BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16/02/2010
CORAM
THE HONOURABLE MR. JUSTICE P.MURGESEN
and
THE HONOURABLE MR. JUSTICE RAJA ELANGO
CRL.A.No.834 of 2001
and
CRL.A.No.992 of 2001
and
CRL.A.No.370 of 2003
1.Murugan
2.Uchi Mahali
3.Sankaran ... Appellants in Crl.A.
No.834 of 2001/A1, A3 & A4
Subbaiah ... Appellant in Crl.A.
No.992 of 2001/A5
Mariappan ... Appellant in Crl.A.
No.370 of 2001/A2
Vs
State represented by
Inspector of Police,
Pudhiyamputhur Police Station,
Thoothukudi District.
(In Cr.No.148 of 1997) ... Respondent in all
Appeals/Complainant
Criminal Appeals filed under Section 374 Cr.P.C against the judgment of
conviction and sentence passed by the learned Additional District and Sessions
Judge cum Chief Judicial Magistrate, Thoothukudi, dated 31.07.2001 made in
S.C.No.374 of 1998.
!For Appellants in Crl.A. ... Mr.S.Shanmuga Velayudham
Nos.834/2001 & 370/2003 for Mr.M.Suri
^For Appellant in Crl.A. ... Mr.N.Mohideen Basha
No.992/2001
For Respondent ... Mr.P.N.Pandidurai
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, Thoothukudi, dated 31.07.2001 made in S.C.No.374 of 1998, on the
appellants/accused Nos.1 to 5.
2.The case of the prosecution is as under:-
P.W.1-Paradesi Konar is the resident of Savari Mangalam and he is a coolie
worker. Deceased Ramasamy is his son-in-law. P.W.4-Ulagammal is the wife of
deceased Ramasamy. P.W.2-Periyadurai and P.W.3-Muthuputhiavan are the sons of
P.W.1. P.W.8-Karuppasamy is known to P.W.1. There was a dispute regarding a site
between the accused and P.W.1’s son-in-law. Further, the constrained
relationship was aggravated due to the election dispute between P.W.1’s son-in-
law and the accused. 20 days prior to the occurrence, there arose a dispute when
the deceased took the cattle to the first accused brother’s garden for grazing
and there was exchange of blows between the accused and P.W.1’s son-in-law.
3.On 04.08.1997, P.Ws.1 and 2 and deceased Ramasamy, son-in-law of P.W.1
went to Meelavittan for earth work and was returning at 5.45 P.M. towards
Savarimangalam. At that time all the accused waylaid them and attacked them. In
the attack, Ramasamy was killed and P.W.1 was injured. P.W.2, who is the son of
P.W.1 went to the house and informed the same to his brother P.W.3. In the mean
time, P.W.1 with injuries came to the house and he was taken to hospital by
P.W.3.
4.P.W.1 was treated by P.W.9-Dr.Mariam Beevi and she found the following
injuries on P.W.1:
“1.An incised wound 8 x 1 x.5cm at back.
2.An incised wound 6 x 1 x .5cm at back.
3.An incised wound over centre of forehead 6 x 1 x 1 cm.
4.An incised wound over left side of scalp 7 x 1. x 1.cm.
5.An incised wound over left thumb, middle, index, ring fingers about 3 x
1 x .5cm in thigh other fingers 1 x .5 x .5 cm.
6.Incised would left great toe 1 x .5 x .5cm.
7.Abrasion over right knee.”
She gave Ex.P.5-Wound Certificate to P.W.1. She also gave Ex.P.6-Intimation to
the police.
5.On 05.08.1997 at 12.45 A.M., she examined A2-Mariappan and she found the
following injuries on A2:
“1.Cut Injury over left knee 5cm x 3cm x 3cm.
2.Cut Injury over Right fore arm 2cm x .5cm x .5cm.”
She gave Ex.P.7-Wound Certificate to A2.
