Complainant in 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 cum Fast Track Court No.I, Erode, in S.C.No.28/2008 dated 12.5.2008.
For Appellants : Mr.A.K.Kumaraswamy in CA 392/2008 Mr.S.K.Raghavan in CA 585/2008 For Respondent : Mr.N.R.Elango Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals in C.A.Nos.392/2008 made by A-1 to A-5 and 585/2008 by A-6, who stood charged, tried and found guilty by the Additional Sessions Division, Fast Track Court No.I, Erode, and awarded punishment as follows:
ACCUSED CHARGES FINDING PUNISHMENT A-1, A-5, A-6 120-B IPC Guilty Life imprisonment along with a fine of Rs.2000/- and default sentence A-1 to A-5 147 IPC Guilty No separate sentence A-1 to A-5 A-6 302 r/w 149 IPC 302 r/w 120-B IPC Guilty Guilty A-2, A-3 & A-4 Life imprisonment along with a fine of Rs.2000/- and default sentence No separate sentence for A-1, A-5 & A-6 A-1 & A-3 A-2, A-4, A-5 323 IPC 323 r/w 149 IPC Guilty Guilty 1 year Simple Imprisonment 1 year Simple Imprisonment A-1, A-3, A-5 A-2 & A-4 323 IPC 323 r/w149 IPC Guilty Guilty 1 year Simple Imprisonment 1 year Simple Imprisonment
2.Necessary facts for the disposal of these appeals can be stated as follows:
(a) P.W.1 is the son of the deceased Sengodan. P.W.2 is the brother of the deceased. P.W.3 is the wife of the other brother of the deceased. A-1 is the husband of A-2. A-3 was the juvenile accused. A-4 is the brother of A-1. A-5 is the son of A-4. A-6 is the relation of all the other accused. They are all residents of Harijan Colony at Karattangadu, Veerappampalayam. They were also residing nearby in two streets east-west and north-south. A-5 was owning a tea stall on the street situated east-west. There was no previous enmity prevailed over the parties.
(b) On 17.7.2007 at about 6.00 P.M., the deceased Sengodan was just crossing the house of A-1. At that time, A-2, the wife of A-1, was washing clothes and the soap water sprinkled on the deceased, who questioned the same. There was a wordy altercation for half an hour. The same was pacified by the neighbours. Thereafter, on 20.7.2007, at about 6.30 P.M., A-1 and A-6 were in the shop of A-5, and they were all hatching up a conspiracy. The same was overheard by P.W.4.
(c) On 24.7.2007, the date of occurrence, at about 7.30 P.M., Sengodan went to the shop of A-5 to take a tea. At that time, he fell down when he put his leg on the cowdung which was lying in front of the shop. It was actually teased by A-1. Then the deceased went home and along with his son P.W.1 at about 8.30 P.M., he proceeded to the house of P.W.2. At that time, A-1 and A-2 were actually standing on the way. On seeing them, the deceased questioned A-1 how he should tie the cattle on the roadside and a wordy altercation followed for sometime. On hearing the noise, all other accused who were inside the house, came out. A-1 gave a slap on the cheeks of the deceased. A-2 pushed him down. A-1 attacked him with a wooden log on his head and chest. A-3 attacked him on the right leg, while A-4 to A-6 kicked him on different parts of the body. When P.Ws.1 and 2 intervened, A-1 and A-3 attacked them with sticks. The occurrence was witnessed by P.Ws.1 to 3 in entirety. When there was a distressing cry, all the neighbours gathered. On seeing this, the accused fled away from the place of occurrence leaving the wooden sticks. Immediately, the severely injured Sengodan and P.Ws.1 and 2 were taken to the Government Hospital, Erode, in an auto.
(d) P.W.6, the Doctor, on medical examination, declared Sengodan dead. He also examined P.Ws.1 and 2 and recorded the injuries in the wound certificates, Exs.P4 and P5, respectively.
(e) P.W.11, the Sub Inspector of Police, attached to the respondent police station, on receipt of the intimation, proceeded to the hospital and recorded the statement of P.W.1, which is marked as Ex.P1. On the strength of Ex.P1, the report, a case came to be registered in Crime No.304 of 2007 under
Sections 147,323 and
302 of IPC at about 11.30 P.M. on 24.7.2007 itself. Ex.P12, the printed FIR, along with Ex.P1 were despatched to the Court.
