JUDGMENT- IPC 324, 34, 427, 448, 304 - THE HIGH COURT OF JUDICATURE AT MADRAS - Soundararajan, Subramani, Kunju @ Lognathan Vs the Inspector of Police, Kolathur Police Station, Salem District

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.06.2011
C O R A M
THE HONOURABLE MR.JUSTICE S. NAGAMUTHU

Criminal Appeal No.1101 of 2004


1. Soundararajan
2. Subramani
3. Kunju @ Lognathan ... Appellants

Vs

State
rep. by the Inspector of Police,
Kolathur Police Station,
Salem District. ... Respondent

Criminal Appeal is filed under Section 374 (2) of Cr.P.C. against the judgment of the learned I Additional Sessions Judge, Salem, in S.C.No.292/2003 dated 11.8.2004.

For Appellants : Mr.K.V.Sridhar
For respondent : Mr.A.N.Thambidurai,
Additional Public Prosecutor

J U D G M E N T

The appellants are the accused 1 to 3 in S.C.No.292 of 2003 on the file of the I Additional Sessions Judge, Salem. Totally, there were four accused. The 4th accused was acquitted by the trial court. These 3 accused namely A1 to A3 have been convicted and sentenced as follows:

(a) The 1st and the 2nd accused were convicted and sentenced to undergo rigourous imprisonment for 2 months for the offence under Section 427 of IPC; convicted and sentenced to undergo rigourous imprisonment for 2 months for the offence under Section 448 of IPC; convicted and sentenced to undergo rigourous imprisonment for 3 months and also to pay a fine of Rs.250/-, in default, to undergo further 2 months rigourous imprisonment on each count under Section 324 IPC (4 counts) and convicted and sentenced to undergo rigourous imprisonment for 5 years and to pay a fine of Rs.1,000/-, in default, to undergo further rigourous imprisonment for 6 months for the offence under Section 304(ii) IPC.

(b)The 3rd accused stands convicted and sentenced to undergo rigourous imprisonment for 2 months for the offence under Section 427 IPC; convicted and sentenced to undergo rigourous imprisonment for 2 months for the offence under Section 448 of IPC; convicted and sentenced to undergo rigourous imprisonment for 3 months and also to pay a fine of Rs.250/-, in default, to undergo 2 months rigourous imprisonment on each count for the offence under Section 324 IPC (3 counts) and convicted and sentenced to undergo rigourous imprisonment for 5 years and to pay a fine of Rs.1,000/-, in default, to undergo further rigourous imprisonment for 6 months for the offence under Section 304(ii) IPC.
Challenging the said conviction and sentence, the appellants/accused are before this Court with this appeal.

2.The case of the prosecution in brief is as follows:
P.W.7 Mrs.Picky is the wife of the 1st accused. The 1st accused and P.W.7 were residing at Naickenthanda Village in Salem District. P.W.1 is a cousin of the 1st accused. The 1st accused had suspicion that P.W.1 was having illicit intimacy with P.W.7. On 15.7.2001, the 1st and the 2nd accused had gone for hunting. P.W.7 was alone at home in the night. At that time, according to the case of the prosecution, P.W.1 came to the house of the 1st accused and was chatting with P.W.7. Unexpectedly, the accused 1 and 2 returned to the house, discontinuing the hunting. At 9.00 p.m., when they reached the house, the 1st accused found P.W.1 in the company of P.W.7. This provoked the 1st accused. He took out a spade handle and attacked P.W.1 on his shoulder, back, left leg and other parts of the body. P.W.1 ran out of the house of the 1st accused and went to his house. The 3rd accused joined the 1st and the 2nd accused. All the three accused chased P.W.1 and went to the house of P.W.1. They caused damage to the house of P.W.1 and trespassed into the same. Then, at 9.15 p.m., inside the house of P.W.1, the Accused 1 to 3 started mounting attack on him. The 2nd accused was having a crow bar in his hand and the accused 1 and 3 had spade handles. They indiscriminately attacked P.W.1 on his back, right hand, left leg, left thigh and other parts of the body. P.W.5 is the mother of P.W.1. She witnessed the occurrence. When she intervened, the accused 1 and 3 attacked her also indiscriminately with the above weapons. She also sustained injuries. P.W.1 escaped from his house and ran towards the house of one Beeman (deceased). The 4th accused also joined with them. All the four accused trespassed into the house of Beeman and started attacking Beeman. The 1st accused attacked Beeman with spade handle and the 2nd accused attacked him with crow bar. The 2nd accused is alleged to have attacked the deceased on his head and the 1st accused attacked him on his body. Beeman sustained injuries. The 3rd accused also attacked Beeman. The 4th accused instigated the other accused to attack. P.W.2, the wife of Beeman witnessed the said occurrence. When she intervened, the accused 1 to 3 attacked her also indiscriminately with the above weapons. The 4th accused induced the other accused to attack P.W.2 also. The injured were taken to the hospital including Beeman. Beeman died in the hospital on 21.7.2001 due to the injuries.

