IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.07.2008
CORAM:
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
and
THE HONOURABLE MR.JUSTICE K.N.BASHA
Criminal Appeal Nos.73, 362 and 788 of 2007
1. Raja .. Appellant in Crl.A.No.73 of 2007/A-1
2. Mohan Babu .. Appellant in Crl.A.No.362 of 2007/A-4
3. Palani .. Appellant in Crl.A.No.788 of 2007/A-3
Vs.
State rep. by
Inspector of Police,
Vallathi Police Station,
Villupuram District.
(Cr.No.229 of 2004) .. Respondent/Complainant
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Prayer : Criminal Appeals filed under Section 374 of the Code of Criminal Procedure against the Judgment of conviction passed by the learned Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam, in S.C.No.211 of 2005 dated 24.07.2006.
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For Appellant in Crl.A. : Mr.John Sathyan
Nos.73 and 362/2007 Mr.G.Vinodh Kumar and
Mr.K.Venkatesan
For Appellant in Crl.A. : Mr.K.S.Rajagopalan
No.788/2007
For Respondent : Mr.N.R.Elango,
Additional Public Prosecutor
J U D G M E N T
(Judgment of the court was delivered by K.N.BASHA, J.)
Crl.A.No.73 of 2007 is preferred by A-1, Crl.A.No.362 of 2007 is preferred by A-4 and Crl.A.No.788 of 2007 is preferred by A-3 and all the appellants challenged the conviction and sentence imposed by the learned Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam, Villupuram District, by the judgment dated 24.07.2006 made in S.C.No.211 of 2005 convicting A-1, A-3 and A-4 under Section 452 IPC an sentencing each of them to undergo five years rigorous imprisonment and imposing a fine of Rs.1,000/-, in default, to undergo one year simple imprisonment, convicting them under Section 395 IPC and sentencing each of them to undergo ten years rigorous imprisonment and imposing a fine of Rs.1,000/-, in default to undergo one year rigorous imprisonment, convicting them under Section 396 IPC and sentencing each of them to undergo life imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo one year rigorous imprisonment, convicting A-1 under Section 397 IPC and sentencing him to undergo seven years rigorous imprisonment and convicting A-3 under Section 323 IPC and sentencing him to undergo one year rigorous imprisonment. The sentences are ordered to run concurrently.
2. There are six accused in this case and the learned trial Judge acquitted A-5 and A-6 and convicted A-1 to A-4, as stated above. A-2, who has been similarly convicted like the appellants, has not preferred any appeal challenging the conviction and sentence imposed by the learned trial Judge.
3. The brief facts of the case, as unfolded through the evidence adduced by the prosecution during the course of trial, are as follows :
(i) P.W.1 is the father-in-law of the deceased, Uma Maheswari. P.W.2 is the husband of the deceased. P.W.1 was a retired Manager of a Bank called Lakshmi Vilas Bank. P.W.2, husband of the deceased, was running a pawn broker shop and doing business from his residence itself. P.W.2 was residing along with his wife, the deceased, at Gangapuram village main road. P.W.1, father of P.W.2 and father-in-law of the deceased, was a resident of Sitheri village, which is nearer to Gangapuram village. P.W.1 was also having land at Gangapuram village.
