Jebamalai and Others vs State

M. Chockalingam, J.—The appellants, 21 in number, have challenged the judgment of the Additional Sessions Division, Fast Track Court No. I, Tuticorin, made in S.C. No. 8/2003 whereby they stood charged and tried for the offences as follows:

I. A-1 to A-5, A-7, A-9, A-11, A-13 and A-15 - u/s 148 of I.P.C.

II. A-6, A-10, A-12, A-14 and A-16 to A-21 - u/s 147 of I.P.C.

III. A-1 to A-8 - u/s 302 of I.P.C.

IV. A-9 to A-21 - u/s 302 read with 149 of I.P.C.

V. A-9 to A-11 - u/s 324 of I.P.C.

VI. A-12 - u/s 323 of I.P.C.

VII. A-5 - u/s 324 of I.P.C.

VIII. A-10 and A-17 - u/s 323 of I.P.C.

IX. A-13 - u/s 324 of I.P.C.

X. A-14 - u/s 323 of I.P.C.

XI. A-15 - u/s 324 of I.P.C.

XII. A-5 - u/s 323 of I.P.C.

On trial, A-1 to A-4, A-7 and A-8 were found guilty under Sections 148, 302 and 302 read with 149 of I.P.C. A-5 was found guilty under Sections 148, 302, 302 read with 149, 324 and 323 of I.P.C. A-6 was convicted under Sections 147, 302 and 302 read with 149 of I.P.C. A-9, A-11, A-13 and A-15 were found guilty under Sections 148 and 324 of I.P.C. A-10 was convicted under Sections 147 and 324 of I.P.C. A-12, A-5 and A-14 were convicted under Sections 147 and 323 of I.P.C. A-13 was found guilty u/s 148 of I.P.C. A-16 to A-21 were found guilty u/s 147 of I.P.C. The punishment awarded to them, are as follows:

----------------------------------------------------------------------- Accused I.P.C. Punishment (1) (2) (3) ----------------------------------------------------------------------- A-1 to A-5, A-7, A-8, 148 3 years R.I. along with a A-9, A-11, A-13 and fine of Rs. 500/- and A-15 default sentence

A-6, A-10, A-12, A-14, 147 2 years R.I. along with a and A-16 to A-21 fine of Rs. 500/- and default sentence ----------------------------------------------------------------------- (1) (2) (3) ----------------------------------------------------------------------- A-1 to A-8 302 Life sentence with a fine of Rs. 1000/- and default sentence

A-1 to A-8 302 r/w Life sentence with a fine 149 of Rs. 500/- and default sentence

A-5, A-9 to A-11, A-13 324 2 years R.I. with a fine of and A-15 Rs. 200/- with default sentence

A-12, A-14 and A-5 323 6 months R.I. with a fine of Rs. 200/- with default sentence -----------------------------------------------------------------------

The short facts necessary for the disposal of this appeal can be stated thus:

(a) P.W.1 is the wife of the deceased Rajagopal. The deceased was living with his family members in Themankulam situated within the jurisdiction of the respondent Police Station. He was doing agricultural operations. All the accused persons also belonged to the same place. There was a vacant site situated adjacent to the patta land abutting the house of the deceased. There has been a long pending quarrel among the accused persons who are the villagers, and also the prosecution witnesses. On 11.11.2000 at about 9.30 A.M., when P.W.1 was in her colony house, she found A-18 to A-21 removing the thorn fence. The same was questioned by her. Immediately, they fisted her with hands. She raised a distressing cry. On hearing this, P.W.1 along with the other witnesses who were found to be injured in the incident, and the deceased came there and questioned the conduct of the accused. At that time, A-1 armed with an aruval, A-2 armed with an iron rod, A-3, A-5, A-8, A-9 and A-15 armed with spades, A-4 armed with a rice pounder, A-7, A-11 and A-13 armed with iron rods, A-10 armed with a knife and a stick, and A-6, A-12, A-14, A-16 and A-17 armed with sticks, came to the spot. They immediately began to attack the deceased with the respective weapons in their hands. A-1 to A-8 attacked the deceased on his head indiscriminately. The occurrence was witnessed by P.Ws.1 to 4. When P.W.1 intervened, A-9 attacked her with a spade on the head. A-10 attacked her with a knife on the right hand. A-11 attacked her with a stick on the back. A-12 with an iron rod attacked her on the back. P.W.3 was also attacked in the course of the same transaction by A-13 and A-14 with an iron rod and a stick respectively. When P.W.4, the wife of P.W.3, questioned the same, A-15 and A-5 attacked her with the spades. P.W.2, the daughter of the deceased, was also attacked by A-5 with a spade and by A-10 and A-17 with the sticks. Immediately, they fled away from the place of occurrence.

