CA Nos.156 & 157/2008 CA 575/2008:
C.A.Nos.156, 157 and 575 of 2008 preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the II Additional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated 30.1.2008.
C.A.No.575/2008 preferred under Sec.378 of the Code of Criminal Procedure against the order of acquittal made by the II Additional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated 30.1.2008.
Criminal revision case preferred under Sec.397 r/w 401 of the Code of Criminal Procedure against the order of acquittal made by the II Additional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated 30.1.2008.
For Appellants : Mr.R.Shanmugasundaram Senior Advocate for Mr.A.Stalin for A-1, A-8 in CA 157/2008 for A-3, A-12 in CA 156/2008 and for RR1, 2, 4, 5, 6, 9 to 11, 13 to 20 & 22 to 24 in CA 575/2008 Mr.V.Gopinath Senior Advocate for Mr.K.Gandhikumar for A-7 in CA 157/2008 for A-22 in CA 156/2008 For Petitioner : Mr.C.D.Johnson in CRL.RC 1137/2008 For Respondents : Mr.Natarajan Additional Public Prosecutor (Pondy) in CA 156 &157/2008 and Crl.RC 1137/2008 and for Appellant in CA 575/2008 COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these three appeals namely C.A.No.156/2008 by A-3, A-12 and A-22, C.A.157/2008 by A-1, A-7 and A-8 and C.A.575/2008 by the State of Pondicherry and also Crl.R.C.No.1137 of 2008 by P.W.1.
2.The appellants in CA 156 and 157/2008, six in number, along with 19 others stood charged, and on trial A-1, A-3, A-7, A-8, A-12 and A-22, the appellants herein, were found guilty as follows. A-21 absconded, and hence the case was split up in his regard in S.C.No.12/2006.
ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-24 148 IPC A-1, A-3, A-7, A-8, A-12 and A-22 guilty 3 years RI with a fine of Rs.2000/- and default sentence A-1 to A-24 302 r/w 149 IPC A-1, A-3, A-7, A-8, A-12 and A-22 guilty Life Imprisonment with a fine of Rs.5000/- and default sentence A-1, A-3, A-12 & A-21 4(b) of the Explosive Substances Act r/w 149 IPC A-1, A-3, A-12 guilty 5 years RI with a fine of Rs.3000/- and default sentence A-1, A-3, A-12 & A-21 4(a) of the Explosive Substances Act r/w 149 IPC A-1, A-3, A-12 guilty 5 years RI with a fine of Rs.3000/- and default sentence A-1 to A-24 307 (2 counts) r/w 149 IPC A-1, A-3, A-12 guilty 7 years RI with a fine of Rs.1000/- and default sentence A-1 to A-24 333 (2 counts) r/w 149 IPC A-1, A-3, A-12 guilty 7 years RI with a fine of Rs.1000/- and default sentence A-1, A-3, A-6 to A-8, A-12, A-21, A-22 and A-25 109 r/w 302 IPC and Sec.4(a) of the Explosive Substances Act Not guilty A-1, A-3, A-6 to A-8, A-12, A-21, A-22 and A-25 120-B r/w 302 IPC and Sec.4(a) of the Explosive Substances Act Not guilty
3.A-1, A-3, A-7, A-8, A-12 and A-22 were not found guilty in respect of the other charges levelled against them, and all other accused were not found guilty in respect of all the charges levelled against them. As against the part of acquittal, the aggrieved State of Pondicherry has brought forth C.A.No.575/2008, and P.W.1 has brought forth Crl.R.C.No.1137/2008.
4.Necessary facts for the disposal of the above appeals and revision case can be stated as follows:
(a) P.W.1 is the younger brother of the deceased Jayakumar. On 26.3.2004, the deceased drove the motorcycle bearing Registration No.PY 01 R 1354 marked as M.O.9. P.W.1 was sitting as a pillion rider. They were returning to the house after meeting an Advocate in the Court premises. At about 1.40 P.M., they were just reaching the junction of Uppalam Road and Cuddalore Road. At that time, all the accused were standing in a crowded manner. A-1 and A-3 were riding two motorbikes, while the other two accused were sitting behind. They dashed the vehicle against the motorbike which was driven by the deceased. P.W.1 and the deceased fell down. Immediately, it was A-1 who attacked the deceased with an aruval on the right shoulder. P.W.1 and the deceased made an attempt to escape. They were running towards Mudaliarpet Police Station situated nearby. When they were doing so, it was A-22 who gave a cut on the back of the head of the deceased. However managing the situation, the deceased and P.W.1 made an entry into the police station. At that time, it was P.W.3, one Rajaram, the Head Constable of the Station, was on duty, while P.W.4 was the Para Constable. While all the accused chased them, A-3, A-12 and A-21 gave cut injuries. Para Constable, P.W.4, caught hold of A-3, and P.W.3 caught hold of A-22. A-3 attacked P.W.4, and A-22 attacked P.W.3. A-1, A-3 and A-12 who were having bombs in hand, threw on the deceased. When it was thrown, P.Ws.3 and 4 were also injured. Immediately, P.W.1 rushed to his house situated 150 meters away. He informed to the relatives and came back.
