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Thursday, August 22, 2013

Section 302 read with Section 34, Section 120-B and Section 342 IPC - This appeal is directed against the judgment and order dated 15.03.2007 passed by the High Court of Judicature at Madras in Criminal Appeal No. 963 of 2005 whereby the Division Bench of the High Court disposed of the appeal by acquitting A4 to A6 and confirmed the order of conviction and sentence dated 27.10.2005 in respect of A1 to A3 passed by the Additional District Sessions Judge, Salem in Sessions Case No. 254 of 2004.= As rightly observed by the High Court, inasmuch as in the earliest document, namely, the complaint, there is a specific reference to the involvement and role of the appellants including A-1 supported by the evidence of PWs 2 & 3 and the name of PW-3 has also been mentioned in the accident register (Ex. P-18), there is no valid reason to reject the evidence of eye-witnesses, viz., PWs 2 & 3. No doubt, there were some variations in the statements of PWs 2 & 3 and the Investigating Officer (PW- 14), however, when the variations are negligible about making of the complaint, taking note of the assertion of PWs 2 and 3 and various injuries inflicted on Babu, we concur with the conclusion arrived at by the High Court in accepting their evidence (PWs 2 & 3) on all aspects insofar as A-1 to A-3. Inasmuch as the prosecution has established the motive for the commission of offence, the evidence of PWs 2 & 3 are acceptable insofar as the involvement of A-2 and A-3 in the crime in question is concerned. In view of the presence of PW-3, which is also noted in the Accident Register (Exh. P-18) and of the fact that the contradictions are minor in nature, we agree with the conclusion arrived at by the High Court. Consequently, we reject all the arguments advanced by learned senior counsel for the appellants. 14) In the light of the above discussion, we do not find any merit in the appeal, consequently, the same is dismissed.

                         published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40677
            REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO. 1839 OF 2009





Raja @ Sasikumar & Anr.                       …..Appellant(s)

            Versus

State through Inspector of Police               .... Respondent(s)



                                      2


                                      3

                               J U D G M E N T




P.Sathasivam,CJI.

1)     This  appeal  is  directed  against  the  judgment  and  order  dated
15.03.2007 passed by the High Court of  Judicature  at  Madras  in  Criminal
Appeal No. 963 of  2005  whereby  the  Division  Bench  of  the  High  Court
disposed of the appeal by acquitting A4 to A6 and  confirmed  the  order  of
conviction and sentence dated 27.10.2005 in respect of A1 to  A3  passed  by
the Additional District Sessions Judge, Salem in Sessions Case  No.  254  of
2004.
2)    The facts and circumstances giving rise to this appeal are as under:
(a)   This case relates to the death of one person by name Babu  -  resident
of Kullaveeranpatti, Mettur, Tamil Nadu.  One  Arumugam@Arupaiyan,  who  was
working as a car driver at Sadurangadi, Mettur, was having  an  affair  with
one Chitra (PW-6), who,  at  the  relevant  time,  was  working  at  Krishna
Medicals.  One Palanichami, who was working as a car  cleaner,  too  was  in
love with her.
(b)    When  Chitra  informed  Arumugam@Arupaiyan  about   Palanichami,   he
confronted the cleaner and when the driver of the  car-Senthil  (A-7)  asked
him as to why he confronted him, Arumugam@Arupaiyan started beating  Senthil
which resulted in enmity  between  A-7  and  Arumugam@Arupaiyan.   A-7  also
developed  grudge   against   one   Babu   –   the   deceased,   friend   of
Arumugam@Arupaiyan, who also helped him during the  abovesaid  incident  and
even at one point of time, when both the groups were fighting,  A-7  shouted
at him that he (A-7) will not spare him at any cost.
(c)    On 18.04.2001, when Babu was trying  to  start  his  motorcycle,  the
accused   persons,   viz.,   Saravanan    (A-1),    Raja@Sasikumar    (A-2),
Natesan@Natarajan (A-3),  Karthik  (A-4),  Chandran@Chandramohan  (A-5)  and
Sakthivel (A-6), intercepted him and prevented him from going  further  from
that spot and A-1 inflicted a  sickle  blow  on  his  hand.    In  order  to
escape, Babu went inside the shed of one Sengodan (PW-3), but A-1,  A-2  and
A-3 also went inside that shed and inflicted cuts  on  him  indiscriminately
as a result of which  he  fell  down  and  the  accused  persons  fled  away
assuming that he was dead.
(d)   Babu was immediately taken to  the  Government  Hospital,  Mettur  for
treatment by one Radhakrishnan (PW-2) and Sengodan (PW-3) but  he  succumbed
to his injuries.   Radhakrishnan  (PW-2)  lodged  a  complaint  against  the
accused persons with the Police Station, Mettur which was registered as  FIR
No. 402 of 2001 under Section 302 of the Indian Penal Code, 1860  (in  short
‘the IPC’).

