BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 5/7/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY CRL.A.(MD) No.373 of 2009 and CRL.A.(MD) No.374 of 2009 and CRL.R.C.(MD) No.3 of 2010 1.Muthu 2.Nagasamy 3.Srinivasan 4.Murugan @ Balamurugan 5.Pandi .. Appellants in CA 373/2009 P.Kumaresan .. Appellant in CA 374/2009 vs State through The Inspector of Police Anna Nagar PS Madurai District In Cr.No.734/07 .. Respondent in
both appeals
CRL.R.C.No.3/2010
Marisamy .. Petitioner in
vs
1.Muniyasamy
2.Shanmugavel
3.Selvam
4.State rep. by
The Inspector of Police
E3 Anna Nagar (Law and Order)
Cr.No.734/07
Madurai District .. Respondents
Criminal appeals preferred under Sec.374(2) of the Code of Criminal
Procedure against the judgment of the Additional District and Sessions Judge,
FTC No.III, Madurai, made in S.C.Nos.132 of 2008 and 285 of 2008 dated
30.9.2009.
Criminal Revision Case preferred under Sec.401 read with 397 of the Code
of Criminal Procedure against the judgment of the Additional Sessions Judge, FTC
No.III, Madurai, made in S.C.No.132 of 2008 dated 30.9.2009 in respect of the
respondents 1 to 3/A-7, A-8 and A-10.
!For Appellants ... Mr.N.Natarajan in both appeals Senior Counsel & respondents for Mr.C.Arulvadivel 1 to 3 in alias Sekar Crl.RC For Petitioner ... Mr.R.Venkateswaran ^For Respondent in both appeals & 4th respondent in Crl.RC ... Mr.K.N.Pandi Durai Additional Public Prosecutor :COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This judgment shall govern both these appeals namely Crl.A.Nos.373 and 374
of 2009 whereby A-1, A-2 and A-4 to A-8 in S.C.No.132 of 2008 and also A-2 in
S.C.No.285 of 2008 have challenged a judgment of the Additional Sessions
Division, Fast Track Court No.III, Madurai, whereby they along with A-10 stood
charged as follows:
ACCUSED CHARGES A-1 to A-6 & A-10 148 of IPC A-1 to A-6 302 of IPC A-10 302 read with 149 IPC A-7 & A-8 302 read with 109 IPC A-1 to A-9 120(B) IPC
2.On trial, A-1 to A-6 were found guilty under Sections 148 and 302 of IPC
and were sentenced to undergo three years Rigorous Imprisonment under Sec.148 of
IPC and to undergo life imprisonment under Sec.302 of IPC, while A-7, A-8 and A-
10 were acquitted of all the charges levelled against them. A-1 to A-6 were
acquitted of the charge under Sec.120(B) IPC. The revision case has been brought
forth by the de-facto complainant challenging that part of order of acquittal.
3.The short facts necessary for the disposal of these appeals and the
revision case can be stated thus:
(a) P.Ws.1 and 6 are the parents of the deceased Manikandan. One year
prior to the occurrence, there was a proposal for the marriage of A-3 with the
daughter of the co-brother of P.W.1 who is examined as P.W.5. When the said
proposal was rejected by the family of P.Ws.1 and 6, the families were on
inimical terms. An incident had taken place on 2.6.2006, in which A-1 was
assaulted by the deceased, and a case came to be registered by Pudur Police
Station in Crime No.562 of 2006 pursuant to which the parties continued to have
their enmity.
