BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A. No.1003 of 2000 1.R.Jayabal 2.R.Savier .. Appellants vs State rep. by Inspector of Police Naducauvery Police Station Thanjavur District (Crime No.405/97) .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Thanjavur, in S.C.No.168 of 1999 dated 27.6.2000. !For Appellants ... Mr.A.Anbalagan ^For Respondent ... Mr.P.N.Pandithurai Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Principal Sessions Division,
Thanjavur, made in S.C.No.168 of 1999 whereby these appellants shown as A-1 and
A-2 respectively, along with A-3 stood charged, tried and found guilty as
follows:
————————————————————–
Accused Charge Conviction Sentence
————————————————————–
A-1 302 IPC 302 IPC Life imprisonment and a fine of Rs.1,000/- with default sentence A-2 302 read 302 read Life imprisonment with 34 IPC with 34 IPC and a fine of Rs.1,000/- with default sentence
————————————————————–
2.Though A-3 was charged under Sections 302 read with 34 and 341 of IPC,
she was acquitted of the charges by the trial Court.
3.Shorn of unnecessary details, the prosecution case can be stated thus:
(a) P.W.1 is the native of Melathiruppanthuruthi. P.W.4 is the wife of
the deceased Ponnthaisezhiyan. A-1 is the husband of A-3. A-2 is the elder
brother of A-1. There was a rivalry between A-3 and the husband of P.W.4 due to
the election that took place in the past. On 23.8.1997 at about 5.00 p.m., A-1,
A-2 and A-3 were abusing the deceased standing in front of the house. The
deceased told that they have already given false complaint, and why they should
shout. At that time, A-1 told that within 24 hours he would see to that. At
about 7.15 p.m., when the deceased was just proceeding outside the house in
order to go to Thanjavur, P.W.4 was standing in front of the house. P.Ws.1, 2
and 3 were all standing nearby at that time. When the deceased was just
crossing the house of A-1, A-1 attacked him with a kuthukol, while A-2 with an
aruval while he was being waylaid by A-3. He sustained injuries in that
process. The occurrence was witnessed by P.Ws.1 to 4 and also P.W.5. All these
accused fled away from the place of occurrence.
(b) When the injured was taken to the hospital, P.W.10, the Doctor, who
was on duty at Thanjavur Medical College Hospital, declared him dead. Ex.P6 is
the accident register copy issued in that regard. P.W.12, the Head Constable,
attached to Naducauvery Police Station, received an intimation through VHF at
9.30 p.m. from the Sub Inspector of Police, Thanjavur Medical College Hospital.
Immediately, P.W.12 proceeded to the hospital and recorded the statement of
P.W.1 which is marked as Ex.P1. On the strength of Ex.P1, he registered a case
in Crime No.405/97 under Sections 341 and 302 of IPC. Ex.P8 is the express FIR,
which was despatched to the Court along with Ex.P1.
(c) P.W.14, the Inspector of Police, on receipt of the copy of the FIR,
took up investigation and proceeded to the mortuary. First, he conducted
inquest on the dead body of Ponnthaisezhiyan in the presence of witnesses and
panchayatdars and prepared an inquest report marked as Ex.P9. He recovered
material objects from the place of occurrence. Then, he gave a requisition to
the hospital authorities for the conduct of postmortem.
(d) P.W.11, the Assistant Professor, Department of Forensic Medicine,
Thanjavur Medical College, on receipt of the requisition, conducted autopsy on
the dead body of Ponnthaisezhiyan and has issued a postmortem certificate,
Ex.P11, with her opinion that the deceased would appear to have died of shock
and haemorrhage due to stab injury of left lung.
(e) After the inquest was over, the Investigator proceeded to the place of
occurrence, made an inspection and prepared an observation mahazar, Ex.P3, and a
rough sketch, Ex.P10. All the material objects were recovered from the place of
occurrence. P.W.13, the Inspector of Police, Thiruvaiyaru, on a direction given
by the D.S.P. concerned, arrested A-3 relating to this case, and he was sent for
judicial remand. It came to the knowledge of the Investigator that A-1 and A-2
surrendered before the Judicial Magistrate, Villupuram. All the material
objects recovered from the place of occurrence and from the dead body, on a
requisition made by the Investigating Officer through the Judicial Magistrate
concerned, were subjected to chemical analysis by the Forensic Sciences
Department which resulted in two reports namely the Chemical Analyst’s report,
Ex.P14, and the Serologist’s report, Ex.P15. On completion of the
investigation, the Investigating Officer filed the final report.
