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Govindasamy v. State by - C.A. No.813 of 1995 [2003] RD-TN 938 (23 October 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 23/10/2003

Coram

The Honourable Mr. Justice P. SHANMUGAM

and

The Honourable Mr. Justice T.V. MASILAMANI

C.A. No.813 of 1995

1. Govindasamy

2. Palaniswamy

3. Kumaraswamy

4. Subramaniam

5. Kandaswamy

6. Subramanian

7. Velu gounder

8. Gunasekaran

9. Velmurugasamy .. Appellants -Vs-

State by

Inspector of Police,

Kamanaickenpalayam Police Station.

Coimbatore District.

(Cr.No.20/1992) .. Respondent Criminal Appeal against the judgment dated 7.9.1995 made in S.C. No.61 of 1994 on the file of the I Additional Sessions Judge, Coimbatore.. For Appellants : Mr.V.Gopinath, S.C.

for A1 to A6

M/s.K.S.Rajagopalan,

for A7 to A9

For Respondent : Mr.V.M.R.Rajendran,

Addl.Public Prosecutor.

:JUDGMENT



T.V. MASILAMANI, J.

The appellants are the accused 1 to 9 convicted and sentenced by the trial Court.

2. The accused 1 to 9 are charged with the offences under Sections, 148, 147, 302, 302 r/w.149, 324, 324 r/w.149, 323, 323 r/w. 149, 427 I.P.C. and under Section 3 of the Explosive Substances Act, 1908.

3. It is alleged by the prosecution that on 2.2.1992 at about 10.30 A.M., the accused 1 to 9 formed themselves into an unlawful assembly with the common object of committing the murder of Venkatachala Gounder and also to cause injuries to the witnesses and in the course of the same transaction, A1, A2 and A6 were armed with sticks, A3 in possession of country made bomb, A4 armed with spear and A5 armed with veechu aruval and thereby A1 to A6 committed the offences punishable under the said provisions of law.

4. On the side of the prosecution 12 witnesses were examined, 32 documents were filed and 23 material objects were produced. The learned Sessions Judge found the accused guilty under charge Nos.1 to 9, A1 to A6 under Section 427 I.P.C. and A7 to A9 under Section 427 r/w.149 I.P.C. under charge No.10, and A3 was found guilty under Section 3 of the Explosive Substances Act under charge No.11. The accused were sentenced as under:- (i) A1 to A6 were found guilty under Section 148 I.P.C. and A7 to A9 guilty under Section 147 I.P.C. for which A1 to A6 were sentenced to undergo R.I. for 3 years and A7 to A9 R.I. for 2 years respectively. (ii) A1 to A4 were convicted and sentenced under Section 302 I.P.C. to undergo life imprisonment.

(iii) A5 to A9 were convicted and sentenced to undergo life imprisonment under Section 302 r/w. 149 I.P.C.

(iv) A6 was found guilty under Section 324 I.P.C. (on 2 counts) and sentenced to undergo R.I. for 2 years and to pay a fine of Rs.250 /- on each count, in default to undergo R.I. for 3 months on each count. (v) A1 to A5 and A7 to A9 were also found guilty under Section 324 r/w. 149 I.P.C. (on 2 counts) and sentenced to undergo R.I. for 2 years each and to pay a fine of Rs.250/- each (on 2 counts), in default, to undergo R.I. for 3 months.

(vi) A1 and A5 were also convicted and sentenced to suffer R.I. for 2 years each and to pay a fine of Rs.250/- each, in default to undergo R.I. for 3 months under Section 324 I.P.C. (vii) A2 to A4 and A6 to A9 were similarly convicted and sentenced under Section 324 r/w. 149 I.P.C. (on 2 counts) to undergo R.I. for 2

years and to pay a fine of Rs.250/- on each count, in default to undergo R.I. for 3 months.

(viii)&(ix) A3 was convicted and sentenced under Section 323 I.P. C. and A1, A2 and A4 to A9 were convicted and sentenced under Section 323 r/w.149 I.P.C. to undergo 6 months R.I. and to pay a fine of Rs.2 50/- each, in default to undergo 3 months R.I.

(x) A1 to A6 were convicted and sentenced under Section 427 I.P.C. and A7 to A9 under Section 427 r/w.149 I.P.C. to pay a fine of Rs.250 /- each, in default to undergo R.I. for 3 months. (xi) A3 was convicted and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.500/-, in default R.I. for 6 months under Section 3 of the Explosive Substances Act.

