BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/07/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU CRL.A.No.1185 of 2002 1.Kanniah 2.Sonai (Amended as per the order of the Court dated 20.2.2004 in Crl.M.P.No.1906/2004) ... Appellants vs State by: The Inspector of Police Ilayankudi Police Station Sivagangai ... Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Sivagangai, made in S.C.No.89 of 2001 and dated 27.3.2002. !For Appellant ... Mr.S.Ramasamy ^For Respondent ... Mr.N.Senthur Pandian, A.P.P. :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)
Challenging a judgment of the Principal Sessions Division, Sivagangai,
made in S.C.No.89 of 2001, the appellants who were arrayed as A-1 and A-2
respectively before the trial Court in a case of murder, wherein A-1 and A-2
stood charged under Sections 451 and 302 read with 34 of I.P.C., while A-1 under
Sec.307 of I.P.C., and A-1 and A-2 were found guilty under Sec.302 read with 34
of I.P.C. and awarded life imprisonment, the appellants have brought forth this
appeal. So far as the other charges are concerned, the trial Court recorded a
finding of acquittal.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
(a) P.W.1 is a native of Vani Colony within the Ilayankudi Police Limits.
The deceased Alagar was her father. P.W.4 is the daughter of P.W.1. The
husband of P.W.1 is the brother of A-1. A-2 is the father of A-1. The husband
of P.W.1 had four sisters by names Pushpavalli, Panchavarnam, Kanniammal and
Vellimuthu and one brother by name Kanniah. Pushpavalli was given in marriage
to one Govindan, while Panchavarnam was given in marriage to one Malaisamy.
Vellimuthu was also given in marriage to one Muniandi. They were all living
separately. The mother-in-law of P.W.1 used to raise quarrel on the ground that
her daughters were not given sufficient seervarisai at the time of their
marriages. Pursuant to the quarrel, P.W.1 gave a police complaint, and her
mother-in-law also gave a police complaint. Both parties were called by the
Police Officials, and they were advised to live peacefully. While the matter
stood thus, one of the sisters-in-law of P.W.1 namely Vellimuthu, died. There
were negotiations going on to give the other sister-in-law namely Kanniammal, to
Muniandi, the husband of Vellimuthu. Even during that time, they did not even
inform about the same to P.W.1 or her husband. They were living away from the
joint family. P.W.1 who was employed away, just 20 days prior to the marriage,
came over there, and prior to the marriage, the first accused challenged the
husband of P.W.1 stating “You wait till the marriage, I will see you”. On the
date of occurrence i.e., 5.6.2000, the husband of P.W.1 went for wood cutting.
P.W.1 and her daughter P.W.4, were in the house. At the time of occurrence, A-1
armed with an iron rod and A-2 armed with a stick came over there and enquired
about the husband of P.W.1. On seeing P.W.1, they chased her. When she raised
alarm, her father Alagar, came to the rescue. At that time, A-1 uttered “We
have been searching for you. You die with this”. So saying, A-1 attacked him on
his head with the iron rod, and A-2 also attacked him with the stick on
different parts of the body. When P.W.1 interfered, she was also attacked, and
she sustained a fracture on the clavicle bone. Thereafter, A-1 and A-2 left the
place of occurrence. P.W.4 who was standing nearby, saw the entire occurrence.
Then, P.W.1 proceeded to Ilayankudi Police Station, where P.W.10, the Sub
Inspector of Police, was present, and he registered a case on the strength of a
complaint, Ex.P1, given by P.W.1, in Crime No.375 of 2000 under Sections 302,
324 and 307 of I.P.C. The printed First Information Report, Ex.P16, was
despatched to the Court.
(b) P.W.1 was sent to the Government Hospital for treatment. P.W.2, the
Medical Officer, who was present on 5.6.2000, examined P.W.1 medically and has
also given a wound certificate, marked as Ex.P2, with regard to the injuries
sustained by her. The X-ray was taken by P.W.3, and the X-ray report is Ex.P3.
(c) On receipt of the copy of the F.I.R., P.W.11, the Inspector of Police,
took up investigation, proceeded to the scene of occurrence, made an inspection
and prepared Ex.P4, the observation mahazar, and Ex.P17, the rough sketch. He
recovered some material objects from the place of occurrence. Then, he
conducted inquest on the dead body of Alagar in the presence of witnesses and
panchayatdars and prepared Ex.P18, the inquest report. The dead body was sent
to the Government Hospital along with a requisition, Ex.P7, for conduct of
autopsy.
