BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/04/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRIMINAL APPEAL (MD)NOS.173 OF 2004 CRIMINAL APPEAL (MD)NOS.204 OF 2004 CRIMINAL APPEAL (MD)NOS.225 OF 2004 CRIMINAL APPEAL (MD)NOS.248 OF 2004 S.Velusamy .. Appellant in CA.No.173 of 2004 1.Kombadian rasu alias Rasu 2.Packiam 3.Rajaiah .. Appellants in CA.No.204 of 2004 1.Thangam 2.Kasi 3.Gandhi .. Appellants in CA.No.225 of 2004 1.Kasirajan 2.Sundaram alias Siva .. Appellants in CA.No.248 of 2004 Vs. The State through the Inspector of Police, Tirunagar Police Station, Madurai. Crime No.5 of 2001 .. Respondent in
all these appeals
These criminal appeals are preferred under Section 374(2) Cr.P.C. against
the judgment of the learned I Additional Sessions Judge, Madurai made in
S.C.No.365 of 2002, dated 19.10.2004.
!For Appellants … Mr.A.Padmanaban for A-12, A-5, A-6
and A-8 and A-1 and A-2, A-4 & A-7
in CA.Nos.173 and 204 of 2004 and
in CA.Nos.225 and 248 of 2004
Mr.A.P.Muthupandian for A-3
CA.No.225 of 2004
^For Respondent … Mr.P.N.Pandidurai, APP
:COMMON JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
This judgment shall govern these four appeals, namely C.A.Nos.173, 204,
225 and 248 of 2004.
2.The appellants in these four appeals are nine in number. C.A.No.173 of
2004 is filed by A-12. C.A.No.204 of 2004 is filed by A-5, A-6 and A-8.
C.A.No.225 of 2004 is filed by A-1 to A-3 and C.A.No.248 of 2004 is filed by A-4
and A-7.
3.The appellants along with three others stood charged and tried in
S.C.No.365 of 2002 on the file of the learned I Additional Sessions Judge,
Madurai, as narrated below:
Charges :
I – A-1 to A-3 – Section 148 IPC
II – A-4 to A-12 – Section 147 IPC
III – A-1 to A-3 – Section 302 IPC
IV – A-4 to A-12 – Section 302 r/w S.149 IPC.
V – A-4 to A-12 – Section 427 IPC
VI – A-4,A-7,A-11 – Section 436 IPC
On trial, A-1 to A-3 were found guilty under Sections 148 and 302 IPC. A-4 and
A-7 were found guilty under Sections 147 and 436 IPC. A-5, A-6, A-8 and A-12
were found guilty under Sections 147 and 427 IPC. A-1 to A-3 were sentenced to
undergo 2 years RI under Section 148 IPC and they were also sentenced to undergo
life imprisonment each and to pay a fine of Rs.10000/-, in default to undergo 2
years RI under Section 302 IPC. A-5, A-6, A-8 and A-12 were sentenced to undergo
2 years RI each under Section 147 IPC and for the offence under Section 427 IPC,
they were sentenced to undergo 2 years RI each. A-4 and A-7 were sentenced to
undergo 2 years RI under Section 147 IPC and they were also sentenced to undergo
7 years RI and to pay a fine of RS.5000/- each, in default to undergo 2 years RI
each under Section 436 IPC. The sentences were ordered to run concurrently. A-9,
A-10 and A-11 were acquitted of all the charges levelled against them. Hence,
these four appeals have been filed by the appellants before this court.
4.The short facts necessary for the disposal of these appeals can be
stated as follows:
a)P.W.1 is the wife of Andar, since deceased in the incident. P.Ws.2 and 3
are the sons and P.W.4 is the mother of the said Andar. They were all the
residents of Karuvelampatti. The accused are all inter se related to each other
and they also belonged to the same place. On the date of occurrence that was on
2.1.1999 at about 7.00 p.m., Andar was returning from his field after watering.
At that time, P.Ws.1 to 4 were inside the house. When he was just nearing
Kaliamman Temple, they heard there was hue and cry. Immediately, all the four
came out and they found A-1 to A-11 holding aruval, Suluku (knife), Knife and
stick. When they came out, A-1 uttered that it was he who was responsible for
murdering my father and kill him. A-1 and A-3 attacked him with aruval and A-2
attacked him with stick. A-5 was having kerosene can at that time. A-7 poured
kerosene and A-4 set fire to sheds. A-8 also poured kerosene on the shed and A-
7 set fire to it. The houses were damaged and burnt. All the accused fled away
from the place of occurrence. P.Ws.1 to 4 were the eyewitnesses, but they were
under grip of fear and terror and they ran away from the scene of occurrence.
