BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08/04/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.No.156 of 2007 and Crl.A.No.309 of 2007 1.J.Chezhian 2.Elian alias Ezhilan .. Appellants/A2& A3 in C.A.No.156/2007 1.Ravi .. Appellants/A4 and A6 in 2.Anton C.A.No.1159/2000 Vs. State represented by Inspector of Police, Uvari Police Station, Tirunelveli District. (Crime No.27 of 2001) .. Respondent in
the above appeals.
PRAYER
These criminal appeals have been preferred under Section 374 (2) Cr.P.C
against the judgment dated 28.02.2007 made in S.C.No.237 of 2004 by the
Additional Sessions Court (Fast Track Court No.2), Tirunelveli.
!For Appellants in
C.A.No.156/2007 ... Mr.G.R.Edmund
for Mr.K.Vinayagam
For Appellants in
C.A.No.309/2007 ... Mr.V.Kathirvelu
^For Respondent ... Mr.N.Senthurpandian,
Addl.Public Prosecutor
:COMMON JUDGMENT
(The judgment of the court was
made by M.CHOCKALINGAM, J)
This judgment shall govern these two appeals viz., C.A.Nos.156 and 309 of
2007. These appeals challenge the judgment of the Additional Sessions Division,
Tirunelveli dated 28.2.2007 made in S.C.No.237 of 2004 whereby A.2, A.3, who are
the appellants in the first appeal, and A.4 and A.6, who are the appellants in
the second appeal, along with four others stood charged and tried for the
following charges:-
1st charge : A.1 to A.8 u/s. 148 IPC
2nd charge : A.1 u/s. 3 and 5 of the Indian
Explosives and
Substance Act 1908
3rd charge : A.1 to A.7 u/s. 302 IPC
4th charge : A.1 to A.7 u/s. 341 IPC
5th charge : A.1 to A.7 u/s. 302 IPC
6th charge : A.1 to A.7 u/s. 341 IPC
7th charge : A.1 to A.7 u/s. 302 IPC
8th charge : A.8 u/s.302 r/w 149 IPC
On trial, the trial Court acquitted A.1, A.5, A.7 and A.8 of all the charges.
However, A.2, A.3, A.4 and A.6 were found guilty of the charges and each of them
have been convicted under sections 148, 341 IPC (2) Counts and 302 IPC (3
counts); and awarded one year rigorous imprisonment each under section 148 IPC;
each one month rigorous imprisonment for each counts under Section 341 IPC; and
each life imprisonment and fine of Rs.5,000/- in default to undergo two years
rigorous imprisonment for 3 counts under Section 302 IPC.
2. Sans of unnecessary details, the case of the prosecution can be stated
thus:-
(1) PW.1 and PW.2 are the cousins of all the three deceased. The deceased
James, Charles and Benedict are brothers. PW.3 and PW.4 are the wives of PW.1
and PW.2 respectively.
(ii) The father of A.1, a few years prior to the occurrence was murdered
in which there was accusation made against PW.1 and PW.2 and the deceased. On
trial, they were acquitted of the charges. Aggrieved over the same, the accused
have committed the instant crime, according to the prosecution.
(iii) On the date of occurrence i.e. on 3.3.2001 at about 12.00 noon, PW.1
to PW.5 and all the three deceased James, Charles and Benedict stood chatting in
front of a fish market. At that time, A.1 armed with country bombs and all
others armed with swords and knives came to the place of occurrence. It was
A.1, who threw country bombs on the deceased. All the accused first surrounded
the first deceased Benedict and all of them indiscriminately cut him and as a
direct consequence, he met an end instantaneously. At that time, the other two
deceased James and Charles, in order to escape, were running towards their
coastal area. All the accused chased them. At first, they attacked Charles
indiscriminately and caused his death and following the same, they also cut
James indiscriminately and caused his death. Thus, all the three deceased were
done to death at the spot. After the occurrence was over, all the accused fled
away from the place of occurrence. The entire incident was witnessed by PW.1 to
PW.5 and PW.9.
