both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge and Special Judge (E.C. Act), Salem, by a judgment dated 16.4.2009 in S.C.No.280 of 2005.
For Appellants : Mr.B.Vasudevan in CA 328/2009 Mr.M.Ravi in CA 613/2009 For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals namely C.A.No.328 of 2009 by A-1 and A-2 and C.A.No.613 of 2009 by A-3.
2.These appeals challenge a judgment of the Additional Sessions Division, Special Court (EC Act), Salem, made in S.C.No.280 of 2005 whereby the appellants three in number stood charged, tried and found guilty as per the charges under Sections 341 and 302 read with 34 of IPC and awarded one month Rigorous Imprisonment and life imprisonment along with a fine of Rs.2000/- and default sentence respectively.
3.Short facts necessary for the disposal of these appeals can be stated thus:
(a) P.Ws.1, 2 and 9 were residents of Johnsonpet, Salem. P.W.3 is a native of Tharamangalam. P.Ws.4 and 5 were residents of Pachapatti. P.W.1 is a friend of the deceased Gold @ Prabu. P.W.2 is the brother-in-law of the deceased. On 8.5.2004 at about 7.00 P.M., P.W.1 accompanied by the deceased, P.W.3 and one Mayakannan went to an arrack shop at Kallakurichi. After consumption, both P.W.3 and Mayakannan left for Hasthampatty. P.W.1 and the deceased were on their way in a Hero Honda motorcycle which belonged to P.W.3. They proceeded to the shop of P.W.3 and took fish, and thereafter, they were proceeding further. When they were just nearing State Bank Colony, in which P.W.8 was the watchman that day, at about 11.15 P.M., all the three accused waylaid P.W.1 and the deceased, and it was A-1 who commenced the quarrel. Immediately, the deceased used filthy language. Then, it was A-2 who pushed him down and kicked on his neck. A-1 took a stone and attacked him on different parts of his head. A-3 also took a brick and attacked him on the head. The occurrence was witnessed by P.Ws.1 to 3. When there was a distressing cry and the crowd gathered, the accused fled away from the place of occurrence.
(b) P.W.1 proceeded to the respondent police station at about 12.30 A.M. on 9.5.2004 and gave Ex.P1, the complaint, to P.W.13, the Sub Inspector of Police, who was on duty that time. On the strength of the complaint, Ex.P1, a case came to be registered in Crime No.429 of 2004 under
Sections 341 and
302 of IPC against all the three accused. The express FIR, Ex.P13, was despatched to the Court.
(c) On receipt of the copy of the FIR, P.W.14, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P8, and also a rough sketch, Ex.P14. Then the place of occurrence along with the dead body was photographed through a photographer, P.W.10, and Ex.P10 is the photo. The Investigator recovered the material objects from the place of occurrence including bloodstained earth and sample earth. Then, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P15. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(d) P.W.11, the Professor, Government Mohan Kumaramangalam Medical College Hospital, Salem, on receipt of the said requisition, conducted autopsy on the dead body of Gold @ Prabu and has found the following external injuries:
"(1)Transversely placed laceration 4 x 1 cm bone deep over the left side of fore head, close to the hair line and vertically above the inner end of left eyebrow.
(2)Laceration involving the whole of left eyebrow bone deep contusion involving the whole of left upper eyelid.
(3)Transversely placed laceration involving the whole right upper eyelid with contusion of the whole lid.
(4)Total sub-conjunctional haemorrhage in both the eyeballs and extravastion of blood into the soft tissues and muscles surrounding both eyeballs and they appeared as two, soft, slimy red jelly balls.
(5)Abraded contusion 3 x 20 involving both the alac and tip of nose with flattening of the same.
(6)Upper lip was found torn through and through to a length of 2 cms in the middle of its Rt-half.
(7)Laceration 2 x 0.5 cms muscle deep over the middle of left half of lower lip.
(8)Oblique placed laceration 4 x 1 cms bone deep over the middle of left half lower jaw.
(9)Multiple abraded contusions of varying sizes over the whole of both cheeks and the face as a whole appeared pty.
(10)Abraded contusion 4 x 3 cms over the front of neck in the middle 3 cms above supra-sternal notch.
(11)Abrasion 3 x 2 cms over the outer aspect of right elbow.
(12)Abrasion 2 x 1 cm over the back of left elbow."
The Doctor has issued a postmortem certificate, Ex.P12, with his opinion that the deceased died of shock and haemorrhage due to cranio-facial (including neck) injuries, and death would have occurred within 12 hours prior to autopsy.
(e) On 9.5.2004, pending investigation, the Investigating Officer arrested A-2 and A-3. Both came forward to give confessional statements, and the same were recorded by the Investigator in the presence of witnesses. The admissible part of the confessional statement of A-2 is marked as Ex.P16, pursuant to which he produced M.O.10, bloodstained shirt, which was recovered under a cover of mahazar. The admissible part of the confessional statement given by A-3, is marked as Ex.P18, pursuant to which he produced M.O.11, bloodstained shirt, which was recovered under a cover of mahazar. They were sent for judicial remand.
