BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12/12/2008
CORAM
THE HONOURABLE MR.JUSTICE R.REGUPATHI
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Crl.A(MD)No.761 of 2001
1.Murugesan
2.Lakshmanan
3.Arivazhagan @ Nagarajan
4.Maniraj
5.Ganesan
6.Subbiah
7.Senthil @ Senthil Kumar
8.Thangaraj (Deceased)
(Mrs.T.Pakialakshmi,
W/o.Late.Thangaraj was
permitted to continue the
criminal appeal No.761/01
on behalf of the appellant
No.8 by order of this Court
dated 27.07.2007 made in
M.P.No.1/07. ... Appellants
Vs.
State, represented by
The Inspector of Police,
Maniachi Police Station,
Tuticorin District.
(Cr.No.3/1997) ... Respondent
Prayer
Appeal filed under Section 374 of Cr.P.C., against the conviction and
sentence imposed upon them by the learned Additional Sessions Judge Cum Chief
Judicial Magistrate, Tuticorin in S.C.No.137 of 1998, dated 31.07.2001.
!For Appellants ... Mr.P.Shanmugasundaram
(1,6&8) S.C.
For Appellants ... Mr.V.Gopinath
(2 to 5) for Mr.S.Durairaj &
Mr.V.R.Shanmuganathan
^Respondent ... Mr.Senthur Pandian,
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered by R.SUBBIAH, J.)
There were 14 accused before the trial court, of whom the appellants
herein, who were arrayed as accused 1 to 5 and 7 to 9 and the acquitted accused
arrayed as accused Nos.6, 10, 11, 12,13 and 14, took their trial in
S.C.No.137/98 on the file of the Additional Sessions Judge – cum – Chief
Judicial Magistrate, Tuticorin, of whom, the appellants herein i.e., the accused
1 to 5 and 7 to 9 alone were found guilty for the offences punishable under
Sections 148 and 302 read with 149 IPC. , and sentenced to undergo rigorous
imprisonment for one year under section 148 I.P.C., and sentenced to
imprisonment for life under section 302 read with section 149 I.P.C., and the
rest of the accused were acquitted.
This appeal is filed by the convicted Accused, who took their trial under
various offences under different charges on the allegations that on 10.1.1997 at
6.00 P.M. near the house of Krishnammal (PW.1 in this case) in Kandasamipuram
within the limits of Maniachi Police Station in Tuticorin district, all the
appellants and the acquitted six accused armed with deadly weapons formed
themselves into an unlawful assembly with intention to murder the deceased
Rajasekar (son of PW-1) and indiscriminately made murderous attack by inflicting
many fatal injuries as a result of which the victim Rajasekar instantaneously
died on the spot itself and during the course of occurrence P.Ws.1 and 4 to 7
also received injuries at the hand of the accused.
2.The case of the prosecution in short is that the appellants/accused and
the acquitted accused are the residents of the village namely Kandasamypuram
within the limits of Maniachi Police Station. The deceased Rajeswaran @
Rajasekaran, the son of P.Ws.1 and 2, the husband of P.W.4 and son-in-law of
P.W.6, during the time of occurrence, was residing with his parents and he was
employed in a wine shop belonging to one Kundamperumal at Ottapidaram.
3.During December, 1996 the general election for the Tamil Nadu
Legislative Assembly took place, in which, Thiru Kundamperumal and one Thiru
Krishnasamy contested the election opposing each other. The accused supported
the candidature of Thiru Krishnasamy, whilst the deceased worked for his Master
Kundamperumal. Thiru Krishnasamy ultimately became successful. On account of
this, there was a deep animosity existing between the accused and the deceased.
Following this animosity, there were frequent quarrels between them.
4.On 3.12.1996 there was a petty quarrel among the children. On account of
this a quarrel arose between one Shunmugasundari (PW.8) and one Athilakshmi. The
husband of PW.8 by name Natarajan lodged a complaint before the police in
respect of this incident citing PW.1 and the deceased as witnesses to the
occurrence.
5.On 09.01.1997, when P.W.4, wife of the deceased went to the Electricity
Board to pay current bill, she was threatened by A-7 and Aadhilakshmi and one
Subbulakshmi stating that if anybody adduced evidence against them, they would
be killed. In the said quarrel, P.W.1 was kicked by A-13 and was dragged by
other accused.
