Madras High Court
Arumugam vs State Rep. By Its on 12 December, 2018
Author: M.Dhandapani
Bench: M.Dhandapani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.12.2018
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Crl.A.No.890 of 2007
1. Arumugam
2. Dass
3. Ramdass
4. Subash
5. Velu
6. Ekambaram
7. Mani
8. Viji
9. Ammavasai (a) Munuswamy
10. Manikandan
11. Nagesh ... Appellants
.Vs.
State rep. by its
Inspector of Police
B3, Kanchi Taluk Police Station
Kancheepuram District
(Crime No.823 of 2004) ... Respondent
Prayer: Appeal filed against the order dated 06.09.2007
made in S.C.No.10 of 2007.
For Petitioner : Mr.T. Muruganantham
For Respondent : Mr. R.Ravichandran
Government Advocate
http://www.judis.nic.in
2
JUDGMENT
This appeal has been filed by the Accused No.1 to 11 against the conviction and sentence dated 06.09.2007 on the file of the Additional Sessions Judge, Kanchipuram in S.C.No. 10 of 2007.
2. The brief facts of the prosecution case is as follows:
On 26.06.2004 at about 2.30 p.m the accused persons assembled unlawfully in front of the house of PW1 with a common intention to murder PW1 and to assault his family members due to previous enmity. The accused persons were armed with knife and iron pipe attacking PW1 to PW4 and committed rioting and the first accused voluntarily assaulted PW1 one Munusamy with knife on his head with an intention to commit murder. In the course of the same transaction the other accused persons attacked PW2 to PW4.
3. PW2 is the wife of PW1 and PW3 and PW4 are the daughters of PW1 and PW2. PW1 to PW4 in their evidences clearly deposed that A1 to A11 attacked the defacto complainant and Accused No.11 was rioting the victims' house.
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4. A4 to A6 voluntarily assaulted Munusamy on his back with a causurina stick causing simple injuries to him, and the 7th and 8th accused voluntarily assaulted pushpa(PW2) with causurina sticks and caused simple injuries to her and scolded her using unparlimentary words and they also assaulted Jaya(PW3) with causurina sticks and hands causing simple injuries to her. A9 assaulted pooshanam(PW.4) with hands and causurina stick on her body causing simple injuries to her, that all the accused criminally intimidated PW 1 to PW4 and caused grievous hurt in respect for which PW 1 lodged a complaint and that complaint is in Kanchipuram police station.
5. PW. 7 Sub Inspector of Police, Kanchipuram Police Station registered the FIR on 27.06.2004 based on receipt of intimation from the OP of the Government Hospital, Kancheepuram. PW.1. Munuswamy(complainant) reduced the complaint reduced into writing at 8.00 a.m made a signature and the police has registered the case in the police station in crime number 823 of 2004 Under Sections 147, 148, 294, 294(b) r/w 149 IPC,307, 323,324 of I.P.C. http://www.judis.nic.in 4
6. PW.8 Dr.Muralikrishnan in his evidence has stated that when he was on duty in the Government Hospital on 26.06.2004 at 3.50 p.m PW.1 Munusamy appeared before him for treatment stating that 10 persons attacked him with knife,iron pipe and caused injuries. He has further stated that he found the following injuries on his and provided treatment to him:-
A cut injury 3x1x1 c.m On the left parietal region A contusion 3 x4 cm. On the occipital region. Tenderness on the left shoulder.
Tenderness on the mid back.
7. PW.9, Inspector of Police, took up the case for investigation and visited the scene of occurrence on 27.06.2004 on the same day in the presence of PW 6 Nagaraj and his wife Saraswathi he prepared Ex.P.8 observation Mahazar and Ex.P9 rough sketch. Further he recorded a statement from PW1 to PW6 to seize the material objects which is as follows:
http://www.judis.nic.in 5 M.O.1 Knife M.O.2 three casurina sticks M.O.3 Iron pipes
8. Considering the above materials, the Trial Court framed charges as stated above and the accused denied the charges and in order to prove its case, the prosecution examined as many as 9 witnesses and marked 9 exhibits and 3 material objects.
9. On the side of the prosecution 9 witnesses and Mos.1 to 3 were marked and examined. When the Trial Court examined the accused in respect of the alleged crime there is no substantial evidence available to prove the innocence in the part of the appellants.
10.The trial Court after considering the oral and documentary evidences, convicted A1 to A11 under the following sections which has been furnished below:
(i) The appellant A1 is found guilty u/s 148 IPC and convicted and sentenced to undergo RI for 3 years and to pay a fine of Rs.1,000/-
http://www.judis.nic.in 6 I.D to undergo RI for 3 months RI: u/s 307 IPC to undergo 5 year RI and to pay fine of Rs.1,000/-i.e to undergo RI for 3 months: u/s 324 r/w 149 to undergo RI for 3 years and to pay fine of Rs.1,000/-I.D to undergo RI for 3 months: 294(b) r/w 149 IPC to undergo 3 months RI and to pay fine of Rs.1,000/-I.D to undergo RI for 3 months: u/s 323 r/2 149 ( 3 counts) to undergo one year RI for each count and to pay fine of Rs.1,000/-each I.D to undergo 3 months RI u/s 506(i) to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI: and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI.
