BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 21/12/2005 Coram : THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE R.REGHUPATHI Criminal Appeal No.353 of 2002 Murugan alias Muruganantham .. Appellant v. The State, rep. by the Assistant Commissioner, Madurai Nagar Tallakulam in J.J.Sellur Police Station .. Respondent Criminal Appeal filed under section 374 of the Code of Criminal Procedure against the judgment dated 20.11.2002 made in Sessions Case No.96 of 1998 on the file of the IV Additional District and Sessions Judge (PCR), Madurai. !For Appellant .. Mr.M.Dilip Kumar ^For Respondent .. Mr.K.Radhakrishnan, Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered
by M.CHOCKALINGAM, J.)
Challenging the judgment of the IV Additional District and Sessions Judge
(PCR), Madurai, made in Sessions Case No.96 of 1998 wherein the appellant, who
is shown as the first accused, and who, though stood charged under Sections 302
of the Indian Penal Code read with Section 3(2)(5) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act and under section 324 of the
Indian Penal Code, was found guilty for the offences under Sections 302 and 324
of the Indian Penal Code, for which he was sentenced to undergo life
imprisonment along with a fine of Rs.500/- carrying a default sentence of
rigorous imprisonment for six months for the former offence and was sentenced
with a fine of Rs.500/- carrying a default sentence of rigorous imprisonment for
six months for the latter offence, has preferred this appeal. The second
accused in the said Sessions case was acquitted of the offence under Section 302
of the Indian Penal Code read with Section 3(2)(5) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act .
2. The short facts necessary for the disposal of the appeal can be stated
thus : P.W.1 is residing near the Fathima College at Madurai. He and the
deceased Alagar belong to a caste listed as a schedule caste. He knew the
deceased Alagar and the appellant, the first accused and his father, the second
accused.
3. On 06.05.1998 at about 05.00 pm P.W.1 and the deceased Alagar went to
attend a condolence at Bethaniapuram, where the deceased Alagar revealed to
P.W.1 that the first accused quarrelled with him as to how he could have a
concubine by coming to a different area and further informed him that if Alagar
comes to the area of the first accused, he would not leave him without stabbing
him. Subsequently, P.W.1 and Alagar went to the house of the first accused at
about 06.00 pm and asked his father, the second accused as to whether he had no
knowledge about the deceased having illicit relationship with a woman in that
area for number of years and asked him as to why his son was quarrelling with
him. The second accused, the father of the first accused did not answer.
P.W.1 and the deceased Alagar, thereafter, came out of his house and went to the
nearby tea stall of P.W.2, where P.W.3 was assisting P.W.2. The first accused
came to the house and he was informed about the fact that the deceased Alagar
and P.W.1 came over there and questioned. Immediately, the first accused came
to the tea stall and questioned the deceased as to how dare he could question
his father and he attacked the deceased Alagar on the left side of the chest
with a knife, which was kept hidden by him. The deceased fell down. P.W.1
intervened to prevent the first accused making further attack on the deceased.
Immediately, the first accused stabbed P.W.1 on his left shoulder with the knife
and ran away from the place. P.Ws.1 and 2 and others tried to chase the first
accused, but they could not catch him.
4. P.W.1 and others took the injured Alagar to the Government Rajaji
Hospital, Madurai and admitted him there. P.W.1 also got himself admitted in
the hospital in a different ward. P.W.7, the doctor attached to the hospital
treated Alagar and P.W.1 and issued Exs.P.6 and P.7 accident registers in
respect of the injuries found on them. Alagar, who was undergoing treatment,
died in the hospital and an intimation was given to the outpost police station
at 10.00 pm. Following the same, P.W.10, head constable of Selur Police
Station came to the hospital and enquired about the incident. P.W.1 narrated
the incident, which was recorded by him. P.W.10 came to the station and
registered a case in crime No.549 of 1998 for the offence punishable under
Section 302 of the Indian Penal Code at 11.30 pm. Ex.P.10 is the first
information report. Express report was despatched to the Court along with Ex.P.1
statement.
