BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 20/07/2010 Coram The Honourable Mr.Justice M.CHOCKALINGAM and The Honourable Mr.Justice M.DURAISWAMY Criminal Appeal (MD) No.250 of 2009 Criminal Appeal (MD) No.270 of 2009 and Criminal Appeal (MD) No.306 of 2009 Muniyandi, S/o.Vellaian ... Appellant in Crl.A.250/2009/ Accused No.5 1.Kannan, S/o.Ponniah 2.Gopal, S/o.Kilavan 3.Ponnusamy,S/o.Karuppazhagu 4.Sevugaraj, S/o.Karuppazhagu ... Appellants in Crl.A.270/2009/ A-1, A-2, A-6 & A-7 1.Mayakrishnan, S/o.Muthukrishnan 2.Tamilselvan ... Appellants in Crl.A.306/2009/ Accused Nos.3 & 4 vs The State, rep.by The Inspector of Police, Rajapalayam South Police Station, Virudhunagar District. ... Respondent in all /
(Crime No.857/2005) the appeals/Complainant
Appeals under Section 374 of the Code of Criminal Procedure
against the judgment of conviction and sentence passed in S.C.No.85/2006 on the
file of the learned Principal Sessions Judge, Virudhunagar District at
Srivilliputtur, dated 07.08.2009.
!For Appellant … Mr.V.Kathirvelu
in Crl.A.
No.250/2009 For Appellants ... Mr.Shanmugha Velayutham, in Crl.A. Senior Counsel for No.270/2009 Mr.M,Suri For Appellants ... Mr.T.Lajapathi Roy in Crl.A. No.306/2009 ^For respondent ... Mr.N.Senthur Pandian, in all the CAs. Addl.Public Prosecutor. :COMMON JUDGMENT (Judgment of the Court was made by M.CHOCKALINGAM,J)
This judgment shall govern the following three appeals, namely
Crl.A.(MD)No.250 of 2009 preferred by Accused No.5, Crl.A.(MD)No.270 of 2009
preferred by Accused Nos.1,2, 6 and 7 and Crl.A.(MD)No.306 of 2009 preferred by
Accused Nos.3 and 4. All these appellants/accused Nos.1 to 7 , along with other
accused ranked as accused No.8, stood charged and tried for the following
charges,
Charge No. Accused No./s Charge Under
1. Accused Nos.1 to 8 U/s.120(B) IPC
2. Accused Nos.1 to 8 U/s.147 IPC
3. Accused Nos.1 to 7 U/s.148 IPC
4. Accused Nos.1 to 7 U/s.341 IPC
5. Accused Nos.1 to 7 U/s.302 r/w 149 IPC
6. Accused Nos.1 to 7 U/s.506(ii) IPC
7. Accused No.8 U/s.302 r/w 212 IPC
and on trial, Accused No.8 was found not guilty and he was acquitted of all the
charges levelled against him but, appellants/accused Nos.1 to 7 were found
guilty, convicted and sentenced to undergo imprisonments as detailed below.
Accused No. Finding Sentence
Accused Nos.
1 to 7 Guilty U/s.148 IPC Each to undergo one year Rigorous Imprisonment.
Accused Nos.
1 to 7 Guilty U/s.341 IPC Each to undergo one month Simple Imprisonment.
Accused Nos.
1 to 7 Guilty U/s.302 Each to undergo life imprisonment and to
r/w 149 IPC pay a fine of Rs.1000/-, in default to
undergo one year simple imprisonment.
Accused Nos.
1 to 7 Guilty U/s.147 IPC No separate sentence was imposed.
In respect of other charges, accused Nos.1 to 7 were found not guilty and
acquitted of from those charges. The above sentences were ordered to run
concurrently. Aggrieved over the judgment of the trial court founding them
guilty, the accused Nos.1 to 7 have brought-forth the above criminal appeals, as
stated above.
2.Short facts necessary for the disposal of these three
appeals could be stated thus:
(a)P.W.1 is the brother and P.W.3 is the wife of the deceased
Servarayan. P.W.2 is the younger maternal aunt of the deceased. P.W.1 is a
resident of South Malaiyadipatti and P.W.2 is a resident of Malaiyandipatti in
Rajapalayam. During the relevant period of time the deceased was working as a
Loadman in Ganesh Transport in Rajapalaym. Originally, the deceased, along with
his wife and family members, was living at Ramakrishnapuram in Srivilliputtur.
