Full Judgment Text
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CASE NO.:
Appeal (crl.) 550 of 2003
PETITIONER:
Chinnaiah @ Chinnasamy
RESPONDENT:
State by Inspector of Police, Tamil Nadu
DATE OF JUDGMENT: 18/09/2003
BENCH:
N. Santosh Hegde & B.P. Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
Ten accused persons including the appellant in this
appeal were sent up for trial before the Sessions Court,
Pasumpon Muthuramalinga Devar District, Sivaganga in
Sessions Case No.16 of 1993 for various offences, principal of
which was one punishable under Section 302 IPC. The trial
court as per its judgment dated 23.12.1994 convicted all the
accused under various Sections including for an offence
punishable under Section 302 IPC and sentenced them to
undergo imprisonment for life. He also sentenced them to lesser
period of imprisonment on other charges. In appeal, the High
Court confirmed the conviction of A-1 under Section 302 IPC
along with convictions under other charges and confirmed the
sentences awarded by the trial court. It convicted A-3 under
Section 304, Part I, IPC and sentenced him to undergo RI for 7
years on that count, it also convicted A-3 for various other
offences for which lesser punishments were awarded. It also
convicted A-8 for an offence punishable under Section 307 read
with 149 IPC and sentenced him to undergo 7 years’
imprisonment on that charge and for other lesser offences
separate sentences were awarded but directed those sentences to
run concurrently. Other appellants before the High Court were
sentenced for lesser offences, particulars whereof are not
necessary to be mentioned for the purpose of disposal of this
appeal. Suffice it to say that it is only the present appellant
before us in this appeal, challenging his conviction, as stated
above.
It will be sufficient to mention for the disposal of this
appeal that the prosecution had alleged that all the accused
persons and six other unnamed accused who were not sent up
for trial, formed themselves into an unlawful assembly and with
the common object of causing the murder of PW-1 went to the
house of PW-22 in the early morning of 24.8.1999 where PW-1
had gone to help PW-22 in his agricultural operations and
caused injuries to PWs.1, 3, 5 and 6 with lethal weapons and
also caused the death of one Manimaran who, according to the
prosecution, tried to prevent the accused persons from attacking
PW-1. Even according to the prosecution case, the accused had
no grievance or motive against said Manimaran when they
came to attack PW-1 and it is only because he prevented them
from attacking PW-1. Said Manimaran was attacked by the
accused causing his death. In this attack the prosecution alleged
that the accused caused one oblique spindle shaped wound 5 x 2
cms. on the left chest 6 inches below the nipple.
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Prosecution alleged that A-2 who is not an appellant
before us also caused an oblique spindle shaped wound 5 x 2
cms. on the middle of the neck. The cause of death, according
to the doctor, was the two wounds caused by the appellant and
A-2.
As noted above, the trial court found all the accused
guilty of having committed the murder of the deceased and
with the aid of Section 149 I.P.C. But the High Court isolated
A-1 alone for convicting him of an offence punishable under
Section 302 IPC while in regard to A-2, the High Court found
him guilty of an offence punishable under Section 304, Part I,
IPC. The High Court has not given any reason whatsoever for
distinguishing the act of A-1 from that of A-2. According to the
medical evidence it is the act of the appellant together with that
act of A-2, was the cause of death of the deceased.
It is in the above background, Mr. Siddarth Dave, learned
counsel appearing for the appellant, though originally argued
against the finding of guilt recorded by the courts below against
the appellant, alternatively contended that at any rate the act of
appellant, cannot be held to be anything more than the act of A-
2 who was convicted for an offence under Section 304, Part I,
IPC only. The High Court was not justified in convicting the
appellant for an offence under Section 302 IPC.
We have heard learned counsel for the parties and also
perused the records. Though there may be some merit in the
argument of learned counsel for the appellant that the evidence
of PW-1 cannot be believed to base a conviction on the
appellant, we are of the opinion that the evidence of PW-6 who
is the brother of the deceased who is not in any manner
inimically disposed towards the appellant, can not be rejected
on any ground, therefore, the factum of the appellant causing
the injuries to the deceased attributed to him by the courts
below, in our opinion, is justified. The question then is whether
the High Court was justified in differentiating between the act
of the appellant and A-2. We have noticed that the death of the
deceased is not attributed solely to the act of the appellant. The
doctor concerned has opined that the cause of death was due to
the cumulative effect of the injuries caused by the appellant and
A-2, therefore, there is no basis to differentiate between the acts
of the appellant and A-2 while examining the nature of offence
committed by them. As a matter of fact, the High Court has not
even tried to do that. In the course of its judgment, the High
Court observed :
"The evidence of P.W.7 Doctor would
go to show that the injury Nos.1 and 2 were
fatal, â\200¦ From the postmortem certificate
marked as Ex.P9, it would be clear that the
deceased would have died of shock and
haemorrhage due to injuries to vital organs
and multiple injuries. P.W.7 Doctor has
clearly opined that the external injury Nos.1
and 2 and the corresponding internal injuries
were fatal, â\200¦".
In the latter part of the judgment the High Court while
rejecting the prosecution case in regard to the application of
Section 149 IPC, it observed :
"â\200¦ they had no common object or
intention to kill or attack him. There was no
consensus among the accused or meeting of
mind among them in that regard. Nowhere it is
found that A-1 made any utterance directing
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any of the accused to attack the deceased. â\200¦
Under such circumstances, it cannot be held
that there was any unlawful assembly, having
the common object of killing or attacking the
deceased Manimaran."
Then the High Court abruptly comes to the following
conclusion :
"â\200¦ in view of the reasons stated and
discussions made above, the first appellant/A-1
is found guilty under section 302 of I.P.C.,
while the third appellant/A-3 is found guilty
under section 304 Part I of I.P.C."
We have carefully perused the judgment to find out
whether the High Court in its preceding paragraphs of the
judgment has anywhere given any reason for making a
distinction between the acts of the appellant and A-2 but we
find none.
In such circumstances, we think it appropriate to modify
the conviction recorded by the High Court under Section 302
IPC against the appellant to one under section 304, Part I, IPC,
for which offence we award a sentence of 7 years’ RI to the
appellant. We maintain all other convictions and sentences
awarded by the High Court to this appellant but direct the
substantive sentences to run concurrently. The sentence
undergone by the appellant shall be given remission. With the
said modification, this appeal is partly allowed.
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