JUDGMENT
M. Karpagavinayagam, J.
Page 1927
1. The appellants in Crl.A. No.527 of 2003 and the appellant in Crl.A. No. 466 of 2003 are A-1 and A-3; and A-2 respectively in S.C. No. 161 of 1998 on the file of the learned Additional District and Sessions Judge-cum-Fast Track Court No. I, Chengalpattu, Kancheepuram Division. They were convicted for the offences punishable (i) under Sections 449 IPC and each sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1000/-, in default, to undergo one year rigorous imprisonment; (ii) under Section 394 r/w 397 IPC and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for one year and (iii) under 302 r/w 34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 2000/-, in default, to undergo rigorous imprisonment for one year. Challenging the same, the appellants have filed the above appeals.
2. The short facts leading to the conviction are as follows:
a) The deceased in this case is one Lt. Col. N.K. Madhavan, a retired man, who was staying with his wife P.W.4 and daughter P.W.1 Roopa Madhukumar. P.W.1’s husband had been at Oman and at that time, P.W.1 along with her daughter was staying with her parents.
b) On the fateful day of occurrence which took place on 03.09.1997, P.W.4, the wife of the deceased, had been to recreation club at about 11.30 a.m. P.W.1 and her daughter were inside the house watching T.V. along with the deceased Madhavan .
c) At that time, A1 to A3, came to the house and requested the deceased Madhavan to give them drinking water. The deceased went to the kitchen and brought them water and they drank the same. Even thereafter, they were standing near the entrance and watching the T.V.
d) On seeing the accused standing near the entrance, under a cloud of suspicion, P.W.1 asked the deceased as to why the accused were standing still. The deceased told her that they were watching TV. In order to make them leave the place, she switched off the T.V. and called her daughter to come inside the house.
e) At that point of time, A1 and A2 entered into the house, A1 Prakash took the knife M.O.1 and threatened P.W.1 to part with them the gold and cash. On seeing that, the deceased Madhavan caught hold of the knife and at that time, A2 Sathiya @ Sathyam attacked P.W.1 with M.O.2 hacksaw blade on the back side of her head and on her arms.
f) Then, P.W.1 Roopa Madhukumar ran inside the bedroom. In the meantime, A1 Prakash stabbed the deceased on his back and stomach with the knife. A2 Sathya alias Sathyam chased P.W.1 towards the bedroom and pushed her on the bed. She managed to get up and take her daughter and went inside the bath room and locked the door from inside.
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g) Thereafter, P.W.1 shouted for help from the public through the window. In the meantime, the accused persons sped away from the place.
h) P.W.1 opened the door and came out of the bedroom and saw her father the deceased coming towards her room from the gate with injuries.
i) P.W.3 Gunasekaran, a neighbour and Aruldoss, watchman, chased the accused persons in a Maruthi Car and P.W.2 Vijay Anand, another neighbour, in a Scooter. Ultimately, P.W.2 and Aruldoss caught hold of A.1 Prakash and A.3 Saravanan.
j) While catching hold of them, Aruldoss, the watchman, attacked A1 Prakash on his leg with M.O.4 aruval, and his dog had bitten the leg of A3 Saravanan. Then, P.W.2 Vijay Anand snatched the knife from the accused and both the accused were tied up with their shirts and were brought near the house and made them to sit there itself. In the meantime, A2 Sathya alias Sathyam managed to escape and ran away.
k) P.W.4 Sethulakshmi, the wife of the deceased, came from the Club and with the help of P.W.3 Gunasekaran, both the deceased and P.W.1 were taken to St. Thomas Hospital. P.W.1 and the deceased were given treatment. Ex.P.31 is the Accident Register relating to P.W.1.
l) In the meantime, on receipt of the telephonic message, P.W.10 Sub Inspector of Police, Nandambakkam Police Station, came to the scene of occurrence. He sent a message to P.W.13, Inspector of Police.
m) P.W.13 Inspector of Police, on receipt of the message from P.W.10, went to the hospital and recorded a statement from P.W.1 and registered a case in Crime No. 308 of 1997. Ex.P.25 is the First Information Report.