5. P.W.13, the Inspector of police, Selur, on receipt of the copy of the
first information report, took up investigation in the case and proceeded to the
place of occurrence on 07.05.1998 at 00.45 hours, prepared an observation
mahazar, Ex.P.2 in the presence of two witnesses and drew a rough sketch,
Ex.P.13. He recovered blood stained soil and sample soil under cover of a
mahazar, Ex.P.3. He then proceeded to the Government Hospital, Madurai and
examined P.W.1, the injured witness and recorded his statement. Thereafter,
he conducted inquest on the dead body of Alagar and in the presence of
witnesses, prepared Ex.P.14 inquest report. Following the same, the dead body
was subjected to postmortem by P.W.8 and he has given postmortem certificate,
Ex.P.8, wherein he has noted the following injuries :
1.A transversely oblique sutured stab injury on the left side upper chest 2.5 cm
x 0.75 cm x entering the thoracic cavity. Inner end pointed. Outer end curved
passing obliquely downwards, inwards in the third intracostal space cuttng the
muscle. The wound cutting the left lung upper lobe 2.5 cms x linear x through
and through piercing the pericardium and lefty auricle 2.5 cm x linear x through
and through. Pericardial sac contains 120 ml of blood with clots. Left pleural
cavity contains 850 ml of blood with clots. Right side pleural cavity empty.
2. Intravenous drip wound with continuous drainage left ankle inner aspect
(surgical treatment)
3.Intra costal drainage wound in the 6th intra costal space mid axillary line
(surgical treatment)..
4.Abrasions 3 in number on the right side of face below and outer side of right
eye measuring 2.5 cm x 1 cm right ala of the nose 1 cm x 1 cm right side of chin
1 cm x 1 cm.
The doctor has opined that the deceased died out of shock and haemorrhage due to
external stab injury No.1 with corresponding internal injuries to heart and lung
sustained by him.
6. Pending investigation, as P.W.13, the Inspector of Police proceeded on
leave, P.W.14, who was the Inspector of Police, Tallakulam police station and
who was incharge of Selur police station took up further investigation in the
case and arrested the first accused on 08.05.1998 at 01.00 pm and at that time
he gave a confession statement and the admissible portion is marked as Ex.P.4.
Following the same, M.O.1 was recovered from the first accused on production,
under mahazar, Ex.P.5 and he was remanded to judicial custody. All the
material objects recovered from the place of occurrence, from the dead body, and
M.O.1 knife were subjected to chemical analysis pursuant to the requisition
given by the concerned Court. Ex.P.18 is the chemical analysis report and
Ex.P.19 is the serologist report received from the forensic department.
7. P.W.13, on returning from leave, took up investigation in the case on
19.05.1998. He examined the witnesses and recorded their statements. On the
basis of the statements of the witnesses, and after obtaining the community
certificate of both the accused and the deceased, altered the crime and added
Section 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act. In the meantime, the second accused surrendered before the
Court. P.W.13 submitted his special report to the Court and to P.W.15, the
Additional Superintendent of Police, who after completing the investigation,
laid the charge sheet under Sections 302 and 324 of the Indian Penal Code read
with Section Section 3(2)(5) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act.
8. The case was taken on file as Sessions Case No.96 of 1998 by the IV
Additional Sessions Judge (PCR), Madurai. All the witnesses were examined and
at that juncture, there was a circular by the High Court in Circular No.44 of
2000 dated 17.04.2000 that this type of cases should be committed by a
Magistrate to the Court of Sessions. Therefore, the entire proceedings were
remitted back to the concerned Magistrate, who followed the necessary procedure
and committed the case to the Court of Sessions. The charges were framed and
following the procedural formalities the case was taken up for trial.
9. In order to substantiate the charges levelled against the accused, the
prosecution examined 15 witnesses and marked 19 exhibits and five material
objects. On completion of the evidence on the side of the prosecution, the
accused were questioned under section 313 of the Code of Criminal Procedure. The
appellant denied the incriminating circumstances as false. On the side of the
defence the evidence of P.W.13 was marked as Ex.D1.
10. On hearing the arguments advanced and on scrutiny of the materials,
the trial Court found the first accused guilty of the offences under sections
302 and 324 of the Indian Penal Code and awarded sentence to the first accused
as stated above. The second accused was acquitted of the charges.
11. Learned counsel for the appellant made serious and sincere attempts
in assailing the judgment of the lower Court. The counsel submits that P.W.1,
according to the prosecution, is an injured witness and he was taken to the
Rajaji Government Hospital, Madurai and was treated by P.W.7, the doctor who
issued Ex.P.7, accident register for the injuries sustained by P.W.1, in which
it is stated that P.W.1 was brought to hospital by one Easwaran, a witness
examined as P.W.6 and Alagar, since deceased was taken to the hospital by one
Mohan, which is found mentioned in the accident register issued in respect of
his injuries, Ex.P.6, but from the evidence of Easwaran, P.W.6, it is seen that
he has no clear knowledge about the occurrence, since he states that he came to
know about the incident later and went and saw P.W.1 at the hospital. It is,
therefore, highly doubtful whether such an occurrence had taken place at 06.30
pm at the place of occurrence as alleged by the prosecution.