(b) P.Ws.1 to 4 along with the deceased person were taken to the Government Hospital, Srivaikuntam, where P.W.8 was the Doctor on duty. At about 11.50 A.M., she medically examined Rajagopal and declared him dead. Ex.P10 is the death intimation. P.Ws.1 to 4 were also examined by her medically. Ex.P2 is the accident register copy pertaining to P.W.4. Exs.P4 and P5 are the accident register copy and the wound certificate respectively, relating to P.W.3. Exs.P6 and P7 are the accident register copy and the wound certificate respectively, in respect of P.W.2. The accident register copy and the wound certificate in respect of P.W.1, are marked as Exs.P8 and P9 respectively. An intimation was given to the respondent Police Station. On receipt of the information from the hospital, P.W.14, the Sub Inspector of Police, who was on duty at that time, proceeded to the hospital and recorded the statement of P.W.1 which is marked as Ex.P1. Then, he came back to the Police Station and registered a case in Crime No. 140/2000 under Sections 147, 148, 323, 324 and 302 of I.P.C. The printed First Information Report, Ex.P27, was despatched to the Court.

(c) P.W.15, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the hospital, conducted inquest on the dead body of Rajagopal in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P30. Then, he proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P13, the observation mahazar, and Ex.P31, the rough sketch. He recovered bloodstained earth, M.O.19, and sample earth, M.O.20, under a cover of mahazar. Thereafter, he gave a requisition, Ex.P11, to the hospital authorities for the conduct of autopsy.

(d) P.W.9, the Doctor, attached to the Government Hospital, Srivaikuntam, on receipt of the said requisition, conducted autopsy on the dead body of Rajagopal and found 3 injuries. The Doctor has issued a postmortem certificate, Ex.P12, with his opinion that the deceased would appear to have died of shock and haemorrhage due to injury to vital organ-brain.

(e) Pending the investigation, the Investigating Officer arrested A-7, A-8, A-12 and A-17 on 12.11.2000. A-7 gave a confessional statement voluntarily, which was recorded. The admissible part of the said confession is marked as Ex.P28, pursuant to which, he produced an iron rod, a spade and two bloodstained sticks, which were recovered under a mahazar, Ex.P29. They were sent for judicial remand. The Investigator came to know that A-1 surrendered before the Court. He applied for police custody, which was ordered. Then, he took A-1 to police custody. During interrogation, A-1 volunteered to give a confessional statement, which was recorded. The admissible part of the same is marked as Ex.32. Pursuant to the same, he produced an aruval, two spades, a pounder and two sticks, which were recovered under Ex.P33, the mahazar. A-1 was again sent for judicial remand. A-2 surrendered before the Court. The Investigator applied for police custody and took him to police custody. During interrogation, A-2 came forward to give a confessional statement which was recorded. The admissible part is marked as Ex.P34, pursuant to which he produced the material objects namely a crow bar, two spades, a knife, two sticks, and an iron rod, which were recovered under a mahazar, Ex.P35. A-2 was again sent for judicial remand.

(f) All the material objects recovered from the place of occurrence and the weapons of crime recovered from the accused, were subjected to chemical analysis by the Forensic Sciences Department, which resulted in two reports, Ex.P23, the Chemical Analyst''s report, and Ex.P24, the Serologist''s report. On completion of investigation, the Investigating Officer filed the final report.