6.On 04.08.1997, P.W.10-Dr.Nesamanivannan, Radiologist has taken M.O.10-X-
Ray on P.W.1 on the head and found that there is a fracture in the head. On
05.08.1997, he took M.O.11-X-ray on the left shoulder of P.W.1 and found that
there is a fracture in the left shoulder. Ex.P.8 is the X-Ray report of P.W.1.
On 05.08.1997, he also took X-ray on the thigh of A2 and gave Ex.P.9-Report that
he sustained fracture on the Femur.
7.On 04.08.1997, on receipt of message from the Government Hospital,
Thoothukudi, P.W.15-Subbiah, Sub-Inspector of Police went to the hospital at
23.45 hours and recorded Ex.P.1-statement of P.W.1 and went to the police
station on 05.08.1997 at 1.30 A.M. and registered a case Crime No.148 of 1997
under Sections 147, 148, 307 and 302 I.P.C. Ex.P.16 is the printed F.I.R. The
printed F.I.R. was despatched to the Judicial Magistrate and the copy was sent
to the higher officials through P.W.12-Duraisamy, Police Constable. Ex.P.12 is
the passport given to P.W.12 to carry the F.I.R. to the Court. Since there was
no bus, he handed over the F.I.R. to the Judicial Magistrate at 7.00 A.M. P.W.15
also received a complaint from the second accused on 06.08.1997 and registered a
case in Crime No.149 of 1997 under Sections 341 and 324 I.P.C.
8.Then the investigation was conducted by P.W.16-Nagoor, Inspector of
Police. On 05.08.1997 at 3.00 A.M., he visited the scene of occurrence and
prepared Ex.P.3-Observation Mahazar and Ex.P.17-Rough Sketch in the presence of
P.W.6-Veluchamy, Village Administrative Officer and P.W.7-Balasubramanian,
Village Assistant. Then he conducted inquest over the body of the deceased and
prepared Ex.P.18-Inquest Report. Then, P.W.16 sent the body of the deceased for
conducting postmortem along with Ex.P.10-Requisition Letter through P.W.13-
Ponniah, Police Constable. Ex.P.13 is the passport given to P.W.13 to take the
body of the deceased to hospital for conducting postmortem and after postmortem
to handover the body to the relatives of the deceased.
9.Postmortem was conducted by P.W.11-Dr.Sethulakshmi. She examined the
body of the deceased. On examination she found the following the following
external injuries:
“1.Incised wound 6x3x3 on the back of left of shoulder.
2.Incised wound over back of skull (occipital region) 8 x 2 x 2cm exposing bone.
3.Incised wound over left frontal bone 6 x 2 x 2cm bone exposed.
4.Transverse incised wound over vertex 5 x 2 x 2cm bone exposed.
5.Incised wound vertically over the injury No.(4) 8 x 2 x 2cm bone exposed.
6.Incised wound over right wrist dorsum 5 x 2 x 2cm.
7.Incised wound below right elbow 4 x 1 x 1cm.
8.Incised wound below left ear 3 x . x . cm.
9.Stab injury above he sternal notch 5 x 3 x 5cm.
10.Incised wound above injury No.9 3 x . x .cm.
11.Stab injury below right knee 2 x 1 x 3cms.
12.Stab injury below medial side of right knee 2 x 1 x 3cms.
13.Incised wound above right knee in the middle of right thigh 3 x 1 x 1cm.
14.Incised wound above left knee 8 x 2 x 5cms.
15.Incised wound above wound No.14 (6x1x1cms).”
The doctor opined that the deceased would appear to have died of shock and
haemorrhage due to injury to vital organs and multiple injuries sustained.
Ex.P.11 is the postmortem certificate.
10.After postmortem, P.W.13 recovered M.O.12-Trouser and M.O.13-Banian
from the body of the deceased and handed over to P.W.16. P.W.16 recovered M.O.1-
Dhoti with blue colour border and M.O.2-White colour half hand shirt from P.W.1
in the presence of Paneer and P.W.5-Kasi Nadar. On 05.08.1997 at 8.30 A.M., he
recovered M.O.3-Blood stained Full Hand White Shirt, M.O.4-Bloodstained
Polyester Dhoti, M.O.8-Bloodstained Earth and M.O.9-Ordinary Earth, in the
presence of P.Ws.6 and 7 in the scene of occurrence under Ex.P.4-Mahazar.
