CRL A/644/1996 of Vs on 28 December 2004

The Appellants/Accused namely (1)Sakthivel @ Sakthi(Since abated) (2)Senthilkumar @ Kurali (3)Easwaran @ Kakkayan @Mechanic (4)Saravanan @ Angayee Saravanan (5)Gnanavelu @ Velu @Kuppanna Velu (Accused 1 to 5) were directed to be released onbail as per order of this Court dated 30.4.99 and made in Crl.M.P.No.2882 and 3069/1999 in CA NO.644/96 on the file of this Court.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.12.2004CORAMTHE HONOURABLE MR JUSTICE N.DHINAKARandTHE HONOURABLE MR JUSTICE N.KANNADASANCriminal Appeal No. 644 of 19961. Sakthivel @ Sakthi2. Senthilkumar @ Kurali3. Easwaran @ Kakkayan @ Mechanic4. Saravanan @ Angayee Saravanan5. Gnanavelu @ Velu @ Kuppanna Velu.... Appellants/AccusedVs State rep. byInspector of Police,Erode Town Police Station.... Respondent/Complainant Prayer: Appeal against the judgment passed by the learned IIAdditional Sessions Judge, Erode, in S.C.No. 76 of 1995 dated :14.8.1996.

(Judgment of the Court was delivered by N. DHINAKAR, J)

This appeal is by A-1 to A-5 in S.C.No.76 of 1995 on the fileof the learned II Additional Sessions Judge, Erode.https://hcservices.ecourts.gov.in/hcservices/

2. It is reported that after the filing of the appeal by theappellants, the first appellant, Sakthivel alias Sakthi, who wasarrayed as A.1, died on 26.6.2002 and death was registered withthe Registrar of Births and Deaths, Pallipalayam, TiruchengodeTaluk, Namakkal District, on 28.6.2002. A certified copy of thecertificate issued by the said Registrar attested by the SubInspector of Police, Pallipalayam Police Station, NamakkalDistrict, is also produced by the Additional Public Prosecutor tothe above effect. He also submits that he has instructions tosubmit to the Court that Sakthivel died on 26.6.2002 and the sameis also endorsed by the counsel appearing for the first appellant.In view of the death of R.Sakthivel, the first appellant, theappeal filed by him abates.

3. In this judgment, appellants 2 to 5 and the firstappellant, who died after the filing of the appeal, will bereferred to as A-1 to A-5 in the same order as they were arrayedbefore the learned Sessions Judge, for the sake of convenience.

4. A-1 to A-5 were charged under Section 120-B IPC. on anallegation that on the mid night of 30.1.1994, they conspired tocommit the death of Pugazhenthi. Charge No.2 was framed againstthem under Section 148 IPC. on the allegation that in pursuance ofthe conspiracy hatched between them on the same day at mid night,A-1 to A-5, arming with aruvals and pichuva knives, formedthemselves into an unlawful assembly and that A-1 cut thedeceased twice on the neck with an aruval leading to his death andA-2 to A-5 have shared the common object of A-1 by A-2 cutting thedeceased on the stomach, A-3 on the head, A-4 on the back of chestand A-5 on the leg. The learned Sessions Judge, finding A-1 to A-5 guilty under Section 120-B IPC., did not impose any separatesentence, while he sentenced each one of them to one year rigorousimprisonment under Section 148 IPC. A-1, on being found guiltyunder Section 302 IPC., was sentenced to imprisonment for life.A-1 to A-5 were also convicted and sentenced to imprisonment forlife under Section 302 read with 149 IPC. The present appeal isby all the accused and they challenge their conviction andsentence.

5. The case of the prosecution is this:-P.W.1 is the brother of the deceased. One month prior to thedate of incident, P.W.5 and the deceased went to Royal theater towitness a movie. A-3 and A-4 also came to the theater accompaniedby their spouses. P.W.5 and the deceased entered the theater andthe deceased made fun of a girl in the theater. A-3, under themistaken impression that the deceased is making fun of his wife,questioned the deceased and asked him as to how he could make funof his wife. The deceased informed him that he is not making funof his wife, but someone else. A-4 supported A-3, who wererelated to each other. Thereafter, A-3 and A-4 went away and thedeceased and P.W.5 also went away. A week prior to the date ofincident at about 9.30 p.m., the deceased and P.W.5 were standingin front of Abhirami theater. A-3 and A-5, who came in a T.V.S.https://hcservices.ecourts.gov.in/hcservices/