(d) On receipt of the said requisition, P.W.7, the Senior Assistant
Surgeon, attached to the Government Hospital, Ilayankudi, conducted autopsy on
the dead body of Alagar and found the following injuries:
“(1)A lacerated injury on the left side of the parieto temporal area about 7 cms
x 2 cm x bone depth. Multiple clots and bleeding of dark coloured fluid blood
seen on the wound. On exploration dark coloured blood clots seen in between the
scalp and the skull bones. On further exploration left side of parietal and
temporal bones are fractured. About 300 ml of dark coloured fluid blood gets
collected in the subarachnoid space, intracerebral cavities, and left lateral
ventricle.”
The Doctor has given Ex.P8, the postmortem certificate, with his opinion that
the deceased would appear to have died of shock and haemorrhage due to fatal
head injury, 12 to 24 hours prior to autopsy.
(e) Both the accused were arrested on 7.6.2000 by the Investigating
Officer at 10.00 A.M. Since injuries were found on them, they were sent for
medical examination. P.W.7, the Medical Officer, examined them and gave Exs.P9
and P10, the wound certificates, respectively. All the material objects
recovered from the place of occurrence including the weapon of crime, and also
from the dead body were subjected to chemical analysis. The Chemical Analyst’s
report, Ex.P14, and the Serologist’s report, Ex.P15, were received by the
committal Court. On completion of investigation, P.W.12, who took up further
investigation, filed the final report.
3.The case was committed to Court of Session, and necessary charges were
framed. In order to establish the charges, the prosecution examined 12
witnesses and relied on 18 exhibits and 7 material objects. On completion of
evidence on the side of the prosecution, both the accused were questioned under
Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence
of the prosecution witnesses. They denied them as false. No defence witness
was examined. Only one document namely the observation mahazar, in Crime
No.376/2000 of Ilayankudi Police Station was marked as Ex.D1. The trial Court
after hearing the rival submissions and scrutiny of the materials, found both
the accused guilty under Sec.302 read with 34 of I.P.C. and awarded life
imprisonment. In respect of all other charges, they were acquitted. Hence,
this appeal at the instance of the appellants before this Court.
4.Arguing for the appellants, the learned Counsel in his sincere attempt
of assailing the judgment of the lower Court, would submit that in the instant
case, there were only two eyewitnesses, who were P.Ws.1 and 4; that P.W.1 is the
daughter of the deceased; that P.W.4 is the grand-daughter of the deceased, and
thus, they are interested witnesses; that in the instant case, they could not
have seen the occurrence at all; that apart from that, as regards the motive for
the entire occurrence, even as per the prosecution case, the accused had motive
against the husband of P.W.1; that there was no motive available for the accused
to act against either the deceased or P.W.1; that it is true that a case came to
be registered by the respondent police on the arrest of the accused on 7.6.2000,
in Crime No.376 of 2000; that the observation mahazar prepared by the same
Investigating Officer, is marked as Ex.D1; that a perusal of Ex.D1 would clearly
reveal that the place of occurrence is different from one as found in the
observation mahazar prepared in this case; that the occurrence in Crime
No.376/2000 is exactly the part and parcel of the same transaction; and that
even without any investigation in Crime No.376/2000, the Investigating Officer
has referred the case as mistake of fact the very day.
5.The learned Counsel would further submit that P.W.1, after the
registration of the case, was sent for medical examination; that she was
examined by P.W.2, to whom she has clearly stated that she was attacked by 8
known persons; but, in the F.I.R., she has spoken about only two named persons,
and thus, the evidence of P.W.1 is highly unbelievable and improbable also; that
in the instant case, number of injuries were sustained by A-1 and A-2; that both
were also examined by the Medical Person on 7.6.2000; that the documents are
also marked as Exs.P9 and P10 respectively; that a perusal of the documents
would clearly indicate that the injuries were sustained by them in the
occurrence that took place on 5.6.2000; but, neither in the F.I.R. nor in the
evidence of P.Ws.1 and 4, who according to the prosecution, were the
eyewitnesses, these injuries are not explained; that in the absence of any
explanation tendered by the prosecution, the lower Court should have rejected
the case of the prosecution; that apart from that, in the instant case, the
Investigating Officer has also not investigated the case in Crime No.376/2000;
that even assuming the acts of the accused that they attacked the deceased are
proved, so far as A-1 was concerned, only one injury what is stated in the
postmortem certificate, is found to be fatal, and that was allegedly inflicted
by A-1, and the other injuries alleged to have been inflicted by A-2, were only
trivial in nature; that when they went over to the spot, they did not have any
intention to attack the deceased, against whom they had no motive at all; that
apart from that, the injuries sustained by the accused, would also clearly
indicate that there was an occurrence in which they have been attacking each
other, and under the circumstances, the acts of the accused would not fall
within the ambit of murder; that they have got to be individually dealt with;
that so far as A-2 is concerned, the injuries allegedly caused by him, were
simple in nature; that as regards A-1, he had not committed the act with
intention or premeditation, and hence, it has got to be considered by the Court.