6.On 10.01.1997 while P.Ws.1 and 2 were in their house, all the accused
came there with deadly weapons. Among them A-1 to A-4 were armed with swords, A-
5,7,8 and 9 were armed with Aruvals, A-13 armed with an iron rod, A-10 armed
with a knife, A-6 armed with a stone, A-14 also armed with a stone and A-11
armed with a stick. Then all of them indulged in a quarrel with P.W.1. At that
time, the deceased along with his wife P.W.4 was coming to his house along with
P.W.5 (sister’s son of P.W.4), after purchasing cloths for Pongal festival. On
reaching the house, the deceased shouted at his mother, P.W.1 as to why she did
not go to the Police Station for lodging a complaint against them. While the
deceased was conversing with P.W.1, all the accused surrounded him with deadly
weapons. A-11 first attacked the deceased with a stick on the back side of his
head. A-12 pushed down the deceased. Immediately A-1(1st appellant) cut the
deceased with the sword on his stomach; A-2 (2nd appellant) cut the deceased
with aruval on his shoulder; A-3 (3rd appellant) cut the deceased with the sword
on the right shoulder; A-5 cut the deceased with aruval on his chest; A-4 cut
with arvual on the right side chest of the deceased; A-8 cut the deceased with
Aruval on the flank; A-7 and A-9 cut the deceased with Aruval on the neck of the
deceased and A-10 cut the deceased with knife on his neck. A-13 attacked P.W.1
with iron rod on her head. A-6 attacked P.W.6 with stone on the right leg. A-14
attacked P.W.2 armed with stone on his backside. A-11 attacked P.W.4 armed with
the stick. A-13 attacked one Ebenezer, P.W.7, armed with an iron rod on his
chest. Due to the injuries sustained, the deceased died on the spot. The accused
threatened the witnesses and ran away from the scene of occurrence. P.W.1 went
to Maniachi Police Station along with P.W.2 by walk since there was no bus
service at that time. They reached the police station, which is 8 kms away from
the scene of occurrence at about 10.00 p.m. and gave an oral complaint, which
was reduced into writing by P.W.13 and the same was attested by P.W.2.
7.P.W.13 (Sub-Inspector of Police of Maniachi Police Station), on the
basis of the complaint Ex.P.1 given by P.W.1 registered a case in Crime No.3/97
for the offences punishable under Sections 147, 148, 341, 323, 326 and 302 IPC.
Ex.P.19 is the printed First Information Report. The said First Information
Report was sent to the Judicial Magistrate, Kovilpatti through P.W.14. Since the
Inspector of Police P.W.16 has gone to the High Court in connection with some
other case. P.W.15, Inspector of Police of Puliyampatti Police Station was in
charge of Maniachi Police Station. Therefore, P.W.13 sent a wireless message to
P.W.15, who, on receipt of the message, came to Maniachi Police Station and
received a copy of the F.I.R. from P.W.13 and went to the scene of occurrence
accompanied by P.W.13. P.W.15 prepared an Observation Mahazar at about 12
midnight and a Rough Sketch of the scene, which are marked as Exs.P.9 and P21
respectively. Then P.W.15 on 11.1.1997 conducted inquest over the dead body of
the deceased at 00.30 hours in the presence of panchayatdars and recorded the
statements of P.Ws.1,2,4,5,8 and 7 and other witnesses and recovered the
bloodstained earth and sample earth, bloodstained stone and sample stone M.Os.
10 to 13 under cover of a mahazar Ex.P.10. Ex.P.22 is the Inquest Report.
8.P.W.3, the Medical Officer, who on receipt of the requisition given by
P.W.15, Investigating Officer, conducted autopsy on 11.01.1997 at 11.00 a.m. and
issued the post mortem certificate Ex.P.3 wherein he had noted the following
injuries:
“External:
“1)A cut injury in the right upper chest close to the shoulder measuring 40cm x
5cm x 3 cm exposing bones and muscles.
2)A cut injury on the back of the right shoulder extending into the scapular
region measuring 20x3cmx5cm exposing the bone.
3)A curvillinear cut – right mammary region 30cm x 1cm x 3cm
4)A curvillinear injury(cut) from right hypochondrium into left lower chest – 45
cm x 3 cm x 3 cm exposing, stomach, liver and intestines.
5)Two linear cuts in the left upper chest measuring
1)10×0.5x1cm 2)5×0.5x1cm
6)A cut in the jaw exposing mandible 10×0.5x3cm
7)Two cuts in the forehead (left) measuring 3×0.5×0.5cm each
8)A cut in the occipital region measuring 20x1x3cm exposing brain.
