appeals For appellants in Crl.A.Nos.838/2008 and 210 of 2009 : Mr.V.Padmanabhan, Senior Counsel for Mr.M.Rajendran For appellants in Crl.A.No.142/2009 : Mr.S.Mazhaimeni Pandian For respondent : Mr.Hassan Mohamed Jinnah Additional Public Prosecutor Prayer:- Criminal Appeals to set aside the conviction and sentence imposed in S.C.No.103 of 2003 dated 28.11.2008 on the file of the Sessions Judge, Thiruvannamalai.
COMMON JUDGMENT (Judgment of the court was delivered by M.JEYAPAUL, J.) The fourth accused, the sixth accused and the seventh accused in S.C.No.103 of 2003 on the file of the Sessions Judge, Thiruvannamalai have preferred Criminal Appeal No.838 of 2008. The first accused, the second accused and the third accused have preferred Criminal Appeal No.142 of 2009 and the fifth accused has filed Criminal Appeal No.210 of 2009 aggrieved by the judgment pronounced by the Sessions Judge, Thiruvannamalai in the aforesaid case.
2. A1, A3 to A7 were found guilty for the offence under
section 147 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs.1000/= in default to undergo rigorous imprisonment for three months each, A2 is found guilty for the offence under
section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/= in default to undergo rigorous imprisonment for four months, A1 is found guilty for the offence under section323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month, A2 to A7 are found guilty for the offence under
section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A1 to A7 are found guilty for the offence under
section 448 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A1 to A3 are found guilty of the offence under
section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo rigorous imprisonment for six months each, A4, A5 and A7 are found guilty for the offence under
section 302 read with 149 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo rigorous imprisonment for six months each, A6 is found guilty for the offence under
section 302 read with 109 read with 114 read with 149 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo rigorous imprisonment for six months. A1, A4 and A5 are found guilty for the offence under
section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A2, A3, A6 and A7 are found guilty for the offence under
section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A5 is found guilty of the offence under
section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month, A1 to A4, A6 and A7 are found guilty for the offence under
section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each, A3 and A4 are found guilty for the offence under
section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each and A1, A2, A5 to A7 are found guilty for the offence under
section 323 read with 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/= in default to undergo rigorous imprisonment for one month each.
3. In order to establish the case of the prosecution, 15 witnesses were examined and 32 documents and 8 M.O.s were marked on the side of the prosecution.
4. The sum and substance of the testimony of the witnesses examined on the side of the prosecution reads as follows:-
(i) PW3 Reeta Mary is the mother of PW1 Subash. PW1 Subash is the nephew, PW2 Deepak is the son and PW4 Selvi alias Sowriammal is the daughter of the deceased Gnanaprakasam. They are residing in Jamin Gudalur village. There was an election for the post of President for the Christian community in Jamin Gudalur village. A6 Anthonisamy and one Savarimuthu contested for the said election that was held on 9.2.2003. A6 Anthonisamy was declared elected and Savarimuthu lost the election. As a result of which there was some misunderstanding between the deceased Gnanaprakasam and A6 Anthonisamy group.
(ii) On 18.2.2003, one Madhalai Mary, maternal aunt of A6 passed away. A1 Donbosco, A2 Raja alias Christharaj A3 R.Lourthusamy, A4 Lal alias Lawrance and A5 A.Lourthusamy who hailed from Bangalore came to the village to attend the funeral. A6 Anthonisamy and A7 Arokkiasamy are the residents of Jamin Gudalur.
(iii) On 19.2.2003, at about 8.30 pm, PW2 Deepak son of the deceased Gnanaprakasam was standing in front of the shop of PW6 Devasagayam. A1 Donbosco, A2 Christharaj and A4 Lawrance came down to the shop of PW6 and picked up quarrel. PW1 and the deceased Gnanaprakasam proceeded to the shop of PW6 where the quarrel was raging and tried to prevent the quarrel. The first accused Donbosco beat PW2 Deepak on the backside of his head. The dispute was amicably resolved and A1, A2 and A4 were sent away.
(iv) On 20.2.2003 at about 8.00 am, PW2 Deepak was standing in front of the shop of PW6. The first accused came over there by bicycle and picked up quarrel with PW2 Deepak. PW1 came down to the shop of PW6 and enquired about the quarrel with PW2. At that time, A1, A3 and A4 armed with stick, A2 armed with cricket bat and A5 armed with reaper came to the said place. PW2 apprehending some trouble, proceeded to his house and closed it. PW4, the daughter of the deceased Gnanaprakasam came out of the house and closed the outer gate. A1 beat PW4 with stick on her head. PW4 fell down unconscious. The deceased Gnanaprakasam, who was in the upstairs of the house, tried to appease the agitating accused saying that the dispute could be resolved amicably. By then, all the accused scaled the compound wall and entered into the house. The first accused beat the deceased Gnanaprakasam on his head with stick. A2 beat him on his head with cricket bat and A5 attacked him on his head with reaper indiscriminately. PW1 tried to intervene when attacks were launched by A1, A2 and A5. A4 and A5 attacked PW1 on his head with sticks. The first accused attacked him on his left leg. PW3 Reeta Mary the mother of PW1 attempted to ward off the attack launched as against PW1. The first accused attacked her with reaper. PW2 Deepak went out of the house crying that the deceased Gnanaprakasam was beaten. The sixth accused escorted the other accused to beat them. The third accused beat PW2. The first accused beat on his shoulder with stick. By then, crowd gathered over there. All the accused sped away with cricket bat, stick and reaper.
(v) Sagayaraj and Ramesh took all the injured to Thiruvannamalai Government Hospital by van. All the injured persons, except Gnanaprakasam who sustained grievous injury on his head, were admitted to Government Hospital, Thiruvannamalai. PW11 Dr.Thilagavathy admitted Gnanaprakasam who was brought by Anthonisamy to Government Hospital, Thiruvannamalai at 9.45 am on 20.2.2003. It was informed by him that Gnanaprakasam was assaulted at about 8.30 am in his house by six persons with club, reaper and stick. She found the following injuries on examination of the injured Gnanaprakasam:-
"1) Swelling right orbital region eyelid and face laceration.