(f) P.W.12, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P13. Then he recovered the material objects from the place of occurrence under a cover of mahazar. He conducted inquest on the dead body of Sengodan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. The photographs were caused to be taken through a photographer, P.W.10. The photos and negatives were marked as M.Os.8 and 9 series respectively. A requisition was forwarded to the hospital authorities for the purpose of autopsy.
(g) The dead body was subjected to postmortem by P.W.7, the Civil Assistant Surgeon, attached to the Government Hospital, Erode. He gave a postmortem certificate, Ex.P10, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to head injury 14 to 20 hours prior to autopsy.
(h) All these accused persons were arrested on 25.7.2007 and sent for judicial remand. On completion of investigation, the Investigating Officer 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 marched 12 witnesses and also relied on 14 exhibits and 9 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. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case in entirety and hence found them guilty and awarded punishment which is the subject matter of challenge before this Court.
4.The learned Counsel for the appellants in CA 392/2008 Mr.A.K.Kumaraswamy would submit that the occurrence, according to the prosecution, has taken place on 24.7.2007 at about 8.30 P.M.; that the prosecution originally rested its case on a conspiracy alleged to have taken place on 20.7.2007 in the shop of A-5; that according to the prosecution, there was an incident that had taken place on 17.7.2007 when the deceased was just crossing the house of A-1, and A-2 was washing the clothes, and soap water sprinkled on him, and there was a wordy altercation; that the evidence was so clear that actually that situation was pacified and there was nothing for the accused to carry on any grudge or any inimical terms that prevailed between the parties; that on 20.7.2007, according to the prosecution, there was a conspiracy that was hatched at about 5.30 P.M. in the shop of A-5; that the only witness examined in this regard, was P.W.4; that P.W.4 was a close relative of the deceased; that had it been true that he overheard the conspiracy, he would have informed to any one of his relatives but not done so; that added circumstance to disbelieve the conspiracy was that though the prosecution claimed that the statement of P.W.4 was recorded on 28.7.2007, within two days from the date of occurrence, it has reached the Court on 25.9.2007 long after a lapse of two months; that apart from this, while the situation did not prevail for any conspiracy to be hatched up, the entire prosecution story regarding conspiracy part was nothing but false; and that the trial Court should have rejected but failed to do so.
5.Added further the learned Counsel that as far as the occurrence was concerned, the prosecution examined three witnesses namely P.Ws.1 to 3; that all of them have categorically admitted that on the date of occurrence, the deceased went to the tea stall of A-5 where he fell down when he put his leg on the cowdung, and immediately he went home and brought his son P.W.1, to the place where A-1 and A-2 were available; that it would clearly indicate that the deceased and his son were the aggressors; that P.Ws.1 to 3 have categorically spoken to the fact that there was a wordy quarrel between A-1 and the deceased for nearly about half an hour, and it ended, and after hearing the noise, A-2 to A-6 came from the house; that it is further to be pointed out that in the wordy altercation, according to the prosecution, A-1 and A-3 have attacked the deceased when A-2 pushed him down; that P.W.1 has categorically admitted that the injuries sustained by his father on the head was actually due to the falling when he put his leg on the cowdung; and that under the circumstances, the trial Court should not have found any one of the accused guilty under Sec.302 IPC since the medical opinion canvassed by the prosecution before the trial Court was that the head injury was fatal.
6.Added further the learned Counsel that in the instant case, it is highly doubtful whether Ex.P1, the report, and the corresponding FIR could have come into existence as put forth by the prosecution; that the prosecution claimed that on hearing the information, P.W.11, the Sub Inspector of Police, went to the Government Hospital and recorded the statement of P.W.1, Ex.P1, and he returned to the police station and registered a case at about 11.30 P.M.; that on the contrary, P.W.3 has categorically admitted that after the occurrence was over, the police officials came there, and on enquiry, they were sent to the hospital for medical treatment; that this would clearly indicate that the police people came to the spot and made an enquiry, and thus Ex.P1 document could have come into existence even earlier; and that under the circumstances, the claim made by the prosecution as regards Ex.P1, was false.
7.Added further the learned Counsel that P.Ws.1 to 3 have categorically stated that they came to the place of occurrence only subsequent to the occurrence; that all would go to show that P.Ws.1 to 3 could not have seen the occurrence at all, and hence the prosecution case should have been entirely rejected.