(b) On the date of occurrence, that was on 3.6.2007, when P.W.1 and his
wife P.W.6 were in the house, P.W.2, the brother-in-law of P.W.1, rushed over
there and informed them that when he was coming across the bazaar near Anna
Statue, he found A-1 to A-8 in an assembly, and A-7 was telling that from the
time of the earlier occurrence, one year was over, and if not the deceased was
put an end, it would be a dishonour to the family, and hence something should be
done immediately. The same view was concurred by A-8. In reply, A-1 to A-6 told
them that they need not bother about the same, and they would come with a good
news. Then P.W.1 accompanied by P.W.2 took his car driven by the driver, and
when they were just coming on the way, they found P.Ws.3 and 4 rushing in the
opposite direction, and they enquired them. P.Ws.3 and 4 informed that the son
of P.W.1 Manikandan was being attacked by number of persons. Then P.W.1 asked
his driver to take the car with high speed, and the car was just moving near
Race Course Road, when P.Ws.1 and 2 found A-1 to A-4 and A-6 armed with aruvals
and A-2 with a sword and were attacking him indiscriminately. They were able to
see the occurrence from the street light and also with the help of the car light
since they were inside the car. Then A-1 to A-6 fled away from the place of
occurrence.
(c) Immediately, P.Ws.1 and 2 got down from the car and when P.W.1 lifted
Manikandan, he found him dead. He immediately rushed to the respondent police
station and gave Ex.P1, the report, to P.W.17, the Inspector of Police. On the
strength of Ex.P1, the complaint, he registered a case in Crime No.734 of 2007
under Sections 147, 148, 341, 324, 302 and 120(B) of IPC. The printed FIR,
Ex.P20, was despatched to the Court.
(d) The Inspector of Police who registered the case, took up
investigation, proceeded to the spot, made an inspection and prepared an
observation mahazar, Ex.P2, and also a rough sketch, Ex.P21. Then he recovered
the bloodstained earth and sample earth from the place of occurrence. He
conducted inquest on the dead body in the presence of witnesses and
panchayatdars and prepared an inquest report, which is marked as Ex.P22.
Following the same, the dead body was sent to the Government Hospital for the
purpose of autopsy.
(e) P.W.12, the Reader in Forensic Medicine & Office of District Police
Surgeon, Madurai Medical College, on receipt of the requisition, conducted
autopsy on the dead body of Manikandan and has found 13 external injuries. The
Doctor has issued a postmortem certificate, Ex.P14, with his opinion that the
deceased would appear to have died of shock and haemorrhage due to external
injuries 01 – 05 and its corresponding internal injuries and cumulative effect
of all other injuries, 8 – 12 hours prior to autopsy.
(f) Pending the investigation, A-1, A-3 and A-4 were arrested on 5.6.2007,
when they came forward to give confessional statements. They were recorded in
the presence of witnesses. They are marked as Exs.P4, 6 and 8 respectively, and
three aruvals were recovered from them under a cover of mahazar. Further A-6
was arrested on 11.6.2007. He also gave a confessional statement, the same was
recorded. A-10 who surrendered on 7.6.2007, was taken into police custody, and
he gave a confessional statement voluntarily. A-7 surrendered before the Court
on 15.6.2007. That apart, on 10.9.2007, A-2 was taken into police custody, and
he volunteered to give a confessional statement, which was recorded. The
admissible part is marked as Ex.P28. A-5 surrendered before the Judicial
Magistrate’s Court and a confessional statement was recorded from him while he
was in police custody. All the accused were sent for judicial remand.
(g) A requisition was made by the Investigator to the concerned Judicial
Magistrate for putting forth all the material objects for chemical analysis, and
accordingly they were subjected to, which has brought forth two reports namely
Ex.P25, the chemical analyst’s report, and Ex.P26, the serologist’s report.
P.W.18, the Inspector of Police, took up further investigation and on completion
of the same, filed the final report.
4.After the charge sheet was filed against 10 accused, A-9 was absconding.
Under the circumstances, the case was split up in respect of A-9. After the
case was taken on file, A-3 was absconding. Then the case was split up in his
regard, and as far as the other accused are concerned, it was taken in
S.C.No.132 of 2008. So far as A-3 was concerned, he was secured before the
trial was commenced, and it was taken in S.C.No.285 of 2008. Both the cases
were taken up jointly for trial, and necessary charges were framed. In order to
substantiate the charges, the prosecution examined 18 witnesses and also relied
on 29 exhibits and 17 material objects. On completion of the evidence on the
side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as
to the incriminating circumstances found in the evidence of the prosecution
witnesses which they flatly denied as false. No defence witness was examined.