2) Bleeding 1 cm with slights swelling right wrist. Unconscious involuntary movement. Pupils no response.
3) Laceration Bleeding 1cm x = cm bone deep left frontal scalp.
4) Laceration 2 cm x = cm x bone deep left parietal scalp."
Copy of the accident register issued by PW11 was marked as Ex.P18. Thereafter, Gnanaprakasam was referred to CMC Hospital.
(vi) The Doctors in CMC, Hospital, having found that Gnanaprakasam would not survive the injuries sustained by him, asked the relative to take him back to the house. On the way back, Gnanaprakasam succumbed to the injuries.
(vii) PW11 Dr.Thilagavathy admitted PW1 Subash at about 10.00 am on 20.2.2003 to Government Hospital, Thiruvannamalai for treatment. One of this relatives brought him for treatment. It was informed to PW11 that Subash was assaulted by six persons with club and reaper at his house at about 8.30 am on 20.2.2003. She found the following injuries on Subash:-
"1) Laceration 4cm x 1/2cm x 3/4cm occipital region with bleeding.
2) Irregular laceration 1-1/2cm x 1/2cm x 1/2cm over left parietal region with bleeding.
3) Red colour 1-1/2cm x 1/2cm x 1/2cm over right temporal region.
4) Laceration 1/2cm x 1/2cm x 1/2cm with 1cm 1cm swelling left knee.
5) Contusion parallel 10 cm x 2-1/2 cm left shoulder.
6) Laceration 40cm x 5 cm oblique back.
7) Contusion 7 cm x 3cm on mid back.
8) Contusion 6cm x 5cm on right forearm."
She expressed her opinion that Subash sustained only simple injuries in the copy of the accident register, Ex.P19 issued by her.
(viii) PW11 admitted PW4 Selvi alias Sowriammal at about 10.15 am on 20.2.2003. She was brought by one of her relatives. PW11 was informed that she was assaulted by a person with firewood at about 8.30 pm on 20.2.2003 in her house. She found a laceration measuring 2 cm x 1/4cm x 1/4cm on the left parietal region. She was treated as outpatient. PW11 opined in the accident register, Ex.P20 that Sowriammal sustained simple injury.
(ix) PW11 admitted PW2 Deepak (Anthonisamy) at 10.15 am on 20.2.2003. He was brought by one of his relatives for treatment. It was informed to PW11 that he was assaulted with club and reaper in his house at 8.30 am on 20.2.2003. PW11 found a laceration measuring 1/2x1/2x1/2 cm over the frontal region. She opined in the accident register, Ex.P21 that Anthonisamy sustained only simple injury.
(x) PW13, Sub Inspector of Police D.Nagarajan attached to Vettavalam Police Station received information about the admission of the injured to Thiruvannamalai Government Hospital and proceeded to the hospital at about 12.30 pm on 20.2.2003 and recorded the statement, Ex.P1 from PW1 who was taking treatment in the hospital. PW13 came down to Vettavalam police station and registered a case in Crime No.68 of 2003 under
sections 147,148,323,448,325 and
307 of the Indian Penal Code and prepared printed first information report, Ex.P22 and despatched the same to the learned Judicial Magistrate II Thiruvannamalai and copies thereof to the higher officials concerned.
(xi) On 20.2.2003, at about 10.00 pm, he received communication from PW2 Deepak that Gnanaprakasam who sustained injuries in the occurrence died. Therefore, he converted the case into one under
section 302 of the Indian Penal Code and prepared the printed express report, Ex.P23 and despatched the same to the learned Judicial Magistrate II Thiruvannamalai and the copies thereof to the higher officials concerned.
(xii) PW14 Inspector of Police G.Gothandan, incharge of Vettavalam police station received communication from VHF at 10.30 pm on 20.2.2003 about the occurrence and proceeded to the scene of occurrence at 11.00 pm. He having received a copy of the first information report, arrived at the scene of occurrence, prepared observation mahazar, Ex.P5 in the presence of PW7 Dhanapal and another witness by name Anthony. He also drew rough sketches Exs.P24 and P25. PW12 Pushparaj was engaged for taking photographs of the scene of occurrence.
(xiii) At about 11.30 pm on the said day, PW14 seized the blood stained earth M.O.4 and sample earth M.O.5 under seizure mahazar Ex.P6 in the presence of the very same witnesses. He held inquest between 11.45 pm on 20.2.2003 and 00.30 am on 21.2.2003 in the presence of panchayatdars and witnesses and prepared inquest report, Ex.P26. He examined witnesses present over there.
(xiv) PW5 Dr.Pugazhenthi, having received requisition from PW14, commenced post mortem examination on the dead body of Gnanaprakasam at 12.05 pm on 21.2.2003. He found the following external injuries:-
"1) Sutured wound forehead 3"x1."
2) Injury on the inter parietal region 4"x1-1/2".
3) Injury on the right side of head 3"x1-1/2."
4) Swelling of the forehead 4"x3"."
He opined in the post mortem certificate Ex.P4 that the deceased Gnanaprakasam appeared to have died of head injury about 24 to 30 hours prior to post mortem examination.
(xv) On 21.2.2003 at about 12.15 pm PW14 arrested A6 Anthonisamy at the bus stop at Aavoor village. Thereafter he was remanded to judicial custody at about 2.00 pm on the said day. The fourth accused Lal alias Lawrence was arrested at Vayaloor intersection in the presence of PW7 Dhanapal and another witness by name Anthonidas. In the presence of the witnesses, A4 gave confession statement. On the basis of the admissible portion, Ex.P7 in the confession statement of A4, he took PW14 and the witnesses to the house of Anthonisamy and took out the blood stained club M.O.3 and handed over to PW14. The same was recovered under relevant recovery mahazar, Ex.P8 in the presence of the aforesaid witnesses. A4 was thereafter remanded to judicial custody. M.O.8 lungi worn by the deceased was seized by the constable Sekar and entrusted the same for investigation to PW14 under special report Ex.P27.