5. The case of the prosecution as discerned from the evidence may be stated briefly as follows:-

(a) The deceased Venkatachala Gounder is the husband of P.W.2 and father of P.Ws.1 and 3. P.W.4 is the sister's son of P.W.2. The land of the deceased is situate east of Udumalpet-Chencherimalai Road wherein his house is also there. A1 and A2 are the sons-in-law of A7 . A3 and A5 are brother's son of A7. A9 is the grand son of A7 through his eldest daughter. A4, A6 and A8 are close relatives of A7 .

(b) The land of A7 is situate on the north-eastern side of the land of the deceased. A7 was insisting the deceased Venkatachala Gunder to provide for a cart track in his land to have an easy access to his land from Udumalpet road on the western side and the said request was declined by the deceased. Thereupon the deceased filed a suit in O.S.No.722 of 1991 on the file of the District Munsif, Tiruppur and obtained a decree for permanent injunction restraining A7 and his men from interfering with the enjoyment of his land.

(c) On 2.2.1992 at about 10.30 A.M., P.Ws.1 to 4 were sitting inside the house and at that time when the deceased was sitting in the front yard of the house, A7 to A9 drove the bullock cart into the land of the deceased from the eastern side and the deceased shouted at the accused and proceeded towards them. On hearing the noise of the deceased, P.Ws.1 to 4 came out of the house. Thereupon A7 to A9 turned the bullock cart towards the eastern side and at the same time, A1 to A6 came from the western side into the land of the deceased. A1, A2 and A6 were armed with sticks, M.Os.1 to 3 respectively, A3 was in possession of the explosives and A4 was armed with M.O.4, spear and A5 with M.O.5, aruval.

(d) A5 cut on the left side of the head of P.W.1 with M.O.5 aruval and A6 inflicted a blow upon P.W.1 with M.O.3 stick on his right shoulder and left wrist. P.W.1 raised alarm and on hearing the same, the deceased came running towards west from the eastern side. At that time, A3 had thrown a country bomb which exploded with loud noise. However, the deceased escaped unhurt and had crossed the parapet wall and jumped inside the front yard of his house. At that time, A1 and A2 indiscriminately beat the deceased on the occipital region of his head with M.Os.1 and 2 sticks and continued to beat even after the deceased had fallen down. A4 stabbed the deceased with M.O.4, spear and therefore he died instantaneously. (e) P.W.2 was beaten by A6 with M.O.3, stick on the left shoulder and the head. A3 slapped P.W.3 on both the cheeks. P.W.4 was also beaten by A1 with M.O.1 stick on the right shoulder, left elbow and left knee. Thereupon P.Ws.1 and 4 ran away from the scene of occurrence fearing further attack from the accused. Then A1 to A6 trespassed into the house of the deceased and caused damage to the windows and other household articles. (f) Both P.Ws.1 and 2 went to Palladam Government Hospital for treatment. Ex.P-11 intimation was sent to the Palladam Police Station by P.W.7, Medical Officer and P.W.11, Sub Inspector went to Palladam Hospital and examined P.W.1 and recorded, Ex.P-1 complaint from him. On the basis of Ex.P-1. he registered a crime in Cr.No.20/1992 and prepared Ex.P-27, F.I.R. and sent the same to the Court and his higher officials. (g) P.W.12, Inspector took up the investigation, went to the scene of occurrence and inspected the same in the presence of P.W.5 and prepared Ex.P-3, observation mahazar and Ex.P-29, rough sketch. The inquest was held on the same day. Ex.P-30 is the inquest report. He examined P.Ws.2 and 3 in the presence of panchayatdars. He seized M. Os.6 to 16 in the presence of P.W.5 under cover of mahazar, Ex.P-4. M.Os.17 to 19, photographs were taken at the scene of occurrence.