(b) P.W.32 was the Sub Inspector of Police attached to the respondent police station. He received the wireless message from P.W.3 and rushed to the police station. Then P.W.1 gave a complaint under Ex.P1 to P.W.32. On the strength of Ex.P1, the report, a case came to be registered in Crime No.101 of 2004 under
Sections 147,148,302,307,330 of IPC and Sec.4 of Explosive Substances Act r/w
Sections 35,109 and
149 of IPC against all the 25 accused. The printed FIR, Ex.P53, and other records were sent to the Court.
(c) P.W.34, the Inspector of Police, on message proceeded over there and got a copy of the FIR. Thereafter, he took up investigation, proceeded to the spot, made an observation of the scene of occurrence and prepared an observation mahazar, Ex.P56, and also a rough sketch, Ex.P57. Thereafter, P.Ws.3 and 4 were sent to the Government Hospital. P.W.17 examined P.W.3 at 3.00 P.M., and also examined P.W.4 at 3.10 P.M. The wound certificates are marked as Exs.P25 and P26 respectively. Then the Investigator conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P60. A requisition was given to the hospital authorities for conduct of autopsy.
(d) P.W.15, the Chief Medical Officer, Department of Forensic Medicine, JIPMER, Pondicherry, on receipt of the said requisition, conducted autopsy on the dead body of Jayakumar and has issued a postmortem certificate, Ex.P20, with his opinion that the cause of death of the deceased was due to shock due to multiple injuries sustained by the deceased, chief being the head and neck injuries.
(e) P.W.34 examined the witnesses and recorded their statements. In particular, he examined P.W.12, who spoke about the conspiracy hatched up on 25.3.2004, by the accused pursuant to which the occurrence has taken place. P.W.13 was examined from whom Exs.P17 and P18 were recovered to show that A-2 had attended duty on 26.3.2004, as part time worker in the Forest Department. Further, sanction was asked for from P.W.31, the District Magistrate of Pondicherry. He has also given sanction under Exs.P51 and P52.
(f) On 29.3.2004, the absconding accused Suresh, A-12, A-22, A-3, A-8 and A-23 were arrested. The Investigator recovered the material objects. They came forward to give confessional statements, which were recorded. The admissible parts are marked as Exs.P11 to P16 respectively. Pursuant to the same, M.Os.1 to 4, weapons of crime, were recovered under a cover of mahazar. They were sent for judicial remand. A-16 was arrested on 30.3.2004. He gave a confessional statement which was recorded. He was sent for judicial remand. A-1, A-6 and A-24 were arrested on 6.4.2004. They came forward to give confessional statements which were recorded. They were sent for judicial remand. On 24.5.2004, A-7 was arrested, and he gave a confessional statement which was recorded. He was sent for judicial remand. Then on 24.6.2004, the Investigator arrested A-4, A-5, A-9, A-10, A-11, A-15, A-17, A-18 and A-20. They came forward to give confessional statements which were recorded. They were sent for judicial remand.
(g) On 13.7.2004, A-2 was arrested, and he came forward to give a confessional statement which was recorded. He was sent for judicial remand. On 25.7.2004, A-14 was arrested, and he came forward to give a confessional statement, which was recorded. He was sent for judicial remand. A-13 was arrested on 30.7.2004, and he came forward to give a confessional statement, which was recorded. Then he was sent for judicial remand. On 3.8.2004, A-25 was arrested. He gave a confessional statement, which was recorded. He was sent for judicial remand. A-19 surrendered before the Judicial Magistrate's Court. On completion of investigation, the Investigator filed the final report.
5.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 35 witnesses and also relied on 69 exhibits and 34 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. The defence examined D.Ws.1 to 5 through whom Exs.D1 to D19 were marked. Ex.C1 was also marked by the Court. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-1, A-3, A-7, A-8, A-12 and A-22, and hence found them guilty and awarded punishment as referred to above. Hence the above aggrieved appellants/accused have brought forth C.A.Nos.156 and 157 of 2008, while the State aggrieved over the part of order of acquittal has brought forth C.A.No.575 of 2008 and the revision by P.W.1 in Crl.R.C.No.1137 of 2008.
