Crl.A.(MD)Nos.139 of 2020 etc. batch

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date of Reserving the JudgmentDate of Pronouncing the Judgment

12.03.2024 28.03.2024

CORAM:

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

and

THE HONOURABLE MR.JUSTICE C.KUMARAPPAN

Crl.A.(MD)Nos.139, 148, 187, 188, 194, 224, 240, 250, 255 & 265 of 2020 &

74 of 2021

Veerabathran .. Appellant in Crl.A.(MD)No.139 of 2020 / A13

K.Selvaraj .. Appellant in Crl.A.(MD)No.148 of 2020 / A16

Ramayee .. Appellant in Crl.A.(MD)No.187 of 2020 / A12

Rathi .. Appellant in Crl.A.(MD)No.188 of 2020 / A11

B.Prabhu .. Appellant in Crl.A.(MD)No.194 of 2020 / A9

M.Pandivel

M.Veerabathran

C.Pazhaniyandi

R.Muthupandi .. Appellants in Crl.A.(MD)No.224 of 2020 /

A2, A3, A7 and A10

Muniyandi, S/o.Palaniyandi .. Appellant in Crl.A.(MD)No.240 of 2020 / A6

Muniyandi,

S/o.Kuruvi @ Veerapathiran .. Appellant in Crl.A.(MD)No.250 of 2020 / A4

Azhagu Pandi .. Appellant in Crl.A.(MD)No.255 of 2020 / A5

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Poojaimani

Rajangam .. Appellants in Crl.A.(MD)No.265 of 2020 /

A1 & A8

Michael @ Muniyandichamy .. Appellant in Crl.A.(MD)No.74 of 2021 / A14

vs.

State through:-

The Inspector of Police,

Thirupachethi Police Station,

Sivagangai District.

(Crime No.124 / 2010) ... Respondent in all the Crl.As. / Complainant

Prayer in all the Crl.As. : Criminal Appeals filed under Section 374 of Cr.P.C.,

to call for the records relating to the judgment in S.C.No.105 of 2012, dated

27.02.2020, on the file of the Principal Sessions Court, Sivagangai, set aside the

same and allow the Criminal Appeals and acquit the appellants/accused.

For Appellant

in Crl.A.(MD)Nos.139 & 148 of 2020 : Mr.R.Venkatesan

For Appellants

in Crl.A.(MD)Nos.187, 250 &

265 of 2020 and 74 of 2021 &

For Appellants 2 and 3

in Crl.A.(MD)No.224 of 2020 : Mr.Abudukumar Rajarathinam

Senior Counsel

for Mr.R.Udhayakumar

For Appellant

in Crl.A.(MD)No.188 of 2020 &

For 1

st

Appellant

in Crl.A.(MD)No.224 of 2020 : Mr.P.Andiraj

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For 4

th

Appellant

in Crl.A.(MD)No.224 of 2020 : Mr.R.Gandhi

Senior Counsel

for Mr.R.Udhayakumar

For Appellant

in Crl.A.(MD)No.194 of 2020 : Mr.S.Ramsundarvijayraj

for M/s.Veera Associates

For Appellant

in Crl.A.(MD)No.240 of 2020 : Mr.A.K.Samidurai

for Mr.M.Dinesh Hari

For Appellant

in Crl.A.(MD)No.255 of 2020 : Mr.N.Anantha Padmanabhan

Senior Counsel

for Mr.R.Srinivasan

For Respondent in all the Crl.As. : Mr.S.Ravi

Additional Public Prosecutor

COMMON JUDGMENT

DR.G.JAYACHANDRAN, J.

and

C.KUMARAPPAN, J.

These batch of Criminal Appeals are by Accused Nos.1 to 14 and 16 in S.C.

105 of 2012, on the file of the Principal Sessions Court, Sivagangai.

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2. The case of the prosecution is that, due to previous enmity, on

30.08.2010, at about 02.30 p.m., an armed gang consists of 18 members

assembled unlawfully and in furtherance of common object, caused death of one

Allimuthu. They also caused grievous injuries to Chandrakumar [P.W.1] and

Sureshkumar [P.W.2] and simple injuries to Pandi [P.W.3] and Mathi @

Mathiyazhagan [P.W.4].

3. At the time of framing charges, the first accused Sekar was absconding.

Hence, the case against him was split up. Later, he died and the case against him

got abated. Pending trial, yet another accused by name, Karupaiah (A17) died.

The trial Court, in the course of trial, on completion of examining the witnesses

on either side, rearranged the ranks of the accused and also altered the charges as

below:-

A-1, A-4, A-7, A-8, A-10, A-11, A-13,

A-14, A-15 and A-16

Section 148, 324 r/w 149 I.P.C.

(2 counts), 326 r/w 149 I.P.C. (2

counts) and Section 302 r/w 149 I.P.C.

A-2, A-3, A-5, A-6, A-9 and A-12

Section 147, 324 r/w 149 I.P.C.

(2 counts), 326 r/w 149 I.P.C. (2

counts) and 302 r/w 149 I.P.C.

