CA 618/2007 preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the I Additional Sessions Judge, Erode, made in S.C.No.62 of 2005 dated 12.7.2007.
CA 750/2008 preferred under Sec.378 of the Code of Criminal Procedure against the judgment of acquittal made by the I Additional Sessions Judge, Erode, in S.C.No.62 of 2005 dated 12.7.2007.
For Appellants in CA 618/2007 & Respondents 1, 2, 4 & 5 in CA 750/2008 : Mr.V.Gopinath Senior Counsel for Mr.T.Gowthaman For Respondent in CA 618/2007 & Appellant in CA 750/2008 : Mr.N.R.Elango Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These two appeals have arisen from the judgment of the learned I Additional Sessions Judge, Erode, in S.C.No.62 of 2005. The former CA 618/2007 is at the instance of A-1, A-2, A-4 and A-5. Out of 14 accused who stood charged and tried, A-1, A-2, A-4 and A-5 were found guilty and awarded punishment as follows, while all others were acquitted of all the charges. Regarding that part of order of acquittal, the State has preferred the latter appeal in CA 750/2008.
ACCUSED CHARGES FINDING PUNISHMENT A-11 to A-13 147 IPC Not guilty A-1 to A-10 & A-14 148 IPC Not guilty A-3, A-4, A-5, A-8, A-10 & A-13 450 IPC Not guilty A-3 to A-5, A-8, A-10 & A-13 3(1) Tamil Nadu Public Property (Damage & Destruction) Act Not guilty A-1, A-2, A-6, A-7, A-9, A-11 A-12 & A-14 3(1) Tamil Nadu Public Property (Damage & Destruction) Act r/w 149 IPC Not guilty A-3, A-6 & A-7 307 IPC Not guilty A-1, A-2, A-4, A-5, A-8 & A-14 307 r/w 149 IPC Not guilty A-6, A-8 & A-9 307 IPC Not guilty A-1 to A-5, A-7 & A-10 to A-14 307 r/w 149 IPC Not guilty A-4, A-5 & A-10 307 IPC Not guilty A-1 to A-3, A-6 to A-9 & A-11 to A-14 307 r/w 149 IPC Not guilty A-4 324 IPC (2 counts) Not guilty A-1 to A-3 & A-5 to A-14 324 r/w 149 IPC (2 counts) Not guilty A-1, A-2, A-4 & A-5 302 IPC Guilty Life imprisonment with a fine of Rs.2000/- and default sentence A-3 & A-6 to A-14 302 r/w 149 IPC Not guilty
2.The short facts necessary for the disposal of these appeals can be stated as follows:
(a) P.W.1 is the son of P.Ws.2 and 3. P.W.4 is the cousin of P.W.1. P.W.12 is the brother of P.W.3. All these witnesses and the accused belonged to Elavanatham Village. A-1 and P.W.2 had landed properties adjacent to each other. Apart from that, they were owning a landed property jointly. They had raised a ridge in between their respective properties. They had coconut trees. Regarding the enjoyment of the coconut trees, they had often quarrel. On 26.3.2004, the goats belonging to P.W.1 entered into the garden belonging to A-1. The mother of the wife of A-1 shouted at the prosecution witnesses. They drove the goats into their land. A-1 and A-11 left the place saying that they would deal the matter properly.
