CRL A/726/1998 of Vs on 2 December 2002

:JUDGMENT

The appellants are A1 and A3 to A6 respectively. Along with A2, theywere tried for the offences under Sections 148 and 302 read with 149 I.P.C.The trial Court acquitted A2 and convicted A1 and A3 to A6 for the offencesunder Sections 148 and 302 read with 149 I.P.C. and sentenced them each toundergo R.I. for one year for the offence under Section 148 I.P.C. and lifeimprisonment for the offence under Section 302 read with 149 I.P.C. Aggrievedby the same, this appeal has been filed.

2. The case of the prosecution in brief is as follows:

"(a) The deceased Santhanaraj, who belongs to Harijan Community is thehusband of Pappa (P.W.1). The accused 1 to 6 belong to Thevar Community.There is an enmity between these two communities. Both the community peopleconducted Pongal Festival separately. Even in their independent festival,dispute arose between them. Consequently, on a complaint given by the personwho belongs to Thevar Community, a criminal case was filed against 13 personsbelonging to Harijan Community in which the deceased Santhanaraj was one ofthe accused. After the registration of the case, one Sudalaimuthu, thebrother of the appellants 2 to 4 (A3 to A5) used to threaten the deceased.There were frequent quarrels between the said Sudalaimuthu and the deceased.Ultimately, the said Sudalaimuthu was mrdered by the deceased Santhanaraj.The case was filed against Santhanaraj for the offence under Section 302I.P.C. and he was convicted and sentenced to undergo life imprisonment. Hefiled an appeal before the High Court and obtained the order of suspension ofsentence and came out on bail. Though the accused as well as the deceased were living in the same village Karaseri initially, due to murder ofSudalaimuthu, the accused shifted their residence from Karaseri to Vallanadu,Chettanpatti and Morappanadu.

(b) On 27.12.1993, the deceased Santhanaraj left the village and wentto Tirunelveli at 10.00 a.m. in connection with taking of loan. P.W.1 Pappa,his wife is working as a servant maid (Aaya) at Noon Meal Centre at Karaseri.P.W.1 after finishing her work at school came to Deivaseyalpuram, since thedeceased Santhanaraj promised that he would come by 2.00 p.m. on that dayfrom Tirunelveli to Deivaseyalpuram so that both can join together to purchasehousehold articles. As promised by the deceased, he came to Deivaseyalpuramand met P.W.1 at the Tea Stall of Ramakrishnan, where she was waiting for him.After ordering for tea, the deceased Santhanaraj was sitting in the benchinside the Tea Stall and was reading a newspaper.

(c) Within a few minutes, i.e. at about 2.15 p.m., all the accusedpersons (A1 to A6) armed with deadly weapons came inside the Tea Stall andattacked the deceased Santhanaraj indiscriminately and caused his death at thespot in the presence of P.W.1 Pappa, his wife, P.W.2 Ramakrishnan, Tea Stallowner, P.W.5 Periasamy and one Ramiah Konar. When the witnesses raised a hue (d) Then, P.W.1 Pappa, wife of the deceased, accompanied by P.W.2

Ramakrishnan and P.W.5 Periasamy went to Pudukottai Police Station on the sameday at about 5.00 p.m. and lodged a complaint (Ex.P1) with P.W.9, the SubInspector of Police.

(e) On receipt of the complaint, P.W.9 registered a case in Crime

No.609/93 against all the accused for the offences under Sections 147, 148 and302 I.P.C. He prepared the F.I.R. Ex.P15. He sent these documents to theCourt as well as to the superior officers.

(f) On receipt of this F.I.R., P.W.11, the Inspector of Police proceeded to the spot at 6.00 p.m. and prepared observation mahazar Ex.P3 andrough sketch Ex.P16. He also recovered blood stained earth and sample earthfrom the scene of occurrence. He conducted inquest and examined thewitnesses, P.Ws.1,2 and 5 and others. The inquest report is Ex.P7. Then, hesent Ex.P8 requisition to the Doctor for conducting post-mortem.

