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Judgment
This appeal arises against the conviction and sentence delivered in the Court of Sessions Judge. Ootacamund, in S.C.No. 24 of 1986. Out of the 13 accused, the Sessions Judge found accused No. 1 guilty u/s 147 Indian Penal Code, thereby sentencing her to undergo Rigorous Imprisonment for one year, found her guilty u/s 451 I.P.C. and sentenced her for rigorous imprisonment for one year and also to pay a fine of Rs.100/-, found her guilty u/s 324, read with Section 149 I.P.C. (two counts) and sentenced her to undergo rigorous imprisonment for one year under each count, found her guilty u/s 365 I.P.C. and sentenced her to rigorous imprisonment for two years, found her guilty u/s 506 Part - II I.P.C. and sentenced her to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 100/-. Accused No.2 was found guilty u/s 147 I.P.C. and 451 I.P.C. and similar sentence was imposed on him as that of Accused No. 1. A-2 was also found guilty u/s 365 I.P.C. and was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 100/-. He was also found guilty u/s 506 Part II I.P.C. and sentenced to undergo rigorous imprisonment for two years. Accused Nos. 3 and 5 were also found guilty u/s 365 I.P.C. and they were sentenced to undergo rigorous imprisonment for two years and also to pay a find of Rs. 100/- each. Accused No. 10 was found guilty u/s 148 I.P.C. and sentenced to undergo Rigorous Imprisonment for 1-1/2 years, was found guiltty u/s 451 I.P.C. and sentenced under Rigorous Imprisonment for one year, and also a find of Rs.100/, and was found guilty u/s 324 I.P.C. and was sentenced to undergo rigorous imprisonment for one year (two counts). The remaining accused were acquitted. Challenging the abovesaid conviction and sentence, accused Nos. 1. 2, 3, 5 and 10 have preferred this appeal.
The facts leading to the accusation and conviction are in short as follows:-
Accused No.1 Kaliammal is the sister of P.VV.2 Ravi and P.W.3 Suresh Babu. P.W.1 Gopal has married one Vijaya, the sister of accused No.1 and P.Ws. 2 and 3. One deceased Yogi Gouder, the father of accused No.1 and P.Ws. 2 and 3 had three sons and three daughters. After the demise of the said Yogi Gouder, his entire property was looked after by his elder son one Raman upto the year 1982. Thereafter some misunderstanding arose between Raman and P.Ws. 2 and 3 in respect of the maintenance of the family properties. Then, the first accused was supporting P.Ws. 2 and 3. In respect of the property dispute between Raman and his brothers, P.Ws. 2 and 3, a panchayat was held in which the 60 acres of land of tea estate and a tea factory located at Aravenu. Mavakarai and also the bungalow located at Thumbur were allotted to P.Ws. 2 and 3 (who were unmarried). In the said bungalow both P.Ws. 2 and 3 were residing with their servant, maid, who was examined as P.W.4. In the said panchayat, the sisters of P.Ws. 2 and 3 and their elder brother Raman were also given their due shares. After the said partition in the Panchayat, accused No.1 asked P.Ws. 2 and 3 that she would look after their properties allotted to them in the partition, for which P.Ws. 2 and 3 were not willing. Therefore, some ill-feeling arose between accused No.1 and P.Ws. 2 and 3. On account of this, accused No. 1 was going on making some allegations against P.Ws.2 and 3, and on one occasion, accused No.1 told P.Ws. 2 and 3, that she had spent about Rs.60,000/-, while they had been ill- disposed of towards their elder brother Raman, and therefore P.Ws. 2 and 3 should repay her a sum of Rs. 1,00,000/-. which was also turned down by P.Ws. 2 and 3. Accused No. 1 once gave a petition in the Kothagiri police station alleging that P.Ws. 2 and 3 were attempting to murder her. The Inspector of Police enquired into the matter and it was disposed of, as the same was found false. However, the Inspector warned both P.Ws. 2 and 3.