4.The case was committed to Court of Sessions and necessary charges were
framed. The accused went on trial. 14 witnesses were examined on the side of
the prosecution, and it also relied upon 15 exhibits and 13 material objects.
On completion of the evidence on the side of the prosecution, the accused were
questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found
in the evidence of the prosecution witnesses, which they flatly denied as false.
One Fathima Mary was examined on the side of the defence as D.W.1. One document
was marked as court exhibit namely Ex.C1. The trial Court heard the arguments
advanced, looked into the materials available, took the view that the
prosecution has proved the case beyond reasonable doubt in respect of these
appellants who are A-1 and A-2 respectively, found them guilty and awarded the
punishments. The lower Court has entered a judgment of acquittal in respect of
A-3. Hence, this appeal at the instance of the appellants.
5.Advancing arguments on behalf of the appellants, the learned Counsel
would submit that in the instant case, the prosecution has miserably failed to
prove its case; that the prosecution has examined 4 eyewitnesses, out of whom
P.W.4 is the wife, and they are all closely related and friends also; that
according to the prosecution, they witnessed the occurrence; that the defence
came forward with a theory to state that at the time of occurrence, the deceased
along with his friends criminally trespassed into the house of A-1 and also
attempted to outrage the modesty of the wife of A-1 due to the previous enmity;
that in order to save her, A-1 has attacked him; and that the entire prosecution
story as put forth before the lower Court, was not only false, but also
thoroughly unbelievable.
6.The learned Counsel would further add that the same evidence was not
believed by the lower Court as far as A-3 was concerned; that according to the
witnesses, it was A-3 who waylaid the deceased, and A-1 attacked him with
kuthukol and A-2 attacked with an aruval; but, no corresponding injuries were
found; that all these witnesses have spoken to the fact that A-2 actually
attacked him with aruval; that if to be so, some injuries should have been
caused; that not even one injury is noticed; that it would indicate that they
could not have seen the occurrence at all; that the postmortem Doctor has
clearly pointed out that the injury that was found should have been caused by a
knife, and hence, it could not have been caused by a kuthukol as put forth by
the prosecution; that the measurement of the injury as noted by the Doctor in
the postmortem certificate, would also indicate that the said injury could not
have been caused by a kuthukol; that further, in the instant case, the
prosecution had projected the election rivalry as motive; but, the election
proceedings were pending in the past; that apart from that, number of complaints
were given against the deceased which were all pending, and thus, he had got
number of enemies; that as far as the scene of occurrence was concerned, the
witnesses have thoroughly given a different version; that bloodstained earth was
found inside the house and pial of the house of A-1; but, according to the
prosecution, the occurrence has taken place in the open street; that under the
circumstances, the scene of occurrence was also different; that according to
P.W.3, he was very certain that what was used by A-1 at the time of occurrence
was only aruval and not kuthukol; that P.W.5 has also turned hostile; that the
other witnesses namely P.Ws.1, 2 and 4 have stated kuthukol; that there is
different version in respect of the scene of occurrence; that the lower Court
has not considered the evidence proper; that on the same evidence when the Court
has come to the conclusion that A-3 was to be acquitted not believing the same
evidence, the same parameters have got to be applied to A-1 and A-2 also; that
in the face of all these doubts, which were all reasonable, the lower Court
should have rejected the case outright and should have acquitted them, but not
done so, and hence, they are entitled for acquittal in the hands of this Court.
7.The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made.
8.It is not in controversy that following an incident that took place at
about 7.15 p.m. on 23.8.1997, in which injuries were sustained by the deceased
Ponnthaisezhiyan, he was taken to the hospital where he was declared dead.
Following the registration of a case, at the time of investigation the
Investigator made an inquest. Thereafter, the postmortem was also done by
P.W.11, the Doctor. She has also deposed before the Court, through whom the
postmortem certificate has also been marked. Thus, through the medical
evidence, the prosecution has proved the fact that Ponnthaisezhiyan died out of
homicidal violence. This fact was never questioned by the appellants/accused
that he died out of homicidal violence. Hence, it has got to be recorded so.
9.In order to substantiate the charges, originally levelled against all
the three accused, the prosecution rested its case on the direct evidence of
P.Ws.1 to 5 as eyewitnesses. P.W.5 turned hostile, and out of the remaining
four witnesses, P.W.4 is the wife, and P.Ws.1 to 3 are admittedly friends of the
deceased. But, the same cannot be a reason to discard the testimony, and it
must be looked into by the Court by exercising the test of careful scrutiny.
