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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.
———————–
14

 

 

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