(iv) PW.1 accompanied by PW.2 proceeded to the respondent police station
and gave Ex.P.1 report. On the strength of Ex.P.1 report, PW.13 the Sub-
Inspector of Police, who was on duty on 3.3.2001, registered a case in Crime
No.27/2001 under sections 147, 148, 302 of the I.P.C and sections 3 and 5 of the
Indian Explosives and Substance Act. He prepared a Printed F.I.R., which was
marked as Ex.P.24. Ex.P.24 along with Ex.P.1 report was sent to the Judicial
Magistrate, Valliyoor through a Grade I Constable.
(v) On receipt of the copy of the F.I.R., PW.17 the Inspector of Police,
took up the investigation, proceeded to the scene of occurrence, made an
inspection in the presence of witnesses and prepared an Observation Mahazar
Ex.P.19 and also a rough sketch Ex.P.34. In the presence of witnesses and
panchayatdars, he conducted inquest on the dead body of Benedict, James and
Charles and prepared inquest reports Exs.P.35, P.36 and P.37 in respect of the
respective deceased. He recovered bloodstained earth MO.10 and sample earth
MO.11 from the place where Benedict was done to death; bloodstained earth MO.15
and sample earth MO.16 from the place where James was done to death and
bloodstained earth MO.17 and sample earth MO.18 from the place where Charles was
done to death. He also recovered other material objects available from the place
of occurrence under a cover of mahazar.
(vi) Following the inquests, the dead bodies of all the deceased were sent
for the purpose of autopsy. PW.14, Doctor, attached to Radhapuram Government
Hospital, on receipt of requisition along with three dead bodies, conducted
autopsy on all the three dead bodies and has given Post-Mortem Certificates
under Exs.P.26, P.28 and P.30 wherein he has opined that all the deceased would
appear to have died of shock and haemorrhage due to injuries sustained, about 20
hours prior to autopsy.
(vii) On 5.3.2001, on an information, PW.7, the Inspector of Police,
arrested A.1 to A.7 including the absconding accused, Ramesh in the presence of
witnesses. During the course of investigation, A.1 to A.7 volunteered to give
confessional statements separately and the same were recorded separately in the
presence of witnesses and the admissible part of that confessional statements
were marked as Ex.P.2 to Exs.P.7 and Ex.P.9 respectively. Pursuant to his
confession, A.1 produced a Silver Bucket MO.3, country bombs MO.20 and they were
seized under a cover of Mahazar Ex.P.10. A.1 also produced a sword MO.4, which
was seized under the cover of mahazar Ex.P.11. Pursuant to his confession, A.2
produced a Sword MO.5, which was seized by the Investigating officer under cover
of mahazar Ex.P.12. Pursuant to his confession, A.3 produced a Sword MO.6,
which was seized by the Investigating officer under a cover of mahazar Ex.P.12.
Pursuant to his confession, A.4 produced a Sword MO.8, which was seized by the
Investigating officer under a cover of mahazar Ex.P.15. Pursuant to his
confession, A.6 produced a Sword MO.9, which was seized by the Investigating
officer under cover of mahazar Ex.P.16. Pursuant to his confession, A.5
produced a Sword MO.5, which was seized by the Investigating officer under cover
of mahazar Ex.P.17. Pursuant to his confession, A.7 produced a Vettukathi
MO.1, which was seized by the Investigating officer under a cover of mahazar
Ex.P.18. He sent all the accused for judicial custody.
(viii) Further investigation was taken up by PW.18. He examined the
witnesses PW.1, PW.2, PW.3, PW.4, PW.5, PW.7, PW.8, PW.11 and PW.12 and recorded
their statements. On 3.4.2001, A.8 was arrested in the presence of witnesses
and his statement was recorded and he was also sent for judicial remand.
(ix) All the material objects recovered from the place of occurrence, from
the dead bodies of the deceased and the Material Objects recovered from the
accused, were sent for chemical analysis pursuant to a requisition Ex.P.42,
given by the Investigating Officer to the concerned Judicial Magistrate and they
were subjected to Chemical Analysis by the Forensic Sciences Department on a
requisition made by the Court and gave two certificates viz., Chemical analysis
report Ex.P.46, and Serologist report Ex.P.47.
(x) Followed by PW.18, PW.19 took up further investigation, who has filed
the final report before the Judicial Magistrate, Valliyoor, which in turn,
committed the case to the Court of Sessions and necessary charges were framed.