They hid themselves till morning hours.
b)Andar, the seriously injured proceeded to the respondent police station,
where he was given medical memo. Therefrom, he went over to Thirumangalam
Government Hospital. After initial treatment, he was advised to go to the
Madurai Rajaji Government Hospital, where he was admitted. There was an
intimation from the Madurai Rajaji Government Hospital to the respondent police
station. On receipt of the intimation, one Thavasi, the Sub Inspector of
Police, proceeded to the Government Hospital, Madurai and recorded the statement
of the deceased Andar. Ex.P.9 is the statement of the said Andar. Then, the Sub
Inspector of police came to the police station and reistered the case in Crime
No.6 of 1999 under Sections 147, 148, 324, 427 and 436 IPC. Ex.P.10, the FIR was
despatched to the Court.
c)Then, he proceeded to the place of occurrence and made an inspection in
the presence of the witnesses. He prepared Ex.P.1, the observation mahazar and
Ex.P.11, the rough sketch. He has also recovered the material objects from the
place of occurrence.
d)P.W.29, the Inspector of Police, took up further investigation. Despite
treatment given, the said Andar died on 9.1.1999. Ex.P.12 is the death
intimation. The case was converted to Section 302 IPC. Ex.P.13, the Express
report was despatched to the Court. Then, he proceeded to the Madurai Rajaji
Government Hospital and conducted inquest on the dead body of the deceased in
the presence of the witnesses and panchayatdars and prepared Ex.P.14, the
inquest report.
e)On receipt of the requisition, P.W.28, the Doctor attached to the
Madurai Medical College Hospital, conducted post-mortem on the dead body of the
deceased and has given his opinion in Ex.P.8, the post-mortem certificate that
the deceased would appear to have died of external injury No.1 and its
corresponding internal injuries and its complications thereof.
f)Pending investigation, A-1 to A-4 were arrested on 10.01.1999 in the
presence of the witnesses. A-1 voluntarily came forward to give a confessional
statement, which was recorded, the admissible part of which was marked as
Ex.P.2. Pursuant to the confessional statement, he produced the weapons of
crime, which were recovered under a cover of mahazar. The accused were sent for
judicial remand. On 11.1.1999, A-5 was also arrested and he was also sent for
judicial remand. On 30.05.1999, A-8 was arrested and on 21.11.1999, A-10 was
also arrested. They were sent for judicial remand. All the M.Os recovered from
the place of occurrence and from the dead body of the deceased and the M.Os
recovered from A-1 pursuant to his confessional statement were subjected to
chemical analysis by the Forensic Sciences Department, which resulted in two
reports, namely Ex.P.6, the Chemical Analyst’s report and Ex.P.7, the
Serologist’s report. On completion of the investigation, the Investigating
Officer has filed the final report.
5.The case was committed to the court of sessions and necessary charges
were framed. In order to substantiate the charges, the prosecution has examined
29 witnesses and relied on 14 exhibits and 7 M.Os. On completion of the evidence
on the side of the prosecution, the accused were questioned under Section 313
Cr.P.C. Procedurally as to the incriminating circumstances found in the evidence
of prosecution witnesses. They flatly denied them as false. No defence witness
was examined. The trial court heard the arguments advanced on either side,
scrutinized the materials available and took the view that the prosecution has
proved its case and found the accused/appellant guilty as stated above and
awarded punishments as referred to above and has acquitted A-9, A-10 and A-11 of
the charges levelled against them. Hence, these four appeals have been brought
forth at the instance of the appellants.
6.Advancing his arguments on behalf of the appellants, the learned counsel
have made the following submissions:
a)In the instant case, the occurrence has taken place at about 7.00 p.m.
on 2.1.1999. According to the prosecution, the injured Andar was taken
immediately to the police station and therefrom, with the medical memo, he was
taken to Thirumangalam Government Hospital. He was given initial treatment.