6.The Court heard the learned Additional Public Prosecutor on the above
contentions.
7.According to the prosecution, the occurrence has taken place on 5.6.2000
near the house of the deceased Alagar. The fact that Alagar died out of
homicidal violence is proved by sufficient evidence put forth by the
prosecution. Following the inquest, the dead body was subject to postmortem by
P.W.7, who has also spoken to the said fact in Court. The postmortem
certificate has also been marked, and apart from that, the fact that Alagar died
out of homicidal violence was not questioned by the appellants/accused either
before the trial Court or before this Court. Hence, it could be safely recorded
so.
8.The next question that would arise for consideration is whether the
commission of the offence by the accused is proved by the prosecution beyond anu
reasonable doubt. In the instant case, the prosecution had projected its case
through two witnesses, P.Ws.1 and 4. P.Ws.1 and 4 are the daughter and grand-
daughter of the deceased respectively. When their evidence is closely
scrutinised, it inspired the confidence of the Court. It has to be pointed out
that P.W.1 has narrated as to how the occurrence has taken place and how they
happened to live away from the joint family. P.W.1 has also spoken to the fact
that A-1 armed with an iron rod and A-2 armed with a stick, came to the spot in
search of her husband and when they did not find her husband, they chased her to
attack her, and at that time, her father Alagar, intervened, and he was attacked
by both of them, and he sustained injuries and succumbed to the same. This
evidence of P.W.1 is fully corroborated by the evidence of P.W.4. Despite full
cross-examination, their evidence in chief-examination remained intact. Apart
from that, their ocular testimony is fully supported by the medical evidence
adduced through the postmortem Doctor, P.W.7. In the instant case, the
prosecution to its advantage had the evidence of P.W.1, who is also injured in
the case. She was examined by P.W.2, the Doctor, who has also given a
certificate as to the injuries sustained by her.
9.Now, it is pertinent to point out that the Police Station is situated
within 6 kilometres from the place of occurrence, and the F.I.R. has come into
existence within an hour, wherein she has clearly mentioned both the names of
the accused and their acts also. Therefore, this would also indicate the truth
of the prosecution case. The contention put forth by the learned Counsel for
the appellants that when P.W.1 was examined by the Doctor, P.W.2, she had stated
that she was attacked by 8 known persons, which is totally contra to the F.I.R.,
and thus, her evidence has got to be disbelieved has got to be stated for the
purpose of rejection for the simple reason that the earliest document in the
case is the F.I.R. and not the wound certificate wherein the statement of P.W.1
is recorded by the Doctor. Now, it remains to be stated that when the Medical
Officer was examined, he would say that originally she stated that she was
assaulted by four persons, which was recorded, and subsequently, she mentioned
that 8 persons have assaulted her, and thus, there was an alteration. It has to
be pointed out that in the earliest document, FIR, she has given the names of
the accused and the acts committed by them. In such circumstances, there is no
need for giving any importance or evidentiary value to the wound certificate
issued to P.W.1, wherein such statement has been made. Hence, the Court need
not give any importance or credence to the statement in the wound certificate.
Thus, the ocular testimony of P.W.1 stood fully corroborated by the evidence of
P.W.4 and inspired the confidence of the Court. Under the circumstances, this
Court is of the view that their evidence has got to be accepted.