The trial Court heard the arguments advanced on either side and took the view
that the prosecution has proved the case beyond reasonable doubt in respect of
A-1 to A-6 under Sections 148 and 302 of IPC and hence found them guilty and
awarded the punishment as referred to above. Hence these appeals at the
instance of the appellants. Aggrieved over the part of acquittal of A-7, A-8
and A-10, the de-facto complainant has brought forth the criminal revision case
before the Court.
5.Advancing arguments on behalf of the appellants, the learned Senior
Counsel Mr.N.Natarajan would submit that in the instant case, the prosecution
came out with the story that when P.W.2 was going in a bazaar, he found all the
accused persons hatching up a conspiracy, and he immediately came to the house
and informed his brother-in-law P.W.1 about the conspiracy; that the trial Judge
was not ready to believe the evidence of P.W.2 for two reasons; that firstly,
the conspiracy could not have taken place in a public place like bazaar as put
forth by P.W.2 and secondly there was a vital discrepancy between the statement
recorded by the Investigator under Sec.161(3) of Cr.P.C. and the evidence before
the trial Court; that the trial Judge has rightly rejected the conspiracy
theory; that it is pertinent to point out that the prosecution has rested its
entire case mainly on the conspiracy spoken to by P.W.2 through whom conspiracy
was put forth; that in such circumstances, the trial Judge should have
disbelieved the evidence of P.W.2 in toto, but has erroneously accepted the
evidence of P.W.2 that he has given the information; that apart from that, the
evidence of P.W.2 could not be believed for more reasons than one; that P.W.6 is
the wife of P.W.1; that according to her, she was actually in the house; but the
entire narration as spoken to by P.W.2 has not even been whispered by P.W.6 in
her evidence, and thus it would clearly indicate that P.W.2 has been a planted
witness; that if the evidence of P.W.2 was not to be believed, then no question
of believing the evidence of P.W.1 would arise; that had P.W.2 not informed
P.W.1 about the conspiracy, there is no reason for P.W.1 going out of the house
along with P.W.2 in his car by taking the driver; that actually the alleged
driver who drove the car, has not been examined by the prosecution; that
according to the witnesses, when they were proceeding, they found P.Ws.3 and 4
on the way who were coming in the opposite direction, and who informed P.Ws.1
and 2 that the son of P.W.1 Manikandan was being attacked indiscriminately by so
many persons; and that it is unfortunate for the prosecution that P.Ws.3 and 4
have turned hostile.
6.Added further the learned Senior Counsel that it is pertinent to point
out that such an occurrence could not have been witnessed by them at all; that
according to P.W.2, the occurrence has taken place just 500 meters away when
they were actually proceeding in the car, and it has taken place at about 11.00
P.M. on 3.6.2007; that it is nearly about 3 or 4 furlongs; that under the
circumstances, P.Ws.1 and 2 could not have seen the occurrence during night
hours; that even the street light is also situated away from the place; that
with the help of street light also, they could not have seen the occurrence;
that according to P.W.2, immediately he gave a phone call to the Control Room at
11.50 P.M., but no records were forthcoming, and thereafter, he gave the
complaint to the police at 0030 hours on 4.6.2007; that there was a delay of 1
hour and 30 minutes from the time of occurrence; that the police station is also
situated within one kilometer from the place of occurrence; that such a delay
coupled with the fact that they could not have seen the occurrence as stated
above would go a long way to show that P.Ws.1 and 2 could not have seen the
occurrence at all; that the person who registered the case namely the
Investigator, has stated that who wrote the FIR and who wrote Ex.P1, he did not
know; that P.W.1 is the author of Ex.P1; but he differs at number of places as
to by whom it was written; that the delay that was caused in giving the report
and the way in which the report Ex.P1, has come into existence both put together
would go to show that Ex.P1 could not have come into existence in time; and that
it would also further speak about the fact that P.Ws.1 and 2 could not have seen
the occurrence at all.