Accused No.1 is closely related to the deceased. Accused Nos.2 to 8 are closely
related to accused No.1.
(b)One year prior to the occurrence, when the deceased was
living with his wife at Ramakrishnapuram, accused No.1 developed illicit
intimacy with P.W.3, the wife of the deceased. The sister of accused No.1 by
name Pappa was assisting the same. The deceased warned both accused No.1 and
his sister and despite the same, the illicit relationship continued. Some time
prior to the occurrence, the decease attacked the said Pappa with a knife,
pursuant to which a case came to be registered in Crime No.106/2005, as
evidenced by Ex.P-30, copy of FIR in the said case, the deceased was arrested
and he was in custody for some time and then he was bailed out. Thereafter, the
deceased was entertaining a fear that he would be murdered by accused No.1 and
hence in view of the same, along with his family, he shifted his residence from
Srivilliputtur to Malayadipatti in Rajapalayam within the jurisdiction of the
respondent police.
(c)On 03.11.2005 at about 9.15 a.m., when P.W.1 and P.W.4 were
proceeding in the Railway Feeder Road from West to East, they saw P.W.2.
Thereafter, P.W.1, P.W.2 and P.W.4 were proceeding in the said road and 30 feet
ahead of them the deceased Servarayan was proceeding near A.K.T.R.Choultry. At
that time, accused Nos.1 to 7, armed with aruvals, came there from West and
accused No.1 instigated all the accused to attack the deceased and kill him and
when P.w.2 shouted not to do so, accused No.1 cut the deceased on his head with
aruval and thereafter all the other accused attacked the deceased on different
parts of the body. This was witnessed by P.Ws.1, 2 and 4. At that time, shops
were closed. Thereafter, accused No.7 accompanied accused No.8, who came there
in a TVS 50 motorcycle and all other accused, along with weapons of crime, fled
away from the place of occurrence. P.W.22, Head Constable, who came from the
vegetable market, found people running helter-skelter and came to the place of
occurrence. P.W.23, Head Constable – Traffic Wing, also came to the place of
occurrence on seeing the people actually running in panic. When P.Ws.22 and 23
attempted to catch the accused, they escaped and ran away. Based on a phone
call, P.W.12, Ambulance Driver, came to the place of occurrence in his ambulance
and took the deceased to the Government Hospital, Rajapalayam.
(d)P.W.16, the Doctor attached to Government Hospital,
Rajapalayam, was on duty on 03.11.2005. At about 9.50 a.m., the deceased was
brought to the hospital by one Constable and also by P.W.1. P.W.16 admitted him
and gave treatment. Intimation was sent to the respondent Police Station.
(e)P.W.25, the Sub-Inspector of Police, attached to the
respondent Police Station, on receipt of message over phone at about 10.00 a.m.,
as to the admission of deceased in the hospital, proceeded to the hospital,
recorded the statement of the deceased at 10.30 a.m., read it over to him and
obtained his left index finger impression on it. The said statement is marked
as Ex.P-1. P.W.1 has also singed in Ex.P-1 and his signature is marked as Ex.P-
2. P.W.16, the Doctor, who gave initial treatment to the deceased was also
present during the time when the statement was recorded and she has also given a
certificate, marked as Ex.P-22, to the effect that the deceased was conscious
enough to give the statement. On the strength of Ex.P-1, P.W.25 registered a
case in Crime No.857 of 2005 under Sections 147, 148, 341, 307 & 506(2) IPC and
Ex.P-35, Printed FIR, was sent to the Court and copies of the same were
forwarded to the higher police officers for action.
(f)P.W.16, the Doctor, after giving initial treatment advised
that the deceased was to be taken to Government Hospital at Madurai. Ex.P-21 is
the Accident Register copy given by P.W.16. The deceased died on the way to
Madurai and therefore he was brought back to the Rajapalayam Government
Hospital.