3. In order to substantiate the charges, at the time of trial, the
prosecution examined 19 witnesses and relied on 48 exhibits and 44 MOs. 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. They
denied them as false. No defence witness was examined. After hearing the
arguments of the counsel and looking into the materials available meticulously,
the lower court, took the view that the prosecution has proved its case beyond
reasonable doubts insofar as A.2, A.3, A.4 and A.6 and awarded imprisonment as
referred to above. But, the lower Court acquitted the other accused viz., A.1,
A.5, A.7 and A.8 of the entire charges. Hence, these two appeals at the
instance of A.2, A.3, A.4 and A.6.
4. Advancing their arguments on behalf of the appellants, Mr. Edward,
learned counsel appearing for A.2 and A.3 and Mr. V.Kathirvelu, learned counsel
appearing for A.4 and A.6 made the following submissions:-
(i) In the instant case, the occurrence had taken place, according to the
prosecution, at about 12.00 noon on 3.3.2001. Though a number of witnesses
viz., PW.1 to PW.4 and PW.9 were marched as witnesses, PW.9 has turned hostile.
Insofar as PW.1 to PW.4, they could not have been in the place of occurrence for
more reasons than one. PW.1 and PW.2 are the brothers. PW.3 and PW.4 are their
wives respectively. The conduct of PW.1 and PW.2 would clearly indicate that
they could not have been at the place of occurrence. In their evidence, they
have categorically stated that all the three deceased were surrounded by eight
persons at a time and indiscriminately cut the deceased. PW.1 and PW.2 were
unable to narrate the overt-acts attributed to each of the accused. The overt-
acts attributed to those accused at the time of evidence by the witnesses, were
not spelt out in the earliest document i.e. Ex.P.1, which came into existence
within 30 minutes after the occurrence.
(ii) Insofar as PW.3 and PW.4, who would claim to be the occurrence
witnesses, according to them, immediately after the occurrence, they went to
their respective homes. The natural conduct of the witnesses, who are the wives
of the cousins of the deceased, should be to go over to the house of the
deceased and inform to their family members, but not done so. But, they went to
their respective homes. All these would indicate that they could not have been
at the place of occurrence at all.
(iii) Further, in the instant case, the F.I.R. could not have come into
existence as put-forth by the prosecution at about 12.30 p.m., on the date of
occurrence within 30 minutes, after the occurrence was over, as the police
station was situated 3 Kms away from the place of occurrence.
(iv) Added further, the F.I.R. though came into existence by 12.30 p.m.,
it has reached the Judicial Magistrate concerned on 3.3.2001 at about 9.15 p.m.,
after a delay of 8 hours. This would be indicative of the fact that F.I.R.
could not have come into existence as put-forth by the prosecution.
(v) Though the inquest, which were claimed to have been conducted by the
investigating officer, between 2.00 p.m., and 7.00 p.m., on 3.3.2001 itself in
respect of the three dead bodies, the inquest reports reached the Court on the
next day at about 5.00 p.m., thus, there is delay of 26 hours. If the inquests
have been conducted as claimed by the investigating officer, there is no reason
for the inquest reports to reach the Court after 26 hours.
(vi) Added further, the learned counsel that the entire commencement of
the occurrence, according to the witnesses, was actually after A.1 hurling
country bombs on one of the accused. But, at the time of evidence, PW.1 has
stated that A.1 also cut the deceased. But, the lower Court was not prepared to
accept his evidence. Apart from that, once the evidence of all the eye-
witnesses were rejected in respect of the other accused, it is equally
applicable to the present appellants also.
(vii) As could be seen from the evidence, PW.1 to PW.4, the eye-witnesses,
at the time of cross-examination have categorically deposed that they could not
give correct count of inflicts on the deceased made by each of the accused.
(viii) Further, the names of PW.3 and PW.4 were not found place in the
F.I.R.,. They are the wives of PW.1 and PW.2. If the F.I.R. has come into
existence as put-forth by the prosecution, there is no impediment for mentioning
the names of PW.3 and PW.4 but not stated so. A perusal of the evidence of PW.3
and PW.4, would cast a doubt whether they could have been in the place of
occurrence. According to PW.3 and PW.4, they went to the place of occurrence
immediately after hearing a noise but PW.1 and PW.2 were not found at the place
of occurrence. This would indicate that the occurrence could have taken place
much earlier. It is true, the deceased were murdered but the prosecution has
miserably failed to bring home the nexus between the accused and the crime in
question.
