IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.619 of 2007 1.Samraj 2.Selvaraj 3.Veeramohan 4.Mallan @ Aythas .. Appellants vs State rep. By Inspector of Police Marandahalli Police Station Dharmapuri District (Crime No.179 of 2004) .. Respondent Criminal appeal preferred under Sec.374(2) of Cr.P.C. against the judgment of the Additional Sessions Judge cum Fast Track Court, Dharmapuri, made in S.C.No.31 of 2007 dated 9.7.2007. For Appellants : Mr.R.C.Paul Kanagaraj for A-1 Mr.V.Gopinath Senior Counsel for Mr.S.Suresh for A-2 to A-4 For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Additional Sessions Division, Dharmapuri, made in S.C.No.31 of 2007 whereby the appellants four in number, stood charged, tried and found guilty as follows:
ACCUSED
CHARGES
GUILTY
PUNISHMENT
A-1 & A-2
302 IPC
302 IPC
Life imprisonment with a fine of Rs.2000/- and default sentence
A-3 & A-4
302 read with 109 IPC
302 read with 109 IPC
10 years R.I. with a fine of Rs.2000/- and default sentence
A-2
506(2) IPC
Not guilty
–
2.The short facts necessary for the disposal of this appeal can be stated thus:
(a) P.W.1 is a native of Chikkathoranampatti Village. P.W.2 is the brother of P.W.1. P.W.1 had three sons, out of whom one was murdered under suspicious circumstances two years prior to the occurrence. The families of P.W.1 and A-1 had number of civil litigations for decades, and in that, they were on inimical terms. On the date of occurrence namely 17.4.2004, after taking food, P.W.1 went to the farm house where she was sleeping inside, while the deceased Venkatachalam was sleeping outside. At about 1.00 A.M., she had heard the distressing cry. Then she woke up, came out and saw near the railway track A-1 with a crowbar and A-2 with an iron rod attacking the deceased, while A-3 and A-4 caught hold of him. At that time P.W.2, who also heard the noise, came over there and saw the occurrence. Thereafter, all the four accused fled away from the place of occurrence.
(b) P.W.1 accompanied by P.W.3 went in search of the Village Administrative Officer, but they could not found him. Then, they proceeded to the respondent police station where P.W.10, the Sub Inspector of Police, was on duty, to whom P.W.1 gave Ex.P1, the report, on the strength of which a case came to be registered in Crime No.179 of 2004 under Sections 341, 302 and 506(2) of IPC. Thereafter, the printed FIR, Ex.P12, was despatched to the Court, and the same reached the Magistrate concerned at 9.30 A.M.
(c) On receipt of the copy of the FIR, P.W.11, the Inspector of Police concerned, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P13, and a rough sketch, Ex.P14. Then, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P17. He also recovered bloodstained earth, sample earth and other material objects from the place of occurrence under a cover of mahazar. Then, the dead body was sent to the Government Hospital along with a requisition, Ex.P2, for the purpose of autopsy.
(d) P.W.6, the Civil Surgeon, attached to the Government Hospital, Palacode, on receipt of the said requisition, conducted autopsy on the dead body of Venkatachalam and found four external injuries. He has issued a postmortem certificate, Ex.P3, wherein he has opined that the deceased would appear to have died at about 36 to 40 hours prior to autopsy and died due to shock and haemorrhage due to injury to the head and injury to the vital organ brain.
(e) Pending the investigation, A-1 was arrested on 18.4.2004, and he volunteered to give a confessional statement which was recorded in the presence of witnesses. The admissible part is marked as Ex.P10. Pursuant to the same, he produced M.O.1, crowbar, and M.O.2, iron rod, and both were recovered under a cover of mahazar. It came to the knowledge of the Investigator that A-2 to A-4 have surrendered before the Court. All the material objects were subjected to chemical analysis by the Forensic Sciences Department pursuant to the requisition made by the Investigator through the concerned Judicial Magistrate, which resulted in two reports namely Ex.P6, the Chemical Analyst’s report, and Ex.P7, the Serologist’s report. On completion of the investigation, the Investigating Officer filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 11 witnesses and also relied on 17 exhibits and 10 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 Court below heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded punishment as referred to above. Hence this appeal at the instance of the appellants.
