BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/01/2010 CORAM THE HONOURABLE MR. JUSTICE P.MURGESEN and THE HONOURABLE MR. JUSTICE RAJA ELANGO CRL.A.No.1106 OF 2002 1.K.Karthik 2.S.Ganesan ... Appellants/A1 and A2 Vs State by the Inspector of Police, Kumbakonam East Police Station. Crime No.301 of 2000 ... Respondent/Complainant Criminal Appeal filed under Section 374(2) Cr.P.C against the judgment of conviction and sentence passed by the learned Additional District and Sessions Judge cum Chief Judicial Magistrate, Tanjavur at Kumbakonam, dated 24.06.2002, made in S.C.No.128 of 2001. !For Appellants... Mr.R.Shanmugasundaram Senior Counsel for Mr.T.Sekar ^For Respondent... Mr.Issac Manuel Additional Public Prosecutor ***** :JUDGMENT
(Judgment of the Court was passed by P.MURGESEN, J)
This Criminal Appeal is directed against the conviction and sentence
imposed by the learned Additional District and Sessions Judge cum Chief Judicial
Magistrate, Tanjavur at Kumbakonam, dated 24.06.2002, made in S.C.No.128 of 2001
on the appellants/A1 and A2.
2.The case of the prosecution is as under:-
P.W.1-Chakkarapani is the father of deceased Sempu Ravi. P.W.2-Mani @
Manikandan is the brother of Sempu Ravi. P.W.3-Balan @ Nondi Balan is the
resident of the same street in which the victim Sempu Ravi was residing. On
28.08.2000 at 7.30 P.M., there was a quarrel between the 1st accused Karthick
and the deceased Sempu Ravi and they attacked each other. On 29.08.2000 at 1.15
A.M., P.W.14-Kabilan, Head Constable of Kumbakonam East Police Station received
a statement from the first accused Karthick and registered a case against the
deceased Sempu Ravi in crime No.293 of 2000 under Section 324 I.P.C. Ex.P.20 is
the Xerox Copy of the F.I.R. registered in Crime No.293 of 2000. Then on the
same day at 2″ A.M., he received a statement from the deceased Sempu Ravi and
registered a case against the first accused Karthick in Crime No.294 of 2000
under Sections 341 and 324 I.P.C. Ex.P.21 is the Xerox copy of the F.I.R.
registered in Crime No.294 of 2000. After taking treatment for four days,
deceased Sempu Ravi returned to his house from the hospital.
3.On 02.09.2000 at 10.00 P.M., when the deceased Sempu Ravi was talking
with Sekar and P.W.3-Balan @ Nondi Balan in the middle of the Kumbakonan
Chakkarapani Koil Thermutti Street, both the accused came there and attacked the
deceased with knives. On seeing this, P.W.1, the father of the deceased Sempu
Ravi attacked the first accused with wooden log and the first accused sustained
injury. Then the accused also attacked P.W.1 with knives. Then P.W.1 and the
victim were taken to hospital. They were treated by P.W.6-Dr.Shivakumar. He
examined P.W.1 and issued Ex.P.6-A.R. Copy and he found the following injuries:
“1.Cut injury over Left Shoulder 5 x 3 x 2cm.
2.Cut injury Left wrist 10 x 5 x 3cm.”
M.O.9-X-Ray was taken by P.W.7-Dr.Chandrasekaran and he opined that the second
injury sustained by P.W.1 is a grievous injury.
4.On the same day P.W.6 examined the victim Sempu Ravi and issued Ex.P.7-
A.R. Copy. He found the following injuries:
“1.Cut injury over Right side face 15 x 5 x 5cm.
2.Cut injury over Right side Neck 10 x 5 x 3cm.
3.Cut injury over Right Shoulder joint 6 x 3 x 3cm.
4.Cut injury Right Chest 3 x 3 x 2cm.
4.Cut injury Right Chest near nipple 3 x 2 x 2cm.
5.Cut injury centre front neck 15 x 5 x 3cm.
6.Cut injury over centre Abdomen 5 x 3 x 3cm.