12. The counsel added that in the instant case, according to the Head
Constable, P.W.10, who registered the first information report, he went to the
hospital and recorded the statement of P.W.1, which is marked as Ex.P.1 and on
the strength of the same, he registered a case at Selur police station about
11.30 pm in crime No.549 of 1998 for the offence under Section 302 of the Indian
Penal Code. It is highly a matter of surprise to know that P.W.1 has received
a free copy of the first information report, after signing the first information
report book. But according to the prosecution, P.W.1 was admitted and was
undergoing treatment at 10.00 pm onwards in the hospital. Had it been so,
P.W.1 could not have gone to the police station and it is highly doubtful
whether Ex.P.1 could have been recorded in the Government Hospital, as projected
by the prosecution.
13. The next submission of the learned counsel for the appellant is that
from the observation mahazar and rough sketch, it is highly doubtful whether
P.W.1, though claimed to have been injured at the time of occurrence, was not
available at the place of occurrence, since the evidence of P.Ws.1 to 3
regarding the narration of the occurrence is varying and in order to
substantiate the case of the prosecution, the words attracting the offence under
the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, had been included. The motive, as alleged by the prosecution,
is flimsy and unbelievable.
14. Added further the learned counsel for the appellant that in so far as
recovery of the knife following the confession alleged to have been made by the
first accused is concerned, it cannot be said to stand the scrutiny in the eye
of law, since P.W.5 is the only one witness examined to speak about the
confession and the recovery. He stated that M.O.1 was recovered from the first
accused and following the same, a confession statement was recorded and thus it
cannot be said that there was a confession leading to recovery to satisfy the
requirements under section 27 of the Evidence Act.
15. The learned counsel would further add that prior to the transmission
of the case to the Judicial Magistrate, originally, all the witnesses were
examined and their statements were recorded and after committal by the Judicial
Magistrate, again for the second time, the evidence was recorded by the
prosecution with embellishments filling in the lacunas made in the earlier
evidence and this would go to the route of the matter.
16. Added further the learned counsel that the trial Court was not
prepared to accept the case of the prosecution with regard to the second accused
and he has been acquitted. Under the circumstances, the first accused is also
entitled for an acquittal as the prosecution case in respect of the first
accused also is based on the same set of evidence.
17. Heard the learned counsel on the side of the State on the above
contentions. The Court paid its attention on the submissions made.
18. In the instant case, it is not in controversy that Alagar, who
sustained injuries at the place of occurrence was taken to the Government
Hospital, Madurai, and was admitted in the hospital and was treated for his
injuries. P.W.7, the doctor has issued Ex.P.6 and within a short time, he
succumbed to the injuries sustained by him and following the registration of a
case, the investigating officer proceeded to the place of occurrence and
conducted inquest over the dead body of the deceased and postmortem was
conducted by P.W.8 who issued Ex.P.8, post mortem certificate. A perusal of the
evidence of the the doctor, P.W.8 and the post mortem certificate, Ex.P.8 would
show that the deceased Alagar died on account of homicidal violence at the time
and place of occurrence.
19. In so far as the instant case is concerned, in order to substantiate
the accusation that it was the accused, who stabbed the deceased Alagar and also
P.W.1, three eye witnesses have been marched by the prosecution. It is
pertinent to point out that P.W.1 is the injured witness and he has narrated the
entire incident. Apart from that he has also suffered injuries and he went to
the hospital along with the injured Alagar and had taken treatment by the same
doctor. Exs.P.6 and 7 have been marked as accident registers in respect of the
deceased and P.W.1, which corroborate the evidence of P.W.1, which inspires
confidence in the mind of the Court. According to him, he and Alagar went to
the house of the first accused and questioned the second accused, who is the
father of the first accused, about the behaviour of the first accused and
thereafter they came out of the house and were standing at P.W.2’s tea stall
where P.Ws.2 and 3 were there. At that time, the first accused came there with
M.O.1, knife and stabbed the deceased on the left chest and when P.W.1
intervened he was also stabbed by the first accused. The said evidence of P.W.1
stands corroborated by the evidence of P.Ws.2 and 3. The contention of the
learned counsel for the appellant that these witnesses could not have seen the
occurrence has got to be rejected for the simple reason that P.W.1 has
categorically narrated the incident and P.Ws.2 and 3 are independent witnesses
who spoke about the occurrence. Apart from that, the evidence of the doctor
who treated the injured Alagar and P.W.1 and the evidence of the doctor, P.W.8,
who conducted postmortem and the post mortem certificate, corroborate the ocular
testimony.
