Gone are the days that the defence counsel would take
trial proceedings so seriously and cross examine the witnesses
on the same day and also avoiding unnecessary questions by
extending fullest cooperation to the court for trial and disposal of
the cases. The case on hand is a classic illustration as to how
there is a complete change in the attitude of some of the counsel
and as to how they take it as a platform to harass the witnesses.
We are really anguished by going through the cross examination
of the witnesses in this case. We do not understand as to how the
Judge was a silent spectator without making any intervention
when the witnesses were harassed like anything. The expression
of our anguish in this judgement is only to convey our hope to all
concerned that the justice delivery system cannot be taken for a
ride by anyone. The time tested system will withstand all such
attempts in the war wagged against the system by unscrupulous
people
THE HIGH COURT OF JUDICATURE AT MADRAS
Judgement Pronounced on: 19..01..2017
CORAM
MR.JUSTICE S.NAGAMUTHU
and
MR.JUSTICE N.AUTHINATHAN
Criminal Appeal No.83, 84, 85 and 93 of 2016
Crl.A.No.83 of 2016
Sampathkumar Vs State
COMMON JUDGEMENT
S.NAGAMUTHU, J.
Dated: 19..01..2017
Citation: (2017) 2 MLJ(Criminal) 105
The Appellants in Crl.A.No.85 of 2016 are Accused Nos.1 to
5 and 8; the Appellant in Crl.A.No.83 of 2016 is the Accused
No.6; and the Appellant in Crl.A.No.84 of 2016 is the Accused
No.9 in S.C.No.75 of 2011 on the file of the learned Sessions
Judge, Sessions Court for Exclusive Trial of Bomb Blast Cases,
Coimbatore. The Appellant in Crl.A.No.93 of 2016 is the de facto
complainant and the prosecution witness No.1 in the said case.
Accused No.7 in this case is one Guruswamy, who is the 1st
respondent in Crl.A.No.93 of 2016. The respondents 2 to 19 in
Crl.A.No.93 of 2016 are Accused Nos.10 to 27. Thus, there were
a total number of 27 accused in the said case before the trial
court. The trial court, by judgement dated 03.12.2015, acquitted
A7, A10 to A27, who are respondents 1 to 19 in Crl.A.No.93 of
2016. Challenging their acquittal, the de facto
complainant/P.W.1 has come up with Crl.A.No.93 of 2016. The
trial court convicted Accused Nos.1 to 6, 8 and 9 under various
charges and sentenced them accordingly as detailed below:-
6
Rank of the
Accused
Charge under
which conviction
was recorded
Quantum of Sentence
imposed
A1 to A6, A8
& A9
Section 302 of IPC Imprisonment for life
and to fine of
Rs.1,000/- each in
default to suffer simple
imprisonment for six
months
A1 to A6, A8
& A9
Section 148 of IPC Rigorous imprisonment
for three year
A1 to A6, A8
& A9
Section 449 of IPC Imprisonment for life
and to fine of 1,000/-
each in default to
suffer simple
imprisonment for six
months
A1 to A6, A8
& A9
Section 427 of IPC Rigorous imprisonment
for three years
A1 to A6, A8
& A9
Section 3(1) of The
Tamil Nadu
Properties
[Prevention of
Damage and Loss]
Act
Rigorous imprisonment
for three years and to
fine of Rs.1,000/- each
in default to suffer
simple imprisonment
for six months
A1, A3 and
A4
Section 324 of IPC Rigorous imprisonment
for one year
A2 Section 324 of IPC
[Two counts]
Rigorous imprisonment
for one year for each
count
A8 Section 323 of IPC Simple Imprisonment
for six months
These sentences have been ordered to run concurrently
7
Challenging the above said conviction and sentences, A1 to A6,
A8 and A9 have come up with these criminal appeals. That is
how, these appeals are before this court for disposal.
2. The case of the prosecution in brief is as
follows:- "Pricol Limited" is a company incorporated under The
Companies Act, 1956. It has six plants. Plant-I is in
Periyanaickkenpalayam in Coimbatore District; Plant-III is in
Chinnamathampalayam in Coimbatore District; and Plant-IV is
in Karamadai in Coimbatore District. The other plants are in
other States. From the year 2009 onwards, one Mr.Roy J George
[hereinafter referred to as the deceased] was working as the
Vice President of HR Department of the said company. P.W.1
was then working as Assistant Manager in the Plant-I. P.Ws.2 to
6 were also workers in the same plant at
Periyanaickkenpalayam. The office of the deceased namely, the
HR Department, was in the plant premises at
Periyanaickkenpalayam.
3. It is alleged that there was a long standing labour unrest
among the workers in the said company. There were five
8
recognized trade unions consisting of the workmen of Pricol
Limited. Later on, two other trade unions by name "Kovai
District Pricol Employees Trade Union" was started for the
workmen in Plant-I at Periyanaickkenpalayam. For the workmen
in Plant-III at Chinnamathampalayam, "Kovai District Pricol
Workers Trade Union" was established. Kovai District Pricol
Employees Trade Union [For Plant-I] was headed by
Mr.Kumaraswamy (A10). A11 to A13 were the Office Bearers of
the said union. A7-Guruswamy was the President of Kovai
District Pricol Workers Trade Union [For Plant-III]. But, these
trade unions were not recognized by the management of the
company. This resulted in frequent disputes between the
members of these trade unions and the management. It was at
that juncture, the deceased took over as the Vice President of the
HR Department of the company. There were strike calls given
by these two trade unions. The deceased as the Vice President of
the HR Department spoke to the workmen and as a result, many
of the workmen turned in favour of management and then,
returned to work. Thus, these two trade unions started to have
the feeling that the deceased was responsible for the unrest
among the workers and their returning to work despite the strike
9
calls given. In that situation, a total number of 42 workmen
belonging to both the trade unions were dismissed from service.
Out of 42, later on, the deceased inducted 41 workmen with
break in service for five years. All these orders were issued by
the deceased. This further aggravated the unrest. Thus, the
members of these two trade unions had strong motive against
the deceased. On 20.09.2009, these trade unions held a meeting
in the trade union's office near Plant-I. A10 to A12 who were
leaders were on the dais. All other accused herein and few
others totalling around 30 workers participated in the said
meeting. It is further alleged that in that meeting, A10 to A12
spoke provocative words and told the workmen that the
deceased should be killed as he was responsible for the
disciplinary action taken against the workmen. It is also alleged
that all the accused who participated in the said meeting agreed
for the same. Thus, according to the prosecution, it amounts to
conspiracy on the part of these 27 accused to do away with the
deceased.
4. On 21.09.2009 around 11.40 a.m., the deceased was in
the HR Department of Plant-I at Periyanaickkenpalayam. P.Ws.1
10
to 6 who are also the staff of the same department, were also in
the office with the deceased discussing some issues relating to
the company. At that time, it is alleged that A1 to A9, who were
members of the above said trade unions, suddenly barged into
the office of the deceased. A1 to A9 were all armed with iron
rods. On trespassing into the office room of the deceased, it is
alleged that A1 shouted at the other accused and directed them
to attack the deceased as induced by his leaders, namely, A10 to
A12. So shouting, A1 commenced the attack on the deceased
with iron rod on his head once; A2 attacked the deceased with
iron rod on his head; and A3 to A9 attacked the deceased with
iron rods repeatedly. Having sustained injuries, the deceased fell
down in a pool of blood. In the same transaction, when P.W.1
tried to rescue the deceased, A1, A3 and A4 attacked him with
iron rods. One Sankar [not examined as a witness] who was also
in the room was attacked by A1, A2 and A4. He also sustained
injuries. P.W.2 who was present also tried to rescue the
deceased. A5 and A6 attacked him with iron rods. P.W.3 was
attacked in the same transaction by A2 and A3 with iron rods.
Then, all the nine accused [A1 to A9] fled away from the scene of
occurrence with the weapons. Thus, five persons namely, the
11
deceased, P.W.1 to 3 and one Sankar sustained injuries in the
occurrence.
5. P.W.7 and P.W.13 immediately took all the injured to
"Ganga Hospital" at Coimbatore for treatment. P.W.20 Dr.Madhu
Periyasamy, examined P.W.1 at 03.14 p.m. on 21.09.2009 at
Ganga Hospital, Coimbatore. He found the following two injuries
on him (1) a lacerated injury measuring 4 cm in length on the
middle of the head and there was also a contusion surrounding
the said injury and (2) an abrasion near the right wrist. There
was also tenderness near the said injury. P.W.20 treated him as
inpatient and discharged him on 27.09.2009. The injuries on
him, were all simple in nature and the said injuries, according to
him, could have been caused by an iron rod.
6. P.W.22, Dr.Sanjay Rajkumar, examined the deceased on
21.09.2009 at 01.22 p.m.. He was brought by his relative by
name Mr. Gerold George. He found a lacerated injury on his
head correspondingly there was a fracture of skull and brain
matter was protruding out. Ex.P.31 is the copy of the Accident
Register.
12
7. P.W.23, Dr.Balasubramanian, conducted surgery on the
deceased on the same day for the head injury. From the time of
his arrival in the hospital, the deceased was unconscious. After
the surgery was over, he was kept in the critical care ward.
Despite treatment, the deceased succumbed to the injuries at
01.22 p.m. on 22.09.2009.
8. P.W.19, Dr.Tamilselvi, examined P.W.3 on the same day
at K.R.Hospital at Periyanaickkenpalayam. She found that there
was a contusion measuring 8 x 5 cm on her left leg. Ex.P.27 is
the copy of Accident Register. The said injury could have been
caused by iron rod, she opined. She was treated as out patient.
The injuries were, according to the doctor, simple in nature.
9. P.W.24 Dr.Roy Wilson Armstrong, examined the injured
Sankar at Ganga Hospital, Coimbatore at 02.30 p.m. He found a
contusion on the right forearm. One of the bones was found
fractured corresponding to the said external injury. He was
discharged from the hospital on 22.09.2009. He opined that the
said injury could have been caused by a blow with an iron rod.
13
Ex.P.33 is the wound certificate. M.O.16 is the X-Ray taken on
the fractured wound. According to him, the injury was grievous
in nature.
10. When P.W.1 and the deceased were in Ganga Hospital
at Coimbatore, the hospital authorities gave intimation to
Periyanaickkenpalayam Police Station at 04.30 p.m. on
21.09.2009. P.W.27, the then Sub Inspector of Police,
Periyanaickkenpalayam, immediately rushed to Ganga Hospital.
Since the deceased was unconscious and since P.W.1 was
conscious, he recorded the statement from P.W.1 and on
returning to the police station, at 06.30 p.m. on 21.09.2009, he
registered a case in Crime No.557 of 2009 under Sections 147,
148, 324, 109, 307, 149 of IPC r/w 3(1) of The Tamil Nadu
Properties [Prevention of Damage and Loss] Act, 1992. Ex.P.1 is
the complaint. Ex.P.40 is the FIR. He forwarded both the
complaint(Ex.P1) and the FIR (Ex.P.40) to the court which were
received by the learned Magistrate No.VI, Coimbatore on
22.09.2009 at 03.00 p.m. [Vide the endorsement by the learned
Magistrate]. In the mean time, he handed over the case diary to
the Inspector of Police (P.W.30) for investigation.
14
11. P.W.30, the then Inspector of Police, took up the case
for investigation. According to him, at 06.55 p.m. on 21.09.2009,
he went to Plant-I of Pricol Limited at Periyanaickkenpalayam to
check the armed reserve police on bandobast duty outside the
said company premises. At that place, the Sub Inspector of Police
(P.W.27) handed over the FIR in the present case to him for
investigation. Immediately, he proceeded with the investigation,
prepared an observation mahazar and a rough sketch in the
presence of P.W.14 and another witness. Between 07.00 p.m.
and 07.30 p.m. he recovered movable properties damaged by the
accused namely, HCL Digital Monitor, Black Metal Laptop,
broken glass panes, blood stained earth and sample earth from
the place of occurrence under Ex.P.5 mahazar. Then, he
examined many witnesses at the place of occurrence and
recorded their statement. On going over to the hospital, he found
that the deceased was still undergoing treatment in unconscious
state. Then, he examined P.W.1 and others.
12. On the same day, at 10.00 p.m. he arrested A1 to A6.
While in custody, A1 to A6, one after the other, gave voluntary
15
disclosure statements wherein they disclosed the place where
they had hidden the respective iron rod. In pursuance of the
same, they took the police and the witnesses to the respective
place of hide out and produced the iron rods. P.W.30 recovered
the iron rods [M.Os.1 to 6] under individual mahazars in the
presence of the same witnesses. Then, he forwarded A1 to A6 to
court for judicial remand. He recovered the blood stained cloths
of the injured witnesses. While so, the deceased died at 01.27
p.m. on 22.09.2009. On receiving the intimation from the
hospital, P.W.30 altered the case into one under Section 302 of
IPC. On the same day, between 01.30 p.m. and 03.45 p.m., he
conducted inquest on the body of the deceased and forwarded
the same for postmortem.
13. P.W.21 Dr.T.Jayasingh, conducted autopsy on the body
of the deceased on 22.09.2009 at 04.15 p.m. He found the
following injuries:-
"A vertical stapled laceration (7 staples)
measuring 6 cm in length noted on left side
forehead, 0.5 cm left to midline. The lower end
is 3 cm above to inner aspect of left eye brow.
16
On dissection , A surgical burr hole 1.5 cm in
diameter and continuing downwards as a bony
defect with irregular margin over the area of 2
x 1 cm noted on left lower frontal bone 1 cm
left to midline through which a part of brain
tissue found protruded out. The underlying
dura found lacerated and laceration of brain 3 x
2 x 1 cm noted on left frontal region.
(2) A curved stapled laceration (6 staples)
measuring 5 cm length noted on left frontal
region, 3 cm left to midline. The lower end is 5
cm above to left eyebrow.
(3) A vertical stapled laceration (7
staples), measuring 5 cm in length noted on
right side forehead, 3 cm right to midline. The
lower end is 11 cm above to middle of right eye
brow. A surgical burr hole of 1.5 cm in
diameter noted on right upper frontal region, 1
cm below to right side coronary suture, and 3
cm right to midline.
On dissection of scalp, skull and dura: Sub
17
scalpel contusion of 22 x 10 cm noted on both
frontal and left temporal region. Diffused sub
dural and sub arachnoid hemorrhages noted on
both cerebral hemisphere. Subdural clot about
100 grams noted on falx cerebri and 20 grams
noted on occipital lobe.
Other findings:
Pleural and peritoneal cavities - empty
Lungs - cut section - congested
Larynx and trachea - cut section - normal
Heart - right side chambers contains few
cc of fluid blood. Left side chambers empty.
Coronary arteries patent
Hyoid bone - intact
Stomach contains 100 ml of fluid blood
with clot, no specific smell and mucosa -
congested
Liver, Spleen, Brain & Kidneys - cut
section congested.