(ii) On the fateful day of occurrence, i.e., on 08.07.2004, P.W.2, husband of the deceased left for Villupuram at 8.00 a.m. P.W.1 came to his field at Gangapuram for harvesting. On the way to his land, P.W.1 went to the house of his son, P.W.2 and at that time, the deceased was present at the house and she informed that P.W.2, her husband, left for Villupuram and thereafter P.W.1 went to his land for harvesting. After harvesting work, at about 1.30 p.m., while he was nearing the house of the deceased, he saw a 20 year old male coming out of the house and he identified him as A-5. While P.W.1 questioned A-5, he replied that he came there for pledging. Thereafter, P.W.1 went inside the house and called his daughter-in-law, the deceased, but there was no reply. Hence, he entered inside the house and when nearing the kitchen, found two persons holding the hands of the deceased. One person pressed the neck of the deceased and another person pulled the tuft of the deceased and dashed her against the wall. The deceased raised hue and cry. P.W.1 requested the said persons to leave the deceased. P.W.1 identified, the above said persons, A-1 to A-4, before the Court and stated that A-1 strangulated the deceased ; A-3 and A-4 caught hold of the hands of the deceased. A-2 pulled the tuft of the deceased and dashed against the wall. A-1 was said to have threatened P.W.1 with dire consequences by showing the knife. A-3 kicked P.W.1 on his forehead and head with his hands. P.W.1 raised hue and cry. A-1 to A-4 ran away from the scene. P.W.1 chased the accused, but he was not able to run further. The villagers, on hearing the hue and cry of P.W.1, chased the accused and caught hold the accused. The deceased died on the spot. P.W.1 found the bureau was open and the cash and jewellery were missing from the locker. The villagers caught hold of A-1 to A-4 and brought them to the house of P.W.1 and P.W.1 identified A-1 to A-4 as the assailants. The villagers took a plastic bag containing cash from A-1. A pair of silver Kolusu, silver Kunkumachimizh and two wrist watches were taken by the witnesses from A-2. A-1 and A-2 have produced the knives to the villagers. The villagers enquired the names and addresses of A-1 to A-4. P.Ws.3 and 4 are among the villagers who chased and caught hold of A-1 to A-4. Thereafter, P.W.1 along with others took the accused to the police station.
(iii) On 08.07.2004 at 3.00 p.m., P.W.1, P.W.3 and other villagers appeared before P.W.13, the Inspector of Police, Jolarpet Circle and in-charge of Valathi Police Station, along with the accused. P.W.1 gave the report, Ex.P.1.
(iv) P.W.13 registered the case in Crime No.229 of 2004 for the offence under Sections 396 and 397 IPC. Ex.P.25 is the Express First Information Report. He sent the report to the higher police officials and to the Court. P.W.13 arrested A-1 to A-4 and also recovered M.O.1 series, 10 rupee notes totalling to Rs.10,690/-, M.O.2 series, a pair of silver kolusu, M.O.3, silver kunkumachimizh, M.O.4, Seiko wrist watch, M.O.5, OMS wrist watch, M.O.8, bloodstained shirt, M.O.7, pen knife, M.O.6 another pen knife under Ex.P.2. P.W.1 was sent to the hospital for treatment with police memo.
(v) On the same day at 4.00 p.m., P.W.13 went to the scene of occurrence and prepared the Observation Mahazar, Ex.P.3, and the rough sketch, Ex.P.26 in the presence of P.W.5 and another. He made arrangements to take photograph through P.W.8. He seized M.O.11, bloodstained earth, M.O.12, sample earth under Ex.P.4. He held inquest on the dead body of the deceased. Ex.P.27 is the inquest report. During inquest, he examined P.Ws.2, 3 and others. He sent the body for post-mortem.
(vi) Meanwhile, P.W.1 was examined by the Doctor, P.W.9 on 08.07.2004 at 6.30 p.m. and issued Accident Register, Ex.P.9, in which the following injuries were found by the Doctor, P.W.9 :
(1)Punctured (n.c.) would of 0.5 cm X 0.25 cm X 0.25 cm on the right side of the forehead.
(2)Contusion of 1 cm X 1 cm on the right side of the head.
(3)Abrasion of 1 cm X .75 cm on the right forearm. Red in colour
(vii) The Doctor, P.W.10, conducted post-mortem as per requisition, Ex.P.10 on 09.07.2004 at 1.30 p.m. and found the following injuries :
(1)Contusion on the right side neck 8 X 5 cm. On dissection there is contusion of the subcutaneous and muscles present. Hyoid bone is taken and preserved. Intact.
(2)Lacerated wound on the right side frontal and 5 X 2 cm X bone deep.
(3)Lacerated wound on the right parietal area 8 cm X 2 cm X bone deep. Underlying parietal bone is fractured (undisplaced) crack fracture.
(4)Lacerated wound on the occipital area extending move on to the left side 10 cm X 2 X 1 cm underlying bone in fractured (crack fracture)
(5)Contusion over occipital area surrounding No.4 injury 10 X 8 cm.