3.On intimation from the hospital authorities, P.W.12, who was the then Sub-Inspector of Police attached to Kolathur Police Station went to Mettur Government Hospital. But, he found that all the injured, namely, P.Ws.1 to 6 had been taken to the Government Hospital at Salem. He collected the Accident Register copies of all the injured and went to the Government Hospital at Salem at 9.30 a.m. on 16.7.2001. He found Beeman unconscious. Therefore, he recorded the statement of P.W.1 under Ex.P.1. On returning to the police station, he registered a case on the said complaint in Crime No.429/2001 under Sections 321, 324, 427, 452 and 506(ii) of IPC.

4.Taking up the case for investigation, he proceeded to the place of occurrence and prepared an Observation Mahazar in the presence of P.W.8 and another witness. He also prepared a Rough Sketch. He recovered certain material objects from the place under Mahazar in the presence of the very same witnesses including the blood stained earth. He examined P.W.4 and few more witnesses at the place of occurrence and recorded their statements. Then, he went to the hospital and recorded the statements of all the injured witnesses except Beeman because he was still unconscious. After the death of Beeman, he altered the case into one under Section 302 of IPC and submitted an alteration report. Then, the investigation was taken up by the Inspector of Police P.W.14. He held inquest on the body of the deceased on 21.7.2001 at the Salem Government Hospital. He forwarded the body for postmortem. P.W.13 conducted autopsy on the body of the deceased on 21.7.2001 at 4.10 p.m. He noticed as many as 6 external injuries which are as follows:
1.A sutured lacerated injury present over left side of lower jaw 3 c.m. x 1 c.m. x = c.m.;
2.Fracture of left side of mandible present;
3.A sutured lacerated wound present over left cheek 4 c.m. x 1 c.m. x 0.5 c.m.;
4.A sutured lacerated wound present over right parietal region of scalp present 7 c.m. x 1 c.m. x bone deep;
5.Fissured fracture of parietal bone present 12 c.m. in length and
6.Subdural and subaractroid haemorrhages present over both cerebral henspheres.
According to his opinion, the injuries 1, 3 and 4 would have been caused by a crow bar and the injuries 2, 5 and 6 by a spade handle. Ex.P.21 is the Postmortem Certificate. Earlier, P.W.12 had arrested the accused. On completing the investigation, P.W.14 laid charge sheet against the accused.

5.Based on the above materials, the lower court framed appropriate charges against all the four accused. The accused denied the same. Therefore, the trial court went ahead with the trial. During the course of trial, on the side of the prosecution, as many as 15 witnesses were examined and 23 documents were marked besides 10 material objects. As stated above, P.Ws.1 to 7 are the eye-witnesses to the occurrence. They have vividly spoken to about all the three occurrences. P.W.13-Doctor has spoken to about the postmortem and other official witnesses have spoken to about the investigation etc.

6.When the incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. On their side, they did not choose to examine any witness, but marked 5 documents as Ex.D1 to Ex.D5 on their side. According to them, they did not involve in any such crime as alleged in the charge sheet. Having considered the above materials, the trial court found them guilty and convicted them accordingly as detailed in the first paragraph of this judgment. That is how, the appellants are before this Court with this appeal.

7.I have heard Mr.K.V.Sridhar, learned Counsel appearing for the appellants and Mr.A.N.Thambi Durai, learned Additional Public Prosecutor for the respondent and also perused the records carefully.