6.Advancing arguments on behalf of A-1, A-3, A-8 and A-12, the learned Senior Counsel Mr.R.Shanmugasundaram would submit that in the instant case, the prosecution relied on the evidence of P.Ws.1 to 4 as eyewitnesses to the occurrence; that as far as P.W.2 was concerned, the lower Court was not prepared to accept the evidence; that the evidence of P.Ws.1, 3 and 4 were taken up for consideration by the trial Court; and that as far as the so-called eyewitnesses are concerned, their evidence was in support of the prosecution.
7.The learned Senior Counsel at the outset would submit that P.W.1 was shown as an eyewitness, through whom according to the prosecution, Ex.P1, the report, has come into existence; that P.W.1 could not have been in the place of occurrence at all; that he was only a 19 years old boy who was studying X Standard; that the occurrence, according to the prosecution, has taken place at about 1.45 P.M. that was on a working day; and that though P.W.1 claimed to be present, his name does not find place in the contemporaneous document namely the G.D. which is marked as Ex.P3. Added further the learned Senior Counsel that it would be quite clear that though he claimed to be present in the place of occurrence, it is curious that he was not attacked by any one out of 25, and he was not found with any bloodstain; that it is pertinent to point out that the FIR has reached the Court at about 12.00 A.M. night; that P.W.32 would claim that the case was registered at 2.00 P.M.; that if to be so, why there was a huge delay remained unexplained; that P.W.34 when he was cross-examined in that regard, has deposed that he did not enquire how the delay was caused; and that as far as P.W.1 was concerned, had he been present, his presence should have been made mention anywhere, but not done so.
8.Added further the learned Senior Counsel that D.W.5, the News Reporter, was examined; that within a short span of 15 minutes, he rushed to the place and took photographs, and the same were published in the newspaper next day as a news item; but, the presence of P.W.1 was not whispered anywhere.
9.Added further the learned Senior Counsel that P.W.1 could not have been in the place of occurrence for the reason that A-1 to A-25 have been added by entering their names, addresses, features, etc., which are found place; that the evidence of P.W.3 would go to show that the entry that was made by the Sub Inspector of Police nowhere indicates the presence of P.W.1 at the time when the G.D. entry was made; and that so long the GD entry does not speak about the presence of P.W.1, through whom the complaint has come into existence, it would be indicative of the fact that P.W.1 could not have been present at the place of occurrence at all.
10.Added further the learned Senior Counsel that as far as P.Ws.3 and 4 are concerned, the trial Court has placed much reliance on their evidence; but, their evidence was found to be thoroughly discrepant; that both the witnesses according to the Investigator, were taken to the hospital immediately; that P.Ws.3 and 4 have categorically stated to P.W.17 the Doctor, that four persons attacked them; that at the time of evidence, P.W.3 has categorically spoken to the fact that he was attacked by A-21 only; that equally, P.W.4 has also spoken to the same fact; that under the circumstance, the attack was by only one; that had it been true that they gave such a statement to the Doctor that they were attacked by four persons, it is highly doubtful; that equally according to P.W.34, he received a message, and immediately he rushed to the spot and when he received the wireless message, only the names of three accused were mentioned and some others and neither 22 persons nor the involvement of any other accused; and that all would go to show that the earliest document G.D. or the information given to P.W.34 does not implicate or show the involvement of these accused persons.