(ix) In the instant case, all those recoveries pursuant to the alleged
confessional statement were nothing but a false introduction.
(x) Though the prosecution came forward with the statement that A.1
committed an offence under the Indian Explosives and Substance Act for
possessing country bombs and also using the same in the occurrence, the lower
Court has thoroughly disbelieved the evidence of the eye-witnesses. If to be
so, the evidences are nothing but an imagination of the witnesses. It is true,
all the entire family members of the accused were roped in the case. A.1 to A.3
are brothers and A.8 is their mother. The lower Court has clearly pointed out
the reasons for acquittal of A.1, A.5, A.7 and A.8 and those reasons are equally
applicable to the present appellants also.
(xi) According to the prosecution, the occurrence had taken place at abut
12.00 noon on 3.3.2001. The post-mortem had commenced at about 9.00 a.m.,. The
Doctor has given his opinion that the deceased would have died about 20 hours
prior to autopsy. If to be so, the occurrence should have taken place, much
earlier than the alleged time of occurrence, viz., 12.00 noon on the date of
occurrence.
(xii) The lower Court should have disbelieved their evidence since the
eye-witnesses are all closely related to the deceased also. If the test of
careful scrutiny is applied, the lower Court should have rejected their evidence
in toto but it found the appellants guilty and hence, they are entitled for
acquittal in the hands of this Court.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions.
6. The Court paid its utmost attention to the submissions and made a
thorough scrutiny on the entire materials available on record.
7. It is not a fact in controversy that three persons viz., Benedict,
James and Charles were done to death in the instant case on 3.3.2001 at 12.00
noon. Following the inquests made by PW.17 the Investigating Officer, all the
three dead bodies were subjected to post-mortem by PW.14 Doctor, who has given
post mortem certificates Exs.P.26, P.28 and P.30 respectively wherein he has
opined that all the three deceased died out of shock and haemorrhage due to
injuries sustained. The fact that all the three deceased died out of homicidal
violence was never questioned by the appellants at any stage of the proceedings
before the lower Court and hence, it has got to be recorded so.
8. In order to substantiate the charges levelled against all the accused
including one absconding accused Ramesh, the prosecution examined five witnesses
as the occurrence witnesses, who were PW.1 to PW.4 and PW.9. Out of whom, PW.9
turned hostile. However, the prosecution to its advantage had the evidence of
PW.1 to PW.4 as the eye-witnesses. It is true that PW.1 and PW.2 are the
brothers and they are the cousin brothers of the deceased and the three deceased
were brothers. PW.3 and PW.4 are the wives of PW.1 and PW.2 respectively and
thus, it would be quite clear that they are closely related to each other. It
is a settled law that merely on the relationship of the witnesses with the
deceased, their evidence can not be discarded. All the eye-witnesses have
spoken in one voice that the assailants were the accused. At the time of
occurrence, these accused came with a common object and in that process, the
accused surrounded all these three deceased and attacked one after another and
brought their end.
9. Originally, based on the earliest document Ex.P.1, the case was
registered at about 12.30 p.m. i.e. within half an hour after the occurrence was
over. It is pertinent to point out that Ex.P.1, which has come into existence
much earlier, contains the names of PW.3 and PW.4 and the accused Nos.2, 3, 4
and 6 who are the appellants herein.
10. F.I.R. was despatched to the Court through a Head Constable No.1335.
In order to explain the delay in reaching the Court, he was the only competent
person. He was not alive to be examined in the Court at that time. At this
juncture, it is pertinent to point out that PW.1, who was the author of Ex.P.1
has been examined and also PW.13, the Sub-Inspector of Police who has registered
the case has also been examined. According to PW.1 and PW.2, immediately after
the occurrence was over, they reached the respondent police station, which was 3
kms away from the place of occurrence and gave a report, which was reduced into
writing by PW.13 and the case came to be registered and the names of A.2, A.3,
A.4 and A.6 were found place in the F.I.R.,. The lower Court has marshalled the
evidence proper.
