BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/03/2007
CORAM:
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR. JUSTICE G.RAJASURIA
Crl.A.(MD) No.128 of 2005
Crl.A.(MD) No.131 of 2005
1.Durai .. Appellant in Crl.A.
No.128 of 2005
2.Durai alias Sudalai .. 1st appellant in
Crl.A.No.131 of 2005
3.Ramakrishnan
Durai .. 2nd appellant in
Crl.A.No.131 of 2005
vs.
State represented by
Inspector of Police,
Thatchanallur
Tirunelveli District.
Crime No.1516 of 2003 .. Respondent in
both the Appeals
Criminal Appeals filed under Section 374 (2) Cr.P.C against the Judgment
of conviction and sentence dated 28.02.2005 made in S.C.No.42 of 2004 on the
file of the 1st Additional District Sessions Judge, Tirunelveli, Tirunelveli
District.
!Mr.V.Kathirvelu : For appellant in
Crl.A.(MD)No.128 of 2005
Mr.R.Anand : For 1st appellant in
Crl.A.(MD)No.131 of 2005
Mr.R.Appavurathnam : For 2nd appellant in
in Crl.A.(MD)No.131 of 2005
^Mr.P.N.Pandidurai
Addl.Public Prosecutor : For respondent in
both the Appeals
:JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J)
This judgment shall govern both the Criminal Appeal Nos.128 of 2005 and
131 of 2005.
2. The appellants, who are accused Nos. 1 to 3, stood charged, tried for
the offences under Sections 120(b), 341 and 302 r/w 109 IPC and found guilty
under Sections 341 and 302 IPC and awarded one month simple imprisonment under
Section 341 IPC and life imprisonment under Section 302 IPC and the sentence to
run concurrently in a case in S.C.No.42 of 2004 by judgment dated 28.02.2005
by the Sessions Division, First Additional District Court, have brought-forth
these appeals seeking to set aside the conviction and sentence imposed on them.
Criminal Appeal (MD) No.128 of 2005 has been brought-forth by the third accused
while Criminal Appeal (MD) NO.131 of 2005 has been brought-forth by accused No.1
and 2. The fourth accused in the said Sessions Case has been acquitted of all
the charges levelled against her.
3. The short facts necessary for the disposal of the appeals can be stated
thus:
(a) PW.1 is the wife of Sekar since deceased in the incident. Husband of
the fourth accused was murdered. There was accusation against the said Sekar on
that count. A-4 was aggrieved over the said Sekar and hatched up a conspiracy.
(b) On 28.10.2003 at 6.00 p.m., when PW.5 and PW.6 were coming for washing
their clothes towards, a newly Pillaiyar Temple, being constructed, they heard a
noise and they found that A-4 was instructing to A-1 to A-3 to finish the said
Sekar as he had killed her husband, for which, they assured her to finish him
of. PW.5 and PW.6, in turn, informed the same to PW.7.
(c) On 29.10.2003, PW.1 and her husband Sekar went to Keeizhapattam for
seeing a bride for her cousin. At about 4.30 p.m., they reached a workshop of
PW.8, after a while both them were returning to their house by bicycle and at
about 6.30 p.m., when they were coming near “Theneerkulam Water Tank” all these
three accused armed with Aruval waylaid and pushed them down from the bicycle.
Immediately, A-1 cut the said Sekar on the neck, A-2 cut on the face and A-3 cut
on the chest and when PW-1 intervened, they threatened her and she escaped with
a grip of fear and proceeded to the village to inform to PW.2 and PW.3. At
that time, when PW.11 was on patrol duty at Annasalai of Thatchanallur, he was
informed by a third party that one person was lying in a pool of blood
struggling for his life with serious injuries near the place of occurrence.