9)A cut below No.8 measuring 10x1x3cm
10)A cut in the lower face(left) 5cmx0.5x1cm
A cut in the back between scapular- 5cmx0.5×0.5cm
11)Two cuts in the right thigh measuring
1)5x1x2cm 2) 3×0.5×0.5cm
12)A cut in the upper loin (right) – 7×0.5x2cm
Internal: Heart spleen, Kidneys congested.
2)Lungs: Right – congested – cut along upper lobe 10×0.5x2cm
3)A curvillinear cut in the congested liver 10×0.5x5cm
4)Parts of small and large intestines cut and torn off.
5)Stomach lacerated and cut; Bladder empty.
6)Hyoid bone, atlas, axis intact.
7)Skull
1)A cut injury in the occipital bone 20×0.5x3cm.
2)A cut below the above 10x1x3cm
8)Brain congested”.
P.W.3, the Medical Officer opined that the deceased would appear to have died of
shock and haemorrhage due to the injury Nos.1,2,3,4,8 and 9. According to the
doctor, these injuries were likely to have been caused by the weapons like
aruval and knife. According to P.W.3, the victim might have died about 12 hours
prior to the post-mortem.
9.Thereafter P.W.15 noted the injuries on P.Ws.1, 2 and 4 to 6 and sent
them for medical examination and treatment. P.W.3, the Medical Officer examined
them on 11.1.1997 and issued the wound certificate. P.W.3 found on P.W.1
(Krishnammal) a cut injury measuring 5 cm x 0.5 cm x 0.5 cm on her head, 2 cm
above the forehead. This injury, according to P.W.3 was simple in nature. He
issued the wound certificate, Ex.P4.
10.Then P.W.3 examined P.W.2, who complained of pain on the neck and back.
Ex.P5 is the concerned would certificate.
11.Thereafter P.W.3 examined P.W.5, who also complained of pain on her
chest. There was no external injury. The Medical Officer opined that the injury
was simple in nature and issued the wound certificate, Ex.P6. Then P.W.3
examined P.W.4, who complained of pain on the right hand and leg. The Medical
Officer opined that the injuries were simple in nature and issued the wound
certificate Ex.P7. P.W.6 was medically examined by P.W.3 and the injured
complained of pain in the waist. P.W.3 opined the injury as simple in nature and
issued the wound certificate, Ex.P8.
12.P.W.15, the Investigating Officer, on his return to the Police Station
handed over the case for further investigation to P.W.16, Investigating Officer.
P.W.16 took up the case for further investigation and proceeded to the scene of
occurrence and recorded the statements of P.Ws.1,4 and one Chinnathai. On
receipt of the information, on 13.01.1997, he arrested A-12 (Arumugam) at 6.00
p.m. in the presence of the Village Administrative Officer, P.W.9 and one
Anthonysamy and recovered the bloodstained full-hand shirt and bloodstained
Lungi M.Os.17 and 15 respectively. A-12, Arumugam gave a statement Ex.P.23 in
the presence of P.W.9, which is inculpatory in nature. A12 requested the police
to send him for treatment for the injuries sustained by him. On the basis of the
said statement, a case was registered for the offence punishable under Section
324 IPC., in Cr.No.4/97. Ex.P.24 is the copy of the First Information Report.
13.Thereafter, P.W.16, arrested A-6 at 11.p.m. and recorded the statement,
given by him in the presence of P.W.9. On 29.01.1997 P.W.16 filed an affidavit
before the learned Judicial Magistrate, Kovilpatti for securing A-1 and A-3
under police custody and had them secured. On 30.01.1997 P.W.16 recorded the
confession statement of A-1 and A-3 given by them in the presence of P.W.9 and
the admissible portions of which are marked as Exs.P.25 and 26 respectively.