Urinary bladder - empty."
He gave opinion that these injuries found on the body of the
18
deceased could have been caused by iron rods, like M.Os.1 to 8.
He further opined that the death of the deceased was due to
shock and hemorrhage due to the injuries on the dead body.
After the postmortem was over, P.W.30, recovered the blood
stained dress material from the body of the deceased and
thereafter, forwarded the same to the court. On 24.09.2009,
around 11.00 a.m., he arrested A8. While in custody, he made a
voluntary confession in which he disclosed the place where he
had hidden an iron rod. In pursuance of the same, A8 took the
police and the witnesses to the place of hide out and produced
M.O.7 iron rod under a cover of mahazar [Ex.P.47]. Then,
P.W.30 forwarded A8 to court for judicial remand. P.W.30
recovered a compact disc containing the recordings of the
meetings held on 20.09.2009. But, unfortunately, he could not
recover the CCTV footages kept in the company because on
21.09.2009 due to some technical fault, there was no recording.
At his request, the materials objects were forwarded for
chemical examination which revealed that there were human
blood stains on the same. On completing the investigation, he
laid charge sheet against the accused.
19
14. Based on the above materials, the trial court framed
charges as detailed below:-
Charge Number Rank of the Accused Penal provision under
which charges were
framed
(1) A1 to A9 Section 120-B r/w 302
of IPC
(2) A1 to A9 Section 148 of IPC
(3) A1 to A9 Section 427 of IPC r/w
3(1) of TNPPDL Act,
1992
(4) A1 to A9 Section 449 of IPC
(5) A1 to A9 Section 302 of IPC
(6) A1, A3 and A4 Section 326 of IPC
(7) A1 to A6 and A8 Section 324 of IPC [3
counts]
(8) A10 to A27 Section 120(B) r/w
302 of IPC
(9) A10 to A27 Section 302 r/w 109
of IPC
A1 to A27 denied the same and thus, they were put on trial. In
order to prove the case, on the side of the prosecution as many
as 30 witnesses were examined, 57 documents and 9 materials
objects were marked.
15. Out of the said witnesses, P.Ws.1 to 3 are the injured
witnesses and P.W.4 to 6 are eye witnesses to the occurrence.
20
P.W.1 has spoken about the motive also. He has stated that
around 11.40 a.m. on 21.09.2009, when he was at the Office of
the deceased, A1 to A9 trespassed into the HR office. He has
further stated about the overt acts of A1 to A9. He has further
stated that he and the other injured witnesses were taken to the
hospital. He has also stated that he made a complaint to the
police around 05.30 p.m. on 21.09.2009. He has identified A1
and A2 in court.
16. P.W.2, yet another injured witnesses, has stated that
when he was with the deceased at his Office, a crowd of people
trespassed into the office, attacked the deceased and P.Ws.1 to 3
and another. During his chief examination, he has stated that he
could not identify the assailants as he was examined after six
years. Thus, his evidence is very vague in nature wherein he has
stated that a crowd of people came and attacked. He has not
implicated any of the accused. Therefore, he was treated as
hostile by the prosecution.
17. P.W.3 is yet another injured witness. She has stated
that when he was in the office, a crowd of people came and
21
attacked the deceased as well as the injured eye witnesses. But,
she has identified A2 as one of the assailants. She has stated that
A2 attacked her. She has not implicated any other accused.
18. P.W.4 is not an injured witness. She was working in
Plant-I at Periyanaickkenpalayam, during the relevant period.
She has stated that around 11.40 a.m. on 21.09.2009 he was
sitting on his chair in the HR Office, which was just opposite to
the cabin of the deceased. He has further stated that at that
time, A1 to A9 trespassed into the cabin of the deceased,
attacked him as well as the other injured witnesses. But, when
he was called upon by the court to identify the assailants, he had
stated that except A1 and A9, he could not identify any other
assailants. Thus, his evidence is only against A1 and A9 and not
against the other accused. When he was asked to identify A9-
Gunabalan, he wrongly identified A8-Saravanakumar, as A9-
Gunabalan. Thus, his evidence incriminates only A1.
19. P.W.5 was a Senior Officer in the HR Department of
Plant-I of Pricol Limited during the relevant period. He has
22
stated that on 21.09.2009, he was very much in his office at
11.40 a.m. He has stated that A1 to A9 came, trespassed into the
office of the deceased, attacked him as well as the other injured
witnesses. He has identified A1 to A9 in court as the assailants.
He has further stated that in Plant-I of Pricol Company Limited,
CCTV camera had been erected. M.O.12 is the company disc
containing recordings on 21.09.2009.
20. P.W.6 is yet another eye witnesses to the occurrence.
He was also working in HR Department of Plant-I of Pricol
Company Limited during the relevant time. According to him, at
11.40 a.m. when he was in the office, A1 to A9 trespassed into
the office of the deceased, attacked the deceased as well as the
injured witnesses. He has identified A1 and A9 as the assailants.
P.W.7 has stated that he took all the injured to Ganga Hospital
and admitted them as inpatient.
21. P.W.8 was working in the plant-I of Pricol Limited at
Periyanaickkenpalayam during the relevant time. A2 was
working as Assembly Operator in the said plant. Between 11.10
a.m. and 11.40 a.m. there was a leisure time for the workmen.
23
On 21.09.2009, according to him, A2 turned up for duty at 08.30
a.m. itself. Till 11.10 a.m. he was engaged in his work. At 11.10
a.m., he left the work spot to spend his leisure time. He should
have returned at 11.40 a.m., but , he did not return.
22. P.W.9 was working as Senior Engineer in the Machine
Shock Section of Plant-I at Periyanaickkenpalayam. A6 was
working in his department. On 21.09.2009 at 07.00 a.m. A6 has
turned up for duty. The leisure time was between 11.10 a.m. and
11.40 a.m. A6 in order to spend his leisure time, went out of the
work spot. He should have returned by 11.40 a.m. but, he
returned only at 12.00 p.m. and worked till 02.30 p.m.
Thereafter, he did not see A6.
23. P.W.10 was the Production Manager of Plant-I at
Periyanaickkenpalayam where A3 was working. According to
P.W.10, on 21.09.2009, A3 had turned up for duty at 07.25 a.m.
itself. The leisure time was between 11.10 a.m. and 11.40 a.m.
A3 left the work spot to spend his leisure time, but he did not
return after the leisure time was over.
24
24. P.Ws.11 and 12 have spoken about the meeting held on
20.09.2009. According to them, A10 to A12 spoke in the meeting
held on 20.09.2009 provoking the other accused who
participated in the meeting. In that meeting , according to him,
A10 to A12 told the other accused that the deceased should be
killed as he was responsible for the disciplinary action taken
against the workmen. They have spoken about the alleged
conspiracy. P.W.3 has spoken that he took the deceased and the
other injured persons with the help of P.W.7 to the hospital.
25. P.W.14 has spoken about the preparation of the
observation mahazar and the rough sketch by the police at the
place of occurrence. P.W.15 has spoken about the arrest of A15
and the consequential recovery of the material object. P.W.16
has spoken about the arrest of A9 and the consequential
recovery of iron rod. P.W.17 has stated that he took videograph
of the trade union meeting that was held on 20.09.2009 in the
trade union's office. P.W.8 has spoken about the arrest of A1 to
A6, their disclosure statements and the consequential recoveries
of M.Os.1 to 6. P.W.19 has spoken about the treatment given to
P.W.3. P.W.20 has spoken about the treatment given to P.W.1.
25
P.W.22 has spoken about the treatment given to the deceased at
Ganga Hospital. P.W.23 has spoken about the surgery conducted
on the deceased and the death of the deceased at 01.22 p.m. on
22.09.2009. P.W.21 has spoken about the post-mortem
conducted on the body of the deceased and his final opinion
regarding the cause of death. P.W.24 has spoken about the
treatment given to one Sankar, who has not been examined as
prosecution witnesses. P.W.25 and P.W.26 are the Head Clerks
of the Court of the Judicial Magistrate concerned. They have
spoken to the effect that they forwarded the material objects
produced by the police on the orders of the learned Judicial
Magistrate for chemical analysis. P.W.27, the then Sub Inspector
of Police has spoken about the registration of the case. P.W.28,
the Head Constable has stated that he took the dead body after
the inquest was over and handed over the same to the doctor for
post-mortem as directed by Inspector of Police. P.W.29 has
spoken about the fact that he assisted P.W.30 during
investigation. P.W.30 has spoken about the entire investigation
done by him in this case and the filing of charge sheet against
the accused.
26
26. When the above incriminating materials were put to the
accused under Section 313 of Cr.P.C. they denied the same as
false. On their side, A7, A9 and A10 have been examined as
D.Ws.1 to 3 respectively. D.W.1 has stated that on 03.03.2007,
on account labour dispute, he was transferred to the plant at
Uttaranchal along with A11 and A12 and few others. Ex.P.26 is
the transfer order. According to him, on 20.09.2009, there was
no meeting at all held and he was not aware of the happenings
on 21.09.2009 as he was not present at all. D.W.2 is A9 in the
case. He has stated that his mother was seriously ill from
21.09.2009 onwards. Thus, he was on leave between 21.09.2009
and 23.09.2009. Ex.D.7 is the leave slip. According to him,
during the relevant period, he had gone to Dindigul to attend on
his ailing mother at a hospital. His plea is one of alibi.
27. D.W.3 is A10. He has stated that he is an Advocate by
profession and also a member of a Political Outfit known as
"Communist Party of India (Marxist-Leninist)". He has done a
number of cases for the workers who are members of the above
said trade unions both before the High Court as well as the
Subordinate Courts. Because he was actively assisting the
27
workmen, according to him, he has been falsely implicated. On
the side of the accused as many as 14 documents have been
marked. Thus, the defence was a total denial.
28. Having considered all the above, the trial court
convicted the Appellants/A1 to A6, A8 and A9 as detailed in the
first paragraph of this judgement and sentenced them
accordingly. Challenging the above said conviction and
sentences, A1 to A6, A8 and A9 are now before this Court with
Crl.A.Nos.83 to 85 of 2016 and challenging the judgement of the
trial court acquitting A7 and A10 to A27, the de facto
complainant has come up with Crl.A.No.93 of 2016. There is no
appeal preferred either by the State or by P.W.1 as against the
acquittal of A1 to A6 and A8 to A9 from the other charges.
29. We have heard the learned counsel appearing for the
appellants/Accused and the learned Additional Public Prosecutor
appearing for the State and the learned counsel for the de facto
complainant and we have also perused the records carefully.
30. For the sake of convenience, let us take up the case
28
against A10 to A27 at the first. Admittedly, these accused did
not participate in the occurrence which took place on
21.09.2009. According to the charge, they participated in the
meeting held on 20.09.2009 at the trade union's office which was
addressed by A10 to A12. It is alleged that in that meeting A10 to
A12 spoke in a provocative manner and declared that they
should do away with the deceased. The trial court has
disbelieved this part of the case of the prosecution. To speak
about the said meeting, the prosecution examined P.Ws.11 and
12. These two witnesses have stated that they also participated
in the meeting. If that be so, though they have not been arrayed
as accused, they are only accomplices. As per Section 114 of the
Evidence Act, the court may presume that these two accomplices
are unworthy of credit. As per the same provision, the evidence
of an accomplice is unworthy of credit and unless there is
corroboration in general particulars from independent sources, it
cannot be the foundation for conviction. On this legal principle,
the evidences of P.Ws.11 and 12 should be rejected as the same
could not form the sole basis for conviction. Apart from that, the
trial court has disbelieved these two witnesses because of their
conduct. Had it been true that they witnessed the conspiracy,
29
which was hatched on 20.09.2009, they would not have kept
mum until they were examined by the police. Going by the
natural human conduct, they would have had instinct to tell
about the same either to the deceased or to any other worker or
any responsible officer in the company. They did not do so. From
this, the trial court has come to the conclusion that these two
witnesses have been planted. Thus, we agree with the findings of
the trial court that these two witnesses are unbelievable. Apart
from that, the trial court relies on the video recordings of the
meeting recorded by P.W.17. But, what is available before the
court is only the Compact Disc (M.O.11). Admittedly, M.O.11
does not satisfy the legal requirements of Section 65-B of The
Evidence Act. As per the Judgement of the Hon'ble Supreme
Court in P.V.Anvar v. P.K.Basheer, (2014) 10 SCC 473,
M.O.11-Compact Disc is not admissible in evidence. If once
M.O.11 is eschewed from consideration and the evidence of
P.Ws.11 and 12 are rejected as unbelievable, then there remains
no other evidence against A10 to A27 except the fact that they
were the members of the trade unions in question and that there
had been labour unrest. Thus, the trial court was right in
acquitting A10 to A27 which does not require any interference at
30
the hands of this court.
31. Now, turning to the case against A7 who stands
acquitted by the trial court, again we find no infirmity in the
judgement of the trial court. The learned senior counsel
appearing for Accused No.7 would submit that because he was
an active member of the trade union, his name came to be
implicated in the FIR as an after thought. Apart from that he has
examined himself as D.W.1 where he has stated that he was not
present at the place of occurrence and he also did not participate
in the meeting allegedly held on 20.09.2009. He has stated that
even in the year 2007 itself, he was transferred to Uttaranchal.
32. The trial court has accepted these two contentions
advanced on behalf of A7 and has acquitted him from the
charges. In order to verify the correctness of the said conclusion
arrived at by the trial court, we have gone through the
complaint-Ex.P.1. The alleged occurrence was at 11.40 a.m. on
21.09.2009 whereas the FIR was allegedly registered at 06.30
p.m. on 21.09.2009. The FIR had reached the hands of the
learned Magistrate at Coimbatore on the next day, that was, on
31
22.09.2009, that too, at 03.00 p.m. Absolutely, there is no
explanation for this inordinate delay. That apart, in Ex.P.1-
Complaint, the name of A7 was obviously interpolated as an
assailant between the names of Velmurugan and Sampathkumar.
It is stated in Ex.P.1 that A7 also came with the other accused
namely, A1 to A6, A8 and A9. In Ex.P.1 no other overt act
whatsoever has been attributed against A7. But, strangely,
besides shockingly, Ex.P.40-FIR shows that the name of A7 was
interpolated between the names of accused Sampathkumar and
Saravanakumar. This interpolation was made after the name of
Sampathkumar because in Ex.P.40 there is no space before the
name of Sampathkumar so as to interpolate the name of A7. In
the body of Ex.P.40, interpolation of the name of A7 has been
made. As we have already stated, no overt act has been
attributed to A7 in Ex.P.1, except stating that he came along with
the other accused to the office of the deceased. But, in Ex.P.40, it
is stated that A7 also attacked the deceased with iron rod.
