Prakash, Neela Krishnan @ Leela Krishnan and Sampath alias Sampathkumar alias Silambarasan vs State

M. Chockalingam, J.—All these three appeals namely C.A. Nos. 303, 370 and 423 of 2008 concentrate in challenging a judgment of the

Principal Sessions Division, Coimbatore, in S.C.No.25 of 2007. The appellants/accused stood charged, tried, found guilty and awarded

punishment as follows:

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ACCUSED CHARGES FINDING PUNISHMENT

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A-1 to A-4 147 IPC Not guilty

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A-1 & A-2 148 IPC Not guilty

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A-1 to A-4 3(1)(x) of SC/ST A-1 guilty. Others 6 months RI along with a

(Prevention of not guilty. fine of Rs. 1000/- and

Atrocities Act), default sentence

1989

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A-1 to A-4 302 r/w 34 IPC r/w A-1 & A-2 guilty. A-1 & A-2 � Life

3(1)(v) of SC/ST A-3 & A-4 not imprisonment with a fine

(Prevention of guilty, of Rs. 1000/- and default

Atrocities Act), but guilty under sentence

1989 Section 323 IPC

A-3 & A-4 - 6 months RI

along with a fine of

Rs. 1000/- and default

sentence

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The short facts necessary for the disposal of these appeals can be stated as follows:

(a) P.W.1 is a resident of Ondipudur. He has two sons. He belonged to Scheduled Caste. The deceased Dhandapani was the second son. He was

working in Santhi Gears. He used to go for his work at about 7.00 A.M. and return at 6.00 P.M. P.Ws.2 and 4 were working with the deceased.

On 3.3.2007, accompanied by P.Ws.2 and 4, he was proceeding to his house. When they were crossing Jallikuli Street, they came to know that

there was annadhanam (distribution of free food) at Vinayaga Temple. Immediately the deceased and P.Ws.2 and 4 went there to take food. The

deceased sat along with others to take food. At that time, A-1 also tried to take the seat. On seeing the deceased who was about to take seat, A-

1 uttered ""Do you want to sit along with us"". The deceased questioned that he did not commit anything wrong and why A-1 should talk ill of his

caste. Immediately A-1 took a wooden log and attacked the deceased on his head. A-2 took another wooden log and joined A-1 in attacking

him. All the other accused kicked him on different parts of the body. When a huge crowd gathered and intervened, the accused fled away from the

place of occurrence with the wooden logs.

(b) P.Ws.2 and 4 took the deceased and left him nearby his house and went away from the place. P.W.1 on seeing the injuries, enquired the

deceased. Then he took him to the clinic of P.W.3 a private doctor. P.W.3 medically examined the deceased between 10.45 P.M. and 11.00

P.M. and gave the initial treatment. Thereafter, P.W.1 took the deceased to the Government Hospital, Coimbatore. On 4.3.2007, at about 5.37

A.M., when P.W.18, the Doctor, was on duty, he examined the deceased. The accident register copy is marked as Ex.P7. Despite the treatment

given by P.W.17, another Doctor, he died at about 0915 hours. An intimation was given to the respondent police.

(c) On receipt of the death intimation, Ex.P8, P.W.24 the Inspector of Police, proceeded to the Government Hospital and recorded the statement

of P.W.1 which is marked as Ex.P1. On the strength of Ex.P1, the report, a case came to be registered in Crime No. 261/2007 under Sections

147, 148, 302 of IPC and Section 3(1)(v) of SC/ST (Prevention of Atrocities) Act. The printed FIR, Ex.P18, was despatched to the Court.

(d) P.W.25, the Assistant Commissioner of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation

mahazar, Ex.P2 and also a rough sketch, Ex.P19. Then P.W.15, the photographer, took the photos. The Investigating Officer conducted inquest

on the dead body in the presence of witnesses and panchayatdars and has prepared an inquest report, Ex.P20. Then a requisition was sent to the

hospital authorities for the purpose of postmortem.