Pursuant to the confessional statement, P.W.16 recovered long aruvals (3 Nos),
knife and sword in the presence of P.W.9 marked as M.Os.1 to 7 under cover of
Mahazars Exs.P27 and P28. Thereafter, A-1 and 3 were sent to judicial custody on
31.01.1997. On coming to know that A-5 surrendered before the Judicial
Magistrate, P.W.16 filed an affidavit before the Judicial Magistrate, and
secured him under police custody on 25.02.1997 and recorded the statement given
by him in the presence of P.W.9. Pursuant to his confession statement, he
recovered M.Os.8 and 9 under cover of a Mahazar, Ex.P.13. Thereafter, on
28.02.1997, a requisition has been given to send the recovered material objects
to chemical analysis. The chemical analyst and serologist reports were
subsequently received under Exs.P.16 and 17. On 08.03.1997, P.W.16 recorded the
statement of P.W.3, the medical Officer who gave treatment to the injured
witnesses P.Ws.1,2,4,5 and 6 and issued Wound Certificates Exs.P4 to P8. P.W.16
referred the case in Cr.No.4/97 registered on the basis of the statement of A12
as mistake of law holding that the accused sustained the injury during the
occurrence. P.W.16 thereafter was transferred. Thereafter there was no Inspector
of Police in charge of that sub-division. Therefore, on 9.5.1997 P.W.13 under
the oral direction of the Superintendent of Police and on the basis of the draft
charge-sheet prepared by the learned Public Prosecutor filed the final report
for the offences punishable under Section 147, 148, 341, 323, 324 and 302 read
with section 149 I.P.C.
14.Since the offence is triable by the learned Sessions Judge, the same
was committed to the Court of Session. The trial Court totally framed eight
charges on the basis of the materials placed before it as against accused Nos.A-
1 to A-5, A-7 to A-9 and also the other acquitted accused 6, A10 to A14) as
follows:
As per the first charge: As against A1 to A5 and A7 to A10 and A13 for the
offence under section 148 I.P.C. and as against A6, A11, A12 and A14 for the
offences under section 147 I.P.C.
As per the second charge: As against A1 to A5, A7 to A10 for the offence
punishable under section 302 read with section 149 I.P.C.
As per the third charge: As against A1, A11 to A14 for the offence under
section 302 read with section 149 I.P.C.
As per the fourth charge: As against A6 for the offence under section 323
I.P.C.
As per the fifth charge: As against A11 for the offence under section 323
I.P.C
As per the sixth charge: As against A14 for the offence under section 323
I.P.C.
As per the seventh charge: As against A13 for the offence under section
324 I.P.C.
As per the eighth charge: As against A13 for the offence under section 324
I.P.C.
15.The learned trial Judge on the basis of the oral and documentary
evidence produced by the prosecution questioned the appellants/accused under
Section 313 Cr.P.C. The appellants denied the complicity of the offence and
pleaded innocence. Even though some of the accused said that they have got
witnesses to examine on their side they did not examine any witness.
16.To substantiate the above charges the prosecution has examined P.Ws.1
to 16 marked exhibits Exs.P-1 to P-28 and marked M.Os.1 to 18. It may be noted
that all the accused i.e., both convicted and acquitted as well as P.Ws.1, 2, 4,
5, 6 and 8 belong to Kandasamipuram. Though the prosecution examined P.Ws.1, 2,
3,and 4 to 8 as eye witnesses only P.Ws.1, 2 and 4, who are the injured
witnesses, supported the case of the prosecution. P.Ws.5 to 8 have turned
hostile to the prosecution despite the fact that P.Ws.5 and 6 were also injured
as fortified by the wound certificates Exs.P6 and P8. As it is repeatedly
mentioned above, P.Ws.1 and 2 are the mother and father of the deceased and
P.W.4 is the wife of the deceased. Among the witness, who are treated as
hostile, P.W.5 is the elder sister’s son of P.W.4 and P.W.6 is the mother of
P.W.4 and the mother-in-law of the deceased. Among the accused A4 is the son of
A9. A7 and A9 are brothers. A8 is the son of A7. A12 is the father of A13 and
husband of A14.
17.A careful analysis of the evidence of the eye witnesses P.Ws.1, 2 and 4
coupled with the other circumstantial evidence establish the present prosecution
case and bring about all the key ingredients for proving the offences for which
the appellants stand convicted. The presence of these eye witnesses cannot be
brushed aside because all of them are the injured witnesses as seen from Exs.P4,
P5 and P7. It is not disputed that the occurrence did not take place in some
other place beyond the visibility of the inmates of the house of P.W.1. Further
the occurrence is said to have taken place at 6-30 P.M. on 10.1.1997, though
there is marginal variation of time in the evidence of some of the witnesses
deposing that the occurrence took place at 7 P.M. Admittedly there was a shop
near the occurrence which was provided with lights. In fact, P.W.4 has stated
that at the time of occurrence street light was burning and that she was able to
observe the accused Arumugham and one Ganesan sustaining the injuries during the
occurrence being participated by a number of persons. Apart from that, P.W.10,
who was a wireman in the Electricity Board, has deposed that there was no
shutting down of energy in that village. Therefore, there was ample evidence to
show that there was sufficient visibility to witness the occurrence. More over,
all the accused are not strangers to the witnesses. In the circumstances, the
evidence given by P.Ws.1, 2 and 4 with regard to the material part of the
evidence relating to the attack perpetrated by the appellants/accused are
umimpeachable.