(f) The Investigator came to know that A-1 surrendered before the Court. Then he filed a memo for police custody, and the same was ordered. On 17.6.2004, when A-1 was interrogated, he came forward to give a confessional statement voluntarily. The same was recorded. The admissible part is marked as Ex.P20 pursuant to which he produced M.O.12, shirt, which was recovered under a cover of mahazar. He was sent for judicial remand.
(g) All the material objects recovered from the place of occurrence and from the dead body and the material objects recovered from the accused on production pursuant to the confessional statements, were sent for chemical analysis through the Judicial Magistrate Court. Accordingly, they were subjected to and the chemical analyst's reports, Exs.P24 and P25, and the serologist's report, Ex.P26, were received. On completion of investigation, the Investigator filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to establish the charges, the prosecution examined 14 witnesses and also relied on 27 exhibits and 12 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 which they flatly denied as false. Though no witnesses were examined on their side, one document was marked as Ex.D1. After the evidence was over, the trial Court heard the arguments advanced. After considering the submissions made and the evidence available, the trial Court took the view that the prosecution has proved the case beyond reasonable doubt on both the charges and hence found them guilty and awarded punishment as referred to above. Hence these appeals at the instance of the appellants.
5.Advancing arguments on behalf of the appellants/A-1 and A-2 in CA No.328 of 2009, the learned Counsel Mr.B.Vasudevan would submit that in the instant case, the occurrence, according to the prosecution, has taken place on 8.5.2004 at about 11.15 P.M.; that the prosecution marched three witnesses as eyewitnesses namely P.Ws.1, 2 and 8; that as far as P.W.2 was concerned, his name does not find place in the FIR; that he is also the brother-in-law of the deceased; that he was subsequently introduced as a witness in the case; that under the circumstances, no evidentiary value could be attached to the evidence of P.W.2; that as far as P.W.8 was concerned, he was claimed to be the Watchman of the State Bank Colony in front of which the occurrence has taken place; that as regards P.W.8, he was an utter stranger, and he has also not produced any documentary evidence to indicate that he was actually employed as a watchman during the relevant time on the day; that the evidence of P.W.8 should have been rejected by the trial Court for the simple reason that once he claimed to be an utter stranger to the deceased and the accused, identification parade should have been conducted in which he should have identified them; but, the test identification parade was not at all conducted; that under the circumstances, the evidence of P.W.8 is thoroughly unnatural; that as far as the evidence of P.W.1 was concerned, it is an admitted position that he was also a close friend of the deceased who accompanied him; that it is further to be pointed out that when there was a quarrel, he was not at all attacked by any one of the accused; that it is also not his case that he was attacked by anybody; that it would be quite clear that such an incident could not have taken place at all; that the evidence that when the deceased and himself were coming, they were waylaid, and there was a wordy altercation, and P.W.1 was not touched by anybody looks unnatural; that it would be quite clear that only after the occurrence was over, P.W.1 would have been informed of the fact, and then he came to the place, went to the police station and gave the complaint wherein he has mentioned the name of the accused, which is totally imaginary; and that under the circumstances the trial Court should have disbelieved the prosecution case and rejected the same, but entered a judgment of conviction.
6.Added further the learned Counsel that as far as the recovery of the material objects was concerned, according to the prosecution, A-1 surrendered before the Court, and police custody was ordered, and he was taken to police custody, and he came forward to give a confessional statement, and he also produced a bloodstained shirt after a month; that these are all nothing but cooked up affair; that all the documents have been created for the purpose of the case; that all would go to show that the prosecution has not proved its case against A-1 and A-2, and hence they are entitled for acquittal in the hands of this Court.
7.Added further the learned Counsel in the second line of argument that even if the Court records a finding that the prosecution has proved the factual position that A-1 and A-2 have participated in the crime, the act of the said accused would not attract the penal provision of murder; that even as per the admitted case of the prosecution, there was a quarrel and in that, it was the deceased who used filthy language; that sufficient provocation would have been caused to the appellants, and hence they have acted so; that it would be quite clear that they have not acted with any intention, and hence the Court has to consider the legal position in that aspect.
8.As far as the appellant/A-3 in C.A.No.613 of 2009 is concerned, the learned Counsel Mr.M.Ravi after adopting the above arguments, would further add that as far as A-3 was concerned, though his name is mentioned in the FIR, P.W.1 even at the time of the chief-examination though mentioned the names of A-1 and A-2, has further added as third person, and he did not name that accused; that at the time of cross-examination, he did not say about A-3 at all; that under the circumstances, it would be quite clear that A-3 could not have been present at the place of occurrence at all; that the prosecution has marched P.W.8; but, the evidence of P.W.8 for the reasons stated by the Counsel in the other appeal, should not be believed, and under the circumstances, A-3 is entitled for acquittal in the hands of this Court.