Similarly, though in Ex.P.1, it is stated by means of interpolation
that A7 came along with the other accused, there is no such
interpolation found in Ex.P.40 so as to say that A7 also came
along with the other accused. In fact, Ex.P.40-FIR should be
32
strictly the replica of Ex.P.1-Complaint and there should not be
any variance. But, shockingly, Ex.P.1-Complaint and Ex.P.40-
FIR, are in variance. As we have already elaborated, absolutely,
there is no explanation for the same. Ex.P.40 further reflects that
originally there were ten named accused. But, A7-Guruswamy's
name was interpolated after the name of A6-Sampathkumar and
thereafter the serial number of the other accused have been
corrected in Ex.P.40. These interpolations and corrections would
clearly go to show that after the case was registered under
Ex.P.40, as an after thought the name of A7 was interpolated in
Ex.P.1 as well as in Ex.P.40. Absolutely, there is no explanation
for these interpolations except the explanation by P.W.1 that
after Ex.P.1 was drafted and read over to him since he found the
name of A7 missing, he wanted the same to be inserted in Ex.P.1.
If this version is true, there is no chance at all for any such
interpolation in Ex.P.40 which was registered later based on
Ex.P.1. But, as we have already pointed out, there were
interpolations and corrections in Ex.P.40 also and the same
would go to clearly prove that the interpolations and corrections
both in Ex.P.1 and Ex.P.40 were made after the case was
registered. This would give rise to a natural presumption that
33
A7's name was included, later on, by means of interpolation and
correction because he also happened to be an active member of
the trade union. Had he been present at the time of occurrence,
had he got any overt act, certainly, these facts would have been
mentioned in Ex.P.1 without there being any interpolation. For
these reasons, the trial court has rejected the case against A7.
We find no infirmity in the said conclusion arrived at by the trial
court at all calling for interference at our hands. Thus, the
appeal, challenging the acquittal of A7 also deserves to be
dismissed.
33. In conclusion, we find no merit at all in Crl.A.No.93 of
2016 challenging the acquittal of A7 and A10 to A27 and
therefore, we are inclined to dismiss the above said criminal
appeal filed by the de facto complainant [P.W.1] in the case.
34. Now, turning to the case against A1 to A6, A8 and A9,
the learned senior counsel would submit that truth is not before
the court and on that score the entire case of the prosecution
should be rejected. In order to substantiate his contention, the
learned senior counsel would make reliance on Ex.P.1-Complaint
34
and Ex.P.40-FIR. He would submit that there are interpolations
and corrections in these two documents. We have already
concluded in agreement with the learned senior counsel that
there were interpolations as well as corrections in Ex.P.1-
Complaint and Ex.P.40 FIR which would certainly create an
initial doubt in the mind of this court.
35. Apart from that, the learned senior counsel would
submit that P.W.30 has admitted that just 50 feet away from the
HR Office, which is situated in the Plant-I premises at
Periyanaickkenpalayam, there were police men on bandobast
duty because there was unrest among workers for a long time.
P.W.30 has further admitted that he was present at the place of
occurrence at the time of occurrence. The place of occurrence is
at a distance of hardly 1/2 km from the police station which has
been admitted by P.W.20, the Sub Inspector of Police also.
Admittedly, it was a big rioting in which at least five persons
sustained injuries and one was very seriously injured in the
Office premises. Pricol Company Limited is a big establishment
where there would have been a number of workers on duty
including the officers. When the policemen were on bandobast
35
duty just 50 feet away from the place of occurrence and the
distance between the police station and the place of occurrence
is hardly 1/2 km, it is highly doubtful that the occurrence was not
known or reported to the police until 06.30 p.m. on 21.09.2009.
We believe that the police should have had information
immediately after the occurrence because there were police
men on duty near the place of occurrence and that there would
have been some other information to the police. In our
considered opinion that earliest information has been
suppressed by the police. This creates further doubt in the case
of the prosecution.
36. According to P.W.27, he received an intimation from
the hospital at 04.30 p.m. on the day of occurrence and
thereafter only, he went to the hospital, recorded the statement
of P.W.1 and on returning to the police station he registered the
case at 06.30 p.m. As we have already pointed out, it is highly
unbelievable that there was no other information to the police
about the occurrence till 06.30 p.m. on 21.09.2009. The learned
senior counsel Mr.Ashok Kumar would submit that Ex.P1-
Complaint and Ex.P.40-FIR would have come into being at 06.30
36
p.m. on 21.09.2009. We find force in the said argument also.
37. Both Ex.P.1 and Ex.P.40 reached the hands of the
learned Magistrate only at 03.00 p.m. on 22.09.2009. After all,
the distance between Periyanaickkenpalayam Police Station and
the court of learned Magistrate is hardly about 15 km. But, the
FIR, which was allegedly registered at 06.30 p.m. on 21.09.2009,
reached the hands of the learned Magistrate only at 03.00 p.m.
on the next day, that is, after 21 1/2 hours. Absolutely there is no
explanation for such inordinate delay. P.W.27, the then Sub
Inspector of Police has nothing to say about the delay. The police
constable who carried the FIR and handed over the same to
court has also not been examined. Thus, the above said
unexplained delay coupled with the manipulations and
corrections made in the FIR and the suppression of initial
information, as we have already discussed hereinabove, would all
go to create further doubt regarding the case of the prosecution.
38. Now, the question is, whether the entire case of the
prosecution should be doubted and thrown out on that score? We
find it difficult to do so. It is true that Ex.P.1-Complaint and
37
Ex.P.40-FIR do not reflect the true version of the occurrence.
But, when there are injured witnesses, who have spoken about
the occurrence and if the court is able to separate the grains
from the chaff, the entire case of the prosecution cannot be
rejected solely on the ground that the FIR creates doubts.
39. Let us, now, examine, whether the grains from the chaff
could be separated. In this regard, let us now, analyse the eye
witness account of P.Ws.1 to 6. Out of these witnesses, P.W.2
has not supported the case of the prosecution in full. He has
stated when he was in the office of the deceased, a crowd of
people came and attacked the deceased and the injured. He did
not identify any of the accused as assailants though, he was
specifically called upon to do so. He has stated that since he was
examined after six years of the occurrence, he was not in a
position to identify any of the assailants. Thus, his evidence
would not go to prove the guilt of any of these accused, however,
it would only go to prove that a crowd of people came around
11.40 a.m. with iron rods and attacked the deceased as well as
the injured witnesses.
40. P.W.3, the other injured eye witness has stated that a
38
crowd of people came with iron rods and attacked the deceased
as well as the injured witnesses. She identified A2 and A8 alone.
there is no evidence that these witnesses knew these accused
previously. According to the case of the prosecution, she knew
all the nine accused [A1 to A9], but she had not chosen to
identify the rest of the accused. Thus, in our considered view,
she is not a reliable witness and, therefore, her evidence
implicating A2 and A8 alone deserves to be rejected. Her
evidence could, at the most, be believed to the extent that a
crowd of people came with iron rods and attacked the deceased
as well as the injured witnesses.
41. P.W.1, the vital injured witness for the prosecution, has
stated only about the over acts attributed to A1 to A9. More
specifically, he has spoken about the presence of P.W.7 and
participation of A9-Gunabalan. A7-Guruswamy's name, as we
have already concluded, was interpolated later and, A9-
Gunabalan's name does not find a place in Ex.P.1 at all. Had it
been true that A9 participated in the occurrence on 21.09.2009,
P.W.1 would have mentioned his name in Ex.P.1 itself. When he
has stated that since after the complaint-Ex.P.1 was drafted and
39
read over to him, he found missing of the name of A7 and,
therefore, he wanted A1's name to be interpolated, he would
have similarly asked the person who drafted the complaint to
interpolate the name of A9 also in Ex.P.1. At the same time, he
implicated A9 only during investigation. There is no explanation
from him as to why he did not implicate A9 in the complaint-
Ex.P1. Thus, this witness also cannot be fully believed. He has
rendered himself only as partly believable.
42. A9 has examined himself as D.W.2. He has stated that
during the relevant time, he was in Dindigul attending on his
ailing mother in a private hospital. Ex.D7 is his leave slip.
Though, this witness was cross examined at length, nothing has
been elicited from him to disbelieve his evidence. The only point
taken by the prosecution is that no medical records pertaining to
the treatment made to his mother at Dindigul Hospital has been
produced. When the prosecution has got no explanation as to
why his name was not included as stated in Ex.P.1 complaint, the
evidence of D.W.2 (A9) seems to be probable and acceptable. For
these reasons only, we have concluded that P.W.10 also only
partly believable. Above all, according to him, A1 and A2 gave
40
one blow each on the head of the deceased and the other
accused attacked the deceased repeatedly. But, there were no
corresponding injuries at all on the head of the deceased, except
the injuries allegedly caused by A1 and A2. Thus, the medical
evidence contradicts his evidence as against A2 and A9 and
corroborates his evidence only as against A1 and A2.
43. Now, turning to the evidence of P.W.4, he has stated
about the presence and participation of A1 to A9. When he was
asked to identify A1 to A9, he identified A8 as A9. It is not as
though he knew all the accused previously. He has further
spoken that since the occurrence had taken place six years
before he was not able to identify the accused. Therefore, his
evidence also cannot go to prove the guilt of the accused namely,
A1 to A9 and, at the most, his evidence can go only to prove that
a crowd of people came and attacked. P.W.5 claims to have seen
the occurrence. He has identified A1 to A9. He has spoken only
about the damages caused to the properties and he has not seen
the injured and the deceased being attacked by any one. Thus,
his evidence would not go to prove as to who actually attacked
the deceased and the injured eye witnesses.
41
44. P.W.6, yet another eye witness, has, of course, stated
about the overt acts of A1 to A9. But, his evidence is highly
doubtful as he has stated that each one accused inflicted one
injury either on the head of the deceased or the injured
witnesses one after the other in a seriatim. He is a witness
belonging to the management of Pricol Limited. His evidence
also does not impress us. Thus, we reject his evidence also.
45. From the foregoing discussion what remains is the
evidence of P.W.1 against A1 and A2 alone. We have already held
that his evidence as against the other accused is not
corroborated by medical evidence and there are also other
reasons which we have discussed to reject his evidence as
against A3 to A9. So far as A1 and A2 are concerned, we are of
the view that the presence and participation of A1 and A2 stands
proved.
46. The learned counsel appearing for the accused would
submit that CCTV camera erected at the HR department of Pricol
Limited, would have recorded the entire occurrence. Had the
42
same been seized, according to the learned counsel, it would
have proved the truth. But, the same has not been seized by
P.W.30. P.W.3 has explained that CCTV camera that was
installed had been recording the events prior to 21.09.2009 and
on 21.09.2009, it did not record anything. M.O.12 is the Compact
Disc taken out from the recordings of the CCTV camera. M.O.12
does not contain the certificate as required under Section 65-B
of the Evidence Act and therefore, the same is to be rejected.
Except, the ipso facto evidence of P.W.30 that there was no
CCTV camera recording on 21.09.2009, we do not have any
other evidence to prove the same. Though the learned senior
counsel would call it as a suppression of an important evidence,
we are of the view that it only reflects the ignorance of P.W.30 in
respect of collection of scientific evidences and we are not in
agreement with the senior counsel that it would amount to
suppression. Under Section 114 of the Evidence Act a
presumption may be drawn adverse to the prosecution, if only
there is suppression of any evidence. In this case, we do not find
anything to show that the CCTV recordings have been
suppressed and since we hold that this was a sheer ignorance of
P.W.30 to collect the CCTV recordings, we are unable to draw
43
any adverse presumption as provided in Section 114 of the
Evidence Act.
47. In view of the above discussion, from the evidences of
the eye witnesses including the injured witnesses, we find that
the prosecution has clearly proved that a crowd of people barged
into the office of the deceased where the injured witnesses were
sitting and the crowd of people mounted attack on the deceased.
In that, more specifically, A1 and A2 participated and that they
caused the death of the deceased by attacking him with iron
rods. So far as the attack on the others are concerned, we find
the evidences of the injured witnesses unbelievable. Therefore,
we hold that the prosecution has proved the charges against A1
and A2 under Section 148, 302 r/w 149 and 449 of IPC alone.
Though the other accused are acquitted, it cannot be said that
A1 and A2 cannot be convicted under Section 148 of IPC as well
as by invoking Section 149 of IPC. As we have already pointed
out, there is enough evidence to prove that there was an
unlawful assembly of the assailants and the accused A1 and A2
were the members of the said unlawful assembly. The other
members of the assembly are not known for want of evidence.
44
Similarly, there is evidence that the crowd of people only
attacked the deceased, more particularly, A1 and A2, attacked
the deceased. Therefore, they are also liable for punishment
under Section 302 r/w 149 of IPC.
48. We, in fact, called upon the learned senior counsel to
make his submissions as to whether in the absence of a charge
under Section 149 of IPC, A1 and A2 could be convicted by
invoking Section 149 of IPC. In this regard, we may refer to the
judgement of the Hon'ble Supreme Court in Dumpala Chandra
Reddy v. Nimakayala Balireddy, 2008 (8) SCC 339, wherein
in a similar circumstance, the Hon'ble Supreme Court in para 18
to 21 has held as follows:-
"18. This Court, in the oft repeated case
of Willie (William) Slaney Vs. State of Madhya
Pradesh (1955 (2) SCR 1140) had highlighted
the aspect of prejudice. This decision has
been referred to in a large number of
subsequent cases dealing with the question of
prejudice in the background of Section 464 of
the Code of Criminal Procedure, 1973 (in
short `the Code'). In Ramkishan and Ors. Vs.
State of Rajasthan (1997 (7) SCC 518), it was
noted as follows:
"In view of the findings
recorded by the learned Sessions
Judge and the material on record, we
are unable to ascribe to the finding
that the appellants' intention was to
cause death of Bhura deceased. The
finding betrays the observation of the
trial court as noticed above. The
medical evidence also does not
support the ultimate finding
recorded by the trial court and
upheld by the High Court. The
offence in the established facts and
circumstances of the case in the case
of the appellants would only fall
under Section 304 Part II IPC read
with Section 149 IPC and not
under Section 302 IPC. Indeed no
specific charge indicating the
applicability of Section 149IPC was
framed, but all the ingredients
of Section 149 IPC were clearly
indicated in the charge framed
against the appellants and as held by
46
the Constitution Bench of this Court
in Willie (William) Slaney Vs. State of
M.P. the omission to mention Section
149IPC specifically in the charge is
only an irregularity and since no
prejudice is shown to have been
caused to the appellants by that
omission it cannot affect their
conviction."
19. Similar view was also taken in B.N.
Srikantiah and Ors. Vs. The State of Mysore (1959
SCR 496) in the background of Section 34, viz-aviz
Section 149, IPC. In Dalbir Singh Vs. State of
U.P. (2004 (5) SCC 334), it was noted as follows.