(h) P.W.12 sent a requisition to the medical Officer P.W.8 to conduct post-mortem on the dead body of Venkatachala Gounder and in pursuance of the same, P.w.8 conducted the post-mortem and found the following injuries:-

External injuries:-

(1) jiyapd; tyJgf;f fhjpd; nky;gFjpapy; uj;j fhak;/ (2) jiyapd; ,lJg[w gpd;gFjpapy; vYk;g[ behW';fp K:is btspna bjupfpwJ/ (3) ,lJ jhthbfhl;ilapy; uj;j fhak;/

(4) uj;jj;Jld; Toa ,lJ fQqf;fhYf;F nky; xU uj;j fhak;/ (5) ,lJ KH';fhypd; cs;g;gf;fk; rpuha;g;g[ fhak;/ (6) tyJ bjhilapd; btspg;gf;fk; xU rpuha;g;g[f; fhak;/ (7) tyJ njhs;gl;ilapy; xU rpuha;g;g[f; fhak;/ On dissection:

Injuries (1), (2) Skull bone behind the injuries and the back of the head fractured into pieces. Membranes and brain matter lacerated. Base of the skull fractured into 4 pieces.

(3) Skin, fascia, muscles and blood vessels ruptured. (4) Skin, fascia, muscles and blood vessels ruptured. Bone behind the injury fractured into pieces.

(5), (6) skin and fascia injured.

(7) Skin and fascia injured. Dislocation of right shoulder joint present, Intact.

Thorax: Uniform. Organs: Normal in position. Heart: pale, wt. 250 gms. Lungs: pale, right 550 gms, left 450 gms, Ribs: Normal. Hyoid: Intact. Abdomen: uniform. Organs: Normal in position. Stomach: undigested rice 300 gms. Liver: pale, 1400 gms. Spleen: pale, 140 gms. Kidneys: pale, 120 gms. Intestines: pale, distended with gas. Bladder: empty. Pelvis: normal. Skull: Bone fractured. Membranes and brain lacerated. Base of the skull fractured. Brain: 1200 gms, congested. Spinal column and cord: normal.

(i) P.W.17, Doctor treated P.Ws.1 to 4 for injuries suffered by them in the occurrence and P.Ws.1 and 2 were treated as inpatients. Exs.P-10, P-13, P-14 and p-12 are accident register copies issued to P. Ws.1 to 4 respectively.

(j) P.W.12 arrested the A1, A2 and A5 to A9 on 6.2.1992 at 11.00 A.M. M.Os.1 to 3 sticks were produced by A1, A2, A6 respectively and A5 produced M.O.5 aruval and A7 produced M.O.4 spear and the same were seized by P.W.12 under cover of mahazars, Exs.P-5 to P-9 respectively in the presence of P.W.5

(k) In the meanwhile, on 2.2.1992, the accused 3 and 4 were admitted to the Government Hospital, Palladam for treatment for certain injuries and upon intimation sent by the Doctor, statement of A3 was obtained by the Head Constable and a case was registered in Cr.No.21/1992 under Section 323, 324 I.P.C. r/w. Section 3 of the Explosive Substances Act. Ex.P-28 is the printed form of F.I.R.

(l) Exs.P-15 and P-16 are the accident register copies issued to A3

and A4. P.W.11, Sub Inspector of Police took up the investigation in Cr.No.21/1992 and submitted the records to P.W.12 for further investigation. After investigation, P.W.12 referred the case in Cr. No.21/92 as mistake of fact and issued Ex.P-32 referred charge-sheet and notice was also served upon A3.

(m) Ex.P-24 is the Chemical Examiner's report, Ex.P-25 is the Serologist's report and Ex.P-26 is the report relating to the explosives. 'O' group blood was detected in M.Os.1 to 5, 10, 21 to 23. After obtaining the sanction for prosecution under the Explosives Substances Act (vide) Ex.P-31 from the District Collector and after completing the investigation, P.W.12 laid the final report in this case on 1.6.1 9 93.

6. When the accused 1 to 9 were questioned under Section 313 Cr.P.C. about the incriminating circumstances in the evidence, they denied the same. The accused 1 to 7 filed separate statements contending inter alia that there was a cart track running between the front yard of the house of the deceased and his coconut thope, that since the cart track was obliterated by the deceased, the accused questioned the same, that on 2.2.1992 there was a free fight between the deceased party and 10 other persons whose lands are situated further east, and that on account of the injuries sustained in the said occurrence, the deceased died of head injury. Hence, the accused are not guilty of the the charges levelled against them.

