Madras High Court
Thalabathi @ Bharath vs State Rep. on 25 April, 2023
Crl.A.Nos.69, 77 & 149 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.04.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.A.Nos.69, 77 & 149 of 2020
Thalabathi @ Bharath .. Appellant/3rd accused in Crl.A.No.69/2020
Jaison .. Appellant/4th accused in Crl.A.No.77/2020
1.Pushparaj
2.Kathir @ Kathiresan .. Appellants/1st & 2nd accused in
Crl.A.No.149/2020
Vs.
State Rep., by
The Inspector of Police,
J-6, Thiruvanmiyur Police Station,
Chennai.
..Respondent in all the Criminal Appeals
COMMON PRAYER : Criminal Appeals have been filed under
sections 374(2) of Criminal Procedure Code to set aside the judgment
dated 23.01.2020 in S.C.No.283 of 2016 on the file of XVII Additional
Sessions Judge, Chennai.
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Crl.A.Nos.69, 77 & 149 of 2020
For Appellant in Crl.A.No.69/20 : Mr.K.Thenrajan
For Appellant in Crl.A.No.77/20 : Mr.G.Mohanakrishnan
For Appellants in Crl.A.No.149/20 : Mr.R.C.Paul Kanagaraj
For Respondent in all Crl.Appeals : Mr.R.Kishore Kumar
Govt.Advocate (Crl.Side)
COMMON JUDGMENT
These Criminal Appeals are directed against the judgment of the
Trial Court in S.C.No.283 of 2016 on the file of XVII Additional
Sessions Judge, Chennai, holding the accused 1 to 4 guilty and sentenced
them to undergo the following punishment:-
Rank of Charges Findings Punishment
the of the
accused Trial
Court
A1 u/s.307 IPC Guilty To undergo R.I., for 10
years and to pay a fine of
Rs.5,000/-, in default to
undergo Simple
Imprisonment for 1 year.
A2 to A4 u/s.307 Guilty To undergo R.I., for 10
r/w.114 IPC years each and to pay a fine
of Rs.5,000/- each, in
default to undergo Simple
Imprisonment for 1 year.
Total fine imposed Rs.20,000/-
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The period of imprisonment during the trial is ordered to be set off.
2. Aggrieved by the judgment of conviction and sentence, the
Pushparaj [A1] and Kathir @ Kathiresan [A2] have preferred
Crl.A.No.149 of 2020. Thalabathi @ Bharath [A3] has preferred
Crl.A.No.69 of 2020. Jaison [A4] has preferred Crl.A.No.77 of 2020.
3. The prosecution initially filed final report as against six
persons. Pending trial, two of them absconded and the case has been split
up and same is pending in P.R.C.No.55 of 2016. Rest of the four accused
were charged for the offence under Sections 294(b), 148, 341, 307, 307
r/w.114 I.P.C., and put to trial.
4. To prove the charges, the prosecution has examined 13
witnesses, marked 22 exhibits and 3 Material Objects.
5. The sum and substance of the prosecution case is that on
24.08.2012 at about 10.00 p.m., a two wheeler Honda Activa driven by
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Pushparaj [A1] dashed against Kalaiarasan who is an Auto driver, due to
which, there was a wordy altercation between Pushparaj and Kalaiarasan.
Jeevarathinam [PW.1] who was a friend of Kalaiarasan, the auto driver
was present at the time of occurrence and pacified both of them.
However, Pushparaj sworn that he will take revenge left the place. He
then after few hours came with his brother-in-law and few others in an
Auto in search of Kalaiarasan, by that time Kalaiarasan had left the place
Pushparaj showed Jeevarathinam to them and told that he was one who
allowed Kalaiarasan to escape and incited them to attack Jeevarathinam,
so that they will always fear them. As a consequence, Jeevarathinam was
attacked brutally. The assailants stabbed him on his stomach, wrist and
thigh. Jeevarathinam was taken to the hospital by one Haridoss and
admitted as in-patient. Next day on intimation, the police took the
statement of the injured person, registered the First Information Report in
Crime No.1743 of 2012 and took up the investigation.
6. The Investigating Officer in the course of investigation
arrested the suspected accused based on the confession statement of the
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arrested accused recovered the weapons used in the crime. On the
completion of the investigation, laid the final report. Two of the accused
remained absent and absconded. Hence the case has been split up against
A5 and A6 and charges were framed against the remaining four accused.