7.Abrasion over Right Knee 8 x 2 x 1cm.
8.Abrasion over Left Knee 5 x 3 x 1cm.
9.A stab injury on Right back of chest 3 x 3 x 2cm.
10.Sutured wound over Left Inguinal region.”
5.P.W.10-R.Manoharan was the Head Constable of Kumbakonam East Police
Station. On 03.09.2000 at 3.00 A.M., he received Ex.P.10-Intimation that P.W.1-
Chakkarapani was admitted in the Government Hospital for sustaining injury in a
quarrel and Ex.P.11-Intimation that deceased Sempu Ravi was brought dead to the
hospital. He gave both the intimations to the Sub Inspector of Police.
6.P.W.11-Palanivelu, Sub Inspector of Police of Kumbakonam East Police
Station, on 03.09.2000 at 3.00 A.M., received the intimations from P.W.10 and
went to the hospital and examined P.W.1 and recorded his statement as Ex.P.1 and
registered a case in Crime No.301 of 2000 under Sections 324 and 302 I.P.C.
Ex.P.12 is the printed F.I.R. He also received a complaint from the first
accused and registered a case in Crime No.302 of 2000 under Sections 341 and 324
I.P.C. Ex.P.13 is the printed F.I.R. He sent both the F.I.Rs. to the Court.
Ex.P.9 is the passport given to P.W.9-Thandayutham to hand over the F.I.R. to
7.Then P.W.15-Seenivasan took up the case for investigation and on
03.09.2000 at 6.00 A.M., he visited the scene of occurrence and prepared Ex.P.2-
Observation Mahazar and Ex.P.22-Rough Sketch in the presence of P.W.4-
Balakrishnan, Village Administrative Officer and Batcha. Then he recovered
M.O.6 series – Chappals (Sport King), M.O.7-Blood Stained Karungal Thar and
M.O.8-Ordinary Karungal Thar in the presence of the said witnesses under Ex.P.3-
Mahazar. Then he went to the Kumbakonam Government Hospital at 8.00 A.M. and
conducted inquest over the body of the deceased in the presence of Panchayars
and prepared Ex.P.24-Inquest Report. Then he recovered M.O.1-4 feet dhoti (Brown
Colour and Red colour border) and M.O.2-White Colour Aeroslak Shirt with GMK
Kumbakonam Label from P.W.1 and M.O.3-T.C. White Colour Full Hand Shirt from the
body of the deceased under Ex.P.23-Form 95. Then he sent the body of the
deceased for conducting postmortem through P.W.13-Muthusamy, Police Constable.
8.Postmortem was conducted on the body of the deceased by P.W.8-
Dr.Damodaran. He examined the body of the deceased and he gave Ex.P.8-postmortem
certificate. On examination he found the following the following injuries:
“External Injuries: 1) An incised wound, behind the Right ear 7 x 2 x 1cm.
2) An incised wound just below the angle of Right mandible 3 x 0.5 x 1cm.
3) An incised wound over the Right side of the chin 5 x 2 x 2cm.
4) An incised wound over the Suprasternal notch 3 x 0.5 x 0.5cm.
5) An incised wound over the Right shoulder 2.5 x 0.5 x 0.5cm.
6) An incised wound 2cm above the Right nipple 0.5 x 0.5 x 0.5cm.
7) An incised wound 2cm above and medial to Right nipple 0.5 x 0.5 x
8) A stab wound over the epigastrium 1cm x 1cm x 6cm.
9) An abrasion (Graze) just below the Right knee joint 4cm x 2cm.
10) An abrasion (Graze) just below the Left Knee joint 2cm x 2cm.
11) An incised wound 1 x 0.5 x 1cm seen 7cm medial to the upper border of
the Left scapula.
12) A stab wound 2cm x 0.5cm x 5cm seen 3cm medial to the middle of the
medial border of Right Scapula.
13) A stab wound 2cm x 0.5cm x 5cm seen just below the injurior border of
the Right scapula.