(d) On coming to know about the same, PW.11 reached over the place and
found the injured with severe injuries and he asked about his name and his
father’s name and phoned over to the respondent police. Immediately, he took
the injured in an auto of PW.4, to the Tirunelveli Medical College and Hospital,
where PW.12 was the Doctor on duty at 7.10 p.m.,. He medically examined the
injured Sekar and noted the injuries sustained by the injured Sekar and prepared
Wound Certificate, which was marked as Ex.P.4.
(e) In the mean time, PW.1 to PW.3 came to the place of occurrence and
they were informed that the injured was taken to the Highground Hospital and
they returned to the hospital.
(f) Thereafter, an intimation was sent to the respondent police from the
hospital and accordingly, PW.19, the Sub Inspector of Police, proceeded to the
Tirunelveli Government Hospital and also recorded the statement from PW.1 and
the same was marked as Ex.P.1.
(g) Apart from that, on receipt of death intimation of the injured Sekar,
which was marked as Ex.P.5, PW.19, the Sub Inspector of Police registered a case
in Crime No.1516/2003 under Section 342, 302 and 120 (b) IPC. The F.I.R. is
Ex.P.14, which was despatched to the Court.
(h) On 29.10.2003, PW.21, the Inspector of Police, on receipt of the copy
of the First Information Report, took up investigation in the crime and
proceeded to the scene of occurrence, made inspection and prepared an
Observation Mahazar Ex.P.16 and Rough Sketch Ex.P.17 in the presence of
witnesses and he recovered the material objects found in the place of the
occurrence. Thereafter, on 30.10.2003, he went to the Government Hospital and
conducted inquest on the dead body of the deceased and prepared an Inquest
Report, which was marked as Ex.P.20. Following the same, the dead body of the
deceased was sent for the purpose of autopsy.
(i) On receipt of the requisition, PW.13 the Doctor, attached to the
Government Hospital, Tirunelveli conducted autopsy on the dead body of the
deceased and found injuries. The doctor issued post-mortem Certificate,
which was marked as Ex.P.6 wherein he opined that the deceased would appear to
have died of shock and haemorrhage due to cumulative effect of heavy cut
injuries in the region of face, head, neck and both upper limbs.
(j) Pending investigation, the accused were arrested on 20.10.2003. All
these three accused came forward to give confessional statements in the presence
of witnesses and the same was recorded separately and the admissible portion of
the confessional statements were marked as Ex.P.20, Ex.P.21 and Ex.P.22
respectively. Pursuant to the admissible portion of the statements, A-1
produced MO.10, A-2 produced MO.11 and A-3 produced MO.13 and they were
recovered under Mahazars Ex.P.11, Ex.P.12 an Ex.P.13 respectively.
(k) On completion of investigation, final report was filed against the
accused and the case was committed to the Court of Sessions and necessary
charges were framed against the accused.
4. In order to substantiate the charges levelled against the accused, the
prosecution marched 21 witnesses, marked 22 Exhibits and 12 MOs. 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 the witnesses. The accused denied them as false. No defence
witness was examined. The trial Court, after hearing the arguments on either
side and on scrutiny of the materials available before it, found the accused 1
to 3 guilty and awarded punishments referred to above and the fourth accused was
acquitted of the charges and hence, these appeals at the instance of the accused
1 to 3.
5. Learned counsel appearing for the first accused/1st appellant in
Crl.A.No.131 of 2005, inter alia submit that, in the instant case PW.1 was the
only eye witness and even according to the prosecution, PW.1 could not have seen
the occurrence at all and hence her evidence should have been rejected. If PW.1
had actually scene the occurrence and, that too, in an occurrence in which her
husband was brutally attacked, she would have gone to the police station or
should have taken the injured to the hospital but she had not done so. It is
pertinent to note that PW.1 went to her native place, which is 1. Kms far away
from the scene of occurrence, by boarding a bus and though she went across the
police station either in the course of going to her native place or going to
the hospital, she had not informed the same to the police. Even PW.2 and PW.3
who were informed of the crime, though came across police station, in the course
of going to hospital, no one had entered the police station and informed the
same. This strong circumstance itself doubts the evidence of PW.1.