11.On 07.08.1997 at 4.00 P.M., P.W.16 arrested the 3rd and 4th accused in
the presence of P.Ws.6 and 7 and recorded the voluntary confession statement of
3rd accused in the presence of the said witnesses. Ex.P.19 is the admissible
portion of the confession statement of third accused. On the basis of the
confession statement, he recovered M.O.5-knive and M.O.6-Aruval and M.O.7-Aruval
under Mahazar Ex.P.20. Then he handed over the accused and the Material Objects
to judicial custody.
12.Since P.W.16 was retired on 31.05.1999, the further investigation was
conducted by P.W.17-Nagarajan. On 05.08.1997, P.W.14-Muthuraman, Head Constable
received the postmortem certificate from P.W.17 and handed over the same to
Judicial Magistrate No.1, Thoothukudi at 4.30 P.M. Ex.P.14 is the passport given
to him to carry the postmortem certificate to Court. On 22.08.1997 at 20.00
hours, P.W.16 arrested A2 in the presence of Panneer and P.W.5 and recorded his
voluntary confession statement. Then, he sent Ex.P.21-Requisition Letter to the
Judicial Magistrate to send the material objects to forensic lab. Ex.P.22 is
the office copy of the letter sent by the Magistrate to the Forensic Lab.
Ex.P.23 is the Chemical Analysis Report and Ex.P.24 is the Serological Report
received by the Court.
13.After enquiring the witnesses and after completing the investigation,
on 22.10.1997, P.W.27 filed charge sheet against the accused. He also enquired
Crime No.149 of 1997 registered on the basis of the complaint given by A2 and
filed referred charge sheet. Ex.P.25 is the referred charged sheet filed by
him.
14.Before the trial Court, P.Ws.1 to 17 were examined and Exs.P.1 to P.25
and M.Os.1 to 13 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. There was no oral or documentary evidence adduced on the side of
the accused.
15.On consideration of the evidence on record, the learned Additional
District and Sessions Judge cum Chief Judicial Magistrate, Thoothukudi, found
the appellants/accused No.1 to 5 guilty under Sections 148 and 302 r/w 149
I.P.C. and also found appellants /accused Nos.1 to 4 guilty under Section 307
r/w 34 I.P.C. and sentenced A1 to A5 to undergo Rigorous Imprisonment for a
period of one year each for the offence under Section 148 I.P.C. and sentenced
A1 to A5 to undergo life imprisonment and to pay a fine of Rs.1,000/- each in
default to undergo Simple Imprisonment for a further period of 3 months each for
the offence under Section 302 r/w 149 and sentenced A1 to A4 to undergo 7 years
Rigourous Imprisonment and to pay a fine of Rs.1,000/- each in default to
undergo Simple Imprisonment for a further period of 3 months each for the
offence under Section 307 r/w 34 I.P.C.
16.Challenging the judgment of the learned Additional District and
Sessions Judge cum Chief Judicial Magistrate, Thoothukudi, the present Criminal
Appeal has been filed by the appellants/accused Nos.1 to 5.
17.Now the question that needs to be answered in this appeal is whether
the accused No.1 to 5/ appellants could be held guilty under Sections 148 and
302 r/w 149 I.P.C. and accused Nos.1 to 4/appellants could be held guilty under
Section 307 r/w 34 I.P.C.
18.Crl.A.No.834 of 2001 was filed by accused Nos.1, 3 and 4,
Crl.A.No.992/2001 was filed by the 5th accused and Crl.A.No.370 of 2003 was
filed by the 2nd accused. Since all the appeals arises out of the same judgment
in Sessions Case No.374 of 1998, a common judgment is pronounced in these
appeals.