(g)On receipt of copy of Ex.P-35 FIR, at bout 3.00 p.m. on
03.11.2005, P.W.27, the Inspector of Police, took up the investigation,
proceeded to the place of occurrence and enquired the witnesses and recorded
their statements. P.W.27, on receipt of death intimation, altered the case into
under Section 302 IPC and sent Ex.P-36, altered FIR, to the Court. He
proceeded to the hospital and conducted inquest on the body of the deceased
Servarayan between 4.30 p.m. and 5.45 p.m. in the presence of panchayatdars and
witnesses and prepared Ex.P-37, the inquest report. Thereafter, he sent the
body of the deceased for postmortem, through P.W.26, Grade-I Constable.
(h)P.W.17, the doctor attached to the Government Hospital,
Rajapalayam, conducted postmortem on the body of the deceased at 9.00 p.m. on
04.11.2005 and after postmortem she gave Ex.P-23, Postmortem Certificate,
opining that the deceased would have died of hypovolaemic shock. After
postmortem, P.W.26 recovered M.O.4 – bloodstained shirt, M.O.5 – bloodstained
Lungi and M.O.10 – Trouser, from the body of the decease and handed over the
same to the Investigator.
(i)After sending the body for postmortem, P.W.27, the
Investigator, proceeded to the place of occurrence at 6.00 p.m., made an
observation in the presence of P.W.11, the Village Administrative Officer, and
another and prepared Ex.P-3, the observation mahazar and also drew Ex.P-38, the
rough sketch. In the presence of the same witnesses, from the place of
occurrence, P.W.27 recovered M.O.7 – bloodstained earth and M.O.8 – sample earth
under Ex.P-4 Mahazar attested by the same witnesses. Thereafter, P.W.28, the
Inspector of Police, took up the further investigation in the case.
(j)Pending investigation, P.W.28 came to know that Accused
No.7 surrendered before the Judicial Magistrate, Sankarankovil. He seized the
note books of P.W.22 and P.W.23, the Head Constables, and they were marked as
Exs.P-39 and P-40, respectively. He examined the witnesses and recorded their
statements. On 07.11.2005 at about 6.00 hours, P.W.28 arrested accused Nos.1 to
6 and when enquired them in the presence of P.W.11 and another, the accused
came forward to give separate confessional statements and P.W.28 recorded the
same and the admissible portions of the confessional statements of accused Nos.1
to 6 were marked as Exs.P-6 to 11, respectively and following the same, all the
six accused took and produced six aruvals, the weapons of crime, which were
recovered independently under different mahazars, marked as Exs.P-11 to Ex.P-16.
M.Os.1,2,3,9, 11 and 12 were the aruvals recovered from accused Nos.1 to 6.
Thereafter the accused were sent for judicial custody. P.W.28 took accused No.7
into police custody and when enquired in the presence of P.W.13, the Village
Administrative Officer and another, accused No.7 came forward to give a
confessional statement, admissible portion of the same is marked as Ex.P-17,
pursuant to which accused No.7 took and produced M.O.13 Aruval and the same was
recovered under Ex.P-18, Mahazar, attested by the same witnesses. Thereafter he
produced accused No.7 before the Court. On 14.11.2005 at about 6.00 a.m.,
P.W.28 arrested accused No.8 and when examined in the presence of P.W.14,
Village Administrative Officer, and another, accused No.8 came forward to give a
confessional statement, admissible portion of the same is marked as Ex.P-19,
pursuant to which he took and produced M.O.6 TVS Super Excel Vehicle bearing
Reg.No.TN-67 Q 2343 under Ex.P-20 Mahazar attested by the same witnesses. Ex.P-
41 is the Registration Certificate of M.O.6. He examined witnesses and
recorded their statements.
(k)On 22.11.2005, P.W.28 gave Ex.P-27 requisition to the court
for conducting identification parade. Identification parade was conducted on
30.11.2005 in the presence of P.W.19, the Judicial Magistrate, Sattur, in which
P.W.22 and P.W.23, the Constables, identified the accused. Ex.P-28 is the
summons sent to the accused and Ex.P-29 is the Identification Parade
Proceedings.
(l)P.W.28, the Inspector of Police, examined the witnesses and
recorded their statements. He gave Ex.P-31, requisition to the Court for
sending the material objects for chemical analysis and accordingly the same were
sent to Forensic Department under Ex.P-32, the letter of the Court, which
resulted in three reports, namely Ex.P-24, the Chemical Examiner’s Report, Ex.P-
25, the Serologist’s Report and Ex.P-27, the Soil Analysis Report. He examined
the witnesses and recorded their statements. On completion of investigation,
P.W.28 filed final report against the accused under Sections 147 148, 341,
506(2), 302, 120(B),212 and 149 IPC on 27.12.2005.