(g) P.W.6, the Doctor conducted post-mortem on 28.12.1993 and found 31injuries all over the body of the deceased. He issued Ex.P9 post-mortemcertificate giving opinion that the deceased would appear to have died ofshock and haemorrhage due to multiple injuries.

(h) On 29.12.1993, all the accused (A1 to A6) surrendered before theJudicial Magistrate, Srivilliputhur in connection with this case. On comingto know of this, P.W.11, the Inspector of Police filed a requisition beforethe Judicial Magistrate No.1, Tuticorin, who has been examined as D.W.1,requesting custody. Accordingly, on 6.1.1994, police custody was granted. Onthe same day, he obtained confession from A1 and recovered the weapons M.Os.1to 6. Then, he arranged for the articles recovered to be sent for chemicalanalysis.

(i) After completing the investigation, P.W.11 filed the charge sheetagainst A1 to A6 for the offences under Sections 148, 149 and 302 I.P.C."

3. Before the trial Court, on the side of the prosecution, P.Ws.1 to 11 were examined, Exs.P1 to P18 were filed and M.Os.1 to 13 were marked. Onthe side of the defence, Elangovan, the Judicial Magistrate, Tuticorin, whoreceived the F.I.R. in this case, was examined as D. W.1 and Exs.D1 to D3were marked.

4. On questioning the accused under Section 313 Cr.P.C. with reference to the incriminating materials against the accused in the evidence,all the accused stated that they had been falsely implicated and during therelevant time, they were not present at the scene of occurrence, as they wereresiding in different villages.

5. On an appraisal of the materials available on record, the trial Court acquitted A2 Shanmugavel alone and convicted all the other accused (A1and A3 to A6) for the offences under Sections 148 and 302 read with 149 I.P.C.Those accused who have been aggrieved by the judgment of conviction, havepreferred this appeal.

6. Mr.Shanmugavelayutham, the learned counsel appearing for theappellants, while assailing the judgment impugned, would make the followingcontentions:

"(1) The sole eye witness P.W.1 Pappa who is interested and inimicalis not a reliable witness. She could not have seen the occurrence, since shewas to be in the school for doing her work during the relevant time. No validreason was given by P.W.1 for coming to the place of occurrence by abruptlyleaving the school without finishing her work at school. P.W.2, the owner ofthe Tea Shop where the occurrence had taken place, himself had not supportedthe prosecution. Furthermore, another independent witness P.W.5 Periasamy,one of the eye witnesses, turned hostile. Therefore, the evidence of P.W.1has to be rejected in toto.

(2) The evidence of P.W.9, the Sub Inspector of Police, who receivedthe complaint from P.W.1, who stated that he sent the complaint and the F.I.R.on 27.12.1993 itself through P.W.10, the Head Constable and the evidence ofP.W.10 that he handed over the complaint and F.I.R. on the same day night tothe Magistrate cannot be believed, in view of the fact that in Ex.P1, thecomplaint and Ex.P15, the F.I.R., the date seal was affixed as 29.12.1993 andin t he entry made by the Judicial Magistrate by putting the date and time, hehas not put his signature or initial and as such, the complaint must have beenobtained by P.Ws.9 and 11 only two days later and the complaint must have beensent to the Judicial Magistrate (D.W.1), who obliged the Inspector of Policeby putting a wrong date as 27.12.1993. Thus, there is a doubt with referenceto the timing of the complaint as well as the receipt of the complaint and theF.I.R. by the Judicial Magistrate (D.W.1).

(3) Even assuming that the prosecution case is true, the accusedpersons armed with different weapons against whom different overt acts havebeen attributed, cannot be fastened with liability of murder and the partplayed by each person has to be considered independently and the liability hasto be fastened on them only against their respective overt acts. Thus, eachindividual is liable for the concerned overt acts committed by them andpunishment can be imposed only to that effect."

