Madras High Court
Anand vs State By on 10 November, 2014
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.11.2014 CORAM THE HONOURABLE MS. JUSTICE R.MALA Criminal Appeal (MD) No.374 of 2007 1.Anand 2.Elanchezhian 3.Ramkumar 4.Murugesan 5.Vasanth 6.Harirajan 7.Sureshkumar 8.Loganathan 9.Manigandan 10.Karthik 11.Murali 12.Manigandan @ Mani .. Appellants vs. State by Inspector of Police, East Police Station, Thanjavur Crime No.247 of 2006 .. Respondent Prayer Criminal Appeal filed under Section 374 Cr.P.C., to call for the records pertaining to S.C.No.276/2006 on the file of the Additional Sessions Court (FTC), No.1, Thanjavur, and set aside the conviction and sentence imposed on the appellant by the judgment dated 06.07.2007 and acquit the appellant. !For Appellants : Mr.A.Arun Prasad ^For Respondent : Mrs.S.Prabha, G.A.(Crl. Side) :JUDGMENT
The Criminal Appeal is arising out of the judgment of conviction and sentence, dated 06.07.2007 made in S.C.No.276 of 2006 on the file of the Additional District and Sessions Judge, F.T.C.No.I, Tanjore, whereby the accused were convicted and sentenced as follows:
Name of Accused Charges Finding Sentence
1.Anand 148, 324, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act.
Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
2.Elanchezhian 148, 324, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
3.Ramkumar 148, 324, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
4.Murugesan 148, 324, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
5. Vasanth 147, 323, 325, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
6.Harirajan 147, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act.
Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
7.Sureshkumar 147, 323, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
8.Loganathan 147, 323, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
9.Manigandan 147, 323, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
10.Karthik 147, 323, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
11.Murali 147, 323, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
12.Manigandan @ Mani 147, 323, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act. Found guilty under Sec.147 r/w 149 of I.P.C.
Rs.2,000/- fine in default 2 months S.I.
3.The case of the prosecution is as follows:
(i)P.W.25 Kumar is the resident of Bungalow Street, Manambuchavadi, Thanjavur. He is a painter. On 08.05.2006 at about 11.00 p.m., P.W.25 Kumar, P.W.1 Ramakrishnan, P.W.2 Jananarthanan, P.W.3 Desigan and others were assembled before the Navaneethakrishnan Temple situated at Sourashtra West Raja Street, Tanjore for the festival which would be conducted on the next day. At that time, the accused A1 to A3 viz., Anand, Ilanchezhian and Ramkumar came there and abused in filthy language and that was questioned by P.W.25 Kumar, P.W.1 Ramakrishnan, P.W.2 Janarthanan, P.W.3 Desigan and P.W.5 Devadoss. Therefore, there was a quarrel between P.W.25, P.W.1, P.W.2, P.W.3 and A1 to A3. Thereafter, A1 Anand stated within some time, I show who am I (,d;Dk; bfhQ;r neuj;jpy; ehd; ahh; vd;W cq;fSf;F fhl;Lfpnwd;) and gone along with A2 and A3.
(ii)After some time, at about 11.30 hours, the accused persons A1 to A12 and some unidentified persons came in front of the Navaneethakrishnan Temple armed with deadly weapon viz., iron rod, sickle, wooden log and sticks. At that time, A1 Anand saying that even though after knowing us, are you quarrelling against us, attacked P.W.25 with sickle, which was prevented by P.W.25 through his hand, as a result of which, he sustained injury on his right hand thumb. A5 Vasanth attacked P.W.25 with wooden log near his right side eyebrow and caused injury. A2 Ilanchezhian attacked P.W.1 Ramakrishnan with iron rod and caused injuries on his right side head, left hand and near his left eyebrow. A3 Ramkumar attacked P.W.2 Janarthanan on his forehead and left hand and caused injuries. P.W.3 Desigan attempted to prevent the same and the accused cut him with sickle and caused injuries on his forehead and right leg. A6 Harirajan attacked P.W.4 Gobi with wooden log and caused injuries on his left head and left fore arm. A7 Sureshkumar attacked P.W.5 Devadoss with wooden log on his left side body and A8 Loganathan attacked P.W.6 Sugumar with wooden log on his right side head, left side shoulder, left side head, right side eyebrow and A9 and A11 viz., Murali and Manikandan attacked P.W.7 Sekar and P.W.8 Sekar with wooden log on their head and lefts and caused injuries. A10 Karthick attacked P.W.9 Rajan and P.W.10 Govindan with wooden log on their head, left side head, left side lef and caused injuries and A12 Mani @ Manikandan atacked Babulal and Sankar with wooden log and caused injuries on their lower jaw and left fore head and other accused along with other members and three known persons attacked P.W.11 Raghavan and Kumar with wooden log and they damaged the Maruti cars, Motorcycles with the weapons and flee from the scene of occurrence. P.W.25 and other injured persons gone to Tanjore Medical College Hospital by auto and took treatment.