8.In this case P.Ws.1, 2, 3 and 5 are the injured eye-witnesses. P.W.1 has spoken to about all the 3 occurrences, namely, the occurrence at the house of the 1st accused, the occurrence at the house of P.W.1 and the occurrence at the house of Beeman. P.W.2 is the wife of Beeman. She has spoken to vividly about the occurrence at her house in which Beeman (the deceased) was attacked and she was also attacked. P.W.3 has spoken to about the 3rd occurrence at the house of Beeman. P.W.4 is the eye-witness to the occurrence at the house of the 1st accused and that of P.W.1. He is a neighbour of the 1st accused. He has not stated anything about the 3rd occurrence at the house of Beeman. P.W.5 is the mother of P.W.1 who has spoken to about the occurrence at her house in which P.W.1 was attacked by the accused 1 to 3. She has not spoken to about the occurrence at the house of the 1st accused and the occurrence at the house of Beeman. P.W.6 is the brother of P.W.1 who has spoken to only about the third occurrence. P.W.7 is the wife of the 1st accused. She has spoken to about the occurrence at her house. She has stated that P.W.1 came to her house and enquired as to whether the 1st accused was available. She told him that the 1st accused had gone for hunting. Thereafter, they were talking with each other. At that time, suddenly, the 1st and the 2nd accused returned unexpectedly. On seeing her speaking with P.W.1, the accused 1 and 2 took out spade handles and started attacking P.W.1. Thereafter, P.W.1 ran towards his house and these accused 1 and 3 chased him and followed him. P.W.13 Doctor has spoken to about the injuries found and the cause of death of the deceased.

9.The learned Counsel for the appellants would submit that the medical evidence in this case does not corroborate the eye-witness account of these witnesses. In my considered opinion, it is not so. Some of the above witnesses are injured witnesses and others are only eye-witnesses. Their presence cannot be doubted in any manner. The learned Counsel for the appellants is not in a position to point out anything on record to disbelieve their presence. Therefore, their presence needs to be believed and their evidences are required to be considered meticulously.

10.The foremost argument of the learned Counsel for the appellants is that the medical evidence does not corroborate the evidences of the injured eye-witnesses. I have perused the postmortem certificate and the evidence of the Doctor who conducted postmortem and also the evidence of the doctor who treated the injured eye-witnesses. Of course, it is true that here and there, there are some contradictions. In my considered opinion, these contradictions are not material. In an occurrence, when number of persons mounted attack against number of persons, it is too difficult to expect the injured witnesses to speak about the individual overt acts of each accused with exactitude. There are bound to be contradictions. Therefore, in my considered opinion, the so called contradiction between the medical evidence and the individual overt acts spoken to by the eye-witness of each accused is immaterial and on that ground, the case of the prosecution cannot be doubted.

11.Nextly, the learned Counsel for the appellants would submit that the cause for the death of the deceased has not been proved beyond reasonable doubt by the prosecution. According to him, as seen from the death intimation sent by the Doctor, the deceased was suffering from heart disease. P.W.13, who conducted autopsy, has stated that it is also possible that the death would have been due to heart attack provided the deceased was suffering from heart disease. Relying on these two evidences, the learned Counsel for the appellants would submit that the death of the deceased was not due to the injuries sustained by him. In my considered opinion, the said contention cannot be countenanced at all. First of all, the death intimation which contains the information of the Doctor who treated the deceased cannot be treated as substantive evidence. If the doctor has got any opinion regarding the deceased by which the deceased was suffering, it is for the Doctor to depose before this Court. The opinion contained in any medical record is not admissible in evidence in the absence of the examination of the doctor. The said death intimation would not surely fall within the ambit of Section 294 of Cr.P.C. Therefore, in the absence of the examination of the doctor who gave the opinion that the deceased was suffering from heart disease, the said opinion cannot be taken into account for any purpose.

12.Now coming to the contention regarding the evidence of P.W.13 wherein he has stated that the deceased would have died due to heart disease provided he was suffering from heart disease, I find that the said contention also needs to be rejected. A perusal of the postmortem certificate would go to show that there is no indication that there was infarction in the heart. When a very general question was put to the Doctor as to whether the deceased would have died due to heart disease provided he was suffering from heart disease, the doctor has answered in the affirmative. This is only a general opinion which will not go in any manner to show that the deceased was suffering from heart disease and he died only out of the heart disease. Therefore, this part of the evidence is also liable to be rejected and the contrary argument made by the learned Counsel for the appellants is only to be rejected.