4.Advancing arguments on behalf of A-1, the learned Counsel Mr.R.C.Paul Kanagaraj would submit that in the instant case, according to the prosecution, the occurrence had taken place at 1.30 A.M. on 17.4.2004; that the report was given to the respondent police at 6.00 A.M.; that the prosecution examined P.Ws.1 to 5 out of whom P.Ws.1 and 2 are eyewitnesses; that P.Ws.1 to 5 are close relatives; that it is an admitted fact that all along the past, the family of P.W.1 and the family of A-1 were on inimical terms for more than a decade; that at the time when the occurrence has taken place, A-1 was successful in all the litigations and, hence A-1 could not have any motive at all; that according to P.W.1, immediately after the occurrence was over, she went in search of the V.A.O. along with P.W.3; but, they could not found the VAO, and thereafter, she proceeded to the police station to give a complaint; that according to P.W.8, the village menial, at about 1.30 A.M., it was the VAO, who informed him that A-1 had murdered the deceased; that it would be quite clear that the VAO was actually on inimical terms with A-1 and he spread the false news as if it was A-1 who caused the murder along with the other accused, and thus it would be quite evident that A-1 was not at all involved in the crime.
5.Added further the learned Counsel that according to the prosecution, the occurrence had taken place at 1.30 A.M. on 17.4.2004; but, P.W.10, the Doctor, who conducted postmortem, has given a categorical evidence before the Court that the deceased died at about 36 to 40 hours prior to autopsy; that if this is taken so, the occurrence could have taken place during the day hours of 16.4.2004 and not as put forth by the prosecution namely at 1.30 A.M. on 17.4.2004; that all put together would go to show that the occurrence as narrated by P.W.1, could not have taken place at all; that apart from that, there is discrepancy in the evidence of P.Ws.1 and 2; that it was utter darkness; that the farm house of P.W.1 was situated about 300 feet from the railway track; that the railway track is also situated at a height of 15 feet; that under the circumstances, she could not have seen the occurrence at all; that apart from that, it is not the case of the prosecution that light was available, and thus she could not have seen the assailants; that according to P.W.2, after hearing the distressing cry of P.W.1, he woke up, went over and saw the occurrence; and that the discrepancies found in the evidence of P.Ws.1 and 2 would clearly indicate that they could not have seen the occurrence at all.
6.The learned Counsel would further add that added circumstance is that if P.W.1 really witnessed such an incidence of murder, she would have informed to the villagers; but, according to her evidence, she went in search of the V.A.O. along with P.W.3, and she has not informed to anybody which is actually against the human conduct; that under the circumstances, P.W.1’s evidence should have been rejected by the lower Court since P.W.1 could not have seen the occurrence at all; that apart from that, the medical evidence was also not in support of the prosecution, and hence A-1 is entitled for acquittal which was failed to be done by the trial Court.
7.The learned Senior Counsel Mr.V.Gopinath appearing for A-2 to A-4, in the course of his argument would point out that the prosecution has miserably failed to prove its case; that as far as A-2 to A-4 were concerned, the prosecution case was that A-3 and A-4 were holding him and A-2 also attacked him along with A-1; that it is the specific case of the prosecution that A-2 attacked with an iron rod; that the Doctor has given evidence specifically stating that injury Nos.1, 2 and 4 as found in the postmortem report, could not have been caused by a weapon like iron rod, but could be caused only by a sharp-edged weapon; that apart from that, it is claimed by the prosecution that A-1 was arrested on the next day i.e., 18.4.2004; but, according to the evidence of P.W.2, he was arrested on the very day itself; that even the confessional statement alleged to have been recorded from A-1 and the recovery of M.O.1, crowbar, and M.O.2, iron rod, are all completely falsified, and hence, it could not be believed.
