BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.No.634 of 2007 1.Alexander 2.Chandran 3.Mani 4.Rose 5.Muthunayagam .. Appellants Vs. State represented through The Inspector of Police, Kuzhithurai Police Station, Cr.No.132 of 2003 Kanyakumari District .. Respondent PRAYER This criminal appeal has been preferred under Section 374 (2) Cr.P.C against the judgment dated 11.10.2007 made in S.C.No.224 of 2003 by the Sessions Judge Kanyakumari Division at Nagercoil. !For Appellant ... Mr.V.Kathirvelu ^For Respondent ... Mr.C.Daniel Manoharan, Additional Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
The appellants five in number have challenged the judgment of the Sessions
Judge, Kanyakumari Division at Nagercoil, made in S.C.No.224 of 2003, dated
11.10.2007, whereby the accused/appellants stood charged, tried, found guilty
and awarded punishment as follows:
a)A-1 and A-2 were found guilty under Sections 148,341,294(b),307 and 302
IPC and Sentenced to undergo 1 year rigorous imprisonment under Section 148 IPC;
1 month simple imprisonment under Section 341 IPC; 3 months rigorous
imprisonment under section 294(b) IPC; 5 years rigorous imprisonment and also to
pay a fine of Rs.2,000/- with a default of 3 months rigorous imprisonment under
section 307 IPC and life imprisonment and to pay a fine of Rs.5,000/- with a
default sentence of 6 months rigorous imprisonment under section 302 IPC.
b).A3 was found guilty under Sections 148,341,294(b),307 read with 149 and
302 IPC and Sentenced to undergo 1 year rigorous imprisonment under Section 148
IPC; 1 month simple imprisonment under 341 IPC; 3 months rigorous imprisonment
under section 294(b) IPC; 5 years rigorous imprisonment and also to pay a fine
of Rs.2,000/- with a default of 3 months rigorous imprisonment under section 307
read with 149 IPC and life imprisonment and to pay a fine of Rs.5,000/- with a
default sentence of 6 months rigorous imprisonment under section 302 IPC.
c)A4 was found guilty under Sections 148,341,294(b),324(2 counts), 307
read with 149 and 302 IPC and Sentenced to undergo 1 year rigorous imprisonment
under Section 148 IPC; 1 month simple imprisonment under 341 IPC; 3 months
rigorous imprisonment under section 294(b) IPC; 1 year rigorous imprisonment for
each counts under Section 324(2 counts) IPC; 5 years rigorous imprisonment and
also to pay a fine of Rs.2,000/- with a default of 3 months rigorous
imprisonment under section 307 read with 149 IPC and life imprisonment and to
pay a fine of Rs.5,000/- with a default sentence of 6 months rigorous
imprisonment under section 302 IPC.
d)A5 was found guilty under Sections 148,341,294(b),324, 307 read with 149
and 302 IPC and Sentenced to undergo 1 year rigorous imprisonment under Section
148 IPC; 1 month simple imprisonment under 341 IPC; 3 months rigorous
imprisonment under section 294(b) IPC; 1 year rigorous imprisonment under
Section 324 IPC; 5 years rigorous imprisonment and also to pay a fine of
Rs.2,000/- with a default of 3 months rigorous imprisonment under section 307
read with 149 IPC and life imprisonment and to pay a fine of Rs.5,000/- with a
default sentence of 6 months rigorous imprisonment under section 302 IPC. All
the above said sentences are to run concurrently.
2. The facts, sans unnecessary details, require for the disposal of the
appeal can be stated thus:-
a) P.W.1 and P.W.2 are brothers of the deceased Muthaiyan. P.W.3 is the
wife of P.W.1. P.W.4 is the son of P.W.2. P.W.5 was a driver belonged to the
village of the deceased. A1 and A2 are brothers, likewise A3 and A5 are
brothers. A4 is the wife of A3. There was a long pending dispute between the
prosecution party and the accused party over a pathway and certain criminal
cases were registered by the respective police against the accused alleging that
they were selling Madhu Kasayam and the proceedings in those were pending and it
was passing in the minds of the accused above that P.Ws are responsible for the
same and hence they were all in inimical terms.