7. The learned counsel for the accused have argued at the outset that even as per the evidence of P.Ws.1 to 4, the accused 7 to 9 and 10 others alleged to have followed the bullock cart from the eastern side were falsely implicated in this case. Similarly, the cart belonging to the 7th accused marked as M.O.6 had also been planted as evidence to bolster the false version of the prosecution. P.Ws.1 and 3 are son and daughter of the deceased. P.W.2 is the wife of the deceased and P.W.4 is the sister's son of P.W.1 and their evidence which is not only biased, but also interested cannot be relied upon. Similarly, the 4th accused was also falsely implicated in this case for the reason that even in the complaint Ex.P-1 or even during the investigation, P.Ws.1 to 4 did not say whether the deceased was stabbed by A4 and the medical evidence as well as the Serologist's report are not in favour of the prosecution in this respect. The alleged overt act attributed to A3 in throwing the country made bomb which exploded with loud noise has not been proved beyond doubt for the reason that none had been injured and that the place where the bomb was thrown is also vaguely alleged in the prosecution evidence. Therefore, the defence version that it was thrown by the deceased appears to be probable. The injuries on A3 and A4 are not explained by the prosecution. There is no clinching evidence to prove the alleged damages caused to the properties of the deceased. Hence the main charges under Sections 30 2 I.P.C., under Section 302 r/w. 149 I.P.C. have not been proved by the prosecution beyond reasonable doubt.

8. We have heard the arguments of the learned Additional Public Prosecutor on the above contentions and perused the recorded evidence in this case. As has been rightly pointed out on the side of the prosecution, the evidence of P.W.8 autopsy Surgeon and Ex.P-19, Postmortem report have established that the deceased died of homicidal violence. According to P.W.8, the external injuries 1 and 2 and the corresponding internal injuries reveal that the base of the skull bone fractured into four pieces and laceration of the membranes and brain matter were necessarily fatal and that therefore he would have died of shock and haemorrhage instantaneously about 22 to 26 hours prior to the autopsy. Further, according to him, injury Nos.4 and 7 are grievous and therefore, they were not fatal and injury Nos.3, 5 and 6 are simple in nature. He has opined that such fatal head injuries could have been caused by sticks like M.Os.1 and 2 which are stout and weighty in nature. Considering the totality of the above medical evidence, we are of the considered view that the prosecution has succeeded in establishing that the deceased died of homicidal violence.

9. The land and house of the deceased are situate east of Udumalpet-Chencherimalai Road and the land of the 7th accused is situate on the north-eastern portion of the land of the deceased. The evidence of the prosecution and Ex.P-2, certified copy of the decree in O.S. No.7 22 of 1991 on the file of the District Munsif, Tiruppur would disclose that the deceased filed the suit for permanent injunction against the 7th accused and his wife from interfering with his possession and enjoyment of the land situate east of Udumalpet-Chencherimalai Road. It is in the evidence that the 7th accused was claiming right to take cart, men and animals through the land of the deceased from east to west to have an easy access to the said road and therefore, there had been enmity between the deceased and the 7th accused. It is in these circumstances, the learned Additional Public Prosecutor has pointed out that there had been clear motive on the part of the accused to commit the offences. It is also urged on behalf of the accused that there was a cart track existing from the eastern border of the land of the deceased which had been obliterated prior to the occurrence by the deceased. Hence, there is every reason for us to render a finding that the accused had sufficient motive as against the deceased party prior to the occurrence.

10. The accused 3 and 4 also claimed to have sustained injuries in the same occurrence. The prosecution has established by means of M. Os.9 to 12, blood stained Plaster, sample Plaster, earth with some stone, and sample earth respectively seized under cover of mahazar, Ex.P-4 from the place of occurrence as well as Ex.P-24, Chemical Examiner' s report and Ex.P-25, Serologist's report that the occurrence taken place within the land of the deceased in front of his house. P.Ws.1 to 4 have spoken to the sequence of events which led to the death of the deceased and sustaining of injuries by the witnesses in the occurrence. According to them, accused 1 and 2 inflicted blows on the head of the deceased with the sticks, M.Os.1 and 2 and that since the skull had fractured and brain matter protruded due to such blows inflicted by A1 and A2, the deceased died at the place of occurrence.