18.Immediately after the occurrence P.Ws.1 and 2 after covering a long
distance of 8 km. by walk has given the complaint by about 10.15 P.M. itself.
All the three witnesses speak about the motive part of the case in one voice and
the existence of the enmity between the deceased and the accused particularly
from the date of the general election.
19.The learned trial Judge on the basis of the oral and documentary
evidence coupled with the compelling circumstances and after hearing the
submissions made on either side, convicted the appellants herein (A1 to A5 and
A7 to A9), finding them guilty of the offence punishable under Section 148 IPC
and sentenced each one of them to undergo Rigorous Imprisonment for one year and
also finding all the appellants guilty under Section 302 read with 149 IPC and
sentenced each of them to undergo imprisonment for life and to pay a sum of
Rs.1000/- in default to undergo simple imprisonment for three months. For the
reasons mentioned in the judgment the learned Judge of the trial court found A-
6, A-10 to A14 not guilty and acquitted them of all the charges. The Court has
also given a direction that the substantive sentences are to run concurrently.
Aggrieved against the order of conviction and sentence passed by the Trial
Court, the appellants herein have preferred the present appeal before this
Court. It is informed to this Court that during the pendency of appeal, A-9 (8th
Appellant) had died and consequently the appeal of the 8th appellant is abated.
20.The learned counsel for the appellants intensively contended that the
origin and genesis of the case is totally suppressed by the prosecution and
instead the prosecution has presented a new case before this Court with false
evidence and fabricated documents. According to him, though A5 and A-12 have
sustained injuries and their wound certificates of have not been produced before
the Court. Similarly the Investigating Officer, P.W.16 had not taken any effort
to investigate the case in Cr.No.4/97 registering the complaint of A12 but has
simply disposed of the case recording that it was a ‘mistake of law and fact’.
According to the learned defence counsel, these facts create a grave doubt about
the manner of occurrence as put forth by the prosecution. The learned defence
counsel further submits that in Ex.P1 the name of A2 is mentioned as Thangaraj
son of Lakshmanan but in the printed first information report in col. No.7 the
name of A2 is mentioned as Lakshmana Perumal son of Krishnan. This vital
contradiction even with regard to the name of A2 has not been properly
explained. The learned counsel has also very emphatically submitted that the
prosecution has not explained as to how and why there was a long and unexplained
delay in handing over the first information report to the Judicial Magistrate of
Kovilpatti at 5-30 P.M. on 10.1.1997. This inordinate delay gives a death blow
to the case of the prosecution because even before 5-30 P.M. the investigation
had gone a long way. Thereafter the counsel has pointed out some contradictions,
which in our view, are very insignificant. Then he points out that P.W.3, the
Medical Officer, who has admitted that he wrote in Ex.P3 the post-mortem report
that the deceased had sustained two stab injuries and he thereafter corrected
those injuries describing them as cut injuries. According to the counsel, these
corrections made in two places in Ex.P3 indicate that there is some manipulation
of records. The learned counsel concluded his submission that the cumulative
effect of the contradictions and infirmities found in the prosecution
undoubtedly goes to show that the entire prosecution case is a concocted story
suppressing the real facts before the trial court and therefore, in all
probabilities the accused are entitled to be given the benefit of doubt.
21.Per contra, learned Additional Public Prosecutor submits that in
Ex.P.1, the complaint preferred by P.W.1 the names of all the accused are
clearly and unmistakably mentioned. Similarly, the weapons used by each of the
accused and the overtacts attributed to them have also been clearly mentioned in
Ex.P.1 and the evidence of P.W.2 and 4 strongly corroborates the evidence of
P.W.1. According to him, the evidence adduced by P.Ws.1, 2 and 4 is cogent and
convincing. In fact no favourable point was brought in the cross examination of
these three witnesses either with regard to the weapons used by the accused or
with the overtacts attributed to them. Similarly, P.W.15 in his cross
examination had denied the suggestion put forth by the accused that he had
suppressed the earlier complaint lodged by A-12 and foisted a false case against
the accused. Then it was submitted by the learned Additional Public Prosecutor
that the evidence of P.W.16 and the documents Exs.P.23 and 24 collectively go to
show that there is neither a suppression of the origin or genesis of the case by
the prosecution nor any suppression of the injury sustained by the accused.
