BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17/04/2008
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Crl.A.No.713 of 2001
and
Crl.A.No.738 of 2001
1.Durai alias Sethu Pandian
2.Krishnan alias Chinnadurai .. Appellants/A2 and A3 in
C.A.No.713/2001
Velusamy .. Appellants/A1
in C.A.No.738/2001
Vs.
State rep.by
Inspector of Police,
Uthumalai Police Station,
Tirunelveli District.
(Crime No.350 of 1998) .. Respondent in
the above appeals.
PRAYER
These criminal appeals have been preferred under Section 374 Cr.P.C
against the judgment dated 12.07.2001 made in S.C.No.279 of 2000 by the Second
Additional Sessions Court, Tirunelveli.
!For Appellants in C.A.No.713/2001 ... Mr.S.Ramasamy For Appellant in C.A.No.738/2001 ... Mr.K.P.S.Palanivel Rajan ^For Respondent ... Mr.V.Kasinathan, Addl.Public Prosecutor :COMMON JUDGMENT (The judgment of the court was made by M.CHOCKALINGAM, J)
This judgment shall govern these two appeals viz., C.A.Nos.713 and 738 of
2001. These appeals challenge the judgment of the Second Additional Sessions
Division, Tirunelveli dated 12.7.2001 made in S.C.No.279 of 2000 whereby A.2,
A.3, who are the appellants in the first appeal, stood charged, tried under
Sections 302 r/w 34 IPC whereas A.1, who was the appellant in the later appeal
stood charged and tried under Section 302 I.P.C. and they were found guilty as
per their charges and each of them were awarded imprisonment for life and fine
of Rs.3,000/- in default to undergo two years rigorous imprisonment.
2. Th short facts that are necessary for the disposal of these appeals can
be stated thus:-
(i) PW.1 is the elder brother and PW.9 is the wife of the deceased
respectively. PW.8 is the son-in-law of the deceased. PW.3 was the Ward
Councillor of the Manoor Panchayat. Six months prior to date of occurrence, the
first accused purchased a goat from the deceased and the goat died subsequently
due to disease. There was a demand made on the deceased to give him another
goat but it was evaded. The first accused was aggrieved over the same. On
2.8.1998, at about 6.00 p.m., the deceased was returning from Reddiarpatti after
visiting a weekly market in respect of purchasing goats. At that time, A.1 to
A.3 waylaid him. A.1 attacked the deceased with belt, while A.2 and A.3 fisted
him. When the deceased fell down, A.1 stamped him with the chappals worn by
him with force. Thus, they caused injuries to the deceased. Thereafter, they
left the place of the occurrence. The deceased came home and when questioned
about injuries found on him, he informed PW.8, PW.9 and PW.1 about the incident.
However, he refused to go to hospital for taking treatment.
(ii) On 3.8.1988 at about 7.00 a.m., the deceased was suffered from
stomach ache. He was taken to the Primary Health Centre, Manoor by a car
through PW.10. On medically examining the deceased, PW.2 found him died and
hence declared that the deceased died.
(iii) Thereafter, PW.1 along with PW.3 proceeded to the respondent Police
Station where PW.14, Head Constable was on duty on 3.8.1998. He gave a
Complaint Ex.P.1 at about 11.00 a.m.,. On the strength of the Complaint Ex.P.1,
PW.14 registered a case in Crime No.350 of 1998 under Section 302 IPC.,. F.I.R.
Ex.P.8 along with Complaint Ex.P.1 was sent to the Court and to the higher
officials.
(iv) On receipt of the copy of the F.I.R., PW.16 the Inspector of Police
of the Circle, took up the investigation, proceeded to the Tirunelveli Medical
College Hospital where the dead body of the deceased was kept in the mortuary.
He conducted inquest on the dead body of the deceased in the presence of
witnesses and panchayatdars from 12.30 p.m. to 3.30 p.m. on the date of
occurrence and prepared an Inquest Report Ex.P.11. He recorded the statements
from PW.4 and PW.1. Thereafter, at about 5.00 p.m., on the same day, he
proceeded to the place of occurrence, made an inspection in the presence of
witnesses and prepared an Observation Mahazar Ex.P.12 and also a rough sketch
Ex.P.13.
(v) Following the inquest, the dead body of the deceased was subjected to
post-mortem. On receipt of a requisition for conducting post-mortem, PW.11
Doctor, attached to Tirunelveli Government Medical College Hospital, conducted
autopsy on the body of the deceased and has given Post-Mortem Certificate under
Ex.P.5 and Final Opinion Report under Ex.P.6. In Ex.P.6, he has opined that the
deceased would appear to have died of laceration of liver caused by blunt injury
to abdomen.