11. The evidence of P.W.1 is not only corroborated the averments made in the complaint, Ex.P-1, but also received corroboration from the evidence of P.Ws.2 to 4 regarding the said occurrence. Though the learned counsel for the accused has urged vehemently that the evidence of P.Ws.1 to 4 is interested for the reason that they are closely related to the deceased, we are unable to merely accept such contention for the reason of the fact that the medical evidence as seen from the testimony of P.W.8, autopsy surgeon and the post-mortem certificate, Ex.P-19 fully corroborates the version of P.Ws.1 to 4. In these circumstances, we are inclined to endorse the view of the learned Additional Public Prosecutor that the overt acts attributed to the accused 1 and 2 in this context have been proved by cogent and convincing evidence of P.Ws.1 to 4 who are none else than the witnesses present at the place of occurrence. Hence, we are of the considered view that the finding of the learned Sessions Judge with reference to the charges levelled against A1 and A2 in this respect have to be confirmed.

12. The learned Additional Public Prosecutor has also urged that the 4th accused caused injury by stabbing with M.O.4, spear on the body of the deceased and that therefore, the finding with reference to his complicity in the commission of the offences has to be confirmed. The learned counsel for the accused has pointed out with reference to Ex.P-1, complaint wherein it was not stated where exactly the injury was caused with M.O.4 by the 4th accused and pointed out the evidence of P.Ws.1 to 4 which contained contradictory versions on this aspect. While P.W.1 would contend that he did not note the part of the body of the deceased where the 4th accused caused the injury with M. O.4., P.W.2 would contend that a stab injury was caused with M.O.4 by the 4th accused on the left elbow of her husband and pleaded ignorance whether she has stated like that to the Investigating Officer at the time of the investigation. It is no doubt true that P.Ws.3 and 4 have also conceded that they are not sure of the situs of the injury caused by the 4th accused with M.O.4 on the deceased. In this connection, P.W.12, Investigating Officer has candidly admitted that P.Ws.1 to 4 have not stated where exactly on the body of the deceased A4 caused the injury with M.O.4, spear.

13. Similarly, the recovery of M.O.4, spear was made by P.W.12 only on the basis of the confession of the 7th accused, but not recovered from the 4th accused, who was alleged to have wielded the same and caused injury on the deceased and therefore we are of the firm view that a grave doubt arises in the case of the prosecution in so far as this aspect is concerned. We find from the evidence of P.W.8, Autopsy Surgeon and Ex.P-19, post-mortem certificate that our conclusion is further reaffirmed for the fact that no punctured wound or stab injury was noted by the doctor on the left elbow of the deceased. In these circumstances, we are inclined to hold that the alleged overt act attributed to the 4th accused with reference to M.O.4 is not proved beyond doubt and therefore the finding of the trial Court in this respect has to be set aside.

14. The next contention of the prosecution side is that the 3rd accused had thrown a country made bomb in front of the house of the deceased and that it exploded with loud noise. Admittedly none had been injured on account of such explosion and according to the defence version, it was the deceased who had thrown that bomb to scare the accused party. Therefore, it is urged by the defence side that if there are two versions possible on the basis of the evidence in this case, the benefit has to be extended to the accused. Moreover, it is seen that the prosecution has not examined anyone in connection with Ex.P-26 , chemical report for the explosives and Ex.P-31, sanction accorded by the Collector to launch prosecution under Section 7 of the Explosive Substances Act, 1908 and therefore, we are of the view that in the absence of any clinching evidence to prove beyond doubt that what was exploded at the time of occurrence in this case was a " explosive substance" within the definition of Section 2 of the Explosive Substances Act, 1908 and a "prohibited explosive" within the meaning of definition under Rule 2(15) of the Explosives Rules, 1983, we are unable to accept the finding of the learned Sessions Judge in this respect. Therefore, we come to the irresistible conclusion that the charge against the 3rd accused with reference to an offence under Section 3 of the Explosive Substances Act, 1908 has not been proved by the prosecution beyond reasonable doubt.

15. Though the accused 5 to 9 have been charged under Section 302 r/w. 149 I.P.C., the learned Additional Public Prosecutor has fairly conceded in his argument that the accused 7 to 9 were neither attributed with any overt act in the commission of the offence of murder of the deceased nor had they been found in the company of the other accused at the time and place of occurrence. The evidence of P.Ws.1 to 4 is also to the effect that the accused 7 to 9 who came with the cart were not seen at the place of occurrence during the relevant time and therefore, we are of the considered view that the finding rendered by the trial court with reference to the accused 5 to 9 under Section 3 02 r/w.149 I.P.C. is not supported by any evidence and therefore, the same is liable to be set aside.