11.The learned Senior Counsel would further add that all these accused persons are related to each other; that A-1, A-2, A-4 and A-5 are brothers; that A-3 is the son of A-25; that A-6 and A-7 are brothers of A-3; that A-8 and A-12 are brothers; that A-9 is the nephew of A-8; that A-21 and A-22 are brothers, and thus they are all related to each other; that the police would have added their names or P.W.1 at the instigation of his friend who was involved in the earlier murder, should have roped in all these accused persons; that they have nothing to do with the crime; that the motive part which was attributed by P.W.1 is found to be entirely different; that in the FIR, he has stated that the deceased implicated A-1 in a murder case, and thus A-1 was aggrieved, and he hatched up a conspiracy, and it has culminated in the murder; but, he has given a version in the evidence contra; that according to his evidence, it was A-1 who implicated the deceased in an earlier murder case, and thus, contradictory version as to the motive was spoken to by P.W.1; that this would be indicative of the fact that P.W.1 with different versions has gone on his own grudge; that P.W.1 is also shown to have involved in number of criminal cases, and thus, his evidence could not be believed; that P.W.3 was the Head Constable and P.W.4 was the Para Constable at the police station; that P.Ws.3 and 4 though claimed that they were injured at the time of the occurrence, they are expected to give special reports; but, either P.W.3 or P.W.4 have not given any special report at all; that no explanation was forthcoming in that regard; that as far as P.Ws.3 and 4 are concerned, they have given evidence, and the original statements given by them are found to be different; that it is a case where the occurrence has taken place in a police station; that not only a murder has taken place, but also P.W.3 Head Constable, and P.W.4 Constable, were injured; that bombs were also hurled; that under the circumstances, the higher officials should have come to the police station immediately and that too in the State of Pondicherry; but, in the instant case, the FIR has reached the Court at about 12.00 A.M. night; that no explanation is tendered; that ordinarily mere delay will not suffice to reject the prosecution case; but, in the case on hand, the unexplained and inordinate delay would tell upon the prosecution case and that too the occurrence has taken place inside the police station; and that under the circumstances, the evidence forthcoming from the prosecution side should not be accepted.
12.The learned Senior Counsel pointing to the original FIR, would contend that the serial number is 2301; that the next number as could be seen is 2303, and Sl.No.2302 is found missing; that no explanation was forthcoming; that added further, as expected by the procedure, the carbon copies should have been despatched to the authorities; that in the instant case, photocopies were actually sent; that the photocopies which were placed before the higher officials would clearly indicate that they could not have been prepared from the original since discrepancies are found; that for instance, A-21's name is not in the original FIR, and it has been interpolated in the photocopy; that equally, in the column "receiving the copy of the FIR" at the second page, no signature is found in the original; but in the photocopy it has been added; that all would go to show that the FIR could not have come into existence as put forth by the prosecution; and that the above circumstances would clearly indicate that P.W.1 could not have been present at the place of occurrence.
13.The learned Senior Counsel would further add that in the instant case, there was a preliminary charge sheet and later there was an additional charge sheet; that the preliminary charge sheet contained only 20 names; that the additional charge sheet would contain 25 names; but the Investigator has categorically admitted that after the preliminary charge sheet was filed, no investigation was done; and that under the circumstances, five names should have been added without any reason whatsoever.
14.Added further the learned Senior Counsel that as far as the name of P.W.1 is concerned, another important factor which would cast a doubt whether Ex.P1 could have come into existence as put forth by the prosecution, was that P.W.1's name is found in Ex.P1 as Duiman @ Manikandan; but, it is found in evidence as Veeman @ Manikandan, and thus it would be quite clear that Ex.P1 could not have been prepared when P.W.1 was present; that his signature should have been obtained after its preparation, and thus Ex.P1 is highly doubtful.
15.Added further the learned Senior Counsel that as far as the presence of P.W.2 is concerned, the evidence of P.W.2 was rightly rejected by the trial Court; that if the presence of P.W.1 is doubtful, what could be available for the prosecution is the evidence of P.Ws.3 and 4; that they were police personnel; that apart from that, they have given different versions before the Doctor and also in the evidence; that the GD entry is also found to be different; and that all would go to show that no credit could be attached to the evidence of P.Ws.3 and 4.
16.Added further the learned Senior Counsel that the further evidence of P.W.1 that at the time when they were actually coming in the bike, it was A-3 who was riding one bike and A-1 another bike; that as regards pillion riders, no statement was given before the Court; that P.W.34, the Investigating Officer, has stated in his inquest report that at the time of occurrence, A-21 was riding one bike and A-3 was riding another bike and in the first bike, A-1 and A-2 were pillion riders; that as per the remand report, A-8 and A-22 were the pillion riders and thus inconsistent versions were found; and that all would go to show that the prosecution has miserably failed to prove the presence of the accused persons who were found guilty by the trial Court.
17.The learned Senior Counsel would further add that as far as A-1 was concerned, he had fracture on the third metabone right foot and had treatment with D.W.1, the Doctor, who advised him to take rest for 40 days; that he was actually very well available in the house; that a condolence has taken place in the opposite house, and he was found present in his house till 3.00 P.M. on that day, and thus, he could not have participated in the occurrence at all; that the defence has brought forth sufficient evidence to disprove the prosecution story; but, the trial Court has not adverted its attention in any one of the aspects; that apart from that, it is a case where there is thorough lack of evidence; that under the circumstances, the prosecution has miserably failed to prove its case, and hence they are entitled for acquittal.
