BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/04/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL (MD)NO.1116 OF 2000 1.Kumar alias Kamatchi 2.Kannan, S/o.Arumugam 3.Kannan, S/o.Muthusamy .. Appellants Vs. State by Inspector of Police, Adiramapattinam Police Station, Thanjavur District (Crime No.803 of 1998) .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C. against the judgment of the learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur made in S.C.No.135 of 1999, dated 27.07.2000. !For Appellants : Mr.R.Shanmugasundaram, SC for Mr.V.Bharathidasan ^For Respondent : Mr.N.Senthurpandian, APP :JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal has arisen from the judgment of the learned II Additional
District and Sessions Judge (Protection of Civil Rights), Thanjavur made in
S.C.No.135 of 1999, whereby the A-1 to A-3 stood charged under Section 341 IPC
(3 counts), A-1 and A-2 stood charged under Section 302 IPC and A-3 stood
charged under Section 302 r/w S.34 IPC. On trial, they were found guilty under
Sections 341 and 302 r/w S.34 IPC and sentenced to undergo one month S.I. each
under Section 341 IPC and life imprisonment each under Section 302 r/w S.34 IPC.
2.Shorn of unnecessary details, the case of the prosecution can be stated
thus:
a)P.W.1 is the son and P.W.2 is the wife of Natesan Ambalam. All the three
accused belonged to the same place. On 14.10.1998, Natesan Ambalam brought
saplings through the ridge of the second accused, which resulted in a quarrel
between them and objections were raised by the second accused. The second
accused also pushed him down. Following the same, the deceased along with the
others went to the village. At about 6.00 p.m., they went to Thuvarankurichi to
invite laborers for carrying out plantation on the next day.
b)On 14.10.1998 at about 8.30 p.m., when P.Ws.1 and 2 and Natesan Ambalam
were actually returning home, they were restrained by all the three accused in
front of the house of one Sakthivel. The first accused attacked Natesan Ambalam
with iron rod on his head. The second accused attacked him with the wooden
portion of the spade and the third accused also kicked him on his chest. The
occurrence was witnessed not only by P.Ws.1 and 2, but also by P.Ws.3,4 and 5.
All the accused fled away from the place of occurrence.
c)P.Ws.1 and 2 informed the matter to one Rasu, the Panchayat President of
the Village. Since there was no bus facility to go to the respondent police
station, P.W.1 proceeded to the respondent police station in the next morning at
about 5.00 a.m. P.W.14, the Inspector of Police, who was on duty at that time,
received Ex.P.1, the complaint given by P.W.1. On the strength of the same, a
case came to be registered in Crime No.803 of 1998 under Sections 341, 323 and
302 IPC. Ex.P.11, the F.I.R. was despatched to the Court.
d)P.W.14 proceeded to the place of occurrence, made an inspection in the
presence of the witnesses and prepared Ex.P.2, the observation mahazar and
Ex.P.9, the rough sketch. He recovered bloodstained earth, sample earth, iron
pipe, spade and a stick and the other material objects from the place of
occurrence under a cover of mahazar. Then, he conducted inquest on the dead body
of the deceased in the presence of the witnesses and panchayatdars and prepared
Ex.P.10, the inquest report. Thereafter, the dead body was sent to the
Government Hospital, Adirampattinam for the purpose of post-mortem along with
the requisition.
e)P.W.9, the Doctor attached to the Government Hospital, Adirampattinam,
on receipt of the requisition, has conducted post-mortem on the dead body of the
deceased and has issued Ex.P.4, the post-mortem certificate, wherein he has
opined that the deceased would appear to have died of shock and haemorrhage due
to the injury to vital organ brain.
f)Pending investigation, the Investigator arrested A-1 and A-2 in the
presence of the witnesses. A-3 was also arrested subsequently. All the accused
were sent for judicial remand. All the material objects recovered from the place
of occurrence and from the dead body of the deceased were sent for chemical
analysis by the Forensic Science Department. Ex.P.8, the Chemical Analyst’s
report was received. On completion of the investigation, the Investigating
Officer filed the final report.
3.The case was committed to the Court of Sessions and necessary charges
were framed. In order to substantiate the charges, the prosecution examined 14
witnesses and relied on 11 exhibits and 9 M.Os. On completion of the evidence on
the side of the prosecution, all 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. The trial court, after hearing the arguments advanced and looking into
the materials available, took the view that the prosecution has proved the case
beyond reasonable doubt, found the appellants/accused guilty as stated above and
awarded punishments as referred to above, which is the subject matter of
challenge before this court.