Though the name of the father of the accused No.2 was mentioned as Thangaraj in
Ex.P.1, the First Information Report, it is correctly mentioned as son of
Krishnan in the later part of Ex.P1. In fact, no cross examination was done on
behalf of the accused relating to this fact to P.W.13 who had registered the
First Information Report. Under such circumstances, the present contention of
the learned counsel for the appellants that the First Information Report would
have been fabricated is nothing but a surmise. Now coming to the argument
advanced by the learned defence counsel relating to the inordinate delay in
handing over the F.I.R to the Magistrate, the learned Additional Public
Prosecutor submits that there was no bus service on that day on account of this
incident and that was the reason as to why such a delay had occurred. Therefore,
it cannot be said by any stretch of imagination that the prosecution has come
forward with a false case. With regard to the correction said to have been made
by P.W.3 mentioning as cut injuries though it was originally said to have been
recorded as stab injuries. The explanation given by P.W.3 for mentioning the
entries as cut injuries by correcting the entry as stab injuries cannot be
considered to be of vital contradiction in this case because in a case like
this, when number of accused jointly attacked the deceased with aruval, sword
and other weapons the nature of the injuries would depend upon the manner of
attack because if tip of the aruval or sword had been used, the injuries would
look like stab injuries. Therefore, no doubt can be raised about the veracity of
the post-mortem certificate, which unquestionable document prepared by an
uninterested witness viz., P.W.3 cannot be doubted on this point and ultimately
he states that the prosecution has proved the case beyond all reasonable doubt
and therefore, the conviction and sentence passed by the trial court has to be
sustained and the appeal dismissed.
22.We have perused the materials available on record and carefully
considered the submissions made on both sides.
23.The occurrence had taken place in the presence of P.Ws.1,2, 4,5 and 6
who are all the father and mother, wife sister’s son of deceased’s wife and
mother-in-law respectively of the deceased. The evidence of P.Ws.1,2 and 4
strongly corroborates with each other and their evidence has not been shattered
in the cross examination conducted by the defence. Of course, P.Ws.5 and 6 have
not supported the prosecution case and hence were treated as hostile witnesses
to the prosecution. As stated supra, the very presence of P.Ws.1, 2 and 4 during
the occurrence is strongly supported by the injuries sustained by them. These
injured eye witnesses speak about the motive for the occurrence projecting the
election dispute as one of the motives for the murder. It is mentioned in Ex.P1
that there was a quarrel among the children between P.W.8 and one Adhilakshmi,
which ultimately ended in lodging a criminal complaint in which P.W.1 and the
deceased were cited as witnesses and that the accused party threatened the
witnesses not to depose in that criminal case and if they did so, the witnesses
would be murdered. This is the immediate motive for the commission of this
offence. In fact this part of motive is not totally denied by the defence. Now
we shall examine the contentions raised by the defence counsel one by one.
According to the learned counsel, in Ex.P1 the 2nd accused’s name is mentioned
as Lakshmanan son of Thangaraj. But, under col.7 of Ex.P9 i.e.., the printed
first information report, the name of A2 is mentioned as Lakshmana Perumal son
of Krishnan. Therefore, the contention of the learned counsel that there is no
explanation for this contradiction and that A2 is entitled to the benefit of
doubt cannot be accepted. A careful examination of the document Ex.P1 shows that
in the latter part of Ex.P1 it is unquestionably stated that Lakshmanan
referring to A2 cut the deceased with a sword (long aruval). It may be noted
that in the printed FIR under col.No.7 requiring to state ‘the details of known
accused with full particulars’ the name of A2 is clearly stated as Lakshmanan
son of Krishnan of Kandasamipuram. In the charge-sheet also A2’s name is
mentioned as Lakshmanan alias Lakshmana Perumal son of Krishnan alias Namakarar.