3.After committal proceedings, the case was taken on file by
the Sessions Court in S.C.No.85/2006 and necessary charges were framed. To
prove the charges against the accused, the prosecution examined 28 witnesses as
P.Ws.1 to 28 and marked 43 documents as Exs.P-1 to P-43 and produced M.Os.1 to
13. On completion of the evidence on the side of the prosecution, when the
accused were questioned under Section 313 of the Criminal Procedure Code about
the incriminating circumstances found in the evidence of prosecution witnesses,
they denied all of them as false. On the side of defence, one Balamurugan, Sub-
Inspector of Police, was examined as D.W.1 and Exs.D-1 to D-3 were marked. The
trial court, after hearing the parties, took the view that the prosecution has
proved certain charges against the appellants/accused Nos.1 to 7 beyond
reasonable doubt, found them guilty thereunder and sentenced them as referred to
above. Hence these appeals at the instance of the appellants/accused Nos.1 to
7. Insofar as the other charges levelled against accused Nos.1 to 7 and all the
charges in respect of other accused, namely accused No.8, the trial judge found
that the prosecution has not proved the case beyond reasonable doubt and hence a
judgment of acquittal was recorded.
4.Advancing arguments on behalf of the appellants in
Crl.A.No.270 of 2009, the learned senior counsel Mr.Shanmuga Velayutham would
make the following submissions:
(a)In the instant case, the gist of the case of the
prosecution is that the crime has taken place at about 9.15 a.m. on 03.11.2005
and immediately the injured was taken to the hospital and Ex.P-1, the statement
of the deceased, was recorded at about 10.30 a.m. by P.W.25, the Sub-Inspector
of Police and on the strength of which a case came to be registered at the
respondent Police Station at 11.30 a.m. and the FIR has reached the Court at
8.00 p.m. and, thus, there was a delay of 3-1/2 hours in the FIR reaching the
Court and the prosecution had no explanation to offer and this itself would
clearly indicate, along with other circumstances, that the case could not have
been registered as put-forth by the prosecution.
(b)The prosecution relied on the evidence of P.Ws.1,2, 22 and
23 to prove the occurrence. Insofar as P.W.22 was concerned, he was a Head
Constable and P.W.23 was concerned, he was also a Head Constable attached to the
Traffic Wing of Rajapalayam Police and from the evidence of these two
constables, it is quite clear that they have come to the spot after the
occurrence was over. Apart from that the trial judge was also not ready to
believe their evidence. Thus the prosecution had only the evidence of P.Ws.1
and 2.
(c)P.W.1 is the brother and P.W.2 is the younger maternal aunt
of the deceased and when they were examined before the Court, P.W.2 has
categorically admitted that her vision was affected and therefore she could not
identify the accused persons who were standing before the Court and insofar as
P.W.1 is concerned, at the time of cross-examination, he has admitted that he
consumed liquor on the previous night and thus his evidence could not be proper
and unacceptable by the court.
(d)Learned senior counsel would further add that in the
instant case, P.Ws.1 and 2 could not have been in the place of occurrence at
all. The earliest document which has come into existence was the Accident
Register Copy, which is marked as Ex.P-21 and given by P.W.16, the Doctor and a
perusal of the same would clearly indicate that there was alteration in the
number of assailants which has been altered from 5 to 6, 6 to 7 and apart from
that it would be clear that the name of P.W.1 ‘Irulappan’ has been inserted
after it was recorded that the deceased was brought by a constable and thus it
would be indicate of the fact that P.W.1 could not have been in the place of
occurrence. Added further the learned senior counsel, insofar as the ambulance
driver, who has been examined as P.W.2, he has categorically stated that
constable alone accompanied the deceased in the ambulance but he has not stated
either P.W.1 or P.W.2 accompanied him and all would go to show that P.W.1 could
not have been in the place of occurrence. Added further, the statements of
P.Ws.1 and 2 have been recorded on the very day of occurrence, i.e. 03.11.2005
but, the same have reached the court only on 05.11,.2005 and thus the delay of
two days, coupled with the fact that FIR has reached the Court after 8-1/2
hours delay, would clearly indicate that FIR could not have come into existence
as put-forth by the prosecution.