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4. The trial Court on considering 21 prosecution witnesses, one defence

witness, 77 exhibits and 13 material objects, held all the 16 accused guilty of the

offences charged and sentenced them as below:-

A-1 to A-16

Section 302 r/w 149

I.P.C.

Section 326 r/w 149

I.P.C. (2 counts)

324 r/w 149 I.P.C.

(2 counts)

Life imprisonment with fine of Rs.2,000/-,

in default, to undergo three months

rigorous imprisonment.

Three years rigorous imprisonment with

fine of Rs.1,000/-, in default, to undergo

three months rigorous imprisonment for

each counts.

Two years rigorous imprisonment with

fine of Rs.1,000/-, in default, to undergo

three months rigorous imprisonment for

each counts.

A-2, A-3, A-5

A-6, A-9 &

A-12

Section 147 I.P.C.Two years rigorous imprisonment with

fine of Rs.1,000/-, in default, to undergo

three months rigorous imprisonment.

A-1, A-4, A-7,

A-8, A-10,

A-11 & A-13

to A-16

Section 148 I.P.C.Three years rigorous imprisonment with

fine of Rs.1,000/-, in default, to undergo

three months rigorous imprisonment.

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The period of imprisonment already undergone by A1 to A16 during the trial, is to

be set off under Section 428 of Cr.P.C. The sentences were ordered to run

concurrently. Pending appeal, Ganesan (A15) died, hence, the appeal [Crl.A.

(MD)No.211 of 2020] filed by him was dismissed as abated on 31.10.2023.

5. The substance of charges based on the final report :-

The incident happened at Avarankadu Subbiahpuram Village within

the jurisdiction of Thiruppachethi Police Station, Sivagangai. It is a practise of

the farmers of that area, to request goat herders to shelter their goats in their land

between harvest and next sowing for reclaiming the fertility of the land. Likewise,

during the month of September, 2010, Malaichamy, the goat herder [P.W.9]

camped his goats in the land of Muniyandi (A4) at Avarankadu. It is alleged that

Muniyandi instructed Malaichamy not to shelter his goat in the land of

Chandrakumar. So, when Chandrakumar requested Malaichamy to shelter his

goat in his land, he refused and also informed that Muniyandi (A4) had told him

not to shelter his goat in the land of Chandrakumar. Hence, on 30.09.2010 at

about 10.00 a.m., Chandrakumar went to the house of Muniyandi and picked

quarrel why he is preventing Malaichami from camping his goat in his land. In

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continuation of this incident, at about 02.30 p.m., when P.W.1 to P.W.5 were

discussing with Allimuthu in front of the ration shop, The appellants along with

Sekar (deceased) and Karuppaiah (deceased) armed with weapons, like spear

(velkambu), Knife (Kathi) and billhook (Aruval) came to the spot.

(i) A-3 and A-4 caught hold of Allimuthu.

(ii) Sekar (since deceased) stabbed Allimuthu with spear on the stomach.

(iii) A2 attacked Allimuthu with Knife on the jaw and chest.

(iv) A9 stabbed Allimuthu with Knife on the right hand little finger.

(v) When P.W.1 to P.W.5 tried to rescue Allimuthu, A10 caught hold P.W.1

and A11 attacked P.W.1 with Aruval on the left forearm and caused grievous

injury.

(vi) A8 attacked P.W.1 with Aruval and caused simple injury on the right

index finger.

(vii) A5 attacked P.W.2 with Aruval caused simple injury on the right

thumb, near the wrist.

(viii) A14 attacked P.W.2 with Aruval on the right shoulder twice and

caused grievous injuries to P.W.2.

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(ix) A13 caught hold of P.W.4 and A12 attacked P.W.4 with Knife on left

thumb and caused simple injury.

(x) A15 attacked P.W.5 with Knife and caused simple injury on her

stomach.

(xi) A16 attacked P.W.3 with Aruval on the head and caused simple injury.

(xii) A17 attacked P.W.3 with Aruval on the left hand thumb finger and

index finger and caused simple injuries.

(xiii) A18 attacked P.W.3 with Aruval on the right jaw caused simple injury.

[Here the naming of the accused is as per the original charge before deleting the

name of Sekar and Karuppaiah]

6. Case of the prosecution as spoken by the witnesses for prosecution:-

(i) P.W.1 to P.W.5 had deposed about the occurrence, the overt act of

each of the accused and the weapon used by them and the injuries sustained. They

all consistently had deposed that each of them saw Sekar, S/o.Muniyandi stab

Allimuthu with Velkambu (spear). The said spear was identified by P.W.1 and

marked as M.O.12.

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(ii) For the injuries caused on P.W.2 to P.W.4, the prosecution has

relied on the ocular evidence of the respective victims and corroboration by the

other witnesses and the wound certificates given by doctor at Meenaskhi Mission

Hosptial at Madurai.

(iii) Since there is no evidence for the injuries alleged to have

sustained by P.W.5, who had deposed that she was present at the spot and

sustained injury on her abdomen when A15 attacked her with Knife, her case to

that extent, not considered by the trial Court while re-framing the charges.

(iv) Apart from these 5 witnesses, rest of the prosecution witnesses,

had not said anything much in support of the prosecution.