b)While the matter stood thus, on 09.03.2003 at about 7.30 p.m., A1 to A5,
armed with deadly weapons, came with a common object of attacking and causing
death of the deceased. P.Ws.1 to 5 were present along with the deceased at the
backyard of the house. At that time, A1 armed with Vettukathi, A2 and A3 with
iron rod, A4 and A5 with sticks came over there and immediately on reaching the
place, A-3 uttered words “cut and kill them”. A1 attacked the deceased with
Vettukathi on his head, while A2 attacked with iron rod on his head and A3 also
joined with him to attack the deceased on the head. A1 and A2 attacked P.W.2
causing grievous injuries. A4 attacked P.Ws.1 and 3 with sticks and caused
simple injuries. A5 attacked P.W.1 by rice pounder and caused injuries. On
hearing the distressing cry, all the accused fled away from the place of
occurrence. P.Ws.1 to 3, who were injured in the incident, took the severely
injured to the hospital of One Issac, examined as P.W.22. He examined the said
Muthayyan, gave first aid and sent him to the Government Hospital, Kottar, where
he died on 10.03.2003 at about 1.15 am. P.Ws.1 to 3 were all medically examined
by P.W.22. P.W.22 has given wound certificates Ex.P.27, Ex.P.26 and Ex.P.28 in
respect of P.Ws.1, 2 and 3 respectively, where he noted the injuries found on
them. An intimation was given to the respondent police, where P.W.19 was the Sub
Inspector of Police.
c) On receipt of the intimation, P.W.19 proceeded to the hospital and
recorded the statement of P.W.1 at about 10.30 p.m on 09.03.2003. On the
strength of Ex.P1, a case came to be registered in the respondent Police Station
in Crime No.132 of 2003 under Sections 147, 148, 341, 323, 324 and 307 IPC.
Express FIR Ex.P.17 was despatched to the Court.
d)On receipt of copy of the FIR, P.W.21, the Inspector of Police, took up
the investigation, proceeded to the scene of occurrence, made an inspection in
the presence of witnesses and prepared Ex.P.2, the Observation mahazar and
Ex.P.18, the rough sketch. Further, he enquired some witnesses and recorded
their statements. He recovered sample earth, bloodstained earth and also other
material objects from the place of occurrence under a cover of mahazer. The
entire place of occurrence was photographed through P.W.20, the photographer and
all the photos and negatives are marked as M.O.9 series. The investigator
conducted inquest on the dead body of the deceased in the presence of the
witnesses and panchayatdars and prepared an inquest report, which is marked as
Ex.P.21.
e)Following the same, the dead body of the deceased was sent to the
government hospital, for the purpose of autopsy. P.W.12, the Doctor, attached
to Asaripallam Government Medical College Hospital, on receipt of the
requisition Ex.P.8, conducted autopsy on the dead body of the deceased and
issued Ex.P.9, the post-mortem certificate, an opining that the deceased would
appear to have died out of shock and haemorrhage and also due to the head
injuries sustained.
f) Pending investigation, on 11.03.2003 at about 12.00 hours, the
investigator arrested A3 and A4. A3 gave a confessional statement voluntarily
and the admissible part of the said confession was marked as Ex.P.4, consequent
upon the same he produced M.Os 4 and 6, which were recovered under a cover of
mahazar. A3 and A4 were sent for judicial remand. A5 surrendered before the
Judicial Magistrate, Nagercoil and an application for taking him on police
custody was made. Accordingly he was taken in to police custody and on enquiry
A5 came forward to give a confessional statement voluntarily and the admissible
part of the said confession was marked as Ex.P.6, consequent upon the same the
material objects were recovered from him under a cover of mahazar. He was also
sent for judicial remand. A1 and A2 also surrendered before the Judicial
Magistrate No.1, Nagercoil on 13.03.2003.