7.The learned Senior Counsel would further urge that as far as the
recovery of weapons of crime was concerned, the trial Judge should have
disbelieved that part of the evidence in toto for two reasons; that firstly,
only one sword was actually recovered from the place of occurrence which is
alleged to have been used by A-5; that as far as A-1 to A-4 and A-6 were
concerned, all of them wielded aruvals according to the witnesses; that
according to the Investigator, all have produced the weapons of crime, and they
were recovered in the presence of witnesses; but it is a matter of surprise to
note that the weapons were recovered after a few days; that the Investigator has
spoken to the fact that they were actually keeping all the weapons in their
body; that all are big and lengthy weapons; that in such circumstances, it is
quite unnatural for anybody keeping the weapons attached with the body after a
number of days; that apart from that, as far as all the weapons were concerned,
they were actually sent for chemical analysis except the sword, which, according
to the witnesses, was wielded by A-5, and no one weapon was found to be with
human blood, and hence they were not actually put forth for serology test; that
all would go to show that if they were actually cutting the deceased
indiscriminately with those weapons, they should have definitely contained with
human blood, but no human blood was found; and that all would go to show that
the recovery was actually introduced for the purpose of the prosecution case.
8.Added further the learned Senior Counsel that as far as P.Ws.1 and 2 are
concerned, they have given complete narration speaking of the injuries when
their statements were recorded by the Investigator under Sec.161 of Cr.P.C., but
when they came before the Court, they have not narrated even one injury, and
instead, they have repeatedly spoken that the accused caused injuries
indiscriminately; that all would go to show that these two witnesses could not
have seen the occurrence at all; that the delay coupled with the above facts
would go to show that the prosecution has miserably failed to prove its case;
but, the trial Judge has taken an erroneous view, and hence they are entitled
for acquittal in the hands of this Court which the trial Judge has failed to do.
9.The Court heard the learned Additional Public Prosecutor on all the
above contentions.
10.The Court heard the learned Counsel Mr.R.Venkateswaran who argued the
revision case. According to him, the trial Judge has acquitted the respondents
1 to 3 erroneously, and as far as the discrepancy noticed by the trial Judge
between the statements given by the witnesses to the Investigator and also the
evidence before the Court is concerned, that by itself cannot be a reason to
reject the conspiracy theory or acquit them, and under the circumstances, the
order or acquittal has got to be set aside, and they have got to be dealt with
in accordance with law.
11.This Court paid its anxious consideration on the submissions made and
looked into all the materials available.
12.It is not in controversy that one Manikandan, the son of P.Ws.1 and 6,
was done to death in an incident that took place at 11.00 P.M. on 3.6.2007. The
dead body was subjected to postmortem by P.W.12, the Doctor, following the
requisition made by the Investigator who conducted the inquest on the dead body.
The postmortem Doctor has categorically deposed that he died out of shock and
haemorrhage due to external injuries 01 – 05 and its corresponding internal
injuries and cumulative effect of all other injuries. The fact that Manikandan
died out of homicidal violence was never disputed by the appellants before the
trial Court, and hence the trial Judge was perfectly correct in recording so.
13.In order to substantiate the theory of conspiracy and also the incident
that had taken place at 11.00 P.M. on 3.6.2007, in which Manikandan was put an
end, the prosecution mainly relied on the evidence of P.Ws.1 to 5.
Unfortunately, P.Ws.3 and 4 have turned hostile. According to P.W.2, he was
actually proceeding in the bazaar, and at that time, he found all the accused
persons standing in the opposite side, and they were hatching up a conspiracy,
and after hearing the same, he rushed home and informed to P.W.1, and thereafter
P.W.1 accompanied by P.W.2 went in the Car driven by the Driver. True it is,
the learned trial Judge has disbelieved the theory of conspiracy as spoken to by
P.W.1. On perusal of the materials available and also the judgment under
challenge, this Court has to necessarily agree with the learned trial Judge who
rejected the conspiracy theory. At this juncture, the contentions put forth by
the learned Counsel for the revision petitioner cannot be accepted, and that
part of the judgment has got to be affirmed.