(xvi) PW14, having found that PW3 Reeta Mary had sustained injury in her ear, sent her alongwith medical memo for treatment to Government Hospital, Thiruvannamalai. PW10 Dr.Sagaya Inba Sekar gave treatment to PW3 She alleged before the doctor that she was assaulted by a known male person on 20.2.2003 at 8.30 am near her house with firewood. PW10 found an abrasion over the left ear lobe measuring 1x1 cm. She was treated as outpatient PW10 opined in the accident register Ex.P17 that PW3 sustained only simple injury.
(xvii) On 24.2.2003 at about 6.30 am PW14 arrested the first accused and the second accused near Rajanthangal bus stand in the presence of PW8 and another witness by name Das. The first and the second accused gave confession statements. On the basis of the admissible portion Ex.P9 in the confession statement of the first accused, the sticks M.O.3 series were recovered from the hut of Arokyasamy at Jamin Gudalur. The same was recovered under recovery mahazar Ex.P10 in the presence of the aforesaid witnesses. On the basis of the admissible portion, Ex.P12 in the confession statement of the second accused, cricket bat M.O.1 was recovered from the terraced house of Anthonisamy at Jamin Gudalur under recovery mahazar Ex.P12. A1 and A2 were remanded and the material objects were despatched to the court for safe custody.
(xviii) The confession statement of the first accused would disclose that he sustained injury at the hands of the deceased Gnanaprakasam and PW2 Deepak. Therefore, a case in crime No.73 of 2003 under
sections 341,323 and
294(b) of the Indian Penal Code was registered. The first accused was sent alongwith the medical memo for treatment to the Government Hospital, Thiruvannamalai. The first information report registered based on the confession statement of the first accused was marked as Ex.P28 and the printed first information report prepared based thereon was marked as Ex.P29.
(xix) On 1.3.2003 at about 8.30 am the third and fifth accused were arrested at Velananthal intersection in the presence of PW9 Dhanish Lal and another witness by name Anthonydas. Both the accused gave voluntary statements in the presence of those witnesses. On the basis of the admissible portion, Ex.P13 in the confession statement, A3 took out the reaper M.O.2 from the backside of the hut of Arokyasamy at Jamin Gudalur and handed over to PW14 which was recovered under seizure mahazar, Ex.P15. On the basis of the admissible portion Ex.P14 in the confession statement of the fifth accused, he took out one of the clubs M.O.3 series from the backside of the hut of Arokyasamy at Jamin Gudalur and handed over to PW14 which was recovered under relevant seizure mahazar Ex.P16. Both the accused were remanded to judicial custody and the material objects were sent to the court under Form 95.
(xx) PW14 submitted requisition for sending the material objects for chemical examination. The learned Judicial Magistrate II Thiruvannamalai submitted the material objects to the Forensic Sciences Department under covering letter Ex.P30 for conducting chemical examination. Exs.P31 and P32 are the chemical examination reports received by the court.
(xxi) PW15 Sivanesan, Inspector of Police, who took up the case for further investigation examined the other witnesses in this case and laid final report on 28.4.2003 as against all the accused before the learned Judicial Magistrate II Thiruvannamalai.
(xxii) The incriminating portions found in the evidence of the prosecution witnesses were putforth to the accused under
section 313 of the Code of Criminal Procedure. All the accused have completely denied the incriminating circumstances spoken to by witnesses and it was submitted by the accused that a false case has been foisted as against them. Neither oral nor documentary evidence was adduced on the side of the accused.
(xxiii) The Trial Court, having adverted to the injured ocular witnesses viz., P.Ws.1 to 4, the arrest and recovery of material objects and the medical evidence available on record, returned a verdict of conviction as against all the seven accused.
5. Homicidal death of Gnanaprakasam:- PW11 Dr.Thilagavathy has given treatment to Gnanaprakasam. Ex.P18 is the copy of the accident register issued by her. It would reflect that Gnanaprakasam, who was admitted to Government Hospital, Thiruvannamalai for treatment, sustained swelling injury on the orbital region, bleeding injuries on the right wrist and laceration on the frontal and parietal scalp.
6. PW1 Subash would depose before the court that though an attempt was made to admit the injured Gnanaprakasam to CMC Hospital, Vellore, the injured Gnanaprakasam had to be taken back to the house as the CMC Hospital authority refused to admit him to the hospital for treatment on account of the bad health condition of Gnanaprakasam. It is in evidence that when Gnanaprakasam was taken back to the house, he breathed his last.
7. PW5 Dr.Pugazhenthi is the doctor who conducted post mortem examination on the dead body of Gnanaprakasam at about 12.05 pm on 21.2.2003. He found a sutured wound over the forehead measuring 3x1 cm, an injury on the inter parietal region measuring 4x1-1/2 cm and yet another injury on the right side head measuring 3x1-1/2 cm and also a swelling over the forehead measuring 4x3 cm. Having examined the internal injuries corresponding to the aforesaid external injuries, PW5 Dr.Pugazhenthi in the post mortem certificate, Ex.P4 issued by him opined that the deceased would appear to have died of head injuries about 24 to 30 hours prior to post mortem examination. The medical evidence referred to above would clinchingly establish that Gnanaprakasam died a homicidal death.
8. Motive for the murder of Gnanaprakasam:- The prosecution has come out with a case that four eyewitnesses in the occurrence sustained injury in the very same occurrence. When ocular testimony is there that too from the very mouth of the injured witnesses, motive part of the case pales into insignificance. Of course, the learned counsel appearing for accused 4 to 7 and the learned counsel appearing for accused 1 to 3 would vehemently submit that there was no motive for the murder of Gnanaprakasam inasmuch as it was only the accused party who allegedly won the election.