The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 36 exhibits and 21 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 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, scrutinized the materials available and came to the conclusion that the prosecution has proved the case beyond reasonable doubt. The trial Court found them guilty as per the charges levelled against them and awarded punishment referred to above. Hence, all the accused 21 in number, have brought forth this appeal before this Court.

Advancing his arguments on behalf of the appellants, the learned Counsel made the following submissions:

(i) According to the prosecution, the occurrence has taken place on 11.11.2000 at about 9.30 A.M. The motive even as per the prosecution case, is not only flimsy, but also remote and thoroughly unacceptable.

(ii) According to the prosecution, it was P.W.1 who was standing in front of the house and found A-18 to A-21 removing the thorn fence , and when she questioned the same, she was fisted by A-18 to A-21, and at that time, she shouted, and on hearing the distressing cry, all other witnesses namely P.Ws.1 to 4, along with the deceased came to the spot and questioned the accused, and in that, A-1 to A-17 armed with deadly weapons, came there and attacked them, and the occurrence has taken place. To start with, the prosecution has not proved this motive. The motive attributed, was too flimsy.

The learned Counsel would further add that according to the prosecution, P.Ws.1 to 4 were not only eyewitnesses, but also injured; that from the evidence of P.Ws.5 and 6, it would be quite clear that they could not have seen the occurrence at all; that as far as P.Ws.1 to 4 were concerned, they were all taken to the hospital immediately along with the deceased, and the deceased was declared dead by the Doctor at the Government Hospital; that no material is available to show that what was the actual statement made by any one of these injured witnesses as to the manner of injury sustained by the deceased which led to his death; that so far as P.Ws.1 to 4 are concerned, who are all eyewitnesses, no one witness has spoken about the place of occurrence; that there are different versions possible in respect of the weapons of crime; that the earliest documents in respect of P.W.1, are Exs.P8 and P9; that Exs.P6 and P7 are in respect of P.W.2; that Exs.P4 and P5 are in respect of P.W.3; that the document in respect of P.W.4, is Ex.P2; that they are the accident register copies and the wound certificates respectively; that a perusal of the same would clearly reveal that they are in complete variation of the F.I.R. and also the evidence before the Court; that it is highly a matter of surprise to note that when the occurrence has taken place at about 9.30 A.M., they were all taken to the Government Hospital, Srivaikuntam at about 11.50 A.M.; that at that time, the Doctor has examined all the four together; that this would be indicative of the fact that there could not have been medical examination as put forth by the Doctor; that as regards P.W.1, before the Doctor, she has stated that she was attacked by aruval; but, when she was brought before the Court, she would say that she was attacked by aruval, spade, iron rod and also by stick; that no corresponding injuries are found; that as far as P.W.2 is concerned, she has given a different version from one what is found in the accident register copy, and thus, not only the witnesses who have given evidence before the Court, have made improvements, but also it would go to the root of the matter; and that these witnesses, who could not speak about the injuries sustained and who were the assailants at the time of occurrence, were not competent to speak about the said fact and the injuries that were sustained by the deceased which led to his death.

Added further the learned Counsel that even as per the evidence of P.W.4, the daughter, they heard the distressing cry of the mother, P.W.1, and thereafter, all of them came to the place of occurrence; that as could be seen, there are number of versions given; that according to the prosecution, the occurrence has taken place in front of the colony house, and the removal of the thorn fence was the root cause; that neither in the sketch nor in the observation mahazar, thorn fence is shown; that apart from that, where the occurrence has taken place, all the witnesses have given different versions, which would go to show that they could not have seen the occurrence at all; that there could not have been a proper observation by the Investigating Officer; that so long as the prosecution is unable to fix the place of occurrence, the prosecution must fail; that even as per the medical opinion, the death would have occurred even earlier; that further, there is evidence to show that the deceased had got number of enemies in the village; that the adding factor was the time of occurrence; and that all put together would clearly indicate that he would have been murdered by somebody; but, taking advantage of the poramboke property dispute, all these accused persons who were all strange villagers and who have nothing to do with the crime, have been falsely roped in.