(e)   After investigation, charges were framed against all the  above  named
accused persons including Senthil (A-7) under Section 302 read with  Section
34, Section 120-B and Section 342 IPC and the  case  was  committed  to  the
Court of the Additional District Sessions Judge, Salem and was  numbered  as
Sessions Case No. 254 of 2004.  The Additional District Sessions  Judge,  by
order  dated  27.10.2005,  sentenced  A-1  to   A-6   to   suffer   rigorous
imprisonment (RI) for 6 months for the offence punishable under Section  342
of IPC and imprisonment for life for the offence  punishable  under  Section
302 read with Section 34 IPC along with a  fine  of  Rs.  1,000/-  each,  in
default, to further undergo RI for 3  months.   However,  A-1  to  A-7  were
acquitted under Section 120-B IPC and A-7 was acquitted of all the  charges.

(f)   Being aggrieved of the  order  dated  27.10.2005,  A-1  to  A-6  filed
Criminal Appeal No. 963 of 2005 before the High Court.  The  Division  Bench
of the High Court, by order dated 15.03.2007,  disposed  of  the  appeal  by
acquitting A-4 to A-6 while sustaining the conviction and  sentence  of  A-1
to A-3.
(g)   Being aggrieved by the order of  the  High  Court,  A-2  and  A-3  has
preferred this appeal by way of special leave before this Court.
3)    Heard Mr. V. Kanagaraj, learned senior  counsel  for  the  appellants-
accused and Mr. M. Yogesh Kanna, learned counsel for the respondent-State.
Contentions:
4)    Mr. V. Kanagaraj, learned senior counsel for the appellants  submitted
that the evidence of eye-witnesses, viz., PWs 2 & 3, read with the  evidence
of other prosecution witnesses, creates  a  doubt  about  the  case  of  the
prosecution,  hence,  the  conviction  based  on  such  evidence  cannot  be
sustained.  He also submitted that inasmuch  as  Kasinathan  (PW-14)  -  the
Investigating Officer has stated in his evidence that he  examined  PW-3  on
20.04.2001 and PW-3 in  his  evidence  before  the  Court  contradicted  his
statement that the police never examined him, the evidence of  PW-3  has  to
be disbelieved in toto.  He also pointed out that with regard to the  actual
place of occurrence, the evidence of PWs 2 and  3  contradicts  each  other,
therefore, it is not safe to rely upon their evidence.  He  further  pointed
out that both PWs 2 and 3, could not identify the  weapon  and  this  aspect
was also not considered by the High Court.  He also submitted  that  as  per
the evidence of PW-2, he has given only oral  complaint  which  was  reduced
into writing by the police and was attested by  one  Maheswaran  whereas  as
per the Investigating Officer (PW-14), PW-2 has given  a  written  complaint
and the same was registered and not attested by  the  aforesaid  person.  In
such circumstance, learned senior counsel submitted that it is not  safe  to
rely upon  the  case  of  the  prosecution.   He  also  submitted  that  the
prosecution failed to  establish  the  motive,  i.e.,  the  love  affair  by
examining Arumugam@Arupaiyan and Palanichami.  The said two  persons  having
enmity between them and the deceased alleged  to  have  died  on  supporting
Arumugam@Arupaiyan  and  the  accused  persons  alleged  to  have  supported
Palanichami.
5)    On  the  other  hand,  Mr.  Yogesh  Kanna,  learned  counsel  for  the
respondent-State submitted that the prosecution has  fully  established  the
motive  for  the  crime.   He  also  pointed  out  that  the  courts  below,
particularly, the High Court, rightly relied on the evidence of  PWs  2  and
3, who witnessed the incident and convicted the appellants herein.  He  also
pointed out that PW-2, being the author of the complaint (Exh.  P-1),  there
is no reason to disbelieve his statement.  He further highlighted  that  PWs
2 and 3 were the persons who brought the injured to the hospital  within  20
minutes after the occurrence and the presence of PW-3  was  also  proved  by
marking a copy of the Accident Register dated 18.04.2001 as Exh.  P.-18.  He
finally submitted that due to minor contradictions in the  evidence  of  the
prosecution witnesses, the entire prosecution case cannot be thrown out.