Therefrom, he was taken to the Madurai Rajaji Government Hospital and he was
admitted there. Despite treatment, he died on 9.1.1999. According to the
prosecution, the Sub Inspector of Police of the respondent police station went
over to the Madurai Rajaji Government Hospital and recorded the statement of the
deceased on 3.1.1999 and that Ex.P.9 cannot be but a fabricated document for
more reasons than one. According to the prosecution, immediately after the
occurrence, Andar was taken directly to the police station. If to be so, there
should have been a report and that document should have come into existence, but
it was suppressed. Immediately, therefrom, he was taken to the Thirumangalam
Government Hospital and there also, there should be an accident register,
wherein the earliest statement given by him should have been recorded and the
Doctor, who was on duty at Thirumangalam Government Hospital, should have given
treatment to him. But, neither the copy of the accident register was produced
nor the Doctor, who gave initial treatment, was examined and hence, this would
go to the root of the matter. The suppression of the accident register copy and
also the non examination of the said medical person would clearly indicate that
the prosecution wanted to suppress the materials, which have come into existence
at an early point of time and hence, this would be fatal to the prosecution
case.
b)According to P.W.29, the Investigating Officer, only after an intimation
from the Madurai Rajaji Government Hospital, the Sub Inspector of Police went
over there and recorded the statement of Andar. If to be so, this should have
been contra to the prosecution case. According to the prosecution, he was taken
to Thirumangalam Government Hospital along with the medical memo. This would
indicate that the prosecution has not come with the truth of the matter. The
learned counsel would further submit that P.W.4 stated that immediately at the
time of occurrence, police personnel were present. It was the police, who took
the injured Andar in a car. This would indicate that the FIR was nothing, but a
false one.
c)The learned counsel would further submit that P.Ws.1 to 4 could not have
been the eyewitnesses to the occurrence. P.W.1 is the wife and P.Ws.2 and 3 are
the sons and P.W.4 is the mother of the deceased. According to them, they
witnessed Andar being attacked by the accused persons. If to be so, one would
naturally expect the members of the family, who are wife, sons and the mother,
to interfere and go to his rescue, but they did not interfere. On the contrary,
they stated that because of fear, they ran to the nearby forest and hid
themselves and came in the next morning and they went to Thirumangalam
Government Hospital and they came to know that he was taken to the Madurai
Rajaji Government Hospital and was admitted there. This would go to show that
they could not have seen the occurrence at all.
d)Added further the learned counsel that the other circumstance is the non
recovery of bloodstained earth from the place of occurrence at the time of
investigation and also the bloodstained cloths, which according to P.Ws.1 to 3,
were drenched with blood. This would also indicate that such an occurrence has
not taken place as put forth by the prosecution. In the instant case, even as
per the prosecution case, at the time of occurrence, there was arson. The
Investigator has categorically admitted that he did not know as to whether any
fire extinguishers were brought by the Fire Department and the fire was
extinguished. No witness was examined in this regard at the time of
investigation or before the Court. The sketch also did not indicate whether any
house was damaged, as placed by the prosecution and no witness was also examined
to that effect. Thus, so far as Section 427 IPC is concerned, absolutely no
evidence is available at all.
e)Even as per the prosecution case, it was A-1 and A-3, who attacked the
deceased with aruval and A-2 attacked the deceased with the stick. In the
instant case, the evidence adduced by the prosecution through the post-mortem
Doctor did not support the prosecution case. According to the post-mortem
Doctor, the first injury found in the post-mortem certificate and its
corresponding internal injury and its complications were the cause for death and
also there was septicemia. It is pertinent to point out that the first injury
was actually found in the stomach. According to the eyewitnesses, it was A-2,
who attacked him with stick. The external and internal injury would have been
caused by attacking with the stick. If to be so, the medical evidence adduced by
the prosecution is contrary to the prosecution case. Insofar as A-1 and A-3 are
concerned, they attacked the deceased with aruval and the injuries caused by
them were not fatal, but the injuries were simple. Under these circumstances,
the medical evidence did not corroborate the ocular testimony. Added further
the learned counsel that the arrest of the accused and the recovery of weapons
of crime pursuant to the confessional statement of A-1 were nothing, but only a
cooked up affair in order to strengthen the prosecution case, but in vain, when
viewed from all other circumstances. Thus, the prosecution has miserably failed
to prove its case from all angles, but the lower court took an erroneous view.
f)The learned counsel would further submit that even assuming that the
prosecution has proved the case to an extent that Andar was actually attacked by
the accused at the time of occurrence and he was taken to the Thirumangalam
Government Hospital and therefrom, he was taken to the Madurai Rajaji Government
Hospital and despite treatment, he died, the act of A-1 to A-3 would not attract
the penal provisions of Section 302 IPC for the simple reason that the
prosecution has failed to prove its case through the medical evidence and the
prosecution was unable to show that the medical evidence was in corroboration
with the ocular testimony. Even as per the post-mortem Doctor, despite
treatment, he died and the death would have been caused by the first injury and
its corresponding internal injuries and its complications and also due to
septicemia. In the instant case, so far as all the accused are concerned, the
injuries were not fatal and so far as A-2 was concerned, it was he who caused
the first injury and due to its complications and septicemia, the deceased died
and there was no direct consequence for the death. Under these circumstances,
even assuming to be so, A-1 and A-3 have caused only simple injury. So far as A-
2 is concerned, the act of A-2 would not attract the penal provisions of murder,
but it was done without any intention and under these circumstances, these legal
aspects of the matter have got to be considered by this Court.