On the night of 23.1.1984 P.W.2 was sleeping in his room in the downstairs. P.W.3 had gone to a cinema and the servant maid P.W.4 and her children were sleeping in the kitchen. At about 9.30 p.m., P.W.3 came to the house, after the cinema was over. After taking a cup of milk, he went to his bed room in the upstairs and slept there. At about 1.30 or 2 am. (24.1.1984), P.W.3 felt as if somebody was pressing his body and nose. Then he suddenly opened his eyes he saw accused Nos. 1 and 2 holding his legs and accused No.3 pressing his hands. One Paramasivam, the absconding accused was pressing the nose of P.W.3 with a white cloth which smelt chloroform. However P.W.3 managed to get up. P.W.2 who was lying in the bed room in the downstairs, heard noise from the room of P.W.3. Therefore P.W.2 came out of his bed room and tried to go to the upstairs. At that time P.W.2 heard the noise of P.W.4 from the kitchen. However, P.W.2 ran to the upstairs. At that time two or three men were running down from the upstairs. But P.W.2 did not know them There, P.W.2 saw accused Nos.5 and 6 in the Pooja room. Thereafter P.W.2 entered the bed room of P.W.3, where he saw sister accused No. 1, accused Nos.2,3,4 and 10 and accused No. 10 had an iron rod in his hand. At that time accused Nos. 1 and 2 said. mediately accused INO. 10 gave a blow on the head of P.W.2. On receipt of the blow on the head and also on smelling chloroform P.W.2 lay on the floor. On the abovesaid instruction of accused Nos.1 and 2, Accused No. 10 also gave a blow on the head and face of P.W.3, The iron rod used for assaulting both P.Ws. 2 and 3 is M.0.1. Thereafter, P.W.2 was dragged to the downstairs and put in a car bearing Registration No.T.N.N. 1008. P.W.3 was also taken into the car and put along with P.W.2. The car was started by accused No.5. In that car along with P.Ws. 2 and 3, Accused Nos.1, 4, 5 and the absconding accused Paramasivam were also seated. The car was taken to the factory where another car had been stationed and accused No. 1 and other accused entered, the other car. From that place both the cars were taken and during travel chloroform was administered to P.W.2 and P.W.3. During the travel, accused No. 1 said '''' "
Accused No.4 Pushpa on testing P.Ws.2 and 3 replied that P.Ws.2 and 3 were alive. At about 3.30 a.m. the car was stopped in front of an estate bungalow. There, accused Nos. 1 and 2 said ....
4 On 22.1.1984 at about 4.20 am. accused No. 2 came to Ramesh Vihar Lodge situated at Kothagiri widi accused No.4 Pushparaj and they took room No. 111 and stayed there, and after taking bath in the morning both of them left the room. On 23.1.1984 at about 6 am. P.W.1 1 Rangan, the manager of the said lodge saw mere both accused Nos. A2 and A-4 and on 24.1.1984 at about 6 a.m. when P.W. 11 went to the said room No. 111, he did not see both of them. On that day at about 10 or 11 p.m. both of mem came to the lodge.
5 On 24.1.1984 at about 8 a.m. on receipt of the complaint Ex. P. 1 from P.W. 1, P.W.20 the Inspector of Police registered a case in Crime No. 16/1984 under Sections 147, 148, 324, 342, 365 and 3791.P.C. Ex.P. 17 is the printed First Information Report. P.W.20 took up the investigation. At about 8.30 a.m. P.W.20 went to the scene of occurrence and took photos of the same, which were marked as Exs. P. 18 and P. 19. He prepared Ex.P.2 observation mahazar signed by P.W. 10 and another. He recovered M.0.2 lungi and M.O.I8, towel. M.0.3 bloodstained bed-sheet, M.O.I iron rod and also M.0.9 a pair of chappal under Ex.P.3 mahazar. He examined P.Ws.1, 4, 10 and others. At about 5.30p.m. at Sangamanaickenpalayam, he saw P.Ws.2 and 3 and examined them. At about 6.30 p.m. he arrested accused Nos. 1, 4 and 11 at Pathuvampalli. He prepared a mahazar of that place of arrest which is marked as Ex.P.7. At about 7.15 p.m. he recovered the cars from the estate of Sangamapalayam under Ex.P.8 mahazar. Then he sent both P.Ws.2 and 3 with his memo for medical examination. On 24.1.1984 at about 9.10 p.m. P.W.14, Dr. Lalitha examined P.Ws.2 and 3. On P.W.3, Suresh Babu, she found the following injuries as noted in Ex.P.5>
(1) 2" x 1/2" x- 1/2" (lacerated wound), 1/2" x 1/2" x 1/2" ((lacerated wound).
1/2" x 1/2" (lacerated wound).
(4) (lacerated wound).