g) All the material objects recovered from the place of occurrence, from
the dead body of the deceased and the Material Objects recovered from the
accused, were sent for chemical analysis pursuant to a requisition, Ex.P.23,
given by the Investigating Officer to the concerned Judicial Magistrate. Two
reports were received. One is Ex.P.30, the Serologist’s report and the other is
Ex.P.31,the Chemical analyst’s report. On completion of the investigation, the
Investigating Officer has filed the final report before the concerned court,
which in turn committed the case to the court of sessions and necessary charges
were framed, and the case was taken up for trial.
h) In order to substantiate the charges, at the time of trial, the
prosecution examined 23 witnesses and relied on 32 exhibits and 10 M.Os. On
completion of the evidence on the side of the prosecution, the
accused/appellants were questioned under Section 313 Cr.P.C. as to the
incriminating circumstances found in the evidence of prosecution witnesses. He
denied them as false. No defence witness was examined. After hearing the
arguments of the counsel and looking into the material available meticulously,
the lower court, took the view that the prosecution has proved the case beyond
reasonable doubt and found the accused guilty and awarded the punishment as
referred to above. Under these circumstances, this criminal appeal has arisen at
the instance of the accused/appellants.
3.Advancing arguments on behalf of all the appellants, Mr.V.Kathirvelu, in
his sincere attempt of assailing the judgment of the Court below, made the
following submissions.
a)The prosecution rested its case by examining five witnesses as
occurrence witnesses. Out of those five witnesses, P.W.5 turned hostile.
P.Ws.1 and 2 are the brothers of the deceased and P.W.3 is the wife of P.W.1 and
thus they are closely related inter se and thus they are interested and partisan
witnesses.
b)Added further, if the test of careful scrutiny was applied to the
evidence of those witnesses, their evidence should have been rejected by the
lower Court for the reason that since their evidence was not only inconsistent
to each other but also self contradictory. The case of the prosecution is that
all the accused constituted an unlawful assembly to commit an offence. But,
there is nothing to indicate or prove or to point out or even to infer that they
had any common object either to commit the act of murder or to commit any
illegal act.
c)Added further, in the instant case, the earliest documents which came
into existence even before first information report was registered were Exs.P.26
to 28, the wound certificates which were issued by P.W.22 in respect of P.Ws.2,1
and 3 respectively and a perusal of those documents would go to show that P.W.22
Dr.Issac has stated that they were attacked by a known person. Therefore, it
was in singular and thus they were attacked by a number of persons who are the
accused, is highly improbable and only acceptable.
d)Further, in the instant case there was all possibility for improvement
and embellishment of FIR for the simple reason that the occurrence has taken
place at about 7.30 pm at 09.03.2003 and P.W.19, the Sub Inspector of Police,
has gone to the hospital and recorded the statement of P.W.1 at about 10.30 pm.,
and a case came to be registered under Section 307 and other provisions of
I.P.C. but the first information reached the Court only on the next day and
there was a delay of 12 hours and the prosecution has no explanation to offer
this 12 hours delay when the Judicial Magistrate Court is situated within a
short distance from the Police Station and this would go to show that the entire
prosecution case was only a fabricated one.
e) Added further, in the instant case, if these evidence are scrutinized
carefully, it would clearly reveal that they have spoken and narrated the
occurrence in a graphic manner and more so, in a dramatic way and it can be
easily inferred that these witnesses have been tutored. Learned counsel in
support of his contention relies upon the decision reported in 1981 Supreme
Court Cases (Cri) 679 (Sevi and another V. State of Tamil Nadu and another) and
contends that if the said judgment is applied, the prosecution case must be
rejected.
f)Added further, the learned counsel that in the instant case, the medical
evidence did not support the case of prosecution. The occurrence has taken
place at about 7.30 p.m. night hours and even the investigator has made
inspection of the occurrence place and prepared observation magazar with the
help of torch light and when that was the situation, the alleged eye witnesses
could not have witnessed the occurrence as spoken in their evidence before the
Court. If the first information report is compared with the evidence, it would
be clear that it was full of discrepancies, which discrepancy would be suffice
to reject the case of prosecution.
