BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/02/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE G.RAJASURIA CRIMINAL APPEAL NO.379 OF 2004 1.Manoharan 2.Malar 3.Bagavathi .. Appellants Vs. State rep. by The Inspector of Police, Thiruvaiyaru Police Station, Thanjavur District Crime No.25 of 2002 .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the judgment of conviction and sentence passed by the learned Additional District Sessions Judge, Fast Track Court-1, Thanjavur made in S.C.No.115 of 2002 dated 29.12.2003. !For Appellants : Mr.A.P.Muthupandian ^For Respondent : Mr.A.Balaguru, APP :JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
The appellants, three in number, have brought forth this criminal appeal,
challenging the judgment of the learned Additional District Sessions Judge, Fast
Track Court-1, Thanjavur made in S.C.No.115 of 2002, whereby the first accused
stood charged and tried under Sections 449, 302 and 307 IPC, while the second
and third accused stood charged and tried under Sections 302 r/w S.109 and 307
r/w 114 IPC and A-1 was found guilty under Sections 449, 302 and 324 IPC and he
was sentenced to undergo 5 years RI under Section 449 IPC, 3 years RI under
Section 324 IPC and life imprisonment for the offence under Section 302 IPC and
the second and third accused were found guilty under Section 302 r/w S.109 IPC
and they were sentenced to undergo life imprisonment and they were acquitted of
the charge under Section 307 r/w S.114 IPC.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
a)P.W.1 is the wife of the deceased Paulraj. They were living in
Olaithevarayan Pettai. ON 19.01.2002, P.W.1 went over to the house of one
Renuka, wife of Muruganandam, for getting back her radio. When she asked about
the radio, she was attacked by the said Renuka and Muruganandam. In this
regard, P.W.1 went to Thiruvaiyaru Police station and gave a complaint. Then,
P.W.1 went to his sister’s house at Mayiladuthurai and she returned from there
to her village on 29.01.2002 and her husband was also available at that time in
the house.
b)At about 8.30 p.m. on the date of occurrence, namely on 29.01.2002, A-1
to A-3 came over there and criminally trespassed into the house and dragged
Paulraj outside of the house. A-1 stabbed the said Paulraj with knife on his
chest and the offence was abetted by A-2 and A-3. On hearing the distressing
cry, the accused fled away from the place of occurrence.
c)P.W.1 went to Thiruvaiyaru Police Station and gave the complaint,
Ex.P.1, in this regard. On the strength of Ex.P.1, P.W.17, the Sub Inspector of
Police, registered a case at about 10.00 p.m. in Crime No.25 of 2002 under
Sections 450, 341, 109, 307 and 302 IPC. Express FIR, Ex.P.15, along with Ex.P.1
complaint was despatched to the Court.
d)P.W.21, the Inspector of Police took up the investigation on receipt of
the copy of the FIR. He proceeded to the scene of occurrence and made an
inspection in the presence of the witnesses and prepared Ex.P.2, the observation
mahazar and Ex.P.19, the rough sketch. Following the same, he conducted inquest
on the dead body of the deceased in the presence of the witnesses and
panchayatdars and prepared Ex.P.20, the inquest report. The dead body of the
deceased was sent to Thanjavur Medical College Hospital for the purpose of
autopsy.
e)P.W.20, the Doctor attached to Thanjavur Medical College Hospital, has
conducted autopsy on the dead body of the deceased and found the injuries. She
has issued Ex.P.18, the post-mortem certificate, wherein she has opined that the
deceased would appear to have died of shock and haemorrhage due to the injuries
sustained.
f)Pending investigation, the Investigating Officer has arrested A-1 on
1.2.2002. A-1 made a confessional statement in the presence of the witnesses and
the admissible part of which was marked as Ex.P.7. Pursuant to the confessional
statement, he produced M.O.1, knife, which was recovered in the presence of the
witnesses under a cover of mahazar. A-2 and A-3 were also arrested. All the
accused were sent for judicial remand. In respect of the injuries sustained by
A-1, he was medically examined by P.W.19, the Doctor and he has issued Ex.P.17,
Accident Register. All the M.Os recovered from the place of occurrence, from
the dead body of the deceased and also the M.Os recovered from the accused, were
all subjected to chemical analysis by the Forensic Department, on requisition
made by the Investigation Officer through the concerned court. Ex.P.11 and
Ex.P.12, the Chemical Analyst’s reports and Ex.P.13, the Serologist’s report
were received. On completion of the investigation, final report was filed by
the Investigating Officer.