The learned Counsel would further submit that in the instant case, the medical evidence did not support the prosecution case at all; that the genesis of the occurrence is also not made known; that even as per the case of the prosecution, it was P.W.1, who questioned the act of A-18 to A-21, and also commenced the entire incident; that there is nothing to indicate that there was any common object either to kill or to be participants in the occurrence.

Added further the learned Counsel that in the instant case, according to the prosecution, A-1 to A-17 were holding weapons. Attacking the case of the prosecution that the medical opinion canvassed, is not in support of the prosecution case, the learned Counsel took the Court to the postmortem certificate issued by P.W.9, the Doctor, and also his evidence. He would submit that according to P.W.9, there were only three injuries found on the deceased i.e., two on the skull and one on the right wrist; that according to the prosecution, all the eyewitnesses have spoken to the fact that A-1 to A-8 indiscriminately attacked the deceased on his head and not below; that if to be so, corresponding injury should have been found; but, no corresponding injuries are found; that at the same time, no one of the witnesses has spoken to the fact that attacks were made or injuries were sustained by the deceased on the wrist, but not found so, and thus, there was a thorough deviation in that regard; that under the circumstances, the medical opinion was not in support of the prosecution case; that apart from that, the arrest of the accused and the recovery of weapons were nothing but an introduction in order to suit the prosecution case; that in such circumstances, the prosecution has not proved its case beyond reasonable doubt; but, the lower Court has taken a view that the prosecution has proved the case; that it is a case where the prosecution is unable to prove the motive or the place of occurrence, and the evidence of the eyewitnesses are thoroughly discrepant, and they could not account for the injuries sustained by them, and the injuries found on the deceased person, were not spoken to by the eyewitnesses; that under the circumstances, the lower Court should have acquitted the accused; but, it has taken an erroneous view and found the appellants/accused guilty, and hence, they are entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

It is not a fact in controversy that one Rajagopal, the husband of P.W.1, following an incident that took place at about 9.30 A.M. on 11.11.2000 in that village, in which he sustained injuries, was taken to the hospital, where he was declared dead by P.W.8, the Doctor, attached to the Government Hospital, Srivaikuntam. Following the registration of the case by P.W.14, the Sub Inspector of Police, the Investigating Officer, P.W.15, took up investigation and made an inquest on the dead body. Thereafter, the postmortem was conducted by P.W.9, the Doctor, who has categorically opined that he died out of shock and haemorrhage due to the injury to vital organ namely brain. This fact was never questioned by the appellants/accused at any stage of the proceedings. Hence, without any impediment, it could be factually recorded that Rajagopal died out of homicidal violence.

In order to substantiate the different accusations made against the appellants/accused 21 in number, the prosecution marched six witnesses as eyewitnesses. Out of these six witnesses, P.Ws.1 to 4 are injured witnesses. So far as P.Ws.5 and 6 are concerned, as could be seen from their evidence and as rightly pointed out by the learned Counsel for the appellants, the Court cannot accept their evidence in view of the discrepancies found therein. But, as far as P.Ws.1 to 4 are concerned, from the evidence of P.W.8, the Doctor, attached to the Government Hospital, Srivaikuntam, it would be clear that they were all taken to the hospital and examined by her at about 11.50 A.M on the day occurrence i.e., within an hour or two. From the evidence, it could be seen that as regards P.W.1, Exs.P8 and P9 are the documents. In respect of P.W.2, the documents are Exs.P6 and P7. As regards P.W.3, Exs.P4 and P5 are the documents. Ex.P2 is the document in respect of P.W.4. They were all accident register copies and wound certificates respectively issued by the same Medical Officer. She has also spoken to the said fact. A perusal of these documents would clearly indicate that all the four persons have been attacked, and they have sustained injuries in a particular incident that took place at about 9.30 A.M. in their native place. It would be quite clear that in the course of the same transaction, all were injured, and they were taken to the hospital and medically examined by the same Doctor.