(e)Added further the learned senior counsel, according to the
prosecution, the deceased was immediately taken to the hospital, where he was
admitted by P.W.16, the Doctor and he was given treatment and P.W.25, the Sub-
Inspector of Police, would claim that on receipt of intimation he went to the
hospital and thereafter recorded the statement of the deceased, which is marked
as Ex.P-1, but the same could not have come into existence as put-forth by the
prosecution. P.W.16, the Doctor, has categorically stated at the time of cross-
examination that there was profuse bleeding and thus though she has certified
that the patient was conscious at the time when he gave statement, in view of
the fact she has not given a certificate that the patient was in a fit statement
of mind to give declaration, as law would warrant, while giving such a
declaration.
(f)In the instant case, subsequently the injured died and his
statement, which is marked as Ex.P-1, has reached the stage of dying
declaration. Learned senior counsel relying on the decision of the Apex Court
in Laxman v. State of Maharashtra, reported in 2002 SCC (cri) 1491, would
submit that even when a dying declaration was recorded by a Judicial Magistrate,
the conscious of the declarant is not sufficient but, it must be certified that
he was in a fit state of mind. In the instant case, P.W.16, the Doctor, though
certified that the deceased was conscious, she has not recorded anything that he
was in a fit statement of mind to give statement. In such circumstances, the
statement cannot be taken into account.
(g)Added further, the narration in Ex.P-1 would clearly
indicate that six persons were attributed with overt acts at different parts of
the body and once such profuse bleeding was there he could not have given such a
statement, which went for an half-an-hour, and thus this is a created one in
order to suit for the prosecution case and all would clearly indicate that the
prosecution has miserably failed to prove its case.
(h)Added further the learned counsel, insofar as the recovery
of weapons of crime is concerned, the investigator would claim that accused
Nos.1 to 6 were arrested on 07.11.2005 and pursuant to separate confessional
statements given by them, they produced the weapons of crime but, the trial
court did not believe the evidence adduced by the prosecution in respect of
arrest and recovery for the reason that before the trial court P.w.1 has stated
that the accused persons were actually in the custody of police on the next of
day occurrence and it would be clearly indicative of the fact that they were
under the custody of the police for three days and thus the claim of the
Investigator that the accused were arrested on 7.11.2005 and pursuant to their
confessional statements the weapons of crime were recovered should be rejected
and that part of the evidence cannot be relied upon by the prosecution.
5.Advancing arguments on behalf of accused Nos.3 and 4,
Mr.T.Lajapathi Roy, learned counsel would submit that in the evidence of P.Ws.1
and 2, there is vital discrepancy insofar as the overt acts attributed t accused
Nos.3 and 4 are concerned. In the evidence of P.Ws.1 and 2, who are the eye-
witnesses relied on by the court, Accused No.3, according to P.W.1, has given a
cut on the left leg of the deceased but, P.W.2 has stated that accused No.3 gave
a cut on the left hand and insofar as accused No.4 is concerned, P.W.1 has
stated that he cut the deceased on the right hand on the contrary it is deposed
by P.W.2 that accused No.4 has cut on the left leg and thus there is clear
discrepancy as to the overt acts attributed to accused Nos.3 and 4 in the
evidence of P.Ws.1 and 2. Apart from that P.W.7, a shopkeeper near the place of
occurrence, has turned hostile. Added further, the learned counsel adopted the
arguments of the learned senior counsel.
6.Mr.V.Kathirvelu, learned counsel appearing for accused No.5,
would submit that P.Ws.12 has been examined as owner of the ambulance vehicle.