13.However, the learned Counsel for the appellants has made out another valid point in respect of the injuries. According to him, there is no clear evidence as to which accused caused the fatal injury. According to the Doctor who conducted autopsy, the death was due to the head injury. When number of persons, namely, three persons, all armed with weapons, attacked the deceased indiscriminately with the weapons, it would be too difficult to say with exactitude as to who caused the fatal injury on the deceased. Though an attempt has been made by the prosecution that the fatal injury was caused by the 2nd accused, I am of the view that it is not safe to rely on the evidence of the eye-witnesses and to hold that the fatal injury was caused by the 2nd accused/2nd appellant. As I have already stated, it would not be easier for any witness to closely notice as to who caused the fatal injury. Therefore, as rightly pointed out by the learned Counsel for the appellants, the prosecution has failed to prove as to who was responsible for the fatal injury.
14.The learned Counsel for the appellants would further contend that the trial court was not right in holding that there was a common intention among the accused to cause the death of the deceased so as to invoke Section 34 of IPC. I find every force in this argument. According to the lower court, the occurrence was due to sudden provocation on the part of the accused on seeing P.W.1 in the company of P.W.7 in suspicious circumstances. When the 1st accused had gone out for hunting, it appears that P.W.7 had called P.W.1 to her house for some sexual favours. It is also in evidence that earlier also, the 1st accused/1st appellant had suspicion about the fidelity of P.W.7 that she was having illicit intimacy with P.W.1. On seeing the entire situation in which the 1st accused was put at the time while he saw P.W.1 with P.W.7, in my considered opinion, the trial court was right in holding that the entire occurrence was due to provocation. If the entire occurrence was so sudden and it was due to provocation, in my considered opinion, the question of invoking Section 34 of IPC does not arise. Basically to invoke Section 34 of IPC, the prosecution should prove the pre-meeting of mind, evolving a common design to do a crime. In this case, since the occurrence itself was unexpected, so sudden, that too, due to provocation, there would not have been any pre-meeting of mind and therefore, the trial court was wrong in invoking Section 34 of IPC against both the accused.

15.As I have concluded above, if Section 34 of IPC has got no role to play, then each accused will be liable only for his individual overt acts. In this case, the learned Counsel for the appellants would submit that since the person who caused the vital injury has not been fixed by the prosecution by adducing acceptable evidence, then each accused can at the most be punished either under Section 323 of IPC or under Section 324 of IPC depending upon the attack made on the deceased. In my considered opinion too, in the absence of proof beyond doubt as to which accused caused the fatal injury and in the light of the fact that Section 34 of IPC cannot be invoked, these appellants can be convicted either under Section 323 of IPC or under Section 324 of IPC depending upon the attack made on the deceased by each accused. So far as the appellants 1 and 3 are concerned, they were armed with spade handles which cannot be stated to be ordinary weapons. Spade Handles, if used as weapons of crime, are only dangerous weapons. Crow-bar is also a dangerous weapon about which there can be no doubt. Therefore, in my considered opinion, in respect of the attack made on the deceased Beeman, all the three accused are liable for punishment only under Section 324 of IPC for their individual overt acts. The learned Counsel for the appellants would submit that in respect of the overt acts in which the appellants 1 to 3/accused 1 to 3 attacked the other witnesses also, they are liable for punishment for their individual overt acts. I am in full agreement with the said argument advanced. Therefore, in respect of the attack made on P.W.1 at the house of the 1st accused under Charge No.1, the 1st accused is liable for punishment under Section 324 of IPC and to that extent, the conviction and sentence imposed by the trial court needs to be confirmed.