(b) At about 9.30 A.M. on the same day, A-14 brought a tempo van along with 10 persons. They went to the house of P.W.1, and at that time, A-2 and A-4 got down from the tempo van and went inside the house. They wanted to have panchayat over that incident. They replied that panchayat could not be had that time, and they could put in a common place. At about 4.30 P.M., P.W.1, his uncle's younger son Yuvraj and a friend Duraisamy were in the house. At that time, A-2 came out of the house of A-1, and he was actually armed with an aruval, A-3 armed with an iron rod, A-4 with a wooden stick, A-5 with a crowbar, A-6 with an aruval, A-7 with a wooden log, A-8 with a stick, A-9 with a wooden stick, A-10 with a crowbar and A-11 and A-12 were also armed with sticks. A-1 came to the place in a scooter and took out a wooden log from behind. A-1 instigated others to attack the prosecution witnesses. Fearing over the same, all the prosecution witnesses got inside and closed the doors. At that time, immediately A-3 and A-5 broke open the doors and got inside the house. A-3 and A-5 damaged the television, VCD with iron rods, etc. A-5 also damaged the tube light, ceiling fan, window and clock, etc. On seeing this, all these witnesses got into a room and closed the door. Immediately, it was broken open by A-3 and A-4, and all of them got inside. A-7 beat P.W.2 on his hands. A-3 beat P.W.2 on the head and both the shoulders. P.W.3 intervened and A-6 cut on his head twice. A-8 beat on the hands of P.W.3. A-4 beat on the left forearm. A-3 beat on the right hand. A-10 beat on the shoulder and back and other parts of the body. P.W.7 was beaten by A-8 and A-9. P.W.4 was attacked by A-4. P.Ws.1, 4 and 7 ran out of the house followed by P.Ws.2 and 3. On hearing the noise, the deceased came there. A-1, A-2, A-4 and A-5 chased him. A-2 cut on the head of the deceased twice. A-5 beat on the legs and also on the thigh. A-4 beat on the right leg and chest. A-1 beat on the left forearm. On hearing the distressing cry, a crowd gathered. The accused fled away from the place of occurrence.
(c) P.W.11 took all these injured persons and the deceased, and they were originally taken to the Government Hospital, Erode. Thereafter the injured were taken to Lotus Hospital. A message was given to the respondent police station. Immediately, P.W.27, the Sub Inspector of Police, proceeded to the Government Hospital at about 9.00 P.M. and recorded the statement of P.W.1, which is marked as Ex.P1. Then, he proceeded to the respondent police station and registered a case in Crime No.42 of 2004 under
Sections 147,148,447,448,452,427,324,307 and
302 of IPC. The printed FIR Ex.P48 was sent to the Court along with the statement, Ex.P1. The copies of the same were sent to the higher officials.
(d) P.W.28, the Inspector of Police, on receipt of the message went to the scene of occurrence, took the FIR copy and prepared an observation mahazar, Ex.P37, and a rough sketch, Ex.P49. He caused photographs to be taken through P.W.21. He seized broken articles and scooter under a mahazar. He received the death intimation Ex.P15 of the deceased. Then he went to the hospital and conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P51, the inquest report. He examined P.Ws.1, 4, 7 and 13 and recorded their statements. He proceeded to the Lotus Hospital and examined P.Ws.2 and 3 and also seized the bloodstained clothes of P.Ws.2 and 3.
(e) P.W.9, the Doctor, attached to the Government Hospital, Erode, examined P.Ws.4 and 7 and gave the wound certificates which are marked as Exs.P20 and P22 respectively.
(f) P.W.10, the Civil Assistant Surgeon, attached to the Government Hospital, Erode, on receipt of the requisition conducted autopsy on the dead body of Nataraj on 26.3.2004 at about 11.45 A.M. and he also issued a postmortem certificate Ex.P23 with his opinion that the deceased would appear to have died of shock and haemorrhage due to head injury.