8.Added further the learned Senior Counsel that it is highly doubtful whether the FIR has come into existence as put forth by the prosecution; that in the instant case, the occurrence has taken place at 1.30 A.M.; that P.W.1 had gone over to the police station at about 6.00 A.M.; that according to P.W.10, the Sub Inspector of Police, he got a written report from P.W.1 and registered a case; that he would further add that nobody except P.W.1 came to the police station at the time when the report was given; that contrarily, P.W.1 would state that the report was written as per her oral instructions, by a friend of her brother-in-law; that further, according to P.W.3, they went to the police station, and it was orally given to the police officer who wrote it; that all put together would clearly indicate that whether Ex.P1, the report, could have come into existence as put forth by the prosecution; that according to the witnesses, it was total darkness; and that if to be so, they could not have known the identity of the assailants.
9.Added further the learned Senior Counsel that the evidence of P.W.1 was highly unreliable; that according to the FIR, she was actually sleeping inside the house, and she heard the noise and came out, and then she proceeded to the place of occurrence; that the place of occurrence is next to the railway track; that the railway track is shown as 300 feet away from the farm house of P.W.1; that according to the evidence of P.W.1, after hearing the noise, she woke up, came out and saw the occurrence; that since the railway track is situated 300 feet away from her farm house, she could not have seen the occurrence, and that too in darkness; that apart from that, the discrepancies found would clearly indicate that she could not have seen the occurrence at all; that though she has stated in the FIR that she had a torch light in hand, she had not given such evidence before the Court; that under the circumstances, the identity of the appellants is doubtful; that P.W.2 has categorically admitted that only after hearing the distressing cry of P.W.1, he was rushing to the spot, and hence P.W.2 could not have seen the occurrence at all; that the occurrence by that time should have been over; that he would claim as if he had seen the occurrence; that such evidence should not have been believed; that it can be well stated that the prosecution has miserably failed to bring forth any evidence worth mentioning to accept its case, and hence they are all entitled for acquittal in the hands of this Court.
10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
11.It is not a fact in controversy that the son of P.W.1 one Venkatachalam was done to death in an incident that took place at 1.30 A.M. on 17.4.2004. Following the case registered by P.W.10, the Sub Inspector of Police, P.W.11, the Inspector of Police, took up investigation and prepared the inquest report. Thereafter, the dead body was subjected to postmortem by P.W.6, the Doctor, who has given a categorical opinion that the he died out of shock and haemorrhage due to the injuries sustained. The fact that he died out of homicidal violence was not a fact in dispute, and hence it has got to be recorded so.
12.In order to substantiate the charges levelled against the appellants/accused, the prosecution marched P.Ws.1 and 2 as eyewitnesses. It is true that both the family of P.W.1 and the family of A-1 for decades indulged in civil litigations. From the evidence of P.W.1, it would be quite clear that another son has already been done to death, and it has taken place in a railway track. Since she has not seen that occurrence, she was not able to give complaint against anybody which fact is also not disputed. As far as the instant occurrence is concerned, according to her, after taking food, accompanied by her son she went to the farm house, and she was sleeping inside, and her son was sleeping outside, and at about 1.30 A.M., she heard the distressing cry, and she came out, and she rushed near the place of occurrence where she found her son being attacked. At the earliest, she has stated in the FIR that she had a torch light and went outside. It is true that she is the mother of the deceased. Her evidence is carefully scrutinised. The learned Senior Counsel for the appellants brought to the notice of the Court certain discrepancies which, in the opinion of the Court, are minor most. In the FIR she has stated that she heard the cry, came out, proceeded towards the place of occurrence and saw the occurrence; but, in evidence, she has stated that she came out to see the occurrence. This, in the considered opinion of the Court, cannot be a reason to suspect her evidence.
