report against
\nthe accused on various charges.\n<\/p>\n
\t3. In order to establish its case, the prosecution examined PWs.1 to 18,
\nmarked Exs.P1 to 46 and produced MOs.1 to 12.\n<\/p>\n
\t4.\tThe accused were questioned under Section 313<\/a> Cr.P.C. and they
\ndenied their complicity.  As far as A2 is concerned, he filed a written
\nstatement and let in evidence two witnesses viz., DW.1 and DW.2 and marked
\nExs.D1 and D2.  The Trial Court, after analysing all the materials, convicted
\nand sentenced the accused as already stated above.\n<\/p>\n
\t5.\tLearned counsel appearing for the second accused, Mr.A.Padmanabhan,
\nsubmitted that though a counter case was registered in Crime No.11\/1997 both the
\ncomplaints were not investigated by one and the same officer.  Injuries on the
\naccused were not properly explained by the prosecution.  The place of occurrence
\nin this case had been shifted.  According to the prosecution, the occurrence
\ntook place inside the house of PW.1, which is a very small room measuring 8 X\n<\/p>\n
14. feet and as such, it is not possible for all the accused to be present
\ninside the house and attack so many persons and the prosecution also failed to
\nestablish the place of occurrence by seizing the blood stained earth.  Learned
\ncounsel for the appellant draw our attention to the evidence of Doctor PW.10 who
\nhad stated that he was informed by the victim that they were assaulted by nine
\npersons.  But it is the definite case of the prosecution that 10 persons had
\ntaken part and as such, there is a possibility of implicating the second accused
\nfalsely at a belated stage.  There was sufficient time for implicating the
\nsecond accused since FIR had reached the Judicial Magistrate only at 6.15 p.m,
\nthat though it is said that FIR was prepared at 1.30 p.m.,.  The Magistrate
\nCourt was only 6 Kms distance from the Police Station.\n<\/p>\n
\t6. The learned counsel further submitted that, the narration by witnesses
\nthat A2 sat on the back of the deceased holding aruval in his hand, has not
\ninflicted any injury but had instigated only others to cut is very artificial.
\nThe second accused was a retired official from the IAF and he had sent complaint
\nto the Tahsildar regarding the encroachment of land and the evidence of DW.1 and
\nDW.2 and the defence documents would lead to show that A2 has been deliberately
\nadded as an accused.\n<\/p>\n
\t7. Learned counsel, Mr.Rathinam, who is appearing for A3 submitted that
\nthe FIR contains minute details which is to be suspected.  A8 was inflicted
\ngrievous injury, which remains unexplained.  Though A3 is said to have attacked
\nthe deceased repeatedly, the deceased had suffered only one injury.  The weapon
\nsaid to have been recovered have not been sent for chemical analysis.\n<\/p>\n
\t8. Learned counsel, Mr.Ravi, appearing for A5 submitted that A5 gave
\nEx.P30 complaint to the police regarding theft against PW.5 and others and
\ntherefore, she has been falsely implicated.  The overtact attributed also was
\nonly that she caught hold of PW.3.\n<\/p>\n
\t9. Learned counsel, Mr.S.Senthil Murugan, appearing for A1,A4,A6 and A7
\nsubmitted that the injuries on the accused had not been properly explained.  One
\nof the accused who sustained injury is said to have fallen in a pit to escape
\nfrom  from there.  The investigating officer has not noted any pit at the scene
\nof occurrence.  The learned counsel reiterated about the delay in sending the
\nFIR to the Court. It was also pointed out by the learned counsel that there was
\nno common object for all the accused to attack the deceased who had intervened
\nat the time of occurrence.\n<\/p>\n
\t10.\tPer contra, learned Additional Public Prosecutor, Mr.M.Daniel
\nManoharan, submitted that there is no doubt with regard to the place of
\noccurrence even though blood stained earth was not seized by the police.  It is
\nonly a lapse on the part of the investigating officer.  The place of occurrence
\nhas been mentioned in Ex.P.1 the complaint given by PW.1 and all the witnesses
\nPWs.1 to 9 have categorically spoken about the place of occurrence and the
\novert-act played by each of the accused.\n<\/p>\n
\t11. Learned Additional Public Prosecutor further pointed out that the FIR,
\nwhich was prepared at 1.30 p.m., on 2.7.1997 though reached the Court at 6.15
\np.m. as per Ex.P28, history of the case had reached the hospital at 4.00 p.m.,
\nin which about 10 accused participating in the occurrence was mentioned.  The
\nlearned Additional Public Prosecutor further added that even in the FIR, the
\ninjuries sustained by the accused were mentioned.  PW.1 also explained about the
\ninjuries sustained by the accused and the complaint given by A7 and the FIR
\nrelating to them and final reports have been placed before the Court.  Learned
\nAdditional Public Prosecutor submitted that the presence of A.2 was consistently
\nspoken by all the witnesses i.e. PWs.1 to 9.\n<\/p>\n
\t12. We have considered the submissions made by all the parties and perused
\nthe records.\n<\/p>\n
\t13. As per the evidence let in by the prosecution, the accused party and
\nthe victim party belong to different religions and there was a dispute regarding
\nthe construction of a Hindu Temple.  It is also evident that on the date of
\noccurrence, the police came to the house of PW.1 and informed that a complaint
\nhas been given against PW.1 and others by A5 regarding theft of Rs.15,000\/-.
