BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 2/12/2008 CORAM THE HONOURABLE MR. JUSTICE R. REGUPATHI and THE HONOURABLE MR. JUSTICE R. SUBBIAH Criminal Appeal No.273 OF 2002 1. Sankar 2. Veeraiyan ... Appellants Vs State rep. by The Inspector of Police Thanjavur (South P.S.). ... Respondent Criminal Appeal under Section 374 of Cr.P.C., to call for the records in S.C. No.160 of 2000, on the file of the II Additional District and Sessions Judge, Thanjavur and set aside the order of conviction and sentence dated 12/12/2001 against the appellants. !For appellant ... Mr.C.Mayilvahana Rajendran ^For respondent... Mr.P.N.Pandithurai Addl.Public Prosecutor - - - - - :JUDGMENT
(Judgment of the Court was made by
R. REGUPATHI, J)
This Criminal Appeal has been filed against the order of conviction and
sentence, dated 12/12/2001, passed in Sessions Case No.160 of 2000 by the II
Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur.
2. The appellants/A.1 and A.3 are friends. Initially, the
respondent/Police charge sheeted one Murugan (A.2) and the appellants herein and
pending trial, A.2 died; therefore, the trial proceeded as against the
appellants/A.1 and A.3. The allegation is that, on 26/7/1999 at 4.45 p.m., at
Vilar Road, Thanjavur, the deceased quarrelled with the sister of A.1 by name
Malliga, therefore, A.1 developed enmity against the deceased and, with the
common intention to commit the murder of the deceased, on the same day at 5.00
p.m., all the accused joined together and at Pookara Vilar Road near flower
market, Thanjavur, A.1 beat the deceased on face and head with wooden log while
A.2 assaulted on the back with wooden log and the third accused kicked the
deceased on the chest; and as a result, the deceased succumbed to the injuries,
resulting in registration of the case.
Learned trial Judge framed two charges against the accused and, as per the
first charge, the first and second accused armed with wooden log assaulted the
deceased on the head, face and back and the third accused kicked the deceased on
the chest and thereby, committed an offence under Section 302 r/w. 34 IPC. As
per the second charge, the appellants/accused threatened P.W.1, brother of the
deceased, who attempted to prevent them from attacking the deceased and thereby
committed an offence under Section 506 (ii) r/w. 34 IPC.
Initially, when the accused were questioned, they denied the commission of
the offence and pleaded innocence and therefore, the trial against them was
taken up. The prosecution, to substantiate its case, examined P.Ws.1 to 12,
marked Exs.P.1 to P.18 and produced M.Os.1 and 2. The learned trial Judge, on
conclusion of the trial, found the accused/appellants guilty and sentenced them
to undergo life imprisonment for the offence under Section 302 r/w. 34 IPC and
to undergo simple imprisonment for three years for the offence under Section 506
(ii) r/w. 34 IPC. The sentences imposed were ordered to run concurrently.
Aggrieved against the order of the trial Court, the present Criminal Appeal has
been filed.
3. The case of the prosecution, as spoken to by its witnesses, is
briefly narrated below:-
P.W.1 is the brother of the deceased. The deceased was earlier employed by
the elder brother of the first accused to sell arrack and when the deceased was
confined under preventive detention, the brother of the first accused failed to
maintain the deceased’s family, and in that background, there was enmity
between the deceased and A.1. Whileso, on 26/7/1999 at 5.00 p.m., when P.W.1
was proceeding in his tricycle near Pookara Street, he found A.1 and A.2, armed
with wooden logs beating the deceased and on the deceased falling down, A.3
stamping him on the chest with legs. When P.W.1 questioned their act, the first
accused threatened him that he would break his lame leg. On P.Ws.3 and 4
raising alarm, the accused ran away from the scene of occurrence. The deceased
told P.W.1 that he unknowingly dashed against the sister of the first accused,
as a result, the accused assaulted him. With the assistance of P.Ws.3 and 4,
the injured was taken in an autorickshaw to Thanjavur Medical College Hospital.
P.W.2 did not support the prosecution case, therefore, he was treated
hostile. P.Ws.3 and 4 corroborate the evidence of P.W.1 and they have spoken to
above the overtacts of the accused. On the injured being brought to the
hospital, he was admitted by P.W.5, the Medical Officer to whom the wife of the
injured told that her husband was assaulted by two persons. On examining the
injured, he issued Ex.P.2 Accident Register, wherein he found four injuries.