18.Advancing arguments on behalf of A-7 and A-22, the learned Senior Counsel Mr.V.Gopinath, would urge that the FIR has reached the Court at 12.00 A.M. night; that P.W.34 has not given any explanation at all; that the evidence of P.Ws.3 and 4 was shaky as to their presence and that of P.W.1; that in a given case like this, the higher officials immediately on reaching the police station, should have verified whether the FIR has been sent or not; that in the case on hand, the FIR was not sent immediately, but has reached the Court at 12.00 A.M.; that this would clearly indicate that sufficient developments have been made; and that all embellishments possible have also been made.
19.The learned Senior Counsel would further add that the trial Court has not marshaled the evidence proper and the totality of the evidence what was available that P.W.1 was not present; that P.Ws.3 and 4's evidence was shaky and thoroughly unbelievable and not because of the reason that they were police personnel; but, they have given different versions regarding the way in which the occurrence has taken place and they were also attacked; that under the circumstances, the prosecution has miserably failed to prove its case, and hence they are entitled for acquittal in the hands of this Court.
20.The learned Additional Public Prosecutor (Pondicherry) assailing the judgment of the trial Court in respect of the part of acquittal and also in answer to the above contentions put forth by the learned Senior Counsel for the appellants/accused, would submit that in the instant case, the prosecution has proved the conspiracy theory by examining P.W.12, who has given a categorical evidence that he was present at the time when the conspiracy talks were going on; and that the statement would clearly indicate that the conspiracy has been proved; but, the trial Court has erroneously rejected the same without any reason whatsoever.
21.Added further the learned Additional Public Prosecutor that in the instant case, P.W.1 was the person who actually accompanied the deceased at the time when they went by M.O.9, a two-wheeler; that this part that he actually travelled with the deceased is found place in Ex.P1 document, and thus it would be quite clear that the first part of the occurrence has taken place outside the police station when P.W.1 has accompanied the deceased and when A-1 and others came in two wheelers and dashed against them; that P.W.1 has categorically deposed that the deceased who was riding the motorbike and P.W.1 who was the pillion rider fell down and they immediately attempted to escape and it was A-1 who gave a cut on the shoulder of the deceased and even then he made an attempt to ran from the place and at that time, it was A-22, who gave another cut on the backside of the head with which both of them managed to get into the police station, and thus it would be quite clear that the contentions put forth by the appellants' side that P.W.1 could not have been in the place of occurrence cannot be believed; that merely because of the reason that the presence of P.W.1 does not find place in the GD entry or there was a delay in FIR reaching the Court or the news item that was published in the newspaper in the next morning did not speak of the presence of P.W.1 at the place of occurrence, it cannot be stated that P.W.1 could not have been present at all; that it is true that the photocopies were prepared and they were all sent as they are placed before the Court; that it is not correct to state that when the original charge sheet was filed, 20 names were there and thereafter five names were added; that it is pertinent to point out that that 25 names were actually described in Ex.P1 document; but they were omitted to be mentioned in the first charge sheet and then additional charge sheet was filed; and that under the circumstances, it cannot take away the truth of the prosecution case.
22.Added further the learned Additional Public Prosecutor that the trial Court should not have rejected the evidence of P.W.2; that P.W.2 was actually a tea shop owner who was actually standing nearby, and he has actually seen the first part of the occurrence; that he has given a clear narration; but, without any reason whatsoever, the trial Court has rejected the evidence of P.W.2; that as far as P.Ws.3 and 4 were concerned, they were on duty in the police station; that except these two police personnel, no body was inside the police station; that these accused persons have got inside and attacked them; that P.Ws.3 and 4 have given a clear narration of the entire incident; that they have gone to the extent of stating that they knew all the accused persons by names since they were actually involved in number of cases; that they have actually identified the persons who have actually got inside and attacked them and also hurled bombs, and thus they have witnessed the murder; that apart from that, they have also been injured; that so long as they were actually injured in the same transaction, their evidence cannot be in any way suspected or doubted; that added circumstance in favour of the prosecution was that P.W.3 was examined by P.W.17, the Doctor, at 3.00 P.M. within an hour and P.W.4 at 3.10 P.M.; that they have mentioned that they were attacked at the police station and they had sustained injuries; that they have also mentioned that they were attacked by four known persons; that mentioning 4 cannot be taken that only four persons were present at the time of occurrence; that it remains to be stated that when both the persons were taken from the police station to the hospital, one could visualize the anxiety within which they could have been put, and under the circumstances, much reliance cannot be placed on the same.