19.P.W.1-Paradesi Konar’s son-in-law is deceased Ramasamy. P.W.4-Ulagammal
is the wife of deceased Ramasamy. P.W.2-Periyadurai and P.W.3-Muthuputhiyavan
are the sons of P.W.1. There was long enmity between the accused and the
complainant party. There was dispute between P.W.1’s son-in-law and accused in
respect of a property. Manthira Konar contested the panchayat election. P.W.1’s
son-in-law’s relative also contested the election. There was dispute in the
election. Further, aggravating the situation, there was a dispute between
deceased Ramasamy and the accused regarding grazing of cattle in the garden of
1st accused’s brother, as a result of which there was exchange of blows. So the
accused have grudge over the deceased. Then at the request of P.W.1, P.W.4 and
her husband deceased Ramasamy came to the place of P.W.1.
20.The motive portrayed and projected by the prosecution is enmity between
the accused and deceased Ramasamy. Further Ex.P.16 would show that a complaint
was given by Punga Konar against the deceased and another on 19.07.1997 and the
same was registered in Crime No.136 of 1997. It also go to show that there is
enmity between the parties much prior to the occurrence. On the fateful day,
i.e., on 04.08.1997, P.W.1’s son-in-law was murdered. P.Ws.1 and 2 spoke about
the occurrence because they accompanied the deceased. P.W.1 spoke specifically
about the overt acts of each of the accused.
21.Learned counsel for the appellants raised a doubt about the presence of
P.W.2 in the place of occurrence because P.W.2 was not injured. The evidence on
record would show that on seeing the occurrence, P.W.2 ran away from the place
for safety. Further, the presence of P.W.2 in the scene of occurrence is
established by the complaint was given by Mariappan, the second accused herein
against the complainant party viz. P.Ws.1 and 2 and son-in-law of P.W.1. The
said complaint was registered in Crime No.149 of 1997 and the same was referred
as mistake of facts, which is evident from Ex.P.25. This would show the presence
of P.W.2 in the scene of occurrence and it also shows the fact that even the
accused admitted the presence of P.W.2 in the scene of occurrence. So, the doubt
raised about the presence of P.W.2 in the scene of occurrence is not acceptable.
22.The enmity between the accused and the complainant party is
established. Eye-witnesses spoke correctly about the attack on the victim. The
victim sustained so many injuries which is evident from the postmortem report.
The external injuries sustained by the victim is as follows:
“1.Incised wound 6x3x3 on the back of left of shoulder.
2.Incised wound over back of skull (occipital region) 8 x 2 x 2cm exposing bone.
3.Incised wound over left frontal bone 6 x 2 x 2cm bone exposed.
4.Transverse incised wound over vertex 5 x 2 x 2cm bone exposed.
5.Incised wound vertically over the injury No.(4) 8 x 2 x 2cm bone exposed.
6.Incised wound over right wrist dorsum 5 x 2 x 2cm.
7.Incised wound below right elbow 4 x 1 x 1cm.
8.Incised wound below left ear 3 x . x . cm.
9.Stab injury above he sternal notch 5 x 3 x 5cm.
10.Incised wound above injury No.9 3 x . x .cm.
11.Stab injury below right knee 2 x 1 x 3cms.
12.Stab injury below medial side of right knee 2 x 1 x 3cms.
13.Incised wound above right knee in the middle of right thigh 3 x 1 x 1cm.
14.Incised wound above left knee 8 x 2 x 5cms.
15.Incised wound above wound No.14 (6x1x1cms).”