According to him, he has never stated about the presence of P.Ws.1 and 2 in the
place of occurrence and further when the deceased was taken to the hospital and
admitted in the hospital, in Ex.P-21, Accident Register Copy, the name of P.W.1
has been subsequently included and this would clearly indicate that he was not
all present in the place of occurrence and at the time of occurrence. Added
further, accused No.5 was shown to have participated in the occurrence but he
was working as a Nightwatchman in a Trust and Documents are produced in order to
show that he attended duty at the night hours of 03.11.2005 and the occurrence
was taken place on the morning hours and had it been true that he participated
in the occurrence, he could not have come for the duty at the night hours and
this would falsify the prosecution case. Insofar as P.W.11, the Village
Administrative Officer is concerned, sniffer dog was brought to the place of
occurrence and if really the culprits were known as found in Ex.P-1, there was
no necessity for bringing the sniffer dog at about 6.00 p.m. and this, coupled
with the fact that FIR has reached the court only at 8.00 p.m., would clearly
indicate that the
FIR has come into existence after a long time. Added further the learned
counsel, the injuries which were attributed at accused No.5 was not found in the
evidence and all would clearly indicate that the prosecution has miserably
failed to prove its case and hence the appellants are entitled for an order of
acquittal at the hands of this Court. He would further submit that the trial
judge was not ready to accept the evidence of the same witnesses in respect of
accused No.8 but, he applied different parameters and found the
appellant/accused Nos.1 to 7 guilty and therefore they are entitled for an order
of acquittal.
7.The court heard the learned Additional Public Prosecutor
appearing for the State on the submissions made by the learned senior counsel
for the accused Nos.1,2,6 and 7 and learned counsel for accused Nos.3 and 4 as
well as accused No.5 and paid its anxious considerations to the rival
submissions and perused the materials available on record.
8.It is not in controversy that one Servarayan, brother of
P.W.1, following an indent that took place at about 9.15 a.m. on 03.11.2005 at
the place of occurrence was taken to the Government Hospital, Rajapalayam, in
the ambulance driven by P.W.12 and initial treatment was given to him by P.W.16,
the doctor, at 9.50 a.m. on the very day. Following the intimation received
from the Hospital, P.W.25, the Sub Inspector of Police attached to the
respondent police station, has gone to the hospital and recorded the statement
from the deceased Servarayan, which is marked as Ex.P-1, and on the strength of
which a case came to be registered in Crime No.857/2005 under Sections 148, 341,
307 and 506(2) IPC, initially. Despite the treatment given, the injured
breathed his last and therefore the case was converted into one under Section
302 IPC. Following the inquest made by P.W.27, the Investigator, the dead body
was subjected to postmortem by P.W.17, the doctor. P.W.17 has categorically, as
a witness before the Court as well as in the postmortem certificate Ex.P-23, has
stated that the deceased died out of hypovoleaemic shock. This fact that
Servarayan died out of homicidal violence was never the subject matter of
controversy before the trial court and hence it was recorded so rightly by the
trial judge.
9.In order to substantiate its case that all the accused
persons, armed with deadly weapons, attacked the deceased at the time of
occurrence, the prosecution rested its case on the evidence of four eye-
witnesses, who were P.Ws.1, 2, 22 and 23 and also on other circumstantial
evidence. The trial judge has rightly rejected the evidence of P.Ws.22 and 23
for two reasons. Firstly, they were the Head Constables attached to the
Rajapalayam Police and secondly, admittedly, they have come to the place of
occurrence after the occurrence was over and hence their evidence do not serve
any purpose. But, the trial judge has relied on the evidence of P.W.1 and
P.W.2. From the evidence of P.Ws.1 and 2, it would be quite clear that P.W.1 is
the brother and P.W.2 is the younger maternal aunt of the deceased. Merely on
the account of relationship, their evidence cannot be rejected but, before
acceptance, the test of careful scrutiny must be applied.
10.Insofar as the evidence of P.W.2 is concerned, the Court is
of the considered opinion that her evidence cannot be accepted for the simple
reason that though P.W.2 has claimed that already the accused are well known to
her, she has categorically deposed at the time when she was examined before the
trial Court that she was visually affected and she could not identify the
accused persons properly. Under the circumstances, it would not be safe to
sustain a conviction on her evidence. But, fortunately the prosecution to its
advantage had the evidence of P.W.1. P.W.1 has categorically stated that he,
accompanied by others, was proceeding near the place of occurrence and at that
time the deceased was proceeding just 30 feet in front of them and at that time
all the accused persons, armed with deadly weapons, came there and attacked the
deceased indiscriminately. The occurrence was at 9.15 a.m. and immediately
the deceased was taken in the ambulance driven by P.W.12 to the Government
Hospital, Rajapalayam where P.W.16, the doctor, has given treatment to him at
9.50 a.m., as could be seen from Ex.P-21, the Accident Register copy.