Moped alighted on seeing P.W.5 and the deceased. A-3 asked thedeceased that he should seek pardon for making fun of his wife andthe deceased was also threatened. The deceased told them that hedid not make fun of the wife of A-3, but A-3 and A-4 did notaccept his explanation and attempted to beat him. The deceasedpushed them by placing his hand on the chest. A-3 and A-4 leftthe place after telling P.W.5 and the deceased that they will comeback with A-1 and A-2. This was at 10.00 p.m. At 10.30 p.m.,P.W.5 and the deceased were standing in front of Royal theater.A-1 to A-5 went there. They invited P.W.5 and the deceased tocome to the wine shop to take brandy. The deceased refused theirinvitation. A-1 and A-2 questioned the deceased as to how hecould make fun of the wife of A-3 and asked the deceased to seekpardon from A-3's wife. The deceased refused their allegation andstated that he did not make fun of A-3's wife. At that time, aperson, by name, Saravanan, came there. He intervened andrequested A-1 to A-5 and the deceased to leave the placepeacefully. A-2 left the place saying that "he will return" andproceeded towards north. A-1, A-3, A-4 and A-5 told the deceasedthat they need not quarrel and that they could settle the matterby talks and took the deceased towards north. P.W.5 was alsotaken along with the deceased. In front of the bus stand, thereis a hotel and when they reached the hotel, A-2, who was waitingthere with a knife in his hip, caught hold of the deceased andsaying, "thlh trkhf khl;of;bfhz;lha; the free translation, of which,is, "come, you are now caught", and stabbed him on the middle ofthe stomach and thereafter, inflicted another stab on the stomach.The deceased attempted to run from the place, but A-5 cut him onthe leg. A-3 cut the deceased on the head followed by A-4, whostabbed him on the back of his chest. The deceased fell down andA-1, saying that if Pugazhnthi is left like that he will not dieand that he will die only if he is cut like a goat, inflicted twocuts on the neck of the deceased. Street lights were burning atthe place and seeing this ferocious attack on the deceased, P.W.5attempted to run from the place. A-2 and A-5 held him and warnedhim that he should not divulge this fact to anybody. P.W.5 ran tohis house and hid himself. The occurrence was witnessed by P.Ws.3and 4 as well as by others.

6. On 31.1.1994 at about 2.30 a.m., P.W.7, the VillageAdministrative Officer, Erode Town, was informed that a dead bodyis lying near the bus stop. P.W.7 went to the place and found adead body with injuries. He prepared a complaint and proceeded toErode Town Police Station and reached it at 3.00 a.m. The saidcomplaint is Ex.P-4. He handed over the complaint, Ex.P-4, toP.W.9, the Head Constable, at 3.30 p.m. and on the complaint,P.W.9 registered a case in Crime No.133 of 1994 under Section 302IPC. and prepared express reports. A copy of the printed firstinformation report is marked as Ex.-.16. P.W.9 sent Exs.P-4 andP-16 to the higher officials and to the Court. He informedP.W.10, the Inspector of Police.

7. P.W.10, on getting information over phone about the crimefrom P.W.9, reached the police station at 4.30 a.m. and obtainedthe copy of the printed first information report. He proceeded tothe scene of occurrence and prepared an observation mahazar inthe presence of P.W.7. The observation mahazar is Ex.P-12. Hedrew a rough sketch, Ex.P-17. He made preparations to takephotographs of the scene of occurrence and accordingly,Lakshmanan, the Photographer, took photographs of the scene ofoccurrence. The photographs are M.Os.17 to 22 and their negativesare M.Os.23 to 28. P.W.10 conducted inquest over the body ofPugazhenthi between 6.00 a.m. and 9.00 a.m. and prepared Ex.P.18,the inquest report, during which, he examined P.W.2 and otherwitnesses, whose statements were recorded. At about 9.05 a.m., heseized a watch, M.O.1, and a ring, M.O.2, which were lying nearthe dead body, under a mahazar Ex.P.19. At about 9.30 a.m., thebody was handed over to the Police Constable with a requisition tothe doctor for conducting autopsy.