(ii) A.2 is found guilty u/s 148 IPC and convicted and sentenced to undergo RI for 3 years and to pay fine of Rs.1,000/-I.D to undergo 3 months RI, u/s 324 IPC to undergo 3 years RI and to pay fine of Rs.1,000/-I.D to undergo 3 months R.I u/s 323 r/w 149 IPC (3 counts) to undergo one year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI, u/s 294(b) r/w 149 IPC to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI: u/s 506(1) IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI.
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(iii)A3 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 324 r/w 149 IPC to undergo 3 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI u/s 323 IPC to undergo 1 year RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI, u/s 323 r/w 149(3 counts) to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI: u/s 294(b) IPC to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo RI for 3 months: u/s 506(i) IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo RI for 3 months; and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- to undergo 3 months RI.
(iv)A4 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 324 r/w 149 IPC to undergo 3 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI: u/s 323 r/w 149 (2 counts) to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI, u/s 294(b) r/w 149 IPC to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI, u/s 506 (i) http://www.judis.nic.in 8 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- I.D to undergo 3 months RI and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- I.D to under go 3 months RI.
(v)A5 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 323 r/w 149 ( 2 counts) to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI:
u/s 294(b) r/w 149 IPC to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI u/s 323 IPC to undergo 3 months RI: u/s 506(i) to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I, and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- i.d to undergo 3 months RI.
(vi)A6 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 323 r/w 149 ( 2 counts) to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI:
u/s 294(b) r/w 149 IPC to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI u/s 323 IPC to undergo 1 year http://www.judis.nic.in 9 RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI u/s 506(i) IPC to under go 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I, and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- I.D to undergo 3 months RI.
(vii)A7 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 323 r/w 149 ( 3 counts) to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI:
u/s 323 IPC to undergo 1year RI and to pay a fine of Rs.1,000/- I.D to undergo 3 months RI: u/s 294(b) to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI: u/s 506(i) IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- I.D to undergo 3 months RI.
(viii)A8 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 323 r/w 149 ( 3 counts) to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo RI for 3 http://www.judis.nic.in 10 months: u/s 323 IPC to undergo 1 year RI and to pay fine of Rs.1,000/-
I.D to undergo 3 months RI and u/s 294(b) IPC to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI: u/s 506(i) IPC to undergo 2 years RI and to pay fine of Rs.1,000/-I.D to undergo 2 years RI and to pay fine of Rs.1,000/- to undergo 3 months RI and u/s 427 r/w 149 to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI.
(ix)A9 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 323 r/w 149 ( 2 counts) to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI:
u/s 294(b) r/w 149 IPC to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI u/s 323 IPC to undergo RI for one year and to pay a fine of Rs.1,000/-I.D to undergo 3 months RI:
u/s 506(i) IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I, and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- I.D to undergo 3 months RI.
(x)A10 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to http://www.judis.nic.in 11 undergo 3 months R.I u/s 323 r/w 149 (3 counts) IPC to undergo 1 year RI for each count and to pay fine of Rs.1,000/- each I.D to undergo 3 months RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I:
u/s 506(i) IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I, and u/s 427 r/w 149 IPC to undergo 2 years RI and to pay a fine of Rs.1,000/- I.D to undergo 3 months RI.
(xi)A11 is found guilty u/s 147 IPC and convicted and sentenced to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months R.I u/s 324 r/w 149 IPC to undergo 3 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI u/s 323 r/w 149 IPC(3 counts to undergo 1 year RI for each count and to pay a fine of Rs.1,000/- each I.D to undergo 3 months R.I,u/s 294(b) r/w 149 IPC to undergo 3 months RI and to pay a fine of Rs.1,000/- I.D to undergo 3 months RI u/s 506(i) IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI and u/s 427 IPC to undergo 2 years RI and to pay fine of Rs.1,000/- I.D to undergo 3 months RI.
11. Challenging the said conviction and sentence passed by the learned Additional Sessions Judge, Kanchipuram in S.C.No. 10 of 2007 http://www.judis.nic.in 12 the appellants 1 to 11 / A1 to A11 have preferred this appeal before this Court.
12.The learned counsel for the appellants would submit that there is no material to show that a final report is charged under sections 149,309,320 I.P.C against the accused persons. The evidence of PW1 is contrary to the evidences of PW2 to PW4 and the trial Court failed to consider that there is no material object to take the accused person and in the absence of any material with regard to the common object as stated above and implicated the accused under section 149 of IPC and other henious offence is not a sustainable one.