(e) P.W.18, the Medical Person, attached to the Coimbatore Medical College and Hospital, on receipt of the said requisition, conducted autopsy

on the dead body and has given his opinion in the post-mortem certificate, Ex.P10, wherein he opined that the deceased would appear to have

died of head injuries sustained by him.

(f) Pending the investigation, on 6.3.2007, A-1 was arrested. He gave a confessional statement. The admissible part is marked as Ex.P3, pursuant

to which he produced M.O.1, wooden log, which was recovered under a cover of mahazar. At the time of arrest, A-4 came forward to give a

confessional statement which was recorded in the presence of witnesses. All other accused surrendered before the Court. The Investigating Officer

obtained the community certificate for the deceased from P.W.21, the Tahsildar, wherein it was shown that he belonged to Arunthathiyar

Community. Equally, he obtained the community certificates of A-1 to A-4 marked as Exs.P14 to P17 respectively, wherein it was shown that

they belonged to Kurumba Community. On completion of investigation, the Investigator 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 25 witnesses and also relied on 23 exhibits and 5 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 and took the view that the prosecution has

proved the case beyond reasonable doubt and hence found the appellants guilty and awarded punishment as referred to above. Hence these

appeals at the instance of the appellants.

Advancing the argument on behalf of the appellants learned Counsel would submit that according to the prosecution, the occurrence has taken

place at 9.00 p.m. on 3.3.2006. When P.Ws. 2, 4, 5 and the deceased Dhandapani were going near the Vinayaga temple, they saw distribution of

free food at Vinayaga Temple. The deceased Dhandapani and P.Ws.2 and 4 went there to take food. The deceased sat along with others to take

food. On seeing that A1 abused by uttering the caste of the deceased and in that transaction, A1 took a wooden log and attacked the deceased on

his head. A2 also took a wooden log and attacked the deceased, while A3 and A4 kicked the deceased and as a direct consequence Dhandapani

died at about 9.15 a.m., the next day in the Government Hospital.

The learned Counsel would submit that in order to substantiate the charges levelled against the appellants, the prosecution marched P.Ws. 2, 4

and 5 as eye witnesses. From their evidence, it would be quite clear that they not only belonged to the community of the deceased but also they

were close friends and relatives and their houses are situated very nearby to the house of the deceased. While those witnesses claim that they saw

the occurrence in which the deceased was severely beaten by the accused and took him to his house since he could not walk, they left him in the

street itself even without informing to the parents or relatives of the deceased, which by itself would clearly indicate to the fact that P.Ws. 2, 4 and

5 would not have seen the occurrence at all. P.W.1 though not an eye witness would claim that at about 10.00 p.m., he took the deceased to a

private clinic of P.W.3 doctor where P.W.3 gave initial treatment. P.W.3 has categorically stated in his evidence, it was told that the deceased fell

down and sustained injuries.

Added further learned Counsel, the deceased was taken to the Government Hospital at 4.00 a.m. where P.W.16 doctor gave treatment to the

deceased and the accident register copy was also marked as Ex.P7 wherein it is clearly stated that he sustained injuries while riding bicycle and

fallen into a pit on the road at 9.00 p.m. on 3.3.2007 near Ondipudur. Thus, it would be quite clear both the statement made by P.W.3 and

P.W.16 doctors and also which is found in record in Ex.P.7 would go against the prosecution case that the deceased was attacked by the accused

at the place of occurrence. Thus, it would bely the evidence of the prosecution witness. Learned Counsel would further add, much reliance was

placed on the recovery of M.O.1-wooden log pursuant to the confessional statement alleged to have been made by A1 on 6.3.2007. though it was

claimed that recovery was made in a public place where there was number of independent witnesses, no independent witness was examined. The

prosecution examined R.D.O and the R.D.O. would claim that he travelled in the jeep along with the Assistant Commissioner during recovery. On

the contrary, the Investigating Officer/Assistant Commissioner has deposed that he travelled only with a police personnel and the discrepancies in

the evidence would clearly indicate the fact that the recovery of M.O.1 as alleged by the prosecution cannot be but false and the prosecution

cannot have advantage of that evidence.