In the judgment of the trial court A2’s name is shown as Lakshmanan alias
Lakshmana Perumal. A2’s name is also shown as Lakshmanan alias Lakshmana Perumal
son of Krishnan on the preface of the question put under section 313 Cr.P.C. A2
also has signed his name as Lakshmana Perumal. Therefore, this insignificant
mistake which has crept in Ex.P1 while recording A2’s father as Thangaraj does
not in any way adversely affect the case of the prosecution. Further it is not
the case of the defence that Lakshmana Perumal was not one of the accused among
the other accused. Probably the name Thangaraj referable to A9 might have been
wrongly mentioned as A2’s father’s name. In that circumstances, that too after
witnessing the brutal attack on her son, the deceased herein, P.W.1 might have
been in a highly perturbed condition. Therefore, we reject this contention as
most trivial and inconsequential. The second contention raised by the defence is
that P.W.16 had not taken any effort to investigate the case registered as
Cr.No.4/97 on the complaint of A12, but merely referred the case as ‘mistake of
law and fact’ and that he had failed to produce the wound certificate of A5 and
12. It is not the evidence of P.W.16 that he found any injury on the person of
A5, but only P.W.4 has deposed that A5 and A12 sustained injuries during the
course of the occurrence. It may be noted that A5 when questioned under section
313 Cr.P.C., to the question No.31 under which he was asked to say whatever
intended to say about this case, has not whispered anything regarding his
sustaining any injury or getting any medical treatment for it, but simply
replied that ‘it is a false case’. In such a situation the submission made by
the defence counsel is not based on any material but only from his imagination
and surmise on the basis of the evidence given by P.W.4.
24.The next attack in this connection made by the defence counsel is that
the wound certificate of A12 has not been produced before the Court despite
P.W.16 has admitted that he sent A12 for medical examination and obtained the
wound certificate. The defence has not taken any effort to summon the wound
certificate of A12 and mark it on its side, had that certificate been of any
vital evidence. Further the defence has not constructed any defence theory or
even suggested its defence on that basis. It is pertinent to note that A12 in
his statement made under section 313 Cr.P.C., has not whispered anything about
his sustaining any injury or about the medical treatment. In fact, to all the
questions addressed to him during the 313 statement including his arrest, A12
except saying that ‘it is false’, no other answer was given by him about his
injuries. He also stated to question No.32 in the 313 statement that there was
no witness on his side. However, he has filed a written statement before the
trial court denying his complicity in the occurrence and adding that he, on
10.1.1997 at 6 or 6-30 P.M. received a cut injury and he came to the police
station where he was detained for three days without recording and registering
any case in spite of his request to do so and that he was not sent to any
hospital for medical examination. In such a situation the scathing attacking
made by the defence counsel against the prosecution case does not merit any
consideration. The other part of the attack by the defence is, that P.W.16,
though admittedly recorded a complaint from A12 and registered the same as a
case in Cr.No.4/97, which is marked as Ex.P23, has not taken any effort to
investigate the case. No doubt Ex.P23 is totally inculpatory thereby
incriminating the complainant (A12) with the offence. It may be noted that the
statement Ex.P23 was recorded by P.W.16 after he arrested A12 and while the A12
was in his custody. In other words, the statement Ex.P23 was recorded in the
course of the investigation while A12 was in police custody. So, we hold that
this statement, Ex.P23, the text of which amounts to an incriminating
confessional statement cannot be brought on record by the prosecution as it is
prohibited by section 25 of the Evidence Act. Further, under section 26 of the
Evidence Act any statement, which partakes the character of a confession if made
by the accused while in custody of a police officer, cannot be proved as against
the maker of the statement except that portion of information, which leads to
discover any fact under section 27 of the Evidence Act. Therefore, Ex.P23 is now
eschewed from consideration. Hence the argument advanced by the defence counsel
regarding the non-investigation of the case in Cr.No.4/97 has no force and is
liable to be thrown out.
25.Now we shall examine the submission of the defence counsel regarding
the inordinate delay in handing over the first information report to the
Judicial Magistrate at Kovilpatti at 5-30 P.M. on the next day of the occurrence
i.e., on 11.1.1997, which delay, according to the defence counsel, is fatal to
the prosecution. Learned counsel in continuation of his argument has vehemently
submitted that it must be taken that Ex.P19, the printed first information
report relating to Cr.No.3/97 should have been prepared much later to the part
of the investigation but not on the night of 10.1.1997 at 10-15 P.M. as spoken
to by P.Ws.1 and 2 and the Inspector of Police, P.W.13. This inordinate delay,
is not properly explained and it cuts the very root of the prosecution case.