16.In respect of the 2nd charge against the appellants 1 to 3/accused 1 to 3 for the offence under Section 427 IPC, the conviction and sentence imposed by the trial court needs to be confirmed. In respect of the 3rd charge against the appellants 1 to 3/accused 1 to 3 for the offence under Section 448 of IPC, the conviction and sentence also needs to be confirmed. In respect of the 4th charge against all the three accused, their conviction under Section 324 read with 34 of IPC is set aside, instead, they are liable to be punished under Section 324 of IPC and the sentence imposed thereunder needs to be confirmed. In respect of the 5th charge with regard to the attack made on P.W.5, these appellants 1 to 3/accused 1 to 3 are liable for punishment under Section 324 of IPC, instead, 324 read with 34 IPC and the sentence imposed by the trial court is also liable to be confirmed. In respect of the 6th charge under Section 449 of IPC against all the appellants 1 to 3/accused 1 to 3 is concerned, since the trial court has acquitted all the accused, it does not require any consideration by this Court. In respect of the 7th charge regarding the attack made on the deceased, the appellants 1 to 3/accused 1 to 3 are liable for punishment under Section 324 of IPC. The conviction of the appellants for the offence under Section 302 read with 34 of IPC is liable to be set aside, instead, they are liable to be convicted under Section 324 of IPC for which the sentence shall be reduced to the period of sentence already undergone by the appellants 1 to 3/accused 1 to 3. The fine imposed by the trial court needs to be confirmed and the default sentence of one month also needs to be confirmed. So far as the 8th charge is concerned, it relates to the 4th accused, who has been acquitted and therefore, this charge does not require any consideration by this Court. In respect of the 9th charge relating to the attack made on P.W.2, the conviction of all these appellants under Section 324 read with 34 of IPC is set aside, instead, they are liable to be punished under Section 324 of IPC and the sentence imposed by the trial court needs to be confirmed. The 10th charge relates to the 4th accused who has been acquitted and therefore, the same does not require any consideration by this Court. In respect of the 11th charge regarding the attack made on P.W.3, the accused 1 and 2 are liable for punishment under Section 324 of IPC instead 324 read with 34 of IPC. The sentence imposed by the trial court needs to be confirmed. The 12th charge relates to the 4th accused. Therefore, the same does not require any consideration by this Court.

17.In the result, the Criminal Appeal stands partly allowed in the following terms:
1.The conviction of the 1st appellant/1st accused in respect of the 1st charge for the offence under Section 324 of IPC and the sentence imposed by the trial court thereunder are confirmed;
2.The conviction of the Appellants 1 to 3/accused 1 to 3 in respect of the 2nd charge for the offence under Section 427 of IPC and the sentence imposed thereunder by the trial court are confirmed;
3.The conviction and sentence of the appellants 1 to 3/accused 1 to 3 in respect of the 3rd charge for the offence under Section 448 of IPC are confirmed;
4.The conviction of the appellants 1 to 3/accused 1 to 3 in respect of the 4th charge for the offence under Section 324 read with 34 of IPC is set aside, instead, they are convicted under Section 324 of IPC and the sentence imposed thereunder by the trial court is confirmed;
5.The conviction of the appellants 1 to 3/accused 1 to 3 in respect of the 5th charge for the offence under Section 324 read with 34 of IPC is set aside, instead, they are convicted under Section 324 of IPC and the sentence imposed by the trial court thereunder is confirmed;
6.The conviction and sentence of the appellants 1 to 3/accused 1 to 3 in respect of the 6th charge for the offence under Section 304 (ii) read with 34 of IPC are set aside, instead, they are convicted under Section 324 of IPC and the sentence of imprisonment shall be reduced to the period of imprisonment already undergone by all these appellants besides to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for one month;
7.The conviction of the appellants 1 to 3/accused 1 to 3 in respect of the 9th charge for the offence under Section 324 read with 34 of IPC is set aside, instead, they are convicted under Section 324 of IPC and the sentence imposed by the trial court thereunder is confirmed;
8.The conviction of the appellants 1 and 2/accused 1 and 2 in respect of charge No.11 for the offence under Section 324 read with 34 IPC is set aside and they are convicted under Section 324 of IPC and the sentence imposed by the trial court thereunder is confirmed; and
9.The sentences shall run concurrently with each other.

In all other aspects, the appeal stands dismissed.

08.06.2011

tsi To The I Additional Sessions Judge, Salem
बलात्कार एक घृणित अपराध
विनम्र ' अनुरोध: भविष्य में जारी होने वाली नोटिफिकेशन को अपने ईमेल पर पाने के लिए अपने ईमेल को सब्सक्राइब करें।

Popular Posts