3.The case was committed to the court of sessions and necessary charges
were framed. In order to substantiate the charges, the prosecution has examined
21 witnesses and relied on 20 exhibits and 8 M.Os. On completion of the evidence
on the side of the prosecution, the accused were questioned under Section 313
Cr.P.C as to the incriminating circumstances found in the evidence of
prosecution witnesses, which they flatly denied as false. No defence witness was
examined. After hearing the arguments advanced on either side, the trial court
found A-1 guilty under Sections 449, 302 and 324 IPC, while A-2 and A-3 were
found guilty under Section 302 r/w S.109 IPC and A-2 and A-3 were acquitted of
the charge under Section 307 r/w S.114 IPC and all the accused were sentenced to
undergo imprisonment as referred to above. Hence, this criminal appeal has been
brought forth.
4.Advancing his arguments on behalf of the appellants, the learned counsel
would submit that in the instant case, the prosecution rested its case on the
evidence of P.Ws.1 to 3; that insofar as P.W.2 was concerned, he has turned
hostile and hence, his evidence was not available for the prosecution; that
insofar as P.W.3 was concerned, her husband was examined as P.W.6; that
according to him, at the time of occurrence, his wife was serving him food and
hence, P.W.3 could not have seen the occurrence at all and hence, the evidence
of P.W.3 was to be eschewed; and that insofar as P.W.1 was concerned, from the
evidence of P.W.2 at the time of cross examination, though he turned hostile, it
would be quite clear that she went to her sister’s house at Mayiladuthurai and
returned subsequently and hence, she could not have seen the occurrence at all.
5.Added further the learned counsel that in the instant case, there is no
evidence insofar as A-2 and A-3 were concerned; that both of them, even as per
the case of prosecution, did not make entry or trespass into the house of the
deceased and hence, it was A-1, who dragged the deceased outside and thus, A-2
and A-3 were falsely implicated in the case; that insofar as A-1 was concerned,
the medical evidence was not in support of the prosecution; that the
eyewitnesses did not properly account for the injuries sustained by the
deceased; that according to them, the first accused stabbed the deceased only
once, but as per the post-mortem Doctor, she has noted six injuries on the dead
body and thus, they did not tally and hence, it could be well stated that the
eyewitnesses could not have seen the occurrence at all and their evidence has
got to be rejected.
6.Added further the learned counsel that the evidence as to the alleged
confessional statement of A-1 and the recovery of M.O.1 knife were all
introduced in order to strengthen the case of prosecution, if possible, but in
vain and that the evidence in that regard is worthless and should not be
believed by the Court and hence, the prosecution did not prove the case beyond
reasonable doubt, but the lower court has, erroneously, taken a view that the
prosecution has proved the case and hence, it has got to be set aside.
7.Heard the learned Additional Public Prosecutor on the above contentions.
8.The Court has paid its anxious consideration on the submissions made.
9.The case of the prosecution was that one Paulraj, the husband of P.W.1,
was done to death at about 8.30 p.m. on the date of occurrence in front of his
house. It is not the fact in controversy that Paulraj died out of homicidal
violence. The said fact was never questioned by the accused at any point of
time. In order to substantiate the said fact, the prosecution has examined
P.W.20, the post-mortem Doctor and she has issued Ex.P.18, the post-mortem
certificate to that effect. Hence, it could be recorded so.