9. The learned Additional Public Prosecutor would submit that P.Ws.1 to 4 have categorically spoken to the fact that there was a dispute between A6, who won the election and the prosecution parties, who supported the candidate who lost the election conducted for the village Christian community people.
10. Let us now refer to the evidence of P.Ws.1 to 4 who categorically spoke to the motive part of the case of the prosecution. PW1 has deposed that in the election that was held on 9.2.2003 for the Christian community in Jamin Gudular village, A6 Anthonisamy was declared elected, but, Savarimuthu, who contested the election lost the election. It is his categorical version that on account of such declaration of the result in favour of A6 Anthonisamy, there was some animosity between the deceased Gnanaprakasam and A6 Anthonisamy. PW2 the son of the deceased would speak in detail to the effect that the election was conducted on 9.2.2003 under the supervision of Father Don Bosco and three Sisters. The 6th accused Anthonisamy who contested the election against Savarimuthu was about to be declared elected. PW2 approached Father Don Bosco and informed him that the election was conducted in a partisan manner and therefore, the election should be stopped. It was informed to PW2 that as the election had crossed a particular level, the same could not be stopped. Therefore, there was a dispute between the family of Anthonisamy A6 and the family of the deceased, he would depose. PW3 Reeta Mary is the mother of PW1. She has also spoken to the live dispute between A6 on the one side and the deceased on the other side in connection with the declaration of election in favour of A6 Anthonisamy. PW4 also would speak to the fact that there was a motive between the family of A6 and the deceased as the election went in favour of A6 Anthonisamy.
11. There is no reason to disbelieve the evidence of P.Ws.1 to 4 who have cogently spoken in one voice that there was a live dispute between A6 family and the deceased family in connection with the election that was conducted on 9.2.2003. Considering the above evidence on record, we come to a decision that the prosecution has established beyond reasonable doubt that there was a motive between the family of A6 and the deceased.
12. Rioting armed with deadly weapon:- A1 to A5 are charged under
section 149 and A6 and A7 are charged under
section 147 of the Indian Penal Code. P.Ws.2, 3 and 4 have deposed in one voice that A1, A4 and A5 armed with wooden log, A2 with cricket bat and A3 with reaper, entered into the house of the deceased alongwith A6 and A7. PW1, though stated in the complaint, Ex.P1 that A1, A4 and A5 were armed with wooden log and A2 with cricket bat and A3 with reaper, entered into the house of the deceased and attacked the prosecution party, there is a slight variation in his testimony with respect to the nature of weapon armed by A1 to A5 described in the complaint. In evidence, PW1 has stated that A1, A3 and A4 armed with wooden log, A2 with cricket bat and A5 with reaper, entered into the house of the deceased alongwith A6 and A7. The evidence of P.Ws.2 to 4 with respect to the nature of weapon armed by A1 to A5 corroborates the case of the prosecution.
13. P.Ws.1 to 4 have deposed before the court that on the date of occurrence at about 8.00 am, A1, who came by bicycle near the shop of PW6, picked up quarrel with PW2 and went away and brought A2 to A7. A1 to A5 were armed with weapons as detailed above.
14. P.Ws.1 to 4 have deposed to the fact that A1 to A3 attacked the deceased on the head, A4 and A5 attacked PW1 on his head, A1 attacked him on his legs. PW2 has spoken to the fact that A3 attacked him on his head and A4 attacked him on his shoulder. P.Ws.1 to 4 also have deposed that A5 armed with reaper attacked PW3 on her shoulder and caused injury. They have also deposed in one voice that A1 armed with cricket bat attacked PW4 on his head and caused injury. It is her evidence that A6 and A7 were very much present at the time when A1 to A5 attacked the deceased and P.Ws.1 to 4 armed with weapons as stated above.
15. PW10 Dr.Sagaya Inba Sekar, who had treated PW3, issued copy of the accident register Ex.P17. PW11 Dr.Thilagavathy had treated not only the deceased but also P.Ws.1, 2 and 4 and issued copies of the accident registers, Exs.P18, P19, P21 and P20 respectively. The medical evidence also would lend corroboration that P.Ws.1 to 4 and the deceased sustained injury in the occurrence.
16. The aforesaid telling evidence from the mouth of the ocular witnesses who sustained injury would establish without any doubt that A1 to A5 committed rioting armed with deadly weapons viz., wooden logs and cricket bat and A6 and A7 committed rioting of course without any weapon.
17. Charge of murder of Gnanaprakasam by A1 to A3:- It is the case of the prosecution that A1 to A3 armed with wooden log and cricket bat attacked Gnanaprakasam who came down from the upstairs at the time of occurrence to conciliate the dispute and was done to death.
18. As already pointed out by us, P.Ws.1 to 4 are the injured eyewitnesses in this case. PW1 has categorically deposed without material variation from the first information report lodged by him that the first accused Donbosco, armed with wooden log M.O.3 series and A2 Christaraj, armed with cricket bat M.O.1 and A3 Lourthusamy armed with wooden log M.O.3 series alongwith A4 to A7 came to the house of Gnanaprakasam and knocked at the doors and when Gnanaprakasam came down from the upstairs to appease the agitating parties, A1 Donbosco attacked Gnanaprakasam on his head with wooden log, A2 Christaraj attacked him on his head with cricket bat and A3 Lourthusamy attacked him with wooden log on his head repeatedly.
19. P.Ws.2 to 4 who sustained injury in the very same occurrence have lent corroboration to the aforesaid evidence of PW1 to the effect that A1 to A3 armed with weapons as detailed above, attacked Gnanaprakasam on his head repeatedly and caused injuries.
