BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/04/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.(MD)No.505 of 2006 and Crl.A.(MD)No.129 of 2007 Chidambara Krishnan alias Duraiappa alias Durai ... Appellant in Crl.A.(MD) No.505/2006 / Accused No.3 Maharajan ... Appellant in Crl.A.(MD) No.129/2007 / Accused No.1 Vs. The State rep. by the Inspector of Police, Palayamkottai Police Station, Cr.No.2133 of 2003, Tirunelveli District ... Respondents in both the appeal
COMMON PRAYER
These criminal appeals have been preferred under Sections 374 and
374 (2) Cr.P.C. against the judgment dated 27.09.2006 made in S.C.No.40 of 2004
by the Additional District & Sessions Judge, Fast Track Court No.II,
Tirunelveli.
!For Appellant in ... Mr.V.Kathirvelu Crl.A(MD)No.505 of 2006 For Appellant in ... Mr.S.Palanivelayutham Crl.A(MD)No.129 of 2007 ^For Respondents ... Mr.P.N.Pandidurai, A.P.P. :COMMON JUDGMENT
(The judgment of the court was made by S.PALANIVELU, J.)
These criminal appeals have been preferred under Sections 374 and
374 (2) Cr.P.C. against the judgment dated 27.09.2006 made in S.C.No.40 of 2004
by the Additional District & Sessions Judge, Fast Track Court No.II,
Tirunelveli.
2. The trial Court found accused Nos.1,2 and 3 guilty under Section
302 I.P.C. and sentenced them each to undergo imprisonment for life and also to
pay a fine of Rs.10,000/- each, in default to undergo rigorous imprisonment for
three years each and they have also been found guilty under Section 392 read
with 397 (2 counts) and sentenced them to undergo rigorous imprisonment for
seven years each and also to pay a fine of Rs.2000/- each, in default to undergo
rigorous imprisonment for two years. All the said sentences have been directed
to run concurrently. Since, the fourth accused was found guilty under Section
411 I.P.C., he has been sentenced to undergo rigorous imprisonment for three
years and also to pay a fine of Rs.3000/- in default to undergo rigorous
imprisonment for two years.
3. Aggrieved against the Judgment of conviction passed by the trial
Court the first and third accused have preferred separate appeals before this
Court.
4. Succinctly portrayed the prosecution case is as follows:
The accused are residents of Ariyanayakipuram in Tirunelveli District.
P.Ws.1 and 2 belong to Virudhunagar, who used to come to Tirunelveli on every
Thursday to collect money from their customers, who were having transactions
with them. The accused 1 to 5 came Tirunelveli Town and entertained an
intention to rob money from P.Ws.1 and 2 and in that course, if necessary they
might also be eliminated.
5. On 14.08.2003 at about 11.55 P.M., P.Ws.1 and 2 and the deceased
Murugarajan boarded the bus by name Ganapathi Transport, bearing registration
No.TN-72, H-9941 in Tirunelveli Town Puttarathi Amman Kovil stop and the bus was
proceeding to the new bus stand in Tirunelveli. On 15.08.2003 at about 00.10
hours, while the bus was proceeding on the south of Speaker Chellapandianar
statue along bye pass road and stopped in B.S.N.L. Office stop, the fourth
accused holding aruvual in his hand, threatened P.W.1 and snatched a rexin bag
containing Rs.1,40,000/- from him. The first and the fourth accused then
assaulted the deceased Murugarajan and asked the bag he kept. The first accused
threatened the driver of the bus by showing aruval to stop the bus. The first
and fourth accused had an intention to do away with Murugarajan and remove him
off the bag containing money. The first and third accused pulled Murugarajan
from the bus. But he did not part with the bag, however the second and fourth
accused cut him on his back with aruval indiscriminately, relieved him off the
bag and fled away from the scene of crime. P.W.1 removed Murugarajan to
Tirunelveli Medical College Hospital at about 00.30 hours, where he was
pronounced dead by the doctor. P.W.1 laid complaint Ex.P1 with Palayamkottai
Police Station.
6. P.W.30, the Inspector of Police received V.H.F. message about the
death of Murugarajan, while he was engaged in patrolling at 01.00 A.M. and came
down to the Police Station. In the Police Station, he received complaint from
P.W.1 and lodged F.I.R., Ex.P33 by registering a case in Crime No.2133 of 2003
under Sections 392 read with 307 and 302 I.P.C. He sent the First Information
Report to the Court and copies to the concerned officials through P.W.25, the
Head Constable.
