Jothibasu and Others vs State

S.R. Singharavelu, J.—A1 to 6, 8 to 11, 14 and 16 are the appellants. A1, A2, A5 and A.16 were convicted for an offence u/s 302 IPC

and each were sentenced to undergo life imprisonment. A.1 to A6, A.10, A.11, A.14 and A.16 were convicted for the offence u/s 148 IPC and

sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.100/=, in default to undergo two months rigorous imprisonment,

A3, A.11 and A.14 were also convicted u/s 307 IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of

Rs.1000/=, in default to undergo three months rigorous imprisonment and A4, A6 and 8 to 10 were convicted u/s 324 IPC and sentenced to

undergo two years rigorous imprisonment and to pay a fine of Rs.100/=, in default to undergo two months rigorous imprisonment. The other

accused namely, A7, A.12, A.13, A.15, A.17 and A.18 were acquitted of the charges against them. A.19 died during trial and so, the

proceedings abated against him.

The facts leading to the conviction are as follows:-

(a) The accused and the injured witnesses P.Ws.1 to 3, 8, 9 and the hostile witnesses P.Ws.4 and 5 belonged to Parappanur Village, lying within

the jurisdiction of Velanganni Police Station. Out of whom, A.1 to A5 are brothers between themselves. All of them originally belonged to

Communist party. The accused subsequently became members of D.M.K. party and even on that score, there was grappling between the two

groups. Some three months prior to the date of occurrence, there was also dispute between the two groups against the attempted raising of

construction by A.1 in a poramboke land. Since that construction was abutting the route to the Village crematorium, on the complaint of P.Ws.,

Tahsildar of the said Taluk intervened and advised not to prevent the route depriving the inmates of the village to have approach to the grave yard.

It is against such advice, A.1 during occurrence, namely, at 09.30 AM on 08.11.1998 was attempting to make construction in Survey No.140/33

as found in the sketch marked as Ex.P-26 and therefore, P.Ws.1 to 3, 8 and 9 went there and objected to the raising of construction by A.1 in the

said land. In that process, there was wordy quarrel between A.1 and the abovesaid P.Ws.and all the accused armed with deadly weapons came

out from the adjoining house of Jothibasu (A.1) and indulged in assaulting and attacking P.Ws. They formed themselves into an unlawful assembly

and armed with deadly weapons like crowbar, wooden log assaulted upon the P.Ws. A.1 attacked deceased Gurusamy with crowbar assaulting

on the left side of his neck. A2 attacked deceased Gurusamy with wooden log and A.16 attacked deceased Rajendran with crowbar on the back

of their head. Similarly, A5 had attacked deceased Rajendran with wooden log on his back of the head. It was at 2.00 pm on 08.11.1998 Ex.P-1

complaint was lodged by P.W.1, which was received by P.W.16, Sub Inspector of Police, who was incharge of Velanganni Police Station. He has

registered a case in Crime No.761 of 1998 under sections 147, 148, 342, 323, 324, 307 and 302 IPC and the printed first information report

was marked as Ex.P-18. It was at 2.30 pm, a case in Crime No.762/1998 was registered under sections 147, 148, 323, 324 based upon the

statement of injured Jothibasu (A.1), from whom such statement was recorded at 1.00 pm while he was in the Government Hospital,

Nagapattinam. The printed first information report of which was marked as Ex.P-19.

(b) Chinnasamy (P.W.19), the Inspector of Police has taken up the investigation on 08.11.1998 itself and upon receiving the information that

Gurusamy and Rajendran succumbed to the injuries, he held the inquest upon their bodies between 2.30 and 3.30 PM and the inquest report of

Deceased 1 and 2 respectively was marked as Exs. P-23 and

P-24. Thereupon, the bodies of deceased were sent for post mortem and some accused were also arrested and they were sent for remand. At

7.15 pm on the same day (08.11.1998), the Inspector has visited the place of occurrence and prepared the observation mahazar Ex.P-2 and

sketch marked as Exs.P-26. At 11.00 PM, on the said night, Rajagopal (A 14) was arrested along with other accused and the voluntary

confession statement of Rajagopal was recorded in the presence of the witnesses and the admissible portion of such evidence was marked as

Ex.P-4. Based upon that, one crowbar, one wooden log and two Aruvals were recovered by cover of Mahazar at 1.30 am on 09.11.1998. Then,

witnesses including the injured were examined and their statements were recorded. Certificate from Tahsildar in respect of the poramboke land,

over which A.1 attempted to build a house was obtained. Similarly, upon enquiry in Crime No.762 of 1998, as it was found of mistake of fact, it

was referred on 08.11.1998. That report was marked as Ex.P-30. Besides above factors, the Inspector has also recorded the statement of post

mortem doctors and other witnesses. After completing investigation, P.W.19 filed the charge sheet against the accused for the offences referred to

above.