Now, the first comment made by the learned Counsel for the appellants that there are no descriptions as to the number of assailants and the weapons used, has got to be rejected for the simple reason that in an occurrence that took place, one person was murdered, and immediately, all the four persons who were injured, along with the deceased were taken to the hospital. At that juncture, naturally, one cannot expect the injured persons to give details to the Doctor at the time of their examination and treatment. Needless to say, in a given case, when the witnesses are not only eyewitnesses to the occurrence, but also injured witnesses, their evidence should not be discarded unless and until a strong circumstance is noticed by the Court, or a reason is brought about by the accused. In the instant case, it can be well stated that no such circumstance is noticed by the Court. Hence, the Court has to necessarily believe the evidence of P.Ws.1 to 4 who are the injured witnesses.

From the evidence of P.Ws.1 to 4, it would be quite clear that the incident has taken place at the time and place of occurrence. As far as the place of occurrence was concerned, relying upon the sketch and the observation mahazar, much comment was made by the learned Counsel for the appellants. According to the prosecution, the occurrence has taken place in front of the colony house, and the colony house is shown in the sketch. It is true that the fence which was the root cause for the trouble, was not shown. It was actually a mistake committed by the Investigator. By giving much effect and significance to such a mistake committed by the Investigator, the prosecution cannot be found to be infirm or defective in its truth. Now, in the case on hand, P.Ws.1 to 4 have given in one voice that the occurrence has taken place in front of the house. Even as per the earliest statements given to the Doctor, P.W.8, the occurrence place is found to be so. The accident register copies and the wound certificates have also been brought forth. It is not the case of the defence that they were all attacked, and injuries were caused in a different transaction. But, P.W.1 has categorically stated that there is a poramboke land abutting the house; that there was a thorn fence; that just preceding the occurrence, A-18 to A-21 came over there; that they were removing the fence; that immediately, she questioned the same; that she was fisted by A-18 to A-21, and that was the origin of the occurrence, following which she made a distressing cry; and that P.Ws.1 to 4 along with the deceased came over there. At that juncture, it is quite natural for the husband of P.W.1 namely the deceased Rajagopal, to question the act of the accused who beat her. The evidence would go to show that A-1 to A-17 armed with deadly weapons came over there and attacked them. Now, the origin of the occurrence is made clear. Hence, the contention put forth by the appellants'' side that there was no motive cannot be accepted.

The learned Counsel for the appellants would submit that the FIR has reached the Court only on 13.11.2000. But, a perusal of the FIR would go to show that the Magistrate has put the initial on 11.11.2000 itself. Thus, the said contention has got to be rejected.

It is true that all these persons assembled there. But, at the same time, nothing could be inferred that they had got any common object or they had got any intention; but, they have acted suddenly. Once the common object of the accused persons is not shown or proved, under the given facts and circumstances, their individual acts have got to be dealt with. So far as the death caused to Rajagopal is concerned, the prosecution relied on not only the evidence of P.Ws.1 to 4, but also the postmortem certificate and the Doctor''s opinion. A perusal of the postmortem certificate would clearly reveal that there were three injuries found, the first two on the skull and the third one on the right wrist. Out of these three injuries, the third injury was found on the right wrist, and no one of the witnesses could speak about the same. As far as the other two injuries are concerned, the first injury as found in the postmortem certificate, could have been caused only by A-2 with a crowbar. As regards the second injury, it should have been caused only by A-1 who was armed with an aruval. These two injuries, according to the medical opinion, were fatal. The learned Additional Public Prosecutor in the course of his arguments would submit that in the skull, number of injuries were found, and the entire skull has been fractured, and the witnesses have spoken to the fact that it was A-1 to A-8, who have attacked him with different weapons, and thus, the totality of the fact was the death. This argument could not be accepted by the Court in the face of the medical evidence. From the medical evidence, it would be quite clear that the injuries were three in number, out of which one remained unexplained, and two other injuries were found on the skull. The nature of the injuries and the weapons with which the injuries were caused, would be indicative of the fact that it was A-1 and A-2 who wielded the weapons and caused the injuries on the skull. The contention put forth by the learned Counsel for the appellants that A-1 and A-2 had no common intention to commit the crime has got to be discountenanced. The evidence would go to show that they have acted with common intention, and the same could be easily inferred. In such circumstances, it can be well stated that A-1 and A-2 had shared the common intention of causing the death of Rajagopal. Hence, they are to be found guilty u/s 302 read with 34 of I.P.C.