On receipt of intimation from the hospital at 9.15 p.m., P.W.10 the Head
Constable attached to Thanjavur South Police Station proceeded to the Hospital.
As the deceased was unable to speak, he went to the house of P.W.1 and took him
to the Police Station, where a statement under Ex.P.1 was obtained from him.
The Head Constable registered a case in Crime No.250 of 1999 under Sections 324
& 506 (ii) IPC and prepared Ex.P.6 First Information Report. On the next day at
7.00 a.m., he visited the scene of occurrence and prepared Observation Mahazar
Ex.P.4 and rough sketch Ex.P.7. On receiving death intimation/Ex.P.11 from the
hospital at 2.45 p.m., he altered the penal provision as one under Section 302
IPC, prepared Ex.P.8 Express Report and despatched the same to the higher-ups.
P.W.8, Grade – I Constable attached to Thanjavur South Police Station,
after receiving the Express Report in Crime No.250 of 1999, delivered the same
to Judicial Magistrate No.1, Thanjavur at 8.00 p.m.
P.W.12 the Inspector of Police, Thanjavur (South) Circle, after receiving
a copy of the Express Report through P.W.8, took up investigation and proceeded
to the scene of occurrence along with P.W.10, who conducted preliminary enquiry
in the case. The Inspector verified the correctness of the Observation Mahazar
and rough sketch prepared by the Head Constable. On 28/7/1999, he conducted
inquest over the dead body in the presence of Panchayatdars between 7 a.m. and
10 a.m. Ex.P.12 is the inquest report. Thereafter, he sent the dead body
through P.W.9 Head Constable along with the requisition for post-mortem.
P.W.11, the Professor of Forensic Medicine attached to Thanjavur Medical
College, conducted autopsy on the dead body of the deceased at 2.30 p.m., on
28/7/1999 and issued Ex.P.9 Post-mortem certificate wherein, she noted down the
following:-
External injuries:-
1. An inverted ‘U’ shaped surgical sutured wound measuring 25 cms seen
involving the right fronto tempero perietal regions of the scalp with intact
silk sutures.
2. Abrasion 2 1/2 x 1 cm seen over the right perietal region.
3. Abrasion 4 x 2 cms seen over the left tempero perietal region.
4. Sutured laceration 2 cms long seen over the outer end of right
eyebrow. On dissection it was 1/2 cm broad and bone deep with surrounding
contusion.
5. Abrasion 3 x 2 cms seen over the left side of nose.
6. Abrasion 1 x 1/2 cm seen over the outer aspect of upper 3rd of left
forearm.
7. Abrasion 5 x 3 cms seen over the postero medical aspect of left elbow.
8. Two linear scratch abrasions seen over the back of upper 3rd of left
arm and back of left shoulder measuring 5 x 1/2 cms and 3 x 1/2 cms
respectively.
9. Abrasion 2 x 1 cms over the front of left knee.
10. Abrasion 2 x 1 cms seen over the back of lower 3rd of right forearm.
11. Scratch abrasion 5 x 1/2 cms seen over the antero medical aspect of
right elbow.
12. Abrasion 9 x 4 cms seen over the back of right shoulder blade region.
13. Two abrasions each measuring 3 x 1 cms and 5 x 4 cms seen over the
right infra scapular region.
Internal injuries:-
14. On reflucting the scalp subscalpal contusion involving the scalp
except over the occipital region.
15. Surgical removal of bone 8 x 6 cms involving the right fronto perieto
temporal bones (surgical creniotomy)
16. Depressed fracture over an area of 3 1/2 x 3 cms seen over the right
side of the frontal bone close to the coronal suture with sutural separation of
coronal suture on both sides with a linear fracture of 6 cms long involving the
right temporal bone.
17. A linear fissured fracture seen involving the left frontal bone
measuring 5 cms found to join the coronal suture at its medial end.
18. On opening the skull cap – extradural haemorrhage seen underneath the
coronal sutural line on both sides. Surgical suturea seen on the dura
corresponding to surgical removal of bone.
19. Laceration with surrounding contusion over an area of 10 x 7 cms x 2
cms seen over the right fronto parietal lobe of brain. Diffuse subdural
haemorrhage and subarach-noid on both cerebral hemispheres intra cerebral
haemorrhage in both sides sub dural basal blood clots on both sides noted.