(c) During the course of trial, on the side of prosecution, P.Ws.1 to 19 were examined; Exs.P-1 to P-30 were filed and M.Os.1 to 14 were

marked.

(d) When questioned u/s 313 Cr.P.C., all the accused denied their complicity in the crime in question. On the side of defence, no witness was

examined.

(e) The trial Court, on analysis of the materials available on record, convicted and sentenced the accused as already stated above. Challenging the

same, the appellants have filed the appeal.

The fact of occurrence at 09.30 AM in the place mentioned in the sketch as place of occurrence cannot be disputed as both the accused and

the witnesses got injured in the said incident. Even though the learned counsel appearing for the appellants submitted that P.Ws.were the

aggressors, inasmuch as the occurrence took place in front of the house of A.1, we can at the outset mention that the act of aggression in this case

is that of A.1, who had attempted to construct a building against the advice of the Tahsildar in a poramboke land so as to obstruct the way to

Mayanam. Since A.1 had attempted to construct even against the suggestion of the Tahsildar and that construction was opposed to the welfare of

the common public of the said village, P.W.1 happened to go just to show their protest. On that score, we cannot brand the P.Ws.as aggressors.

That is why we have already mentioned that the act of aggression in this case had been done only by the accused. Again it has not been disputed

that as soon as there was a wordy quarrel between A.1 and the injured P.Ws., all the accused with deadly weapons came out from the house of

A.1, formed themselves into an unlawful assembly and began to attack upon P.Ws. The fact that in that process, accused also sustained injuries

will very well indicate their presence in the scene of occurrence and also their participation in the occurrence unless and until sufficient and

satisfactory explanation for the injuries of the accused was given by the prosecution. No such acceptable explanation has come forth from their

side.

Dr.Sarvalogam attached to Government Hospital Headquarters, Nagapattinam examined as P.W.12 had in fact, issued the wound certificates

through Exs.P-12, P-13, P-16 and P-15 for A.1 to A4 respectively and through Exs.P-17 and P-14 for A7 and A-11 respectively. They have

admitted themselves in the said hospital by 12.00 Noon on the said date of occurrence on 08.11.1998 by alleging that in an incident happened at

Parappanur Village, they were assaulted by Aruval and Hook. But all the injuries found upon the body of the above accused were only contusion

and laceration. They were all described as only simple injuries.

Dr.Sarvalogam(P.W.12) had also treated P.Ws.1 and 9 and issued wound certificates through Exs.P-11 and P-10 respectively.

Dr.Subramaniam, P.W.18 attached to the Government Hospital, Nagapattinam had admitted P.Ws.2, 3 and 8 and issued the wound certificates

for them through Exs.P-21, 20 and 22 respectively. They also alleged that they have sustained injuries at 9.30 AM at Parappanur in front of the

house of A.1 and that refers to the occurrence of this case. Of course, injuries found upon the body of P.Ws.1 to 3 and 8 were simple in nature

but that found upon the body of P.W.9 was grievous in nature.

P.W.1 in his evidence had deposed that he was attacked by A3 on his left shoulder with Aruval. There is also a corresponding incised injury

found upon the left shoulder. Similarly, P.W.2 has deposed that he was attacked by A9 and A-10 with Sulukki; that A9 attacked him on his right

side of chest; A.10 attacked on his right wrist. The following corresponding injuries are found in Ex.P-21.

(1) Incised wound 3/4"" x �"" x �"" on the inner surface of middle of right arm. Bleeding.

(2) Incised wound of �"" x �"" x �"" present over the right side of chest. Lateral to right nipple.

P.W.3 deposed that he was attacked with Aruval by A4 on his right shoulder; with Aruval by A6 on his left wrist; and that A.17 attacked him

with stick on his back. Among the corresponding injuries found, the overt act of A4 and A6 are found under Ex.P-20 which are as follows:

(1) An incised wound 2"" x 1"" x �"" present over the outer aspect of left forearm near the left wrist, bleeding.

(2) An incised wound of 1"" x �"" x �"" present over the top of the right shoulder.

P.W.8 deposed as if A5 attacked on his head with Aruval. A.15 assaulted on his limbs with stick and that A.18 assaulted on his back with his

hands. Ex.P-22, the wound certificate reveals the following injuries.

Incised wound 3"" x 2"" x skin deep present over right temporal region 2"" above right ear bleeding.

P.W.9 deposed that A.13 assaulted him with stick on his hip and back and that A.14 assaulted with Aruval on his left jaw. Ex.P-10 is the

corresponding wound certificate which reveals the following injuries.