Learned Counsel would further add that P.W.1 would claim that P.W.2 4 and 5 came to the hospital at 9.30 a.m. after the death of his son and

gave information to him. If to be so, it should have been brought to the notice of the police immediately, but the case was actually registered in

Ex.P1 report at about 1.30 p.m. on the same day. Thus, the delay would clearly indicate that Ex.P1 was a fabricated one and it is an afterthought.

Under such circumstances, the prosecution case actually suffers from all angles.

Coming to the second line of argument, learned Counsel would submit that in the instant case, there is nothing to indicate that the accused had

any common intention to kill the deceased or shared the same. Under such circumstances, the injuries that has been sustained were only simple in

nature and the same has to be considered by this Curt.

Learned Counsel appearing for Crl.A.No.370/2007 would submit that the prosecution did not place any evidence that A2 had any common

intention to kill the deceased or share the same. On the contrary the evidence would clearly indicate that he caused simply injury below the eye of

the deceased. Even assuming the factual position putforth by the prosecution is taken to be not proved, it would not certainly attract the penal

provision of murder but he should be found guilty for the simple injuries caused to the accused. Under such circumstances, this has got to be

considered by 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 in controversy that the son of P.W.1, following the incident that took place at 9.00 p.m. on 3.3.2007 was taken to private hospital of

P.W.3 doctor and thereafter to Government Hospital Coimbatore, where despite treatment given, died at 9.15 a.m on 4.3.2007. Following the

inquest made by the Investigation officer/Assistant Commissioner, the dead body was subjected to post mortem by P.W.18 and he has given

categoric statement as a witness before the Court and also through the post mortem certificate marked as Ex.P.10 that the deceased would appear

to have died of head injuries sustained by him. The fact that the deceased died out of homicidal violence was never disputed by the appellants

before the trial Court Under such circumstances, no impediment is felt by this Court in recorded so.

In order to substantiate that the accused persons at the time of occurrence at 9.30 a.m on 3.3.2006, attacked the deceased with wooden log,

the prosecution marched P.Ws.2, 4 and 5 as eye witnesses. True it is, P.W.2, 4 and 5 were not only friends but also relatives and residing in the

same area where the deceased was living. The Court is very mindful of the caution made by the learned Counsel for the appellants and also the

settled principles of law that in a given case like this when the witnesses are close relatives, their evidence must be accepted after careful scrutiny.

When the evidence of P.Ws.2, 4 and 5 are marshalled properly and after the application of the test of careful scrutiny, the Court is thoroughly

satisfied that their evidence has got to be accepted.

In the instant case, P.Ws.2, 4 and 5 have spoken in one voice that after the work was over they accompanied the deceased and while they

were crossing the Vinayaka temple, they saw that free food distribution was going on. Immediately, the deceased went to take food along with

others. At that time, A1 found fault with the deceased and made utterance of the community to which the deceased belong. Immediately, the

deceased questioned him about what was wrong committed by him. Suddenly, A1 took a wooden log and attacked the deceased on his head and

A2 got the wooden log from A1 and attacked the deceased. Further, A3 and A4 kicked and beat the deceased. All the three witnesses have

spoken to this fact and despite cross examination in full their evidence remain unshaky and it inspires the confidence of the Court. Apart from this,

the ocular testimony projected before the trial Court through these witnesses fully corroborates with the medical evidence. The post mortem

certificate clearly indicate that there were injuries found on the back side of the head and also simple injuries below the right eye.

Yet another circumstance in favour of the prosecution was the recovery of M.O.1 pursuant to the confessional statement voluntarily given by

the first accused and recovered by the Assistant Commissioner Investigating officer. This recovery of weapon of crime which was identified by the

witnesses before the Court would show the nexus between the crime and the accused. Hence, the trial Court is perfectly correct in accepting the

evidence of P.Ws.2, 4 and 5. Now, the contention putforth by the learned Counsel for the appellants that the ocular testimony projected through

P.Ws.2 4 and 5 should be rejected since they have not brought to the notice of the father or relatives of the deceased immediately about the

incident but they kept calm, cannot be countenanced. It could be well stated that when such an incident had taken place, they have taken it lightly

since the injuries were not found outside the body of the deceased Dhandapani. Thus, they did not make the matter much and they went to their

respective houses.