7.Heard the learned Additional Public Prosecutor on the above contentions.
The court has paid its anxious consideration on the submissions made.
8.In the instant case, according to the prosecution, the occurrence has
taken place at about 7.00 p.m. on 2.1.1999 in front of the house of the deceased
Andar. The house of Andar is situated near Kaliamman Temple. According to
P.Ws.1 to 4, who have spoken in one voice, when they were all inside the house,
they heard a hue and cry and they came out at the time of occurrence and found
the accused persons were arming with aruval, Suluki(knife) and stick and they
have shouted. At that time, they found A-1 and A-3 attacked the deceased with
aruval and A-2 attacked him with the stick. While the other accused involved in
the other activities of arson. In order to prove this fact, the prosecution has
examined four witnesses. It is true, they are close relatives inter se and also
close relatives to the deceased. The Court is mindful of the caution that when
the witnesses are close relatives, before accepting their evidence, the test of
careful scrutiny has got to be applied. In the instant case, despite exercise
of the test, the Court is satisfied that their evidence inspired the confidence
of the Court. They have spoken about the incident.
9.The first comment made by the learned counsel for the appellants that
these witnesses could not have been the eyewitnesses for the reason that they
did not go to the rescue of the deceased, but they hid themselves in the forest
and came only in the next morning and they went to the Government Hospital
directly and hence, this would indicate that they could not have seen the
occurrence at all, has got to be discountenanced. From the materials available,
it could be seen that just one hour prior to the occurrence in question, the
father of A-1 was murdered in a running bus near the Koothiarkundu railway gate.
After that occurrence, this occurrence followed. According to the witnesses,
they found more than 10 accused along with the weapon of crime. It is quite
natural that it would pass in the mind of the four persons that they would also
be finished off and thus, they have immediately fled away from the place of
occurrence. In a given situation, when one is being attacked by number of
persons, the frame of mind of the eyewitnesses would be different and it cannot
be expected to be same. The occurrence has taken place at about 7.00 p.m. On
seeing the accused persons armed with weapons, naturally, they could have been
under a grip of fear and terror. Immediately, they went to a nearby place and
hid themselves and came out in the next morning. Merely because they did not go
to his rescue or they did not go to the police station immediately, the same
cannot be stated that they could not have seen the occurrence at all. Their
evidence, if carefully scrutinized, has inspired the confidence of the court.
The lower court has marshalled their evidence properly and accepted the same.
At this juncture, it is to be pointed out that these witnesses have not spoken
about anything about A-12. Thus, A-12 is out of the crime scene. Hence, it
could be recorded that so far as A-12 is concerned, no case is made out by the
prosecution from the beginning till the end of the case.
10.The other contention was that the FIR could not have come into
existence as put forth by the prosecution. The reasons adduced by the learned
counsel for the appellants are narrated above. The Court has to necessarily
disagree with the learned counsel for the appellants. After the occurrence has
taken place, the deceased Andar was taken to Thirumangalam Government Hospital
and therefrom, he was taken to the Madurai Rajaji Government Hospital. The
Doctor, who gave treatment at Thirumangalam Government Hospital, has not been
examined and the accident register copy has not been produced. At this
juncture, the learned counsel for the appellants wanted to stress on this aspect
of the matter and would further submit that while the occurrence has taken place
at 7.00 p.m. on 2.1.1999, the statement of the deceased was recorded on 3.1.1999
at about 10.45 a.m. and thus, there was a long delay, which remained
unexplained, which coupled with the non production of the accident register copy
and the non examination of the medical person, who examined Andar at the
earliest at the Thirumangalam Government Hospital would go to show that the FIR
is a fabricated one. Now, it is pertinent to point out that originally, the
injuries found on the deceased were simple and the case was registered only for
Section 324 IPC and under these circumstances, the Investigator thought it fit
not to produce the earlier documents and this cannot in any way affect the
prosecution case. When the matter was brought to the notice of the police, the
police has given a memo and sent the deceased to the hospital and the Sub
Inspector of Police has gone to the Madurai Rajaji Government Hospital in the
next morning and recorded the statement of the deceased. At that stage, it was
not a grave crime, but one for Section 324 IPC. Under these circumstances, the
court is of the considered opinion that the delay, even if it is noticed, is in
no way affect the prosecution case. The case was not only registered for Section
324 IPC, but also the other provisions were there. Only after the death of Andar
at the Madurai Rajaji Government Hospital, the case was altered to Section 302
IPC and the investigation was taken up by P.W.29 and the murder investigation
was on and was completed. At this juncture, so far as Sections 436 and 427 IPC
are concerned, as rightly pointed out by the learned counsel for the appellants,
all flaws are found in the investigation and no witness worth mentioning in this
regard was interrogated and no statement was recorded. Further, in a given case
like this, when damages by way of arson were brought to the notice, the
investigation in this regard should have been conducted properly. The earliest
investigation in this regard did not bring any material before the Court. Even
the fire department personnel have not been examined. The Investigating Officer
has gone to an extent to state that he had no knowledge about the same, which is
a matter of surprise to be noted. Insofar as the charge under Sections 427 and
436 IPC, the Court has to record that the prosecution has not come with
necessary and acceptable and convincing evidence to find the accused guilty in
this regard and hence, they are entitled for acquittal in respect of the same.