\nThis part of evidence let in by the witnesses shows that enmity was prevailing
\namong both the parties.\n<\/p>\n
\t14. It is the further evidence of prosecution witnesses that on the date
\nof occurrence, all the accused had entered into the house of PW.1 and they
\nstarted attacking PW.1.  At that time, the deceased and others had entered into
\nthe house of PW.1 and then only the deceased and other witnesses were attacked
\nby the accused party.  PWs.1 to 9 spoke about the occurrence and they are all
\ninjured witnesses.  They all gave evidence about the occurrence with the
\nspecific overt-act of each of the accused.  It appears from the evidence of
\nPW.10 Doctor before whom the victims had appeared and took treatment that
\nvictims had informed the Doctor that they were attacked by definite nine
\npersons.  There is a considerable doubt with regard to the participation of one
\naccused in the occurrence.  Though the prosecution is very consistent through
\nthe evidence of PWs.1 to 9, it is not possible for us to throw away from
\nconsideration about this aspect.  Except the presence of A.2, the presence of
\nall the accused, seems to be established by the prosecution.  Even in the
\ncounter complaint Ex.P.31 given, there is no reference to the second accused.
\nThe overt-act attributed to the second accused seems to be very unnatural.\n<\/p>\n
\t15. According to the prosecution, A2 sat on the deceased holding aruval
\nbut he did not attack.  From the evidence of DW.1 and DW.2 and Exs.D1 and D2 and
\non reading the written statement filed by A2, it raises a doubt with regard to
\nthe presence of A2.\n<\/p>\n
\t16. Even though presence of A2 is doubtful, the presence of all other
\naccused at the scene of occurrence is to be accepted.  The accused entered into
\nthe house of PW.1 and attacked PW.1 and others.   Even the deceased and others
\nwho entered into the house of PW.1 were attacked by the accused.  All PWs.1 to 9
\nsuffered injuries and they have given evidence about the attack by the accused
\non them.\n<\/p>\n
\t17. The contention raised by the defence counsel that the place of
\noccurrence is doubtful, is only to be rejected.  Actually, it is fault on the
\npart of the Investigating Officer for not recovering blood stained earth and
\nsample earth to send them for analysis.  Failure on the part of the
\nInvestigating Officer cannot be taken advantage by the defence.  On the other
\nhand, it is the consistent version of the prosecution witnesses that the
\noccurrence took place only when PW.1 was inside his house and the accused
\nentered into the house and started attacking.  In the  Observation Mahazar
\nEx.P.19 and Rough Sketch Ex.P.34, the place where the bloodstain was found is
\nshown.  It is not the case of the accused also blood stains were found in any
\nother place.\n<\/p>\n
\t18. The other contention of the defence counsel that injuries on the
\naccused not explained is also to be rejected.  In this case, the counter
\ncomplaint given by A7 was duly received and registered by PW.12 and FIR Ex.P.32
\nwas prepared.  The case registered on the basis of the complaint given by A7 was
\nalso investigated and final report was filed, which was marked as Ex.P38.  There
\nis no suppression of material on the part of the prosecution on the basis of the
\ncomplaint given by the accused. A7 has also not denied his signature in Ex.P.31.
\nEven in Ex.P.1 complaint given by PW.1 the fact that three of the accused
\nsustained injuries have been mentioned and during the evidence it is also
\nexplained as to how the accused have sustained injuries.  Though it is suggested
\nby the defence that the accused were attacked in the open space, evidently, it
\nwas not substantiated by any material.  The origin of the occurrence is very
\nclear in this case through the evidence let in by the prosecution.  It is only
\nthe accused party who entered into the house of PW.1 with weapons and started
\nattacking.\n<\/p>\n
\t19. While giving benefit of doubt to the second accused, we observe this.