8. In reply to the above submissions, the Additional Public Prosecutor would point out various portions of the evidence and contend thatthe testimony of P.W.1, though she is the sole eye witness, has given theclear details of the occurrence which is corroborated by the medical evidenceand therefore, the accused are liable to be convicted for the offencesreferred to above, since all the accused went together with dangerous weaponsand inflicted injuries on the deceased all over his body repeatedly andindiscriminately till he died. He would also cite various authorities tosubstantiate his contention.

9. We have carefully considered the submissions made by the counsel for the parties and gone through the records.

10. The main contention urged by the counsel for the appellants thatP.W.1 is not a reliable witness and as such, her evidence has to be discarded,especially when the independent witnesses, namely P.W.2 and P.W.5 who hadattested the complaint have turned hostile.

11. It is true that P.W.1 being the wife closely related to the deceased. It is also admitted that there are two factions in their villageand there is enmity between these two factions, who belong to two differentcommunities. It is also not in dispute that the deceased Santhanaraj wasconvicted for the murder of Sudalaimuthu, who is the brother of A3 to A5. Allthe accused who belong to same caste are closely related.

12. The motive for the occurrence as projected by the prosecution is that some years prior to the date of occurrence, Sudalaimuthu, the brother ofthe accused 3 to 5 was murdered by the deceased and in that case, he wasconvicted and he obtained bail from the High Court where he filed an appeal.

13. When these things are not disputed, the motive aspect as spokento by P.W.1 assumes significance. According to P.W.1 being a servant maid(Aaya) of Noon Meal Centre at a school at Karaseri, she finished her work at12.30 p.m. and came to Deivaseyalpuram as requested by her husband, thedeceased Santhanaraj to purchase household articles in Deivaseyalpuram alongwith her husband.

she finished her work at 12.30 p.m. and started from the village Karaseri andreached Deivaseyalpuram at about 1.15 p.m. There, she was waiting for herhusband, the deceased near the tea stall of P.W.2 Ramakrishnan. At about 2.00p.m., the deceased as promised came and met her and both of them went to thesaid Tea stall for taking tea and after ordering for tea, the deceased wassitting in the bench and reading newspaper. At that point of time, all theaccused came with weapons and attacked him indiscriminately. This waswitnessed by P. Ws.1,2 and 5.

15. After the occurrence was over, P.W.1 went to the police stationat Pudukottai and gave a complaint to P.W.9 Sub Inspector of Police. She wasaccompanied by P.Ws.2 and 5. P.W.9 after receipt of the complaint from P.W.1,obtained the attesting signatures from P.Ws.2 and 5 in the complaint.Thereafter, Ex.P1, the complaint and Ex.P15, the F.I.R. were sent to theMagistrate as well as to the Inspector of Police through P.W.10 HeadConstable.

16. Though P.Ws.2 and 5 who are the independent witnesses turnedhostile, we cannot reject the evidence of P.W.1 on that score. On the otherhand, P.Ws.2 and 5 in their evidence admitted two aspects, one is that theyhad put signature in the complaint Ex.P1 and another is that the deceased withinjuries was found dead in the tea shop.

17. On going through the evidence of P.W.1, it is clear that she cameto Deivaseyalpuram at about 1.30 p.m., as she was promised by the deceasedthat after finishing his work at Tirunelveli in connection with obtaining ofloan, he would come and join her at Deivaseyalpuram at about 2.00 p.m. sothat both can purchase the household articles there.

18. On a further scrutiny of the entire evidence, it is noticed thatnothing has been elicited from her cross-examination to indicate that she wasspeaking falsehood. As a matter of fact, she specifically stated that she wasworking as Aaya in an elementary school having classes I to V and her workcould be completed before 1.00 p.m. It is also seen from her evidence thatthe distance between Karaseri and Deivaseyalpuram is only two or three milesand she reached Deivaseyalpuram within 45 minutes by walk.