(g) On 28.3.2004, on information P.W.28 arrested A-10 and A-13 and recorded their confessional statements in the presence of P.W.5. He seized a crowbar. Then he took police custody of A-6. His confessional statement was recorded, and he also seized the aruval produced by him. He also seized the van in the presence of P.W.19. A-3 was arrested on 5.5.2004 and he also recorded the confessional statement. An iron rod was also seized. A-5 was taken to police custody and pursuant to his confession, a crowbar was recovered. On 26.2.2004, A-2 was taken to police custody. Pursuant to his confessional statement, an aruval was recovered. P.W.28 examined P.Ws.9, 10 and others. All the material objects were subjected to chemical analysis, and reports were also received. Ex.P42 is the chemical analysis report while Exs.P43 and P44 are the serology report. On completion of the investigation, P.W.28 filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 28 witnesses and also relied on 52 exhibits and 37 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses. They flatly denied them as false. On the side of defence, D.W.1 was examined, and Ex.D1 was marked. On completion of the evidence, the trial Court heard the arguments advanced and found A-1, A-2, A-4 and A-5, the appellants herein, guilty under charge No.14 and in respect of the other charges, they were acquitted, and the other accused were acquitted of all the charges. Hence C.A.No.618/2007 has arisen at the instance of the appellants. Aggrieved over that part of the order of acquittal, the State has preferred CA 750/2008. Both these appeals are in the hands of this Court for disposal.
4.Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.V.Gopinath would submit that the prosecution came with the story that the occurrence has taken place at about 4.30 P.M. On 26.3.2004 and the Sub Inspector of Police has reached the hospital and has taken the statement of P.W.1 at about 10.00 P.M. and registered the case at about 11.30 P.M.; that in the instant case, there were 15 charges levelled against; that out of 15, the prosecution came forward to march five witnesses as injured witnesses who are P.Ws.1 to 4 and also P.W.7; that out of these witnesses, P.W.7 has turned hostile; that P.Ws.1 to 4 were not only shown as eyewitnesses, but also injured witnesses; but the lower Court was not ready to believe their evidence and also the medical evidence and acquitted all other accused in respect of 14 charges; but as a matter of surprise the trial Court found these appellants guilty only on charge No.14, a charge of murder; and that while the lower Court was not ready to believe the evidence of the injured witnesses P.Ws.1 to 4 in respect of the injuries sustained by them and rejected their evidence, their evidence should have also been rejected in toto, but has relied on their evidence.
5.The learned Senior Counsel would further add that in the instant case, the prosecution came with a case that lot of properties were also damaged; that in that count also, the trial Court was not ready to believe the case; that P.W.1 is the son of P.Ws.2 and 3; that P.W.4 is the cousin brother of P.W.1; that P.W.12 is the brother of P.W.3 and thus they are all closely related to each other; that this fact would clearly indicate that they are all partisan witnesses, and they have given interested testimony; that now at this juncture, it is pertinent to point out that the defence came forward with the specific plea that there was really a quarrel regarding the grazing of goat; that there was a panchayat that was to be convened at about 4.30 P.M.; that it was to be presided over by the wife of the MLA and she did not come to the spot, and at that juncture, the incident has arisen; that this plea put forth by the defence was actually fortified by the evidence of P.W.3; that she has categorically admitted all the above; that from the FIR and also the evidence of P.W.3, it would be quite clear that there was a quarrel and also a free fight among the parties; that in that process, not only P.Ws.1 to 4 were injured, but also A-2 got a head injury; that the prosecution had no explanation to offer how he sustained head injury; that this would be fatal to the prosecution case; and that the non-production of any evidence or explanation regarding the head injury sustained by A-2 would suffice to reject the prosecution case in toto.
6.Added further the learned Senior Counsel that in this case, as far as the deceased was concerned, he actually intervened when the free fight was going on, and in that process he sustained injury which would clearly indicate that no one of the accused namely A-1, A-2, A-4 or A-5 could have got any intention or premeditation to attack him; that under the circumstances, it was not a fit case to attract the penal provisions of murder; that apart from that, when there was a free fight and in that process number of witnesses and A-2 have also been injured, there was unexpected intervention by the deceased, and it was also the outcome of the injuries sustained by him; that in such circumstances, A-1, A-2, A-4 and A-5 should not have been found guilty, and they are entitled for acquittal; but, the lower Court has actually misled itself; and that while it has not not believed the entire story of the prosecution regarding the damage of the properties or the injuries sustained by P.Ws.1, 2, 3 and 4, it has believed their evidence only to the part for convicting A-1, A-2, A-4 and A-5 in respect of the injuries sustained by the deceased Nataraj.