8. On receipt of the requisition, P.W.6, Civil AssistantSurgeon attached to Government Hospital, Erode, conducted autopsyon the body of Pugazhenthi and found the following injuries:-

1. A cut injury in front of neck runningtransversely 6 c.m. below the right ear and 6 c.m. from left ear length 17 cm x breadth 7 cm x depth 9 cm exposing the both woundsbone, carotid artery found to be cut on bothsides, jugular vein found to be cut, musclesfound to be cut. Larynx exposed and foundto be cut.

2. A cut injury of 6x2x4 cm over left legs.Posterior aspect 14 cm from the popletealfossa.

3. An incised wound of 2x1x4 cm over theabdomen in the middle 13 cm above theumbilicus.

4. A punctured wound of ½ x ½ x 4 cm over thelower abdomen on the right side 4 cm lateralto the umbilicus.lower abdomen on the right side 4 cm lateralto the umbilicus.

5. A punctured wound on ½ x ½ x 2 cm over thelower abdomen on the right side 4 cm lateralto the umbilicus.

6. A abrasion of 4 cm x 2 cm over the back 8 cmabove the hip joint on the right side.above the hip joint on the right side.

7. An incised wound 2x1 cm over the leftcubital fossa.

8. An abrasion of 6x2 cm over the right fore arm posterior aspect 5 cm below the elbowjoint.9.An abrasion of 2x1 cm over left glutealregion.10.A cut injury over center of scalp 8x3x4 cmexposing the bone 18 cm above the occipitalbone.11.A punctured wound of ½ x ½ x 1 cm over backleft side 15 cm. below the upper border ofleft scapula. Lateral to the vertebralcolumn.12.An abrasion of 1x1 cm over back right sideon exploring the injury No.10. Fracture ofright parietal bone present on exploring theinjury Nos.2,3,6,7,8 and 9. No fracture ofunderlying bone. Injury Nos.1,2,3,7 & 10are spindle shaped sharp edges.

The doctor issued Ex.P.1, the post-mortem certificate, with hisopinion that the deceased would appear to have died of shock andhaemorrhage due to carotid injury sustained by him.

9. P.W.10, continuing with his investigation, at 9.45 a.m.seized M.Os.5 and 6, the blood-stained earth and sample earthrespectively and M.Os.7 and 8, the blood-stained tar portion andsample tar portion, under mahazar Ex.P-6. He proceeded to thehospital, where he found P.Ws.3 to 5 and questioned them. Theirstatements were recorded. On 1.2.1994 at about 2.00 p.m., hearrested A-1 and A-2, when they were proceeding in a moped towardswest. A-1 gave a statement and in pursuance of the saidstatement, he took the police party and produced an aruval and adhothi. A-2, in pursuance of the statement given by him, took thepolice party and produced a knife along with a TVS moped. On2.2.1994, the material objects seized as on that day wereforwarded to Court. A-1 and A-2 were sent to Court for remand.On the same day, he examined P.W.6, the doctor, who conductedautopsy and recorded his statement. On 4.2.1994, the officer cameto know that A-3 and A-4 have surrendered before JudicialMagistrate, Thirupur, and they were questioned at Sub Jail,Thirupur, in the presence of the prison authorities. Thereafter,he filed a petition before the Magistrate to take them intocustody and on 10.2.1994, they were brought to the police stationand questioned. Both of them gave statements. The TVS moped,M.O.9, on being produced, was seized in pursuance of the statementgiven by A-4 under a mahazar Ex.P-8. A-4 produced a button knife,M.O.10, and the same was seized under a mahazar Ex.P-9 and A-3produced M.O.5, an aruval, which was seized under a mahazar Ex.P-10. All the mahazars were attested by witnesses. The accusedwere sent to Court for remand. The material objects werehttps://hcservices.ecourts.gov.in/hcservices/

forwarded to Court requesting the Court to send them for analysis.On 11.2.1994, the officer came to know that A-5 has surrenderedbefore Judicial Magistrate, Erode, and on the orders of the Court,he was taken into police custody and he was questioned. A-5 gavea statement and in pursuance of the admissible portion, he tookthe police party and produced an aruval, M.O.12, which was seizedunder a mahazar Ex.P.11. A.5 was sent back to the Court with thematerial objects. The Court, by sending the material objects,obtained Ex.P-22, the report of the Chemical Analyst and Ex.P-23,the report of the Serologist. The final report was filed againstthe accused after the completion of investigation on 6.5.1994.

10. The accused were questioned under Section 313 of theCr.P.C. on the incriminating circumstances appearing against them.They denied all the circumstances. They did not examine anywitness on their side. They did not also file any writtenstatement.