From the evidence, it would be quite evident that P.W.1 was attacked by A-9 to A-12. According to the witnesses, P.W.2 was attacked by A-5, A-10 and A-17, and P.W.3 was attacked by A-13 and A-14. P.W.4 was attacked by A-5 and A-15. They have been individually dealt with by the lower Court. As far as P.W.1 was concerned, A-9 to A-11 were found guilty u/s 324 of I.P.C. and awarded 2 years Rigorous Imprisonment. A-12 was found guilty u/s 323 of I.P.C., and he was directed to suffer six months Rigorous Imprisonment. Insofar as the attack on P.W.2, A-5 was found guilty u/s 324 of I.P.C. and awarded 2 years Rigorous Imprisonment. As far as P.W.3 was concerned, A-13 was found guilty u/s 324 of I.P.C. and awarded two years Rigorous Imprisonment, while A-14 was found guilty u/s 323 of I.P.C. and awarded six months Rigorous Imprisonment. As regards P.W.4, A-5 was found guilty u/s 323 and awarded six months Rigorous Imprisonment, while A-15 was found guilty u/s 324 of I.P.C. and awarded two years Rigorous Imprisonment.

As regards the conviction of A-1 to A-5, A-7, A-8, A-9, A-11, A-13 and A-15 u/s 148 of I.P.C. and of A-6, A-10, A-12, A-14, and A-16 to A-21 u/s 147 of I.P.C., this Court is of the view that in the absence of any common object, the provisions of Sections 147 and 148 of I.P.C. cannot be applied. Hence, the conviction and sentence imposed by the trial Court in that regard, are set aside, and they are acquitted of those charges. The fine amounts if any paid by them, will be refunded to them.

As could be seen from the available materials, in respect of A-3, A-4, A-5, A-6, A-7 and A-8, no overt act is attributed for attacking the deceased. That apart, in respect of the attacks alleged to have been made by A-3, A-4, A-5, A-6, A-7 and A-8, no material or medical opinion is placed. Under the circumstances, A-3, A-4, A-5, A-6, A-7 and A-8 are entitled for acquittal in respect of the charge u/s 302 of I.P.C. Accordingly, the conviction and sentence imposed on A-3 to A-8 u/s 302 of I.P.C. by the trial Court are set aside, and they are acquitted of the said charge. The fine amounts if any paid by them, will be refunded to them.

For the foregoing reasons, the conviction of A-1 and A-2 u/s 302 of I.P.C. is set aside, and instead, they are convicted u/s 302 read with 34 of I.P.C. The sentence of life imprisonment along with a fine of Rs. 1000/- and default sentence imposed by the trial Court, on A-1 and A-2 is confirmed.

As regards the conviction and sentence imposed by the trial Court in respect of the charge u/s 302 read with 149 of I.P.C., it remains to be stated that in the absence of any common object, the same cannot be sustained. Hence, the conviction and sentence imposed by the trial Court on A-1 to A-8 u/s 302 read with 149 of I.P.C. are set aside. They are acquitted of the said charge. The fine amounts if any paid by them, will be refunded to them.

As regards A-9 to A-12, A-5, A-13, A-14 and A-15, the conviction and sentence imposed on them by the trial Court under Sections 323 and 324 of I.P.C. respectively, are sustained.

The bail bonds executed by A-3, A-4, A-6, A-7, A-8, A-16, A-17, A-18, A-19, A-20 and A-21 shall stand terminated.

In the result, this criminal appeal is partly allowed. It is stated that A-1, A-9 to A-12, A-5, A-13, A-14 and A-15 are on bail. Hence, the Sessions Judge shall take steps to commit them to prison to undergo the sentence in respect of A-1 and the remaining period of sentence in respect of A-9 to A-12, A-5, A-13, A-14 and A-15.