(v) P.W.6 is the salesman of the Ration Shop. According to the

prosecution, he was present in the Shop when the incident took place at about 20

feet away from the Shop. He turned hostile. P.W.7, P.W.9 and P.W.10 had deposed

that they came to the spot after hearing the commotion and saw the injured

persons. P.W.11 and P.W.12 are the V.A.O. and his Assistant. They are the

witnesses for recovery and confession. They both turned hostile, except

identifying their signatures in the Recovery Mahazars.

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(vi) P.W.13 is the doctor, who had deposed about the wound

certificate (Ex.P43) issued to P.W.4 Mathi. P.W.15 is the doctor, who is

acquaintance with the handwriting of Dr.Deenadayaparan, who gave the wound

certificate for the injured Pandi (P.W.3) and injured Chandrakumar (P.W.1). The

wound certificates are marked as Ex.P47 and Ex.P48, respectively. P.W.16 is the

doctor, who conducted autopsy on Allimuthu. The postmortem certificate is

Ex.P50. P.W.14 is the Scientific Expert, who had conducted biological

examination and serological examination of the blood stains collected from the

soil and dress materials. His Biological Report is Ex.P45. Serological Report is

Ex.P46.

(vii) P.W.18 to P.W.21 are the Policemen, who registered the F.I.R.

and carried the F.I.R. to the learned Judicial Magistrate, and investigated the case

and filed final report on completion of investigation.

7. CASE OF THE DEFENCE:-

(i) The origin of the case is totally suppressed by the prosecution.

The motive as alleged in the charge, found false from the prosecution witness

itself. P.W.9 Malichamy the goat herder had not supported the version of the

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interested witnesses regarding motive. According to P.W.9, he refused to shelter

his goats in the land of P.W.1, because, he did not pay for the previous year's

service. While so, the reason given by P.W.1 for going to the house of A4, on that

day, morning at 10.00 a.m., and later, gathering near the house of A4 and A2

along with his maternal uncle Allimuthu, aunt Thangamuthu, W/o.Thangamuthu,

his brother Sureshkumar and paternal uncle Pandi and brother-in-law Mathi @

Mathiazhagan remains unexplained.

(ii) The omission to probe the real reason for P.W.1 to pick quarrel with

Sekar, an Ex-Serviceman suffering from mental illness and the injuries on A8 as

proved by the defence through D.W.1 and Ex.D1 and Ex.D2 ought to have been

considered by the trial Court and ought to have acquitted the appellants as real

victims of crime at the hands of the aggressors.

(iii) The willful suppression of the registration of counter case in Crime

No.136 of 2010 against P.W.1 and others for assaulting Sekar (since deceased)

and Rajangam (A8). The anticipatory bail obtained would show that the

appellants were illegally prosecuted. The trial Court failed to consider the

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falsehood, contradictions and embellishments in ocular evidence. When the

evidence for prosecution is intrinsically mixed with falsehood occupying a major

portion and truth in minor portion, the principle of separating grain from chaff not

possible. Further, when it is case and case in counter, the prosecution ought to

have acted fairly following the Police Standing Order 588-A and the Criminal

Rules of Practice as per the judicial dictum.

8. Per contra, the learned Additional Public Prosecutor representing the

State submitted that the evidence of injured witnesses to be considered under high

pedestal. When the victim witnesses had deposed about the overt act of each of

the accused, proof of motive not necessary. Only in case of circumstantial

evidence, motive need to be proved. The minor contradictions between the

injured witnesses do not take away the strong evidence against the accused

persons, who have committed grave offence of murder and also grievous injuries

to two persons and simple injuries to two other persons, who all had came to

rescue Allimuthu, who was badly injured by Sekar, A2 and A9. The medical

examination of the witnesses, who sustained injuries in the melee, the weapons

recovered based on the confession statements of the accused persons when

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considered together, it will prove the guilt of the appellants/accused. The gravity

of the crime warrants severe punishment and the trial Court has rightly analysed

the evidence placed before it and concluded that the appellants are guilty of

assembling unlawfully with weapons, shared the common object to kill and

caused death of Allimuthu, caused grievous injuries to P.W.1 and P.W.2 and also

caused simple injuries to P.W.3 and P.W.4.

9. As far as the injuries found on A8, the trial Court rightly rejected it as

injuries not suffered in the same transaction. As per Ex.D1 and Ex.D2, Rajangam

(A8) had sustained the injuries at 06.00 p.m. That is after the occurrence under

consideration, in which the victims were at Hospital even before 04.30 p.m. on

30.08.2010 as per their respective Accident Registers maintained by the Hospital.

Therefore, there is no error in closing the complaint registered in Crime No.136

of 2010 as mistake of fact.

10. The learned Additional Public Prosecutor further submitted that the trial

Court has rightly observed that falsus in uno, falsus in omnibus cannot be applied

in this case, and it is for the Court to remove the chaff from the grain that is to say

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ignore the falsities and believe the truth out of the available evidence. Therefore,

ignoring the minor discrepancies regarding the weapons used by each of the

accused or the contradiction between the ocular evidence and the medical

evidence regarding injuries, will not impair the overall evidence of the

prosecution. While the incriminating evidence against the accused are

overwhelmingly to prove that all the accused have gathered with weapons sharing

a common object of causing death, conviction of all the members of the unlawful

assembly for the offence punishable under Section 302 read with Section 149

I.P.C. is legally correct.