8.The learned Counsel in the second line of his arguments would submit that even assuming that the prosecution is said to have proved its factual position, there is no overt act attributed to A-4 to A-6; that no corresponding injuries are found; that the same would clearly indicate that A-4 to A-6 were simply standing nearby; that there was no common intention since as per the evidence, A-4 to A-6 were actually inside the house; that after hearing the noise due to the wordy altercation, they came out of the house; that under the circumstances, A-4 to A-6 have nothing to do with the crime in question; that it was A-2 who pushed him down; that actually head injury has been sustained by the deceased, and death followed; that the act of the accused is neither intentional nor premeditated; and that if at all, A-2 can be found guilty under Sec.323 of IPC.
9.Added further the learned Counsel that A-1 and A-3, under the circumstances, could have caused simple injuries; that they could be found guilty under Sec.323 IPC, and thus the judgment of the trial Court was erroneous both factually and legally, and judgment has got to be rendered by this Court.
10.The learned Counsel for the appellant/A-6 in CA 585 of 2008 has adopted the arguments put forth by the other learned Counsel.
11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
12.It is not in controversy that in an incident that had taken place at about 8.30 P.M. on 24.7.2007, at the place of occurrence, one Sengodan, the father of P.W.1, died, and when the dead body was taken to the hospital, it was P.W.6, the Doctor, attached to the Government Hospital, Erode, who on examination, declared him dead. Following the registration of the case by the respondent police, the inquest was made by P.W.12, the Investigating Officer. Following the preparation of the inquest report, the postmortem was done by P.W.7, the Doctor, who has given a categorical opinion that the deceased would appear to have died of shock and haemorrhage due to the head injury. The fact that Sengodan died out of homicidal violence was never disputed by the appellants before the trial Court. In such circumstances, no impediment is felt in recording so.
13.In order to substantiate the theory of conspiracy and the murder that followed, the prosecution relied on the evidence of P.Ws.1 to 4. P.W.4 was the sole witness examined to prove the conspiracy part, while P.Ws.1 to 3 were actually occurrence witnesses. As far as the conspiracy alleged to have been hatched up by A-1 and A-6 on 20.7.2007, in the tea shop of A-5 is concerned, the trial Court has agreed with the case of the prosecution. But, this Court is afraid whether it can agree with the case of conspiracy as put forth by the prosecution for the following reasons.
14.The case of the prosecution was that on 17.7.2007 at about 6.30 P.M., the deceased was actually proceeding towards his house; that when he was just crossing the house of A-1, it was A-2 who was washing the clothes; that the soap water sprinkled on the deceased; that he questioned the same; and that there was a wordy altercation between A-2 and the deceased for about half an hour. At that time, even as per the evidence of the witnesses, all other persons intervened and pacified the situation. It remains to be stated that if the situation was pacified, then the accused persons could not have carried on any animosity against the deceased person. Further, the alleged conspiracy has taken place in the tea shop of A-5 at about 6.30 P.M. on 20.7.2007. It is highly doubtful whether such a conspiracy for doing away with a person could take place and that too in a tea shop in the evening hours and whether P.W.4 who was related to the other witnesses, could have overheard the conspiracy. If it is true, he would have certainly informed to the other witnesses, but not done so.
15.Added circumstance to doubt the conspiracy theory was that though the Investigator claimed that the statement of P.W.4 under Sec.161 of Cr.P.C. was recorded on 26.7.2007, it has reached the Court after two months' delay i.e., on 25.9.2007. Thus, by such a feeble and unacceptable evidence, it cannot be taken that the prosecution has brought home the theory of conspiracy. Hence the trial Court should have rejected that part of the case. Accordingly, the theory of conspiracy put forth by the prosecution fails.
16.As far as the occurrence is concerned, the prosecution marched three witnesses who are P.Ws.1 to 3, from whose evidence, it would be quite clear that on the day of occurrence, the deceased actually went to the tea shop of A-5 to have a tea; that at that time, he fell down when he put his leg on the cowdung; that A-1 teased the same; that by that the deceased was actually raged; and that he went home with that anguish and brought his son P.W.1 in order to inform the same to P.W.2. The evidence would further go to show that on the way, they met A-1; that suddenly the deceased questioned A-1 how he tied the cattle in the public street; and that he replied that he would do so. At this juncture, as rightly pointed out by the learned Counsel for the appellants pointing to the evidence of P.Ws.1 to 3, there was a quarrel between A-1 on the one side and the deceased and P.W.1 on the other for nearly about half an hour. On the noise created, A-2 to A-6 have come out of the house. Actually it was A-1 who slapped the deceased on his cheek. A-2 pushed him down, and thereafter, A-1 attacked him on the head and chest. A-3 attacked him on the right leg. So far as this part of the occurrence is concerned, P.Ws.1 to 3 have given their evidence in one voice. This ocular testimony projected through P.Ws.1 to 3 stood fully corroborated by the medical evidence through the postmortem Doctor. He has categorically opined that death would have been caused due to the head injury, and the corresponding external injury found on the temporal region. Thus, it would be quite clear that those injuries could not have been caused by falling down when he was pushed down by A-2; but, it should have been caused when he was actually attacked by A-1. As far as the attack made by A-1 are concerned, the corresponding injuries are noticed, and equally, the injury caused by A-3 on the right leg of the deceased is also noted in the postmortem certificate. Thus, the act of A-1 was a fatal one, and the death has been caused. A-2 has pushed him down, and it was A-3 who attacked him on the leg.