4.Advancing arguments on behalf of the appellants, the learned Senior
Counsel would submit that in the instant case, the prosecution has miserably
failed to prove its case; that it is true, the prosecution has marched 5
witnesses, who are P.Ws.1 to 5, as eyewitnesses; that it would be quite clear
from their evidence that P.Ws.1 to 5 could not have seen the occurrence at all;
that P.Ws.4 and 5 have candidly admitted that after hearing the distressing cry,
they came out of the house with Chimney, but it did not burn further and they
could not see the assailants, but they saw that the assailants were actually
running and hence from their evidence, it would be quite clear that they could
not have seen the occurrence at all; that from the evidence of P.W.4, it would
be quite clear that P.Ws.1 and 2 and others have come to the spot only after 15
minutes from the time of the occurrence; and thus all would indicate that P.Ws.1
and 2 could not have seen the occurrence at all; that so far as P.W.3 is
concerned, he did not see the occurrence, but he actually chased the assailants
along with P.W.1 and thus, his evidence was not available for the prosecution.
5.Added further the learned Senior Counsel that the occurrence has taken
place at about 8.30 p.m.; that admittedly, no street light was burnt and it was
only the Chimney of P.Ws.4 and 5 available; that from the evidence available, it
would be quite clear that P.Ws.1 and 2 could not have seen the occurrence; that
P.W.3 did not see the occurrence; that P.Ws.4 and 5 also could not have seen the
occurrence at all; that all put together would indicate that the so-called
eyewitnesses were not in favour of the prosecution; that in the instant case,
there was an unexplained and inordinate delay in giving a report to the
respondent police station; that admittedly, the police station is situated at
Adiramapatinam, which is situated 10 Kms. from the place of occurrence, namely
Munumankollai; that admittedly Thuvarankurichi is situated within 1-1/2 Kms.,
where number of Taxis were available and number of shops were situated; that
about 15 to 20 persons have assembled at the place of occurrence; that though
the occurrence has taken place at about 8.30 p.m., the report was given by P.W.1
to the respondent police station at about 5.00 a.m. on 15.10.1998 and thus,
there was an unexplained delay for about 8-1/2 hours.
6.The learned Senior Counsel would further add that immediately after the
occurrence, P.W.1 informed the same to the Village President, but he was not
examined and thus, a false complaint has been given against the appellants and
it was a surmise one; that as per the post-mortem certificate, 5 injuries of
distinct in nature were found; that those injuries were not accounted by the
eyewitnesses and thus, all would go to show that the eyewitnesses could not have
seen the occurrence at all and under these circumstances, the prosecution had no
evidence to offer. Further, there were discrepancies found in the description of
the weapons of crime. In the complaint, P.W.1 has stated that A-1 attacked the
deceased with iron rod, but in the evidence, he has stated that A-1 attacked the
deceased with iron pipe. Further in Ex.P.1, it was stated that A-2 attacked the
deceased with a stick, but P.W.1 has stated in his evidence that A-2 attacked
the deceased with the wooden portion of the spade. The eyewitnesses did not have
either proper description of weapons of crime or account for the injuries
caused. Thus, it could be easily inferred that they could not have seen the
occurrence at all. The lower court has not considered any one of the aspects of
the matter and hence the appellants are entitled for acquittal in the hands of
this court.
7.The court heard the learned Additional Public Prosecutor on the above
contentions and has paid its anxious consideration on the submissions made.
8.It is not in controversy that one Natesan Ambalam was done to death in
an occurrence that had taken place at about 8.30 p.m. on 14.10.1998, as put
forth by the prosecution. Following the inquest made by P.W.14, the Inspector of
Police, the dead body was subjected to post-mortem by P.W.9, the Doctor, who has
issued Ex.P.4, the post-mortem certificate, wherein he has opined that the
deceased would appear to have died of shock and haemorrhage due to the injuries
sustained. Further, the deceased died out of homicidal violence was not the
subject matter of controversy before the trial court. Hence, it has got to be
factually recorded so.
9.In order to substantiate the charges levelled against the appellants,
the prosecution examined 5 witnesses, as occurrence witnesses, who are P.Ws.1 to
5. As rightly pointed out by the learned Senior Counsel for the appellants,
P.Ws.4 and 5 could not have seen the occurrence at all. P.W.4 is the mother of
one Sakthivel, in front of whose house, the occurrence has taken place. She has
candidly admitted that she was inside the house at the time of occurrence and on
hearing the distressing cry, she came outside with the Chimney light. According
to P.W.5, after hearing the distressing cry, she also came outside. From the
evidence of P.Ws.4 and 5, it would be quite clear that they could not have seen
the occurrence at all and when they came out, it was darkness and the assailants
were actually running and thus, their evidence has got to be rejected, as
rightly pointed out by the learned Senior Counsel for the appellants.
10.The contention put forth by the learned Senior Counsel for the
appellants that the evidence of P.Ws.1 and 2 is also rejectionable cannot be
countenanced. The learned Senior Counsel relied on the evidence of P.W.4.