6. Added further the learned counsel that according to PW.1, the distance
between the police station and the place of occurrence was only 4 feet,
according to the Investigating Officer, the distance is 3/4th KM and according
to F.I.R, the distance is 1. KM. All would raise a doubt that whether the
occurrence had taken place at all in that area at that time as put-forth by the
prosecution. When the occurrence had taken place in a busy locality, it would
have been witnessed by a number of persons. If it be so, no independent witness
was examined. Apart from that, the trial Court was not prepared to accept the
evidence of the same witness in respect of the conspiracy. In the instant case,
conspiracy was also connected to the motive. When the trial Court had rejected
the evidence of PW.1 as to the conspiracy, the entire evidence edifies the case
of the prosecution as failed and hence, the trial Court should not have accepted
the evidence of PW.1 and on the basis of the same, should not have found the
accused guilty.
7. Added further the learned counsel that, Ex.P.4 is the Wound
Certificate. As could be seen that, it was the Constable PW.11, who had
admitted the deceased Sekar in the Hospital. According to PW.11 Constable, when
he was in patrol at Annasalai of Thatchanallur, in the evening on the date of
occurrence, he was informed of the occurrence by a third person and then, PW.11
went to the scene of occurrence and took the deceased Sekar to the Highground
Hospital and he informed to the Doctor about the occurrence. The person who
informed about the incident to PW.11, should have been examined but he was not
examined in the instant case. These are nothing but a drama enacted for the
purpose of prosecution case, which should have been rejected outrightly by the
trial Court.
8. Added further the learned counsel that it is also highly doubtful
whether the F.I.R would have come into existence as put-forth by the
prosecution. The person who informed about the occurrence to PW.11 was not
examined. Even according to PW.11, he informed the incident to PW.19, the Sub
Inspector of Police, who was coming on the way, when PW.11 was proceeding to
the Hospital. If it be so, a case could have been registered immediately after
the information was given by PW.11 but the case was not registered. All would
go to show that the case came to be registered only after arrival of PW.1 to
PW.3 and with all embellishments, the case registered against A1 to A4 on the
basis of the complaint given by PW.1 as if she had witnessed the incident.
9. Added further the learned counsel that A1 to A3 had no motive. The
lower Court rejected the case of conspiracy and if it be so, the only person who
had got the real motive was A-4 because according to her, her husband was killed
by the deceased Sekar and she was acquitted. In such circumstances, the trial
Court should have rejected the prosecution case outrightly as there was no
motive to the occurrence. Thus, A-1 is entitled for acquittal in the hands of
this Court.
10. Advancing his arguments, learned counsel appearing for the third
accused, would submit that, the name of the third accused does not find place in
the F.I.R. and even according to PW.1, A-3 caused injury on the left side of the
chest with Aruval but there was no corresponding injury either in Accident
Register Copy Ex.P.4 or in the post-mortem Certificate Ex.P.6 and further PW.1
has not correctly accounted for the injuries sustained by the deceased and thus,
PW.1 could not have seen the occurrence at all or A-3 could not have
participated in the occurrence.
11. Added further the learned counsel that no injury was attributed
against A-3 and even as per the post-mortem Certificate, injuries sustained on
the head, neck, face and arms were fatal. As could be seen, A-3 had inflicted
injury on the left chest, which was not fatal and this point has got to be
considered by this Court. Added further the learned counsel that A-3 had no
motive to cause the death of the deceased Sekar.
12. Advancing his arguments, learned counsel appearing for the second
accused, would submit that all the blood stained weapons and Material Objects
were not subjected to chemical analysis, which would be fatal to the prosecution
case. Insofar as A-2 is concerned, he had no motive to commit such crime and
the prosecution has failed to prove the same.
13. Added further the learned counsel that under Section 313 Cr.P.C., A-2
had stated that he was taken from his house at 2.00 a.m. and that his part of
statement was not free from force before the Court. Under the circumstances, A-
2 is entitled for acquittal in the hands of this Court.