17.As far as A-4 to A-6 are concerned, they were not attributed with any overt act. They had no role to play. Added circumstance is that even according to P.Ws.1 to 3, number of persons were also standing by the side, and thus nothing could be attributed to A-4 to A-6. Hence they are entitled for acquittal.
18.As far as A-1 is concerned, as stated above, it was he who caused the fatal injury. The above circumstances, when noticed, would indicate that there was a wordy altercation for about half an hour, and in that process, A-2 to A-6 came out of the house, and thus it would be quite clear that there should not have been any common object in furtherance of which they have acted either, or they had common intention to share with. Under the circumstances, individual act has got to be dealt with. As far as A-1 is concerned, he has caused fatal injury, but without intention or premeditation, and he has also attacked him with the wooden log, and that too following the quarrel that went for half an hour. Under the circumstances, A-1 could not be found guilty for the act of murder, but could be found guilty under Sec.304 (Part II) of IPC, and awarding five years Rigorous Imprisonment would meet the ends of justice. As far as A-2 and A-3 are concerned, they have caused simple injuries to the deceased, and hence they have got to be found guilty under Sec.323 of IPC instead of murder, and awarding of one year Simple Imprisonment would meet the ends of justice. Apart from that, A-1 and A-3 have caused simple injuries to P.Ws.1 and 2, and the judgment of the trial Court in that regard has got to be sustained.
19.Accordingly, the judgment of conviction and sentence passed by the trial Court on A-4 to A-6 is set aside, and they are acquitted of the charges levelled against them. The bail bonds executed by them shall stand terminated. The fine amounts if any paid by them, will be refunded to them.
20.The conviction of A-1 under Sec.302 read with 149 IPC is set aside, and instead, he is convicted under Sec.304 (Part II) of IPC and is directed to suffer five years Rigorous Imprisonment. The sentence already undergone by him shall be given set off.
21.The conviction and sentence imposed by the trial Court on A-1 under Sec.120-B IPC are set aside, and he is acquitted of that charge. However, the fine amount imposed by the trial Court shall be treated as fine imposed under Sec.304 (Part II) of IPC.
22.The conviction and sentence imposed by the trial Court on A-2 and A-3 under Sec.302 r/w 149 of IPC are set aside, and instead, they are convicted under Sec.323 of IPC and directed to undergo one year Simple Imprisonment. The fine amount if any paid by them in that regard will be refunded to them.
23.As regards the conviction under Sec.147 of IPC, the same is set aside, and A-1 to A-3 are acquitted of that charge. As regards the conviction and sentence imposed by the trial Court on A-1 and A-3 under Sec.323 (2 counts) IPC, they are sustained. As far as the conviction and sentence imposed by the trial Court on A-2 under Sec.323 read with 149 IPC (2 counts) are concerned, they are set aside, and A-2 is acquitted of that charge. The sentences imposed on A-1 and A-3 are to run concurrently.
24.In the result, C.A.No.585/2008 is allowed, and C.A.No.392/2008 is partly allowed. It is reported that A-1 to A-3 are on bail. Hence the Sessions Judge shall take steps to commit them to prison to undergo the remaining period of sentence.
(M.C.,J.) (C.S.K.,J.) 13-7-2009 Index: yes Internet: yes nsv To:
1.The Additional District and Sessions Judge Fast Track Court No.I Erode
2.The Inspector of Police Erode North Police Station (Crime No.504/2007) Erode Town.
3.The Public Prosecutor High Court, Madras.
M.CHOCKALINGAM, J.
AND C.S.KARNAN, J.
nsv C.A.Nos.392 and 585/2008 Dt: 13-7-2009