\nThe maxim, “falsus in uno, falses in omnibus” is not applicable in India.  It
\nmay be a rule of caution.  It is always open to the Court to make an attempt to
\nseparate the grain from the chaff, truth from falsehood.  It is common phenomena
\nto eye-witnesses to give evidence mixed up with truth and falsity.  Though one
\nor more persons had taken part in the occurrence, to implicate some more persons
\nfalsely due to motive that prevails is common tendency.  Therefore, it is the
\nduty of the Court to differentiate the accused from the available evidence
\nwherever it is feasible to separate the grain from the chaff, truth from
\nfalsehood.  It has to be appraised as to what extent, the evidence is worthy of
\nacceptance.  Of course, the evidence has to be sifted with care.  Only when it
\nis not possible to separate the truth from the falsehood as they are
\ninextricably mixed up up the whole evidence should be rejected.  Unless this
\nprocess is not carried by counts, the administration of criminal justice would
\nbe affected to a large extent by wrong acquittal allowing the real culprits to
\nescape.  This principle makes us to give benefit of acquittal only to the 2nd
\naccused while the other co-accused are convicted relying on the same set of
\nevidence.\n<\/p>\n
\t20.\tThough as per the above observation, it is established that except
\nA2, all the other accused have entered into the house of PW.1 and took part in
\nthe occurrence, it is now to be decided that the accused 1 to 10 except A2, are
\nliable to what extent and under what provisions.\n<\/p>\n
\t21.  As far as the first charge is concerned, A1 to 10 were armed with
\nweapons, and it is proved except against A2 and therefore, the conviction under
\nSection 148<\/a> IPC against A1, A3 to A10 is confirmed but the sentence of two years
\nrigorous imprisonment is modified to one year rigorous imprisonment.  As far as
\nthe second charge against the accused is concerned except A2, the conviction
\nagainst A1, A3 to A10 under Section 449<\/a> IPC is confirmed and the sentence of two
\nyears rigorous imprisonment is modified to one year rigorous imprisonment and
\nthe fine amount imposed by the Trial Court is confirmed.\n<\/p>\n
\t22. As far as the third charge is concerned, it is against the third
\naccused for the offence under Section 302<\/a> IPC.  It is established by the
\nprosecution that it was only the third accused who attacked the deceased with
\nthe axe and caused fatal injury.  The conviction under Section 302<\/a> IPC and the
\nsentence awarded by the Trial Court confirmed.\n<\/p>\n
\t23.\tWith regard to the fourth charge, the conviction and sentence
\nimposed under Section 302<\/a> r\/w 34 IPC<\/a> against A1, A2 and A4 are liable to be set
\naside.  It appears from the evidence when the accused entered into the house of
\nthe deceased, the deceased was attacked by A3.  As already pointed out, the
\npresence of the second accused is doubtful.  As far as A1 is concerned, the
\novert-act attributed to him is that he pushed the deceased down.  Insofar as the
\nfourth accused, the overt-act attributed to him is that he had stamped the
\ndeceased.  Though it is stated that the fourth accused stamped the deceased,
\nthere is no corresponding injury.  As such, we are not ready to accept the
\novert-act attributed in respect of the fourth accused.  As already stated above,
\nas far as the attack on the deceased is concerned, it is only A3 who is
\nresponsible and who had exceeded and acted.  The common object of the accused at
\nthe time of entry into the house of PW.1 was only to attack PW.1 and not the
\ndeceased.  The deceased, who had entered into the house of PW.1 and intervened
\nwas attacked by A3.  In the said circumstances, the benefit of doubt has to be
\ngiven to all the accused except A3 in respect of attack on the deceased
\nSelvaraj.  Therefore, the conviction and sentence imposed on A1, A2 and A4 for
\noffence under Sections 302<\/a> r\/w 34 IPC<\/a> is set aside.  The fine amount, if paid,
\nshall be refunded to the respective appellants.\n<\/p>\n
\t24. As far as the fifth charge is concerned, it is against A5 to A10 who
\nare convicted and sentenced under Sections 302<\/a> r\/w 149 IPC<\/a>.  For the reasons
\nalready mentioned above, the conviction and sentence imposed on the accused A5
\nto A10 are also set aside.  The fine amount, if paid, shall be refunded to the
\nrespective appellants.\n<\/p>\n
\t25.\tRegarding the sixth charge, A4 and A5 were convicted and sentenced
\nunder Section 307<\/a> r\/w 34 IPC<\/a> for attacking PW.3.  According to Doctor, injuries
\nsustained by PW.3 is only simple injuries.   Therefore, the conviction and
\nsentence under Section 307<\/a> r\/w 34 IPC<\/a> is set aside and instead, A4 and A5 are