11. The Additional Public Prosecutor also submitted that the argument

placed by the appellants' counsels that the animosity was only between P.W.1 and

A4. None of the appellants had the intention to cause the death of Allimuthu.

Therefore, the punishment under Section 149 I.P.C. is not legally sustainable is

incorrect. According to the learned Additional Public Prosecutor, to attract

Section 149 I.P.C., the members of the unlawful assembly may not be shared a

common object to cause death of any particular person. Sharing of intention to

murder is sufficient and who is the victim is not material.

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12. Heard the learned counsel on either side and perused the records.

13. According to the prosecution, the place of crime is about 20 ft. away

from the Subbiahpuram Ration Shop at Avarankadu. P.W.5, who is the wife of

Allimuthu had admitted in her cross examination that, she did not go to the shop

for purchase of any goods. P.W.6 the shop Salesman in the cross examination

admit that, on that day, he did not open the shop. He also admits that he is the

uncle son of P.W.1. It is admitted by P.W.1 in the cross examination that, he and

other witnesses are residents of Kachanatham Village, which is at least 2 Kms.

away from the ration shop. He also had admitted that the ration shop is meant for

Avarankadu Villagers and not for any other Villagers. It is elucidated from the

cross examination of P.W.1 that his uncle Muthiah's House is on entrance of

Avarankadu Village. One Kilometre from Muthaiah's house, on the south

direction, east side road, leads to Kachanatham – Maaranadu Villages split. From

there, about ½ Km. away his Village Kachanatham is located. Thus, from his

evidence, it is clear that the scene of crime is at least 2 Kilometers away from the

residence of the deceased Allimiuthu as well as the residences of P.W.1 to P.W.5.

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Whereas, the sketch marked as Ex.P52, show the residences of A2 and A4 on the

east side of the scene of crime, where the ration shop is located. Thus, it is very

evident that it was the complainant [P.W.1] and his relatives had gathered near the

accused house for the reason not probed by the Investigating Officer.

14. Further, it is suggested to P.W.1 in the cross examination that, he and

his relatives used to tease Sekar, a mentally imbalanced person. On that day, when

Sekar and A8 returning to their Village at about 01.00 p.m., P.W.1 along with

Allimuthu and others teased Sekar and caused injuries to Sekar and

Rajangam (A8). A criminal case was registered against them in Crime No.136 of

2020. They all obtained anticipatory bail in that case. This suggestion is denied

by P.W.1, except getting anticipatory bail. However, the Investigating Officer in

this case examined as P.W.21, in the cross examination, admits about the

registration of criminal case against P.W.1 and others for offence under Section

324 I.P.C. in Crime No.136 of 2010. He is unable to explain satisfactorily why he

did not pursue the investigation in that case. The learned trial Judge has said that

the Accident Register of Rajangam reveals that the attender of the patient has said

to the doctor that A8 sustained injury on the head at 06.00 p.m. on 30.08.2010

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when a known person attacked him with sickle. Therefore, this incident cannot be

connected with the earlier incident happened at 02.30 p.m.

15. If it is so, the prosecution ought to have proceeded with that complaint

independently to find out, who caused the comminuted depressed fracture on the

left parietal dural and brain laceration to A8, on that day, which has warranted 15

days inpatient treatment in the Vadamalayan Hosptials (P) Ltd., Madurai.

16. There is every reason to believe that A8 had sustained the said injury

only during the same transaction. P.W.1 to P.W.5 as well as P.W.21 [Investigating

Officer] had conveniently screened that fact from the eyes of the Court. P.W.21

the Investigating Officer, who candidly admit about the registration of another

case between the parties on the same day, had not proceeded the investigation in

that case, which is gross violation of Police Standing Order and the celebrated

judgment of this Court rendered by Mr.Justice Ramaswami in Thota

Ramakrishnayya and others vs. State [AIR 1954 Mad 442 : 1954 Cri.L.J.

610], which lead to the introduction of Police Standing Order 588-A - relied and

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followed in subsequent judgments like, Krishnamoorthi vs. State [1992 LW

(Cri.) 415 (DB)] and Venthimuthu vs. State [2007 (2) MLJ (Cri.) 405 (DB)].

17. The doubt about the truthfulness in the prosecution case gets further

amplified when the prosecution attempt to establish motive through P.W.9, failed

totally. The alleged motive, which was projected by the prosecution could not

have been looked into it or given serious consideration, as submitted by the

learned Additional Public Prosecutor, if it has not been taken as a reason for

P.W.1 to quarrel with A4, on that day, morning at 10.00 a.m. To avoid the

impression that he and his relatives were the aggressors and provokers, P.W.1 has

projected the said theory of motive. However, his fabrication of story been

exposed by P.W.9 who had categorically stated that it was P.W.1, who picked

quarrel with him as well as A4. When motive pleaded as the driving force to

commit the crime, there is necessity in law to prove it, not only in a case of

circumstantial evidence, even otherwise failure to prove motive may not be

always make the prosecution case doubtful, but if the evidence indicates

something contrary, then, the evidence of the witnesses, who claim false motive

becomes not worthy to rely.