The Doctor has opined that the deceased would appear to have died due to head
injuries.
On 29/7/1999 at 3.00 p.m., P.W.12 arrested A.2 and recorded his
confession statement and the admissible portion thereof is Ex.P.13. A.2
produced a wooden log concealed under a bush near Arasamarathu Pillaiyar Temple
and the same was seized as M.O.2 in the presence of witnesses under Ex.P.14. On
the same day at 5.00 p.m., the Investigating Officer arrested A.1, who
voluntarily gave a confession statement and the admissible portion is Ex.P.15.
A.1 produced the wooden log M.O.1 and the same was recovered under Ex.P.16 in
the presence of witnesses. The accused were sent for remand and the Material
Objects were forwarded under Form 95 (Exs.P.17 and 18). After receipt of
medical and forensic reports and examination of the witnesses, the Investigating
Officer filed final report against the accused on 20/9/1999 for offences under
Sections 302 and 506 (ii) r/w. 34 IPC.
4. When questioned under Section 313 Cr.P.C., the accused denied their
complicity in the crime and pleaded innocence. Neither oral nor documentary
evidence was let in by the defence. The learned Trial Judge, on a perusal of
the oral and documentary materials and after hearing both sides, convicted and
sentenced the appellants as aforementioned; hence the present appeal.
5. The learned counsel for the appellants submits that P.W.1 is none else
than the brother of the deceased and he is said to have witnessed the occurrence
while he was coming in that street in a tri-cycle; that being so, it is quite
strange that he did not accompany the deceased to the hospital. P.W.1 is a
chance witnesses and on a perusal of his evidence, it is seen that he gave the
complaint to the Police at 7 p.m., whereas, P.W.10 the Head Constable deposed
before Court that the complaint was given at 1 a.m., at the Hospital. According
to the learned counsel, P.W.1 is an interested and chance witness and his
evidence being self-contradictory, the same cannot be acted upon and has to be
rejected.
P.W.2 has been cited as an independent eye witness, but, he did not
support the case of the prosecution. P.Ws.3 and 4 are admittedly Boot-leggers
and on a close reading of their evidence, it could be inferred that they were
forced by the Police to depose in favour of the prosecution. Under such
circumstances, the evidence of P.Ws.1, 3 and 4 are un-reliable and the entire
case of the prosecution resting on the testimonies of these witnesses falls to
ground. It is further submitted that non-examination of the wife of the deceased
by name Kasturi, who brought the deceased to the hospital, casts a doubt on the
prosecution case. P.W.5 who gave admission to the deceased in the hospital on
26/7/1999 at 7.50 p.m., noted down that the deceased was assaulted by two
persons. P.W.6, the auto driver, who took the deceased to the Hospital, did not
support the case of the prosecution and therefore, he was treated hostile. The
complaint was received belatedly and further, the First Information Report
reached the Magistrate on the next day at 8.00 p.m; therefore, it is apparent
that the First Information Report would not have come into existence in the time
and manner as put forth to by the prosecution and that a false case has been
falsely foisted on the accused.
In so far as the second appellant/A.3 in the case is concerned, he did not
originally accompany the other accused and the allegation against him is that
he stamped the deceased when he fell down on the ground. There is no
corresponding injury on the chest. The death of the deceased was caused only
due to the alleged assault made by the first appellant/A.1 and the second
accused (since died). Admittedly, the second appellant was not armed with any
weapon. There was no animosity or nexus between the second appellant and the
deceased and even so, the second appellant is in no way concerned with the
alleged act of the first accused. Under such circumstances, it is submitted
that the second appellant has been falsely implicated and the order of
conviction and sentence passed against him is liable to be set aside.
In so far as the first accused is concerned, it is submitted that the
deceased misbehaved with the sister of A.1 and abused her in filthy language and
when the second accused questioned the same, the deceased indulged in quarrel
with him also. The first accused went to the scene of occurrence only for the
purpose of questioning the conduct of the deceased and he did not carry any
dangerous weapon. Admittedly, the weapon of offence is wooden log. Learned
counsel submitted that it was the deceased who used filthy language against the
sister of the first accused and quarrelled with her and only in that background,
the occurrence is said to have taken place and in such circumstances, the
offence under Section 302 r/w. 34 IPC is not attracted.