7. The Trial Court on appreciation of evidence held all the four
accused guilty of attempt to commit murder. The injury sustained by
PW.1 as per the Accident Register [Ex.P14] held to be caused by A1 and
his associates who were found present at the time of occurrence along
with A1 and incited him to stab. In respect of the other charges, the Trial
Court has held that the evidence is not adequate to hold the accused
guilty.
8. The learned counsel appearing for the appellants particularly
the 1st accused submitted that the case of the prosecution is unbelievable
and not corroborated with adequate reliable evidence. Except PW.1, who
is an interested witness, no other eye witness has corroborated the case.
PW.2 and PW.3, the relatives of the injured have turned hostile.
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Kalaiarasan, who is according to the prosecution is a cause for the
incident, has not supported the case of the prosecution. Even according
to the prosecution, he was not present at the spot when the incident
occurred and he is not a witness to the said occurrence. The
contemporaneous documents, namely the Accident Register [Ex.P14]
reveals that the injured was taken to the hospital by one Haridoss. The
said Haridoss was not examined by the prosecution. The entry in the
Accident Register indicates that PW.1 was attacked by ten unknown
persons. However, the FIR, which was registered on the next day at 2.00
p.m., discloses the name of the assailants. This according to the
Investigating Officer was based on the statement given by the injured
when he had gone to the hospital on receipt of the information and to
record the statement. While the doctor who admitted the injured person
on the previous day had recorded in the Accident Register that the
injured was conscious and he was in a position to talk and he had stated
that he was attacked by ten unknown persons. The next day, FIR has been
registered after a delay of more than 14 hours indicating the names of the
assailants. This clearly shows manipulation in the facts due to the delay
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in registering the FIR.
9. The learned counsels appearing for the other appellants
submitted that except the testimony of PW.4, who named the accused as
the persons who were present at the scene of occurrence, even the injured
person has not disclosed the name before the Court in chief examination
and therefore, the Trial Court's observation that the prosecution has
established the intention of the members of unlawful assembly to commit
murder of PW.1 proved and in furtherance of the said intention, A1 has
caused injury and A2 to A4 abetted to cause such injury is not
inconsonance with the evidence before the Court.
10. The learned counsels appearing for A2 to A4 further
submitted that the Trial Court has erroneously concluded that PW.1 and
PW.3 evidences prove the presence of A2 to A4 and they were identified
by the witnesses. Reading the testimony of PW.1 and PW.3, the learned
counsels submitted that nowhere PW.1 and PW.3 have identified A2 to
A4 or spoken about them of any other overt act which will amount to
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abetting A1 to constitute an offence of abetment.
11. The learned Government Advocate (Crl.Side) for the State1
submitted that the delay in registering the FIR no way had prejudiced the
accused, since the injured person was brutally attacked by the members
of unlawful assembly carrying deadly weapons and the victim was not in
state to give statements and therefore, PW.13, who went to the hospital to
record the statement of the injured had to wait for the victim to regain to
his conscious and to give a statement, thereafter, he registered the FIR
marked as Ex.P15. As far as the evidence of prosecution, injured witness
PW.1 has narrated about the sequence of events and the cause for the
incident, he has specifically identified A1 as a person who stabbed him in
his stomach and caused the injury on his left hand. When he tried to
defend the attack by A1, A1 attempted to stab on his neck. He has
identified the other accused persons who were with A1 at the time and
incited A1 to finish him (,tid fhyp gz;Z). Therefore, there is no error in
the observation of the Trial Court that the injury found on the body of the
victim was inflicted by A1 and at that time A2 to A4 were present and
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abetted the commission of the offence of A1.
12. Heard the learned counsels and perused the records.
13. This is a case where the injured who survived the attack
appeared before the Court and deposed about the occurrence. The
Accident Register marked as Ex.P14 indicates that on 24.08.2012 at
about 10.30 p.m., near Karaikudi Restaurant, Besant Nagar, DW.1 was
attacked with knife. Injuries on the abdomen, thigh and wrist were
noticed by the doctor who treated the injured person, she was examined
as PW.12. Her testimony disclosed that PW.1 has sustained the following
injuries:-
“ (i)Stab injury on the left side abdomen 2x1x6 size. Penetrating
wound with bowl loop protruding out side.
(ii) Lacerated wound 2x5x1 on the left hand
(iii) Lacerated wound 5x3x5 on left thigh.”