23.Added further the learned Additional Public Prosecutor that merely because there was a delay in FIR reaching the Court, the prosecution case cannot be suspected or it cannot be stated that number of accused persons who were actually inimical to the prosecution witnesses, were actually put in. The learned Additional Public Prosecutor would add that it is well settled proposition of law that for application of Sec.149 IPC, no overt act could be attributed; that what is all required is that the concerned person must be a member of unlawful assembly and he should have acted in furtherance of the common object which the assembly had; that in the instant case, all the persons were armed with weapons and also some of them with bombs; that some of them entered into the police station where the occurrence has taken place; that the conduct and act of the accused would speak volume of the common object and design which they entertained at that time; that under the circumstances, the presence of the other accused persons who were ordered to be acquitted by the trial Court if proved, then automatically they are also members of the unlawful assembly, and they should be dealt with equally along with the appellants/accused; that the prosecution by examining P.Ws.1, 2, 3 and 4 has proved the presence of the other accused; but, the trial Court has taken an erroneous view that Sec.149 cannot be applied against others, which is against the settled principles of law; that the prosecution has proved their presence, and all other accused had the common object which the persons who have been convicted by the Court had, and hence they are to be dealt with by the Court. The learned Additional Public Prosecutor brought to the notice of the Court the ratio rendered by the Apex Court in this regard. He would further submit that the accused persons who have been acquitted by the trial Court, have got to be dealt with in accordance with law.
24.The Court had a thorough scrutiny of the materials available and paid its anxious consideration on the submissions made.
25.It is not in controversy that one Jayakumar, the elder brother of P.W.1 was done to death at about 1.45 P.M. On 26.3.2004, in Mudaliarpet Police Station. Following the inquest made by P.W.34, the Investigator, the dead body was subjected to postmortem by P.W.15, the Doctor, who has given a postmortem certificate, Ex.P20, with his opinion that the deceased died due to shock due to multiple injuries sustained by him, chief being the head and neck injuries. This fact was never disputed by the appellants before the trial Court. Hence the trial Court has recorded that he died out of shock and haemorrhage and rightly too.
26.At the outset, it has to be pointed out that the prosecution story commenced with a conspiracy theory alleged to have been hatched up by A-25 and his son A-3 along with A-1 on the previous day of occurrence i.e., 25.3.2004 at about 6.00 A.M. The only witness examined in this regard is P.W.12. According to P.W.12, he was just proceeding in his way and crossing the house of A-25, and at that time, he found number of motorbikes parked outside, and then he peeped in and over heard the talks between A-25 and his son A-3 that the deceased was the hurdle and was giving problems to them, and he should be finished off, and at that time, A-1 was also present, and he also took the words, and A-1 was designed as the leader in order to finish him off, and following the same, the occurrence has taken place on the next day. The trial Court has disbelieved this theory. Aggrieved over this, the prosecution in the course of its appeal made the submissions as stated above. This Court is of the considered opinion that the rejection of the prosecution case in respect of conspiracy theory, by the trial Court was perfectly correct. The evidence of P.W.12 was highly artificial. So long as he is in the camp of the prosecution witnesses, there is no question of himself over hearing what has been taking place, and that too at 6.00 A.M. on the morning of 25.3.2004. The evidence of P.W.12 cannot but be brushed aside since his statement has reached the Court after four or five months. It is true that the prosecution wanted to make out some evidence, and for that purpose, P.W.12 has been introduced, and his statement has been recorded, and he was projected as a witness before the Court. Under the circumstances, the trial Court was perfectly correct in rejecting the prosecution story as to conspiracy, and this Court is unable to notice anything to disturb that part of the judgment.
27.In order to prove the other part of the case, the prosecution marched P.Ws.1 to 4 as eyewitnesses to the occurrence. As seen from the available materials and the case as placed before the trial Court, a part of the occurrence has taken place outside Mudaliarpet Police Station, and the other part was inside the police station. According to the prosecution, P.W.1 accompanied the deceased brother, and they came in a two wheeler, and the accused persons were found gathering nearby the police station, and A-1 and A-3 who were actually riding the two wheelers dashed against the two wheeler driven by the deceased, and they fell down, and immediately, it was A-1 who gave a cut on the shoulder of the deceased, and in order to escape both of them ran, and at that time, A-22 cut him on the back of his head, and he sustained severe injuries, and with oozing of blood, he just got inside the police station. This part of the occurrence is spoken to by P.Ws.1 and 2. The trial Court has marshalled the evidence proper insofar as P.W.2, and has found that P.W.2 could not have seen the occurrence at all. The reasons adduced by the trial Court, in the opinion of this Court, were perfectly correct, and thus the rejection of the evidence of P.W.2 has been rightly done. Therefore this Court is unable to accept the contention put forth by the learned Additional Public Prosecutor before this Court to believe the evidence of P.W.2.