7. The Inspector of Police P.W.30, proceeded to the scene of crime
at 02.45 A.M. on 15.08.2003 prepared Ex.P34, Observation Mahazar and drew rough
site plan, Ex.P35 in the presence of P.Ws.5 and 6 and another mahazer with
reference to the inner view of the bus Ex.P37. He also recovered chappal under
cover of mahazar Ex.P38. He came to Tirunelveli Medical College Hospital and
held inquest over the dead body of Murugarajan, in the presence of panchayadars
and prepared inquest report, Ex.P39. He recorded the statements of the
witnesses.
8. The doctor, P.W.27, attached to Tirunelveli Medical College
Hospital conducted postmortem over the dead body of the deceased Murugarajan and
issued Ex.P27, Post Mortem Certificate with an opinion that the deceased would
appear to have died of shock and hemorrhage due to multiple heavy cut injuries
about 12 hours prior to postmortem examination. He found as many as 13 cut and
stab injuries on the dead body, which are as follows:
“1) Cut injury right cheek 8 x 1.5 cm x bone deep, extending from the
right side of nose to the right cheek above the moustache line;
2) Heavy cut injury top of right shoulder 14x5cmxbone deep. On further
dissection this would has cut the right collar bone and right side ribs 1 and 2
in their outer aspects;
3) Five cut injuries on the upper part of right side of back, 4 over the
right shoulder blade and one below the shoulder blade. a)4x1x2 cm; b)
7.5x3cmx3cm; c)10x4cmx4cm. On further dissection it has entered the right
pleural cavity and entered the back of right lower lobe of lung causing 2x1x1
injury. d)5×2.5cmx2cm; e)11x4cmx4cm;
4) Cut injury top of right arm, 3x1x1 cm;
5) Cut injury right forearm 13x4cmxbone deep. The underlying muscles,
vessels and radius bone found cut;
6) cut injury on the back of right hand 12x4cmxbone deep. The underlying
muscles vessels, base of thumb, index and middle finger found cut with
corresponding cut injuries on the phalanges of these fingers;
7) Cut injury left forearm near the wrist 6x3cmxbone deep. Underlying
muscles, vessels and radius bone found cut at side.
8) Cut injury aspect of left wrist 4x2x1 cm; transverse cut injury back of
left hand 10×4 cm xbone deep. Underlying muscles vessels, tendons and
metacarpal bones found cut;
9) Cut injury outer aspect of left arm in its upper part 14X3cmx3.5 cm;
10) Vertical cut injury 4x3x2 cm upper part of right side of chest; 4 cm
below the right collar bone (tailing 2 cm towards the collar bone);
11) Transverse linear abrasion left shoulder blade 5×1 cm;
12) Stab injury mid back on the right side 2x1x1 cm, upper end sharp,
lower end blunt;
13) Transverse cut injury back of scalp on the right side 4x1cmxbone
deep”.
9. On 17.08.2003, acting on a tip-off, P.W.30, the Inspector of
Police went to Palayamkottai market area and arrested the first and second
accused in the presence of P.Ws.21 and 23, the Revenue Inspector and the Village
Administrative Officer respectively. Both of them voluntarily gave confession
statements separately, which were recorded in the presence of the said
witnesses. Ex.P12 is the admissible portion of the confession statement given
by the first accused and Ex.P13 is the admissible portion available in the
confession statement recorded from the second accused. The first accused
produced a gold ring with the inscription of letters A.M., which was seized
under cover of mahazar Ex.P14.
10. Both the accused took P.W.30 and the witnesses to Tirunelveli
Nainarkulam market and identified the third and fourth accused. They were
arrested by the Investigating Officer, who also recorded confession statements
given by them on their own accord. Ex.P15 is the admissible portion in the
confession statement of the third accused, by means of which he produced pant,
shirt and cash of Rs.40,000/-, which were seized under cover of mahazar Ex.P18.
Ex.P16 is the admissible portion of the confession statement of the fourth
accused. All the accused identified the fifth accused in Ariyanayakipuram and
he was also arrested by P.W.30 and his confession statement was also recorded.
Ex.P17 is the admissible portion, under which he produced M.O.1, brown colour
bag and cash Rs.40,000/-, which was inside the said bag marked as M.O.13 series
and also a receipt book M.O.3 with name “P.K.T.Kanagavel & Co”. They were
seized under cover of mahazar Ex.P23.
11. The second accused took the police and the witnesses to his
house and produced M.Os.24 and 25 his pant and shirt, M.O.4, a sword with a
cover of 51 cms and also cash Rs.40,000/- marked as M.O.24 series, which were
recovered under cover of mahazar Ex.P19. The first accused from his house
produced M.Os.27 and 28, his pant and shirt, M.O.14, the prescription slip, a
block colour rexin bag M.O.2, cash of Rs.50849/-, M.O.29 series, lion address
notebook M.O.9 and Kozhival aruval M.O.6, which were recovered under the mahazar
Ex.P6.