n) P.W.13 Inspector of Police thereupon came to the scene of occurrence and observed all the formalities. He prepared Ex.P.26 observation Mahazar, drew Ex.P.27 rough sketch, collected bloodstained earth, arrested A1 and A3 and seized M.Os.8, 9 and 11 the bloodstained clothes from them. On their confession, it was found out that A2 Sathya alias Sathyam was also involved in the commission of the offence.
o) P.W.13 Inspector of Police received the death intimation of the deceased on the same day at about 3.40 p.m. and thereafter, he altered the offence into one under Section 302 IPC and prepared Ex.P.29 Express Report.
p) Thereafter, P.W.13 Inspector of Police held an inquest over the body of the deceased between 4.00 p.m. and 5.00 p.m., prepared Ex.P.30 inquest report and examined P.Ws.1 to 3.
q) P.W.7 Dr. K.Ravindran attached to the Government General Hospital, Royapettah, conducted autopsy on the dead body of the deceased on 04.09.1997 at 11.05 am and found as many injuries on the body of the deceased. In Ex.P.12 postmortem certificate, P.W.7 Doctor gave an opinion that the deceased would appear to have died of multiple injuries.
r) In the meantime, A1 and A3 who were found with injuries, were sent to the Government Hospital, Chrompet where P.W.5 Dr.Venkatraman gave treatment and issued Exs.P.4 and P.5 wound certificates relating to A1 and A3 respectively.
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s) P.W.13 Inspector of Police thereupon sent Ex.P.17 requisition dated 05.09.1997 to the Chief Judicial Magistrate, requesting him to direct the concerned Magistrate to conduct a test identification parade. The Chief Judicial Magistrate, passed an order, which was marked as Ex.P.18, directing the Judicial Magistrate No. 2, Poonamallee, to conduct test identification parade. Pursuant to the said order Ex.P.18, P.W.11, the Judicial Magistrate conducted identification parade on 24.09.1997. P.W.1 Roopa Madhukumar and Aruldoss, the watchman identified all the accused correctly. Ex.P.19 is the identification parade report submitted by P.W.11, the Judicial Magistrate No. 2, Poonamallee.
t)P.W. 14, the Inspector of Police, the successor of .W.13, took up further investigation and examined the other witnesses. In the meantime, P.W.14 arranged to send the material objects for chemical analysis. After completion of the investigation, he filed the charge sheet against the accused for the offences punishable under Sections 449, 394 r/w 397 and 302 r/w 34 IPC.
u) During the course of trial, on the side of the prosecution, P.Ws. 1 to 14 were examined, Exs.P1 to P.31 were filed and M.Os. 1 to 11 were marked.
v) When the accused were questioned under Section 313 of Cr.P.C about their complicity in the crime, they denied the same. However, no evidence was adduced on the side of the defence.
w) The trial Court, after appraisal of the evidence available on record, found the accused guilty of the offences under Sections 449, 394 r/w 397, 302 r/w 34 IPC and convicted and sentenced them as referred to above. Hence, these appeals.
3. Mr.Rupert J. Barnabas, learned counsel appearing for the appellant (A2) in Criminal Appeal No. 466 of 2003, while assailing the judgment of conviction, would make the following contentions:
i) Ex.P.31, the accident register relating to P.W.1 Roopa Madhukumar would indicate that P.W.1 told Dr.Meenakshi Pande, who gave treatment, that two persons attacked her. Admittedly, A2 was not arrested in the scene. He was arrested only on 04.09.1997 at 7.15 p.m. near Poonamallee.
ii) There are no materials to indicate as to how A2 was traced especially, when P.W.13 Inspector of Police would state during the course of deposition that he arrested A2 only on the confession of A1 and A3.
iii) Even though the occurrence is alleged to have taken place on 03.09.1997 at 11.30 a.m., the Express First Information Report reached the Magistrate only on the next day, i.e., on 04.09.1997.
iv) Both the original and the altered first information report reached the Court at the same time and there is no explanation for this delay.
v) Even though A1 and A3 were arrested on 03.09.1997, the identification parade was conducted only on 24.09.1997. This delay also has not been explained.
vi) Admittedly, at the time of occurrence, P.W.1 Roopa Madhukumar, the Page 1930 daughter of the deceased was present with her female child and there is no explanation as to why the child was not examined.
vii) One Aruldoss, the watchman of the Defence Colony, who is the material witness and who chased the accused and caught A1 and A3, has not been examined. The non-examination of the said Aruldoss would affect the case of the prosecution.
viii) The evidence of P.W.1 Roopa Madhukumar is not in consonance with the deposition of P.W.4 Sethulakshmi. There are variations in their evidence Therefore, A2 is liable to be acquitted by giving the ” benefit of doubt”.
