COMP.A/1733/2002 of Vs on 10 December 2002

:COMMON JUDGMENT

This judgment shall govern these two appeals namely C.A.Nos.1239 and1733 of 2002.2. The appellants herein, who were arrayed as A-1 and A-2respectively and who stood charged, tried, found guilty and sentenced toundergo imprisonment for the offences as detailed below, have brought forththese appeals.

------------------------------------------------------------Accused Charge(IPC) Guilty(IPC) Sentence

------------------------------------------------------------ A-1 & A-2 341, 353, 341 - 1 month R.I. each307 r/w 34, 353 - 2 years R.I. each394 r/w 397, 394 r/w 397 - 7 years R.I. and427 Rs.500/- fine, indefault 2 monthsS.I. each307 r/w 34 - 10 years R.I. andRs.500/- fine, indefault 2 monthsS.I. each427 2 years R.I. andRs.500/- fine, indefault 2 monthsS.I. each A-1 307307 - 10 years R.I. andRs.500/- fine, indefault 2 monthsS.I.

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3. The short facts necessary for the disposal of these appeals can bestated thus:(a) On 18.11.99 at about 1.30 P.M., P.W.2 Gurusamy and P.W.10Mahalingam, the two Head Constables attached to Puthur Police Station, Maduraicame to Puthur Bus Stand on information as to the illegal acts being committedby the accused. When they were proceeding near the market, A-1 and A-2prevented them at knife point and deterred both of them from performing theirofficial duty. When P.W.2 made an attempt to apprehend the first accused, A-1attacked him with knife, and in that assault P.W.2 had a bleeding injury belowhis right eye. When P.W.10 attempted to apprehend A-2, A-1 pushed P.W.2 andwith an intention to kill him, strangulated him. At that time, P.W.5Swaminathan, Grade-I Constable, after finishing his duty, went across theplace of occurrence. On seeing the incident, he interfered and came to therescue of the other Constables. A-2 bite him on his cheek. Both the accusedfled away from the scene of occurrence. P.W.1 Ragupathy, Sub Inspector ofPolice, attached to the said Station, on coming to know about the same througha telephonic message, came to the site of occurrence and sent P.Ws.2 and 5 tothe Government Hospital for treatment. Accompanied by his party, P.W.1 wentin search of the accused. At that time, both the accused were demanding moneyillegally from P.W.8 Mani, the owner of Solai Xerox, Karpaga Nagar Complex,and on refusal, they attacked him and caused simple injuries. P.W.8 was sentto the hospital for treatment. At about 4.00 P.M., the accused were standingin front of Annamalai Hotel near the Puthur Bus Stand. When P.W.1 SubInspector on seeing the accused went nearby to apprehend them, A-1 holding aknife in hand uttered the words "cd;id bjhiyj; JtpLntd;" and so saying, hewielded his knife. P.W.1 narrowly escaped. The accused took soda bottlesfrom a petty shop situated nearby the said Annamalai Hotel and threw themagainst P.W.1 and his Constables. In that incident, the walkie-talkie whichwas in the waist of P.W.1, fell down. The accused who took the same, wentaway from that place. A-2 caused mischief by damaging the glasses of an autobearing Registration No.TN 59 N 5900 to the tune of Rs.150/-.

(b) P.W.15 Ganesan, Sub Inspector of Police, attached to the very samePolice Station registered a case in Crime No.1035/99. Ex.P16 printed F.I.R.was despatched to the concerned Judicial Magistrate's Court. On receipt ofthe copy of the F.I.R., P.W.16 Radhakrishnan, Inspector of Police, took up theinvestigation, proceeded to the site of occurrence, prepared Ex.P11observation mahazar and Ex.P12 rough sketch and recovered M.Os.1 and 2, thebroken pieces of soda bottles and auto mirror respectively under Ex.P9mahazar. The Investigating Officer examined the witnesses and recorded theirstatements. Since P.W.1 6 Investigating Officer was on medical leave, P.W.15Sub Inspector of Police proceeded with the further investigation. On 22.11.99at about 9.30 A.M., he arrested A-1 and remanded him to judicial custody. On24.11.99 P.W.11 Ramasubbu, another Sub Inspector of Police, on informationarrested A-2 and recorded his voluntary confessional statement. Theadmissible portion of the said confessional statement recorded is Ex.P8.Pursuant to the said confession, A-2 produced M.O.3 ( series) two knives whichwere recovered by P.W.11 under Ex.P5 mahazar in front of P.W.13 Rajamani andanother witness. On 18.11.99 at about 6.55 P.M. P.W.9 Dr.Ramamurthy examinedP.W.2 Head Constable medically and issued Ex.P2 wound certificate. On thesame day at about 7.00 P.M. the said Doctor examined P.W.5 and issued Ex.P3wound certificate. P.W.14 Rajagopal, Inspector of Police, examined P.W.9, andon completion of the investigation, a charge sheet was laid against A-1 andA-2.