14.Insofar as the part of crime alleged to have been committed by A-1 to
A-6, now the case of the prosecution is that on being informed by P.W.2, P.W.1
accompanied by him went in his car, and while they were proceeding, P.Ws.3 and 4
were coming in the opposite direction, and they informed them that Manikandan
was being attacked by number of persons, and then P.W.1 asked his driver to take
the car speedily, and accordingly, they were proceeding near Race Course Road,
where they found all the accused persons armed with deadly weapons namely A-1 to
A-4 and A-6 with aruvals and A-5 with sword, and indiscriminately attacking him,
and both of them were witnessing the same from inside the car. The trial Judge
has believed the evidence of P.Ws.1 and 2 along with the other attending
circumstances in the evidence to take a decision that the prosecution has proved
that there was an unlawful assembly with the common object of killing Manikandan
and in furtherance of the same, they have acted so and caused his death, and
hence found them guilty for those offences. On scrutiny of the evidence
available, this Court is of the considered opinion that the learned trial Judge
has taken a correct view in coming to the conclusion.
15.According to P.Ws.1 and 6, they were actually in the house at about
10.00 P.M., and at that time P.W.2 came over there and informed that their son
Manikandan was about to be attacked. According to P.W.6 wife, her husband P.W.1
left the house along with her brother P.W.2. She has categorically stated that
within 10 minutes from the time of information, P.W.1 accompanied by P.W.2 left
the house, and within half an hour she received information that her son was
murdered. Thus the evidence of P.W.6 inspired the confidence of the Court.
That apart, P.Ws.1 and 2 have spoken in one voice that they proceeded from the
place, and while they were going in the car, they found P.Ws.3 and 4 coming in
the opposite direction, and they informed them that Manikandan was being
attacked. Both of them have spoken to the fact that the Driver was asked to
take the car speedily, and when they were just proceeding at the Race Course
Road, they found six persons indiscriminately cutting the deceased Manikandan.
Now the learned Senior Counsel brought to the notice of the Court that P.Ws.1
and 2 could not have seen the occurrence at all, and according to P.W.2, even
the light post was actually situated away, and they were proceeding just about
500 meters away from the place of occurrence. This Court is of the considered
opinion that these measurements given by him that they saw the occurrence from
500 meters away and the contention that they could not have seen the occurrence
cannot be given importance at all. There are two documents available to
indicate that the occurrence has taken place in a place where there were
sufficient light. They are Ex.P21, the rough sketch, wherein two light posts
are shown on the one side situated within 15 feet and on the other side situated
within 30 feet, and Ex.P2, the observation mahazar, would clearly indicate that
the occurrence has taken place just in front of the Government Press, and sodium
lamp post is also found therein. Both P.Ws.1 and 2 were actually sitting in the
car. It is not their evidence that they have got down from the Car to see the
occurrence, but from inside the car, they have witnessed the occurrence. As far
as the evidence of P.Ws.1 and 2 are concerned, the trial Judge has properly
marshalled that there is nothing to find fault with.
16.Apart from the above, the evidence of these witnesses has got to be
taken as true and genuine since other circumstances are also noticed. The
occurrence has taken place at about 11.00 P.M. and the eyewitnesses were under
the grip. Even then they have immediately phoned over to the Control Room at
about 11.50 P.M., and it is actually mentioned in Ex.P1, the complaint.