6. Per contra, learned Additional Public Prosecutor submits that the
occurrence took place at 5 p.m. in the presence of P.Ws.1 to 4. The evidence of
P.Ws.1, 3 and 4 is consistent and convincing. Though P.W.1 is the brother of
the deceased, his evidence is quite natural and only because of the reason he is
an handicapped person, he could not accompany the deceased to the Hospital.
Therefore, with the help of P.Ws.3 and 4, the deceased was taken to the
Hospital. P.W.10 who recorded the complaint from P.W.1, initially went to the
Hospital and since the deceased was not in a position to speak, proceeded to the
residence of P.W.1, brought him back to the Hospital and recorded Ex.P.1. Thus,
there was no delay in recording/lodging the complaint.
Initially, the case was registered under Sections 324 and 506 (ii) IPC
and on receipt of intimation about the death of the deceased at 2.45 p.m.,
Express report Ex.P.8 was prepared, altering the penal provision, and the
altered report reached the Judicial Magistrate at 8.00 p.m. A.1 and A.2
repeatedly attacked the deceased resulting in his death. Further, the deceased
himself informed P.W.1 about the sequence of events led to the attack on him by
the accused.
Learned Additional Public Prosecutor fairly conceded that there is no
direct nexus between the second appellant (A.3) and A.1 for the motive put forth
by the prosecution and admittedly, the second appellant is alleged to have
kicked the deceased on the chest after the deceased falling down and receiving
fatal blows from the other accused. Further, there is no corresponding injury
for such overt act. According to the Additional Public Prosecutor, the order
of conviction and sentence passed by the trial Court as against A.1/first
appellant is based on sound reasonings.
7. Perused the materials available on record and heard the submissions
made on either side.
8. It is the case of the prosecution that there was animosity between the
family of the first accused and the deceased. The deceased was working as an
arrack seller with the brother of the first accused. When the deceased was in
custody, it is alleged that the brother of the first accused failed to look
after the family of the deceased. Under such circumstances, the deceased is
said to have indulged in quarrel with the brother of the first accused and
there was no direct enmity between the deceased and the first accused. It is
the admitted case of the prosecution that the deceased was quarrelling with the
family members of the accused and on an earlier occasion also, he quarrelled
with the sisters of the accused. Under such circumstances, one of the sisters
was abused in filthy language by the deceased just prior to the occurrence and
when the same was informed to the first accused, he came to the scene of
occurrence and found the deceased quarrelling with his sister as well as A.2.
Questioning the conduct of the deceased, A.1 and A.2 beat the deceased with
wooden logs. Though there were earlier quarrels between the deceased and the
family of the accused, A.1 did not, on his own, proceed against the deceased.
Admittedly, it was the deceased, who quarrelled with the sister of the accused,
and being informed of the same, A.1 went to the scene of occurrence.
From the facts and circumstances, we could find that the deceased is an
aggressor and the occurrence took place only on account of the deceased dashing
against the sister of A.1 and using abusive and filthy language against her. It
could also be seen that A.1 went to the scene of occurrence only for the purpose
of questioning the conduct of the deceased and under such circumstance, the
occurrence had taken place. Though A.1 along with A.2 beat the deceased, he had
no intention to do away with the deceased; therefore, we are of the considered
view that Section 302 r/w. 34 IPC is not attracted. Though there was no
intention or pre-meditation on the part of A.1 to kill the deceased, looking at
the weapon used and the injuries inflicted on the deceased, we hold that the
first accused has committed the offence under Section 304 (i) IPC. Therefore,
the conviction and sentence under Section 302 IPC are set aside, instead, the
first accused/appellant is convicted under Section 304 (i) and sentenced to
undergo R.I. for five years.
In so far as the second appellant (A.3) is concerned, materials produced
by the prosecution are not sufficient and strong enough to convict him under
Section 302 r/w. 34 IPC. Therefore, the order of conviction and sentence passed
by the trial Court as against the second appellant/third accused is set aside
and he is acquitted of both the charges. Bail bond, if any, executed by the
second appellant shall stand cancelled. It is reported that A.1/first accused
is on bail. Therefore, learned trial Judge is directed to take steps to secure
the presence of A.1 and commit him to prison to undergo the remaining period of
sentence.
9. Criminal Appeal is allowed in part as indicated above.
mvs.
To
1.II Additional District and Sessions Judge, Thanjavur