16. According to P.Ws.1 and 4, they sustained injuries during the course of the occurrence at the hands of A1 who beat P.W.4 on his right shoulder and left elbow and left knee and caused injuries and in the course of the same transaction, the accused 5 and 6 caused injuries to P.W.1 with aruval and stick on the left side of head, right shoulder and left wrist and caused injuries. Their evidence is supported by P.W.7, doctor who treated both P.W.1 and P.W.4 on the date of the occurrence at 12.25 P.M. and 12.30 P.M. respectively. It is seen from the evidence of P.W.1 and P.W.4 that both told at the time of treatment that they were attacked by known persons.

17. Similarly, P.Ws.2 and 3 have also contended in their evidence that they were attacked by A3 and A6 with hands and stick respectively and thereby they sustained injuries. Their evidence is corroborated by P.W.7, doctor who treated both P.Ws.2 and 3 on the date of occurrence itself at 7.40 P.M. and 7.50 P.M. respectively. Exs.P-10 to P-13 are the accident register copies issued for treatment of P.Ws.1 to 4

and P.W.7 has opined that all of them have sustained simple injuries. Therefore we agree with the contention of the learned Additional Public Prosecutor that in view of the evidence of P.Ws.1 to 4 corroborated by the medical evidence, the conviction and sentence imposed by the trial Court against A1, A5 and A6 under Section 324 I.P. C. and against A3 under Section 323 I.P.C. has to be confirmed. In so far as the charge under Section 324 r/w. 149 I.P.C. with reference to the other accused, we find that the same has not been proved by the prosecution beyond doubt and therefore, the finding with reference to such charges against the other accused has to be reversed.

18. The evidence of P.Ws.1 to 4 and the records such as the observation mahazar, Ex.P-3 coupled with the evidence of P.W.12, the Investigating Officer would go to show and prove that the accused 1 to 6 have committed damages to the household articles inside the house of the deceased and since such charge has been proved beyond doubt, we are of the opinion that the finding under Section 427 I.P.C. as against A1 to A6 rendered by the trial Court has to be confirmed. As has been held above, the complicity of the accused 7 to 9 in the commission of the offences has not been proved and hence we find that they have to be exonerated of the charge under Section 427 r/w. 149 I.P.C. and consequently, the finding of the trial Court in this respect has to be reversed.

19. The learned counsel for the accused has argued vehemently that since the prosecution has miserably failed to explain the injuries found on A3 and A4 as per the evidence of P.W.7 who treated them on the date of the occurrence itself and the accident register copies issued to them under Exs.P-15 and P-16 respectively, the very genesis of the prosecution case is shrouded with grave suspicion and that therefore, the accused have to be given the benefit of doubt and exonerated of the charges levelled against them. They have cited the decisions, LAKSHMI SINGH v. STATE OF BIHAR (1976 CRL.L.J. 1736) and SUBRAMANI v. STATE OF T.N. (2002 S.C.C. (CRI) 1659), in support of their contentions. On the contrary, the learned Additional Public Prosecutor has argued and in our opinion rightly that since the occurrence in this case took place in the land of the deceased just in front of his house. Inasmuch as the accused party are the aggressors who trespassed into the land of the deceased, the ratio of the said decisions is not applicable to the facts of this case.

20. Similarly, he has urged that in this case on the basis of the complaint given by A3, a case was registered in Cr.No.21/92 of Kamanaickenpalayam police station (vide) Ex.P-28 and the same was investigated and ultimately closed and referred to as mistake of fact and therefore he has urged that the injuries on the accused had been properly explained by the prosecution. It is in the evidence of P.W.12, the Investigating Officer that on the basis of the complaint given by A3 with reference to the injuries sustained by him and A4 in the same transaction, he investigated the case and referred the same as mistake of fact and also served the referred notice under Ex.P-32 to the 3rd accused. As has been rightly argued by the learned Additional Public Prosecutor, the accused have not produced any document to show that they have protested against the said notice and filed any private complaint against the deceased party in any Court.

21. On the facts also, it is seen from the decision, 1976 CRL.L.J. 1 736 cited by the learned counsel for the accused that the occurrence in that case took place in the land of the accused, as the prosecution party trespassed into the same and caused damages, that the deceased was assaulted by the accused party in self-defence, that there had been grievous and serious injuries sustained by the accused and that only a solitary injury was found on the person of the deceased. Similarly, in the other case cited in TAKHAH HIRAH v. THAKORE KUBERSING CHAMANSING (2001 S.C.C. (CRI) 1070), it is seen that the injury on the accused is serious in nature, that the occurrence took place in the village play ground and that one of the accused sustained several injuries of which two were incised wounds and one was a fracture on a finger.