"15. In Willie (William) Slaney
Vs. State of M.P. a Constitution
Bench examined the question of
absence of charge in considerable
detail. The observations made in
paras 6 and 7, which are of general
application, are being reproduced
below:(AIR P 121 6)
"6. Before we proceed to set
out our answer and examine the
provisions of the Code, we will
pause to observe that the Code is a
Code of procedure and, like all
procedural laws, is designed to
further the ends of justice and not to
47
frustrate them by the introduction of
endless technicalities. The object of
the Code is to ensure that an
accused person gets a full and fair
trial along certain well established
and well-understood lines that
accord with our notions of natural
justice.
If he does, if he is tried by a
competent court, if he is told and
clearly understands the nature of
the offence for which he is being
tried, if the case against him is fully
and fairly explained to him and he is
afforded a full and fair opportunity
of defending himself, then, provided
there is 'substantial' compliance
with the outward forms of the law,
mere mistakes in procedure, mere
inconsequential errors and
omissions in the trial are regarded
as venal by the Code and the trial is
not vitiated unless the accused can
show substantial prejudice. That,
broadly speaking, is the basic
principle on which the Code is
based.
7. Now, here, as in all
procedural laws, certain things are
48
regarded as vital. Disregard of a
provision of that nature is fatal to
the trial and at once invalidates the
conviction. Others are not vital and
whatever the irregularity they can
be cured; and in that event the
conviction must stand unless the
Court is satisfied that there was
prejudice. Some of these matters
are dealt with by the Code and
wherever that is the case full effect
must be given to its provisions.
15.1 After analysing the
provisions of Sections 225,232, 535
and 537 of the Code of Criminal
Procedure, 1898 which correspond
to Sections 215, 464(2), 464 and
465 of the 1973 Code, the Court
held as under in para 44 of the
Report: (AIR p.128)
"44.Now, as we have said,
Sections 225,232, 535 and 537(a)
between them, cover every
conceivable type of error and
irregularity referable to a charge
that can possibly arise, ranging from
cases in which there is a conviction
with no charge at all from start to
finish down to cases in which there
is a charge but with errors,
irregularities and omissions in it.
The code is emphatic that 'whatever'
the irregularity it is not to be
regarded as fatal unless there is
prejudice.
It is the substance that we
must seek. Courts have to
administer justice and justice
includes the punishment of guilt just
as much as the protection of
innocence. Neither can be done if
the shadow is mistaken for the
substance and the goal is lost in a
labyrinth of unsubstantial
technicalities. Broad vision is
required, a nice balancing of the
rights of the State and the
protection of society in general
against protection from harassment
to the individual and the risks of
unjust conviction.
Every reasonable presumption
must be made in favour of an
accused person; he must be given
the benefit of every reasonable
doubt. The same broad principles of
justice and fair play must be
brought to bear when determining a
matter of prejudice as in adjudging
guilt. But when all is said and done
what we are concerned to see is
whether the accused had a fair trial,
whether he knew what he was being
tried for, whether the main facts
sought to be established against him
were explained to him fairly and
clearly and whether he was given a
full and fair chance to defend
himself.
If all these elements are there
and no prejudice is shown the
conviction must stand whatever the
irregularities whether traceable to
the charge or to a want of one."
16. This question was again
examined by a three Judge Bench in
Gurbachan Singh Vs. State of
Punjab in which it was held as
under: (AIR p.626, para 7) "In
judging a question of prejudice, as
of guilt, courts must act with a
broad vision and look to the
51
substance and not to technicalities,
and their main concern should be to
see whether the accused had a fair
trial, whether he knew what he was
being tried for, whether the main
facts sought to be established
against him were explained to him
fairly and clearly and whether he
was given a full and fair chance to
defend himself."
17. There are a catena of
decisions of this Court on the same
lines and it is not necessary to
burden this judgment by making
reference to each one of them.
Therefore, in view of Section
464Cr.P.C., it is possible for the
appellate or revisional court to
convict an accused for an offence for
which no charge was framed unless
the Court is of the opinion that a
failure of justice would in fact
occasion. In order to judge whether
a failure of justice has been
occasioned, it will be relevant to
examine whether the accused was
aware of the basic ingredients of the
offence for which he is being
52
convicted and whether main facts
sought to be established against him
were explained to him clearly and
whether he got a fair chance to
defend himself."
20. The High Court, as has been rightly
pointed out by learned counsel for the appellant,
lost sight of the fact that if its view is accepted in
the absence of charge under Section 149,
conviction in terms of Section 326 could not have
been done.
21. The High Court appears to have
misconstrued the decision of this Court in Rewa
Ram Vs. Teja and Ors. (AIR 1998 SC 2883). In that
case, the High Court held that the accused persons
could be held guilty only under Section 326 IPC,
particularly, when it was stated in the charge that
their common object was to assault the deceased
and commit rioting with deadly weapons. The
position is entirely different here. In fact, while
framing charge and combined reading of charge
No.1 and charge No.3 makes it clear, that the
Court specified that the accused persons were
members of unlawful assembly and in prosecution
of the common object of such assembly, i.e, in
order to commit murder of the deceased,
committed the offence and at that time they were
armed with daggers etc. to bring in the application
53
of IPC. In Charge No.3, there is a specific reference
to the transactions, as mentioned in the first
charge, and the object to commit murder by
hacking on the body of the deceased with daggers
and causing his intentional death and thereby
committing offence punishable under Section 302
IPC. Therefore, the charge in relation to offence
punishable under Section 149 IPC is not only
implicit but also patent in the charges."
Similar view has been taken by the Hon'ble Supreme Court in
Vitukuru Lakshmaiah v. State of Andhra Pradesh, 2015
(11) SCC 102 also.
49. In the instant case, since, there is a charge under
Section 148 of IPC and since A1 and A2 were put on notice that
they were members of the unlawful assembly, which caused the
death of the deceased, the conviction of A1 and A2 by invoking
Section 149 of IPC would be lawful and permissible.
50. Now, turning to the quantum of punishment for the
offence under Section 302 r/w 149 of IPC, we are inclined to
impose the minimum punishment of imprisonment for life and to
54
pay a fine of Rs.1,000/- each in default to suffer rigorous
imprisonment for six weeks and for the offence under Section
148 of IPC, we deem it appropriate to impose rigorous
imprisonment for one year and to pay a fine of Rs.1,000/- each in
default to suffer rigorous imprisonment for 6 weeks. In so far as
offence under Section 449 of IPC is concerned, in our considered
view, sentencing A1 and A2 to rigorous imprisonment for 3 years
and to pay a fine of Rs.1,000/- each in default to suffer rigorous
imprisonment for six weeks would meet the ends of justice.
51. Before parting with this case, we wish to record our
displeasure with the fond hope that the stake-holders concerned
would realise their responsibilities and correct themselves so as
to ensure that there is no flaw resulted in the system of
administration of justice. As we have already extracted the
charges framed in the instant case are not appropriate. We do
not want to elaborate the same again, except saying that the
charges framed did not satisfy the legal requirements. It appears
that the case was not opened by the Public Prosecutor as
required under Section 226 of Cr.P.C. It is not known as to why
there was no charge framed by invoking Section 149 of IPC for
55
causing the death of the deceased and for causing grievous hurts
as well as simple hurts by some of the assailants. So fas as the
conspiracy is concerned, charges can be read as though there
were two different conspiracies, one involving A1 to A9 and the
other involving A10 to A27. We expect, the prosecuting agency
to scrupulously comply with Section 226 of Cr.P.c. at least in
future.
52. The investigating officer in this case, in our considered
view, had not discharged his function properly. As we have
already pointed out, the FIR in this case is not a
contemporaneous document as it is only a fabricated document
by the Sub Inspector of Police (P.W.27) and the Inspector of
Police (P.W.30). The importance of launching of prompt FIR and
dispatching the same to the court is repeatedly impressed upon
by Hon'ble Supreme Court as well as by this court. Despite that,
as we have already discussed, it is not explained to the court as
to what made the police to suppress the original information and
why there was an inordinate delay in registering the case and
why there was enormous delay in forwarding the same to the
court. It is also not known as to why P.W.30 has not chosen to
56
examine the policemen on duty near the place of occurrence. He
has not collected the medical records also properly. He has not
collected the scientific evidences namely, CCTV Camera
recordings by following the established procedure. Had the
CCTV camera recordings been recovered and proved in
evidence, the same would have brought the truth before the
court. Men may lie but not the science.
53. Above all, the conduct of the accused in this case is
highly deplorable and condemnable. The occurrence was in the
year 2009. The case was pending before the Court of Sessions
from the year 2011 onwards. For four years, due to non
cooperation of the accused, charges could not be framed by the
trial court. The charges were framed by the trial court only on
29.01.2015. P.Ws.1 to 5 were examined on 04.05.2015 and P.W.6
was examined on 05.05.2015. The records received from the
trial court would go to show that on the day of examination of
these witnesses, the counsel for A1 to A11 was not present. The
counsel for A12 to A23 were present, but, he refused to cross
examine the witnesses. Similarly, the counsel for A24 to A27
also did not appear. On an application made, by order dated
15.05.2015, P.W.1 was recalled and he was cross examined on
22.05.2015. The counsel for A12 to A23 cross examined him.
The cross examination commenced at 10.45 a.m. The learned
counsel finished the cross examination at 01.30 p.m. which runs
to 15 pages. After lunch break, the counsel for A24 to A24
commenced the cross examination. It went up to 05.30 p.m.
which runs to 12 pages. On that day, A1 to A11 did not cross
examine P.W.1. They approached the High Court and as per the
orders of the High Court dated 18.08.2015, P.W.1 was again
recalled on 27.08.2015. On that day, the learned counsel for A1
to A11 cross examined him which runs to 16 pages. Thus, the
cross examination of these witnesses covers 45 pages. We have
gone through the entire cross examination, line by line and word
by word. We are, at a loss to find anything elicited in favour of
the accused during cross examination though it runs to 45 pages.
Many of the questions are in the nature of harassing the
witnesses. It reflected as though there is no law regulating the
questions during cross examination. It was ignored by the
counsel that the Evidence Act speaks of questions which are
lawful during cross examination which could be compelled to be
answered by a witness and the questions which could be refused
to be answered by the witness. The learned counsel has also
ignored when the witnesses could be compelled by the court to
answer and when the witnesses can use his discretion to answer
though there is no compulsion. The learned counsel had
overlooked these statutory mandates contained in the Evidence
Act. The learned counsel had virtually harassed P.W.1 for days
together by asking all irrelevant, unnecessary and scandalous
questions.
54. Similarly, P.W.2 had not implicated any of the accused
in chief examination and therefore, he was treated as hostile.
But, she was not cross examined by the defence on the same day.
After chief examination on 04.05.2015, he was recalled and cross
examined by the counsel for A12 to A23 on 20.05.2015 and A23
to A27 on the same day. A perusal of the cross examination of
this witness would go to show that it is nothing but a
harassment. When he was recalled on 20.05.2015, the learned
counsel for A1 to A11 did not cross examine. On the day of
examination in chief though the counsel were present, they were
not ready to cross examine him. On 08.09.2015, pursuant to the
orders of this court, P.W.2 was recalled and cross examined by
A1 to A11. This witness was again harassed and cross examined
which runs to 8 pages. Most of the questions appear to be
relevant relating to the fact in issue or relevant fact. All
unnecessary scandalous and harassing questions have been
asked to him. Similarly, P.W.3 was examined in chief on
04.05.2015 on which date no counsel for the accused was ready
to cross examine without assigning any reason whatsoever. He
was recalled and cross examined and again recalled on the
orders of this court and cross examined. This had happened in
almost to all the witnesses. When we invited the learned senior
counsel appearing for the accused to explain, as to how the
counsel for the accused were justified to ignore the ethics of the
profession by refusing to cross examine any witness and to recall
them on a later date in a phased manner and to harass them by
asking such unnecessary questions, the learned senior counsel
felt sad about it reflecting his fairness. When we invited him to
point out anything elicited during the cross examination of these
witnesses in favour of the accused, he was unable to point out
anything. Thus, it is crystal clear that most of the questions were
in the nature of harassment to the witnesses.
55. Gone are the days that the defence counsel would take
trial proceedings so seriously and cross examine the witnesses
on the same day and also avoiding unnecessary questions by
extending fullest cooperation to the court for trial and disposal of
the cases. The case on hand is a classic illustration as to how
there is a complete change in the attitude of some of the counsel
and as to how they take it as a platform to harass the witnesses.
We are really anguished by going through the cross examination
of the witnesses in this case. We do not understand as to how the
Judge was a silent spectator without making any intervention
when the witnesses were harassed like anything. The expression
of our anguish in this judgement is only to convey our hope to all
concerned that the justice delivery system cannot be taken for a
ride by anyone. The time tested system will withstand all such
attempts in the war wagged against the system by unscrupulous
people
56. In the result, (i) Crl.A.No.93 of 2016:- The criminal
appeal is dismissed.
(ii) Crl.A.No.84 and 83 of 2016:- Both the Criminal
61
Appeals are allowed; the conviction and sentences imposed on
A9-Gunapalan, the appellant in Crl.A.No.84 of 2016 and A6-
Sampathkumar, the appellant in Crl.A.No.83 of 2016 are set
aside; and they are acquitted from all the charges. Fine amount
already paid if any, shall be refunded to them. Bail Bond
executed by the appellant/A9 in Crl.A.No.84 of 2016 shall stand
terminated.
(iii) Crl.A.No.85 of 2016: This criminal appeal is partly
allowed; the conviction and sentences imposed on A3 Rajendran,
A4-Sivakumar, A5-Velumurugan and A8-Saravanakumar, the
appellants 3 to 5 and 6 in Crl.A.No.85 of 2016 by the trial court
are set aside and they are acquitted from all the charges. Insofar
as A1-Manivannan and A2-Ramamoorthy, the appellants 1 and 2
in Crl.A.No.85 of 2016 are concerned, they are convicted for the
offences under Section 148, 302 r/w 149 and 449 of IPC and they
are sentenced to undergo rigorous imprisonment for one year
and to pay a fine of Rs.1,000/- each in default to suffer rigorous
imprisonment for 6 weeks for the offence under Section 148 of
IPC; to undergo imprisonment for life and to pay a fine of
Rs.1,000/- each in default to suffer rigorous imprisonment for six
weeks for the offence under Section 302 r/w 149 of IPC; and to
undergo rigorous imprisonment for 3 years and to pay a fine of
Rs.1,000/- each in default to suffer rigorous imprisonment for six
weeks for the offence under Section 449 of IPC. They are,
however, acquitted from the other charges. It is directed that
the sentences imposed herein above on A1 and A2 shall run
concurrently. The period of sentence already undergone by
them shall be given set off under Sections 428 and 433-A of
Cr.P.C.
[S.N.,J.] [N.A.N.,J.]
