Baskar @ Kannan vs State Of T.Nadu

Baskar @ Kannan ....Appellant

Versus

State of Tamil Nadu ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Madras High Court upholding the conviction of the appellant for offence

punishable under Section 304 Part II of the Indian Penal Code, 1860 (in

short the `IPC'). The accused persons are described as A-1, A-2 etc. as

described by the Trial Court. A-1 by the impugned judgment of the High

Court was held guilty of offence punishable under Section 302 IPC, while A-2 to A-7 including the present appellant were found guilty under Section

304 Part II, IPC and each was sentenced to undergo rigorous imprisonment

for five years. A-3 to A-7 were found guilty of offence under Section 324

IPC and each was sentenced to under RI for two years. A-1 to A-7 were

acquitted of the other charges leveled against them. A-9 and A-10 were

acquitted of the charges levelled against them. Fifteen persons faced trial,

out of whom the trial Court acquitted A-8, A-11 to A-15. By the impugned

judgment, as noted above, the High Court directed acquittal of A-9 and A-

10.

2. The prosecution version as unfolded during trial is as follows:

PW-1 is the native of Thugli Periyar Nagar. PWs 2, 3, 4 5 and 6 all

belonged to the same place. PWs 2, 3 and 4 were originally employed in

Ambika Sugar Mills, Kottur. P.Ws. 6 and 7 are also the residents of the said

place and all were carrying on agricultural operations. P.W.8 belonged to

kealathur village, where he was serving as village menial. P.W.9 belonged

to Keezhasuriya Moolai village, where he was serving as village assistant

community. A-1 to A-11 and A-13 to A-15 belong to Hindu Padayachi out

of whom, A-1 and A-2, though belonged to Hinduism originally, switched

over to Muslim faith. A-12 belonged to another community. P.Ws. 1 to 4

2 belonged to scheduled caste and they were all employed at the time of

occurrence under one Bhaskar.

On 26.3.2001 at about 5.00 p.m., after finishing work, P.Ws. 1 to 4

came out of the sugar factory and went to a nearby tea stall for taking tea. At

that time, A-1 was plying auto on the road. On seeing sugarcane on the

road, P.Ws. 1 to 4 were able to proceed on the middle of the road. When A-

1 came nearby he uttered "you add four more persons and lie on the road".

In reply, P.W.1 told him "on hearing the horn of the Auto, we gave way and

even then, why are you scolding". There arose a quarrel. In that, A-1 took

casurine stick and tried to attack P.W.1. The other witnesses, namely P.Ws.

2 to 4 held the accused and stopped him from attacking. This was also

witnessed by Thangeraj (hereinafter referred to as deceased), who was

taking tea in a nearby tea stall. He suddenly intervened and pacified them.

A-1 turned the Auto and took the same to Keezhasuriyamoolai village.

P.Ws. 1 to 4 went to Muniyendi Vilas for taking tea. Forty five minutes

later, at about 6.00 p.m., when the witnesses along with Thangaraju were at

the place of occurrence, A-l, A-2, A-4 to A-6 armed with aruvals, A-3

armed with an iron road and A-7 armed with a knife and the other accused

armed with casurina sticks, came there. The deceased Thangaraju tried to

3 pacify them. A-1 cut the deceased on the left side of the neck. Again A-1 cut

the deceased below the left ear. A-4 cut him on the left side of the hip. A2

cut him with aruval on the left shoulder. A-5 cut the deceased on the waist.

A-7 stabbed him with the knife on the left armpit and the deceased fell

down. A-3 beat PW-1 on the head with the iron rod. A-4 cut P.W.1 on the

left waist. The rest of the accused surrounded P.W.1 and cut P.W.1 on the

right arm, left shoulder, right thigh and on the back respectively and they

fled away from the place of occurrence.

One Mohan took P.W.1 to the Government Hospital, Kumbakonam,

where he was admitted by P.W.10, the Doctor, at about 7.00 p.m. He issued

Ex.P.11, the wound certificate. A communication was received by P.W.