g)Added further, even if the case of the prosecution is accepted, there is
nothing to indicate that the accused have got common object either to cause
death of the deceased or to cause grievous injury to the witnesses and thus no
question of invoking Sections 148 and 149 IPC would arise. So far as A4 and 5
are concerned, they did not attack the deceased at all. A4 attacked P.Ws.1 and
3, A5 attacked P.W.1 and those injuries are simple in nature and hence they have
to be dealt with accordingly and in so far as A1 to A3 are concerned, there is
discrepancy between the FIR and the evidence and in the FIR it is found stated
that A2 attacked with iron rod and caused injuries which is above the eye brow
but in the evidence before the Court, it is stated that he has caused grievous
injury on the head of the deceased and further no corresponding injuries were
found noted in the post-mortem certificate. Thus, all would go to show that A2
has nothing to do with the act of the accused and injury caused by A-2 was not a
fatal one to cause death. Under the circumstances, A-2 has also got to be dealt
with accordingly.
h)Added further the learned counsel for the appellants that the
prosecution is unable to say that the accused have got any common object or any
intention to cause death of the deceased and therefore they could not be found
guilty under Section 302 IPC and they should be dealt with for the injuries
caused and if the Court comes to a conclusion that the factual positions are
true, this Court has to find them guilty under Section 326 IPC and accordingly
judgment has got to be rendered by the Court taking into consideration the
facts and legal position of the matter.
4.The court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and also
scrutinized the materials available.
5.It is not the fact in controversy that the deceased Muthayyan, brother
of P.Ws.1 and 2, who was attacked in an occurrence that took place on
09.03.2003, was taken to the hospital of P.W.22 and thereafter to the Government
Hospital, Kottar and he died at 1.15 am on 10.03.03 as a direct consequence of
the injuries suffered in the incident. Following the inquest made by the
investigator, the dead body was subjected to post-mortem by P.W.12, the doctor,
who has given an opinion not only in the post-mortem report but also deposed
before the Court that the death occurred due to the shock and hemorrhage due to
the injuries sustained on the head. This fact that Muthayyan died out of
homicidal violence was never the subject matter of controversy before the lower
Court and hence, without impediment it could be recorded so.
6.In order to substantiate the charges levelled against the
appellants/accused, the prosecution marched five witnesses as P.W.1 to P.W.5, as
occurrence witnesses, out of whom, P.W.5 has turned hostile. The prosecution to
its advantage had the evidence of P.Ws.1 to 4. Out of P.Ws.1 to 4, P.Ws.1 to 3
were injured witnesses. It is well settled position of law that in a given case
like this, where the injured witnesses happened to be eye witnesses, their
evidence should not be discarded, unless and until strong circumstances are
noticed or reasons are brought about, but in the instant case, absolutely not
so.
7.The contention put forth by the learned counsel for the appellants that
all these witnesses have given evidence in a graphic and dramatic manner cannot
be accepted as their evidence is found to be with minor contradictions. All
these witnesses have clearly spoken about the overt acts attributed to the
accused. If they have not spoken so, the prosecution should have miserably
failed. Under such circumstances, merely because, the eye witnesses have given
accounts for the entire overt acts attributed to the accused, it cannot be said
that in every case, they should give a dramatic or graphic version, as stated by
the learned counsel for the appellants. The decision cited by the learned
counsel for the appellants has no application to the present facts of the case
and hence such contention cannot be countenanced.
8.It is true that all these persons, P.Ws.1 to 3 and the deceased were
taken to the private hospital of one Dr.Issac, who has been examined as P.W.22,
where they were all treated and the wound certificates issued to them were also
marked as Exs.P.26 to 28, wherein it is found stated that they were assaulted by
known persons and it does not say by a known person. But, it says known
persons. They were taken to the private hospital along with the deceased, whose
condition was serious and therefore all the statements given by the persons in
anxiety and recorded by the doctor cannot be given much importance and in the
opinion of the Court, while, the other evidences are sufficient for the
prosecution to put forth its case.
9. In the instant case, it is true, there was a delay in FIR reaching the
Court. It is settled position of law that mere delay in the registration of the
case or despatching FIR to the court by itself would not be a reason to reject
the prosecution case, if the other evidence available are acceptable by the
Court. In a given case like this, the defence must be able to show that
prejudice has been caused to them because of delay. In the opinion of the
Court, the delay caused by itself is not sufficient to doubt the prosecution
case in the absence of any prejudice noticed by the Court. Therefore, that
contention is also cannot be accepted.