It is also pertinent to point out that when the deceased got into the house, his father enquired him what had happened but he was unable to

express the same and showed in action that he has got some pain in his head. P.W.1 immediately took him to P.W.3 clinic and gave initial

treatment and brought him back home. Thus, no one had informed P.W.1 about the incident and thereafter, P.W.1 kept quiet. At about 4.00 a.m.,

on seeing the physical condition of his son, he took his son to the Government Hospital. It is true that he informed to the doctor P.W.16 that his

son sustained injuries by falling down from a cycle. At this juncture, it is pertinent to point out that this answer of P.W.1 to P.W.16 is imaginary

since P.W.1 was not informed by anybody either by the deceased or by P.Ws.2, 4 and 5 how the incident had taken place and how he sustained

injuries. It is further to be pointed out that the information passed on to P.W.16 only by P.W.1 and not by the deceased. The explanation actually

tendered by P.W.1 at the time of cross examination was, in order to save his son, he gave such an information to the doctor.

After the death of the deceased P.Ws.2, 4 and 5 have reached the hospital and they informed P.W.1 how the incident had taken place and

only then P.W.1 came to know about the incident and the injuries sustained by his son. Thereafter, he brought the same to the notice of the police.

It is true that there was delay, but for this delay, the case of the prosecution, cannot be rejected. The contention putforth by the learned Counsel

for the appellants and recorded above, do not carry any merits whatsoever. The Court is satisfied that there are sufficient evidence to indicate that

A1 and A2 assaulted the deceased with wooden log while A3 and A4 kicked the beat him.

From the narration of the incident that had taken place, it would be quite clear that none of the accused had any intention or pre-meditation to

kill the deceased but only due to the sudden act of the accused, the incident had happened. A1 was not armed with any weapon and the wooden

log was taken suddenly at the spot. Thus, it is clearly ruled out that they got any intention or pre-mediation but the act of the accused has caused

the death of the deceased as a direct consequence. Therefore, the Court is of the opinion that the act of the first accused would not attract the

penal provision of murder but would attract Section 304(ii) of I.P.C. r/w 3(1)(x) of SC/ST (Prevention of Atrocities Act), 1989, and the award of

five years rigorous imprisonment would meet the ends of justice. A2 has caused only simple injuries and there is nothing to indicate that he has

common intention of causing death of the deceased and therefore, the Court is of the opinion that the act committed by A2 would not attract the

penal provision of murder but would attract Section 323 I.P.C. and the award of six months rigorous imprisonment would meet the ends of justice.

As far as A3 is concerned, he has not preferred any appeal before this Court. As far as A4 is concerned, the conviction u/s 323 I.P.C. and the

sentence of six months rigorous imprisonment awarded by the trial Court are sustained.

In the result, the judgment of conviction and sentence imposed on A1 u/s 3(1)(x) of SC/ST (Prevention of Atrocities Act), 1989 is confirmed.

The conviction and sentence imposed on A-1 u/s 302 r/w 34 of I.P.C r/w 3(1)(v) of SC/ST (Prevention of Atrocities Act) 1989 are modified,

instead A1 is convicted u/s 304(ii) of I.P.C. and sentenced to undergo five years rigorous imprisonment. The judgment of conviction and sentence

imposed on A-2 under Sections 302 r/w 34 of I.P.C. r/w 3(1)(v) of SC/ST (Prevention of Atrocities Act) 1989 are modified, instead A2 is

convicted u/s 323 of I.P.C. and sentenced to undergo six month years rigorous imprisonment. The fine amount imposed by the trial Court on A1 &

A2 will hold good. As far as A4 is concerned, the conviction u/s 323 I.P.C. and the sentence of six months rigorous imprisonment awarded by the

trial Court are confirmed.

With the above modification in conviction and sentence, the criminal appeals are disposed of. It is reported that the appellants are on bail. The

learned Sessions Judge is directed to take steps to secure the presence of the appellants and commit them to prison to serve the remaining period

of sentence imposed upon them.