On P.W.2 Ravi, she found the following injuries as noted in Ex.P.6:-
(1) (lacerated wound),
(2) (abrasions)
(3)
(Contusion) (abrasions)
(Contusion) (abrasions)
The injuries are simple in nature. On 24.1.1984 night while P.W.20 was returning back to the station, on the way he purchased a sample cloth from the shop of one Chinnasami and examined him. At about 11.30 p.m. on the relevant date he went to Ramesh Vihar Lodge and then made a search at Room No. 111. From there he recovered MO.Nos. 10 to 16 under Ex.P.4 mahazar. Thereafter he came to the police station and altered the FIR. into Sections 147, 148,324, 342, 328, 365, 307 and 397 IPC. Thereafter he went to the hospital and examined P.Ws. 2 and 3. From P.Ws. 2 and 3 he recovered M.O.Nos. 5, 6, 7 and 8. On 25.1.1984 he sent the arrested accused to remand and examined the other witnesses. On that day at about 9 a.m. he arrested accused No.3 at Oory Bazaar. On the same day between 10 and 10.30 p.m. he searched the house of accused No. 1. On 26.1.1984 at about 8 p.m. near Kerbetta Inspection Bungalow, he arrested accused Nos.7, 8 and 9. He went to Mettupalayam and Annur and investigated there regarding this case. He arrested accused Nos. 12 and 13 at Thattanthottam. On 31.1.1984 the sixth accused surrendered himself in the police station and accused No.6 gave a confessional statement voluntarily which is marked as Ex.P.9. On the basis of the confession statement of A.6, he took the accused No.6 to Modern Scientific Company at Coimbatore. From mere he recovered the bill given by P.W. 16 one Shanmugam. On 1.2.1984 at about 10 a.m. accused No. 10 surrendered himself in the police station. On 2.2.1984 P.W. 14 made arrangement to record the statement of P.W.8 u/s 164 Cr.P.C. On 5.2.1984 the fifth accused surrendered himself in the police station and gave a statement voluntarily which is marked as Ex.P. 10. On the basis of the confessional statement, accused No.5 took P.W.20 to Thattanthottam at Annur. From there he took MO.4 series and produced the same to P.W.20, who recovered the same under Ex.P.1 1. Thereafter P.W.20 produced all the materials recovered during investigation in the Court. Then he was transferred. On the requisition of the investigating officer, the material objects were sent to chemical examination. The chemical report is Ex.P. 14. The serologist report is Ex.P. 16. The other, Inspector of Police, did the later part of the investigation and completed the same. He filed the charge sheet under Sections 147, 451, 341, 365, 506 part II, 149 read with 324 and 328 of I.P.C. and also u/s 25(I)(b) read with 3 and 27 of the Indian Arms Act. The Magistrate committed the case to the Court of Sessions after furnishing the records to the accused. The trial Judge, on perusing the records framed charges against all the 13 accused under Sections 147, 148, 451, 341, 328, 324, 365, 324 read with 109, 324 read with 149, 342, 365 read with 149, 342, 506 part II IPC. and u/s 25(I)(b) read with Sections 3 and 27 of the Indian Arms Act. The accused had denied the charges and wanted to face the trial. Therefore to establish the same, on the side of the prosecution, 21 witnesses were examined and 23 documents were marked. 19 material objects were also marked.
The accused, on completion of the evidence, were examined u/s 313 of the Criminal Procedure Code. They denied in entirety the incriminating circumstances projected against them in evidence. On their side Exs. D. 1 and D.2 were marked.
The trial Judge on appraising the evidence found the accused Nos. 1,2,3 and 4 and 10 guilty and sentenced them as referred to above. Challenging the same, accused Nos. 1,2,3,5 and 10 have come forward with this appeal.
Mr. Rajagopalan, the learned counsel appearing for the appellants, contended that there is no material on record to convict the appellants under Sections 147, 451 etc., of I.P.C. as concluded by the trial Judge, and therefore the convictions under all the sections can be set aside and the fine amounts paid by them may be refunded to them. On the other hand the learned Government Advocate Mr.R.Karthikeyan contended that there are clinching evidence to convict the appellants as concluded by the trial judge, and therefore the judgment of the trial Judge need not be interfered with in this appeal On account of the divergent contentions of both the learned counsel for the appellants, and the learned Government Advocate, now I will discuss the convictions rendered by the trial Judge one after another to find out whether they are based on reliable evidence. The appellants 1,2,3 and 5 have been convicted under Sections 147, 148, 451, 324 and 365 and 506 part II of IPC. Now we have to look into the evidence of P.Ws. 2 and 3 whether the accused formed themselves into an unlawful assembly and trespassed into the houses of P.Ws. 2 and 3 and kidnapped them. The evidence adduced by both P.Ws. 2 and 3 in their chief and cross examinations would go to show that P.W.2 had not seen accused Nos. 5 and 10 prior to the occurrence with P.W.3 along had seen them once in Kothagiri. When the evidence of P.Ws. 2 and 3 are in such a way, Mr. Rajagopalan, the learned counsel appearing for the appellants submitted that in view of the principle laid down by the Supreme Court in the decision reported in Kanan and