19..01..2017
Print Page
trial proceedings so seriously and cross examine the witnesses
on the same day and also avoiding unnecessary questions by
extending fullest cooperation to the court for trial and disposal of
the cases. The case on hand is a classic illustration as to how
there is a complete change in the attitude of some of the counsel
and as to how they take it as a platform to harass the witnesses.
We are really anguished by going through the cross examination
of the witnesses in this case. We do not understand as to how the
Judge was a silent spectator without making any intervention
when the witnesses were harassed like anything. The expression
of our anguish in this judgement is only to convey our hope to all
concerned that the justice delivery system cannot be taken for a
ride by anyone. The time tested system will withstand all such
attempts in the war wagged against the system by unscrupulous
people
THE HIGH COURT OF JUDICATURE AT MADRAS
Judgement Pronounced on: 19..01..2017
CORAM
MR.JUSTICE S.NAGAMUTHU
and
MR.JUSTICE N.AUTHINATHAN
Criminal Appeal No.83, 84, 85 and 93 of 2016
Crl.A.No.83 of 2016
Sampathkumar Vs State
COMMON JUDGEMENT
S.NAGAMUTHU, J.
Dated: 19..01..2017
Citation: (2017) 2 MLJ(Criminal) 105
The Appellants in Crl.A.No.85 of 2016 are Accused Nos.1 to
5 and 8; the Appellant in Crl.A.No.83 of 2016 is the Accused
No.6; and the Appellant in Crl.A.No.84 of 2016 is the Accused
No.9 in S.C.No.75 of 2011 on the file of the learned Sessions
Judge, Sessions Court for Exclusive Trial of Bomb Blast Cases,
Coimbatore. The Appellant in Crl.A.No.93 of 2016 is the de facto
complainant and the prosecution witness No.1 in the said case.
Accused No.7 in this case is one Guruswamy, who is the 1st
respondent in Crl.A.No.93 of 2016. The respondents 2 to 19 in
Crl.A.No.93 of 2016 are Accused Nos.10 to 27. Thus, there were
a total number of 27 accused in the said case before the trial
court. The trial court, by judgement dated 03.12.2015, acquitted
A7, A10 to A27, who are respondents 1 to 19 in Crl.A.No.93 of
2016. Challenging their acquittal, the de facto
complainant/P.W.1 has come up with Crl.A.No.93 of 2016. The
trial court convicted Accused Nos.1 to 6, 8 and 9 under various
charges and sentenced them accordingly as detailed below:-
6
Rank of the
Accused
Charge under
which conviction
was recorded
Quantum of Sentence
imposed
A1 to A6, A8
& A9
Section 302 of IPC Imprisonment for life
and to fine of
Rs.1,000/- each in
default to suffer simple
imprisonment for six
months
A1 to A6, A8
& A9
Section 148 of IPC Rigorous imprisonment
for three year
A1 to A6, A8
& A9
Section 449 of IPC Imprisonment for life
and to fine of 1,000/-
each in default to
suffer simple
imprisonment for six
months
A1 to A6, A8
& A9
Section 427 of IPC Rigorous imprisonment
for three years
A1 to A6, A8
& A9
Section 3(1) of The
Tamil Nadu
Properties
[Prevention of
Damage and Loss]
Act
Rigorous imprisonment
for three years and to
fine of Rs.1,000/- each
in default to suffer
simple imprisonment
for six months
A1, A3 and
A4
Section 324 of IPC Rigorous imprisonment
for one year
A2 Section 324 of IPC
[Two counts]
Rigorous imprisonment
for one year for each
count
A8 Section 323 of IPC Simple Imprisonment
for six months
These sentences have been ordered to run concurrently
7
Challenging the above said conviction and sentences, A1 to A6,
A8 and A9 have come up with these criminal appeals. That is
how, these appeals are before this court for disposal.
2. The case of the prosecution in brief is as
follows:- "Pricol Limited" is a company incorporated under The
Companies Act, 1956. It has six plants. Plant-I is in
Periyanaickkenpalayam in Coimbatore District; Plant-III is in
Chinnamathampalayam in Coimbatore District; and Plant-IV is
in Karamadai in Coimbatore District. The other plants are in
other States. From the year 2009 onwards, one Mr.Roy J George
[hereinafter referred to as the deceased] was working as the
Vice President of HR Department of the said company. P.W.1
was then working as Assistant Manager in the Plant-I. P.Ws.2 to
6 were also workers in the same plant at
Periyanaickkenpalayam. The office of the deceased namely, the
HR Department, was in the plant premises at
Periyanaickkenpalayam.
3. It is alleged that there was a long standing labour unrest
among the workers in the said company. There were five
8
recognized trade unions consisting of the workmen of Pricol
Limited. Later on, two other trade unions by name "Kovai
District Pricol Employees Trade Union" was started for the
workmen in Plant-I at Periyanaickkenpalayam. For the workmen
in Plant-III at Chinnamathampalayam, "Kovai District Pricol
Workers Trade Union" was established. Kovai District Pricol
Employees Trade Union [For Plant-I] was headed by
Mr.Kumaraswamy (A10). A11 to A13 were the Office Bearers of
the said union. A7-Guruswamy was the President of Kovai
District Pricol Workers Trade Union [For Plant-III]. But, these
trade unions were not recognized by the management of the
company. This resulted in frequent disputes between the
members of these trade unions and the management. It was at
that juncture, the deceased took over as the Vice President of the
HR Department of the company. There were strike calls given
by these two trade unions. The deceased as the Vice President of
the HR Department spoke to the workmen and as a result, many
of the workmen turned in favour of management and then,
returned to work. Thus, these two trade unions started to have
the feeling that the deceased was responsible for the unrest
among the workers and their returning to work despite the strike
9
calls given. In that situation, a total number of 42 workmen
belonging to both the trade unions were dismissed from service.
Out of 42, later on, the deceased inducted 41 workmen with
break in service for five years. All these orders were issued by
the deceased. This further aggravated the unrest. Thus, the
members of these two trade unions had strong motive against
the deceased. On 20.09.2009, these trade unions held a meeting
in the trade union's office near Plant-I. A10 to A12 who were
leaders were on the dais. All other accused herein and few
others totalling around 30 workers participated in the said
meeting. It is further alleged that in that meeting, A10 to A12
spoke provocative words and told the workmen that the
deceased should be killed as he was responsible for the
disciplinary action taken against the workmen. It is also alleged
that all the accused who participated in the said meeting agreed
for the same. Thus, according to the prosecution, it amounts to
conspiracy on the part of these 27 accused to do away with the
deceased.
4. On 21.09.2009 around 11.40 a.m., the deceased was in
the HR Department of Plant-I at Periyanaickkenpalayam. P.Ws.1
10
to 6 who are also the staff of the same department, were also in
the office with the deceased discussing some issues relating to
the company. At that time, it is alleged that A1 to A9, who were
members of the above said trade unions, suddenly barged into
the office of the deceased. A1 to A9 were all armed with iron
rods. On trespassing into the office room of the deceased, it is
alleged that A1 shouted at the other accused and directed them
to attack the deceased as induced by his leaders, namely, A10 to
A12. So shouting, A1 commenced the attack on the deceased
with iron rod on his head once; A2 attacked the deceased with
iron rod on his head; and A3 to A9 attacked the deceased with
iron rods repeatedly. Having sustained injuries, the deceased fell
down in a pool of blood. In the same transaction, when P.W.1
tried to rescue the deceased, A1, A3 and A4 attacked him with
iron rods. One Sankar [not examined as a witness] who was also
in the room was attacked by A1, A2 and A4. He also sustained
injuries. P.W.2 who was present also tried to rescue the
deceased. A5 and A6 attacked him with iron rods. P.W.3 was
attacked in the same transaction by A2 and A3 with iron rods.
Then, all the nine accused [A1 to A9] fled away from the scene of
occurrence with the weapons. Thus, five persons namely, the
11
deceased, P.W.1 to 3 and one Sankar sustained injuries in the
occurrence.
5. P.W.7 and P.W.13 immediately took all the injured to
"Ganga Hospital" at Coimbatore for treatment. P.W.20 Dr.Madhu
Periyasamy, examined P.W.1 at 03.14 p.m. on 21.09.2009 at
Ganga Hospital, Coimbatore. He found the following two injuries
on him (1) a lacerated injury measuring 4 cm in length on the
middle of the head and there was also a contusion surrounding
the said injury and (2) an abrasion near the right wrist. There
was also tenderness near the said injury. P.W.20 treated him as
inpatient and discharged him on 27.09.2009. The injuries on
him, were all simple in nature and the said injuries, according to
him, could have been caused by an iron rod.
6. P.W.22, Dr.Sanjay Rajkumar, examined the deceased on
21.09.2009 at 01.22 p.m.. He was brought by his relative by
name Mr. Gerold George. He found a lacerated injury on his
head correspondingly there was a fracture of skull and brain
matter was protruding out. Ex.P.31 is the copy of the Accident
Register.
12
7. P.W.23, Dr.Balasubramanian, conducted surgery on the
deceased on the same day for the head injury. From the time of
his arrival in the hospital, the deceased was unconscious. After
the surgery was over, he was kept in the critical care ward.
Despite treatment, the deceased succumbed to the injuries at
01.22 p.m. on 22.09.2009.
8. P.W.19, Dr.Tamilselvi, examined P.W.3 on the same day
at K.R.Hospital at Periyanaickkenpalayam. She found that there
was a contusion measuring 8 x 5 cm on her left leg. Ex.P.27 is
the copy of Accident Register. The said injury could have been
caused by iron rod, she opined. She was treated as out patient.
The injuries were, according to the doctor, simple in nature.
9. P.W.24 Dr.Roy Wilson Armstrong, examined the injured
Sankar at Ganga Hospital, Coimbatore at 02.30 p.m. He found a
contusion on the right forearm. One of the bones was found
fractured corresponding to the said external injury. He was
discharged from the hospital on 22.09.2009. He opined that the
said injury could have been caused by a blow with an iron rod.
13
Ex.P.33 is the wound certificate. M.O.16 is the X-Ray taken on
the fractured wound. According to him, the injury was grievous
in nature.
10. When P.W.1 and the deceased were in Ganga Hospital
at Coimbatore, the hospital authorities gave intimation to
Periyanaickkenpalayam Police Station at 04.30 p.m. on
21.09.2009. P.W.27, the then Sub Inspector of Police,
Periyanaickkenpalayam, immediately rushed to Ganga Hospital.
Since the deceased was unconscious and since P.W.1 was
conscious, he recorded the statement from P.W.1 and on
returning to the police station, at 06.30 p.m. on 21.09.2009, he
registered a case in Crime No.557 of 2009 under Sections 147,
148, 324, 109, 307, 149 of IPC r/w 3(1) of The Tamil Nadu
Properties [Prevention of Damage and Loss] Act, 1992. Ex.P.1 is
the complaint. Ex.P.40 is the FIR. He forwarded both the
complaint(Ex.P1) and the FIR (Ex.P.40) to the court which were
received by the learned Magistrate No.VI, Coimbatore on
22.09.2009 at 03.00 p.m. [Vide the endorsement by the learned
Magistrate]. In the mean time, he handed over the case diary to
the Inspector of Police (P.W.30) for investigation.
14
11. P.W.30, the then Inspector of Police, took up the case
for investigation. According to him, at 06.55 p.m. on 21.09.2009,
he went to Plant-I of Pricol Limited at Periyanaickkenpalayam to
check the armed reserve police on bandobast duty outside the
said company premises. At that place, the Sub Inspector of Police
(P.W.27) handed over the FIR in the present case to him for
investigation. Immediately, he proceeded with the investigation,
prepared an observation mahazar and a rough sketch in the
presence of P.W.14 and another witness. Between 07.00 p.m.
and 07.30 p.m. he recovered movable properties damaged by the
accused namely, HCL Digital Monitor, Black Metal Laptop,
broken glass panes, blood stained earth and sample earth from
the place of occurrence under Ex.P.5 mahazar. Then, he
examined many witnesses at the place of occurrence and
recorded their statement. On going over to the hospital, he found
that the deceased was still undergoing treatment in unconscious
state. Then, he examined P.W.1 and others.
12. On the same day, at 10.00 p.m. he arrested A1 to A6.
While in custody, A1 to A6, one after the other, gave voluntary
15
disclosure statements wherein they disclosed the place where
they had hidden the respective iron rod. In pursuance of the
same, they took the police and the witnesses to the respective
place of hide out and produced the iron rods. P.W.30 recovered
the iron rods [M.Os.1 to 6] under individual mahazars in the
presence of the same witnesses. Then, he forwarded A1 to A6 to
court for judicial remand. He recovered the blood stained cloths
of the injured witnesses. While so, the deceased died at 01.27
p.m. on 22.09.2009. On receiving the intimation from the
hospital, P.W.30 altered the case into one under Section 302 of
IPC. On the same day, between 01.30 p.m. and 03.45 p.m., he
conducted inquest on the body of the deceased and forwarded
the same for postmortem.
13. P.W.21 Dr.T.Jayasingh, conducted autopsy on the body
of the deceased on 22.09.2009 at 04.15 p.m. He found the
following injuries:-
"A vertical stapled laceration (7 staples)
measuring 6 cm in length noted on left side
forehead, 0.5 cm left to midline. The lower end
is 3 cm above to inner aspect of left eye brow.
16
On dissection , A surgical burr hole 1.5 cm in
diameter and continuing downwards as a bony
defect with irregular margin over the area of 2
x 1 cm noted on left lower frontal bone 1 cm
left to midline through which a part of brain
tissue found protruded out. The underlying
dura found lacerated and laceration of brain 3 x
2 x 1 cm noted on left frontal region.
(2) A curved stapled laceration (6 staples)
measuring 5 cm length noted on left frontal
region, 3 cm left to midline. The lower end is 5
cm above to left eyebrow.
(3) A vertical stapled laceration (7
staples), measuring 5 cm in length noted on
right side forehead, 3 cm right to midline. The
lower end is 11 cm above to middle of right eye
brow. A surgical burr hole of 1.5 cm in
diameter noted on right upper frontal region, 1
cm below to right side coronary suture, and 3
cm right to midline.
On dissection of scalp, skull and dura: Sub
17
scalpel contusion of 22 x 10 cm noted on both
frontal and left temporal region. Diffused sub
dural and sub arachnoid hemorrhages noted on
both cerebral hemisphere. Subdural clot about
100 grams noted on falx cerebri and 20 grams
noted on occipital lobe.
Other findings:
Pleural and peritoneal cavities - empty
Lungs - cut section - congested
Larynx and trachea - cut section - normal
Heart - right side chambers contains few
cc of fluid blood. Left side chambers empty.
Coronary arteries patent
Hyoid bone - intact
Stomach contains 100 ml of fluid blood
with clot, no specific smell and mucosa -
congested
Liver, Spleen, Brain & Kidneys - cut
section congested.