According to P.W.4, her husband just started from her house to proceed to
Thanjavur, and she also came out of the house, and when he was just proceeding a
short distance, it was A-1 who attacked him with a kuthukol, and A-1 with an
aruval, and A-3 waylaid. This fact that A-1 attacked with kuthukol on the chest
of the deceased is spoken to by P.Ws.2 and 4. It is true that P.W.3 has stated
that A-1 has attacked with an aruval. Therefore, this evidence could be
rejected. However, the prosecution to its advantage had the evidence of P.Ws.1,
2 and 4 to the effect that it was A-1 who attacked him on the chest with
kuthukol. The corresponding medical evidence is also available to the
prosecution. There was only one injury that was found on the chest, and that
could be caused by kuthukol according to the Doctor. The contention put forth
by the learned Counsel for the appellants that such an injury could not be
caused by kuthukol cannot be accepted. The nature of the injury found in the
postmortem certificate, would clearly indicate that such an injury could be well
caused by a kuthukol as put forth by the prosecution.
10.As far as A-2 was concerned, he had aruval and wielded the same,
according to the witnesses examined by the prosecution. But, no corresponding
injury is found. The prosecution witnesses came forward to state that A-2 had
aruval and wielded it also. According to the prosecution, originally to start
with, A-2 had aruval; but, no injury was caused which was simply warded off.
But, the witnesses have made a development at the time of the examination before
the Court, and thus, it casts a doubt whether A-2 could have been in the place
of occurrence with an aruval either, or he attacked the deceased, since no
corresponding injury is found. The evidence of these witnesses in respect of A-
2, casts a doubt, and hence, it could not be taken as a proof, since it is
shrouded with doubts. Under the circumstances, that part of the prosecution
case in respect of A-2, cannot be believed.
11.After consideration of the other contentions put forth by the learned
Counsel for the appellants, this Court is of the opinion that they do not carry
any merit whatsoever. According to the eyewitnesses, immediately after the
occurrence, the accused threw bloodstained weapons on the pial of the house of
A-1, and it is quite natural that the pial of the house was found bloodstained.
But, it did not mean that that was the place of occurrence. According to the
Investigator, he proceeded to the spot, made an inspection and prepared an
observation mahazar and also a sketch. Much comment was made by the learned
Counsel that originally, the observation mahazar was not before the Court; but,
subsequently, a copy was filed, and the lower Court has relied upon the copy,
which should not have been done. But, at the same time, this Court is able to
see that there was a sketch prepared by the Investigator. According to the
Investigating Officer, the sketch was prepared after observation. The contents
in the sketch were never disputed by the appellants’ side at the time of the
trial. Hence, the scene of occurrence is clearly mentioned as in front of the
house of A-1, in that sketch. So long what is found in the sketch is not
disputed, it can be well stated that that was the place of occurrence. Hence,
it leaves no doubt in the mind of the Court.
12.As far as the motive is concerned, even according to P.W.4, there was a
wordy altercation at about 5.00 p.m. when A-1 came over and was standing in
front of the house of the deceased and shouting, and further, he would challenge
that within 24 hours he would see to it. When, the deceased came out at 7.15
p.m., this occurrence has taken place. Therefore, the evidence of P.W.4 would
be pointing to the incident that took place within a short while prior to the
occurrence. Apart from this, it is an admitted fact that they had got the
rivalry, and also political motive in the election process in the past.
Further, in the instant case, some discrepancies are brought to the notice of
the Court among the evidence of the witnesses. They are all minor most
contradictions. This Court is of the opinion that it will not in any way affect
the truth of the prosecution case. All put together would go to show that the
prosecution had sufficient evidence pointing to the complicity of A-1 that it
was he who attacked him with kuthukol and caused the death of the deceased
instantaneously, and it was also clear from the nature of the injuries. Neither
there was any provocation nor there was any quarrel preceding. Under the
circumstances, this Court is of the view that the judgment of the trial Court
insofar as A-1 finding him guilty under Sec.302 of IPC and awarding life
imprisonment, has got to be sustained. Accordingly, it is sustained.
13.As regards A-2, this Court is able to see that the evidence is shrouded
with reasonable doubts, and hence, A-2 is entitled for acquittal. Accordingly,
the conviction and sentence imposed on A-2 by the trial Court, are set aside,
and he is acquitted of the charge. The fine amount if any paid by him, will be
refunded to him. The bail bond executed by him, shall stand terminated.
14.In the result, this criminal appeal is partly allowed. It is reported
that A-1 is on bail. Hence, the Sessions Judge shall take steps to commit him
to prison to undergo the life sentence imposed on him.
nsv/
To:
1.The Principal Sessions Judge, Thanjavur
2.The Inspector of Police
Naducauvery Police Station
Thanjavur District
(Crime No.405/97)
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court