10.In order to prove the act of the accused, the prosecution examined
three eyewitnesses, namely P.Ws.1 to 3. P.W.2 has turned hostile and thus, his
evidence was not available for the prosecution, as rightly contended by the
learned counsel for the appellants. Insofar as P.W.3 is concerned, the evidence
of her husband, P.W.6 would clearly indicate that P.W.3 could not have been
present at the time of occurrence and thus, P.W.3’s evidence was also not
available for the prosecution. But, the prosecution, to its benefit, had the
evidence of P.W.1. P.W.1 has narrated the entire case. It is needless to say,
in a case like this, the Court has to look into the evidence available and apart
from that, if the evidence available before the court has inspired the
confidence of the Court, the court can rest the conviction. In the instant case,
P.W.1 went over to the house of Renuka for getting back the radio and she was
attacked and that she preferred a complaint. That was the main reason for A-1 to
go to the house of the deceased and attacked him. P.W.1 has clearly narrated
the entire incident and thus, the Court is of the considered opinion that her
evidence would be suffice for the prosecution pointing to the guilt of A-1. In
the instant case, the prosecution had to its benefit the medical opinion, which
has corroborated the prosecution case. Apart from that, the evidence as to the
recovery of M.O.1, knife pursuant to the confessional statement given by A-1,
remains acceptable. Hence, the prosecution was able to prove the act of A-1.
11.At the time of occurrence, according to the witnesses, it was A-1, who
entered into the house and dragged the deceased outside and stabbed him and
caused his death. This was spoken to by P.W.1 and it was also corroborated by
the other evidence, as referred to above. Apart from that, it is to be pointed
out that A-1 went to the house of the deceased at about 8.30 p.m. and entered
into the house and dragged him outside when he was unarmed and stabbed him to
death and hence, it has got to be inferred that A-1 has got an intention to
cause his death and thus, the act of A-1 would attract the penal provisions of
murder.
12.Insofar as A-3 was concerned, it is brought to the notice of the Court
that pending appeal, she died and hence, the appeal becomes abated. Insofar as
A-2 was concerned, the Court has to record an order of acquittal. In the instant
case, there is nothing to infer that A-2 and A-3 abetted the offence. It is
true, A-2 and A-3 proceeded with A-1 to question the conduct of P.W.1 in giving
police report against Renuka, but at the same time, it cannot be inferred that
they had knowledge of any intention of A-1 to stab or kill the deceased or the
criminal act in the house of P.Ws. Apart from that, in the instant case, there
is no evidence to show that A-2 and A-3 made any entry into the house of P.W.1.
Even as per the evidence, it was A-1, who made criminal trespass into the house
and dragged the deceased Paulraj outside and stabbed him. Under these
circumstances, insofar as A-2 and A-3 were concerned, this court is unable to
find sufficiency of evidence to hold that they are also guilty of the offence,
as stated above. Hence, A-2 and A-3 are entitled for outright acquittal.
Insofar as A-1 was concerned, his act as to the criminal trespass and committing
murder has been proved. Insofar as the evidence as to the attack on P.W.2 was
concerned, though P.W.2 has turned hostile, in the chief examination, he has
categorically stated that after the attack made on him by A-1, he became
unconscious and fell down. Hence, the conviction and sentence imposed on A-1
have got to be sustained.
13.Accordingly, the conviction and sentence imposed on A-1 are sustained.
Insofar as A-2 is concerned, the conviction and sentence imposed on her are set
aside and A-2 is acquitted of the charges levelled against her. The bail bond,
if any executed by A-2, shall stand terminated. The criminal appeal becomes
abated in respect of A-3.
14.In the result, the appeal is dismissed in respect of A-1 and the appeal
is allowed in respect of A-2. The criminal appeal becomes abated in respect of
A-3.
To
1.The Additional District Sessions Judge,
Fast Track Court No.1,
Thanjavur.
2.The Inspector of Police,
Thiruvaiyaru Police Station,
Thanjavur District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.