14. The Court heard the learned Additional Public Prosecutor appearing for
the State on the above contentions.
15. The Court paid its anxious consideration on the rival submissions made
and also had a thorough scrutiny of the materials available.
16. In the instant case, it is not in controversy that one Sekar, the
husband of PW.1 sustained injuries in the occurrence took place at the time and
at the place as put-forth by the prosecution and the injured was taken to the
Highground hospital, where he was admitted by PW.12 Doctor, following which, he
succumbed to injuries and the case came to be registered under the penal
provisions of murder and the dead body was subjected to post-mortem and the
Doctor, who conducted autopsy opined that he died out of shock and haemorrhage
due to injuries sustained on the neck, face and arms and the prosecution has
proved that the said Sekar died out of homicidal violence. The accused have
also not disputed the cause of death of the deceased either before the trial
Court or before this Court. On the medical evidence, this Court holds that the
deceased died on account of homicidal violence.
17. In order to substantiate the accusation made against these appellants,
the prosecution has examined only one eye witness viz., PW.1. It i also true,
she is the wife of the deceased Sekar. It is a well settled proposition of law
that merely on the ground relationship, the evidence of eye witness, who is a
relative cannot be discarded but where the eye-witness is a close relative of
the deceased, the court has to exercise great care and caution and on careful
scrutiny of the evidence, this Court thoroughly satisfied with the evidence of
PW.1 and the evidence of PW.1 has inspired the confidence of the Court. PW.1
has categorically narrated that on the date of occurrence at 4.30 p.m., both of
them left their house for seeing a bride for her cousin and they went to a
workshop of PW.8, after a while both them were returning to their house, at that
time, all these three accused were waylaid and pushed them down from the cycle.
Immediately, A1- cut the said Sekar on the neck, A-2 cut on the face and A-3 cut
on the chest and when PW-1 intervened, they threatened her and she escaped with
a grip of fear and proceeded to the village and informed to PW.2 and PW.3 and
took them to the spot.
18. The contention put-forth by the learned counsel for the appellants
that PW.1 could not have seen the occurrence, if considered, it remains only for
the purpose of rejection. At the place of occurrence, PW.1 and her husband
Sekar were only two persons. The place of occurrence was a road leading to the
main road from Tirunelveli to Thatchnallur. The contents what is contained in
the Rough Sketch was never disputed; on one side of the road was Kanmoi and
other side was agricultural fields. It would be quite clear that at the time of
occurrence PW.1 and her husband were waylaid and the accused attacked the
deceased with deadly weapons and when she intervened she was also threatened.
It is pertinent to note that she was a woman folk, she was unarmed and was
threatened, under the given circumstances, one would not naturally expect a
woman to be remained at the place of occurrence when she was under a grip of
fear and terror seeing the attack made by the accused with deadly weapons so
naturally she escaped from the place of occurrence and went to bring her
relatives to the spot, which was 1. kms distance from their village. At this
juncture, it is pertinent to note the evidence of PW.8, which says that PW.1 had
accompanied her husband the deceased Sekar. In his evidence PW.8 says that the
deceased Sekar came inside his workshop and he informed him that his wife was
waiting outside and after a while, he came out of the shop and took her with
him.
19. The contention of the learned counsel that immediately after the
occurrence she should have gone to the police station, which was situated on the
way and even PW.2 and PW.3 had not gone to the police station cannot be
countenanced for the simple reason that already she was under a grip of fear and
terror and nobody was to help her and hence she went to her village to bring her
relatives to the spot and accordingly, PW.1, PW.2 and PW.3 came to the spot but
they were informed that the injured was taken to the hospital and immediately,
they rushed to the hospital. In his evidence of PW.11 Constable, he has deposed
that on the date of occurrence when he was on patrol duty, was informed by a
third person that one person with serious injuries was lying in a pool of blood
at the place of occurrence. Immediately, he came to the spot, saw the injured
in a serious condition and asked his name and his father’s name and he took him
to the hospital. The injured said his name as Sekar and his father’s name
alternatively as Anthony, Rajamani. Ex.P.4 the A.R.Copy, which was prepared by
PW.12 Doctor, who examined the injured in the hospital at the time of admitting,
also finds the name of the injured and name of his father as deposed by PW.11.