7.Added further the learned Senior Counsel that even assuming that they have actually attacked the deceased at the time of occurrence, they could not be found guilty under Sec.302 IPC; that it was not their intention nor had they premeditation; and that in any event, they had attempted to cause injuries which in the ordinary course of nature are likely to cause death. The learned Senior Counsel would further add that all these factual position and legal position have escaped the vision of the trial Court, and under the circumstances they are entitled for acquittal in the hands of this Court.
8.The learned Additional Public Prosecutor was heard on all the above contentions.
9.Advancing arguments on behalf of the State in the appeal in which that part of the judgment of acquittal was challenged, the learned Additional Public Prosecutor would add that in the instant case, not only P.Ws.1 to 4 were eyewitnesses, but also they were injured witnesses; that they were all taken to the hospital; that they have all given clinching and cogent evidence; that the accident register copies in respect of P.Ws.1 to 4 were marked as Exs.P8, P11, P14 and P19 respectively; that the wound certificates were marked as Exs.P9, P12, P15 and P20 respectively; that it is true that P.W.7 has turned hostile; that even after rejecting his evidence, there is evidence of P.Ws.1 to 4 who were all injured witnesses; that they have given cogent evidence by which accused they were attacked and how the injuries were sustained; that it is true that there were discrepancies in the evidence; that in a given case like this where there are number of persons, such discrepancies are hound to occur; that if they are looked into, they would clearly indicate that they were all minor most and by that, the case of the prosecution should not be rejected.
10.The learned Additional Public Prosecutor would further add that in a given case like this, when the eyewitnesses happened to be injured witnesses, their evidence should not be rejected unless and until strong circumstance is noticed by the Court; that in the instant case, the trial Court did not point out any circumstance or reason to reject their evidence, but has acquitted all other accused only on flimsy reasons, and under the circumstances, that part of the judgment of the trial Court on that ground has got to be reversed and has to be set aside on the evidence available, and they are to be dealt with in accordance with law.
11.The Court paid its anxious consideration on the submissions made.
12.It is not in controversy that one Nataraj following the incident that had taken place on 26.3.2004 at 4.30 P.M., died, and following the inquest made by the Investigating Officer, P.W.28, and the preparation of the inquest report, the dead body was subjected to autopsy by P.W.10, the Medical Person, who has given categorical opinion that he died out of shock and haemorrhage due to head injury. This fact was never disputed by the appellants before the trial Court, and hence no impediment is felt in recording that the deceased died on account of homicidal violence.
13.The gist of the case of the prosecution was that following a quarrel regarding the grazing of the goats, A-1 along with others went to the house of the prosecution witnesses and called for a panchayat, and accordingly a panchayat was scheduled to take place at 4.30 P.M. on 26.3.2004. But, at that time, no panchayat was conducted; on the contrary, the incident in question had taken place. It is true that P.Ws.1, 2, 3, 4 and 7 were actually injured in that incident, and they were all taken to the Government Hospital and thereafter to Lotus Hospital, Erode, where they were all given medical treatment. It is also true that the wound certificates regarding the injuries sustained by them were all marked before the trial Court. Now, this Court is mindful of the caution made by the Apex Court and also by the settled principles of law that in a given case like this, where the eyewitness happened to be injured witness, the Court should not discard his evidence. But, in the instant case, a perusal of the judgment of the trial Court would clearly indicate that the trial Court had no option than to acquit the accused in that regard. It is true that they were all injured. Even from the evidence of P.W.3 it would be quite clear that at about 4.30 P.M., when the panchayat was to be conducted, the wife of the MLA who was to preside over the panchayat, did not come, and on the contrary, A-2 came there, and a commotion arose, and actually there was a free fight, and in that free fight, P.Ws.1 to 4 and 7 were injured. From the evidence, it would be abundantly clear that not only these persons were injured, A-2 was also injured, and he has got head injury. The prosecution had no evidence or explanation to offer before the trial Court. Thus the non-explanation of the injuries sustained by A-2 coupled with the injuries sustained by P.Ws.1 to 4 along with the evidence of P.W.3 that there was a free fight all would go to show that in the commotion and in the free fight all were injured. But, how these injuries were sustained could not be spoken to properly. On the other hand, there was thorough discrepancy in the evidence on material aspects. Thus the trial Court was perfectly correct in acquitting the accused regarding those charges. At this juncture, it is pertinent to point out that in a given case like this where the trial Court on appreciation of evidence has made an order of acquittal, the appellate Court should not ordinarily interfere unless and until the judgment was perverse or the order of acquittal was thoroughly lacking in reason. In the case on hand, this Court is unable to notice either of the reason. Under the circumstances, this Court is of the considered opinion that the acquittal part of the judgment regarding those charges was actually based on reasons, and it has got to be sustained. Thus the appeal by the State is liable to be dismissed.