Urinary bladder - empty."
He gave opinion that these injuries found on the body of the
18
deceased could have been caused by iron rods, like M.Os.1 to 8.
He further opined that the death of the deceased was due to
shock and hemorrhage due to the injuries on the dead body.
After the postmortem was over, P.W.30, recovered the blood
stained dress material from the body of the deceased and
thereafter, forwarded the same to the court. On 24.09.2009,
around 11.00 a.m., he arrested A8. While in custody, he made a
voluntary confession in which he disclosed the place where he
had hidden an iron rod. In pursuance of the same, A8 took the
police and the witnesses to the place of hide out and produced
M.O.7 iron rod under a cover of mahazar [Ex.P.47]. Then,
P.W.30 forwarded A8 to court for judicial remand. P.W.30
recovered a compact disc containing the recordings of the
meetings held on 20.09.2009. But, unfortunately, he could not
recover the CCTV footages kept in the company because on
21.09.2009 due to some technical fault, there was no recording.
At his request, the materials objects were forwarded for
chemical examination which revealed that there were human
blood stains on the same. On completing the investigation, he
laid charge sheet against the accused.
19
14. Based on the above materials, the trial court framed
charges as detailed below:-
Charge Number Rank of the Accused Penal provision under
which charges were
framed
(1) A1 to A9 Section 120-B r/w 302
of IPC
(2) A1 to A9 Section 148 of IPC
(3) A1 to A9 Section 427 of IPC r/w
3(1) of TNPPDL Act,
1992
(4) A1 to A9 Section 449 of IPC
(5) A1 to A9 Section 302 of IPC
(6) A1, A3 and A4 Section 326 of IPC
(7) A1 to A6 and A8 Section 324 of IPC [3
counts]
(8) A10 to A27 Section 120(B) r/w
302 of IPC
(9) A10 to A27 Section 302 r/w 109
of IPC
A1 to A27 denied the same and thus, they were put on trial. In
order to prove the case, on the side of the prosecution as many
as 30 witnesses were examined, 57 documents and 9 materials
objects were marked.
15. Out of the said witnesses, P.Ws.1 to 3 are the injured
witnesses and P.W.4 to 6 are eye witnesses to the occurrence.
20
P.W.1 has spoken about the motive also. He has stated that
around 11.40 a.m. on 21.09.2009, when he was at the Office of
the deceased, A1 to A9 trespassed into the HR office. He has
further stated about the overt acts of A1 to A9. He has further
stated that he and the other injured witnesses were taken to the
hospital. He has also stated that he made a complaint to the
police around 05.30 p.m. on 21.09.2009. He has identified A1
and A2 in court.
16. P.W.2, yet another injured witnesses, has stated that
when he was with the deceased at his Office, a crowd of people
trespassed into the office, attacked the deceased and P.Ws.1 to 3
and another. During his chief examination, he has stated that he
could not identify the assailants as he was examined after six
years. Thus, his evidence is very vague in nature wherein he has
stated that a crowd of people came and attacked. He has not
implicated any of the accused. Therefore, he was treated as
hostile by the prosecution.
17. P.W.3 is yet another injured witness. She has stated
that when he was in the office, a crowd of people came and
21
attacked the deceased as well as the injured eye witnesses. But,
she has identified A2 as one of the assailants. She has stated that
A2 attacked her. She has not implicated any other accused.
18. P.W.4 is not an injured witness. She was working in
Plant-I at Periyanaickkenpalayam, during the relevant period.
She has stated that around 11.40 a.m. on 21.09.2009 he was
sitting on his chair in the HR Office, which was just opposite to
the cabin of the deceased. He has further stated that at that
time, A1 to A9 trespassed into the cabin of the deceased,
attacked him as well as the other injured witnesses. But, when
he was called upon by the court to identify the assailants, he had
stated that except A1 and A9, he could not identify any other
assailants. Thus, his evidence is only against A1 and A9 and not
against the other accused. When he was asked to identify A9-
Gunabalan, he wrongly identified A8-Saravanakumar, as A9-
Gunabalan. Thus, his evidence incriminates only A1.
19. P.W.5 was a Senior Officer in the HR Department of
Plant-I of Pricol Limited during the relevant period. He has
22
stated that on 21.09.2009, he was very much in his office at
11.40 a.m. He has stated that A1 to A9 came, trespassed into the
office of the deceased, attacked him as well as the other injured
witnesses. He has identified A1 to A9 in court as the assailants.
He has further stated that in Plant-I of Pricol Company Limited,
CCTV camera had been erected. M.O.12 is the company disc
containing recordings on 21.09.2009.
20. P.W.6 is yet another eye witnesses to the occurrence.
He was also working in HR Department of Plant-I of Pricol
Company Limited during the relevant time. According to him, at
11.40 a.m. when he was in the office, A1 to A9 trespassed into
the office of the deceased, attacked the deceased as well as the
injured witnesses. He has identified A1 and A9 as the assailants.
P.W.7 has stated that he took all the injured to Ganga Hospital
and admitted them as inpatient.
21. P.W.8 was working in the plant-I of Pricol Limited at
Periyanaickkenpalayam during the relevant time. A2 was
working as Assembly Operator in the said plant. Between 11.10
a.m. and 11.40 a.m. there was a leisure time for the workmen.
23
On 21.09.2009, according to him, A2 turned up for duty at 08.30
a.m. itself. Till 11.10 a.m. he was engaged in his work. At 11.10
a.m., he left the work spot to spend his leisure time. He should
have returned at 11.40 a.m., but , he did not return.
22. P.W.9 was working as Senior Engineer in the Machine
Shock Section of Plant-I at Periyanaickkenpalayam. A6 was
working in his department. On 21.09.2009 at 07.00 a.m. A6 has
turned up for duty. The leisure time was between 11.10 a.m. and
11.40 a.m. A6 in order to spend his leisure time, went out of the
work spot. He should have returned by 11.40 a.m. but, he
returned only at 12.00 p.m. and worked till 02.30 p.m.
Thereafter, he did not see A6.
23. P.W.10 was the Production Manager of Plant-I at
Periyanaickkenpalayam where A3 was working. According to
P.W.10, on 21.09.2009, A3 had turned up for duty at 07.25 a.m.
itself. The leisure time was between 11.10 a.m. and 11.40 a.m.
A3 left the work spot to spend his leisure time, but he did not
return after the leisure time was over.
24
24. P.Ws.11 and 12 have spoken about the meeting held on
20.09.2009. According to them, A10 to A12 spoke in the meeting
held on 20.09.2009 provoking the other accused who
participated in the meeting. In that meeting , according to him,
A10 to A12 told the other accused that the deceased should be
killed as he was responsible for the disciplinary action taken
against the workmen. They have spoken about the alleged
conspiracy. P.W.3 has spoken that he took the deceased and the
other injured persons with the help of P.W.7 to the hospital.
25. P.W.14 has spoken about the preparation of the
observation mahazar and the rough sketch by the police at the
place of occurrence. P.W.15 has spoken about the arrest of A15
and the consequential recovery of the material object. P.W.16
has spoken about the arrest of A9 and the consequential
recovery of iron rod. P.W.17 has stated that he took videograph
of the trade union meeting that was held on 20.09.2009 in the
trade union's office. P.W.8 has spoken about the arrest of A1 to
A6, their disclosure statements and the consequential recoveries
of M.Os.1 to 6. P.W.19 has spoken about the treatment given to
P.W.3. P.W.20 has spoken about the treatment given to P.W.1.
25
P.W.22 has spoken about the treatment given to the deceased at
Ganga Hospital. P.W.23 has spoken about the surgery conducted
on the deceased and the death of the deceased at 01.22 p.m. on
22.09.2009. P.W.21 has spoken about the post-mortem
conducted on the body of the deceased and his final opinion
regarding the cause of death. P.W.24 has spoken about the
treatment given to one Sankar, who has not been examined as
prosecution witnesses. P.W.25 and P.W.26 are the Head Clerks
of the Court of the Judicial Magistrate concerned. They have
spoken to the effect that they forwarded the material objects
produced by the police on the orders of the learned Judicial
Magistrate for chemical analysis. P.W.27, the then Sub Inspector
of Police has spoken about the registration of the case. P.W.28,
the Head Constable has stated that he took the dead body after
the inquest was over and handed over the same to the doctor for
post-mortem as directed by Inspector of Police. P.W.29 has
spoken about the fact that he assisted P.W.30 during
investigation. P.W.30 has spoken about the entire investigation
done by him in this case and the filing of charge sheet against
the accused.
26
26. When the above incriminating materials were put to the
accused under Section 313 of Cr.P.C. they denied the same as
false. On their side, A7, A9 and A10 have been examined as
D.Ws.1 to 3 respectively. D.W.1 has stated that on 03.03.2007,
on account labour dispute, he was transferred to the plant at
Uttaranchal along with A11 and A12 and few others. Ex.P.26 is
the transfer order. According to him, on 20.09.2009, there was
no meeting at all held and he was not aware of the happenings
on 21.09.2009 as he was not present at all. D.W.2 is A9 in the
case. He has stated that his mother was seriously ill from
21.09.2009 onwards. Thus, he was on leave between 21.09.2009
and 23.09.2009. Ex.D.7 is the leave slip. According to him,
during the relevant period, he had gone to Dindigul to attend on
his ailing mother at a hospital. His plea is one of alibi.
27. D.W.3 is A10. He has stated that he is an Advocate by
profession and also a member of a Political Outfit known as
"Communist Party of India (Marxist-Leninist)". He has done a
number of cases for the workers who are members of the above
said trade unions both before the High Court as well as the
Subordinate Courts. Because he was actively assisting the
27
workmen, according to him, he has been falsely implicated. On
the side of the accused as many as 14 documents have been
marked. Thus, the defence was a total denial.
28. Having considered all the above, the trial court
convicted the Appellants/A1 to A6, A8 and A9 as detailed in the
first paragraph of this judgement and sentenced them
accordingly. Challenging the above said conviction and
sentences, A1 to A6, A8 and A9 are now before this Court with
Crl.A.Nos.83 to 85 of 2016 and challenging the judgement of the
trial court acquitting A7 and A10 to A27, the de facto
complainant has come up with Crl.A.No.93 of 2016. There is no
appeal preferred either by the State or by P.W.1 as against the
acquittal of A1 to A6 and A8 to A9 from the other charges.
29. We have heard the learned counsel appearing for the
appellants/Accused and the learned Additional Public Prosecutor
appearing for the State and the learned counsel for the de facto
complainant and we have also perused the records carefully.
30. For the sake of convenience, let us take up the case
28
against A10 to A27 at the first. Admittedly, these accused did
not participate in the occurrence which took place on
21.09.2009. According to the charge, they participated in the
meeting held on 20.09.2009 at the trade union's office which was
addressed by A10 to A12. It is alleged that in that meeting A10 to
A12 spoke in a provocative manner and declared that they
should do away with the deceased. The trial court has
disbelieved this part of the case of the prosecution. To speak
about the said meeting, the prosecution examined P.Ws.11 and
12. These two witnesses have stated that they also participated
in the meeting. If that be so, though they have not been arrayed
as accused, they are only accomplices. As per Section 114 of the
Evidence Act, the court may presume that these two accomplices
are unworthy of credit. As per the same provision, the evidence
of an accomplice is unworthy of credit and unless there is
corroboration in general particulars from independent sources, it
cannot be the foundation for conviction. On this legal principle,
the evidences of P.Ws.11 and 12 should be rejected as the same
could not form the sole basis for conviction. Apart from that, the
trial court has disbelieved these two witnesses because of their
conduct. Had it been true that they witnessed the conspiracy,
29
which was hatched on 20.09.2009, they would not have kept
mum until they were examined by the police. Going by the
natural human conduct, they would have had instinct to tell
about the same either to the deceased or to any other worker or
any responsible officer in the company. They did not do so. From
this, the trial court has come to the conclusion that these two
witnesses have been planted. Thus, we agree with the findings of
the trial court that these two witnesses are unbelievable. Apart
from that, the trial court relies on the video recordings of the
meeting recorded by P.W.17. But, what is available before the
court is only the Compact Disc (M.O.11). Admittedly, M.O.11
does not satisfy the legal requirements of Section 65-B of The
Evidence Act. As per the Judgement of the Hon'ble Supreme
Court in P.V.Anvar v. P.K.Basheer, (2014) 10 SCC 473,
M.O.11-Compact Disc is not admissible in evidence. If once
M.O.11 is eschewed from consideration and the evidence of
P.Ws.11 and 12 are rejected as unbelievable, then there remains
no other evidence against A10 to A27 except the fact that they
were the members of the trade unions in question and that there
had been labour unrest. Thus, the trial court was right in
acquitting A10 to A27 which does not require any interference at
30
the hands of this court.
31. Now, turning to the case against A7 who stands
acquitted by the trial court, again we find no infirmity in the
judgement of the trial court. The learned senior counsel
appearing for Accused No.7 would submit that because he was
an active member of the trade union, his name came to be
implicated in the FIR as an after thought. Apart from that he has
examined himself as D.W.1 where he has stated that he was not
present at the place of occurrence and he also did not participate
in the meeting allegedly held on 20.09.2009. He has stated that
even in the year 2007 itself, he was transferred to Uttaranchal.
32. The trial court has accepted these two contentions
advanced on behalf of A7 and has acquitted him from the
charges. In order to verify the correctness of the said conclusion
arrived at by the trial court, we have gone through the
complaint-Ex.P.1. The alleged occurrence was at 11.40 a.m. on
21.09.2009 whereas the FIR was allegedly registered at 06.30
p.m. on 21.09.2009. The FIR had reached the hands of the
learned Magistrate at Coimbatore on the next day, that was, on
31
22.09.2009, that too, at 03.00 p.m. Absolutely, there is no
explanation for this inordinate delay. That apart, in Ex.P.1-
Complaint, the name of A7 was obviously interpolated as an
assailant between the names of Velmurugan and Sampathkumar.
It is stated in Ex.P.1 that A7 also came with the other accused
namely, A1 to A6, A8 and A9. In Ex.P.1 no other overt act
whatsoever has been attributed against A7. But, strangely,
besides shockingly, Ex.P.40-FIR shows that the name of A7 was
interpolated between the names of accused Sampathkumar and
Saravanakumar. This interpolation was made after the name of
Sampathkumar because in Ex.P.40 there is no space before the
name of Sampathkumar so as to interpolate the name of A7. In
the body of Ex.P.40, interpolation of the name of A7 has been
made. As we have already stated, no overt act has been
attributed to A7 in Ex.P.1, except stating that he came along with
the other accused to the office of the deceased. But, in Ex.P.40, it
is stated that A7 also attacked the deceased with iron rod.