(vi) In the mean time, A.1 to A.3 surrendered before the Court. On
12.8.1998, the Investigating Officer took up the accused on police custody by
filing an application before the Court in that regard. During the course of
investigation, A.1 volunteered to give confessional statement and the same was
recorded in the presence of witnesses and the admissible part of that
confessional statement was marked as Ex.P.9. At about 7.00 p.m. on the same
day, A.2 also volunteered to give a confessional statement and the same was
recorded in the presence of witnesses. At about 8.00 a.m., on the same day, A.3
also volunteered to give a confessional statement and the same was recorded in
the presence of witnesses. Pursuant to his confession, A.1 produced a Belt
MO.4, which was seized under a cover of mahazar Ex.P.10. All the accused were
sent for judicial custody.
(vii) On completion of the investigation, the investigating officer filed
a final report before the Court and the case was committed to the Court of
Sessions. Necessary charges were framed.
3. In order to substantiate the charges, at the time of trial, the
prosecution examined 16 witnesses and relied on 13 exhibits and 4 MOs. On
completion of the evidence on the side of the prosecution, the
accused/appellants were questioned under Section 313 Cr.P.C. procedurally as to
the incriminating circumstances found in the evidence of prosecution witnesses.
They denied them as false. No defence witness was examined. After hearing the
arguments of the counsel and looking into the materials available meticulously,
the lower court, took the view that the prosecution has proved its case beyond
reasonable doubts and the accused were found guilty as per the charges and
awarded life imprisonment.
4. The learned counsel appearing for the appellants in C.A.(MD)No.713 of
2001 would submit as follows:-
(i) In the instant case, the occurrence had taken place at about 6.00 p.m.
on 2.8.1998. PW.4 was the only eye-witness, according to the prosecution, but
he has turned hostile.
(ii) PW.1 is the elder brother, PW.8 is the son-in-law and PW.9 is the
wife of the deceased. These witnesses claimed that after his returning from
Reddiarpatti, the deceased informed them that it was the first accused, who
attacked him with a belt and also stamped him; A.2 and A.3 fisted him with
hands. This piece of evidence would go to show that A.2 and A.3 were unarmed
and they had not caused any injury and no corresponding injury was found
mentioned in the Post-Mortem Certificate Ex.P.5.
(iii) No motive was attributed to A.2 and A.3 for committing the crime and
there is nothing to connect the accused with the crime.
(iv) There is no direct evidence. Hence, the prosecution relied on
circumstances. However, necessary circumstances were neither placed nor proved
before the Court.
(v) The prosecution has claimed that the accused have given confessional
statements and the same were recorded in the presence of witnesses but pursuant
to the confession, no weapon was available for the prosecution. Therefore, the
appellants/A.2 and A.3 are entitled for acquittal in the hands of this Court.
5. Insofar as the appellant/A.1 in Criminal Appeal (MD) No.738 of 2001,
the learned counsel appearing on behalf of him would submit as follows:
(i) According to the prosecution, PW.1 gave a complaint Ex.P.1 to the
respondent police and on the strength of which, the case came to be registered
in Crime No.350 of 1998. A perusal of Ex.P.1 would clearly indicate that PW.1
had not whispered the name of A.1. But, at the time of evidence, he has
developed as if it was A.1 who attacked the deceased. Apart from that PW.8 and
PW.9 when enquired, they even went to the extent of stating that when the
occurrence was informed by the deceased either to PW.1 or PW.8 or PW.9, he did
not inform the identity of A.1.
(ii) The prosecution has thoroughly failed in its case since PW.4, the
only eye-witness has turned hostile. Even according to PW.1, PW.8 and PW.9, to
whom, the incident was informed by the deceased, clear identity of A.1 was not
informed to them.
(iii) Added further the learned counsel that insofar as the statements
recorded from these witnesses, there was inordinate delay in reaching the Court.
The statement from PW.8 was recorded on 4.8.1998 whereas it has reached the
Court only on 8.1.1999 i.e. after five months.
(iv) The medical opinion canvassed through the Post-Mortem Doctor PW.11
did not corroborate with the ocular testimony.
(v) Even assuming that the recovery of MO.4 belt, pursuant to the
confession by A.1, was to be true, that can not form the basis for conviction.
Hence, the judgment of the lower Court has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions.
6. The Court paid its utmost attention to the submissions and made a
thorough scrutiny on the entire materials available on record.