Others Vs. State of Kerala, , an identification parade ought to have been held. When such an identification parade has not been held, it is not safe to convict accused Nos. 5 and 10 on any of the offences charged against them. Further Mr. Rajagopalan submitted that the injuries said to have been caused by Accused No. 10 on both P.Ws.2 and 3 are not corroborated by the medical evidence rendered by the Doctor P.W.14. In such circumstances, as per the settled principle of law both accused Nos. 5 and 10 could not be convicted either under Sections 147, 148, 451 or u/s 324 IPC. In fact, a reading of the evidence of P.Ws. 2 and 3 would go to show that P.W.2 had not seen at all accused Nos.5 and 10 prior to the occurrence. Therefore in respect of P.W.2 an identification parade necessarily ought to have been conducted in view of the settled principle of law. Even as far as P.W.3 is concerned, his evidence is not above suspicion that he had already known well both accused Nos. 5 and 19 prior to the occurrence. It is the evidence of P.W.2 that accused No. 10 gave a single blow on his head, P.W.14, the doctor who examined P.W.2 Ravi found a lacerated wound on the right parietal region of the scalp, three abrasions over the dorsum of left hand each 2 cm. x 2 cm. and an abrasion with contusion over the right side of forehead besides slight bleeding present below the nail of right middle finger. Thus P.W.14 has found a numbr of injuries on the body of P.W.2. But, according to P.W.2 he was given a single blow on the head by accused No. 10. So, the other injuries found on the other parts of the the body of P.W.2. are not explained as to how they were inflicted No doubt, P.W.14, in cross examination would depose that if P.W.2 had been dragged down from the upstairs through the steps the abrasions might be inflicted. But, it is not the evidence of P.W.2 that while he was dragged from the upstairs through the staircase he sustained abrasions. If it is so, it could not be said that all the abrasions were inflicted while he was dragged. On the person of P.W.3, the doctor P. W. 14 has found a lacerated wound on the right side of forehead, a lacerated wound on the molar region and also a lacerated wound on the right front parietal region. According to P.W.3 he was assaulted with M.O.3 twice. One blow fell on his head and the other blow fell on his face. P.W.3 has not deposed as to how the other injuries were caused. Above all, both P.Ws. 2 and 3 had stated to P.W. 14 that they were assaulted by four known persons. On the other hand, it is the definite case of the prosecution that P.Ws. 2 and 3 were assaulted only by accused No. 10. Thus there are inherent infirmities in respect of injuries said to have been caused by accused No.10 on P.Ws. 2 and 3. As I have pointed out earlier, both accused Nos. 5 and 10 were not identified properly by P.Ws. 2 and 3 on the footing of the well settled principle of law. In short, I feel, that the conviction and sentence recorded against accused Nos. 5 and 10 are not sustainable in any of the charges and they are liable to be set aside. So far as the offences, namely, under Sections 147,451 and 365 IPC. as against appellant/accused Nos. 1,2 and 3 are concerned, I feel that the evidence of P.Ws. 2, 3 and 4 arc clinching and therefore the conviction recorded thereon by the learned trial Judge can be sustained. In respect of the conviction on accused/appellant No. 1 u/s 324 read with Section 149, IPC, namely two counts, she has to be necessarily acquited, on account of the fact that the charge u/s 324, IPC. against accused No. 10 stands untrue. So far as the conviction u/s 506, part II, IPC against accused/appellant Nos. 1 and 2 is concerned, we have got the clinching evidence of P.Ws. 2 and 3. Therefore, the conviction thereon can be sustained.
The learned counsel for the appellants Mr.Rajagopalan alternatively contended that in case this Court finds guilty of any of the appellants, the benefit of the remission G.Os. namely (1) G.O. Ms. No. 781 Home (P.R.C) Department dated 11.4.1990 (2) G.O.Ms. No. 180 Home (Prisons IV) Department dated 28.1.1989 (3) G.O.Ms.No.279 Home (Prison-C) Department, dated 23.2.1992, (4) G.O.Ms.No.296 Home (Prisons-IV) department dated 20.2.1993 (5) G.O.Ms.No.205 Home (Prisons-IV) Department dated 23.2.1994 and (6) G.O.Ms.No.1342 Home (Prison-IV) Department, dated 12.9.1996, can be extended to the appellants and by extending the benefits of the said G.Os. they may be set at large.
In the result, the conviction of accused/appellant Nos. 1,2, and 3 under Sections 147, 451 and 365, IPC. are confirmed. The conviction u/s 506, Part II, IPC. against accused/appellant Nos. 1 and 2 are also confirmed. The conviction of accused/appellant No. 1 u/s 324 IPC. read with Section 149 IPC for two counts are set aside, and accused/appellant No.1 is acquitted thereon. The conviction of accused No.5/appellant No.4 and accused No. 10/ap-pellant No.5 under Sections 147,148, 451, 365 and 324 respectively of IPC. are set aside and the fine amounts paid thereon are ordered to be refunded to them. The benefit of the above said remission Government Orders will apply to the case of accused/appellant Nos. 1, 2 and 3 and therefore they need not surrender themselves for remand. The Criminar Appeal is disposed of accordingly.