(6)Abrasion over the left knee 4 X 3 cm.
Above injuries were ante-mortem in nature.
(7)Contusion over left side cheek 5 X 3 cm.
Internal appearances :
Head : Injuries (n.c.) 2, 3, 4 and 5 injuries. Meninges Intact. Brain congested. About 50 cc of blood clot subdurally over right parietal area. Thorax : Chest wall bones Normal. Lungs : Normal. Heart Right side contains small amount of blood. Left side empty. Abdomen : Stomach contains undigested rice particles about 500 cc. Small and large intestines normal. Liver : Normal. Kidneys Normal. Spleen Normal. Pancreas Normal. Urinary Bladder contains 100 cc urine. Uterus Normal size. Non pregnant. Pelvis bones normal. Limbs Normal.
Ex.P.11 is the Post-Mortem certificate. The Doctor, P.W.10, opined that the deceased would appear to have died of shock due to head injuries 24-36 hours prior to autopsy.
(viii) P.W.13, in continuation of his investigation, examined the other witnesses. P.W.14 took up further investigation on 11.07.2004 and searched for the absconding accused. On 19.07.2004, he arrested A-6. In pursuance of the admissible portion of his confession under Ex.P.5, he recovered M.O.9 series, Ear stut, M.O.17 series, Rs.400/- under Ex.P.6 from A-6. A-6 was remanded to judicial custody. A-5 surrendered before the Judicial Magistrate No.IV, Vellore. As per the order passed by the Judicial Magistrate, A-5 was taken into the police custody from 26.07.2004 to 28.07.2004. In pursuance of the admissible portion of his confession under Ex.P.7, P.W.14 recovered M.O.10, gold jimiki, M.O.18, Rs.400/- under Ex.P.8. A-5 was again remanded to judicial custody.
(ix) P.W.15 took up further investigation and examined P.Ws.8, 11 and 12 and the doctors, P.Ws.9 and 10. P.W.15, after receiving the post-mortem certificate, Ex.P.11 and the chemical examination report, Ex.P.14, Serologists report, Ex.P.15 and after completing the investigation, filed the charge sheet against the accused on 30.04.2005 for the offence under Sections 109 (b), 452, 396 and 397 IPC.
4. The prosecution in order to prove its case examined P.Ws.1 to 15, filed Exs.P.1 to P.28 and marked M.Os.1 to 22.
5. When the accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them through the evidence adduced by the prosecution, each of the accused denied each and every circumstances as contrary to the facts and stated that they have been falsely implicated in this case. They have not chosen to examine any witness on their side.
6. Mr.K.S.Rajagopalan, learned counsel appearing for the appellant/A-3 contended that the prosecution has not proved its case against A-3 beyond reasonable doubt by adducing clear and cogent evidence. It is contended that P.W.1, the alleged eye-witness, has stated to the Doctor, P.W.9 at the earliest point of time that he was assaulted by three unknown persons and as such the present version of P.W.1 implicating A-3 cannot be relied on. It is contended that though P.W.1 stated to the Doctor that the deceased attacked by three unknown persons in his evidence, he has implicated only two of the accused for attacking the deceased and as such the evidence of P.W.1 is unreliable. The learned counsel would further contend that the version of P.Ws.3 and 4 that they chased and caught A-1 to A-4 is highly improbable and unbelievable. It is stated by P.W.3 that A-1 and A-2 threatened them with pen knife and as such P.Ws.3 and 4 could not have caught hold of the accused. It is further submitted that nothing was seized from A-3 either the jewellery or any weapon and as such the prosecution has not proved its case against A-3 and it is not safe to place reliance on the evidence of P.W.1 to convict A-3.