\nconvicted and sentenced under Section 324<\/a> IPC r\/w 34 IPC<\/a> and sentenced to
\nundergo one year rigorous imprisonment and the fine amount imposed under Section
\n307<\/a> r\/w 34 IPC<\/a> shall be treated as one imposed under Section 324<\/a> r\/w 34 IPC<\/a>.\n<\/p>\n
\t26.\tAs far as seventh charge is concerned, A1 to A3 and A6 to A10 as
\nalready observed, the conviction and sentence under Section 307<\/a> r\/w 149 IPC<\/a> are
\nset aside and instead, A1, A3 and A6 to A10 are convicted under Sections 324<\/a> r\/w
\n149 IPC<\/a> and they are sentenced to one year rigorous imprisonment and the fine
\namount imposed under Section 307<\/a> r\/w 149 IPC<\/a> shall be treated as one imposed
\nunder Section 324<\/a> r\/w 149 IPC<\/a>.\n<\/p>\n
\t27. In respect of charges 8 to 15, the conviction and sentence imposed on
\nthe respective accused\/appellants except A2 stands confirmed.\n<\/p>\n
\t28. As per this judgment, the present conviction and sentence are as
\nfollows:-\n<\/p>\n
Charge
\nRank of the accused and  conviction u\/s.\n<\/p>\n
Sentence
\n1st Charge
\nA1, A3 to A10 – 148 IPC<\/a>
\n1 year rigorous imprisonment
\n2nd charge
\nA1, A3 to A10 – 449 IPC<\/a>
\n1 year rigorous imprisonment and fine of Rs.2000\/-, in default, six months
\nrigorous imprisonment
\n3rd charge
\nA3
\n302 IPC<\/a>
\nLife imprisonment and fine of Rs.5000\/- in default, six months R.I.<\/p>\n
\n6th charge\nA4 and A5      324 r\/w 34 IPC<\/a>\n<\/pre>\n
1 year rigorous imprisonment and fine of Rs.3000\/-,in default, six months R.I.<\/p>\n
\n7th charge\nA1, A3, A6 to A10                324 r\/w 149 IPC<\/a>\n<\/pre>\n
1 year rigorous imprisonment and fine of Rs.3000\/-, in default, six months R.I.
\n8th charge
\nA4
\n324 IPC<\/a> (2 Counts)
\nOne year rigorous imprisonment for each count and fine of Rs.2000\/- for each
\ncount, in default, six months R.I.<\/p>\n
\n9th charge\nA6               324 IPC<\/a>\n<\/pre>\n
One year rigorous imprisonment and fine of Rs.2000\/-,  in default, six months
\nR.I.\n<\/p>\n
10th charge
\nA7
\n324 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default,   six months
\nR.I.\n<\/p>\n
11th charge
\nA10 – 324 IPC<\/a>
\nA8 & A9 – 324 r\/w 34 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default,   six months
\nR.I.\n<\/p>\n
12th charge
\nA1 & A3
\n324 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default,   six months
\nrigorous imprisonment.\n<\/p>\n
13th charge
\nA4 to A9   324 r\/w 149 IPC<\/a>
\nOne year rigorous imprisonment and fine of Rs.2000\/-, in default,   six months
\nR.I.<\/p>\n
\n14th charge\nA1, A3 to A7  -    324 r\/w 149 IPC<\/a>\n<\/pre>\n
One year rigorous imprisonment and fine of Rs.2000\/-, in default,   six months
\nrigorous imprisonment.\n<\/p>\n
15th charge
\nA7 – 326 IPC<\/a>
\nTwo years rigorous imprisonment for each count and fine of Rs.2,500\/- for each
\ncount, in default six months  imprisonment\n<\/p>\n
  \t29. Sentences are directed to run concurrently.  The period of sentence
\nalready undergone shall be given set off.  The Trial Court is directed to take
\nsteps to secure the presence of the accused\/appellants and commit them to
\nundergo the remaining period of sentence, if any.\n<\/p>\n
\t30. In the result, in respect of the second accused, Criminal Appeal
\n(MD)No.484 of 2003 is allowed.  Bail bonds executed by him stand cancelled and
\nfine, if already paid, shall be refunded to him.   Insofar as Criminal Appeal
\n(MD)No.942 of 2003, the Criminal Appeal is dismissed in respect of A3 alone
\nexcept modification in sentence under 1st and 2nd charges and conviction and
\nsentence under 7th charge, and in respect of other accused, the appeal is partly
\nallowed.  Criminal Appeal (MD)Nos.687 and 787 of 2003 are also partly allowed.\n<\/p>\n
asvm
\nTo<\/p>\n
1.The Additional Sessions Judge-cum\n<\/p>\n
-Chief Judicial Magistrate,
\nSivaganga.\n<\/p>\n
2.Inspector of Police
\n  Aaravyal Police Station,
\n  Devakottai.\n<\/p>\n
  (Crime No.10 of 1997)<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Vyahulam vs Inspector Of Police on 4 February, 2011 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04\/02\/2011 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal (MD) No.484 of 2003 Criminal Appeal (MD) No.687 of 2003 Criminal Appeal (MD) No.787 of 2003 and Criminal Appeal (MD) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-260948","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVyahulam vs Inspector Of Police on 4 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vyahulam-vs-inspector-of-police-on-4-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vyahulam vs Inspector Of Police on 4 February, 2011 - 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