6)    We have carefully considered the rival  contentions  and  perused  the
relevant materials.
Discussion:
7)    It is not in dispute that out of 7 accused,  the  conviction  relating
to A-1 to A-3 was confirmed  by  the  High  Court  and  A-2  and  A-3  alone
preferred this appeal, therefore,  we  are  concerned  about  the  role  and
involvement of A-2 and A-3 in the commission of the crime  as  projected  by
the prosecution.  Though the prosecution has examined PWs 2  to  5  as  eye-
witnesses to the crime, the High Court itself has disbelieved  the  evidence
of PWs 4 and 5 and the entire prosecution case rests upon  the  evidence  of
PWs 2  and  3.   We  are  conscious  of  the  fact  that  relying  upon  the
prosecution witnesses, the High Court set aside the conviction of A-4 to  A-
6 in toto and acquitted them.  It is also relevant to  point  out  that  the
High Court took note of the general principle that if the  prosecution  case
is the same against all the accused or with regard to some  of  the  accused
on the same set of evidence available on record with  reference  to  any  of
the accused, then   the  Court  would  not  be  committing  any  mistake  in
acquitting all the accused and conversely, if  it  is  possible  to  do  so,
namely, to remove  the  chaff  from  the  grain,  the  Court  would  not  be
committing any mistake in sustaining the prosecution case against  whom  the
evidence is shown to be intact.
8)    It is true that in the earliest information, there  was  no  reference
to the presence of PWs 2 to 5.  In other words, their  names  did  not  find
place in the complaint (Exh. P-1).  As rightly observed by the  High  Court,
there is no need to mention all the details  graphically  in  the  complaint
and it depends upon so many factors such as condition of  the  injured  etc.
It is also not in dispute that the incident occurred on 18.04.2001  at  8.20
p.m.  Inasmuch as PWs 4 & 5 were examined by the Investigating Officer  only
on 20.04.2001, there were vast inconsistencies in  noting  the  presence  of
the accused at the  scene  of  occurrence  as  well  as  in  the  number  of
assailants at the earliest point of time and  the  High  Court  has  rightly
disbelieved the version of PWs  4  &  5.   If  there  is  any  tangible  and
acceptable material from the evidence  of  PWs  2  and  3  in  the  earliest
information, i.e., the complaint (Exh. P-1), which is believable,  there  is
no reason to reject the case of the prosecution insofar  as  the  appellants
are concerned.
9)    A perusal of the FIR (Exh. P-19) discloses that the incident  occurred
on 18.04.2001 at 8.20 p.m. and the information was received  by  the  Police
Station, Mettur at 10.00 p.m. on the same day itself and an  FIR  being  No.
402  of  2001  was  registered  based  on  the  written  complaint  by   the
complainant-Radhakrishnan (PW-2).  It is stated that one  Arumugam@Arupaiyan
was his friend and he was having an affair with one Chitra  (PW-6),  who  at
the relevant time was working at Krishna Medicals.  Another person, by  name
Palanichami, who was working as a car cleaner, too was  in  love  with  her.
It is further stated that Arupaiyan confronted the  said  cleaner  and  when
the driver of the car, viz., Senthil (A-7) questioned  the  same,  Arupaiyan
had beaten Senthil.  Based  on  the  said  incident,  the  accused  persons,
including the present appellants, threatened the deceased and  his  persons.
In the said complaint, PW-2 has made a specific reference about the role  of
A-1, A-2 and A-3.  It is also asserted that it was A-1 to A-3 who  inflicted
cut injuries on Babu (the deceased). The complainant has  also  stated  that
with the aid of one Sengodan (PW-3), he  admitted  Babu  in  the  Government
Hospital at Mettur for treatment but in spite of the same, he  succumbed  to
the injuries.  The same has  been  endorsed  by  the  Inspector,  Mettur  on
18.04.2001 at 2130 hrs. at  Government  Hospital,  Mettur  and  a  case  was
registered in Mettur  PS  Crime  No.  402/2001  under  Section  302  IPC  on
18.04.2001  at  2200  hrs.   It  is  clear  from  the  complaint  that   the