11. Insofar as A.1, the lower Court has not found him guilty because the
evidence was insufficient. Insofar as the charge that he threw country bombs,
the evidence produced, in the opinion of the Court, was insufficient and
further the F.I.R. did not speak about A.1 having any sword at the time of
occurrence. The fact that he also joined others in attacking the deceased could
not be believed. Therefore, the lower Court has acquitted A.1 of the charges.
12. Insofar as A.8, her name does not find place in the F.I.R.,. However,
she has been introduced subsequently. Similarly, the lower Court did not
believe the evidence of the eye-witnesses in respect of A.5 and A.7 also.
Hence, it has recorded an order of acquittal in respect of A.1, A.5, A.7 and A.8
but it can not be stated that these accused/appellants should also be acquitted.
13. Insofar as the inquests, it has been urged by the learned counsel for
the appellants that inquests could not have been conducted as claimed by the
investigator between 2.00p.m., and 5.00p.m., on 3.3.2001, because there was 26
hours delay in reaching the Inquest Reports to the Court concerned. It is
pertinent to point out that no suggestion was put to the investigator
questioning the time of the inquests as claimed by him and thus, the evidence of
the investigator in this regard remains intact. Hence, the evidence of the
investigator that the inquests had been conducted between 2.00 p.m. and 5.00
p.m., on 3.3.2001 has got to be accepted. Merely because there was delay in the
inquest reports reaching the Court, the case of the prosecution can not be
rejected since inquests have been proved to have taken place as put-forth by the
prosecution.
14. For the recovery of weapons of the crime, the prosecution has examined
the mahazar witnesses and they have also spoken to the effect that the weapons
of the crime have been recovered pursuant to the confessional statements given
by the accused. The lower Court has also pointed out the same.
15. The learned counsel for the appellants contended that at the time of
F.I.R., no overt-act has been described, but at the time of evidence, overt-acts
have been described. It is pertinent to point out that, the complaint was
given within 30 minutes after the occurrence was over and it is a case of triple
murder and at that moment, persons were armed with weapons and have attacked the
deceased indiscriminately. The Court has to look into the mental frame of mind
of the witnesses with which they had rushed to the police station to give the
complaint.
16. Further, much comment was made on the conduct of PW.1 to PW.4
commenting that PW.1 and PW.2 did not wait at the place of occurrence and PW.3
and PW.4 immediately rushed to their respective houses. The contention of the
learned counsel for the appellants does not merit
acceptance. Immediately after the occurrence, PW.1 and PW.2 have rushed to the
police station, which was situated 3 kms away from the place of occurrence, to
give the complaint, which would speak to the truth of the case. Insofar as PW.3
and PW.4, who were women folk, on seeing such an occurrence, they got freightend
by the same and in such circumstances, the next option for them would be rushing
to their respective homes. Thus, PW.3 and PW.4 would have gone to their houses.
Hence, the contention that, immediately on seeing the occurrence, they did not
inform to the family members of the deceased and hence, their natural conduct
can not be believed, can not be accepted.
17. Insofar as the medical evidence, it is in full corroboration with the
ocular testimony. The contention of the learned counsel for the appellants that
the time of occurrence as put-forth by the prosecution did not tally with the
medical evidence can not be accepted. According to the prosecution, the
occurrence had taken place at 12.00 noon on 3.3.2001 and the post-mortem was
conducted at 9.00 a.m. on 4.3.2001. The medical person has given a certificate
to the effect that the death would have happened about 20 hours prior to the
autopsy and a slighter variation is possible. In such circumstances, it can not
be stated that occurrence time did not tally with the medical evidence.
18. The lower Court has marshalled the evidence proper. Insofar as the
acquittal part, it has given sound and acceptable reasons for recording the
judgment of acquittal. Insofar as A.2, A.3, A.4 and A.6, it has clearly pointed
out the reasons to accept the evidence of the eye-witnesses, which in the
considered opinion of the Court, do not require any interference either
factually or legally. Thus, the prosecution has brought home the guilt of the
appellants herein. The judgment of the lower Court has got to be sustained and
accordingly, it is sustained. Both the Criminal Appeals fail and the same are
dismissed.
asvm
To
1.The Additional Sessions Court
(Fast Track Court No.2),
Tirunelveli.
2.Inspector of Police,
Uvari Police Station,
Tirunelveli District.
(Crime No.27 of 2001)
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.