20. PW11 Dr.Thilagavathy has given treatment to Gnanaprakasam and issued copy of the accident register, Ex.P18. She has described in Ex.P18 that Gnanaprakasam sustained grievous injuries on his head.
21. PW5 Dr.Pugazhenthi, who conducted post mortem examination, has found out the lethal injuries on the head of Gnanaprakasam and opined in the post mortem certificate Ex.P4 that Gnanaprakasam died due to the head injuries he sustained.
22. PW14 Gothandan, Inspector of Police had arrested the first and second accused in the presence of PW8 Santhana Grouse and third and fifth accused in the presence of PW9 Dhanish Lal. On the basis of the admissible portions Exs.P9, P11 and P13 respectively found in the confession statements of A1 to A3, M.Os.1 to 3 were recovered by PW14.
23.The learned counsel appearing for A1 to A3 would submit that there was no reference as to the cricket bat in the copy of the accident register, Ex.P18 issued by PW11 Dr.Thilagavathy. It is his submission that the cricket bat was introduced later on by the prosecution to suit their convenience. He would further submit that PW14 has categorically admitted that he had to register a case based on the confession statement given by A1 as against PW2 and the deceased. He would further submit that PW14 has admitted that A1 was sent for medical examination as he was found with injuries. In the light of the above, he would submit that the prosecution failed to explain as to how A1 sustained injury in the occurrence. Referring to the first information report, the learned counsel appearing for A1 to A3 would submit that some other accused also were involved in the occurrence, but, no investigation was directed as against them. In short, he would submit that there is no clarity in the case of the prosecution as to the number of assailants who actually participated in the occurrence. Referring to the copies of the accident registers, Exs.P18, P19 and P21, he would submit that when the deceased, PW1 and PW3 were admitted for treatment, it has been categorically informed to PW11 Dr.Thilagavathy that only six persons attacked the prosecution party and caused injury. The prosecution has added one more person later on in this case, he would submit. The entire family members were arrayed as A1 to A3 based on the complaint given by PW1, he would submit. It is his further submission that true facts were not placed before the Trial Court by the prosecution. There is contradiction with respect to the presence of A1, A2 and A4 during the occurrence on the previous day. P.Ws.2 and 3 have spoken to the fact that they were also present at 8.00 am on 20.2.2003 in front of the shop of PW6. But, the other witnesses have not supported the evidence of P.Ws.2 and 3 with respect thereto. In view of the above, he would submit that the prosecution has failed to establish the case of murder charged against A1 to A3. At any rate, he would submit that the use of cricket bat by A2 is found to be highly doubtful. The association of A2 as projected by the prosecution cannot be believed by the court, it is submitted.
24. The learned Additional Public Prosecutor would submit that as regards the commission of murder of Gnanaprakasam by A1 to A3, P.Ws.1 to 4 injured witnesses in this case have spoken in one voice that A1 to A3 attacked with wooden logs and cricket bat on the head of Gnanaprakasam and caused lethal injuries which consequently taken away his life. He would also submit that the arrest of A1 to A3 and the recovery made in this case would lend corroboration to the case of the prosecution. The medical evidence also would support the case of the prosecution, he would submit.
25. PW1 has categorically deposed before the court that A1 to A3 armed with wooden logs and cricket bat attacked Gnanaprakasam on his head repeatedly and caused lethal injuries. The presence of other witnesses was also spoken to by PW1 the injured witness. P.Ws.2 to 4 also have materially supported the version of PW1 that it was only A1 to A3 who armed with the clubs and cricket bat attacked on the head of Gnanaprakasam and caused grievous injuries. The arrest of the accused and the recovery of M.Os.1 to 3 series were spoken to by the relevant witnesses P.Ws.8 and 9. The evidence of the post mortem doctor also lends corroboration to the ocular witnesses examined on the side of the prosecution.
26. The injured Gnanaprakasam was admitted to Government Hospital, Thiruvannamalai at about 9.55 am on 20.2.2003. Three types of weapons viz., Club, Reaper and stick were allegedly used by the accused to attack Gnanaprakasam. It is true that cricket bat was not specifically referred to as one of the weapons of offence alleged to have been used by the assailants to attack Gnanaprakasam in the copy of the accident register, Ex.P18. Firstly, the reference as to the nature of weapon used by the assailants found in the accident register cannot be a substantial piece of evidence. Even otherwise, three types of weapons have been referred in the copy of the accident register, Ex.P18. The consistent case of the prosecution is that the accused were armed with three types of weapons. It is every possibility in a village to refer the cricket bat as a reaper. By 12.30 pm on the very same day, the complaint was lodged by PW1. PW1 has categorically stated therein that cricket bat was used at the time of occurrence. At any rate, the evidence of the injured witnesses P.Ws.1 to 4 would reflect that A1 to A3 armed with weapons, attacked Gnanaprakasam and caused lethal injuries on his head. Therefore, the absence of reference as to the use of cricket bat in the copy of the accident register would not affect materially the case of the prosecution.
27. It is true that A1 sustained injury in the occurrence as spoken to by PW14. In fact, on the basis of the confession statement given by A1, PW14 chose to register a case as against PW2 and the deceased. The evidence of PW14 would disclose that a referred charge sheet was filed in the said case.
28. Firstly, it is a well laid down principle of law that failure to explain the minor injuries found on the person of the accused does not go to the root of the prosecution case. The evidence on record would disclose that A1 sustained only simple injury. Of course, in all fairness, P.Ws.1 to 4 should have spoken to about the injury caused to A1. The fact remains that P.Ws.1 to 4 are the injured witnesses in this case who have spoken to the murder of Gnanaprakasam by A1 to A3. Just because P.Ws.1 to 4 failed to refer to the circumstances under which A1 sustained minor injury, we are not prepared to throw overboard the voluminous ocular evidence found on record.