(iii)On 08.05.2006 and 09.05.2006, P.W.15 Dr. Chezhian treated P.W.6 Sugumar, P.W.1 Ramakrishnan, P.W.7 Sekar, P.W.9 Rajan, P.W.8 Sekar, P.W.3 Desigan, P.W.10 Govindan, P.W.2 Janarthanan, Babulal, P.W.12 Sankar, P.W.11 Raghavan, Kumar, P.W.4 Gobi, P.W.5 Devadoss and they were admitted as inpatient he issued A.R.Copies Ex.P5, P7, P9, P11, P13, P15, P17, P19, P21, P23, P25, P27, P29 and P31 and pointed out the injuries sustained by them respectively and the Medico Legal Opinion Forms are marked as Exs.P6, P8, P10, P12, P14, P16, P18, P20, P22, P24, P26, P28, P30 and P32.
(iv)When P.W.25 and other injured persons were admitted in the Tanjore Medical College Hospital, on 09.05.2006 at 8.00 a.m. P.W.28 Saravanan, Sub Inspector of Police, Tanjore East Police Station received an intimation from the Tanjore Medical College Hospital and gone there and recorded the statement of P.W.25 Kumar i.e. Ex.P44 complaint and on that basis, he registered a case in crime No.247 of 2006 for the offences under Sections 147, 148, 323, 324, 307 of I.P.C. and Section 3(1) of TNPPDL Act and prepared Ex.P45, printed F.I.R. and sent the original to the Court and forwarded a copy to the Inspector of Police.
(v)P.W.29, Ravichandran, Inspector of Police took up the investigation and gone to the place of occurrence and prepared Ex.P3 Observation Mahazer and drew Ex.P46 Rough Sketch in the presence of witnesses P.W.13 Jeyanthilal and P.W.14 Purushothaman and he recovered M.O.6, the glass pieces of damaged motorcycles under Ex.P4 seizure mahazer. Thereafter, he went to Tanjore Medical College and examined P.W.25 Kumar P.W.1 Ramakrishnan, p.W.2 Janarthanan, P.W.3 Desigan, P.W.4 Gobi, P.W.5 Devadoss, P.W.6 Sugumar, P.W.7 Sekar, P.W.8 Sekar S/o.Varathayyan, P.W.9 Rajan, P.W.10 Govindan, P.W.11 Raghavan, P.W.12 Sankar and one Babulal and recorded their statements. On the same date at 1.30 p.m., he arrested the accused Anand, Ilanchezhian, Ramkumar, Vasanth, Harirajan, Sureshkumar, Loganathan, Mani, Karthick and Murali and recorded the confession statement of A1 in the presence of P.W.16 Karthick and P.W.17 Palanichamy. On the basis of the confession statement given by A1, P.W.29 recovered M.O.1 sickle, M.O.4 iron rod, M.O.2 sickle with wooden handle, M.O.3 another sickle with wooden handle and M.O.5 series wooden logs 8 in nos under Ex.P48 seizure mahazer in the presence of P.W.16 and 17. Then, he produced the accused before the Judicial Magistrate concerned for judicial custody and sent the material objects to the Court under Form 95 i.e. Ex.P49. He examined the owners of damaged motor vehicles viz., P.W.18 Babu, Sivakumar, P.W.19 Umapathy, P.W.20 Sivaraman, P.W.21 Muralidharan, P.W.22 Ravichandran and recorded their statements and received Ex.P37 to 41, the receipts to show the expenditure to repair the damages of the vehicles caused by the accused and examined the doctors, who treated the injured persons and obtained Ex.P5 to 32, wound certificates and recorded their statements. After completion of due investigation, he filed the charge sheet against the accused under Sections 147, 148, 149, 324, 326, 307 of I.P.C. and 3 of TNPPDL Act.
4.The learned trial Judge after following the procedure, framed necessary charges against the accused. Since the accused pleaded not guilty, the Court examined P.Ws.1 to 29 and marked Exs.P.1 to P.49 and M.O.1 to M.O.9. Accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances. Accused denied the same and stated that a false case has been foisted against them. On the side of the accused, D.W1 was examined and Exs.D1 to D4 were marked.
5.On considering the oral and documentary evidence, the learned Sessions Judge acquitted the accused from all the charges levelled against them, however, convicted them for the offence under Section 147 read with 149 of I.P.C and sentenced them as stated above.
6.Challenging the conviction and sentence passed by trial Court against the accused/appellants for the offence under Section 147 read with 149 of I.P.C., the learned counsel for the appellants would submit that the prosecution witnesses in their cross examination have not identified the accused but, in the chief examination, they have deposed about the participation of the appellants. However, the trial Court, without considering the cross examination, convicted the accused/appellants on preponderance of probabilities. But, the prosecution has failed to prove that the accused are guilty beyond all reasonable doubt. In paragraph No.25 of the judgment, it was held that since A1 to A3 had sustained injuries, it is a case and case in counter and hence, the accused/appellants were taking part in the commission of offence and on that basis only, the trial Court has convicted the accused/appellants for the offence under Section 147 read with 149 of I.P.C. and hence, prayed for setting aside the conviction and sentence.