Similarly, though in Ex.P.1, it is stated by means of interpolation
that A7 came along with the other accused, there is no such
interpolation found in Ex.P.40 so as to say that A7 also came
along with the other accused. In fact, Ex.P.40-FIR should be
32
strictly the replica of Ex.P.1-Complaint and there should not be
any variance. But, shockingly, Ex.P.1-Complaint and Ex.P.40-
FIR, are in variance. As we have already elaborated, absolutely,
there is no explanation for the same. Ex.P.40 further reflects that
originally there were ten named accused. But, A7-Guruswamy's
name was interpolated after the name of A6-Sampathkumar and
thereafter the serial number of the other accused have been
corrected in Ex.P.40. These interpolations and corrections would
clearly go to show that after the case was registered under
Ex.P.40, as an after thought the name of A7 was interpolated in
Ex.P.1 as well as in Ex.P.40. Absolutely, there is no explanation
for these interpolations except the explanation by P.W.1 that
after Ex.P.1 was drafted and read over to him since he found the
name of A7 missing, he wanted the same to be inserted in Ex.P.1.
If this version is true, there is no chance at all for any such
interpolation in Ex.P.40 which was registered later based on
Ex.P.1. But, as we have already pointed out, there were
interpolations and corrections in Ex.P.40 also and the same
would go to clearly prove that the interpolations and corrections
both in Ex.P.1 and Ex.P.40 were made after the case was
registered. This would give rise to a natural presumption that
33
A7's name was included, later on, by means of interpolation and
correction because he also happened to be an active member of
the trade union. Had he been present at the time of occurrence,
had he got any overt act, certainly, these facts would have been
mentioned in Ex.P.1 without there being any interpolation. For
these reasons, the trial court has rejected the case against A7.
We find no infirmity in the said conclusion arrived at by the trial
court at all calling for interference at our hands. Thus, the
appeal, challenging the acquittal of A7 also deserves to be
dismissed.
33. In conclusion, we find no merit at all in Crl.A.No.93 of
2016 challenging the acquittal of A7 and A10 to A27 and
therefore, we are inclined to dismiss the above said criminal
appeal filed by the de facto complainant [P.W.1] in the case.
34. Now, turning to the case against A1 to A6, A8 and A9,
the learned senior counsel would submit that truth is not before
the court and on that score the entire case of the prosecution
should be rejected. In order to substantiate his contention, the
learned senior counsel would make reliance on Ex.P.1-Complaint
34
and Ex.P.40-FIR. He would submit that there are interpolations
and corrections in these two documents. We have already
concluded in agreement with the learned senior counsel that
there were interpolations as well as corrections in Ex.P.1-
Complaint and Ex.P.40 FIR which would certainly create an
initial doubt in the mind of this court.
35. Apart from that, the learned senior counsel would
submit that P.W.30 has admitted that just 50 feet away from the
HR Office, which is situated in the Plant-I premises at
Periyanaickkenpalayam, there were police men on bandobast
duty because there was unrest among workers for a long time.
P.W.30 has further admitted that he was present at the place of
occurrence at the time of occurrence. The place of occurrence is
at a distance of hardly 1/2 km from the police station which has
been admitted by P.W.20, the Sub Inspector of Police also.
Admittedly, it was a big rioting in which at least five persons
sustained injuries and one was very seriously injured in the
Office premises. Pricol Company Limited is a big establishment
where there would have been a number of workers on duty
including the officers. When the policemen were on bandobast
35
duty just 50 feet away from the place of occurrence and the
distance between the police station and the place of occurrence
is hardly 1/2 km, it is highly doubtful that the occurrence was not
known or reported to the police until 06.30 p.m. on 21.09.2009.
We believe that the police should have had information
immediately after the occurrence because there were police
men on duty near the place of occurrence and that there would
have been some other information to the police. In our
considered opinion that earliest information has been
suppressed by the police. This creates further doubt in the case
of the prosecution.
36. According to P.W.27, he received an intimation from
the hospital at 04.30 p.m. on the day of occurrence and
thereafter only, he went to the hospital, recorded the statement
of P.W.1 and on returning to the police station he registered the
case at 06.30 p.m. As we have already pointed out, it is highly
unbelievable that there was no other information to the police
about the occurrence till 06.30 p.m. on 21.09.2009. The learned
senior counsel Mr.Ashok Kumar would submit that Ex.P1-
Complaint and Ex.P.40-FIR would have come into being at 06.30
36
p.m. on 21.09.2009. We find force in the said argument also.
37. Both Ex.P.1 and Ex.P.40 reached the hands of the
learned Magistrate only at 03.00 p.m. on 22.09.2009. After all,
the distance between Periyanaickkenpalayam Police Station and
the court of learned Magistrate is hardly about 15 km. But, the
FIR, which was allegedly registered at 06.30 p.m. on 21.09.2009,
reached the hands of the learned Magistrate only at 03.00 p.m.
on the next day, that is, after 21 1/2 hours. Absolutely there is no
explanation for such inordinate delay. P.W.27, the then Sub
Inspector of Police has nothing to say about the delay. The police
constable who carried the FIR and handed over the same to
court has also not been examined. Thus, the above said
unexplained delay coupled with the manipulations and
corrections made in the FIR and the suppression of initial
information, as we have already discussed hereinabove, would all
go to create further doubt regarding the case of the prosecution.
38. Now, the question is, whether the entire case of the
prosecution should be doubted and thrown out on that score? We
find it difficult to do so. It is true that Ex.P.1-Complaint and
37
Ex.P.40-FIR do not reflect the true version of the occurrence.
But, when there are injured witnesses, who have spoken about
the occurrence and if the court is able to separate the grains
from the chaff, the entire case of the prosecution cannot be
rejected solely on the ground that the FIR creates doubts.
39. Let us, now, examine, whether the grains from the chaff
could be separated. In this regard, let us now, analyse the eye
witness account of P.Ws.1 to 6. Out of these witnesses, P.W.2
has not supported the case of the prosecution in full. He has
stated when he was in the office of the deceased, a crowd of
people came and attacked the deceased and the injured. He did
not identify any of the accused as assailants though, he was
specifically called upon to do so. He has stated that since he was
examined after six years of the occurrence, he was not in a
position to identify any of the assailants. Thus, his evidence
would not go to prove the guilt of any of these accused, however,
it would only go to prove that a crowd of people came around
11.40 a.m. with iron rods and attacked the deceased as well as
the injured witnesses.
40. P.W.3, the other injured eye witness has stated that a
38
crowd of people came with iron rods and attacked the deceased
as well as the injured witnesses. She identified A2 and A8 alone.
there is no evidence that these witnesses knew these accused
previously. According to the case of the prosecution, she knew
all the nine accused [A1 to A9], but she had not chosen to
identify the rest of the accused. Thus, in our considered view,
she is not a reliable witness and, therefore, her evidence
implicating A2 and A8 alone deserves to be rejected. Her
evidence could, at the most, be believed to the extent that a
crowd of people came with iron rods and attacked the deceased
as well as the injured witnesses.
41. P.W.1, the vital injured witness for the prosecution, has
stated only about the over acts attributed to A1 to A9. More
specifically, he has spoken about the presence of P.W.7 and
participation of A9-Gunabalan. A7-Guruswamy's name, as we
have already concluded, was interpolated later and, A9-
Gunabalan's name does not find a place in Ex.P.1 at all. Had it
been true that A9 participated in the occurrence on 21.09.2009,
P.W.1 would have mentioned his name in Ex.P.1 itself. When he
has stated that since after the complaint-Ex.P.1 was drafted and
39
read over to him, he found missing of the name of A7 and,
therefore, he wanted A1's name to be interpolated, he would
have similarly asked the person who drafted the complaint to
interpolate the name of A9 also in Ex.P.1. At the same time, he
implicated A9 only during investigation. There is no explanation
from him as to why he did not implicate A9 in the complaint-
Ex.P1. Thus, this witness also cannot be fully believed. He has
rendered himself only as partly believable.
42. A9 has examined himself as D.W.2. He has stated that
during the relevant time, he was in Dindigul attending on his
ailing mother in a private hospital. Ex.D7 is his leave slip.
Though, this witness was cross examined at length, nothing has
been elicited from him to disbelieve his evidence. The only point
taken by the prosecution is that no medical records pertaining to
the treatment made to his mother at Dindigul Hospital has been
produced. When the prosecution has got no explanation as to
why his name was not included as stated in Ex.P.1 complaint, the
evidence of D.W.2 (A9) seems to be probable and acceptable. For
these reasons only, we have concluded that P.W.10 also only
partly believable. Above all, according to him, A1 and A2 gave
40
one blow each on the head of the deceased and the other
accused attacked the deceased repeatedly. But, there were no
corresponding injuries at all on the head of the deceased, except
the injuries allegedly caused by A1 and A2. Thus, the medical
evidence contradicts his evidence as against A2 and A9 and
corroborates his evidence only as against A1 and A2.
43. Now, turning to the evidence of P.W.4, he has stated
about the presence and participation of A1 to A9. When he was
asked to identify A1 to A9, he identified A8 as A9. It is not as
though he knew all the accused previously. He has further
spoken that since the occurrence had taken place six years
before he was not able to identify the accused. Therefore, his
evidence also cannot go to prove the guilt of the accused namely,
A1 to A9 and, at the most, his evidence can go only to prove that
a crowd of people came and attacked. P.W.5 claims to have seen
the occurrence. He has identified A1 to A9. He has spoken only
about the damages caused to the properties and he has not seen
the injured and the deceased being attacked by any one. Thus,
his evidence would not go to prove as to who actually attacked
the deceased and the injured eye witnesses.
41
44. P.W.6, yet another eye witness, has, of course, stated
about the overt acts of A1 to A9. But, his evidence is highly
doubtful as he has stated that each one accused inflicted one
injury either on the head of the deceased or the injured
witnesses one after the other in a seriatim. He is a witness
belonging to the management of Pricol Limited. His evidence
also does not impress us. Thus, we reject his evidence also.
45. From the foregoing discussion what remains is the
evidence of P.W.1 against A1 and A2 alone. We have already held
that his evidence as against the other accused is not
corroborated by medical evidence and there are also other
reasons which we have discussed to reject his evidence as
against A3 to A9. So far as A1 and A2 are concerned, we are of
the view that the presence and participation of A1 and A2 stands
proved.
46. The learned counsel appearing for the accused would
submit that CCTV camera erected at the HR department of Pricol
Limited, would have recorded the entire occurrence. Had the
42
same been seized, according to the learned counsel, it would
have proved the truth. But, the same has not been seized by
P.W.30. P.W.3 has explained that CCTV camera that was
installed had been recording the events prior to 21.09.2009 and
on 21.09.2009, it did not record anything. M.O.12 is the Compact
Disc taken out from the recordings of the CCTV camera. M.O.12
does not contain the certificate as required under Section 65-B
of the Evidence Act and therefore, the same is to be rejected.
Except, the ipso facto evidence of P.W.30 that there was no
CCTV camera recording on 21.09.2009, we do not have any
other evidence to prove the same. Though the learned senior
counsel would call it as a suppression of an important evidence,
we are of the view that it only reflects the ignorance of P.W.30 in
respect of collection of scientific evidences and we are not in
agreement with the senior counsel that it would amount to
suppression. Under Section 114 of the Evidence Act a
presumption may be drawn adverse to the prosecution, if only
there is suppression of any evidence. In this case, we do not find
anything to show that the CCTV recordings have been
suppressed and since we hold that this was a sheer ignorance of
P.W.30 to collect the CCTV recordings, we are unable to draw
43
any adverse presumption as provided in Section 114 of the
Evidence Act.
47. In view of the above discussion, from the evidences of
the eye witnesses including the injured witnesses, we find that
the prosecution has clearly proved that a crowd of people barged
into the office of the deceased where the injured witnesses were
sitting and the crowd of people mounted attack on the deceased.
In that, more specifically, A1 and A2 participated and that they
caused the death of the deceased by attacking him with iron
rods. So far as the attack on the others are concerned, we find
the evidences of the injured witnesses unbelievable. Therefore,
we hold that the prosecution has proved the charges against A1
and A2 under Section 148, 302 r/w 149 and 449 of IPC alone.
Though the other accused are acquitted, it cannot be said that
A1 and A2 cannot be convicted under Section 148 of IPC as well
as by invoking Section 149 of IPC. As we have already pointed
out, there is enough evidence to prove that there was an
unlawful assembly of the assailants and the accused A1 and A2
were the members of the said unlawful assembly. The other
members of the assembly are not known for want of evidence.
44
Similarly, there is evidence that the crowd of people only
attacked the deceased, more particularly, A1 and A2, attacked
the deceased. Therefore, they are also liable for punishment
under Section 302 r/w 149 of IPC.
48. We, in fact, called upon the learned senior counsel to
make his submissions as to whether in the absence of a charge
under Section 149 of IPC, A1 and A2 could be convicted by
invoking Section 149 of IPC. In this regard, we may refer to the
judgement of the Hon'ble Supreme Court in Dumpala Chandra
Reddy v. Nimakayala Balireddy, 2008 (8) SCC 339, wherein
in a similar circumstance, the Hon'ble Supreme Court in para 18
to 21 has held as follows:-
"18. This Court, in the oft repeated case
of Willie (William) Slaney Vs. State of Madhya
Pradesh (1955 (2) SCR 1140) had highlighted
the aspect of prejudice. This decision has
been referred to in a large number of
subsequent cases dealing with the question of
prejudice in the background of Section 464 of
the Code of Criminal Procedure, 1973 (in
short `the Code'). In Ramkishan and Ors. Vs.
State of Rajasthan (1997 (7) SCC 518), it was
noted as follows:
"In view of the findings
recorded by the learned Sessions
Judge and the material on record, we
are unable to ascribe to the finding
that the appellants' intention was to
cause death of Bhura deceased. The
finding betrays the observation of the
trial court as noticed above. The
medical evidence also does not
support the ultimate finding
recorded by the trial court and
upheld by the High Court. The
offence in the established facts and
circumstances of the case in the case
of the appellants would only fall
under Section 304 Part II IPC read
with Section 149 IPC and not
under Section 302 IPC. Indeed no
specific charge indicating the
applicability of Section 149IPC was
framed, but all the ingredients
of Section 149 IPC were clearly
indicated in the charge framed
against the appellants and as held by
46
the Constitution Bench of this Court
in Willie (William) Slaney Vs. State of
M.P. the omission to mention Section
149IPC specifically in the charge is
only an irregularity and since no
prejudice is shown to have been
caused to the appellants by that
omission it cannot affect their
conviction."
19. Similar view was also taken in B.N.
Srikantiah and Ors. Vs. The State of Mysore (1959
SCR 496) in the background of Section 34, viz-aviz
Section 149, IPC. In Dalbir Singh Vs. State of
U.P. (2004 (5) SCC 334), it was noted as follows.