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18. No doubt, the credibility of injured witness is to be placed on high

pedestal. However, Courts should also bear in mind that the injured witness is

also an interested witness. If his evidence suffers from apparent infirmities and

contradictions, it is not safe to rely on the injured witness alone, but the Court

should ensure adequate and sufficient corroboration from other independent

witness, not from another interested witness. So, what P.W.1 has said in this case,

ought to have been corroborated by independent witnesses. Unfortunately, in this

case, the trial Court has taken the other interested witness to corroborate the

evidence of P.W.1. P.W.2 to P.W.6 are all interested witnesses to save and shield

themselves from the counter case registered in Crime No.136 of 2010. Whereas,

the independent witnesses P.W.6, P.W.7 and P.W.10 are all hearsay witnesses.

They all had deposed that they heard commotion near ration shop and when they

came to the spot, they saw P.W.5 holding her husband Allimuthu bleeding and

other witnesses with injuries.

19. To ascertain whether all the appellants and the two deceased persons

Sekar and Karuppaiah were present at that time or to ensure whether all the

appellants were holding weapons as mentioned by P.W.1 and whether the injuries

on P.W.1 to P.W.4 were caused by the respective appellants as spoken by the

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witnesses P.W.1 to P.W.5. On cross verification with each other witnesses and the

material objects along with wound certificates, we find that their testimony found

to be suffered with falsehood besides embellishment and contradictions. The

injuries and the accused, who have caused it and the weapon used is taken into

consideration.

(1) Chandrakumar (P.W.1) :-

Wound Certificate is Ex.P48. Wounds noticed:-

(a) 10 c.m. x 8 c.m. lacerated wound exposing on the forearm.

(b) 10 c.m. x 3 c.m. lacerated wound on right hand.

(c) 2 c.m. x 2 c.m. laceration on the index finger.

Injury (a) certified as grievous and other two injuries (b) and (c) are simple

in nature.

(i) P.W.1 had deposed that he was caught hold by Palaniyandi son

Muniyandi and attacked by Muniyandi, S/o.Kuruvi @ Veerabathiran with Aruval

on the right hand and broke the hand. Palaniyandi attacked him with Aruval on

the index finger. When he tried to run, Prabu caught him and Muthupandi

attacked him twice on the left wrist.

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(ii) For three injuries on his body, this witness had embellished his

testimony by adding one more injury and implicating totally five accused. P.W.1

had identified M.O.1 as the Aruval used by Muniyandi (A4). M.O.2 as the Aruval

used by Palaniyandi (A7). M.O.3 as the Aruval used by Muthupandi (A10). If

Palaniyandi (A7) was carrying the Aruval M.O.2, how he could have caught hold

of P.W.1 or if he had shared the common intention to murder, why he had not

attacked P.W.1 with the Aruval he was carrying to cause injury?

(2) Sureshkumar (P.W.2):-

Wound certificate is Ex.P49. Injuries noticed:-

(a) 5 c.m. x 1 c.m. incised wound exposing on the right arm.

(b) 3 c.m. x 1 c.m. a lacerated injury over the thumb exposing muscle.

First injury (a) is grievous and injury (b) is simple in nature.

(i) P.W.2 had deposed that Veerabathiran, S/o.Karuppaiah attacked with

Aruval on the right shoulder while he tried to stop them spreading his both hands.

The seat of first injury differs, besides who caused the second injury on him not

explained by this witness. This omission gains significance, because one of the

accused by name, Rajangam (A8) had got admitted in the private hospital on the

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same day with comminuted depressed fracture left parietal dural and brain

laceration. This indicates both the group might have used weapons and

exchanging attack.

(3) Pandi (P.W.3):-

Wound certificate is Ex.P47. The injuries noticed:-

(a) A lacerated wound 2 x 3 c.m. on the left wrist.

(b) A lacerated wound 4 x 5 c.m. on the left side head.

(c) A stab injury on the right side thigh.

(d) injury on the left hand index finger.

(e) A lacerated wound on the left hand palm at 2 c.m.

Injuries (a) to (e) are simple in nature.

(i) According to P.W.3, he was attacked with Aruval by Ganesan (A15) on

the left side of his head. Karuppaiah (A16, since deceased) attacked him with

Aruval on left hand thumb, index finger and middle finger. Karuppaiah (A17)

attacked him with Aruval on his right thigh.

(ii) There is only one Karuppaiah among the accused. He had mentioned

two Karruppaiah, one as A16 and another as A17. Further, some of the injuries

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found on his body as per Ex.P47 does not correlate with his ocular evidence, who

caused him the other injuries, leaves a doubt that the occurrence did not happen

the manner projected by the prosecution.

(4) Mathi @ Mathiyazhagan (P.W.4): -

Wound certificate is Ex.P43. The injuries noticed :-

(a) A sutured lacerated wound anterior to left thumb of size 5 x 1 c.m.

(b) A punctured wound near the navel at skin depth.

Both the injuries are simple in nature.