13. The learned counsel for the appellants would further submit that the accused persons assembled unlawfully before the PW1's house is not proved beyond the reasonable doubt. He would further submit that after the occurrence, PW1 to PW4 had gone to the hospital casually by auto and the occurrence took place in the year 2008. Therafter, the accused person and the villagers compromised among themselves and they are living peacefully now. Accordingly, he prays for acquittal and he produced the Judgment reported by the Hon’ble Supreme Court in Criminal Appeal No.413 of 2012 and it is squarely applicable to the facts http://www.judis.nic.in 13 of facts and para :20 of the said Judgment is extracted hereunder:
As discussed above, on the exhortation of Joseph (A11), Jesu Adimai (A1) hurfed the bomb which hit the fore head of deceased Kennedy. Selvam(A2) hurled the bomb which hit the right ankle of Raja. Bomb hurled by Sahayam(A3) fell on the floor and exploded. The bombe hurled by Selvaraj(A2) and Sahayam (A3), though, had not hit the deceased, the fact remains that they carried the bomb which clearly indicates that Sahayam was sharing the intention with Jesu Adimai(A1) and Selvaraj(A2) in committing the murder. Conviction of Sahayam (A3) under Section 302 IPC read with Section 149 IPC is modified as conviction under Section 302 IPC read with Section 34 IPC.21. Conviction of accused Nos. 4 to 10
under Section 302 IPC with the aid of Section 149 IPC suffers from serious infirmity and the same cannot be sustained. Since, the prosecution has not succeeded in establishing and proving that there was an unlawful assembly with a common object to commit the offence, conviction of the accused Nos. 3 to 5(under Section 148 IPC) and accused Nos.6 to 11 ( under Section 147 IPC are set aside.Considering the individual acts of the appellants, Selvam(A4) and Antony Innasai (A5) attacked PW1 and PW2 on their left shoulders respectively with sickles, conviction of Antony Innasai (A5) is modified as conviction under http://www.judis.nic.in 14 Section 324 IPC and the sentence of rigorous imprisonment of one year is maintained. Conviction of Selvam(A4) under Section 324 is affirment and the sentence of imprisonment of one year imposed upon him is affirmed. Considering the acts of accused Nos.6 to 10 that they attacked Raja and PW-2 with sticks, conviction of accused Nos.6 to 10 under Section 323 IPC maintaining their sentence of imprisonment of six months.
14. Per contra the learned Additional Public prosecutor would submit that the appellants have attacked PW1 inorder to prevent him from selling the arrack in the open market. The Additional Public Prosecutor would further submit that due to previous enmity that all the accused persons unlawfully assembled in front of PW1's house with an intention to attack PW1 and commit the murder of PW.1 and in the result PW1 to PW4 sustained grevious injuries and the prosecution has proved the case by examining evidence of PW1 to PW6 and marked the wound certificate issued by the PW.8 i.e. Doctor. The accused has also raised slogans “c d ;id xHpj; J f ; fl;od hy ; jhd C h ; r P h; g L k” ; before PW1’s house.
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15. Heard the learned counsel for the appellants as well as the rival submissions made by the Government Advocate. Perused the materials carefully.
16. In the light of the above submissions, now, the prosecution has to prove whether the the guilt is proved beyond reasonable doubt or not.
17. The evidence of PW.1 indicated that he is residing in the Veliyur village, Kanchipuram Taluk and admitted that due to previous enmity and also the appellants was selling arrack in the locality inorder to prevent selling of the arrack the accused persons have come before PW1's house just to threaten him. Their intention to prevent PW1 from selling arrack in the open market.
18. The prosecution did not proved that the accused persons have intention to commit the attempt murder of the PW1 and it is relevant to note that the complaiant Ex P1 was not filed on the same day the victims went casually by auto for taking treatment. Thereafter, the http://www.judis.nic.in 16 hospital authorities informed the Police authority for taking necessary action. Thereby, PW7 and PW9 went to the hospital and registered a case. The case was registered only on the next day based on the information given by the hospital authorities.
19. Though the prosecution alleged A1 to A3 possess Material objects used by them to attack PW1 and other family members, they did not make any allegations with regard to the A4 to A11, as to whether they have used any weapons for attacking the victims.
20. It is also seen from records that the occurrence took place in the year 2004. After the said occurrence, the victims themselves casually walked two kilometers to the hospital for taking treatment, which clearly indicates that the injury was not the grievous one and the injuries sustained by the victims are only simple in nature.
21. In the light of the above submissions, it is now clear that the proseuction has not proved the guilt of the accused beyond the reasonable doubt.
22. In the result, this criminal appeal is partly allowed. The http://www.judis.nic.in 17 conviction and sentence imposed by the Additional Sessions Judge, Kanchipuram in S.C.No. 10 of 2007 on the appellants is modified. The punishment imposed by the Trial Court is reduced to two months R.I. and the imposed fine amount imposed by the trial Court in default to undergo 15 days R.I. with regard to A1 to A3. The conviction and sentence imposed by A4 to A11 is hereby setaside and the appellants are acquitted. Fine amount if any, paid by the appellants 4 to 11 shall be refunded to them. Bail bond, if any executed by them and the sureties shall stand terminated.
12.12.2018 smn To.
1. The Inspector of PoliceB3, Kanchi Taluk Police Station, Kancheepuram District.
2. The Additional Sessions Judge, Kanchipuram http://www.judis.nic.in 18 M.DHANDAPANI,J.
smn Crl.A.No.890 of 2007 12.12.2018 http://www.judis.nic.in