14.As far as the appeal made by the appellants are concerned, from the evidence it would be quite clear that the deceased Nataraj when that commotion was going on, intervened to pacify the situation, and at that time, A-1, A-2, A-4 and A-5 have attacked him. Thus it would be quite evident that there could not have been any premeditation or any intention to attack him. But, when the free fight was going on between different persons, one of the persons who is actually interested and related to the prosecution witnesses, namely the deceased Nataraj, has intervened. Under the circumstances, A-1, A-2, A-4 and A-5 should have attacked him. Hence, they have got to be dealt with in respect of their individual acts. The medical opinion was canvassed through the postmortem Doctor and his opinion. The postmortem certificate would clearly indicate that the injury that was caused on the head with an aruval was fatal. According to the prosecution, it was caused by A-2 while he attacked him with the aruval. A-1 has caused injury on the left forearm with a stick. A-4 has caused injury with a stick on the legs, and A-5 also caused injury with a crowbar on the leg. These injuries caused by A-1, A-4 and A-5 were actually simple in nature, and thus it cannot be stated that they intended to cause death or they caused injuries which were in the ordinary course of nature likely to cause death. But, at the same time, the injury that was caused by A-2 on the head of Nataraj was fatal. At this juncture, the Court must see whether there was any justification for A-2 to cause such an injury and cause his death. This Court is of the considered opinion that A-2 could not have any justification at all to cause injury to the deceased when he wanted to intervene to pacify the situation. It was not the case of the prosecution or the defence that he was armed with any weapon. He was actually coming at the time when the panchayat was scheduled to take place. When the commotion arose and there was a free fight, the deceased intervened to pacify. But, at that time, A-2 without any justification attacked him on the head with the aruval and caused fatal injury leading to his death. Thus the act of A-2 would, no doubt, attract the penal provision of murder. The conviction and sentence imposed by the trial Court on A-2 under Sec.302 IPC has got to be sustained. Accordingly, they are sustained.
15.As regards A-1, A-4 and A-5, for the reasons recorded above, their acts would attract Sec.324 of IPC, and awarding of two years Rigorous Imprisonment, in the opinion of this Court, would suffice. Accordingly, the conviction and sentence imposed by the trial Court on A-1, A-4 and A-5 under Sec.302 of IPC are set aside, and instead, they are convicted under Sec.324 of IPC for which they are directed to suffer two years Rigorous Imprisonment. The fine amount imposed by the trial Court will hold good. The sentence already undergone by them shall be given set off. Since A-2 is on bail, the Sessions Judge shall commit him to prison to undergo the sentence.
16.With the above modification in conviction and sentence, C.A.No.618 of 2007 is dismissed. C.A.No.750 of 2008 is dismissed.
nsv To:
1.The I Additional Sessions Judge Erode
2.The Inspector of Police Arachalur Police Station Erode District (Cr.No.42 of 2004)
3.The Public Prosecutor High Court, Madras