29. It is true as contended by the learned counsel appearing for A1 to A3 that in the copy of the accident registers Exs.P18, P19 and P21, the participation of only six accused was specifically referred to. Firstly, the jottings noted down by the Doctor who gave treatment to the injured person cannot be treated as a substantial material. It is not as if all the accused armed with weapon attacked the prosecution party and caused injury. The evidence on record would establish that only A1 to A5 armed with weapon attacked the prosecution party and caused injury. The evidence of the prosecution witnesses would further reveal that two of the accused viz., A6 and A7, having laid the unlawful assembly, just stood in the scene of occurrence. As two of the accused, though were present, did not actively participate in the occurrence, the injured persons would have thought of informing the doctor who treated them that only six persons who actually attacked and caused injuries. The first information report speaks of the presence of A6 and A7 at the scene of occurrence when A1 to A5 attacked the prosecution party and caused injuries. PW1 has corroborated the aforesaid version found in the first information report. All the ocular witnesses viz., P.Ws1 to 4 have also supported the case of the prosecution that A1 to A5 attacked the prosecution parties and caused injuries and A6 and A7 were very much present having been part of the unlawful assembly.
30. It is not a case where one more accused was added by the prosecuting agency. As already pointed out by us, the names of seven accused were specifically referred to in the first information report. The witnesses also have spoken to the individual role of the accused.
31. If we carefully go through the tenor of the first information report, it would disclose that PW1 has actually meant that A1 to A5 accompanied by A6 and A7 proceeded to the scene of occurrence viz., the house of the deceased. Though there is a reference as "some others", it is found that those "some others" were specifically named as Anthonisamy A6 and Arokiasamy A7 in the first information report itself. Therefore, the expression "some others" found in the first information report cannot be dissected out of context to mean that "some others" apart from A1 to A7 also have participated in the occurrence. The evidence of PW1 to PW4 is categoric that only A1 to A7 participated in the occurrence.
32. In view of the above, we find that the prosecution could establish with material testimony of P.Ws.1 to 4 that A1 to A3 armed with wooden logs and cricket bat attacked Gnanaprakasam on his head repeatedly with an intention to cause his death and thereby they committed murder of Gnanaprakasam.
33. Charge against A4, A5 and A7 under
section 302 read with 147 of the Indian Penal Code and Charge as against A6 for offence under
section 302 read with 109,
sections 114 and
149 of the Indian Penal Code:-
The first information report, having simply referred to the presence of A6 and A7 speaks about the fact that they were responsible for the occurrence. Nothing has been stated in the first information report that A6 and A7 instigated A1 to A5 to commit the murder of Gnanaprakasam. But, PW1 has deposed before the court quite against the version found in the first information report lodged by him that A6 directed the other accused to attack the prosecution parties. As the aforesaid testimony of PW1 is quite against the spirit of the first information report lodged by him with respect to the role of A6, we are not inclined to accept the evidence of PW1 that A6 instigated the other accused to attack the prosecution party.
34. PW2, of course, would state that A6 and A7 led the unlawful assembly to the scene of occurrence. He has come out with a further embellishment that A7 instigated the other accused to attack the deceased. The aforesaid version is not found a place in the statement recorded under
<act id=ObGxPokB_szha0nWLtNN section=161>section 161 </act>of the Code of Criminal Procedure as per the evidence of PW14. Therefore, the instigation part of the evidence of PW2 is not accepted by us. PW3, though refers to the presence of A6 and A7 at the scene of occurrence, he does not attribute any specific overtact as against A6 and A7. The testimony of PW3 does not lend corroboration to the evidence of PW1 and PW2 with respect to the specific role of A6 and A7. PW4 would depose that A6 and A7 instigated the other accused to attack the deceased. But, in
<act id=ObGxPokB_szha0nWLtNN section=161>section 161 </act>statement, he has not stated that A7 also instigated in such a fashion as per the testimony of PW14. As there is an embellishment with respect to the role of A7 in the evidence of PW4, we are not inclined to accept that part of the evidence of PW4.
35. At any rate, we find that A6 and A7 had accompanied A1 to A5 to the scene of occurrence. PW1 to PW4 have also unambiguously stated that A6 and A7 entered into the house of the deceased alongwith the other accused at the time of occurrence.
36. PW1 to PW4 have spoken to the fact that A1 and some other accused picked up quarrel with PW2 at about 8.30 pm on 19.2.2003. Though the deceased Gnanaprakasam came down to conciliate the dispute between them, the said accused had not turned their ire as against the deceased Gnanaprakasam at that point of time. Just before the occurrence taken place at the residence of Gnanaprakasam, the first accused who came by bicycle in front of the shop of PW6 picked up a quarrel with PW2. Even before PW1 arrived at the said place to enquire about the scene created by the first accused, the first accused had already left the said place and proceeded to the house of A6 Anthonisamy in order to muster strength. P.Ws.1 to 4 have spoken to the fact that the accused were after PW2. Only when all the accused descended on the scene of occurrence proper, the unfortunate Gnanaprakasam, who was in the upstairs at that point of time, having found that A1 to A7 were knocking at the doors and creating scene, wanted to conciliate the dispute. When he came down, he was squarely attacked by A1 to A3 and caused his death. The evidence of PW1 to PW4 would disclose that A1 to A7 came to the house of Gnanaprakasam with the common object of attacking only PW2 and not Gnanaprakasam. The very fact that the accused had already encountered PW2 twice previous to the occurrence proper would fortify the above conclusion arrived at by us.
37. We find that the prosecution miserably failed to establish that there was any instigation emanated either from A6 or A7 to do away with the life of Gnanaprakasam. As already pointed out by us, the common object of the unlawful assembly was to attack PW2 and not Gnanaprakasam.