Naturally, the wound Certificate Ex.P.4 is without any embellishments.
Thereafter, PW.1 brought PW.2 and PW.3 to the place of occurrence and
immediately, they returned to the hospital where the injured was admitted and
the Sub Inspector of Police recorded the statement from PW.1, which is the basis
for the whole case and the case case came to be registered straight away for the
offence u/s.302 IPC since the said Sekar already died. In the instant case, the
evidence of PW.1 viewing from in any corner, cannot be seen with any doubt and
the way in which she has narrated the entire evidence in a graphical manner
cannot be narrated by a person who had not seen the occurrence. Thus, the
contention put-forth by the learned counsel for the appellants has got to be
rejected.
20. With regard to the contention, put-forth by the learned counsel for
the appellants that medical evidence did not corroborate the ocular testimony,
cannot be countenanced. According to PW.1, the first accused attacked the
deceased Sekar on the neck, the second accused on the face and the third accused
on the chest. Corresponding injuries are found in the Accident Register Copy
Ex.P.4 as well as in the post-mortem Certificate Ex.P.6. With regard to the
contention that PW.1 did not account for all other injuries, it is pertinent to
note that in a given situation when her husband was attacked by the three
accused armed with aruvals and her husband was unarmed, no reasonable man or
prudent man would expect her to count the attack and injuries sustained. She
has naturally spoken about the attack and the injuries sustained by the
deceased. The medical evidence canvassed by PW.12 and the post-mortem
certificate would clearly in support of the prosecution case. The evidence of
PW.1 has inspired the confidence of the Court.
21. Added further the learned counsel for the appellants that the arrest
of the three accused and their confessional statements Exs.P.20, 21 and 22
respectively and pursuant to their confession, recovery of MOs.10, 11 and 12 are
subsequent introductions in the case and the Material Objects recovered were not
subjected to chemical analysis, which is fatal to the prosecution case.
22. It is a flaw committed by the Investigating Officer. In a given case
like this, the Investigating Officer must have sent the Material objects for
chemicals analysis but he had failed to do so. At the same time, the Court is
of the considered opinion that, this part of non-examination of the Material
Objects by the medical evidence itself will not be fatal to the prosecution
case. Since, in the instant case, the prosecution has rested its case not only
on circumstantial evidence but also on the direct evidence through PW.1, which
has inspired the confidence of the Court as narrated above. In the
investigation process, the prosecution has proved that the accused had waylaid
the deceased and attacked him with aruvals and caused his death.
23. Coming to the question of act of the accused, the contention put-forth
by the learned counsel for the third accused that the accused had no motive and
the third accused inflicted injury on the chest and this injury is not fatal,
has got to be considered by this Court. The Court is of the considered opinion
that, in the instant case, all the three accused waylaid the deceased, armed
with aruval attacked him in a common intention to cause death and thus, they
shared the act of committing the crime.
24. The question of grievous injury or simple injury, fatal or non-fatal,
vital or not vital organs will not arise in this case, when all the three
accused, who were the appellants herein gathered together and shared the common
intention of causing death and so caused the death of the deceased Sekar.
25. The trial Court has perfectly correct in finding the three accused
guilty and awarding the punishments referred to above. The Court without
disturbing the judgment of the trial Court either on facts or legal proposition
can confirm the same and accordingly confirmed. Both the appeal fail and the
same are dismissed.
asvm
To
1.The 1st Additional District Judge,
Tirunelveli, Tirunelveli District.
2.Inspector of Police,
Thatchanallur
Tirunelveli District.
(Crime No.1516 of 2003)
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.