complainant (PW-2) has implicated A-1 to A-3 (A-2 & A-3 are  the  appellants
herein) and specifically stated that they  are  the  persons  who  inflicted
fatal injuries on Babu  (the  deceased).   There  was  no  delay  in  making
complaint and the same was duly registered by the police.
10)   Insofar as the evidence of PW-2 is concerned, he is  also  a  resident
of Kullaveerampatti in Mettur.  In his evidence, he  deposed  that  he  knew
all the accused persons and on 18.04.2001 when he and  Babu  (the  deceased)
were on election duty, they parked their Bullet  Motor  Cycle  in  front  of
Sengodan’s Lathe Shed near  Navapatti  Agricultural  Cooperative  Bank  and,
thereafter, they went for the  election  work.   When  they  returned  after
completing their work, at that time, suddenly, 5 persons came from the  west
main road and attacked on the  back  of  Babu.   Immediately,  in  order  to
escape, Babu ran inside the Lathe Shed of  Sengodan  (PW-3).   In  the  open
Court, PW-2 identified A-2 and  A-3  correctly.   He  further  deposed  that
after inflicting cut injuries to Babu, they ran towards  the  South  of  the
Lathe Shed.  Thereafter, PWs 2 & 3 went inside the Lathe Shed and  saw  that
Babu was lying in a pool of blood and struggling for life.  They  took  Babu
in an auto-rickshaw and admitted him in a  Hospital  where  Doctor  informed
them that Babu has died.  The injuries of all other aspects have been  noted
in the Accident Register and a copy of the same has been marked as  Exh.  P-
18.   Though Shri R. Raju,  the  Doctor  who  issued  Exh.  P-18,  i.e.  the
Accident Register,  has  not  been  examined,  all  the  details  have  been
explained by the Doctor who conducted the post mortem on  the  body  of  the
deceased.  It is also noted that PW-3  was  also  present  in  the  hospital
along with PW-2.
11)   Deposition of Sengodan (PW-3) shows that  he  was  also  a  native  of
Kullaveerampatti  in  Mettur.   He  also  narrated   the   entire   incident
implicating  A-1  to  A-3.   He  deposed  before  the  court   as   to   how
Radhakrishnan (PW-2) came to the spot along with  Babu  (the  deceased)  and
how he was  attacked  by  A-1  to  A-3.   He  also  mentioned  that  it  was
Radhakrishnan (PW-2) who took the deceased  to  the  Hospital  in  an  auto-
rickshaw along with him.
12)   As rightly observed by the High Court, inasmuch  as  in  the  earliest document, namely, the complaint,  there  is  a  specific  reference  to  the involvement and role of  the  appellants  including  A-1  supported  by  the evidence of PWs 2 & 3 and the name of PW-3 has also been  mentioned  in  the accident register (Ex. P-18),  there  is  no  valid  reason  to  reject  the evidence of eye-witnesses, viz., PWs 2 &  3. 
  No  doubt,  there  were  some
variations in the statements of PWs 2 & 3 and the Investigating Officer (PW-
14), however, when  the  variations  are  negligible  about  making  of  the
complaint, taking note of the assertion of PWs 2 and 3 and various  injuries
inflicted on Babu, we concur with the conclusion  arrived  at  by  the  High
Court in accepting their evidence (PWs 2 & 3) on all aspects insofar as  A-1
to A-3.
13)   Inasmuch as  the  prosecution  has  established  the  motive  for  the
commission of offence, the evidence of PWs 2 & 3 are acceptable  insofar  as
the involvement of A-2 and A-3 in the crime in question  is  concerned.   In
view of the presence of PW-3, which is also noted in the  Accident  Register
(Exh. P-18) and of the fact that the contradictions are minor in nature,  we
agree with the conclusion arrived at by the High  Court.   Consequently,  we
reject all  the  arguments  advanced  by  learned  senior  counsel  for  the
appellants.


14)    In the light of the above discussion, we do not  find  any  merit  in
the appeal, consequently, the same is dismissed.



                                    ……...…………………………CJI.


                                       (P. SATHASIVAM)




























                                    ………….…………………………J.


                                      (RANJAN GOGOI)
NEW DELHI;
AUGUST 22, 2013.
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