"15. In Willie (William) Slaney
Vs. State of M.P. a Constitution
Bench examined the question of
absence of charge in considerable
detail. The observations made in
paras 6 and 7, which are of general
application, are being reproduced
below:(AIR P 121 6)
"6. Before we proceed to set
out our answer and examine the
provisions of the Code, we will
pause to observe that the Code is a
Code of procedure and, like all
procedural laws, is designed to
further the ends of justice and not to
47
frustrate them by the introduction of
endless technicalities. The object of
the Code is to ensure that an
accused person gets a full and fair
trial along certain well established
and well-understood lines that
accord with our notions of natural
justice.
If he does, if he is tried by a
competent court, if he is told and
clearly understands the nature of
the offence for which he is being
tried, if the case against him is fully
and fairly explained to him and he is
afforded a full and fair opportunity
of defending himself, then, provided
there is 'substantial' compliance
with the outward forms of the law,
mere mistakes in procedure, mere
inconsequential errors and
omissions in the trial are regarded
as venal by the Code and the trial is
not vitiated unless the accused can
show substantial prejudice. That,
broadly speaking, is the basic
principle on which the Code is
based.
7. Now, here, as in all
procedural laws, certain things are
48
regarded as vital. Disregard of a
provision of that nature is fatal to
the trial and at once invalidates the
conviction. Others are not vital and
whatever the irregularity they can
be cured; and in that event the
conviction must stand unless the
Court is satisfied that there was
prejudice. Some of these matters
are dealt with by the Code and
wherever that is the case full effect
must be given to its provisions.
15.1 After analysing the
provisions of Sections 225,232, 535
and 537 of the Code of Criminal
Procedure, 1898 which correspond
to Sections 215, 464(2), 464 and
465 of the 1973 Code, the Court
held as under in para 44 of the
Report: (AIR p.128)
"44.Now, as we have said,
Sections 225,232, 535 and 537(a)
between them, cover every
conceivable type of error and
irregularity referable to a charge
that can possibly arise, ranging from
cases in which there is a conviction
with no charge at all from start to
finish down to cases in which there
is a charge but with errors,
irregularities and omissions in it.
The code is emphatic that 'whatever'
the irregularity it is not to be
regarded as fatal unless there is
prejudice.
It is the substance that we
must seek. Courts have to
administer justice and justice
includes the punishment of guilt just
as much as the protection of
innocence. Neither can be done if
the shadow is mistaken for the
substance and the goal is lost in a
labyrinth of unsubstantial
technicalities. Broad vision is
required, a nice balancing of the
rights of the State and the
protection of society in general
against protection from harassment
to the individual and the risks of
unjust conviction.
Every reasonable presumption
must be made in favour of an
accused person; he must be given
the benefit of every reasonable
doubt. The same broad principles of
justice and fair play must be
brought to bear when determining a
matter of prejudice as in adjudging
guilt. But when all is said and done
what we are concerned to see is
whether the accused had a fair trial,
whether he knew what he was being
tried for, whether the main facts
sought to be established against him
were explained to him fairly and
clearly and whether he was given a
full and fair chance to defend
himself.
If all these elements are there
and no prejudice is shown the
conviction must stand whatever the
irregularities whether traceable to
the charge or to a want of one."
16. This question was again
examined by a three Judge Bench in
Gurbachan Singh Vs. State of
Punjab in which it was held as
under: (AIR p.626, para 7) "In
judging a question of prejudice, as
of guilt, courts must act with a
broad vision and look to the
51
substance and not to technicalities,
and their main concern should be to
see whether the accused had a fair
trial, whether he knew what he was
being tried for, whether the main
facts sought to be established
against him were explained to him
fairly and clearly and whether he
was given a full and fair chance to
defend himself."
17. There are a catena of
decisions of this Court on the same
lines and it is not necessary to
burden this judgment by making
reference to each one of them.
Therefore, in view of Section
464Cr.P.C., it is possible for the
appellate or revisional court to
convict an accused for an offence for
which no charge was framed unless
the Court is of the opinion that a
failure of justice would in fact
occasion. In order to judge whether
a failure of justice has been
occasioned, it will be relevant to
examine whether the accused was
aware of the basic ingredients of the
offence for which he is being
52
convicted and whether main facts
sought to be established against him
were explained to him clearly and
whether he got a fair chance to
defend himself."
20. The High Court, as has been rightly
pointed out by learned counsel for the appellant,
lost sight of the fact that if its view is accepted in
the absence of charge under Section 149,
conviction in terms of Section 326 could not have
been done.
21. The High Court appears to have
misconstrued the decision of this Court in Rewa
Ram Vs. Teja and Ors. (AIR 1998 SC 2883). In that
case, the High Court held that the accused persons
could be held guilty only under Section 326 IPC,
particularly, when it was stated in the charge that
their common object was to assault the deceased
and commit rioting with deadly weapons. The
position is entirely different here. In fact, while
framing charge and combined reading of charge
No.1 and charge No.3 makes it clear, that the
Court specified that the accused persons were
members of unlawful assembly and in prosecution
of the common object of such assembly, i.e, in
order to commit murder of the deceased,
committed the offence and at that time they were
armed with daggers etc. to bring in the application
53
of IPC. In Charge No.3, there is a specific reference
to the transactions, as mentioned in the first
charge, and the object to commit murder by
hacking on the body of the deceased with daggers
and causing his intentional death and thereby
committing offence punishable under Section 302
IPC. Therefore, the charge in relation to offence
punishable under Section 149 IPC is not only
implicit but also patent in the charges."
Similar view has been taken by the Hon'ble Supreme Court in
Vitukuru Lakshmaiah v. State of Andhra Pradesh, 2015
(11) SCC 102 also.
49. In the instant case, since, there is a charge under
Section 148 of IPC and since A1 and A2 were put on notice that
they were members of the unlawful assembly, which caused the
death of the deceased, the conviction of A1 and A2 by invoking
Section 149 of IPC would be lawful and permissible.
50. Now, turning to the quantum of punishment for the
offence under Section 302 r/w 149 of IPC, we are inclined to
impose the minimum punishment of imprisonment for life and to
54
pay a fine of Rs.1,000/- each in default to suffer rigorous
imprisonment for six weeks and for the offence under Section
148 of IPC, we deem it appropriate to impose rigorous
imprisonment for one year and to pay a fine of Rs.1,000/- each in
default to suffer rigorous imprisonment for 6 weeks. In so far as
offence under Section 449 of IPC is concerned, in our considered
view, sentencing A1 and A2 to rigorous imprisonment for 3 years
and to pay a fine of Rs.1,000/- each in default to suffer rigorous
imprisonment for six weeks would meet the ends of justice.
51. Before parting with this case, we wish to record our
displeasure with the fond hope that the stake-holders concerned
would realise their responsibilities and correct themselves so as
to ensure that there is no flaw resulted in the system of
administration of justice. As we have already extracted the
charges framed in the instant case are not appropriate. We do
not want to elaborate the same again, except saying that the
charges framed did not satisfy the legal requirements. It appears
that the case was not opened by the Public Prosecutor as
required under Section 226 of Cr.P.C. It is not known as to why
there was no charge framed by invoking Section 149 of IPC for
55
causing the death of the deceased and for causing grievous hurts
as well as simple hurts by some of the assailants. So fas as the
conspiracy is concerned, charges can be read as though there
were two different conspiracies, one involving A1 to A9 and the
other involving A10 to A27. We expect, the prosecuting agency
to scrupulously comply with Section 226 of Cr.P.c. at least in
future.
52. The investigating officer in this case, in our considered
view, had not discharged his function properly. As we have
already pointed out, the FIR in this case is not a
contemporaneous document as it is only a fabricated document
by the Sub Inspector of Police (P.W.27) and the Inspector of
Police (P.W.30). The importance of launching of prompt FIR and
dispatching the same to the court is repeatedly impressed upon
by Hon'ble Supreme Court as well as by this court. Despite that,
as we have already discussed, it is not explained to the court as
to what made the police to suppress the original information and
why there was an inordinate delay in registering the case and
why there was enormous delay in forwarding the same to the
court. It is also not known as to why P.W.30 has not chosen to
56
examine the policemen on duty near the place of occurrence. He
has not collected the medical records also properly. He has not
collected the scientific evidences namely, CCTV Camera
recordings by following the established procedure. Had the
CCTV camera recordings been recovered and proved in
evidence, the same would have brought the truth before the
court. Men may lie but not the science.
53. Above all, the conduct of the accused in this case is
highly deplorable and condemnable. The occurrence was in the
year 2009. The case was pending before the Court of Sessions
from the year 2011 onwards. For four years, due to non
cooperation of the accused, charges could not be framed by the
trial court. The charges were framed by the trial court only on
29.01.2015. P.Ws.1 to 5 were examined on 04.05.2015 and P.W.6
was examined on 05.05.2015. The records received from the
trial court would go to show that on the day of examination of
these witnesses, the counsel for A1 to A11 was not present. The
counsel for A12 to A23 were present, but, he refused to cross
examine the witnesses. Similarly, the counsel for A24 to A27
also did not appear. On an application made, by order dated
15.05.2015, P.W.1 was recalled and he was cross examined on
22.05.2015. The counsel for A12 to A23 cross examined him.
The cross examination commenced at 10.45 a.m. The learned
counsel finished the cross examination at 01.30 p.m. which runs
to 15 pages. After lunch break, the counsel for A24 to A24
commenced the cross examination. It went up to 05.30 p.m.
which runs to 12 pages. On that day, A1 to A11 did not cross
examine P.W.1. They approached the High Court and as per the
orders of the High Court dated 18.08.2015, P.W.1 was again
recalled on 27.08.2015. On that day, the learned counsel for A1
to A11 cross examined him which runs to 16 pages. Thus, the
cross examination of these witnesses covers 45 pages. We have
gone through the entire cross examination, line by line and word
by word. We are, at a loss to find anything elicited in favour of
the accused during cross examination though it runs to 45 pages.
Many of the questions are in the nature of harassing the
witnesses. It reflected as though there is no law regulating the
questions during cross examination. It was ignored by the
counsel that the Evidence Act speaks of questions which are
lawful during cross examination which could be compelled to be
answered by a witness and the questions which could be refused
to be answered by the witness. The learned counsel has also
ignored when the witnesses could be compelled by the court to
answer and when the witnesses can use his discretion to answer
though there is no compulsion. The learned counsel had
overlooked these statutory mandates contained in the Evidence
Act. The learned counsel had virtually harassed P.W.1 for days
together by asking all irrelevant, unnecessary and scandalous
questions.
54. Similarly, P.W.2 had not implicated any of the accused
in chief examination and therefore, he was treated as hostile.
But, she was not cross examined by the defence on the same day.
After chief examination on 04.05.2015, he was recalled and cross
examined by the counsel for A12 to A23 on 20.05.2015 and A23
to A27 on the same day. A perusal of the cross examination of
this witness would go to show that it is nothing but a
harassment. When he was recalled on 20.05.2015, the learned
counsel for A1 to A11 did not cross examine. On the day of
examination in chief though the counsel were present, they were
not ready to cross examine him. On 08.09.2015, pursuant to the
orders of this court, P.W.2 was recalled and cross examined by
A1 to A11. This witness was again harassed and cross examined
which runs to 8 pages. Most of the questions appear to be
relevant relating to the fact in issue or relevant fact. All
unnecessary scandalous and harassing questions have been
asked to him. Similarly, P.W.3 was examined in chief on
04.05.2015 on which date no counsel for the accused was ready
to cross examine without assigning any reason whatsoever. He
was recalled and cross examined and again recalled on the
orders of this court and cross examined. This had happened in
almost to all the witnesses. When we invited the learned senior
counsel appearing for the accused to explain, as to how the
counsel for the accused were justified to ignore the ethics of the
profession by refusing to cross examine any witness and to recall
them on a later date in a phased manner and to harass them by
asking such unnecessary questions, the learned senior counsel
felt sad about it reflecting his fairness. When we invited him to
point out anything elicited during the cross examination of these
witnesses in favour of the accused, he was unable to point out
anything. Thus, it is crystal clear that most of the questions were
in the nature of harassment to the witnesses.
55. Gone are the days that the defence counsel would take
trial proceedings so seriously and cross examine the witnesses
on the same day and also avoiding unnecessary questions by
extending fullest cooperation to the court for trial and disposal of
the cases. The case on hand is a classic illustration as to how
there is a complete change in the attitude of some of the counsel
and as to how they take it as a platform to harass the witnesses.
We are really anguished by going through the cross examination
of the witnesses in this case. We do not understand as to how the
Judge was a silent spectator without making any intervention
when the witnesses were harassed like anything. The expression
of our anguish in this judgement is only to convey our hope to all
concerned that the justice delivery system cannot be taken for a
ride by anyone. The time tested system will withstand all such
attempts in the war wagged against the system by unscrupulous
people
56. In the result, (i) Crl.A.No.93 of 2016:- The criminal
appeal is dismissed.
(ii) Crl.A.No.84 and 83 of 2016:- Both the Criminal
61
Appeals are allowed; the conviction and sentences imposed on
A9-Gunapalan, the appellant in Crl.A.No.84 of 2016 and A6-
Sampathkumar, the appellant in Crl.A.No.83 of 2016 are set
aside; and they are acquitted from all the charges. Fine amount
already paid if any, shall be refunded to them. Bail Bond
executed by the appellant/A9 in Crl.A.No.84 of 2016 shall stand
terminated.
(iii) Crl.A.No.85 of 2016: This criminal appeal is partly
allowed; the conviction and sentences imposed on A3 Rajendran,
A4-Sivakumar, A5-Velumurugan and A8-Saravanakumar, the
appellants 3 to 5 and 6 in Crl.A.No.85 of 2016 by the trial court
are set aside and they are acquitted from all the charges. Insofar
as A1-Manivannan and A2-Ramamoorthy, the appellants 1 and 2
in Crl.A.No.85 of 2016 are concerned, they are convicted for the
offences under Section 148, 302 r/w 149 and 449 of IPC and they
are sentenced to undergo rigorous imprisonment for one year
and to pay a fine of Rs.1,000/- each in default to suffer rigorous
imprisonment for 6 weeks for the offence under Section 148 of
IPC; to undergo imprisonment for life and to pay a fine of
Rs.1,000/- each in default to suffer rigorous imprisonment for six
weeks for the offence under Section 302 r/w 149 of IPC; and to
undergo rigorous imprisonment for 3 years and to pay a fine of
Rs.1,000/- each in default to suffer rigorous imprisonment for six
weeks for the offence under Section 449 of IPC. They are,
however, acquitted from the other charges. It is directed that
the sentences imposed herein above on A1 and A2 shall run
concurrently. The period of sentence already undergone by
them shall be given set off under Sections 428 and 433-A of
Cr.P.C.
[S.N.,J.] [N.A.N.,J.]
19..01..2017
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