7. Mr.John Sathyan, learned counsel appearing for A-1 and A-4 vehemently contended that the evidence of the alleged eye-witness, P.W.1, is artificial and unbelievable and suffers from serious infirmities. It is contended that P.W.1 has not attributed any specific overt act against each of the accused and only for the first time he has come forward with the version of specific overt acts against A-1 to A-4 before the Court and as such his evidence suffers from improvements and exaggerations throwing doubt about the credibility of his version. The learned counsel would further submit that the prosecution version through the evidence of P.Ws.3 and 4 to the effect that they chased and caught all the accused is highly improbable and unbelievable. It is contended that there are contradictions in respect of the place from where the witnesses caught the accused. It is contended that as per the evidence of P.W.13, investigating officer, the witnesses stated during the course of investigation that all the four accused were caught hold near the bus stop. But P.Ws.3 and 4 stated that from bus stop they have chased the accused and ultimately caught them near the lake of the village. It is contended that if the accused were caught hold by the witnesses, P.Ws.3 and 4 and other villagers immediately after the occurrence, they could not have spared the accused without assaulting them, but curiously they have not provoked by the conduct of the accused. It is submitted that the learned trial Judge having disbelieved the case of the prosecution in respect of A-5 and A-6, the entire prosecution case ought to have thrown out as false.
8. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and consistent evidence. It is submitted that the evidence of the eye-witness, P.W.1 is quite natural and there is no infirmity in his evidence. The learned Additional Public Prosecutor would further submit that the version of P.W.1 is also corroborated by the evidence of P.Ws.3 and 4 as they chased all the accused and A-1 to A-4 were caught red-handed by P.Ws.3 and 4 along with other villagers and P.W.1 also identified A-1 to A-4 to P.Ws.3 and 4 and others to the effect that they are the persons attacked the deceased. It is contended that the defence cannot place reliance on the evidence of P.W.9, the Doctor, who has mentioned in the Accident Register, Ex.P.9 that P.W.1 was assaulted by three unknown persons. P.W.1 informed that he was assaulted by three unknown persons. It is submitted that P.W.1 was examined by the Doctor, P.W.9 at 6.30 p.m. on 08.07.2004. But the First Information Report reached at 6.30 p.m. on the same day and the First Information Report contains the names of all the accused, namely, A-1 to A-4 and therefore, no significance could be attached to the Accident Register, Ex.P.9, wherein, it is stated that P.W.1 was assaulted by three unknown persons. It is contended that P.W.1 has also sustained an injury which shows his presence at the time of occurrence at the scene and further the version of P.W.1 is also corroborated by the medical evidence through the Doctor, P.W.9, who has found corresponding injuries on P.W.1 as well as the corresponding injuries were found on the deceased as per the Doctor, P.W.10, who has conducted post-mortem. It is contended that the evidence of P.Ws.3 and 4, who have implicated all the accused A-1 to A-4 to the effect of chasing them and thereafter caught hold of them and bringing them to the scene and thereafter P.W.1 identifying them and ultimately giving report to the police is clear and there is no infirmity in their evidence. Therefore, it is contended that the prosecution has proved its case beyond reasonable doubt against the appellants herein.
9. We have carefully considered the rival contentions put forward by eithr side and scrutinized the materials available on record and also perused the impugned judgment.
10. The prosecution heavily placed reliance on the evidence of P.W.1, eye-witness coupled with the evidence of P.Ws.3 and 4, who were said to have chased and caught hold of A-1 to A-4 on hearing the hue and cry of P.W.1. At the outset, we are constrained to state that the evidence of P.W.1 is quite clear and natural and we are unable to see any infirmity or inconsistency in his evidence. The version of P.W.1 is also corroborated by the evidence of P.Ws.3 and 4. The undisputed fact remains that A-1 to A-4 have been caught red-handed immediately after the occurrence. The sequence of events as narrated by P.W.1 right from his visit to the house of the deceased before going to the field for harvesting and thereafter coming again through the house of the deceased and on seeing a person coming out from the house, he went inside and called his daughter-in-law, the deceased, and as there is no reply he went inside the room and found all the four accused, namely, A-1 to A-4 is quite clear. It is categorically stated by P.W.1 that A-1 is said to have strangulated the deceased, A-3 and A-4 said to have caught hold of the deceased and A-2 said to have pulled the tuft of the deceased and dashed her against the wall and he raised hue and cry. On hearing the same, the villagers gathered and chased the accused. Among the villagers, the prosecution has examined P.Ws.3 and 4. P.Ws.3 and 4 categorically stated that they chased the accused and ultimately caught them and on enquiry A-1 to A-4 disclosed their identity including their names and addresses and thereafter they have been brought to the scene of occurrence, namely, the house of the deceased. On reaching the house of the deceased, P.W.1 identified A-1 to A-4 and stated to P.Ws.3 and 4 and other villagers that A-1 to A-4 are the culprits and they are the assailants of the deceased. It is pertinent to be noted that thereafter P.W.1 along with other villagers including P.Ws.3 and 4 took A-1 to A-4 to the police station and produced them before P.W.13, Inspector of Police. In respect of the above sequence of events, we are unable to see any infirmity or inconsistency in the version of P.Ws.1, 3 and 4.