11.Much comment was made that P.W.12, the Ambulance Driver,
has not stated in his evidence that either P.W.1 or P.W.2 accompanied the
deceased in the ambulance driven by him and hence the evidence of P.W.1 should
not be relied. Further comment was made that in Ex.P-21, the Accident Register
Copy, P.W.16 has inserted the name of P.W.1 subsequently, along with mentioning
of the presence of a Constable and hence the evidence of P.W.1 should not be
relied. But, this contentions in the considered opinion of the Court, have got
to be rejected. It was P.W.16, the Doctor, who had actually recorded in the
Accident Register Copy Ex.P-21 that P.W.1 was actually present at the time of
the admission of the deceased in the Hospital. P.W.1 has categorically given
evidence that he was present at the the time of occurrence. The presence of
P.W.1 as spoken to by him and also as found in Ex.P-21 Accident Register Copy
would clearly indicate that he was actually present at the spot at the time of
occurrence and also at the time of the admission of the deceased in the
hospital. Further, P.W.16, the Doctor, at the time of examination in the Court
has categorically stated that P.W.1 was also present at the time of admission of
the deceased. This fact was not even denied by the defence by putting a
suggestion to P.W.16, the Doctor, at the time of cross-examination and thus the
evidence of P.w.16 as to the presence of P.W.1 at the time of admission of the
deceased in the hospital was to be taken as an admitted fact and remain in the
evidence and therefore the Court is of the opinion that the evidence of P.W.1,
despite full cross-examination, withstood the test and therefore the same has
got to be accepted by the Court.
12.The another strong piece of evidence available to the
prosecution, in the considered opinion of the Court, is Ex.P-1, the Statement,
given by the deceased at the hospital to P.W.25, the Sub-Inspector of Police.
The occurrence has taken place at 9.15 a.m. and the deceased had been taken to
the hospital and given treatment by P.W.16, the Doctor, at 9.50 a.m. and
immediately on receipt of intimation from the hospital, P.W.25, the Sub-
Inspector of Police, has gone to the hospital and recorded the statement of the
deceased, which is marked as Ex.P-1 and after the death of the deceased it has
attained the status of dying declaration. At this juncture, learned senior
counsel for the appellants made a caution that P.W.16 has given Ex.P-22
certificate only to the effect that the patient was conscious and she has not
stated that the patient was in a fit state of mind to give a statement and hence
Ex.P-1 cannot be taken as a dying declaration and it would fall short of the
same and in support of the said contention the learned senior counsel for the
appellants relied on the decision of the Supreme Court in Laxman vs. State of
Maharashtra, reported in 2002 SCC (cri) 1491. The said decision was applicable
to a dying declaration recorded by the Judicial Magistrate and, in the instant
case, the court is unable to agree with the contention put-forth by the counsel.
When the patient was actually admitted by P.W.16 and given initial treatment,
P.W.25 has recorded the statement and P.W.16, the doctor, was present at the
time of recording the statement and she has given a certificate that the patient
was conscious and not stating the words ‘fit state of mind’ leaves no doubt in
the mind of the Court on the recording of the statement by P.W.25 in the
presence of P.W.16 from the deceased at the hospital and unless and until the
deceased was conscious and also in fit state of mind, he could not have given
Ex.P-1 statement. Apart from that, P.W.16, the Doctor, has categorically
stated, at the time of chief-examination, that at the time when the statement
was recorded, the patient was not only conscious but he was in a fit state of
mind and thus the court is unable to see any reason why the evidence of P.W.16,
the Doctor, should be looked with suspicion merely because Ex.P-1 was not
recorded by the Judicial Magistrate but recorded by the Sub-Inspector of Police.
Therefore, the Court is unable to see any reason to reject the said document.
13.It is true, there was profuse bleeding and even then
P.W.16, the doctor, has certified that the patient was conscious and he has
given evidence before the Court that he was not only conscious but also he was
in a fit statement of mind. All would clearly indicate that Ex.P-1 document was
not only a statement recorded by P.W.25 but also a Dying Declaration. Now a
perusal of Ex.P-1 would clearly indicate the participation of all the accused
person in the commission crime and attacked the deceased. The presence of P.W.1
and P.W.2 is also spoken to in Ex.P-1 document. This itself would also indicate
the presence of P.W.1 at the spot when the occurrence has taken place and thus,
in the considered of the Court, Ex.P-1 has to be considered as a dying
declaration in the eye of law and this document is another strong piece of
evidence available in favour of the prosecution.