11. The learned Senior Counsel, Mr.Asokan, leading thearguments, strenuously contends that there is no common objectbetween the accused since, even according to the prosecution, A-2left before the other accused took the deceased towards north inMettur Road. According to him, if there had been a common objectbetween the accused, A-2 would not have left the place. Hefurther submits that P.W.3, having turned hostile, the trial Courtought not to have relied upon the evidence of P.Ws.4 and 5, sincethey are not only the friends of the deceased, but were also notexamined at the time of inquest. On the above contentions, wehave heard the learned Additional Public Prosecutor.

12. The accused did not dispute the cause of death ofPugazhenthi. The doctor, P.W.6, conducted autopsy and issuedEx.P-2, the post-mortem certificate, containing his opinion thatdeath was on account of the injuries to the carotid. In Court,when he was examined, he has stated that the said injury is fatalin nature and that injuries 1, 2, 7 and 10 could have been causedwith aruvals and injuries 3, 4, 5 and 11 could have been onaccount of stabbing and that injuries 6, 8, 9 and 12 could havebeen on account of a person falling on a rough surface. Theprosecution, by examining P.W.6 and by marking Ex.P-2, the post-mortem certificate, issued by him, has established the cause ofdeath of Pugazhenthi that he died on account of homicidalviolence.

13. The prosecution examined three persons to speak aboutthe occurrence as P.Ws.3, 4 and 5 and of them, P.W.3 turnedhostile. P.Ws.4 and 5 have supported the prosecution version. Itis no doubt true that they are friends of the deceased. But merefriendship by itself will not be a reason for this Court to rejecttheir evidence, unless it is shown that their evidence is nottrustworthy and no reliance can be placed upon them. We haveperused the evidence of P.Ws.4 and 5 very meticulously. On goingthrough the evidence, we find no artificiality in their evidence.https://hcservices.ecourts.gov.in/hcservices/

It is no doubt true that P.Ws.4 and 5 did not go to the policestation to give a complaint immediately on seeing the incident.But they have stated that on seeing the ferocious attack on thedeceased, they were afraid and therefore, ran away to theirrespective houses and on the next day, went to the hospital oncoming to know that dead body had been taken there. The evidenceof P.W.10, the officer, who conducted investigation, shows thatwhen he reached the hospital, he found the witnesses includingP.Ws.3 to 5 and it corroborates the present version of P.Ws.4 and5 that they went to the hospital on coming to know that the deadbody of the deceased had been taken there. Merely because P.Ws.4and 5 were not examined at the time of inquest, the Court cannotreject their evidence. The Supreme Court time and again held thatnon examination of the witnesses at the time of inquest is not aground to reject their evidence. Since we do not find any answerin favour of the accused either in the cross-examination of P.W.4or in the cross-examination of P.W.5, and since we do not find anyreason to reject their evidence, we accept their evidence and holdthat A-1, who is now dead and A-2 to A-5 have inflicted injurieson the deceased.

14. As regards the contention that there was no commonobject among the accused, it is stated only to be rejected. Theevidence of P.Ws.4 and 5 discloses that initially at about 10.30p.m., A-1 to A-5 accosted the deceased and it was A-1 and A-2, whothreatened the deceased and asked him to seek pardon from the wifeof A-3. The deceased refused to do so and at that time, oneSaravanan, who came there, pacified the parties and asked them toleave the place peacefully. After Saravanan left the place, A-2proceeded towards north in Mettur Road and immediately thereafter,the other four accused, telling the deceased that they need notquarrel, took the deceased towards north in the Mettur Road, thedirection in which A-2 went. They took the deceased and P.W.5 toSathi Road, where A-2 was standing. The conduct of A-2 goingtowards north in Mettur Road and the conduct of the other accusedtaking the deceased and P.W.5 towards the same directionimmediately thereafter indicate that the other accused must haveknown that A-2 will be waiting at the particular point, which factis strengthened by the subsequent words uttered by A-2 on seeingthe deceased near the theatre, where the occurrence had takenplace. On seeing the deceased, A-2 told him that "come, you arenow caught" and thereafter, inflicted two injuries on the stomachof the deceased followed by the other accused, who cut him. Ifthere had been no common object between the accused, then theywould not have taken the deceased towards the same direction,where A.2 had gone and would not have attacked the deceased byjoining A-2.

