BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04/01/2008
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
C.A.NOS.2 OF 2006
C.A.NOS.225 OF 2006
1.Appadurai
2.Ayyadurai
3.Chellappa .. Appellants in
C.A.No.2 of 2006
Sundar alias Kandasamy .. Appellant in
C.A.No.225 of 2006
Vs.
State represented by
Inspector of Police,
Palayamkottai Police Station,
Tirunelveli District.
(Crime No.1525/2004) .. Respondent in
both the appeals
These criminal appeals have been preferred under Section 374(2) Cr.P.C.
against the conviction and sentence imposed on the appellants by the learned
First Additional Sessions Judge, Tirunelveli made in S.C.No.159 of 2005, dated
30.11.2005.
!For Appellants ... Mr.V.Kathirvelu in C.A.No.2 of 2006 Mr.N.Mohideen Basha in C.A.No.225 of 2006 ^For Respondents ... Mr.P.N.Pandithurai, APP :COMMON JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
This judgment shall govern these two criminal appeals, namely
C.A.No.2 of 2006 made by A-1 to A-3 and C.A.No.225 of 2206 made by A-4.
2.These two appeals have arisen, challenging the judgment of the
learned First Additional Sessions Judge, Tirunelveli made in S.C.No.159 of 2005,
whereby these four accused/appellants along with two others, shown as A-5 and A-
6, stood charged as follows:
A-1 to A-3 – S.120 B IPC
A-1 to A-6 – S.348 IPC
A-3 – S.342 IPC
A-1,2,4 to 6 – S.342 r/w S. 149 IPC
A-1,2 and 4 – S.302 IPC
A-3,5 and 6 – S.302 IPC r/w S.149 IPC
On trial, these appellants were found guilty as detailed below, while A-5 and A-
6 were acquitted of all the charges.
A-1 to A-4 – S.148 IPC – 1 year RI and Rs.1000/- fine,
in default to undergo 1 month SI
A-3 – S.342 IPC – 1 month RI.
A-1,2 and 4 – S.342 r/w – 1 month RI
S.34 IPC
A-1,2 and 4 – S.302 IPC – Life imprisonment and Rs.5000/-
fine, in default 3 months SI.
A-3 – S.302 r/w – Life imprisonment and Rs.5000/-
S.34 IPC fine, in default 3 months SI.
3.The short facts necessary for the disposal of the case could be stated
as follows:
a)P.W.6 is the father of the deceased. P.W.1 is the brother of the
deceased. They were the residents of Seidunganallur. On 29.7.2004, P.W.1
accompanied by the deceased went over to the village called Pottal for watering
their lands. After doing so, they were on their way back. They were just
standing nearby the place of occurrence, namely Rogini Tea Stall at about 9.00
p.m. At that time, all the accused armed with Aruval proceeded nearby. A-3
caught hold the hands of the deceased. A-1 cut the deceased on the back of his
neck. A-2 cut the deceased on his right shoulder and A-4 cut the deceased on his
left shoulder and mandible. The occurrence was witnessed not only by P.W.1, who
was standing nearby, but also by P.Ws.2,3,5 and 9. P.W.1 and others shouted not
to cut the deceased. All the accused fled away from the place of occurrence.
P.W.1 and others went nearby and found him dead.
b)P.W.1 rushed to the respondent police station and gave the complaint
Ex.P.1 to P.W.22, Sub Inspector, who was on duty at that time. On the strength
of the same, a case came to be registered in Crime No.1525 of 2004 under
Sections 342, 294(B) and 302 IPC. Ex.P.26, the FIR was sent to the concerned
Judicial Magistrate Court through a Constable.
c)On receipt of the copy of the FIR, P.W.23, the Inspector of Police, took
up the investigation, proceeded to the place of occurrence and made an
inspection in the presence of witnesses and prepared Ex.P.28, the Observation
mahazar and Ex.P.29, the rough sketch. Further, he recorded the statement of the
witnesses. He conducted inquest on the dead body of the deceased in the
presence of the witnesses and panchayatdars and prepared Ex.P.31, the inquest
report.
d)The dead body of the deceased was sent to the hospital through P.W.17,
the Constable, for the purpose of autopsy. P.W.19, the Doctor attached to the
Tirunelveli Medical College, on receipt of the requisition, has conducted
autopsy on the dead body of the deceased and has issued Ex.P.19, the post-mortem
certificate, wherein he has narrated the injuries and has opined that the
deceased would appear to have died of shock and haemorrhage due to the injury
found on the neck, which was fatal and the other injuries were simple.
e)Pending investigation, the Investigator arrested A-4 on 2.8.2004 and in
the presence of the witnesses, he made confessional statement, the admissible
part of which was marked as Ex.P.32. Consequent upon the same, he produced
M.O.10 Aruval, which was recovered in the presence of the witnesses under a
cover of mahazar. On 31.7.2004, A-1, A-4 and A-6 surrendered before the court
and on 3.8.2004, they were taken to police custody. At the time of enquiry, they
gave confessional statements, which were all recorded in the presence of the
witnesses. The admissible part of the confessional statements of A-1, A-5 and A-
6 were marked as Exs.P.34 to 36 respectively. Pursuant to the same, A-1 produced
M.O.11 aruval, A-5 produced M.O.12 aruval and A-6 produced M.O.13 aruval, which
were recovered in the presence of the witnesses under a cover of mahazar.