10.The next point raised by the learned Counsel for the appellants is that
the appellants/accused also sustained injuries. It is pertinent to point out
that all these injuries were found to be simple, and apart from that, though it
was not explained by the prosecution, attempts were made at the time of cross-
examination how bite marks were found on the body of the accused, and it was
also explained. It is true that In the instant case, a case came to be
registered by the respondent police in Crime No.376 of 2000; but, it was
registered after the arrest of the accused on 7.6.2000. The occurrence in the
instant case, has taken place on 5.6.2000, and thus, it would be quite clear
that the accused after the occurrence was over, fled away from the place of
occurrence and did not come to the Police Station to give a complaint; but,
after they were arrested on 7.6.2000, A-1 came forward to give a complaint, and
it has also been registered. Taking into consideration that a case under
Sec.302 of I.P.C. and for attempt to murder has also been registered against
both the accused named in the F.I.R., and these injuries found on the accused,
were superficial and simple, and after making the investigation that day, the
case was referred to as mistake of fact, this Court is able to notice no defect
in the procedure followed. Apart from that, the injuries were found to be not
serious in nature, and the explanation was also obtained at the time of the
cross-examination. Now, at this juncture, this Court is unable to attach much
importance to the injuries sustained by the accused, and on that ground, the
prosecution case cannot found to be shaky.
11.The Apex Court has held in AMAR MALLA VS. STATE OF TRIPURA (AIR 2002
SC 3052) that it is well settled that merely because the prosecution has failed
to explain injuries on the accused persons, ipso facto, the same cannot be taken
to be a ground for throwing out the prosecution case, especially when the same
has been supported by eye-witnesses, including injured ones as well, and their
evidence is corroborated by medical evidence as well as objective finding of the
Investigating Officer.
12.It has also been held by the Apex Court in DHANANJAY SHANKER SHETTY VS.
STATE OF MAHARASHTRA (AIR 2002 SC 2787) that the non-explanation of injuries
assumes significance when there are material circumstances which make the
prosecution case doubtful. In the instant case, there are no material
circumstances available to doubt the case put forth by the prosecution. Apart
from that, the injuries sustained by the accused, have been explained by the
witness.
13.In a decision reported in 2003 SCC (CR) 1144 (NARENDRA NATH KHAWARE VS.
PARASNATH KHAWARE), the Apex Court has held that the complainant was an injured
eye-witness, and therefore, there could not be any doubt about his presence on
the spot.
14.In view of the above, there is sufficient evidence to hold that by
their act, the appellants/accused have caused the death of the deceased Alagar,
at the time of incident.
15.Coming to the question of the nature of the act of the accused, the
Court is able to see some force in the contention put forth by the appellants’
side. Even as per the prosecution case, A-1 and A-2 went in search of the
husband of P.W.1, and it was not their intention to attack either P.W.1 or the
father of P.W.1. Thus, they had no intention to share. Under the
circumstances, the question of invoking Sec.34 of I.P.C. would not arise. From
the medical evidence, it would be quite clear that there is only one fatal
injury, and the same was also inflicted by A-1, and all other injuries
sustained were simple injuries, which were inflicted by A-2. So long as there
is no common intention, which could be seen or drawn, they have got to be dealt
with for the acts committed by them. In the instant case, the accused have also
sustained injuries. The nature of injuries found in the wound certificates,
Ex.P9 in respect of A-1, and Ex.P10 in respect of A-2, would clearly
indicate that some quarrel has preceded, and there would have been scuffling, in
which these injuries could have been sustained by the accused. But, the
evidence is clearly pointing that it was the act of A-1 which caused the death
of Alagar; but, it is not intentionally or deliberately done. But, at the same
time, A-1 should have got the knowledge that by acting so, the injuries are
likely to cause death. Under the circumstances, the act of A-1 will not fall
within the ambit of murder, but would attract the penal provisions of Sec.304
(Part II) of I.P.C. So far as the act of A-2 causing simple injuries, is
concerned, it would attract the penal provisions of Sec.324 of I.P.C. As
regards the punishment, this Court is of the view that 5 years Rigorous
Imprisonment to A-1 and 2 years Rigorous Imprisonment to A-2 would meet the ends
of justice.
16.Therefore, the conviction and sentence imposed on the appellants by the
trial Court under Sec.302 read with 34 of I.P.C. are set aside, and instead A-1
is convicted under Sec.304 (Part II) of I.P.C., for which he is directed to
undergo five years Rigorous Imprisonment. A-2 is convicted under Sec.324 of
I.P.C. and is sentenced to 2 years Rigorous Imprisonment. The sentence already
undergone by them, shall be given set off. It is reported that A-2 is on bail.
Hence, the Sessions Judge shall take steps to commit A-1 to prison to undergo
the remaining period of sentence if any.
17.In the result, with the above modification in conviction and sentence,
this criminal appeal is dismissed.
To:
1)The Principal Sessions Judge
Sivagangai
2)The Inspector of Police
Ilayankudi Police Station
Sivagangai
3)The Public Prosecutor,
Madurai Bench of Madras High Court