11. We are unable to accept the contention of the learned counsel for A-3 to the effect that the evidence of P.W.1 is unreliable as his earlier version to the Doctor is to the effect that he was assaulted by three unknown persons which is contrary to his present version of implicating A-3 as the person who has assaulted him. It is pertinent to be noted that merely because P.W.1 has stated to the Doctor, as per the Accident Register, Ex.P.9, to the effect that he was assaulted by three unknown person, his evidence cannot be brushed aside in view of his clear and categorical evidence implicating A-1 to A-4. It is pertinent to be noted that even in his complaint, Ex.P.1, given to P.W.13, Inspector of Police, at the earliest point of time, namely, i.e., at 3.00 p.m. on 08.07.2004, the names of A-1 to A-4 have been mentioned and further the First Information Report reached the Magistrate Court at 6.30 p.m. on the same day. It is relevant to note that P.W.1 was examined by the Doctor, P.W.9, at 6.30 p.m. and by that time, the First Information Report itself already reached the Magistrate Court. It is seen from Ex.P.1 that P.W.1 has stated that one of the accused assaulted him on his head and in his evidence P.W.1 implicated A-3 as the person, who has assaulted him on his head. The complaint or the First Information Report need not contain the minute details. We are of the considered view that in view of the clear and cogent evidence of P.W.1, the statement made to the Doctor to the effect of being assaulted by three unknown persons cannot be given any significance to raise doubt about the veracity of the version of P.W.1.
12. At this juncture, it is relevant to refer the decision of the Hon’ble Apex Court in P.Babu v. State of A.P. reported in 1994 SCC (Cri.) 424. In that decision the Hon’ble Apex Court has held that,
“It was noted in the injury certificate against an entry that the injured was said to have been stabbed by somebody. The doctor stated that the deceased stated so in the first instance and placing reliance on this entry it was contended that the deceased was not aware as to who stabbed him. Rejecting the contention, Held :
It is a matter of common knowledge that such entry in the injury certificate does not necessarily amount to a statement. At that stage the doctor was required to fill up that column in a normal manner and it was not the duty of the doctor to enquire from the injured patient about the actual assailants and the inquiry would be confined as to how he received the injuries namely the weapons used etc.”
13. The Hon’ble Apex Court in P.Bhadriah V. State of A.P. reported in 1995 SCC (Cri.) 370 has held that,
“Casual way of filling up the column in the medical certificate does not amount to recording a statement of the injured On facts, correction of the word “unknown” to “known” in the sentence “alleged to have been beaten by unknown people” in the injury report not material.
14. In yet another decision in P.Venkaiah V. State of A.P. reported in 1986 M.L.J. (Cri.) 23 (SC) the Hon’ble Apex Court has held that,
“It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”
15. The above said well settled principle of law laid down by the Hon’ble Apex Court makes it crystal clear that any statement made to the Doctor in respect of the names or number of assailants is immaterial in view of the clear, cogent and consistent evidence of eye-witnesses. The case on hand is concerned, we have already pointed out, the version of P.W.1 is corroborated by the version of P.Ws.3 and 4 and there is no reason or animosity for P.W.1 to implicate A-1 to A-4 falsely in this case. At the risk of repetition, it is to be reiterated that P.W.1 has mentioned the names of A-1 to A-4, even in the earliest document, namely in the report, Ex.P.1 implicating them as assailants of the attack of the deceased.