9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
10.It is not in controversy that one Gold @ Prabu met his death in an incident that had taken place at about 11.15 P.M. On 8.5.2004, in the place of occurrence as put forth by the prosecution. Following the inquest made by the Investigator, P.W.14, at the place of occurrence and preparation of the inquest report, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given his opinion as a witness before the Court and also through the contents of the postmortem certificate that the deceased died out of shock and haemorrhage due to cranio-facial (including neck) injuries, and death would have occurred within 12 hours prior to autopsy. The time and cause of death as put forth by the prosecution was never disputed by the appellants before the trial Court or before this Court. Under the circumstances, no impediment is filed in recording so.
11.In order to substantiate that it was the appellants who caused the death of the deceased, the prosecution has marched 3 witnesses namely P.Ws.1, 2 and 8. As far as P.W.2 is concerned, his evidence cannot be accepted for the reason that his name does not find place in the FIR which is the earliest document in the whole case. As far as P.W.2 was concerned, he happened to be the brother-in-law of the deceased. Even P.W.1 at the time of evidence has narrated that he was accompanied by the deceased at the time when the incident had taken place. Though he has stated the name of P.W.8, he has not even stated the name of P.W.2. Under the circumstances, it is highly doubtful whether P.W.2 could have been present at the place of occurrence at all, and hence the evidence of P.W.2 should not be given any evidentiary value.
12.As far as the evidence of P.Ws.1 and 8 are concerned, despite cross-examination in full, it remained unshaken. As regards A-1 and A-2, P.W.1 has categorically spoken to the fact that they went to the arrack shop and consumed arrack; that they were on the way; that they were just nearing the State Bank Colony; that at that time, they were waylaid by the three accused; that in that there was a quarrel in which the deceased spoke filthy language, and he was attacked by the three accused. It is true that P.W.1 has not mentioned at the time of evidence the name of A-3. But, it is pertinent to point out that the name of A-3 is well mentioned in the FIR, the earliest document. Apart from this, in the case on hand, the evidence of P.W.8 goes to the effect that he saw all the three accused who were actually before the Court, and A-3 has also participated in the crime. He has also specifically stated that it was A-3 who attacked the deceased with a stone on different parts of the head along with A-1. This Court is unable to see any reason why the evidence of P.W.8 has got to be disbelieved. Now he claimed to be the watchman of a Colony. Thus his presence at that time is very well mentioned in the earliest document namely the FIR, and he has also deposed before the Court. It is true that P.W.1 has not mentioned the name of A-3 at the time of the trial. But evidence is available through P.W.8, and hence it would be quite clear that at the time of occurrence all these persons waylaid the deceased and P.W.1, and there was a wordy altercation, and it was A-2 who pushed him down and kicked him on his neck, and A-2 and A-3 attacked him with stones, which ensued in the death of the deceased.
13.Apart from the above, the ocular testimony projected through these witnesses stood fully corroborated by the medical evidence. In the case on hand, the occurrence has taken place at 11.15 P.M., and the case came to be registered within a short span of 45 minutes. The investigation also commenced at the earliest, and all other things have procedurally followed. Yet another circumstance which stood against the accused is the arrest of the accused when they have come forward to give confessional statements and the recovery of the material objects. They were all sent for chemical analysis, and human blood was also detected. It is true that blood group was not tallying. But, the evidence adduced by the prosecution before the trial Court would suffice to record a finding as to the culpability of A-1 to A-3 that they have attacked him as a result of which the deceased met his end. Hence, it can be well stated that the prosecution has proved the factual position with sufficient evidence. Under the circumstances, the contentions put forth by the learned Counsel for the appellants do not merit consideration, and they are liable to be rejected and accordingly rejected.
14.As far as the second line of argument is concerned, this Court is able to see force in their contention. Even according to the eyewitnesses P.Ws.1 and 8, the deceased and P.W.1 were proceeding on the way, and at that time, they were waylaid, and there was a wordy altercation, and it was the deceased who spoke filthy language following which the accused have been provoked by the same, and A-2 and A-3 attacked him with stones, while A-1 kicked him on the neck as a result of which he died. At the time of occurrence, they were unarmed with either of the stones. But, they have picked up the same from aside. All would clearly indicate that they did not have intention to cause death. But, at the same time, it should have been their intention to cause such injury which, in the ordinary course of event, is likely to cause death. This Court is of the view that the act of the appellants/A-1 to A-3 would not attract the penal provision of murder, but it would be culpable homicide not amounting to murder, and they are to be found guilty under Sec.304 (Part I) of IPC, and awarding 7 years Rigorous Imprisonment would meet the ends of justice.
15.Accordingly, the conviction and sentence imposed by the trial Court on the appellants under Sec.341 IPC are confirmed. As regards the conviction and sentence imposed by the trial Court under Sec.302 read with 34 of IPC, they are set aside, and instead, the appellants are convicted under Sec.304 (Part I) of IPC and directed to suffer seven 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. Both the sentences are to run concurrently.
16.In the result, with the above modification in conviction and sentence, both these criminal appeals are dismissed.
nsv To:
1.The Additional District and Sessions Judge and Special Judge (EC Act) Salem.
2.The Inspector of Police Hasthampatty Police Station Salem District (Crime No.429 of 2004)
3.The Public Prosecutor High Court, Madras