According to P.W.4, P.Ws.1 and 2 and others have come to the spot after 15
minutes from the time of occurrence. But, P.Ws.1 and 2 have categorically spoken
about the fact that both of them went along with the deceased to a nearby
village for inviting the labourers and they returned to their village and when
they came in front of the house of P.W.4, A-1 armed with iron rod, A-2 armed
with stick and A-3 unarmed came there and attacked the deceased. Both of them
have spoken in one voice. It is true, both of them are close relatives to the
deceased. But, merely on the ground of relationship, their evidence cannot be
discarded, but it must be scrutinized carefully. After exercising the test of
careful scrutiny, the court is of the considered opinion that as rightly stated
by the lower court, their evidence inspired the confidence of the court. Once
both the witnesses have given a clear narration that they went along with the
deceased to a nearby village and when they were returning, the occurrence has
taken place, it cannot be stated that they could not have seen the occurrence at
all. It is pertinent to point out that the occurrence has taken place at about
8.30 p.m. during night hours when P.Ws.1 and 2 came along with the deceased and
all the accused persons were known to them. As rightly pointed out by the lower
court, their evidence was natural, convincing and hence acceptable.
11.The other contention put forth by the learned Senior Counsel for the
appellants that 5 distinct injuries were not properly accounted for, cannot be
accepted for the simple reason that the occurrence has taken place at about 8.30
p.m., during night hours. P.W.1 is the son and P.W.2 is the wife of the deceased
and thus, they are close relatives of the deceased. Being the close relatives of
the deceased and in that excitement, nobody could expect them to notice or
account the injuries properly.
12.Further, much labour was made by the learned Senior Counsel in respect
of the delay caused in giving the report to the police. The occurrence has taken
place at about 8.30 p.m. in a remote village. The police station is situated 10
Kms. away from the place of occurrence. It is admitted that Thuvarankurichi is
situated within 1-1/2 Kms. from the place of occurrence. It is pertinent to
point out that the place where the occurrence has taken place is not the nearby
place of residence of P.W.1. Immediately, P.W.1 proceeded to the Village
President and informed about the same. Thus, it would be quite clear that it was
not immediately passed in their mind that they could reach the police station,
but on the other hand, P.W.1 went to the Village Panchayat. Apart from that,
they reached the police station at about 5.00 a.m. even before the dawn hours.
Thus, it would be quite clear that though some delay is noticed, it has happened
in the course of natural events.
13.Further, description in the weapons of crime is concerned, in the
report, it was mentioned as iron rod and in the evidence, P.W.1 has stated that
it was iron pipe. Further, in the report, it has been mentioned that A-2
attacked the deceased with a stick, but during evidence, it was stated that A-2
attacked him with the wooden portion of the spade. The court is of the
considered opinion that the evidence in this regard do not make the matter much,
because the description of the weapons of crime will not in any way tilt the
balance in favour of the defence. Once the evidence of P.Ws.1 and 2 are
available for the prosecution and their evidence has also inspired the
confidence of the court and further, their evidence is supported by the medical
evidence, the court is of the considered opinion that the prosecution has
brought home the guilt of A-1 and A-2.
14.As per the prosecution case, it was the first accused, who attacked the
deceased with iron rod on his head. As per the post-mortem certificate, the
shock and haemorrhage due to the injury to the Brain was the cause for death and
thus, it could be easily inferred that A-1 has caused fatal injury. Hence, A-1
could be convicted under Section 302 IPC and sentenced to undergo life
imprisonment. So far as A-2 is concerned, he has attacked the deceased with the
stick and hence it has got to be stated that he has no intention to cause death.
Therefore, he could be convicted under Section 324 IPC and awarding punishment
of 3 years R.I. would meet the ends of justice. Insofar as A-3, even as per the
prosecution case, he has kicked the deceased, but no corresponding injury was
found and thus, the overt act attributed to A-3 remained unproved and hence A-3
has got to be acquitted.
15.Accordingly, the judgment of conviction and sentence passed by the
lower court under Section 302 r/w S.34 IPC is set aside and instead, A-1 is
convicted under Section 302 IPC and sentenced to undergo life imprisonment, A-2
is convicted under Section 324 IPC and sentenced to undergo three years R.I. The
conviction and sentence imposed on A-1 and A-2 under Section 341 IPC are
confirmed. The sentences imposed on A-1 and A-2 are to run concurrently. A-3 is
acquitted of the charges levelled against him. The sentence already undergone by
A-2 is ordered to be given set off. It is reported that A-1 and A-2 are on bail
and hence the concerned Sessions Judge shall take steps to secure and commit A-1
to prison to undergo the period of sentence and also to secure and commit A-2 to
prison to undergo the remaining period of sentence, if any. The bail bond
executed by A-3 shall stand terminated.
16.With the above modification in conviction and sentence, this criminal
appeal is partly allowed.
vvk
To
1.The II Additional District and
Sessions Judge (P.C.R.)
Thanjavur.
2.The Inspector of Police,
Adiramapattinam Police Station,
Thanjavur District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.