23.At this juncture, learned Senior counsel argued that the second accused
sustained injury and it was not explained, so, the prosecution case is bound to
fail. In support of his contention, he relied on the decision of the Hon’ble
Supreme Court in Lakshmi Singh v. State of of Bihar reported in AIR 1976 SUPREME
COURT 2263 and the decision of this Court in Ebanesar & Anr., etc. v. State by
Inspector of Police, Panagudi P.S., Tirunelveli Kattabomman District, etc.
reported in 2001(1) MWN (Cr.) 140 and argued that the non explanation of injury
is fatal to the prosecution case. No doubt, in this case P.Ws.1 and 2 were not
prepared to accept the injury on the second accused. On the other hand P.W.9-
Dr.Mariyam Beevi, who treated the accused Mariappan on the same day in the early
morning pointed out that the second accused sustained the following two
injuries:
“1.Cut Injury over left knee 5cm x 3cm x 3cm.
2.Cut Injury over Right fore arm 2cm x .5cm x .5cm.”
P.W.1 was treated by her on 04.08.1997 at 10.30 P.M. and the second accused was
treated by her on 05.08.1997 at 00.45 A.M. Both P.W.1 and the second accused
sustained fracture in the occurrence. Though the investigating officer referred
the case registered on the basis of the complaint given by the second accused as
mistake of facts, the injuries sustained by the second accused would speak about
the attack on the second accused. The investigating officer P.W.16 admitted in
his evidence that he is aware of the injury sustained by the second accused in
the right hand and left leg. Further, his evidence would show that A2 sustained
injury in the same course of occurrence. So, the injury sustained by the second
accused cannot be brush aside easily. He suffered severe injuries and he was
admitted in the hospital on 05.08.1997 and he was discharged only on 22.09.1997.
It was admitted by P.W.17. So, it is clear that there was fight between both
the parties and both the accused and the complainant sustained injuries. So, we
are not inclined to accept Ex.P.25-referred charge sheet alleging that the
accused themselves attacked the second accused.
24.The attack made by the accused on the victim is a sudden attack without
predetermination. But they have the knowledge that it will result in the death
of the victim. So, we are of the considered opinion that the accused are liable
to be punished under Section 304(i) I.P.C. Since the attempt made by accused
Nos.1 to 4 to kill P.W.1 is proved beyond reasonable doubt, they are liable to
be punished under Section 307 r/w 34 I.P.C. and they may be imposed with
Rigorous Imprisonment for a period of 3 years and to pay a fine of Rs.1,000/- in
default to undergo Simple Imprisonment for a further period of three months.
Since the accused attacked the victim and P.W.1 due to sudden quarrel they are
not liable to be punished under Section 148 I.P.C. and the conviction and
sentence imposed on them under Section 148 I.P.C. is liable to be set aside.
25.Accordingly, these Criminal Appeals are partly allowed and the
conviction of the appellants in these appeals/accused Nos.1 to 5 under Section
302 r/w 149 I.P.C. by the Trial Court is modified to one under Section 304(i)
I.P.C. and the sentence of life imprisonment with a fine of Rs.1,000/- in
default to undergo Simple Imprisonment for a further period of three months
imposed by the trial Court stands modified to 7 years Rigorous Imprisonment with
a fine of Rs.1,000/- in default to undergo Simple Imprisonment for a further
period of three months and the conviction of appellants in Crl.A.Nos.834 of
2001 and 370 of 2003/accused Nos.1 to 4 by the Trial Court is confirmed and the
sentence of 7 years Rigorous Imprisonment with a fine of Rs.1,000/- in default
to undergo Simple Imprisonment for a further period of three months imposed by
the Trial Court stands modified to 3 years Rigorous Imprisonment with a fine of
Rs.1,000/- in default to undergo Simple Imprisonment for a further period of
three months. The conviction and sentence imposed by the trial Court on the
appellants in these appeals/Accused Nos.1 to 5 under Section 148 I.P.C. is set
aside. The period of imprisonment already undergone by the appellants /accused
shall be given set off. The sentences imposed on the appellants/accused shall
run concurrently. The respondent is directed to take steps to procure the
appellants/accused for undergoing remaining period of sentence.
sj
To
1.The Additional District and Sessions Judge
cum Chief Judicial Magistrate,
Thoothukudi.
2.The Inspector of Police,
Pudhiyamputhur Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.