(i) P.W.4 had deposed that when he was caught hold by Ramayee (A12),

Rathi (A11) attacked him with Knife causing injury on his left thumb, the weapon

touched his stomach lightly.

(ii) Thangamuthu (P.W.5) though had deposed about injury sustained by her

at the hands of Micheal @ Muniyandichamy (A14), no evidence to prove the

injury except the ocular evidence of P.W.1 to P.W.4. Her presence at the scene of

crime itself doubtful. Even if her presence is to be believed, the allegation that

A14 was present and attacked her is totally unbelievable in the absence of proof.

(5) Allimuthu [deceased]:-

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As per the doctor's evidence [P.W.16], who conducted postmortem, the

deceased Allimuthu has sustained the following external and internal injuries:-

External injuries:-

(1) A punctured wound was found in the left abdomen measuring 7 × 6 × 3

c.m. The small intestine was exposed through the wound.

(2) A punctured wound of size ½ x ½ c.m. was found in the left chest

below 5

th

intercostal space and 4

th

intercostal space.

(3) A punctured wound was found on the left jaw measuring 1 × ½ × ½

c.m.

(4) An abrasion wound was found on the left shoulder.

(5) A mild abrasion was observed on the left ankle.

(6) 1 × 1.5 c.m. punctured wound was found on the left little finger.

Internal injuries:-

(1) There was no fracture of the neck bone.

(2) Heart, liver, lung and kidney were seen with haemorrhage.

(3) A stab wound of size 6 × 4 ½ × 1 ½ c.m. was found between the 11

th

and 12

th

wounds. Due to that injury, there was a fracture in the 12

th

rib.

(4) Abdominal region was found empty.

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(5) 500 ml to 750 ml of blood was seen in the stomach.

(6) Bowel was found empty.

(7) There were no fractured brain injuries.

(i) P.W.1 had deposed that,

(a) Sekar, the son of the fourth accused Muniyandi stabbed the deceased

Allimuthu with the spear on his abdomen.

(b) Poojaimani (A1) stabbed Allimuthu with Knife on the chest and left

jaw;

(c) Pandivel (A2) and Veerabathran (A3) caught hold of Allimuthu, who

tried to flee.

(d) Rajangam (A8) stabbed Allimuthu with Knife on the right thumb; and

(e) Azhagupandi (A5) stabbed Allimuthu with Pichuva on his buttocks.

(ii) However, on comparison of the postmortem report with the ocular

evidence of P.W.1 and P.W.2 to P.W.5, who had deposed almost similarly, would

show that there is no injury on the buttocks of the deceased person and therefore,

attributing overt act to Azhagupandi (A5) is absolutely false.

20. The trial Court by altering the charges framed earlier, had proceeded

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further without giving any opportunity to the accused persons. The trial Court has

given reason for proceeding further without providing any further opportunity to

answer the altered charges. According to the learned trial Judge, since already

there is charge against the accused persons for offence under Section 149 I.P.C.,

he thought fit to charge all the accused for the offence under Section 149 I.P.C.

along with Sections 302, 324 and 326 I.P.C. This procedure could have been a

cureable irregularity, had the prosecution succeeded in proving the charge under

Section 149 I.P.C., which is a substantive offence by itself. When there is failure

on the part of the prosecution to prove the substantive offence under Section 149

I.P.C., then, roping all the accused alleged to have present, but without sharing the

common object, will be lead to miscarriage of justice.

21. Therefore, it is predominant to find out whether the evidence for

prosecution sufficient to infer the appellants along with the two other persons

who died pending the case, had shared common object when they formed as an

assembly with weapons.

22. The necessary ingredients to attract the offence under Section 149 I.P.C.

are:-

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(1) There must be an unlawful assembly.

(2) Any member of the unlawful assembly must have committed an

offence.

(3) The offence committed must be in furtherance of the assembly's

common objective or the members must have knowledge about the happening of

the offence. There must be active participation of the person in the offence with

the necessary criminal intention or sharing of the common object of the unlawful

assembly, otherwise, the person cannot be held liable for the offence under

Section 149 I.P.C. However, active participation does not mean that there must be

over act of committing the offence, presence and assisting or aiding the assailant

with whom the person share the common object to commit the said crime is

sufficient.

23. While elaborating further, the Hon'ble Supreme Court in Rabindra

Mahto and another vs. State of Jharkhand reported in AIR 2006 SC 887 :

2006 (10) SCC 432 held that, the common object need not require prior concert

and a common meeting of minds before the attack, and an unlawful object can

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develop after the assembly gathered before the commission of the crime at the

spot itself. There need not be any prior meeting of mind. It would be enough that

the members of the assembly which constitutes five or more persons, have

common object and that they acted as an assembly to achieve that object.