22. Hence, the learned Additional Public Prosecutor has pointed out the facts of this case in contra distinction to the facts involved in the cases referred to above. He has also drawn our attention to the decision, STATE OF GUJARAT v. BAI FATIMA (AIR 1975 S.C. 1478) which has been followed in 1976 CRL.L.J. 1736 and 2001 S.C.C. (CRI) 1070 in support of his contention that in view of the peculiar facts and circumstance involved in this case, the prosecution has satisfactorily explained the injuries on the accused 3 and 4 and therefore the prosecution has proved the guilt of the accused beyond doubt.

23. Having regard to the above facts and circumstances of the case in the light of the evidence adduced by the prosecution, we are inclined to accept his argument and hold accordingly that the prosecution has established the charge under Section 302 I.P.C. against the accused 1 and 2, and also proved the charge under Section 324 I.P.C. against A1 and A5 and against A6 under Section 324 I.P.c. (2 counts) and the charge under Section 323 I.P.C. against accused A3. Similarly, having regard to the fact that A5 and A6 have already undergone imprisonment for more than 1-1/2 years, we are inclined to hold that the said imprisonment is sufficient in so far as the sentence under Sections 324 I.P.C. as against them. Further, in view of the fact that A3 already undergone the substantive sentence imposed by the trial court under Section 323 I.P.C., we hold that the sentence undergone by him is sufficient.

24. Thus, the appeal as against the accused 1 and 2 is dismissed. The judgment of conviction and sentence as against A1 and A2 under Section 302 I.P.C. and under Sections 148 and 427 I.P.C and as against A1 under Section 324 I.P.C. rendered by the trial Court are confirmed and the trial Court is directed to take steps to commit them to prison to undergo the remaining period of the sentence.

The appeal as against A3 to A9 is partly allowed. The conviction under Sections 147 and 148 I.P.C. as against A7 to A9 and A3 respectively and the consequent sentence imposed by the trial Court in respect of the said charges against them are set aside. Instead, A3 is found guilty under Section 147 I.P.C. and A4 to A6 are held guilty under Section 148 I.P.C. and convicted and sentenced to the imprisonment already undergone by them as the same is held as sufficient in this respect. Similarly, the conviction under Section 302 I.P.C. in so far as A3

and A4 and under Section 302 r/w.149 I.P.C. in so far as A5 to A9 are concerned and the consequent sentence passed by the trial Court are set aside. The conviction under Sections 324 r/w. 149 I.P.C. (2 counts) with reference to A1 to A5 and A7 to A9 and the sentence imposed thereunder are set aside. So also, the conviction and sentence against A2 to A4 and A6 to A9 under Section 324 r/w. 149 I.P.C. (2 counts) and under Section 323 r/w. 149 I.P.C. as against A1, A2, and A4 to A9 and as against A7 to A9 under Section 427 r/w. 149 I.P.C. and under Section 3 of the Explosive Substances Act as against A3 are also set aside. Instead, A3 is found guilty under Section 323 I.P.C., A5 and A6 are found guilty under Section 324 I.P.C. and 324 I.P.C. (2 counts) respectively and A3 to A6 are found guilty under Section 427 I.P.C., and therefore, their conviction and sentence of fine imposed by the trial Court is confirmed with modification regarding the sentence of imprisonment that the one they had already undergone is held sufficient in the circumstances of the case.

The fine amounts paid in respect of the conviction and sentence set aside as above are ordered to be refunded to the respective accused. Since A3 to A6 have already paid the fine and served the sentence which has been held by this court as sufficient in the circumstances of the case, their bail bonds and the bail bonds of A7 to A9 are ordered to be cancelled.

Index: Yes

Website: Yes

dpp

To

1. The I Additional Sessions Judge, Coimbatore. 2. -do- through the Principal Sessions Judge, Coimbatore. 3. The Judicial Magistrate, Palladam.

4. -do- through the Chief Judicial Magistrate, Coimbatore. 5. The District Collector, Coimbatore.

6. The Director General of Police, Chennai.

7. The Superintendent, Central Prison, Coimbatore. 8. The Public Prosecutor, High Court, Chennai.

9. The Inspector of Police,Kamanaikenpalayam Police Station, Coimbatore District.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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