15. In GANGADHAR BEHERA AND OTHERS -vs- STATE OF ORISSA (JT2002 (8) SC 135), the Supreme Court held that the crucial questionto determine as to whether there was any common object is whetherthe assembly consisted of five or more persons and whether thehttps://hcservices.ecourts.gov.in/hcservices/

said persons entertained one or more of the common objects, asspecified in Section 141 and that it cannot be laid down as ageneral proposition of law that unless an overt act is provedagainst a person, who is alleged to be a member of unlawfulassembly, it cannot be said that he is a member of the unlawfulassembly. The Supreme Court further held that the only thing thatis required to be proved is that he should have understood thatthe assembly was unlawful and was likely to commit any of the actswhich fall within the purview of Section 141 and the word "object"means the purpose or design and, in order to make it "common", itmust be shared by all. It is further held by the Supreme Courtthat in other words, the object should be common to the persons,who compose the assembly, that is to say, they should be all awareof it and concur in it and a common object may be formed byexpress agreement after mutual consultation, but it is by no meansnecessary and it may be formed at any stage by all or a fewmembers of the assembly and the other members may just join andadopt it and once formed, it need not be continued to be the sameand it may be modified or altered or abandoned at any stage. TheSupreme Court further held that the expression "in prosecution ofcommon object" as appearing in Section 149 has to be strictlyconstrued as equivalent to "in order to attain the common object"and that it must be immediately connected with the common objectby virtue of the nature of the object. The Supreme Court furtherheld that there must be community of object and the object mayexist only up to a particular stage, and not thereafter andmembers of an unlawful assembly may have community of object up tocertain point beyond which they may differ in their objects andthe knowledge, possessed by each member of what is likely to becommitted in prosecution of their common object may vary not onlyaccording to the information at his command, but also according tothe extent to which he shares the community of object, and as aconsequence of this the effect of Section 149 IPC. may bedifferent on different members of the same assembly.

16. The principles enunciated in the above judgment fullyapply to the facts of this case. As stated by the Supreme Court,common object may be formed at any stage by all or a few membersof the assembly and the other members may just join and adopt it.In this case, A-1 and A-2 threatened the deceased and asked him toseek pardon from the wife of A-3 and when the deceased refused,they picked up a quarrel with him and that Saravanan, who waspassing by that time, intervened and pacified them. Thereafter,A-2 went towards north in Mettur Road and immediately thereafter,the deceased was taken in the same direction in which A-2 went andwhen the deceased was taken to a place where A-2 was standing, onseeing the deceased, A-2 stabbed him after saying, "come, you arenow caught", and inflicted injuries indiscriminately and that A-1cut the deceased on his neck. The above facts, therefore, showthat the conduct of A-3 to A-5 was only a ruse in taking thedeceased towards north by telling him that they need not quarreland that they could settle the matter by talks, so that he can betaken to a place, where A-2 is waiting for the purpose ofhttps://hcservices.ecourts.gov.in/hcservices/

attacking him. We are, therefore, of the view that all theaccused shared the common object of each other and took thedeceased to the place, where A-2 was standing, where he wasstabbed, cut and murdered. The evidence clearly establishes thecommon object of A-2 to A-5 and they were rightly convicted by thelearned Sessions Judge under Section 302 read with 149 IPC.

17. In view of the discussion made above, the appeal filedby the first appellant abates and in so far as it relates to A-2to A-5, the conviction and sentence imposed upon them by thelearned Sessions Judge are confirmed and the appeal filed by themis dismissed.

18. It is reported that A-2 to A-5 are on bail. The learnedSessions Judge shall take steps to commit them to prison toundergo the remaining period of sentence.

bs/

Sd/Asst.RegistrarAsst.Registrar

/true copy/

Sub Asst.Registrar

To

1. The Judl. Magistrate II, Erode.

2.-do- Thro' The Chief Judl. Magistrate, Erode.

3. The II Additional Sessions Judge, Erode.

4.-do- through the Principal Sessions Judge, Erode.

5. The Inspector of Police, Erode Town Police Station.

6. The Superintendent, Central Prison, Coimbatore

7. The District Collector, Erode.

8. The Director General of Police, Madras.

9. The Public Prosecutor, High Court, Madras.

10. The Superintendent, Central Jail, Palayamkottai.

Crl.A.No.644 of 1996

TEJ (CO)EJhttps://hcservices.ecourts.gov.in/hcservices/