An incised injury on the left face extending from the ear to chin with laceration of inner tissues with bleeding size 4"" (1) x �"" (d) x 2-1/2""(d) in the

left jaw.

All the injured witnesses conjointly contended that A.1 attacked the deceased Gurusamy with crowbar on his left portion of front side of the

neck and that A.16 assaulted deceased Rajendran with crowbar on the back of his head. Similarly, it was contended by them that with the help of

wooden log, A2 and A5 assaulted respectively the deceased Gurusamy and Rajendran upon their back side of the head.

P.W.10, Dr.Ramesh Babu attached to Government Hospital Headquarters, Nagapattinam has conducted the post mortem on the body of

Gurusamy at 4.40 pm on 08.11.1998 and the post mortem report was marked as Ex.P-8, which reveals the following injuries upon the body of

deceased Gurusamy.

External injuries:

(1) A lacerated injury 3 cm x � cm located on the left supra clavicular fossa. Depth of the injury 6 cm by probing verticals.

(2) Contusion 8 cm x 4 cm poster aspect of neck.

Internal injuries:

On opening thorax, no fracture in ribs. About 800 ml.of fluid blood seen in left thoracic cavity. Left sub clavicle artery injured. Heart weight 250

gms. Left ventricle contain fluid blood. Lungs Rt.pallor left 450 gms.congested. Left apex of lungs shows lacerated injury 3 cm x 1 cm blood clots

seen around the injury. Stomach empty. Liver 1400 gms.pale. Spleen 200 gms.pallor. Kidney each weight 140 gms.pallor. Intestine pallor.

Bladder empty. Pelwis no fracture. On opening skull, no fracture; membranes intact; brain weight 1300 gms.

P.W.11 Dr.John Selvakumar Pandian attached to Government Hospital, Nagapattinam, has conducted the post mortem upon the body of

Rajendran (D2) at 4.40 pm on 08.11.1998 and the post mortem certificate was marked as Ex.P-9, which reveals the following injuries.

External injuries:

(1) Lacerated wound just above occipital region 5 x 5 x 3 cm size, skull bone seen, depressed fracture skull bone seen.

(2) Contusion on the back of neck 6 x 4 x 3 cm black in colour.

Internal injuries:

Opening the thorax fracture of ribs right side 4th, 5th, 6th, 7th in the mid claviclar line, blood seen clotted over the fracture site, right lungs 500

gms, congested purple, right pleural cavity contains 600 ml.of fluid blood, left lungs 450 gms, purple in colour, congested. Heart 250 gms,

chambers empty, hyoid bone intact, liver 1200 gms. Pale spleen 120 gms. Pale kidney 150 gms.each.

Intestine: distended. Skull congested. Clotted blood over cerebral occipital region 300 ml. Brain 1400 gms. Surface congested blood oozing from

cut surface. Cranial cavity contains 200 ms.of fluid blood.

As we have discussed earlier, the version of A.1 before the police and the complaint Ex.P-19 and their allegations made before

Dr.Sarvalogam (P.W.12) attached to Headquarters, Government Hospital, Nagapattinam when they have been admitted for treatment, would go

to show that the accused sustained injuries during the time of occurrence and in the place of occurrence. That clinchingly proves their presence in

the place of occurrence and would naturally go to show their participation in the occurrence. Similarly, the evidence of injured witnesses namely,

P.Ws.1 to 3, 8 and 9 go to show the assault made by the respective accused upon each of their body as well as the fatal attack made by A.1 and

A2 upon the body of Gurusamy (D1) and that of A5 and A.16 upon the body of Rajendran (D2). It is needless to cull out the portion of such

evidence because they are very much cogent and consistent and there is no factor making their evidence unbelievable. On the contrary, the medical

evidence of P.Ws.10 and 11, who conducted the autopsy on the body of deceased Gurusamy and Rajendran and that of the medical evidence that

comes forth from P.W.12, who treated P.Ws.1 and 9 besides the evidence of P.W.18, the Medical Officer, who treated P.Ws.2, 3 and 8, would

lend support to the version of P.Ws.as to the individual accused caused the assault upon the various injured witnesses as well as the bodies of the

two deceased. The fact of presence of accused in the scene of occurrence, as proved by the presence of injuries on their bodies coupled with their

statements before Physician through Exs.P-12 and 13 will go to satisfactorily prove the case of the prosecution so far as the present appellants

except A8 and A.11. Why we say that there is an exception for A8 and A.11 is that, even though A8 was charged u/s 324 IPC for having

assaulted P.W.2, the evidence of P.W.2 did not contain any allegation about A8. When the injured themselves do not say any overt act against

A8, the case of prosecution against A8 is not believable, also for the reason that there is no injury found upon the body of A8 in order to show that

he also participated in the occurrence. Therefore, A8 is liable for acquittal u/s 324 IPC to which section he was charged.