12. The fourth accused had taken the Investigating Officer and the
witnesses to his house and produced M.Os.11 and 13, his T-shirt and pant, a
kozhival aruval with a length of 44 1/2 c.m., M.O.7 and a cash of Rs.40,000/-
M.O.31 series, which were seized by mahazar Ex.P21 under attestation of the
witnesses. The first accused also produced M.O.12, a copper rod, which was
seized under Attakshi Ex.P22. The accused were sent for judicial custody.
13. The Investigating Officer examined all the concerned witnesses
and recorded their statements including the doctors. He gave requisition Ex.P40
to send the case properties for chemical analysis. Ex.P42 is the Chemistry
Division Report and Ex.P43 is the Biology Division Report. He also examined
P.W.4, the conductor of the bus and seized the invoice of the bus trip sheet,
which was marked as M.O.32. After the autopsy was conducted, the clothes on the
dead body M.Os.33 and 34 were entrusted to the I.O., which were obtained by him
under Form No.95.
14. P.W.28, the Finger Print Expert lifted seven finger prints from
the bus and has given Ex.P29 and Ex.P30 reports, stating that the finger prints
lifted in the bus are tallying with the finger prints of the accused Nos.1 to 4.
15. P.W.26, the Judicial Magistrate No.III, Tirunelveli had
conducted test identification parade in the Central Prison, Palayamkottai. He
adopted the procedures and completed the identification parade and furnished a
report, Ex.P26. He has mentioned in his report that P.W.1 identified the second
and fourth accused, while P.W.2 had identified the first and fourth accused.
16. On completion of the investigation, P.W.30, the Investigating
Officer laid the charge sheet against the accused under Sections 341, 506(ii),
342 read with 397, 302, 120-B and 411 I.P.C.
17. The prosecution before the trial Court marched as many as 30
witnesses and marked 46 documents. The accused examined one witness as D.W.1
and marked one document, viz., Ex.D1, copy of the Accident Register.
18. While all the accused were questioned under Section 313(1)(b)
Cr.P.C. with reference to the discriminating materials available against them in
the prosecution evidence, they denied the complicity in the offence.
Considering and appreciating the oral evidence on record, scrutinizing the
documents and circumstances of this case, the trial Court came out with a
Judgment of conviction, which is under challenge before this Court in these
appeals.
19. The learned counsel for the appellant Chidampara Krishnan @
Duriappa @ Durai, Mr.V.Kathirvelu would contend that the occurrence tookplace
during night hours and even in the bus, there may not be sufficient light to
identify the accused and the evidence of the witnesses are improbable and hence
they could not be relied upon and the evidence would indicate that the witnesses
could not have been present in the scene of crime. It is his further contention
that even in the test identification parade conducted by the Judicial
Magistrate, the accused were not properly identified by P.Ws.1 and 2 and all the
accused had stated before the Judicial Magistrate that the police apprehended
them while they were in their house, took them to the police station and showed
them to the four witnesses and they also took photographs.
20. The learned counsel Mr.Palanivelayutham, who is appearing for the
accused Maharajan argues that while the circumstances are carefully considered,
it could be seen that the First Information Report was lodged belatedly. The
evidence of the prosecution witnesses do not contain truth. The recovery of
material objects including the cash have not been established beyond reasonable
doubt; that P.Ws.21 and 23 are the Government officials and hence they obliged
and that the scientific evidence is also not extending helping hand to the
prosecution.
21. The arguments of the learned Additional Public Prosecutor is heard on
the merits of the case and also on the contentions projected by the learned
counsel for the appellants.
22. It is the case of the prosecution that on 14.08.2003 mid night, the
witnesses P.Ws.1 and 2 along with the deceased Murugarajan boarded Ganapathi
Transport bus in Tirunelveli Town Puttarathi Amman Kovil bus stop and while the
bus was proceeding beyond Speaker Chellapandiyanar statue in Vannarpettai along
bye pass road towards Tirunelveli new bus stand, the accused who were seated,
raised and committed the offences as stated by the witnesses.
23. With reference to the sequence of events of occurrence, the oral
evidence of P.Ws.1 and 2 are identical. They say that after collecting money
from their customers in Tirunelveli Town, they were coming by bus. P.W.1 was
keeping a sum of Rs.1,40,000/- in his bag and the deceased Murugarajan was
having a sum of Rs.70,000/- in a bag kept by him. The occurrence is portrayed
by them that the first and third accused, while the bus was going, went near the
driver and the fourth accused came towards P.W.1 and asked him to give the bag,
which contains the money as well as the receipt book and immediately snatched
away the bag from him. The first accused threatened the driver to stop the bus
and the driver stopped the bus. The third accused asked the deceased
Murugarajan to give him the bag, but he refused, hence he cut him on his left
shoulder. Even then he did not part with the bag. So, the first accused cut
him in his right side shoulder. Inspite of the efforts made by the second and
fourth accused to snatch the bag from Murugarajan, he did not allow it and hence
both of them pulled him by hand outside the bus. Thereafter, the evidence of
P.W.1 proceeds that, all the four accused indiscriminately hacked him with
aruval and stabbed with knife. The evidence of P.W.2 is also on the same line.