28.The learned Senior Counsel for the appellants brought to the notice of the Court that P.W.1 could not have been at the time of occurrence for the reasons stated by them; that Ex.P1 has not come into existence as claimed by P.W.32 at about 2.00 P.M.; that it has reached the Court at about 12.00 A.M.; that there was an inordinate delay remained unexplained; and that both the police station and Judicial Magistrate's Court are in the State of Pondicherry. The further contentions are that in the contemporaneous document namely General Diary (G.D.), the presence of P.W.1 is not shown; that equally, in the press report which was published in the next day, the presence of P.W.1 is not mentioned; that P.W.1 has given a version that A-3 and A-1 drove two motorbikes respectively; but, in the remand report, it is stated contra; and that all would indicate that P.W.1 could not have been in the place of occurrence at all. Added further the learned Senior Counsel that the FIR is only a manipulated one after the arrival of P.W.1 with the connivance of his friend, and all the names of the accused have been added there.
29.As could be seen from the available materials, the presence of P.W.1 at the initial stage of the occurrence cannot be ruled out in the considered opinion of the Court. From the evidence of P.W.1, it would be quite evident that the first part of the occurrence has taken place outside the police station, and at that time, it was A-1, who gave a cut on the shoulder of the deceased, and it was A-22 who gave a cut on the backside of his head, and with bleeding injuries, the deceased has actually made entry into the police station. Now, at this juncture, it is pertinent to point out that immediately after seeing this part of the occurrence, P.W.1 could have gone home to inform the persons, or he could have been under the grip of fear since the deceased with bleeding injuries got into the police station. Under the circumstances, when the G.D. entry was made, the name of P.W.1 does not find place there. It would also make it clear that P.W.1 could not have seen the occurrence what has taken place inside the police station. However, in the considered opinion of this Court, Ex.P1, the report, can be acted upon for the purpose of setting the criminal law in motion.
30.As far as the occurrence that has taken place inside the police station was concerned, this Court is of the considered opinion that the evidence of P.Ws.3 and 4, the Police Personnel, would suffice. P.W.3 was a Head Constable, and P.W.4 was the Para Constable, and they were the only two persons present at Mudaliarpet Police Station at about 1.45 P.M. on that day. It remains to be stated that their presence in the Police Station was not a fact in dispute. Immediately after the occurrence, both were taken to the Medical Officer for treatment. P.W.17 the Doctor, has medically examined them. Exs.P25 and P26 are the wound certificates respectively. The time and place of occurrence all are mentioned therein. Apart from this, P.Ws.3 and 4 have stated to the Doctor that four persons have attacked them. Now, the learned Senior Counsel for the appellants brought to the notice of the Court that at the time of evidence, they have categorically deposed that they were attacked by only one person. At this juncture, the G.D., a contemporaneous document, which has come into existence, clearly speaks about the names of three persons, and also some others. Equally, according to P.W.34, the Inspector of Police, he received a message where the names of three persons are mentioned and some others are also stated. Thus it would be quite clear that P.Ws.3 and 4 have categorically deposed that the accused persons are known. At this juncture, it is pertinent to point out that either in the GD entry, or in the message given, or in the wound certificates, Exs.P25 or P26, nowhere number of accused are mentioned as 25, but some others. 'Some others' cannot mean 25. But, it would be quite clear that when they witnessed that part of the occurrence, these two persons were injured in the course of the same transaction. It is settled principle of law that in a given case when the eyewitnesses happened to be injured witnesses, unless and until strong circumstance or reason is brought to the notice of the Court, their evidence should not be discarded. That part of the occurrence has taken place inside the police station, and they were the only persons on duty. That apart, the deceased has come with the bleeding injuries, and in that process, they went to the rescue. At that time, P.W.3 actually caught one accused, and P.W.4 caught another accused and in that, they were attacked. It is also pertinent to note that at that time, it was A-1, A-3 and A-12 have hurled bombs against the deceased, and as a direct consequence, he died inside the police station. Apart from this, they have given evidence that A-1, A-3, A-7, A-8, A-12 and A-22 were present. Thus it would be quite evident that there was all possibility for P.Ws.3 and 4 seeing the accused persons inside the police station.