Thereafter they rushed to the respondent police station which is situated within
1 kilometre, and the complaint was given. The case was registered at about 0030
hours, and the FIR along with Ex.P1 also reached the Judicial Magistrate at
about 2.30 A.M. on 4.6.2007. As regards the comment made by the learned Senior
Counsel for the appellants that there was a delay, this Court is unable to
countenance the same since the occurrence has taken place at 11.00 P.M., and the
information was given to the control room at 11.50 P.M., and the complaint,
Ex.P1, was given at the police station at 12.30 A.M., and the FIR has reached
the Magistrate at about 2.30 A.M. All would indicate the fact that without
delay the case has been registered. The other comment made by the learned
Senior Counsel is that the eyewitnesses have given a clear narration and
accounting of the cuts at the time when they were interrogated by the police
under Sec.161(3) of Cr.P.C.; but when they came before the Court, they could not
give description, and they have spoken that all the accused persons armed with
deadly weapons indiscriminately attacked the deceased. Now, at this juncture,
it is pertinent to point out that when the occurrence has taken place at about
11.00 P.M. and that too when the son of P.W.1 was being attacked
indiscriminately by number of persons, and that too when they were actually
sitting in the car, no question of narration or accounting would arise. Even if
such accounting is given, it would cast a doubt upon the same. It is not in
controversy that all the accused persons were already known to P.Ws.1 and 2.
All would go to show that P.Ws.1 and 2 have seen the occurrence because of which
they were able to narrate the same. Now, at this juncture, by whom Ex.P1
complaint was written is not material. But what is material is whether Ex.P1
complaint contains the necessary particulars. Now Ex.P1 complaint contains the
time, place of occurrence, the assailants and also the eyewitnesses who have
actually been in the place of occurrence. Now the contentions put forth by the
learned Senior Counsel in that regard are liable to be rejected and accordingly,
rejected.
17.Added further the learned Senior Counsel that insofar as the recovery
part is concerned, it is highly artificial. This Court has to necessarily agree
with the learned Senior Counsel. All the accused, according to the
Investigator, were arrested on 5.6.2007 and 10.6.2007 respectively, and they
were found to be in possession of the lethal weapons which were big and lengthy.
The fact that these weapons were hidden in their body cannot be believed. Added
circumstance to disbelieve that part is that no one weapon contained human
blood, and that part of the evidence of the prosecution should have been
rejected. At this juncture, it is pertinent to note that in a given case like
this, even if the Court is unable to agree with the evidence of the prosecution
with regard to the recovery following the confessional statement, it is not
necessary that the prosecution case should be disbelieved. In the case on hand,
even barring the confession and recovery of the weapons of crime, this Court is
able to see that there is sufficient evidence for the prosecution to indicate
that there was an unlawful assembly and in furtherance of the common object of
A-1 to A-6 to kill Manikandan, they have acted so. Further the occurrence has
taken place at 11.00 P.M. in a solitary place where Manikandan was being cut
indiscriminately by A-1 to A-6 at the time and place of occurrence, and unless
and until there was a common object in furtherance of which A-1 to A-6 have
acted so, they could not have committed the offence. All would go to show that
it was with the common object and in furtherance of killing him, they have acted
so and caused his death. It remains to be stated that the evidence of P.Ws.1
and 2 stood fully corroborated by the medical evidence. Though the prosecution
was unable to stand on its evidence regarding confession and recovery and
scientific evidence, the prosecution has proved the case by resting the same on
P.Ws.1 and 2 and also the medical evidence adduced which, in the considered
opinion of the Court, would suffice for bringing home the guilt of the accused
as one done by the prosecution before the trial Court. Under the circumstances,
this Court is unable to agree with the contentions put forth by the learned
Senior Counsel for the appellants. Accordingly, they are rejected. The trial
Judge was perfectly correct in finding them guilty under Sections 148 and 302 of
IPC. The judgment of the trial Court is factually and legally found to be
correct. Accordingly both these criminal appeals fail, and they are dismissed
confirming the judgment of the trial Court.
18.Equally, the contentions put forth by the learned Counsel for the
revision petitioner, in view of the reasons as stated above, cannot be accepted,
and they are liable to be rejected and accordingly rejected. Hence the criminal
revision case is also dismissed.
nsv
To
1.The Additional District and Sessions Judge
FTC No.III, Madurai.
2.The Inspector of Police
Anna Nagar PS
Madurai District
In Cr.No.734/07
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