4. Mr.Malarvannan, learned counsel appearing for the appellants, who are A1 and A3, in Crl.A. No.527 of 2003, while adopting the arguments of the learned counsel for A2, would submit that A3’s presence in the scene has not been established, especially when there is no specific overt act attributed against A3 and in the above circumstance, it cannot be said that he also participated in the commission of the offence.
5. On the above aspects, we have heard Mr.E.Raja, learned Additional Public Prosecutor.
6. We have given our thoughtful consideration to the contentions urged by the learned counsel for the parties and also gone through the records.
7. At the outset, it shall be stated that we are very much impressed by the evidence of P.W.1 Roopa Madhukumar, the daughter of the deceased Madhavan, who lodged the complaint with P.W.13 at 12.45 p.m. giving the full details about all the three accused.
8. According to P.W.1, on 03.09.1997, all the accused came to their house at 11.30 a.m. and asked for drinking water; the deceased gave drinking water to them and even after drinking the water, they were standing near the entrance which was questioned by P.W.1 and the deceased said that they were only watching the T.V. Having a cloud of suspicion on the accused, P.W.1 switched off the T.V., and went inside. At that point of time, A1 and A2 came inside the house, A1 Prakash took out knife and threatened P.W.1 Roopa Madhukumar to give them her jewels and cash.
9. At that time, the deceased Madhavan intervened and he was attacked by A1 Prakash. Expecting danger to her life, P.W.1 Roopa Madhukumar tried to escape by getting into the bedroom and at that time, A2 Sathya alias Sathyam also chased her towards the bedroom, pushed her on the bed, but however, she managed to get up and take her daughter from the bed and rushed to the bathroom and locked the door from inside and shouted for help from the public through the window .
10. In the mean time, A1 Prakash caused further injuries on the deceased. Ex.P.12 post mortem certificate says that the deceased sustained more than 12 injuries on all the vital parts of the body of the deceased. After some time, P.W.1 came out and saw the deceased coming from the gate, with so many injuries and thereafter, they were taken to the hospital. All these details Page 1931 have been given in Ex.A.1 complaint given by P.W.1 to P.W.13 Inspector of Police at about 12.45 p.m.
11. Much was said about the delay. We are not impressed with regard to the said argument. As a matter of fact, there is no delay in registering the complaint. On receipt of the telephonic message, P.W.10 Sub Inspector of Police came to the scene of occurrence and then after seeing the accused, who were caught red-handed, sent intimation to P.W.13 Inspector of Police, who, in turn, went to the hospital and immediately, recorded the complaint.
12. In Ex.P.1 complaint, P.W.1 specifically mentioned the involvement of the three accused persons in the crime. She also mentioned that one accused attacked the deceased and another accused attacked P.W.1, while A3 was standing near the entrance.
13. Of course, it is true that the first information report had been registered on 03.09.1997 at 12.45 p.m. It is equally true that on 04.09.1997, the altered Express First Information Report had been prepared, after receipt of the intimation that the deceased Madhavan died at 3.15 p.m. and both the reports reached the Court on the same day. However, we should not forget one thing when the original F.I.R. reached the Court, P.W.13 Inspector of Police was able to collect the complete details and materials with reference to the participation of all the three accused. As indicated above, A1 and A3 were caught at the scene and were immediately, arrested by P.W.13 Inspector of Police and on the information given by A1 and A3, A2 was also arrested at Poonamallee on the next day. On the confession of A2, the bloodstained clothes were seized. Hence, we cannot come to a conclusion that the said delay is fatal to the case of the prosecution.
14. As regards the contention of the learned counsel for the appellant (A2) in Crl.A. No.466 of 2003, that P.W.1 implicated only two persons as per the Accident register, it has to be mentioned that P.W.1 and the deceased were attacked only by two persons and the other was standing near the entrance of the house. Of course, the prosecution could have examined the Doctor who gave treatment to P.W.1 in order to corroborate the evidence of P.W.1. The non-examination of the Doctor, who gave treatment to P.W.1, would not affect the case of the prosecution, as no relevant question has been put to the other Doctor with reference to number of persons stated by P.W.1 to the Doctor in the course of cross examination.