11.In the instant case, so far as the medical opinion is concerned, the
learned counsel for the appellants, pointing to the medical opinion, would
submit that the prosecution has not proved its case and the medical opinion did
not corroborate the ocular testimony. This court is unable to agree with him.
The medical evidence what was available before the court is the post-mortem
certificate and the evidence of P.W.28, the Doctor. According to him, injury
No.1 and its corresponding internal injury and its complications and also
septicemia were the reasons for the death of the deceased. P.Ws.1 to 4 have
categorically stated that at the time when the occurrence has taken place, it
was A-1 and A-3, who attacked the deceased with aruval and A-2 attacked the
deceased with the stick. In the instant case, so far as the act of A-1 to A-3
are concerned, the Court is of the considered opinion that they cannot be given
separate treatment, but all cumulative effects have got to be considered. So far
as the others are concerned, it is doubtful whether they have acted with any
intention to cause death, but at the same time, the death was caused not only
due to the injuries sustained, but also its corresponding internal injuries and
its complications and also due to septecemia. Hence, A-1 to A-3 have got to be
found guilty under Section 326 IPC and awarding punishment of 5 years RI would
meet the ends of justice. Insofar as the charge under Section 147 IPC is
concerned, the lower court has not believed the case of prosecution in respect
of A-9, A-10 and A-11. So far as the others are concerned, the lower court has
accepted the case of prosecution that they are members of unlawful assembly.
According to P.Ws.1 to 4, at the time of occurrence, they were present at the
scene of occurrence and thus, it is clear that they were all members of
unlawful assembly. The lower court has given two years RI for the offence under
Section 147 IPC in respect of A-4 to A-8 and has also given 2 years RI under
Section 148 IPC in respect of A-1 to A-3.
12.Accordingly, the judgment of conviction and sentence imposed on A-1 to
A-3 under Section 302 IPC is modified to one under Section 326 IPC and they are
sentenced to undergo 5 years RI. The judgment of conviction and sentence
imposed on A-1 to A-3 under Section 148 IPC is sustained. The judgment of
conviction and sentence imposed on A-4 to A-8 under Section 147 IPC is
sustained. The conviction and sentence imposed on A-5, A-6 and A-8 under Section
427 IPC are set aside and they are acquitted of the said charge. The conviction
and sentence imposed on A-4 and A-7 under Section 436 IPC are set aside and they
are also acquitted of the said charge. The fine amount, if any paid by A-4 and
A-7 under Section 436 IPC, shall be ordered to be refunded to them. The period
of sentence already undergone by A-1 to A-8 shall be given set off. The sentence
imposed on A-1 to A-3 under Sections 148 and 302 IPC is ordered to run
concurrently. The conviction and sentence imposed on A-12 under Sections 147 and
427 IPC are set aside and he is acquitted of the said charges levelled against
him. A-12 is directed to be set at liberty forthwith unless he is required in
connection with any other case.
13.It is reported that except A-3, all other accused are on bail. Hence,
the Sessions Judge shall take steps to secure A-1, A-2, A-4 to A-8 and commit
them to prison to undergo the remaining period of sentence.
14.In the result, C.A.No.173 of 2004 is allowed. With the above
modification in conviction and sentence, C.A.Nos.204, 225 and 248 of 2004 are
dismissed.
vvk
To
1.The I Addl. Sessions Judge,
Madurai.
2.The Inspector of Police,
Tirunagar Police Station,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.