It is to be noted that nothing in their chief examinations have been shattered
while they were examined in cross.
24. P.Ws.3 and 4 are the crew of the bus. P.W.3, the driver says that
while he was driving the bus beyond B.S.N.L. Office, one person showed aruval
and asked him to stop the bus. He stopped the bus and left the place. After
five minutes, P.Ws.1 and 2 came and the injured was removed to the infirmary.
P.W.4 speaks as deposed by P.W.3. Both of them turned hostile to the prosecution
and were examined in cross by the prosecution. As far as the oral evidence of
P.Ws.1 and 2 are concerned they are natural, convincing and cogent.
25. The Investigating Officer examined as many as 11 witnesses, P.Ws.8 to
19, who are businessmen in Tirunelveli having transactions with P.Ws.1 and 2 and
the deceased. In their evidence, they have categorically and candidly deposed
that the witnesses P.Ws.1 and 2 and the deceased were having business
transactions with them and on 14.08.2003, they came to meet them and received
the money from them, which were payable by them. By their evidence, it has been
vividly established that prior to the occurrence in Tirunelveli Town, the above
said trio met those witnesses and collected outstanding money.
26. As far as the medical evidence is concerned, the doctor P.W.27, who
has conducted autopsy over the corpse of Murugarajan found as many as 13
injuries and opined that the deceased died of shock and hemorrhage due to
multiple heavy cut injuries about 12 hours prior to postmortem. As regards the
scientific evidence on M.Os. viz., the tarred stones, cotton swab smeared with
blood, which was taken in the scene of crime, the shirts and pants of the
accused, the bags which contained money, the billhooks and the knife used by the
accused, they were subjected to biological examination, chemical examination as
well as the serological analysis. All the articles were found to have contained
‘A’ group of human origin blood, except a cotton swap and a shirt. To
considerable extent, the above said scientific evidence support the versions of
P.Ws.1 and 2.
27. P.W.26, the Judicial Magistrate has taken up the job of conducting
test identification parade. He has followed the settled procedures and came out
with a report Ex.P26. From his evidence, it is shown that P.W.1 had identified
the second and fourth accused while, P.W.2 identified 1 to 4 accused. There is
no circumstance to doubt the conduct of test identification parade and there is
no impediment for this Court to place reliance upon the report Ex.P26.
28. As far as the recovery portion of the case is concerned, the arrest,
recording of confessions statements, production of material objects including
cash by the accused and their seizure have been proved beyond all the reasonable
doubts by the examination of P.Ws.21 and 23. No doubt, both of them are
Government officials. But it is not at all a ground to lay suspicion over their
versions, if truth is discernible from their evidence. There could be no
obstacle to observe that they duly corroborate the oral accounts of prosecution
witnesses. While their cross examinations are carefully gone through by this
Court, nothing is available to discredit their testimonies furnished in their
chief examinations. Hence, the recoveries of the material objects have been
established and they deserve to be accepted.
29. We have heard both sides with rapt attention and paid utmost
consideration to the arguments advanced by them. As adverted to supra, the oral
evidence of P.Ws.1 and 2 are natural, clear and portraying the occurrence.
Their evidence are properly and duly corroborated by other circumstances, viz.,
the recoveries of material objects, scientific evidence, test identification
parade and report produced by the finger print expert. As far as the report of
the finger print expert is concerned, they could not be brushed aside since it
is reliable scientific evidence when no motive or any violation of procedures
was suggested to the finger print expert and smelling rat on it. A conspectus
of all the materials in this case paves way to conclude that the accused were
available in the scene of crime and with the intention of physically eliminating
Murugarajan and committing robbery, they travelled in the bus and they
successfully achieved their object. Sufficient materials are available in this
case to establish the guilt of the accused. We are of the considered view, the
prosecution has succeeded in bringing home the guilt of the accused beyond all
reasonable doubts. The observations and findings of the trial Court in finding
them guilty and convicting them are quite appropriate and hence any interference
with the Judgment of the trial Court is not at all warranted. By upshot of our
above discussion, we do not upset the decision of trial Court. Since, the trial
Court has thoroughly analysed the crux of the case and sentenced the appellants
as per law, its Judgment has to be confirmed. The appeals are devoid of merits.
They suffer dismissal. In fine, both the appeals are dismissed.
smn
To
1.The Additional District & Sessions Judge,
Fast Track Court No.II,
Tirunelveli.
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.