24. The common object can be gathered from the facts and circumstances

of the case. In the instant case, the rough sketch marked as Ex.P52 show blood

stains in two different places. One on the road running East – West, where the

houses of A2 and A4 located on the extreme east. The another spot in the pathway

running North-South, opposite to the ration shop. From the Sketch, we are able to

understand, it is not possible to see from one spot to another spot. While the

presence of all the appellants in the scene of crime itself is doubtful for want of

independent corroboration, sharing of common object by all the accused also

become doubtful. They did not gather first. Admittedly, P.W.1 and his men

totally, six in numbers, first gathered at the ration shop at 12.30 p.m. to question

A4 for the incident happened at 10.00 a.m. The incident of murder alleged to have

happened at 14.30 hours. As noted earlier, though it is alleged all the accused

were armed with deadly weapons, which are identified and marked as M.O.1 to

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M.O.13, except the spear, which caused the punctured wound to Allimuthu and

proved to have been caused by Sekar, there is no inferential circumstance to draw

a presumption that they all shared a common object with Sekar to cause death.

Even for P.W.1, who had sustained one grievous injury and two simple injuries,

the nature of injuries are lacerated wound on the forearm, index finger and right

hand. Though it is his evidence that the assailants had lethal weapons, the seat of

injury and the gravity of injury would show that the assailant, whoever it is, did

not have any intention to cause the death of P.W.1, who engineered the fight.

While so, it is highly improbable to hold all the accused shared common object to

cause death of Allimuthu or any other persons.

25. The Hon'ble Supreme Court in Bhagwan Jagannath Markad and

others vs. State of Maharashtra reported in 2016 (10) SCC 537 had

summarised the principles how to appreciate the credibility of witnesses in the

following manner:-

''18. It is accepted principle of criminal jurisprudence that the

burden of proof is always on the prosecution and the accused is

presumed to be innocent unless proved guilty. The prosecution has to

prove its case beyond reasonable doubt and the accused is entitled to the

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benefit of the reasonable doubt. The reasonable doubt is one which

occurs to a prudent and reasonable man. Section 3 of the Evidence Act

refers to two conditions—(i) when a person feels absolutely certain of a

fact—“believes it to exist”, and (ii) when he is not absolutely certain and

thinks it so extremely probable that a prudent man would, under the

circumstances, act on the assumption of its existence. The doubt which

the law contemplates is not of a confused mind but of prudent man who is

assumed to possess the capacity to “separate the chaff from the grain”.

The degree of proof need not reach certainty but must carry a high

degree of probability [Vijayee Singh v. State of U.P., (1990) 3 SCC 190,

pp. 206-09 & 217-18, paras 18, 28-30 : 1990 SCC (Cri) 378] .

19. While appreciating the evidence of a witness, the court has to

assess whether read as a whole, it is truthful. In doing so, the court has

to keep in mind the deficiencies, drawbacks and infirmities to find out

whether such discrepancies shake the truthfulness. Some discrepancies

not touching the core of the case are not enough to reject the evidence as

a whole. No true witness can escape from giving some discrepant details.

Only when discrepancies are so incompatible as to affect the credibility

of the version of a witness, the court may reject the evidence. Section 155

of the Evidence Act enables the doubt to impeach the credibility of the

witness by proof of former inconsistent statement. Section 145 of the

Evidence Act lays down the procedure for contradicting a witness by

drawing his attention to the part of the previous statement which is to be

used for contradiction. The former statement should have the effect of

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discrediting the present statement but merely because the latter statement

is at variance to the former to some extent, it is not enough to be treated

as a contradiction. It is not every discrepancy which affects the

creditworthiness and the trustworthiness of a witness. There may at times

be exaggeration or embellishment not affecting the credibility. The court

has to sift the chaff from the grain and find out the truth. A statement may

be partly rejected or partly accepted [Leela Ram v. State of Haryana,

(1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want

of independent witnesses or unusual behaviour of witnesses of a crime is

not enough to reject evidence. A witness being a close relative is not

enough to reject his testimony if it is otherwise credible. A relation may

not conceal the actual culprit. The evidence may be closely scrutinised to

assess whether an innocent person is falsely implicated. Mechanical

rejection of evidence even of a “partisan” or “interested” witness may

lead to failure of justice. It is well known that principle “falsus in uno,

falsus in omnibus” has no general acceptability [Gangadhar Behera v.

State of Orissa, (2002) 8 SCC 381, pp. 392-93, para 15 : 2003 SCC (Cri)

32]. On the same evidence, some accused persons may be acquitted while

others may be convicted, depending upon the nature of the offence. The

court can differentiate the accused who is acquitted from those who are

convicted. A witness may be untruthful in some aspects but the other part

of the evidence may be worthy of acceptance. Discrepancies may arise

due to error of observations, loss of memory due to lapse of time, mental

disposition such as shock at the time of occurrence and as such the

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normal discrepancy does not affect the credibility of a witness.

20. Exaggerated to the rule of benefit of doubt can result in

miscarriage of justice. Letting the guilty escape is not doing justice. A

Judge presides over the trial not only to ensure that no innocent is

punished but also to see that guilty does not escape. [Gangadhar Behera

case, (2002) 8 SCC 381, p. 394, para 17]

21. An offence committed in prosecution of common object of an

unlawful assembly by one person renders members of unlawful assembly

sharing the common object vicariously liable for the offence. The

common object has to be ascertained from the acts and language of the

members of the assembly and all the surrounding circumstances. It can

be gathered from the course of conduct of the members. It is to be

assessed keeping in view the nature of the assembly, arms carried by the

members and the behaviour of the members at or near the scene of

incident. Sharing of common object is a mental attitude which is to be

gathered from the act of a person and result thereof. No hard-and-fast

rule can be laid down as to when common object can be inferred. When a

crowd of assailants are members of an unlawful assembly, it may not be

possible for witnesses to accurately describe the part played by each one

of the assailants. It may not be necessary that all members take part in

the actual assault [Gangadhar Behera case, (2002) 8 SCC 381, pp.