31.It is true that nowhere in the contemporaneous document which has come into existence at the earliest namely G.D., or in the information to the higher officials or in the wound certificates Exs.P25 and P26, these 25 persons were named. Now, their evidence before the Court would go to show that except the names mentioned therein, some others were also involved. But, the corresponding entries are made in the G.D. mentioning the names of the accused four in number, and also some others. The evidence given before the trial Court by P.Ws.3 and 4 would clearly indicate that they were present at the time when the occurrence has taken place. That apart, some of the accused namely A-1, A-3 and A-12, have hurled bombs against the deceased, and they have actually deterred the police officials from performing their duties at that time. Added further, they have not only caused injuries to P.Ws.3 and 4 being public servants in the discharge of their duty, but also deterred them from lawfully discharging their duty.
32.In the case on hand, A-1, A-3, A-7, A-8, A-12 and A-22 all were not attributed with the injuries caused to the deceased. But, once they were found with bombs and also lethal weapons and entering into a police station and that too during day hours, or chasing the deceased inside the police station, it cannot but be easily understood that they have entered so in furtherance of the common object of killing him. As rightly pointed out by the learned Additional Public Prosecutor, mere presence of these persons at the time of occurrence in furtherance of the common object would suffice to constitute the offence.
33.As regards the contention that the FIR has reached the Court after a long interval, it was evident that immediately after the occurrence, the shutters were closed in the police station, and there was a commotion. Two of the police personnel were injured in the occurrence, and they were taken to the hospital immediately. Quite natural that the delay could have been caused by such events. It is true that some more delay has occasioned. But, because of the delay, when the Court is able to notice sufficient evidence in respect of the occurrence in question, the Court should not reject the prosecution case.
34.The comment made by the learned Senior Counsel for the appellants that the FIR Serial No.2301 is pertaining to Crime No.101/2004, and the FIR serial No.2302 is found missing; but, Sl.No.2303 is found, and hence it would cast a doubt on the FIR cannot be accepted for three reasons. Firstly, in all the pages of the FIR Book, the serial numbers are found continuous. Secondly, missing of subsequent number will not in any way affect the present case. Thirdly, the contemporaneous document G.D. contained short narrative of the incident in question.
35.For the reasons stated above, it can be well stated that the trial Court has marshaled the evidence proper and has come to the correct conclusion that the appellants herein namely A-1, A-3, A-7, A-8, A-12 and A-22 have committed the offences.
36.As far as the appeal by the State and revision by P.W.1 are concerned, this Court is unable to notice any merit in the contentions put forth by the learned Additional Public Prosecutor or by the learned Counsel for the revision petitioner for the reasons stated above, and they are liable to be rejected and accordingly, rejected.
37.As far as the conviction and sentence imposed by the trial Court on A-1, A-3, A-7, A-8, A-12 and A-22 under Sections 148 and 302 r/w 149 IPC are concerned, they have got to be sustained. Accordingly, they are sustained.
38.The conviction and sentence imposed on A-1, A-3 and A-12 under Sec.4(a) and (b) of the Explosive Substances Act r/w 149 IPC are sustained.
39.As regards the conviction under Sec.333 (2 counts) r/w 149 IPC is concerned, it has got to be sustained. Accordingly, it is sustained; but, the sentence of seven years Rigorous Imprisonment imposed by the trial Court is reduced to 5 years Rigorous Imprisonment.
40.So far as the attack on P.W.3 was concerned, the injury inflicted was simple. Under the circumstances, the conviction and sentence imposed by the trial Court on A-1, A-3 and A-12 under Sec.307 r/w 149 IPC are set aside, and instead, they are convicted under Sec.324 IPC and directed to undergo three years Rigorous Imprisonment.
41.As regards the attack on P.W.4, grievous injury has been caused. In such circumstance, the conviction and sentence imposed on A-1, A-3 and A-12 under Sec.307 r/w 149 IPC are set aside, and instead they are convicted under Sec.326 IPC and directed to suffer five years Rigorous Imprisonment.
42.The sentences are to run concurrently. The sentence already undergone by the respective accused shall be given set off. The fine imposed by the trial Court will hold good.
43.In the result, with the above modification in conviction and sentence, C.A.Nos.156 and 157 of 2008 are dismissed. C.A.No.575 of 2008 and Crl.R.C.No.1137 of 2008 are dismissed.
nsv To:
1.The II Additional Sessions Judge Pondicherry
2.The Inspector of Police Mudaliarpet Circle, Pondicherry, (in Cr.No.101/2004
3.The Public Prosecutor High Court, Madras