19. Under those circumstances, the reason given by P.W.1 for comingto the scene village is quite acceptable, especially when she was able to givefull details about the shop in which the occurrence had taken place.

20. It is contended that in the complaint, she had stated only withreference to some overt acts against each of the accused, but in the evidence,she had improved that all the accused gave cuts repeatedly.

21. On going through Ex.P1 and the evidence of P.W.1 we are not ableto accept the submission of the counsel for the accused with regard to thealleged improvement. On the other hand, in the complaint also, she statedafter giving the particulars of the overt acts attributed to each of theaccused, that all the persons thereafter attacked the deceased with theweapons they carried with them.

22. Merely because she is relative of the deceased and there are twofactions, as held by this Court as well as the Supreme Court, we cannot rejecther evidence in toto, particularly when in these type of cases, theindependent witnesses like shop owner and the person who came to tea shop totake tea would be afraid of saying anything against accused as they would feelthat their life would be in danger at the hands of the accused. The factremains as noted above that both the witnesses, P.Ws.2 and 5 admitted theirsignatures in Ex.P-1.

23. In such circumstances, there is no reason to reject the evidenceof P.W.1 who stated that she went to the police station at 5.00 p.m.accompanied by P.Ws.2 and 5 and gave a complaint giving the full details ofthe occurrence implicating all the accused.

24. Yet another feature which is noticed in the deposition of P.W.1is that even in the beginning in the chief examination, she straightawaystated that the person who was standing before the Court as second accused wasnot the person arrayed as A2 in the complaint. According to her, Shanmugavelarrayed as A2 was some other man. The entire deposition of P.W.1 would makeit clear that she gave all the details of the overt acts against all theaccused including the said Shanmugavel who was arrayed as A2 in the complaint.This fairness on the part of P.W.1 makes us to feel that she is a true andtrustworthy witness.

25. An attempt has been made to create a doubt in the minds of thisCourt by stating that the complaint must have been obtained two days later,since the Court seal found in Ex.P1, the complaint and Ex.P15, the F.I.R.shows that the same were receiv n 29.12.1993. But, the close perusal of thesedocuments would clearly indicate that the seal contains the date as28.12.1993. The entry made by the Judicial Magistrate in both the documentswould show that the same were received at 12.20 night on 27.12.1993.

26. Furthermore, the Judicial Magistrate was examined as defencewitness (D.W.1) who had categorically stated in the cross-examination thatentries were made by him on the night of 27.12.1993 as the receipt of thedocuments was at 12.20 night on 27.12.1993 at his house and the seal wasaffixed next day i.e. on 28.12.1993.

27. The most disturbing feature we could notice in this case is that merely because the seal was shown as if it was affixed on 29.12.1993 , theJudicial Magistrate was summoned to put the suggestion on defence that thoughthese documents were received on 29.12.1993, the Judicial Magistrate purposelyobliged P.W.11, the Inspector of Police by making a wrong entry as 12.20 pm atnight 27.12.93 even without putting his initial.

28. The Judicial Magistrate in his evidence both in chief and crosshas categorically stated that he did not oblige the Inspector of Police and hereceived the documents at 12.20 night on 27.12.1993 and the seal shown in thesame was only 28.12.1993 and not 29.12.1993. Furthermore, the inquest washeld on 27.12.1993 night and the inquest report Ex.P17 was received by theJudicial Magistrate on 28.12.1993. The seal also would show that it wasaffixed on 28.12.1993. If the plea of the defence that the complaint and theF.I.R. were received only on 29.12.1993 is true, the inquest report would nothave been received by the Court concerned on 28.12.1993. Therefore, the defence plea made by the accused that Exs.P1 and P15, the complaint and theF.I.R. were received on 29.12.1993 has to be rejected as a false andmischievous one.