4. In order to prove its case, the prosecution has examined 16

witnesses and marked 12 exhibits and 3 material objects. After the evidenceon the side of the prosecution was over, the appellants/accused werequestioned under S.313 of Cr.P.C. as to the incriminating circumstances foundin the evidence of the prosecution witnesses, and they denied the same asfalse. No defence witness was examined. After considering the rivalsubmissions and scrutiny of the available materials, the trial Court found theappellants/accused guilty under the above provisions of the Penal Code andsentenced them to imprisonment as stated supra. Hence, the appellants havepreferred these appeals.

5. Arguing for the appellants, the learned Counsel would contend thatthe prosecution has not proved the guilt of the accused in any way; thatthough 16 witnesses were examined by the prosecution, the independentwitnesses namely P.Ws.3, 4, 8, 12 and 13 all have turned hostile, and thuswhat was available for the prosecution was only the evidence adduced throughthe Sub Inspector and Constables; that they are interested witnesses; that theDoctor's evidence has not corroborated the ocular evidence adduced by theprosecution; that even from the Doctor's evidence, it could be seen that theinjuries that were caused on P.W.2 were minor; that in order to prove thecharge that was levelled against them that they attempted to commit murder ofP.W.1 by throwing the soda bottles, which were taken out of the shop of oneAnnamalai, he has not been examined, and thus, it would cast a doubt whethersuch occurrence has taken place at all; that there is nothing to attract theingredients of S.307 of I.P.C.; that so far as the charge that they have madean attempt to commit robbery, and they have about to attack P.W.8 the shopowner, is concerned, the said witness has turned hostile, and hence, thecharge has become failed; that there are three occurrences according to theprosecution, at 1.30 P.M., 2.30 P.M. and 4.30 P.M. respectively, but acomplaint was given by the injured Constable at about 5.30 P.M., and he was

also given treatment later; that all would cast a doubt on the prosecutioncase whether such an occurrence would have taken place at all; that from theevidence, what was available, it is clear that when one Constable was doingganja business, the accused have gone to the Station in order to make acomplaint about the same; that enraged over the same, a false case has beenfoisted against the appellants/accused, and thus, it was a case one foistedand brought forth to wreck vengeance on the appellants; that without properappreciation of the evidence available, the lower Court found them guilty, andhence, both the appellants are entitled for an acquittal in the hands of theCourt.

6. Opposing strongly the above contentions of the appellants' side, the learned Government Advocate (Criminal Side) would submit that in theinstant case, it is true that the independent witnesses who were examined atthe time of the investigation b e Investigating Officer and the eyewitnesseshave also turned hostile, but the prosecution has examined P.Ws.2 and 10 whowere wrongfully restrained by the appellants, and they were deterred fromperforming their official duty; that that part of the evidence of thesewitnesses is in tact despite the cross examination; that P.W.2 was attacked byA-1 with knife, and A-1 caused injuries to him and pushed him down andattempted to commit the murder of P.W.2 by strangulating him; that this factis clearly spoken to by P.W.2 the injured and P.Ws.5 and 10 who were theeyewitnesses to the said occurrence; that insofar as the act of the accusedattempting at the life of P.W.1, the same was not only spoken to by P.W.1, butalso by other Constables were present at that time; that it is true that theshop owner by name Annamalai was not examined, but that cannot be a reason toreject the prosecution case, while the direct evidence in that regard wasavailable in the case; that the mischief by damaging the auto has also beenproved by sufficient evidence, and under the circumstances, the conviction andsentence recorded by the trial Court were perfectly correct, and hence, thejudgment of the lower Court has got to be sustained.

7. As seen above, the prosecution came with a specific case that P.

Ws.2 and 10, the two Head Constables of Puthur Police Station, Madurai oninformation were proceeding to the site of occurrence, near Puthur Bus Stand,and thus, they were on their official duty. From their evidence, it would bequite evident that they were prevented by A-1 and A-2, and thus, an unlawfulrestraint was made, and they were deterred in their official duty. At thetime of the investigation, which was taken up by the Inspector of Police,after the case was registered, the site of occurrence was inspected by theInvestigating Officer. It is pertinent to note that the contents of theobservation mahazar and the site plan were not disputed. The Court is of theview that the evidence of the said Constables is cogent, acceptable andtrustworthy, and the same inspires the confidence of the Court. Taking intoconsideration the the said reliable evidence, the lower Court was perfectlycorrect in holding that both the accused were guilty under Ss 341 and 353 ofI.P.C.