14) An incised wound 2 x 0.5 x 1cm seen 3cm below the origin of the Left
15. A sutured wound (3 Sutures) seen over the Left inguinal region.”
9.After postmortem, P.W.13 recovered M.O.10-4 feet dhoti (Red colour
border) and M.O.11-Jatti from the body of the deceased and handed over the same
to the investigating officer through Ex.P.19-Special Report.
10.On 06.09.2000 at 9.00 A.M., P.W.15 arrested A2-Ganesan and recorded his
voluntary confession statement in the presence of P.W.5-Ganesan and Murugan. The
admissible portion of the confession statement of A2 is Ex.P.4. On the basis of
the confession statement, he recovered M.O.4-Knife (Yellow Colour Handle) and
M.O.5-Knife (Brass Handle) under Ex.P.5-Mahazar. On the same day at 13.30
hours, he arrested A1-Karthick in front of the hospital. Then he handed over the
accused to judicial custody and the material objects to the Court.
11.On 29.09.2000, P.W.15 sent Ex.P.14-Requisition letter to the Court for
sending the material objects for conducting chemical examination. Based on that
Judicial Magistrate sent a requisition letter to the Forensic Laboratory.
Ex.P.15 is the office copy of the requisition letter. P.W.12-Ramanathan is the
Head Clerk of the Judicial Magistrate Court. Ex.P.16 is the Biologist Report,
Ex.P.17 is the Chemical Analyst Report and Ex.P.18 is the Serological Report
received by the Court.
12.After enquiring the witnesses and after completing the investigation,
on 26.12.2000, P.W.15 filed charge sheet against the accused under Sections 302
and 307 of I.P.C. He also enquired into Crime No.302 of 2000 under Section 341
and 324 I.P.C. registered on the basis of the complaint given by the first
accused and found the same as false and sent Ex.P.25-referred charge sheet to
the Court after sending referral notice to the first accused.
13.Before the trial Court, P.Ws.1 to 15 were examined and Exs.P.1 to P.25
and M.Os.1 to 11 were marked. All the incriminating pieces of evidence let in by
the prosecution witnesses were put to the accused under Section 313(1) of the
Code of Criminal Procedure questioning the accused, and the accused denied the
same as false. On the side of the accused Ex.D.1 was marked. There was no oral
evidence adduced on the side of the accused.
14.On consideration of the evidence on record, the learned Additional
District and Sessions Judge cum Chief Judicial Magistrate, Thanjavur at
Kumbakonam found the appellants/A1 and A2 guilty under Sections 302 r/w 34 and
326 I.P.C. and sentenced each of them to undergo life imprisonment and to pay a
fine of Rs.5,000/- each in default to undergo Rigorous Imprisonment for a period
of one year each for the offence under Section 302 r/w 34 and sentenced each of
them to undergo rigorous imprisonment for a period of 5 years and to pay a fine
of Rs.5,000/- each in default to undergo Rigorous Imprisonment for a period of
six months each for the offence under Section 326 I.P.C.
15.Challenging the judgment of the learned Additional District and
Sessions Judge cum Chief Judicial Magistrate, Tanjavur at Kumbakonam, the
present Criminal Appeal has been filed by the appellants/A1 and A2.
16.Now the question that needs to be answered in this appeal is whether
the appellants/A1 and A2 could be held guilty under Sections 302 r/w 34 and 326
17.P.W.1-Chakkarapani is the father of the deceased Sempu Ravi. P.W.2-
Mani @ Manikandan is the brother of the deceased Sempu Ravi. P.W.3-Balan @
Nondi Balan is the resident in the same street in which the deceased was living.
The relationship between the parties are not cordial. On 28.08.2000 at 7.30
P.M., there was a quarrel between the victim Sempu Ravi and the first accused
Karthick. So, both the parties have lodged a complaint as against each other.
Ex.P.20 would show that a complaint was given by the first accused against the
deceased Sempu Ravi, which was registered in Crime No.293 of 2000 under Section
324 I.P.C. Ex.P.21 would show that a complaint was given by the deceased Sempu
Ravi against the first accused, which was registered in Crime No.294 of 2000
under Sections 341 and 324 I.P.C.