14.The evidence adduced by the prosecution as to the arrest
of accused and recovery of weapons of crime from the accused persons pursuant to
their confessional statements recorded by the Investigator, as claimed by the
prosecution, as rightly contended by the learned counsel for the appellants, has
got to be rejected for the simple reason that according to P.W.27, the
Investigator, the accused No.1 to 6 were arrested on 07.11.2005 but, according
to P.w.1, the accused were in the custody of Police even prior to 07.11.2005 and
hence that part of the evidence cannot be accepted.
15.Further, the other contention put-forward by the learned
counsel for the appellants that there was a delay in the FIR reaching the Court
at 8.00 p.m. and hence the FIR has got to be looked with a doubt as it goes to
the root of the matter cannot be countenanced for the simple reason that after
the occurrence was over, immediately the deceased was taken to the hospital and
his statement was recorded and thereafter a case came to be registered by the
Sub-Inspector of Police and the investigation was actually commenced by the
Investigation Officer immediately. It is true the FIR has reached the Court at
8.00 p.m. The only ground of delay in FIR reaching the Court, in the
considered opinion of the Court, itself cannot be a reason to reject the
prosecution case while all other evidence are available for the prosecution.
16.Learned counsel for the appellants tried to make much
comment on Ex.P-21, the Accident Register Copy, where number of assailants, by
making alterations, has been increased initially from 5 to 6 and thereafter 6
to 7. The Court is of the opinion that this cannot be given much weight for the
simple reason that when the decease was taken to the Hospital, one could
visualize the anxiety with which he would have made the statement to the Doctor
and hence the same cannot be given much weightage. Further, pursuant to the
intimation received, P.W.25, the Sub-Inspector of Police, has gone to the
Hospital and recorded the statement of the deceased and the same is marked as
Ex.P-1. Therefore, the said document has got to be acted upon. Thus, in the
considered opinion of the Court, on a careful scrutiny of the entire material,
the prosecution has brought home the guilt of the appellant/accused Nos.1 to 6
on the basis of the evidence of P.W.1, an eye-witness and also the Dying
Declaration, marked as Ex.P-1 and they are pointing to the complicity of the
appellants/accused Nos.1 to 6 in the crime.
17.Now, the contention put-forward by the learned counsel for
accused Nos.3 and 4 that there are some discrepancies in the evidence of P.Ws.1
an 2 regarding the overt acts attributed to accused No.3 and accused No.4 cannot
be looked into for the reason that the evidence of P.W.2 need not be acted upon
and thus the evidence of P.W.1, coupled with Ex.P-1 Dying Declaration, would be
suffice, in the opinion of the court, to reach the conclusion that the
appellants/accused No.1 to 6 are to be found guilty of the charges levelled
against them and the trial court has marshalled the evidence proper and found
the appellants/accused Nos.1 to 6 guilty and convicted them and there is nothing
to interfere with the same either factually or legally and consequently all
the contentions raised by the learned counsel for the appellants do not merit
acceptance and all the three appeals are liable to be dismissed.
18.Learned counsel for the appellants brought to the notice of
the Court is that only two injuries which were attributed to Accused No.2 and
Accused No.6 were found to be fatal and insofar as the other injuries are
concerned they remain unaccounted and hence this aspect has got to be looked
into by the Court. The court is unable to agree with the said contention of the
learned counsel for the appellants for the simple reason that the occurrence has
taken place in a public place and all the accused persons 1 to 7 were actually
armed with deadly weapons and in such circumstances, without a common object and
in furtherance of the common object, they could not have participated in the
crime and thus they were rightly charged under Section 302 read with Section 149
IPC by the trial judge. In view the same, the court is unable to agree with the
counsel for the appellants that only two injuries were fatal and hence the
accused who were responsible for those injuries alone should be found guilty
leaving others cannot be accepted.
19.In the result, all the three criminal appeals are
dismissed. The judgment of the trial Court is confirmed.
gb
To
1.The Principal Sessions Judge,
Virudhunagar District at
Srivilliputtur.
2.The Inspector of Police,
Rajapalayam South Police Station,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.