f)Following the same, the Investigator proceeded with the investigation
further. A-2 and A-3 also surrendered before the court. They were taken to
police custody on 12.8.2004. They have given confessional statements in the
presence of the witnesses. The admissible part of the confessional statement of
A-3 was marked as Ex.P.40, pursuant to which he produced M.O.14 aruval which was
recovered under a cover of mahazar. The admissible part of the confessional
statement of A-2 was marked as Ex.P.42, pursuant to which he produced M.O.15
aruval, which was recovered under a cover of mahazar. All the material objects
recovered from the place of occurrence, from the dead body of the deceased and
from the accused were sent for chemical analysis on requisition given by the
Investigating Officer to the concerned Judicial Magistrate. Ex.P.22, the
Chemical analyst’s report and Ex.P.23, the Serologist’s report were received. On
completion of the investigation, the Investigating Officer has filed the final
report before the concerned court.
g)The case was committed to the court of sessions and necessary charges
were framed and the case was taken up for trial. At the time of trial, the
prosecution examined P.Ws.1 to P.W.23 and marked Exs.P.1 to P.44 and M.Os.1 to
15. 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. They denied them as false. No
defence witness was examined. The lower court, after hearing the arguments of
the counsel, took the view that the prosecution has proved the case beyond
reasonable doubt so far as A-1 to A-4 were concerned and so far as A-5 and A-6
were concerned, the lower court recorded an order of acquittal. Under these
circumstances, these criminal appeals have arisen before this court at the
instance of A-1 to A-4.
4.Advancing arguments on behalf of the appellants, the learned counsel
would submit that it is highly doubtful whether Ex.P.1 would have come into
existence as put forth by the prosecution; that P.W.1 could not have been in the
place of occurrence at all; that P.W.1 is the brother of the deceased and they
are the native of Seitunganallur; that the occurrence took place near
Palayamkottai; that there was no occasion for P.W.1 to accompany the deceased at
that time; that so far as Ex.P.1 was concerned, nothing is found whether it was
written at the police station; that he would say that it was written by him at
the post office; that in the instant case, the occurrence has taken place,
according to the prosecution, at 9.00 p.m.; that the police constable, who took
the Sniffer Dog to the place of occurrence, was examined; that according to his
evidence, he was informed that the assailants were not known and thus, he was
asked to take the Sniffer Dog and that this would reveal that P.W.1 could not
have been in the place of occurrence at all.
5.Added further the learned counsel that so far as the other evidence are
concerned, P.Ws.5 and 9 have turned hostile; that the Investigating Officer has
categorically admitted that if the witnesses were standing at the bus stand,
they could not have seen the occurrence at all; that it would be quite clear
that P.Ws.2 and 3 could not have seen the occurrence at all; so far as P.W.1 was
concerned, he is the brother of the deceased; that if the evidence of P.W.1 is
tested from the medical evidence, it would falsify the evidence; that he did not
give the correct narration of the injury sustained; that it would also cast a
doubt on the evidence of P.W.1; that apart from that, in the instant case, while
P.W.1 has given evidence to the effect that they went over for watering the
land, the Investigator had not even conducted investigation in that regard; that
insofar as the place of occurrence, according to P.W.1, the place of occurrence
was just opposite to the bus stop, where they were standing, but there were no
bus stop found either in the sketch or in the observation mahazar and that it
would cast a doubt on the prosecution case; that in the instant case, the
prosecution originally came with the case of conspiracy; that the prosecution
has miserably failed to prove the case; that so far as A-5 and A-6 are
concerned, the lower court was not prepared to accept the case; that once the
lower court was not prepared to accept the evidence of so-called eyewitnesses in
respect of the conspiracy part and also the other part of the prosecution case,
it should have given outright acquittal of all the accused, but failed to do so
and under these circumstances, justice has got to be rendered by allowing these
appeals.
6.The court heard the learned counsel for the respondent on the above
contentions.
7.The court has paid its anxious consideration on the submissions made and
also scrutinized the materials available. In the instant case, the gist of the
prosecution case is that due to prior enmity, A-1, pursuant to the conspiracy
hatched up, accompanied with the other accused, cut the deceased at the place of
occurrence at about 9.00 p.m. on 29.07.2004. According to the prosecution, the
occurrence was witnessed by P.W.1, the brother of the deceased, P.Ws.2,3,5 and
9, who were standing nearby. So far as P.Ws.5 and 9 are concerned, they have
turned hostile and hence, the prosecution could not get their help. Insofar as
the evidence of P.Ws.2 and 3, the court has to necessarily agree with the
contention put forth by the learned counsel for the appellants. According to the
evidence of the Investigation Officer, if they were standing near the bus stop,
they could not have seen the occurrence at all and that too, the occurrence has
taken place at 9.00 p.m. It is not the evidence of P.Ws.2 and 3 that they came
to the place of occurrence at the time of occurrence and they saw the same. From
the evidence of the Investigating Officer, it is highly improbable to accept the
evidence of P.Ws.2 and 3 and hence, their evidence would be of no help to the
prosecution case.