18.On the fateful day i.e., on 02.09.2000 at 10.00 P.M., when the deceased
was talking with P.W.3 and Ravi near his house, the occurrence took place. At
the time there was light, which was spoken by P.W.1. Further, the presence of
light is not disputed. According to the prosecution, the accused attacked the
deceased with knives and P.W.1, the father of the victim intervened and attacked
the first accused with wooden log and the first accused also sustained injuries.
19.Learned Senior Counsel appearing for the appellants would submit that
the complainant parties are the aggressors and only in retaliation the accused
attacked the victim. The stand of the defence cannot be true because a
complaint was given by the first accused and the same was registered in Crime
No.302 of 2000 under Sections 341 and 324 I.P.C., which would show that the
first accused claimed that he was assaulted by P.W.1 and when Sempu Ravi
attempted to stab him, he snatched the knife from Ravi and he stabbed Sempu Ravi
with knife and the another accused Ganesan also stabbed him with knife. On the
examination of the accused under Section 313(1) Cr.P.C., first accused gave a
statement which would show that when the accused were coming near Native High
School, the first accused was attacked by P.W.1 with wooden log and Sempu Ravi
attacked him with knife. When he attempted to stop him from attacking, there was
a scuffle and both of them rolled and due to that the victim sustained injury.
The statement of the first accused is contrary to the complaint given in Crime
No.302 of 2000. The evidence of P.Ws.1 and 2 would show that the victim was
attacked by the accused, so P.W.1 came there and attacked the first accused with
wooden log. When a father on seeing his son attacked by somebody, naturally he
would rush to rescue his son when he is in danger. Further, the occurrence took
place near the house of the victim. This would go to show that only the accused
are the aggressors.
20.Further, the learned counsel for the appellants would submit that P.W.3
is the friend of the victim, so his evidence has to be rejected. The evidence
of P.W.3 cannot be rejected merely because he is the friend of the deceased and
he was residing in the same street in which the deceased was residing. Further,
the learned counsel would submit that P.W.3 did not spoke about the attack on
the first accused by P.W.1. P.W.1 himself admitted that he attacked the first
accused. So the evidence of P.W.3 cannot be rejected because he has not spoken
about the attack made on the first accused by P.W.1. Moreover the occurrence is
true and P.W.3 saw the occurrence in the sodium light and after the occurrence
he left the scene of occurrence. If really, P.W.3 is the friend of the
deceased, certainly he would have taken the victim to the hospital. But he has
not done so. This would go to show that he is not interested in the victim.
So, on careful consideration of the evidence of P.Ws.1 to 3, this Court is of
the considered view that they are speaking the truth and there is no reason to
reject their evidence.
21.The occurrence took place near the house of the victim. Though in
313(1) questioning the first accused claimed that the victim sustained injuries
due to scuffling, 15 injuries were caused on the victim. This would go to show
that the first accused is not speaking the truth. The second accused also
attacked the deceased. So, it is clear that both the accused got have intention
to murder the accused because there was previous enmity between the victim and
the first accused. Further, criminal cases are pending against each of them
based on the complaint given by them. So, the accused had intention to murder
the victim and accordingly they murdered the victim and caused grievous injury
to P.W.1. So, we find no reason to interfere with the well reasoned finding of
the trial Court. Hence, there is no merit in the appeal and the same is liable
to be dismissed.
22.Accordingly, the Criminal Appeal is dismissed and the conviction of the
appellants/A1 and A4 under Section 302 r/w 34 and 326 I.P.C. by the Trial Court
is confirmed. The period of imprisonment already undergone by the appellant/A1
and A2 shall be given
set off. The sentences shall run concurrently. The respondent is directed to
take steps to procure the accused for undergoing remaining period of sentence.
1.The Additional District and Sessions Judge
cum Chief Judicial Magistrate,
Tanjavur at Kumbakonam.
2.The Inspector of Police,
Kumbakonam East Police Station.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,