15. Learned counsel appearing for A2 pointed out the delay in conducting the test identification parade, vehemently contended that the accused were not identified in accordance with the procedure contemplated under law and as such the evidence regarding identification has to be rejected.
16. On a perusal of the records as well as the evidence of P.Ws.1 and 13, it is clear that the investigating officer sent the requisition on 05.09.1997 itself to the Chief Judicial Magistrate for conducting test identification parade and in pursuance of the same, the Chief Judicial Magistrate, passed an order on 08.09.1997 itself. Thereupon, P.W.11 wrote a letter to the Jail authorities to make arrangements for test identification parade on 24.09.1997. Accordingly, the parade was held on the same day and P.W.1 and Aruldoss correctly identified all the accused.
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17. According to the learned counsel appearing for A2, photographs were taken even before the parade and they were shown by the Police to P.W.1 and that is the reason why P.W.1 was able to identify the persons correctly.
18. Unfortunately, nothing has been elicited from the evidence of P.W.13 Inspector of Police or not even a suggestion was put to him that photographs were taken and they had been shown to P.W.1 before she attended the parade. Curiously, nothing was complained of by A1 and A3 to P.W.11 the Judicial Magistrate, who conducted the test identification parade, after the parade was over. As a matter of fact, the questions put by the Judicial Magistrate to the accused and the answer given by the accused as found in the proceedings would not indicate that they raised any such objection.
19. When questioned under Section 313 Cr.P.C, though the accused admitted that P.W.1 identified all the accused correctly, they did not venture to say that already the accused were shown to the witnesses and their photographs had been shown to the witnesses. In the above circumstances, we cannot conclude that the evidence relating to identification is unreliable.
20. It is true that one Aruldoss, who is the material witness, has not been examined. As a matter of fact, P.W.2 Vijay Anand is the star witness, who chased the accused and caught them with the weapons. But, after catching them, it is Aruldoss who attacked the accused and caused injuries on them. It is the case of the prosecution that P.W.2 Vijay Anand and Aruldoss chased the accused in a scooter and caught hold of them. Thereafter, P.W.13 Inspector of Police, on seeing injuries on A1 and A3, sent them for treatment to P.W.5 Doctor and he found injuries on the body of A1 and A3 and issued copies of the accident register, Exs.P.4 and P.5, respectively. In view of the fact that P.W.2 has been examined during trial, the non-examination of Aruldoss would not affect the prosecution case.
21. In Exs.P.4 and P.5, it is stated that the injuries were caused by unknown persons, while the accused were attempting to run away after committing the crime. No suggestion had been put with reference to the statement made by the accused to the Doctor either by questioning the said statement or disputing the same.
22. Apart from this, we have got evidence for the recovery of the material objects from all the accused. As indicated above, A1 and A3 were arrested at the scene and their clothes and M.O.1 knife were recovered from A1 and M.O.2 knife was recovered from A2. M.O.2 knife contained human blood and M.O.1 and M.Os.8, 9 and 11 the clothes of the accused, contained blood which tallied with the group of the deceased, namely ‘O Group’.
23. In the light of the above materials, we conclude that A1 to A3 had participated in the said occurrence.
24. Of course, since the accused were caught red-handed, no parade was necessary. But, since A2 was arrested subsequently in some other place, it is the duty of the Investigating Officer, to confirm the identity of the accused and arrange for the parade. Accordingly, the parade was conducted by the Judicial Magistrate, P.W.11, and in that identification parade, P.W.1 Roopa Madhukumar correctly identified all the accused.
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25. On a perusal of the evidence of P.W.1, the injured witness, P.W.2 and P.W.3 Gunasekaran, a neighbour, it is obvious that they have given clear narration of the occurrence which is corroborated by the medical evidence proving the case of prosecution against all the accused beyond reasonable doubt.
26. Therefore, we do not find any merit in the appeals and the same are liable to be dismissed and accordingly, the appeals are dismissed, confirming the conviction and sentence imposed on the appellants in the above two appeals by the trial Court.