8.What is available to the prosecution was the evidence of P.W.1. It is a
settled proposition of law that even though the uncorroborated testimony of
single witness could not be believed, if it is worthy and has inspired the
confidence of the court, the court can sustain the conviction. In the instant
case, it is true, P.W.1 is the brother of the deceased. On the ground of
relationship alone, his evidence cannot be brushed aside, since his evidence has
inspired the confidence of the court. According to P.W.1, he accompanied with
his brother and went over to Pottal for watering their land and they returned in
the two wheeler and thereafter, they were standing nearby the place of
occurrence. At that time, all the four accused came over there and they were
armed with aruval and P.W.1 has narrated the specific overt acts attributed to
them. In the instant case, the first and foremost situation in favour of the
prosecution is that the F.I.R. has come into existence within a short span of an
hour. In the F.I.R., P.W.1 has clearly narrated the entire incident and has
mentioned all the names of the assailants.
9.It is pertinent to point out that the F.I.R. has reached the Judicial
Magistrate concerned at 4.00 a.m. on 30.7.2004. The contention of the learned
counsel for the appellants is that the court seal of the Judicial Magistrate
Court was found affixed only on 31.7.2004. But, this contention cannot be
countenanced for the simple reason that the Judicial Magistrate concerned has
initialed in the F.I.R. on 30.07.2004. Under these circumstances, in the instant
case, no delay is noticed. Had P.W.1 not been in the place of occurrence, he
could not have narrated the entire incident along with the overt acts attributed
to each and every one of the accused. Further, P.W.1 has also pointed out the
fact as to why he was present at the place of occurrence and hence, his evidence
has got to be believed. Further, when the medical evidence is looked into, this
court is unable to agree with the contention put forth by the learned counsel
for the appellants for the simple reason that according to P.W.1, the first
accused cut the deceased on the back side of the neck of the deceased, while A-3
caught hold in front and the other two accused attacked the deceased on his
shoulders. A perusal of the post-mortem certificate would clearly reveal that
the injuries are found. Under these circumstances, taking into consideration the
time of occurrence, namely 9.00 p.m. and the fact that P.W.1 is none else than
the brother of the deceased, the court must see the frame of mind of the person
concerned at the time of occurrence and also the other attendant circumstances.
The minor discrepancies found in the evidence cannot be a reason for rejecting
his evidence. When the evidence of P.W.1 is looked into with the medical
evidence, it was in favour of the prosecution case. In the instant case, though
it was solitary, it was cogent, believable and convincing. It is true, the
witnesses examined for the recovery of M.Os., pursuant to the confessional
statement, have turned hostile. Even assuming that part of the evidence is not
available, the court is of the considered opinion that the evidence of P.W.1
would suffice to accept the case of prosecution and hence, the court has to
agree with the case of prosecution.
10.Now, coming to the question as to the act of the accused, the
prosecution originally started the case with conspiracy, but it has miserably
failed. The lower court has acquitted A-5 and A-6 and in respect of which, no
appeal has been preferred. This court is unable to notice any common intention
among the accused at the time of occurrence. So far as A-3 was concerned, he
caught hold of the deceased and there is nothing to indicate that he had any
intention to share with the other accused that the deceased was to be murdered.
Hence, Section 342 IPC alone would be attracted and the maximum punishment of 1
year R.I. has got to be given. Insofar as A-1, the evidence of P.W.1 is clear
that A-1 cut the deceased on the back side of his neck and thus, he caused fatal
injury, leading to his death. Hence, A-1 has got to be convicted for the offence
under Section 302 IPC and life imprisonment has got to be imposed. So far as A-2
and A-4 are concerned, there is nothing to show that they shared the common
intention at the time of the occurrence. They have caused simple injury by
cutting the deceased on his shoulders, as per the medical evidence. Hence,
Section 324 IPC has got to be attracted and the maximum punishment of 3 years
R.I. has got to be awarded.
11.In the result, the judgment of conviction and sentence imposed on the
appellants are modified. The conviction and sentence imposed on A-1 under
Section 302 IPC are confirmed. A-2 and A-4 are convicted under Section 324 IPC
and they are sentenced to undergo three years R.I. A-3 is convicted under
Section 342 IPC and is sentenced to undergo one year R.I. The sentence already
undergone by the accused Nos.2 to 4 is ordered to be given set off. It is
reported that A-3 in on bail and hence, the Sessions Judge shall take steps to
commit him to prison to undergo the remaining period of sentence, if any. In
all other respects, the judgment of the lower court is set aside. The fine
amounts, if any, paid in respect of Section 148 IPC by the appellants will be
refunded. With the above modification in conviction and sentence, these criminal
appeals are dismissed.
vvk
To
1.The First Additional SEssions Judge,
Tirunelveli.
2.Inspector of Police,
Palayamkottai Police Station,
Tirunelveli District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.