38. The learned Additional Public Prosecutor referred to the decision in STATE OF MAHARASHTRA v. KASHIRAO ((2003) 10 SCC 434) wherein it has been held as follows:-
"Though
Section 149 IPC may not in a given case apply to a case covered by
Section 301, it would depend upon the factual background involved. No hard-and-fast rule of universal application can be invoked. In the facts of the present case, as adumbrated supra, the essential ingredients of
Section 149 have been amply established. Though initially the malice was focused on PW1, the fact that all the accused chased and assaulted the deceased is a case of transfer of malice. The same was again pursued by coming back and attacking PW1."
39. We find that the ratio laid down in the above case is fairly distinguishable. On a careful perusal of the facts and circumstances of that case, we find that the accused, having stoned the house of PW1, threatened to kill not only PW1 but also his friends. In that process of attack launched by the accused therein, it appears that the deceased attempted to escape through rear door having been afflicted with the mortal fear of assault being launched by the accused party. It is found that the accused party chased and assaulted him with deadly weapons and committed his murder. In the above facts and circumstances, we find that the accused in the said case actually came with the common object of killing not only PW1 but also the deceased in that case. In the aforesaid circumstances, the Honourable Supreme Court has held that the initial malice which was originally focused on PW1 was transferred to the deceased who was chased and assaulted by the accused. The said ratio in the special facts and circumstances of the present case will not apply.
40. The learned Senior Counsel appearing for A4 to A7 submitted a decision in AGHUBIR SINGH v. STATE OF PUNJAB (1996 SCC (Cri) 980) wherein, in the very same set of circumstances, the Honourable Supreme Court held as follows:-
"Our critical analysis of the evidence on he record shows that the common object of the unlawful assembly was limited to the attack on Santokh Singh and did not extend to cover the murder of Balwant Singh. Balwant Singh apparently received the injuries when he intervened during the course of the occurrence and those injuries proved fatal. The trial court rightly found that in the established facts and circumstances of the case, the accused who had actually caused the injuries to Balwant Singh alone were responsible for the murder of Balwant Singh and that others could not be held liable either with the aid of
Section 149 or
Section 34 IPC."
41. In a similar set of facts, it is found that the accused in the said case, who had a common object to eliminate one Santokh Singh, caused the murder of one Balwant Singh who intervened during the course of occurrence. It was held therein that the accused who actually caused injuries to Balwant Singh alone were responsible for his murder and others could not be fastened with criminal liability under
section 302 of the Indian Penal Code with the aid of
section 149 or 34 of the Indian Penal Code.
42. Applying the aforesaid ratio which is applicable to the facts and circumstances of this case, we find that though A4 to A7 were part of the unlawful assembly with the common object of attacking PW2, they cannot be held responsible for the act committed by A1 to A3 beyond the original scope of the common object with which they descended on the scene of occurrence. Therefore, we hold without any hesitation that the charges under
section 302 read with 149 of the Indian Penal Code as against A4, A5 and A7 and charges under
section 302 read with 109, 114 and 149 as against A6 are not established by the prosecution.
43. Simple injury caused by A1 to PW4:- PW4 is the injured witness who has spoken to the fact that it was A1 who attacked on her head with wooden log and caused injury. PW11 Dr.Thilagavathy who treated PW4 has issued copy of the accident register Ex.P20. Ex.P20 would lend corroboration to the evidence of PW4 that PW4 sustained lacerated injury measuring 2x1/4x1/4 cm on the left parietal region. P.Ws.2 and 3 have also categorically deposed before the court that PW4 was attacked by A1 with wooden log and caused injury on her head. There is no reason to disbelieve the evidence of the injured witnesses. We find that the charge that A1 attacked PW4 and caused simple injury stands established.
44. Charge under
section 323 read with 149 of the Indian Penal Code as against A2 to A7:- We have already held that the accused had the common object of attacking only PW2 and not PW4. Therefore, A1, who had caused injury to PW4 beyond the scope of the common object of the unlawful assembly is individually liable for the offence committed as against PW4. There is no evidence to establish that A1 attacked PW4 and caused injury pursuant to the common object of the unlawful assembly. Therefore, A2 to A7 cannot be found guilty for offence under
section 323 read with 149 for the attack launched by A1 on PW4.
45. House trespass by A1 to A7:- PW1 to PW4 have categorically deposed before the court that not only A1 to A5 who were armed with weapons but also A6 and A7 who led the unlawful assembly trespassed upon the house of Gnanaprakasam. We have also discussed the testimony of the ocular witnesses to the fact that A1 to A5, having been present in the house of Gnanaprakasam, attacked the prosecution parties and caused injuries while A6 and A7 were very much present in the house. Therefore, we hold that the prosecution has established that A1 to A7 committed house trespass punishable under
section 448 of the Indian Penal Code.
46. Attack launched by A1, A4 and A5 on PW1 Subash:- PW1 who sustained injury on the head and legs has deposed that it was only A1, A4 and A5, who were armed with wooden logs, attacked him and caused injury. PW11 Dr.Thilagavathy, who treated PW1 and issued copy of the accident register Ex.P19, has spoken to the fact that PW1 sustained injury on the head and legs. The medical evidence lends support to the evidence of PW1. PW3 and PW4 also have categorically deposed that PW1 sustained injury at the hands of A1, A4 and A5 who were armed with wooden logs. There is no reason to disbelieve the evidence of the injured eyewitnesses. Therefore, we find that the prosecution has established beyond reasonable doubt that A1, A4 and A5 attacked PW1 with wooden log and caused simple injuries.
47. Charge as against A2, A3, A6 and A7 for offence under
section 323 read with 149 of the Indian Penal Code:- We have already held that the common object of the unlawful assembly was only to attack PW2. The prosecution has also not established that there was some momentary change of common object at the place of occurrence. Therefore, for the act of A1, A4 and A5 causing injury on PW1 independently, A2, A3, A6 and A7 cannot be saddled with the criminal liability under
section 323 read with 149 of the Indian Penal Code.