10.Further, so far as P.Ws.1 to 3 are concerned, they have spoken about
the occurrence in detail and their evidence was also fully corroborated with the
post-mortem certificate issued by the doctor who conducted autopsy on the body
of the deceased as well as the wound certificates issued to them and also by the
oral evidence of Doctors.
11.Yet another circumstance was the recovery of weapons of crime pursuant
to the confessional statements given by the accused, which, in the opinion of
the Court, are pointing to the guilt of the accused and hence, the first line of
contention put forth by the learned counsel for the appellants cannot be
accepted.
12.Insofar as the second line of contention is concerned, the Court is
able to see force in the contention put forth by the counsel for appellants. In
the instant case, there is nothing to hold or find or infer that the accused
have got common object of murdering of the said deceased or to cause any
serious injuries and thus the common object as put-forth by the prosecution can
not be accepted. In a situation like this, they have got to be dealt with
individually. As rightly pointed out by the counsel, so far as, A-4 and A5 are
concerned, they did not attack the deceased and hence the charges levelled
against them have got to be dealt with accordingly. A4 attacked P.Ws.1 and 3
and A5 attacked P.W.1 and they caused simple injuries on them and hence they
have got to be dealt with under Section 324 of IPC and awarding punishment of
one year Rigorous Imprisonment would meet ends of justice. Sofar as A1 to 3 are
concerned, the contention put forth by the learned counsel that they were not
the members of the unlawful assembly nor they have got common object and
therefore they should be brought to 324 IPC cannot be accepted. The doctor has
given his clear opinion that shock and hemorrhage due to the injury sustained on
the head was the cause for death and thus there is no doubt in this regard.
13.There is clear evidence that A-1 attacked the deceased with vettukathi,
A-2 and A-3 attacked with iron rod on the head and caused injuries and due to
cumulative effect, the deceased died. Hence A1 to A3, under the circumstances,
have got to be held that they shared the common intention and thus they have got
to be found guilty under Section 302 read with 34 IPC. A1 and A2 attacked
P.W.2 and caused grievous injuries and hence they have got to be dealt with
under Section 326 IPC also and awarding punishment two years rigorous
imprisonment would meet ends of justice.
14.In the result, this appeal is partly allowed by modifying the
conviction and sentences imposed on the appellants/accused are as follows:
a)A1 and A2 are convicted under Section 302 read with 34 I.P.C instead of
302 I.P.C and each of them are sentenced to undergo Life imprisonment thereunder
and to pay a fine of Rs.5,000/- with a default sentence of 6 months rigorous
imprisonment. They are also convicted under Section 326 I.P.C instead of 307
I.P.C and sentenced to undergo two years rigorous imprisonment and to pay a fine
of Rs.2000/- with a default of 3 months rigorous imprisonment. Their conviction
and sentences under other provisions of law are all confirmed. All the
sentences are run concurrently.
b)A3 is convicted under Section 302 read with 34 I.P.C instead of 302
I.P.C and each of them are sentenced to undergo Life imprisonment thereunder and
to pay a fine of Rs.5,000/- with a default sentence of 6 months rigorous
imprisonment. He is acquitted of the charge under Section 307 read with 149 of
I.P.C. In respect of other provisions of law, the conviction and sentences
imposed on him are confirmed. All the sentences are run concurrently.
c)The conviction and sentenced imposed on A4 and A5 under Section 307 read
with 149 of I.P.C are set aside and they are acquitted of the said charge.
While confirming the conviction of A4 under Section 324 I.P.C (2 counts), the
sentence is modified to undergo one year rigorous imprisonment and the other
conviction and sentences are all confirmed. While confirming the conviction of
A5 under Section 324 I.P.C, the sentence is modified to undergo one year
rigorous imprisonment and the other conviction and sentences are all confirmed.
All the sentences are run concurrently. The period of sentence already
undergone by A4 and A5 shall be given set off.
ssm/arul
To
1.The Sessions Judge,
Kanyakumari Division, at
Nagercoil.
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.