8. The further case of the prosecution was that A-1 and A-2 wereholding knives in their hands, and when they were to be apprehended, A-1attacked P.W.2 and caused injuries below his left eye, and not satisfied withthe same, A-1 has pushed him down and strangulated him and attempted to killhim. These facts have been spoken to by P.W.2, who was injured andsubsequently treated by P.W.9 Medical Officer, who has given a certificate as

to the injuries caused on him, and it has also been spoken to by P.Ws.5 and 10the two Constables, who were by the side. It is true that simple injurieswere found by the Medical Officer as evident from the certificate issued byhim. But, the factum of strangulation is spoken to by the witnesses. Thereis nothing to implicate A-2 in the act committed by A-1 in making astrangulation, because the prosecution was unable to show that there was anycommon intention or common object with which they behaved. The lower Court onthe evidence as spoken to by P.W.2, the injured coupled with the evidence ofP.Ws.5 and 10, who were the eyewitnesses and the medical evidence, has rightlyfound A-1 guilty under S.307 of I.P.C.

9. According to the prosecution case, when there was an interventionby P.W.5, A-2 has bitten him on the right side of his cheek and has causedsimple injuries. When P.W.1, the Sub Inspector of Police came to know aboutthe same, went with his party, and he was able to apprehend them. Accordingto the witnesses, the accused took the soda bottles and threw against them,and hence, a charge was framed under S.307 read with 34 of I.P.C. in thatregard. But, the shop owner namely Annamalai, from whose shop the allegedsoda bottles were taken, was not examined, and both the mahazar witnesses haveturned hostile, and hence, that part of the prosecution case has not beenproved, since no one fact as to the commission of attempt to murder has beenproved. But, from the evidence of P.W.1 and other witnesses, soda bottleswere thrown against them. To that extent, it can be termed as criminalintimidation made at that time in order to prevent them from apprehending theaccused. Hence, the Court is of the considered view that the ingredients ofS.506(ii) of I.P.C. would be attractd under the proved facts.10. So far as the charge of mischief framed against both the accusedunder S.427 of I.P.C. is concerned, the Court is of the view that theprosecution has not proved the same. Equally so, the charge levelled againstA-1 and A-2 that they attempted to commit robbery by showing a deadly weaponagainst P.W.8 Mani has failed, since P.W.8 has turned hostile, and those factshave not been proved beyond reasonable doubt, and hence, the appellants/A-1and A-2 cannot be found guilty under S.394 read with 397 of I.P.C. 11.Therefore, as discussed above, on the face of the evidence available, thejudgment of the lower Court finding A-1 and A-2 guilty under Ss 341 and 353has got to be affirmed. Apart from that, the conviction passed on A-1 by thelower Court under S.307 of I.P.C. has also to be confirmed. In respect ofthe charge under S.307 read with 34 of I.P.C., the appellants/A-1 and A-2 areto be found guilty under S.506(ii) of I.P.C. The conviction and sentenceimposed on A-1 and A-2 by the trial Court in respect of all other chargesunder S.394 read with 397 and S.427 of I.P.C. and are liable to be set aside,and the appellants/A-1 and A-2 are entitled for an acquittal of that charges.Coming to the question of punishment, the lower Court has imposed 1 month R.I.under S.341 IPC on both the accused, and the Court is of the view that thesame has got to be confirmed. So far as the sentence of 2 years R.I. awardedto the appellants under S.353 IPC is concerned, in view of the facts andcircumstances, it has got to be reduced to 1 year R.I. As regard 10 yearsR.I. imposed on A-1 under S.307 of I.P.C., the same has to be reduced to 5years R.I. In respect of the conviction under S.506(ii) as recorded above, 2years R.I. each has got to be imposed on the appellants.

12. In the result, both the criminal appeals are partly allowed. Theconviction and sentence imposed by the lower Court on the appellants/A-1 and A-2 under S.397 read with 34 of I.P.C. and S.427 of I.P.C. are set aside,and the appellants/A-1 and A-2 are not guilty of those charges, and they areacquitted of the same. The conviction and sentence imposed by the lower Courton the appellants/A-1 and A-2 under S.307 read with 34 of I.P.C. are setaside, and the appellants/A-1 and A-2 are found guilty under S.506(ii) ofI.P.C. and sentenced to undergo R.I. for two years. The sentences imposedon the appellants/A-1 and A-2 by the lower Court under Ss 341 and 353 aremodified, and the appellants shall undergo 1 (one) month R.I. under S.341 IPCand 1 (one) year R.I. under S.353 IPC. The sentence of 10 years R.I. underS.307 of I.P.C. imposed on A-1 by the lower Court is modified, and theappellant/A-1 shall undergo R.I. for five years. All the sentences shall runconcurrently. In other respects, the judgment of the lower Court isconfirmed. The Sessions Judge shall take steps to commit the appellant/A-2 inC.A.No.1733/02 to prison, if he is on bail, to undergo the remaining period ofsentence.

Index: YesInternet: Yes

To:

1) The Judicial Magistrate No.7, Madurai.2) The Chief Judicial Magistrate, Madurai.3) The Additional District and Sessions Judge-cum-FastTrack Court No.II, Madurai.4) The Principal Sessions Judge, Madurai.5) The Superintendent, Central Prison, Madurai.6) The Public Prosecutor, High Court, Madras.7) The D.I.G. of Police, Chennai 4.8) The Inspector of Police, Puthur Police Station, MaduraiDistrict.

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