Similarly, A.11 was charged for the offence u/s 307 IPC and on a perusal of the entire evidence of the injured P.Ws., namely, P.Ws.1 to 3, 8

and 9, we do not find any overt act against A.11. Therefore, he has to be acquitted for the charges framed against him u/s 307 IPC. But his

presence in the scene of occurrence is found through Ex.P-14, the wound certificate issued by P.W.12 for that accused. Thus, the conviction u/s

148 IPC is sustainable. Even as against A.14, there is evidence of overt act alleged to have been done by him available through P.W.9 coupled

with the corresponding injury found upon the latter''s body as seen under Ex.P-10 and also as spoken to by P.W.12, the Medical Officer, who

examined P.W.9. So, the conviction of A.14 under sections 148, 307 is sustainable.

Learned counsel appearing for the appellants submitted that in order to have self defence, the accused might have applied the said force. He

also stated that there was a scuffle and free fight and therefore, the evidence of the injured witnesses as if particular overt acts against particular

witnesses was inflicted by the individual accused, is unbelievable. We cannot accept the arguments that evidence of P.Ws.is tutored because each

had cogently spoken about the overt acts made upon the body of individuals by the concerned accused. When the injuries are few and also simple

in nature, they can be able to describe as to the person, who caused it. There is nothing unnatural or any factor to discredit their evidence. As a

matter of fact, accused also sustained such simple injuries and were able to say that they sustained it only in the said occurrence. It is because in

their attempt to commit fatal injuries upon the body of deceased 1 and 2, they happened to sustain simple injuries due to resistance of their attack.

They have ignored as to under whose hands they sustained injuries.

Apart from A.1, A2, A5 and A.16, who supplied fatal injuries on deceased Gurusamy and Rajendran, the other accused, who sustained

simple injuries were A3, A4, A7 and A.11. Since they did not attribute their injuries to the overt act of any particular prosecution witness, their

case in Crime No.762 of 1998 has been referred as mistake of fact. Therefore, they might have sustained those injuries while resistance was

caused to their assault upon P.Ws. It is again at no stretch of imagination, we could say that fatal injuries were caused for the purpose of self

defence. Nowhere it was said that either of the two deceased persons have attempted to cause injuries upon any of the accused. Nowhere it was

alleged, either in the complaint Ex.P-1 (Cime No.761 of 1998) or before the Medical Officer P.W.12, who examined the accused, as if the

particular witness has caused such injury upon the body of the accused. We have also disbelieved the submission made by the counsel as if

P.Ws.were the aggressors. In fact, the act of aggression was made only by A.1, as he attempted to build the construction in a poramboke land,

which was actually the way to Mayanam and was used so by the public. The deceased who went there and objected to the construction had a

reasonable and just cause on their side in opposing the said construction because it was already complained to the Tahsildar and he has also

advised and suggested to A.1 not to prevent the way to grave yard. But why should there be 18 other accused available with armed weapons in

the house of A.1, while A.1''s action alone was protested by P.Ws? That shows the pre-meditation of the accused party and their intention to

cause fatal injuries upon the deceased. That is why evidently, they have assembled and concealed themselves in the house of A.1 with deadly

weapons and as soon as the expected protest started from P.Ws., they started supplying fatal injuries upon the deceased and injuries upon the

others. That is why we have already found that it is not an act of self defence; all the more so, because the assault was not started by P.Ws., and it

was only the accused party who started the assault indiscriminately against the witnesses party. There was also sufficient motive in between the said

groups not only upon the construction of house by A.1 in the public way, but also the accused party was disgruntled with the group that had

branched off from the political party, to which they along with the prosecution witnesses originally belonged to.

Therefore, viewed in any angle, the prosecution case is acceptable excepting A8 for the offence u/s 324 IPC and A.11 for the offence u/s 307

IPC.

In the result, the criminal appeal is partly allowed.

(i) The conviction and sentence imposed on A-1 to A-6, A-9, A-10, A-14 and A-16 are confirmed. If they are on bail, the trial Court is directed

to take steps to secure the custody of these accused to undergo their remaining period of sentence.

(ii) Insofar as A-8 is concerned, the conviction and sentence imposed on him for the offence u/s 324 IPC are set aside and he is acquitted of the

charge. A-8 shall be released forthwith, unless he is required in connection with any other case. The fine amount, if paid by A-8 shall be refunded.

The bail bond if any executed by A-8 shall stand cancelled.

(iii) Insofar as A-11 is concerned, the conviction and sentence for the offence u/s 307 IPC are set aside and he is acquitted of that charge. The fine

amount, if any paid by him for that offence shall stand refunded. The conviction and sentence imposed on him for the offence u/s 148 IPC are

confirmed and if he is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.