7.Resisting the same, the learned Government Advocate (criminal side) would submit that the eye witnesses/injured witnesses have deposed in their chief examination as to how the occurrence had taken place and the trial Court has considered all the aspects in a proper perspective and convicted the accused/appellants and hence, prayed for dismissal of the appeal.
8.Considering the rival submissions made by both sides and on perusal of the typed set of papers, the appellants were charged for the offence under Sections 147, 148, 323, 324, 325, 307 r/w 149 of I.P.C. and 3 of TNPPDL Act and they were acquitted from all the charges levelled against them, however convicted all the accused for the offence under Section 147 read with 149 of I.P.C.
9.Perusal of the typed set of papers would show that there is no evidence to show that the appellants have formed unlawful assembly for executing illegal object and committed the offence. Even though, the trial Court has acquitted them from all the charges, convicted them for the offence under Section 147 read with 149 of I.P.C. only mere suspicion. Therefore, it is appropriate to consider the evidence of injured witnesses. It is true that in the chief examination of the injured witnesses, they have deposed that when they are standing before the temple on 08.05.2006 at 11.00 p.m., A1 and A2 along with others came with the deadly weapons and assaulted the witnesses. But, in the cross examination, they have totally denied the earlier statement. It is true that all the injured witnesses were treated as hostile witnesses. In the cross examination they have stated that they do not know as to how many persons came there and what are their names and who assaulted whom. In such circumstances, there is no evidence to show that these appellants herein have formed unlawful assembly for executing illegal act. It is appropriate to consider the ingredients of Section 147, which reads as follows:
(i)Five or more persons assembled
(ii)They constituted an unlawful assembly
(iii)Members used force or violence
(iv)Accused was member of such assembly
(v)Force was used by assembly in pursuance of their common intention.
10.Perusal of the evidence of injured witnesses viz., P.Ws.1 to 12 would show that they have not deposed that A1 to A12/appellants were present in the place of occurrence with the common intention to execute the unlawful and illegal act. Even though, in the chief examination, they have stated about the occurrence, in the cross examination, their reply is they do not know whether the appellants were present at the time of commission of offence and they gone to the extent saying that they did not know who assaulted them. In such circumstances, merely because A1 to A3 sustained injuries, the trial Court has committed an error in coming to the conclusion that they are members of unlawful assembly and committed riot..
11.It is appropriate to consider the ingredients of Section 141 of I.P.C., which reads as follows:
(i)Assembly, should be of 5 or more persons.
(ii)Object of assembly must be one according to 5 objects mentioned in Section.
(iii)Object is common to all members.
(iv)Members joined or continued to join assembly.
(v)Dishonestly.
(vi)Being aware of all facts.
Since there is no evidence that the appellants are the members of unlawful assembly, I am of the view that neither the ingredients of Section 141 of I.P.C. nor Section 147 of I.P.C. has been made out. Further, it is appropriate to consider the ingredients of Section 149 of I.P.C. which reads as follows:
(i)There was an unlawful assembly
(ii)Accused was member of the said assembly.
(iii)Accused joined intentionally or continued in assembly knowingly.
(iv)Accused knew the common object.
(v)Offence was committed by one of the members of assembly.
(vi)Committal of offence was in pursuance of the common object.
(vii)As a member of unlawful assembly, he knew that such offence is likely to be committed.
Section 149 of I.P.C. creates a specific and distinct offence and there are two essential ingredients thereof viz., (I) Commission of an offence by any member of an unlawful assembly and (ii) such offence must have been committed in prosecution of the common object of that assembly knew to be likely to be committed. The essential ingredients of Section 149 are commission of an offence by any member of unlawful assembly in pursuance of common object.
12.But, here, in the present case, as this Court has already held that the ingredients of Section 141 and 147 of I.P.C. have not been made out the conviction under Section 147 read with 149 of I.P.C. against the appellants/accused fails. In such circumstances, I am of the view that the prosecution has not proved the offence under Section 147 read with 149 of I.P.C. beyond all reasonable doubt. Therefore, the appellants are entitled to the benefit of doubt and the conviction and sentence passed against them are liable to be set aside.
13.In fine, The Criminal Appeal is allowed.
Judgment of conviction and sentence passed against the appellants/accused for the offence under Section 147 read with 149 in S.C.No.276/2006 dated 06.07.2007 on the file of the Additional Sessions Court (FTC), No.1, Thanjavur is set aside.
The appellants/accused acquitted from all the charges levelled against them.
The fine amount already paid by the appellants/accused is ordered to be refunded.
To
1.The Inspector of Police East Police Station, Thanjavur.
2.The Additional District and Sessions Judge, F.T.C.No.I, Thanjavur.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.