26.As has been stated supra, while narrating the facts of the case, it is
the evidence of P.Ws.1 and 2 that on the night of 10.1.1997 at about 10.15 P.M.
they, after the occurrence was over, went to the police station and P.W.1 gave
an oral complaint which was registered as a case. Supporting this evidence of
P.Ws.1 and 2 P.W.13 states that he, on receipt of the complaint, registered it
as Cr.No.3/97 and prepared the first information report, Ex.P19 and despatched
the express report through P.W.14 to the Judicial magistrate, Kovilpatti and the
copies of the same to the other officials. P.W.14, by way of explanation to the
delay, has deposed in his evidence that he received Ex.P19 at about 10-30 P.M.
and as there was no transport up to 9 A.M. of the next day to go to Kovilpatti
and as he could not get any bus, he, by getting into a lorry, came to Kurukku
Salai and afterwards he reached the Court of the Magistrate, Kovilpatti, which
is at a distance of 40 km from Kurukku Salai and at 5-30 P.M. he handed over the
report to the Magistrate. Now the question that arises for consideration is
whether there is any unexplained delay in handing over the report by P.W.14 to
the Magistrate raising any doubt in the preparation of Ex.P1. P.W.14 has sworn
in his evidence that he, on receipt of the wireless message, by 10-20 P.M. on
10.1.1997 came to Maniachi and received a copy in Cr.No.3/97 registered under
various sections inclusive of Sec.302 IPC., and took up the investigation and
prepared an observation mahazar Ex.P9 on the same day at midgnight and conducted
the inquest on the dead body at the scene of occurrence at 00.30 A.M. on
11.1.1997. P.W.3, the Medical Officer, has deposed that, he on receipt of Ex.P2,
conducted the post-mortem on the dead body of the deceased at 11 A.M. It is
pertinent to note that even in Ex.P2, which was prepared before the inquest, it
is mentioned under the heading ‘subject’ reading ‘Maniachi Police Station
Cr.No.3/97 under various sections inclusive of section 302 IPC., the dead body
of the deceased shall be examined by post-mortem’. This copy has been sent to
the Judicial Magistrate, Kovilpatti also. Therefore, even much earlier, the
registration of the case has been mentioned in many documents viz., Ex.P2, and
Ex.P3, the post-mortem certificate, which were registered much earlier before
P.W.14 handed over the FIR to the Magistrate at Kovilpatti. Therefore, this
delay in handing over the FIR to the Magistrate cannot be said to have been
prepared much later is unacceptable and this delay caused by P.W.14 cannot stand
in the way of the veracity of the prosecution case and hence the submission made
by the defence counsel that the delay is fatal to the prosecution does not
assume much importance in the present case having regard to the documentary
evidence viz., Exs.P2, P3 and P9. which is supported by the evidence of the
officials inclusive of the doctor, P.W.3. The other submission with regard to
the contradiction of the description of the injury in the post-mortem
certificate, Ex.P3 has been explained by us in the earlier part of the judgment.
The other theory about the occurrence projected by the defence that the murder
was committed by some youths is nothing but only a concocted defence unworthy of
acceptance.
27.Though certain infirmities have been pointed out by the defence, they
are all very minor in nature and inconsequential. So no importance can be
attached to the other submission relating to certain discrepancies, which would
normally occur in every case, in such circumstances as in this case.
28.In fine, we find that it is the case of a brutal murder, in which the
deceased was attacked by the appellants along with other accused in the presence
of the father, mother, wife of the deceased, who were not strong enough to
prevent the attack of the accused armed with deadly weapons. We are of the
opinion that the prosecution case does not suffer from any infirmities. Under
such circumstances, we do not find any justification to interfere with the
judgment of the trial court. It may also be stated that the State has not
preferred any appeal against the acquittal of the accused Nos.A6, A10 to A14. As
we have stated already, the conviction of the 8th appellant, who is reported to
have died pending the appeal, his conviction has abated. The conviction and
sentence passed by the learned Sessions Judge, barring the 8th appellant, are
confirmed. Resultantly, the conviction under Section 148 IPC., and the sentence
of RI for one year imposed therefor and the conviction under sec.302 read with
section 149 IPC., against all the other accused and the sentence of imprisonment
for life passed against each of the accused are confirmed and the direction
given by the court below that the sentence shall run concurrently is also
confirmed.. The fine amount of Rs.1,000/- imposed by the trial court with the
default clause is retained.
29.In the result, the appeal is dismissed. The period, if any, already
undergone shall be given set off. It is reported that the accused are on bail.
The Sessions Judge concerned is directed to take steps to secure the presence of
the accused and commit them to prison to undergo the remaining period of
sentence.
sms
To:
The Inspector of Police,
Maniachi Police Station,
Tuticorin District.