20. The Court is unable to find sufficient force in the contention put
forward by the learned counsel for the appellant that the confession of the
first accused recorded pursuant to the recovery cannot be accepted for the
simple reason that even as per the evidence of P.W.5, the witness examined by
the prosecution to speak about the confession and recovery, there was a
confession leading to recovery of M.O.1, knife. Even if the prosecution case
with regard to the confession and recovery is not acceptable, then also, in the
instant case, there is direct evidence, which is supported by medical evidence.
21. The other contention of the learned counsel that there is an outpost
police station near the place of occurrence and on the way to the Government
Hospital, Selur police station is also situated and therefore, one of the
witnesses could have gone to any of the police stations and given a complaint,
which was not done. This statement of the counsel has to be rejected. In a
situation like this, when the condition of the injured person was very serious
and the other person, P.W.1 was also seriously injured, one would naturally go
to the hospital first and would not think of going to the police station at that
stage. Apart from that P.W.1 and the deceased Alagar were taken to the
hospital by two persons and each one of them was attending each of the injured
and there was none else available to go to the police station and lay a
complaint. In the stated circumstances, though the police stations were
nearby, the prosecution witnesses could not be faulted with for not laying the
complaint at the police station.
22. The next contention that the first information report could not have
come into existence as claimed by the prosecution cannot also be accepted. It is
true that P.W.10 Head Constable, on the intimation, went to the Rajaji
Government Hospital and recorded the statement of P.W.1, pursuant to which a
case came to be registered at the Selur police station in crime No.549 of 1998
and following the same, the first information report was despatched to the
Court. It is put by the learned counsel for the appellant that P.W.1, who was
undergoing treatment at the Rajaji Hospital could not have received a free copy
of the first information report by signing in the first information book, which
is an admitted fact by the said Head Constable. It is true that it contains the
signature of P.W.1. The witness has clearly answered that after the
registration of the case, he took the first information book to the hospital
since P.W.1 was hospitalised and obtained his signature at the hospital. Under
the circumstances, the evidence of the Head Constable, P.W.10 has got to be
accepted.
23. It is also contended by the learned counsel for the appellant that in
the instant case, it is the evidence of P.W.1 that he and Alagar went to the
house of the first accused and questioned the second accused about the behaviour
of the first accused in the evening and at that time, the first accused was not
available. Therefore, Alagar and P.W.1 came out of the house and went to
P.W.2’s tea stall and were standing there. At that time the first accused came
there from his house, armed with M.O.1, knife with which he stabbed the deceased
Alagar and P.W.1, as a result of which the injured Alagar died at the hospital
and P.W.1 was injured and was treated at the hospital. Therefore, the first
accused had no premeditation and he came out of the house out of sudden
provocation and stabbed the deceased and therefore, the offence committed by the
first accused would not fall under Section 302 of the Indian Penal Code. This
argument of the learned counsel has to be rejected, since, in our view, it
cannot be stated that the first accused acted in a fit of anger or on a sudden
provocation. It cannot also be stated that the first accused had no
premeditation nor did not have any knowledge that his act would result in the
death of the deceased. All the contentions raised by the learned counsel for
the appellant are rejected.
24. In view of the foregoing reasons, we are of the considered view that
the learned trial judge has rightly appreciated the evidence and has come to the
conclusion that the first accused is guilty of the offences charged. We do not
find any ground to interfere with the conviction and sentence imposed by the
trial Judge. The criminal appeal is dismissed.
Copies to
1.The IV Additional Sessions Judge, (P.C.R.),
Madurai.
2.The IV Additional Sessions Judge, (P.C.R.), Madurai,
through the Principal Sessions Judge, Madurai.
3.The Judicial Magistrate No.2, Madurai.
4.The Public Prosecutor, Madurai Bench of
Madras High Court, Madurai.
5.The District Collector, Madurai.