48. Injury caused by A5 on PW3:- It is the categorical version of PW1 to PW4 that A5, armed with wooden log, attacked PW3 Reeta Mary and caused simple injury. PW10 Dr.Sagaya Inba Sekar, who issued copy of the accident register Ex.P17, has spoken to the fact that PW3 sustained injury in her left ear. The medical evidence lends corroboration to the ocular testimony of PW1 to PW4. Therefore, we hold that the prosecution has established that A5 attacked PW3 with wooden log and caused simple injury.
49. Charge under
section 323 read with 149 as against A1 to A4, A6 and A7:- We have already held that the prosecution failed to establish the unlawful assembly had common object of attacking PW3. A5 has attacked PW3 beyond the scope of the common object of the unlawful assembly and committed offence under
section 323 of the Indian Penal Code. A1 to A4, A6 and A7 cannot be held liable for the simple injury caused by A5 on PW3.
50. Injury caused by A3 and A4 on PW2:- PW2, the injured witness has categorically deposed that A3 and A4, armed with wooden log, attacked him on head and shoulder respectively and caused injuries. PW3, of course, has not spoken to the attack launched by A3 and A4 on PW2. PW4 has deposed that she had not seen A3 and A4 attacking PW2. PW1, having specifically referred to the injuries caused by A3 and A4 on the head and shoulder of PW2 testified before the Trial Court as to the attack launched by A1 on PW2. PW11 Dr.Thilagavathy had treated PW2 and issued copy of the accident register, Ex.P21. PW11 also pointed out that PW2 sustained injury on the head and shoulder. In view of the above facts and circumstances, we find that the prosecution has established beyond reasonable doubt that A3 and A4 attacked PW2 and caused simple injury punishable under
section 323 of the Indian Penal Code.
51. Charge under
section 323 read with 149 of the Indian Penal Code as against A1, A2, and A5 to A7:- We have held that the unlawful assembly had the common object of attacking PW2. It is in evidence that PW2 was encountered the previous day and also on the day of occurrence just before an occurrence involved by A1 and some of the accused. As they have trespassed upon the house of Gnanaprakasam with the common object of attacking PW2 Deepak, we find that they are liable to answer the offence committed by A3 and A4 under
section 323 of the Indian Penal Code as against PW2. Therefore, we hold that A1, A2 and A5 to A7 who were present at the scene of occurrence in pursuance of their common object of attacking PW2 are found constructively liable under
section 323 read with 149 of the Indian Penal Code.
52. In the result, we hold that A1 to A5 are found guilty for the offence under
section 148 of the Indian Penal Code and they are sentenced to undergo two years rigorous imprisonment each, A6 and A7 are found guilt for the offence under
section 147 of the Indian Penal Code and are sentenced to undergo one year rigorous imprisonment each. The conviction recorded against A1 for the offence under
section 323 of the Indian Penal Code for the attack made on PW4 and the sentence imposed by the Trial Court are confirmed. The conviction recorded against A2 to A7 for the offence under
section 323 read with 149 of the Indian Penal Code for the injury caused on PW4 and the sentence imposed thereunder by the Trial Court are set aside and they are acquitted of the said charge. The conviction recorded against A1 to A7 for offence under
section 448 of the Indian Penal Code and the sentence imposed thereunder are confirmed.
53. The conviction recorded by the Trial Court as against A1 to A3 for offence under
section 302 of the Indian Penal Code and the life imprisonment imposed thereunder for each of the accused are confirmed. The conviction recorded as against A4, A5 and A7 for offence under
section 302 read with
149 of the Indian Penal Code and the conviction recorded as against A6 for the offence under
section 302 read with
sections 109,114, and
149 of the Indian Penal Code and the sentences imposed thereunder are set aside and they are acquitted of the said charges.
54. The conviction recorded as against A1, A4 and A5 for offence under
section 323 of the Indian Penal Code for the injury caused on PW1 and the sentence imposed thereunder are confirmed. The conviction recorded as against A2, A3, A6 and A7 for offence under
section 323 read with 149 of the Indian Penal Code for the attack made on PW1 and the sentences imposed on them thereunder are set aside and they are acquitted of the said charge.
55. The conviction recorded against A5 for the offence under
section 323 of the Indian Penal Code for the attack made on PW3 Reeta Mary and the sentences imposed thereunder are confirmed. The conviction recorded against A1 to A4, A6 and A7 for the offence under
section 323 read with 149 of the Indian Penal Code for the attack made on PW3 and the sentences imposed on them thereunder are set aside and they are acquitted of the said charge.
56. The conviction recorded as against A3 and A4 for the offence under
section 323 of the Indian Penal Code for the attack made on PW2 Deepak and the conviction recorded as against A1, A2 and A5 to A7 for the offence under
section 323 read with 149 of the Indian Penal Code for the attack made on PW2 Deepak and the sentences imposed on them for the said charges are confirmed.
57. The appeals are allowed to the extent indicated above. All the substantive sentences imposed on the accused shall run concurrently. The period undergone already by them is ordered to be set off as against the sentence imposed.
58. A4 to A7 who are on bail shall surrender before the Trial Court within fifteen days from the date of receipt of copy of this order failing which the Trial Court shall take steps to secure them to undergo the remaining period of sentence.
ssk.
To
1. The Principal District and Sessions Judge, Thiruvannamalai.
2. The Judicial Magistrate II, Thiruvannamalai.
3. The Judicial Magistrate II, Thiruvannamalai. Through The Chief Judicial Magistrate, Thiruvannamalai.
4. The Inspector of Police, Vettavalam Police Station, Thiruvannamalai District.
5. The Superintendent of Prisons, Central Prison, Vellore-2.
6. The Director General of Police, Mylapore, Chennai 600 004.
7. The District Collector, Thiruvannamalai District, Thiruvannamalai.
8. The Public Prosecutor, High Court, Madras.
9. The Section Officer, Criminal Side Section, High Court, Madras