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The injured was shifted to emergency ward and surgery was conducted
on the next day. He was treated as in-patient and discharged on
05.09.2012 after treatment. The nature of injury sustained by PW.1 was
opined as grievous injury.
14. The learned counsel appearing for the 1st accused pointing
out the third injury though mentioned on the thigh, the injured person has
stated that he was stabbed by the brother-in-law of A1 on his back. This
discrepancy regarding the injury and the person who caused the injury
was not taken by the Trial Court. Further he submitted that the recovery
of three weapons which are marked as M.O.1 to M.O.3 based on the
alleged confession statement of the accused persons not been proved in
the manner known to law and the prosecution evidence does not co-relate
with the weapon and the injury found on the body of PW.1.
15. This Court does not find much merit in the above
submissions. The doctor who treated PW.1 had noticed the injuries and
spoken about the nature of injuries. PW.1, the person who sustained
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injury has identified A1 by name as the person who has caused the injury.
Two injuries out of three is attributed to A1 by PW.1. In so far as the
charge of abetment in respect of the other three accused are concerned,
this Court does not find much corroboration to implicate them in the
crime, though their presence been spoken by PW.1 and PW.3. Whether
they can be convicted for offence under Section 307 r/w. 114 merely
based on their presence at the time of occurrence is highly doubtful, since
there is no evidence to show that they shared the intention of A1 to cause
death of PW.1.
16. To attract Section 114 of IPC the ingredients mentioned in
Section 107 IPC has to be satisfied. In this case, none of the prosecution
witnesses had attributed overt act against the accused, who were arrayed
as A2 to A4. PW.1 has identified them as persons who were present along
with A1 and uttered to finish him. Whereas PW.2 has not whispered
anything about the presence of A2 to A4 and so he was treated hostile.
PW.3 had deposed that he and his uncle PW.2 Pachaiappan came out
from hotel Karaikudi between 9.30 p.m., to 10.00 p.m. He saw a crowd
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out side the hotel where Pushparaj/A1, Kathir/A2, Thalabathi/A3 and
Jaison/A4 stabbing PW.1. Before he could reach his brother
Jeevarathinam, they all fled away and he took his injured brother to the
Rayapettah hospital and admitted him. He has also stated the he does not
know the name of the other two assailants who are brothers-in-law of A1.
Though PW.3 says that he was at the scene of occurrence, his evidence
does not corroborate by PW.2. Further his testimony that he took the
injured to the hospital and admitted also not corroborated by the entry in
the Accident Register, which says that one Haridoss brought the victim to
the hospital. Therefore, the reliability of the PW.3 who implicate A2 is
highly doubtful.
17. In the said circumstances, the benefit of doubt ought to have
been given to A2 to A4, since the required ingredients mentioned in
Section 109 of IPC is not satisfactorily proved by the prosecution to
sentence these three accused under Section 307 r/w.114 of IPC.
18. Therefore, this Court while confirming the conviction of A1
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for the offence under Section 307 IPC, set aside the conviction of A2 to
A4 for the offence under Section 307 r/w.114 IPC.
19. As far as the sentence imposed on A1, this Court taking note
of the fact that the incident has taken place among the auto drivers of the
same locality and due to the sudden fight which occurred few hours
earlier, the period of imprisonment is reduced to 7 years R.I., instead of
10 years R.I.
20. With the above modification, the Criminal Appeal in
Crl.A.No.149 of 2020 as against 1st appellant is partly allowed. As
against the 2nd appellant, the Criminal Appeal is allowed. The other
Criminal Appeals in Crl.A.No.69 and 77 of 2020 preferred by A2 to A4
are allowed. The conviction and sentence of the Trial Court as against A2
to A4 is hereby set aside. The appellant in Crl.A.No.69 and 77 of 2020
and the 2nd appellant in Crl.A.No.149 of 2020 are set at liberty. Fine
amount, if any paid by the accused shall be refunded to them. Bail bond
if any executed by the accused shall stand discharged.
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25.04.2023
Internet : Yes/No
Index: Yes/No
rpl
To
1.The XVII Additional Sessions Judge, Chennai.
2.The Inspector of Police,
J-6, Thiruvanmiyur Police Station,
Chennai.
3.The Public Prosecutor,
High Court of Madras,
Chennai.
Dr.G.JAYACHANDRAN, J.
rpl
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Crl.A.Nos.69, 77 & 149 of 2020
Crl.A.Nos.69, 77 & 149 of 2020
25.04.2023
https://www.mhc.tn.gov.in/judis