396-98, paras 22-24] . In Gangadhar Behera [Gangadhar Behera,

(2002) 8 SCC 381 : 2003 SCC (Cri) 32] , this Court observed : (SCC pp.

398-99, para 25)

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“25. The other plea that definite roles have not been

ascribed to the accused and therefore Section 149 is not

applicable, is untenable. A four-Judge Bench of this Court in

Masalti case [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1

Cri LJ 226 : (1964) 8 SCR 133] observed as follows : (AIR p. 210,

para 15)

‘15. Then it is urged that the evidence given by the

witnesses conforms to the same uniform pattern and since

no specific part is assigned to all the assailants, that

evidence should not have been accepted. This criticism

again is not well founded. Where a crowd of assailants who

are members of an unlawful assembly proceeds to commit

an offence of murder in pursuance of the common object of

the unlawful assembly, it is often not possible for witnesses

to describe accurately the part played by each one of the

assailants. Besides, if a large crowd of persons armed with

weapons assaults the intended victims, it may not be

necessary that all of them have to take part in the actual

assault. In the present case, for instance, several weapons

were carried by different members of the unlawful

assembly, but it appears that the guns were used and that

was enough to kill 5 persons. In such a case, it would be

unreasonable to contend that because the other weapons

carried by the members of the unlawful assembly were not

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used, the story in regard to the said weapons itself should

be rejected. Appreciation of evidence in such a complex

case is no doubt a difficult task; but criminal courts have to

do their best in dealing with such cases and it is their duty

to sift the evidence carefully and decide which part of it is

true and which is not.’”''

26. This Court is conscious of the fact that, it is not possible for a witness

to accurately describe the part played by each of the assailants when a man armed

with deadly weapon attack indiscriminately. The Court is bound to separate the

grain from the chaff even if the testimony suffers embellishments. However, in

this case, the Court finds on appreciating the evidence the infirmities and

discrepancies shake the truthfulness of the so-called injured witnesses. The

suppression of real motive for gathering near the houses of A2 and A4 not spoken

by the witnesses P.W.1 to P.W.5 nor probed by the Investigating Officer. This

makes the case of the prosecution totally a lopsided investigation. Except the

interested witnesses, there is no independent corroboration to say these appellants

were really present with a common object or they attacked these witnesses and

the deceased Allimuthu in the manner P.W.1 to P.W.5 had deposed. The injuries

found on A8 not been explained by the prosecution. The reasoning given by the

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trial Court for the injuries on A8 is not based on evidence, but on inference. If

really, P.W.1 to P.W.5 were not involved in the crime, then, what was the necessity

for the Police to register case against them in Crime No.136 of 2010 and these

witnesses getting anticipatory bail.

27. An injured witness or relative of injured witness may not conceal the

real culprit. However, there is every possibility for a witness with enmity to rope

innocent persons along with real culprit to wreak vengeance. If the evidence

available not helpful to identify the real culprit and the persons implicated falsely

in a case tried for the offences read with Section 149 I.P.C., it is the bounden duty

of the Court to ensure that innocents are not punished with the assistance of

Section 149 I.P.C. by applying the principle of vicarious liability.

28. In this case, the only person against whom incriminating evidence

available is Sekar, who was originally the first accused. He is now dead. The

other person A8 had sustained grievous injuries. No action taken by the

prosecution against the suspected perpetrators, who are none other than the

witnesses P.W.1 to P.W.5 and the deceased Allimuthu.

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29. When the prosecution deliberately suppressed a part of the incident

from the view of the Court, it is impossible for the Court to assess the evidence in

broad substratum of the prosecution version, which is found to be truncated and

misleading in all manners, including motive and scene of occurrence. Therefore,

we have no other option except to conclude that the prosecution has not proved

the case beyond reasonable doubt.

30. As a result, these Criminal Appeals are allowed. The judgment of the

trial Court, dated 27.02.2020, in S.C.No.105 of 2012, is set aside and the

appellants are acquitted from all the charges. Bail bonds stand cancelled. Fine

amount already paid, if any, shall be refunded to the appellants.

Index: Yes [G.J., J.] & [C.K., J.]

NCC : Yes 28.03.2024

To

1.The Principal Sessions Judge,

Sivagangai.

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2.The Inspector of Police,

Thirupachethi Police Station,

Sivagangai District.

3.The Section Officer,

Criminal Records,

Madurai Bench of Madras High Court,

Madurai.

4.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.

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DR.G.JAYACHANDRAN , J.

and

C.KUMARAPPAN, J.

smn2

PRE-DELIVERY COMMON JUDGMENT MADE IN

Crl.A.(MD)Nos.139, 148, 187, 188, 194, 224, 240, 250, 255 & 265 of 2020 &

74 of 2021

28.03.2024

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