7. The prosecution was able to prove that following the incident that had
taken place at about 6.00 p.m., on 2.8.1998 at the place of occurrence as put-
forth by the prosecution, the deceased returned home. He was taken to the
hospital on the next morning where he was declared dead by the Doctor PW.2,
attached to the Primary Health Centre, Manoor. Following the inquest made by
PW.16 the Investigating Officer, the dead body was subjected to post-mortem by
PW.11 Doctor, who has given post mortem certificate Ex.P.5 and Final Opinion
Report Ex.P.6 wherein he has opined that the deceased would appear to have
died of laceration of liver caused by blunt injury to Abdomen. This part of
evidence, adduced through the Doctor PW.11 and the contents in Exs.P.5 and P.6,
were never challenged by the accused before the trial Court. Hence, the death
was caused to the deceased only by way of homicidal violence and it has got to
be recorded factually so.
8. It is the case of the prosecution as stated above, six months prior to
the date of occurrence, A.1 purchased a goat from the deceased which was
inflicted with diseases and following which, it died. There was a demand for
A.1 for another goat. It was being evaded by the deceased. Hence, at the time
of occurrence, A.1 attacked him. In that transaction A.2 and A.3 have also
joined A.1 and it was the common intention. Thus, all the three caused the
death.
9. The prosecution has marched only one witness as the eye-witness viz.,
PW.4 but he has turned hostile. Thus, the prosecution had no direct evidence to
offer. Hence, it rested its case only on the circumstances available. PW.1,
PW.8 and PW.9 were the persons to whom, the deceased had informed about the
incident that took place on the date of occurrence. It was PW.1 who gave the
report Ex.P.1 to the respondent Police and on the strength of which, the case
came to be registered by the respondent police. A perusal of Ex.P.1 would
reveal that PW.1 has mentioned the names of A.2 and A.3 but he has not mentioned
the name of A.1. PW.9 who is the wife of the deceased has categorically deposed
that when her husband came home, on seeing the injuries found on his body, she
enquired him and he narrated the names of all the three accused and the entire
incident. Thus, though no direct evidence was available, it was a declaration
made by the deceased to his wife PW.9. There is no legal impediment in
accepting that evidence.
10. Added circumstance against A.1 is the recovery of the weapon viz.,
belt MO.4 from A.1 following the confessional statement given by him. A witness
has been examined to speak about the arrest, confessional statement and recovery
of MO.4 belt.
11. Yet another circumstance against A.1 is the medical evidence
canvassed through the Doctor PW.11. According to him, laceration found on the
liver caused by blunt injury to abdomen led to the death of the deceased. Even
according to the confessional statement given by A.1, he attacked the deceased
with belt and when he fell down, he stamped him with chappals he had worn at
that time and thus, the corresponding injuries were caused by A.1. Now, the
contention put-forth by the learned counsel for the appellant/A.1 that the
Doctor PW.11 has opined even by falling on the ground, such injuries might be
caused, remains to be stated that once the prosecution has come up with the
specific case that the injuries were caused by A.1, stamping on the abdomen, the
other possibility need not be taken into consideration at all.
12. Insofar as A.2 and A.3, as rightly pointed out by the learned counsel,
they were unarmed but they have also fisted the deceased with hands.
13. At this juncture, it is inferable that the accused did not have any
common intention to cause the death of the deceased. But A.1 has got the
knowledge that causing such injury would likely to cause death. Therefore, the
act of the first accused would fall under Section 304 (Part-II) of the I.P.C.,
and awarding five years rigorous imprisonment would meet the ends of justice,
while the act of A.2 and A.3 would attract the provision of Section 323 of the
I.P.C. and awarding six months rigorous imprisonment would meet the ends of
justice. Therefore, the conviction and sentence imposed on the
accused/appellants by the judgment of the lower Court are set aside and,
instead, A.1 is convicted under Section 304 (Part-II) of the I.P.C and awarded
five years rigorous imprisonment whereas A.2 and A.3 are convicted under Section
323 IPC and awarded six months rigorous imprisonment. The sentence already
imposed by the appellants is ordered to be given set off. The fine amount
imposed on the appellants/accused by the lower Court is treated as one imposed
under the modified charges. It is reported that the accused/ appellants are on
bail. The Court concerned is directed to secure the presence of the accused and
commit them to prison to undergo the remaining period of sentence, if any. With
the above modification, the Criminal Appeal is dismissed.
asvm
To
1.The Second Additional
Sessions Court,
Tirunelveli.
2.Inspector of Police,
Uthumalai Police Station,
Tirunelveli District.
(Crime No.350 of 1998)
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.