13.Apart from the above, according to the learned Senior Counsel, immediately after the occurrence, she proceeded towards the village; but, she has not informed to anybody; but, the Village Administrative Officer (VAO) was able to tell his Village Menial, P.W.8, about the incidence of murder at 1.30 A.M., and it was the V.A.O., who spread the news. This contention has got to be rejected for more reasons than one. According to P.W.8, after the VAO informed him at 1.30 A.M., both of them were actually staying near the dead body till the police arrived at the spot. From this it would be quite clear that the VAO came to know about the murder immediately after the occurrence. But, P.Ws.1 and 3 who could not meet him, went to the police station. Even after that, when the VAO came to know about the same, he has informed P.W.8, the village menial, and he was also at the place of occurrence till the police officials arrived. This would be quite clear that the news was given throughout the place. It is pertinent to point out that the occurrence has taken place at 1.30 A.M., and they were in search of the VAO. At this juncture, one cannot expect P.W.1 who after hearing the distressing cry, woke up in the early hours, to inform to the villagers about the occurrence and then go to the police station. Hence the above contention cannot be countenanced.
14.As far as P.W.1’s evidence is concerned, even after applying the test of careful scrutiny, it has inspired the confidence of the Court that she has witnessed the occurrence. As far as A-1 is concerned, according to the medical evidence, the injury that was caused on the skull was fatal. Further in the instant case, A-3 and A-4 were charged under Sec.109 of IPC for abetment. In the opinion o the Court, as far as A-3 and A-4 in respect of the particular charge are concerned, they could not be found guilty as per the charge since it is a case where they were found holding the deceased according to the witnesses. Under the circumstances, A-3 and A-4 could not found that they have shared the common intention of the others. Hence, A-3 and A-4 have got to be relieved of the charge.
15.As regards A-2, according to the witnesses, he attacked the deceased with the iron rod on the knee. The medical opinion was exactly contra. According to P.W.6, the postmortem doctor, the injury Nos.1, 2 and 4 could not have been caused by iron rod, but could be caused only by sharp-edged weapon. Hence the claim of the prosecution against A-2 cannot be accepted.
16.It is brought to the notice of the Court that P.Ws.1 and 2 have categorically given evidence that A-1 was arrested and found in the police station in the very evening. The evidence of the Investigator would clearly indicate that he was arrested on the next day i.e., 18.4.2004, and at that time, he gave a confessional statement voluntarily followed by the recovery of M.Os.1 and 2, crowbar and iron rod respectively, which could not have taken place if viewed from the evidence of P.W.2. Hence the arrest, confession and recovery have got to be rejected. Even then, the prosecution can sustain its case against A-1 in the considered opinion of the Court. As far as A-1 is concerned, he has inflicted the fatal injury. P.W.1’s evidence in that regard would suffice in the opinion of the Court. Though P.W.2 could not have seen the occurrence, he was able to see P.W.1 also. From the evidence of the witnesses, it is quite clear that A-1 had criminally intimidated them. Under the circumstances, it would be sufficient for the witnesses to identify A-1 at the time and place of occurrence, and the injury caused by A-1 was fatal. Hence, he has got to be found guilty. The lower Court was perfectly correct in finding A-1 guilty under Sec.302 IPC and awarding life imprisonment along with fine and default sentence. As regards A-2 to A-4, they are entitled for acquittal.
17.In the result, this criminal appeal is partly allowed setting aside the judgment of the lower Court in respect of A-2 to A-4. A-2 to A-4 are acquitted of the charge levelled against them. The fine amount, if any paid by them, will be refunded to them. The bail bonds executed by them shall stand terminated. The judgment of the lower Court in respect of A-1 is confirmed.
nsv/
To:
1.The Additional Sessions Judge
Cum Fast Track Court
Dharmapuri
2.The Inspector of Police
Marandahalli Police Station
Dharmapuri District
(Crime No.179 of 2004)
3.The Public Prosecutor
High Court,
Madras