29. Yet another disquieting feature that we could see is that the Judicial Magistrate who received the F.I.R. has been unnecessarily summonedas a defence witness and he was subjected to lengthy and irrelevantexamination by putting a suggestion imputing motive against the Magistratehimself. D.W.1, the Judicial Magistrate had passed an order granting policecustody to the Inspector of Police (P.W.11) on the request made by P.W.11.Unfortunately, a suggestion was put to the Judicial Magistrate that the saidorder of police custody was illegal and wrong. This is nothing but an act ofharassing and demeaning the Judicial Officer (D.W.1) who has done his dutyjudiciously.

30. We could only express our displeasure over the misconduct of the lawyer who conducted the case on behalf of the accused. This sort ofsummoning the Judicial Officers to give evidence with reference to the orderspassed by them and attributing motives against them while they were in box ishighly condemnable and reprehensible. The way in which the questions had beenput to D.W.1, the Judicial Officer by the counsel for the accused wouldclearly indicate that the counsel for the accused has not understood theethics of the profession and not conducted himself properly, and on the otherhand, his act of having insulted the Judicial Officer by putting questionsimputing motives and having suggested that he was not honest would amount toclear contempt.

31. According to P.W.11, the Inspector of Police, he obtained police custody and interrogated all the accused and A1 gave a confession and inpursuance of the same, he recovered all the weapons M.Os.1 to 6 on 6.1.1994.

It may be true that P.W.6 Doctor would state that the weapons were shown tohim next day to the post-mortem. The postmortem was conducted on 28.12.1993.The above statement of the Doctor is purely a mistake for the reason that bothP.W.4, the V.A.O. and P.W.11 , the Inspector of Police would state on thestrength of the confession Ex.P6 and the mahazar Ex.P5 that the weapons wererecovered only on 6.1.1994 in pursuance of the confession given by A1.Therefore, the contention that the weapons would not have been recovered on6.1.19 94 cannot be accepted.

32. Lastly, it was contended that the accused cannot be convicted for the offence under Section 302 read with 149 I.P.C. and the liability has tobe fastened on them only against their respective overt acts. This contentionalso, in our view, is quite wrong.

33. The provisions contained in Section 149 I.P.C. would be attracted whenever any offence is found committed by any member of an unlawfulassembly in prosecution of the common object of that assembly or when themembers of that assembly knew that the offence was likely to be committed inprosecution of that object. Every person, who at the time of committing ofthat offence is a member of that group, will also be vicariously held liableand guilty of that offence.

34. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accusedassembled. The existence of the common object of the unlawful assembly has tobe ascertained in the facts and circumstances of each case.

35. The above principles have been laid down by the Supreme Court in CHANDRA BIHARI GAUTAM v. STATE OF BIHAR (2002 CRI.L.J.2541) and RAMESHWARDAYAL v. STATE OF M.P. (2002 S.C.C.(Cri) 515).

36. In the instant case, the appellants constituted an unlawful assembly and thereafter, reached the place of occurrence armed with dangerousweapons like vel kambu and aruval and participated in the attack bymercilessly beating the deceased after surrounding him.

37. Further, all the appellants not only came with the dangerous weapons, but also inflicted injuries on various parts of the body repeatedlyand indiscriminately as stated by P.W.1 causing 31 injuries all over the bodyof the deceased, which resulted in the instantaneous death at the spot.P.W.6, the Doctor in Ex.P9, the post-mortem certificate would clearly opinethat the deceased would appear to have died of shock and haemorrhage due tomultiple cut injuries of the neck - cutting the windpipe and major bloodvessels of the neck and of the face and lungs. He also would state in hisevidence that death was due to shock and haemorrhage due to the multiple injuries. Thus, in view of the above fact situation, in our opinion, it hasbeen substantially established that the common object of the appellants wasnothing but to murder the deceased.

38. Under those circumstances, this Court cannot consider individualovert acts to modify the nature of the offence.

39. In view of the above above discussion, we do not find merit inany of the contentions urged by the counsel for the appellants. Consequently,the appeal is dismissed confirming the conviction and sentence imposed on theappellants/A1 and A3 to A6 by the trial Court.

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