16. We are also not able to accept the contention of the learned counsel appearing for A-1 and A-4 to the effect that the conduct of P.Ws.1, 3 and 4 are unnatural as P.W.1 admitted in his cross-examination that the accused, who were caught red-handed, have been treated humanly and if really, the accused have been caught red-handed, they could have been assaulted by the villagers and P.Ws.1, 3 and 4. It is to be seen that it is specifically stated by P.Ws.3 and 4 that after A-1 to A-4 have been caught by them, they have removed the shirts of the accused and tied their hands. Therefore, it is clear that minimum force was used by P.Ws.3 and 4 and other villagers to catch the accused and thereafter being identified by P.W.1, they have produced A-1 to A-4 before the police. Therefore, the conduct of P.Ws.1, 3 and 4 is quite natural and their evidence does not suffer from infirmities or inconsistencies.
17. As far as the missing of cash and jewellery is concerned, P.W.1 has categorically mentioned the same in the report, Ex.P.1 itself to the effect that jewellery and cash were found missing and the bureau and locker were found opened. P.W.1 has also made that such version even at the time of P.Ws.3 and 4 caught A-1 to A-4 and produced before him at the scene house. P.W.2, husband of the deceased, also corroborated the version of P.W.1 in respect of missing of cash and jewellery. The evidence of P.Ws.1 to 4 coupled with the recovery of M.O.1 series, namely, an amount of Rs.10,690/- from A-1, M.O.2, a pair of silver Kolusu, M.O.3, silver Kunkumachimizh, M.Os.4 and 5, wrist watches from the pant pocket of A-2 and M.Os.6 and 7, pen knives, from A-1 and A-2 immediately they have been caught red-handed and further the material objects were identified by P.W.2, husband of the deceased, clearly establish the offence of dacoity committed by A-1 to A-4. The learned trial Judge has rightly placed reliance on the evidence of the above said witnesses for coming to the conclusion that A-1 to A-4 have committed the offence of dacoity.
18. The learned counsel for A-1 and A-4 further made a vain attempt to discredit the evidence of P.Ws.3 and 4 by placing reliance on the answer given by the investigating officer, P.W.13 to the effect that the witnesses stated to him that A-1 to A-4 have been caught hold near the bus stop. It is pertinent to be noted that P.Ws.3 and 4 have categorically stated that while they were standing at the bus stop, they heard the hue and cry of P.W.1 and further A-1 to A-4 running through that side and thereafter, they chased and caught A-1 to A-4. We are unable to see any contradiction between the evidence of P.Ws.3 and 4 and P.W.13 as it is the version of P.Ws.3 and 4 that they have seen the accused through the bus stop and they chased and caught A-1 to A-4 red-handed. Therefore, we are of the considered view that the evidence of P.Ws.3 and 3 is quite clear and natural and there is no infirmity or inconsistency to raise any doubt about the credibility of their version.
19. For the aforesaid reasons, we are constrained to come to the irresistible conclusion that the prosecution has proved its case in all aspects beyond reasonable doubt against the appellants, A-1, A-3 and A-4 and therefore, the appeals are liable to be dismissed as devoid of merits and accordingly, these appeals are dismissed.
(P.D.D., J.) (K.N.B., J.)
02.07.2008
gg
Index : Yes
Internet : Yes
To
1. The Additional District and Sessions Judge,
Fast Track Court No.II,
Tindivanam, Villupuram.
2. - do thro" The Principal Sessions Judge, Villupuram.
3. The District Collector, Villupuram District.
4. The Director General of Police, Chennai.
5. The Superintendent, Central Prison, Vellore.
6. The Inspector of Police,
Valathi Police Station,
Villupuram District.
7. The Public Prosecutor, High Court, Madras.
P.D.DINAKARAN, J.
and
K.N.BASHA, J.
gg
Judgment in
Crl.A.Nos.73, 362 and 788 of 2007
02.07.2008