13, the Head Constable, attached to Kumbakonam East Police Station at

19.30 hours, who in turn informed the same to Penthenellur Police Station,

within whose jurisdiction the occurrence has taken place. On receipt of the

intimation on 26.3.2001 at 1930 hours, P.W.16, the Sub Inspector of Police

proceeded to the Government Hospital, Kumbakonam at 2030 hours. He

recorded the statement of P.W.1, which was marked as Ex.P.1, on the

strength of which a case came to be registered in Crime No. 72 of 2001

under Sections 147, 148, 324, 307 and 302 IPC and Section 3(2)(v) of

SC/ST Act. Ext. P17 the FIR was dispatched to the Court.

4 P.W.19, the Deputy Superintendent of Police, on receipt of the copy

of the FIR on 26.03.2001 at about 11.00 p.m., proceeded to the place of

occurrence and made an inspection in the presence of two witnesses. He

prepared Ex.P.2, the observation mahazar and Ex.P.35, the rough sketch. He

conducted inquest on the dead body of the deceased in the presence of the

witnesses and panchayatdars and prepared Ex.P.35, the inquest report.

Following the same, the dead body was sent to the Government Hospital,

Thiruvidaimarudur for the purpose of post-mortem.

The autopsy of the dead body was conducted. During investigation

A-5 gave confessional statement voluntarily and the same was recorded in

the presence of witnesses. Following the same A-5 produced five aruvals,

one iron rod and one knife in the presence of witnesses. After completion

of investigation, charge sheet was filed. Since the accused persons pleaded

innocence trial was held. Prosecution examined 20 witnesses. As noted

above, the trial Court found the appellants to be guilty and awarded

punishments.

5 Before the High Court the primary stand related to acceptability of so

called eye witnesses PWs 1 to 4, particular emphasis was made on the

evidence of PW-1 to show that there could not have been a common object

to murder the deceased or attempt to murder PW-1. It was also submitted

that it is highly unbelievable that twenty persons were involved in such an

attempt. It was, therefore, highlighted that in a group clash PWs 1 to 4 could

not identify the assailants properly. The High Court did not find any

substance in the stand taken by the appellant. The High Court did not accept

the stand of the prosecution regarding applicability of Section 302 read with

Section 149 IPC. It was held that in respect of the respective acts committed

by each one of them the matter is required to be considered. From the post

mortem certificate it was noticed that the first injury was caused by A-1

with aruval on the neck and the corresponding injuries caused the death. At

the same time, A-2, A-4, A-5 and A-6 were armed with aruval, A-7 with

knife and A-3 with iron rod and they have attacked the deceased and

contributed corresponding injuries. Therefore, it was held that A-1 had to

be convicted in terms of Section 302 IPC. So far as others are concerned the

acts attracted Section 304 Part II IPC.

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3. In support of the appeal, learned counsel for the appellant submitted

that the High Court has erred in discarding the stand of the appellants before

it. So far as the present appellant is concerned there was no specific role

attributed to him. Therefore, his conviction as maintained by the High

Court cannot be sustained.

4. Learned counsel for the respondent-State on the other hand submitted

that this is a case where clearly Section 302 IPC read with Section 149 was

applicable. He however conceded that no appeal has been filed by the State

questioning the judgment of the High Court.

5. It is to be noted that PW-1 was not only an eye witness but also an

injured witness. Merely because PWs 1 to 4 were related to the deceased

that cannot be a ground to cast a doubt on the authenticity of their evidence.

What was required was the closer scrutiny of the evidence. PW-1 has

narrated the entire incident in Ext.P-1 which was lodged immediately while

he was admitted in the Government Hospital for treatment. In the Ext.P-1

PW-1 has categorically stated about the presence of A-1 to A-7. He had also

stated that A-1, A-2, A-3 A-4, A-5, and A-6, the present appellant were

armed with aruvals. He had also given a detailed description of the overt

7 acts attributable to each one of them, and as to how they attacked the

deceased. His evidence in Court is to similar effect . The evidence of PWs 2

to 4 is also in similar lines.

6. The High Court noted that after there was a quarrel A-1 went to his

village and brought all the accused persons with him. On the facts of the

case the High Court noted that there was absence of common object. What

was to be expected was an assault. Accordingly, it was held that A-2 to A-7

were guilty of offence punishable under Section 304 Part II, IPC. We find

that the trial Court and the High Court have rightly found the appellant

guilty. The reasoning given by the High Court to find the appellant guilty

does not suffer from any infirmity. The appeal is without merit and is

dismissed accordingly.

...............................................J. (Dr. ARIJIT PASAYAT)

.....................................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, January 206, 2009

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