IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.10.2009
CORAM
THE HONOURABLE MR. JUSTICE C.NAGAPPAN
AND
THE HONOURABLE MR. JUSTICE M.JEYAPAUL
Crl.A.No. 211 of 2009
1. Sekar
2. Krishnamurthy
3. Senthil
4. Kittu alias Krishnamurthy .. Appellants/Accused Nos.1 to 4
Vs.
State, rep. by Inspector of Police,
Vedaranyam Police Station
Nagapattinam District
(Crime No.220 of 2005) .. Respondent/Complainant
Prayer: Appeal against the Judgment, dated 30.1.2009, passed in Sessions Case No.108 of 2007 on the file of the Sessions Judge, Nagapattinam.
For Appellants :: Mr. S.Sadasharam
For Respondent :: Mr. Hassan Mohamed Jinnah
Addl. Public Prosecutor
J U D G M E N T
(The Judgment of the Court was delivered by C. NAGAPPAN, J.)
The appellants herein are the Accused Nos.1 to 4 in Sessions Case No.108 of 2007 on the file of the Sessions Judge, Nagapattinam and they have preferred this appeal challenging the conviction and sentence imposed on them by judgment dated 30.1.2009 in the case. For the sake of convenience, in this Judgment, the appellants will be referred to as A1 to A4.
2. Charges under Sections 341 and 506 (ii) IPC were framed against A1 Sekar, A2 Krishnamurthy, A3 Senthil and A4 Kittu alias Krishnamurthy; charge under Section 302 IPC was framed against A1 to A3 and charge under Section 302 r/w 109 IPC was framed against A4 Kittu. The learned Sessions Judge found A1 to A4 guilty of the charge under Section 341 IPC and convicted and sentenced them to undergo one month Simple Imprisonment each; found A1 to A3 guilty of the charge under Section 302 IPC and convicted and sentenced them to undergo Life Imprisonment each and to pay a fine of Rs.5000/- each, in default, to undergo Rigorous Imprisonment for six months each and found A4 Kittu alias Krishnamurthy guilty of the charge under Section 302 r/w 109 IPC and convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.5000/-, in default, to undergo Rigorous Imprisonment for six months and ordered the sentences to run concurrently and at the same time, the learned Sessions Judge found A1 to A4 not guilty of the charge under Section 506 (ii) IPC and acquitted them of that charge.
3. To prove its case, the prosecution examined P.Ws.1 to 17 and marked Exs.P1 to P21 and M.Os.1 to 4.
4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows.
PW.6 Dhanalakshmi is the wife of deceased Arumugam. PW.2 Nagaraj is the elder brother of the deceased Arumugam. PW.3 Achikkannu is the wife of PW.2 Nagaraj. During the month of January 2005, PW.2 Nagaraj was given a sum of Rs.2000/- towards Tsunami relief and he kept the amount in the house and slept. PW.3 Achikkannu was sleeping on the cot wrapping herself with bedsheet and A1 Sekar came to their house with an intention to steal the said amount and mistaking the person lying on the cot as PW.2 Nagaraj, A1 Sekar inflicted three or four cut injuries on the head of PW.3 Achikkannu who was lying on the cot. Immediately, PW.3 Achikkannu was taken to Vedaranyam Government Hospital by her brother-in-law Arumugam and a complaint came to be lodged at Vedaranyam Police Station against Sekar, who is the first accused herein and the criminal case was pending.
A1 Sekar developed grouse against Arumugam and on 11.4.2005 at about 8.30 pm, when Arumugam was returning to his house from Vedaranyam bazaar, A1 to A4 intercepted him near Andavar Kollai and Arumugam ran and was chased by the accused and when Arumugam slipped and fell down on the ground, A4 Kittu alias Krishnamurthy caught hold of his head and A1 Sekar stabbed on the scapular area twice with knife; A2 Krishnamurthy stabbed him with knife on the right side of the scapular area and A3 Senthil also stabbed him on the back of the chest with knife. PW.2 Nagaraj saw the occurrence. All the accused ran away with weapons. On hearing the cry of Arumugam, PW.3 Achikkannu, PW.6 Dhanalakshmi and PW.1 Subramanian ran to the occurrence place and found Arumugam seriously injured. Arumugam told PW.1 Subramanian and PW.6 Dhanalakshmi that the accused inflicted stab injuries on him with knife.
PW.2 Nagaraj took the injured Arumugam to Vedaranyam Government Hospital. PW.13 Dr.Ananthakrishnan examined Arumugam at 9 pm on 11.4.2005 at Vedaranyam Government Hospital and found him conscious by answering questions. Arumugam told him that he was attacked by two known persons with knife and PW.13 Dr.Ananthakrishnan found four cut injuries on the scapular area and another cut injury at L7 Renal Angle and he referred him to Nagapattinam Government Hospital for further treatment. Ex.P10 is the Accident Register issued by him.
PW.16 Sub Inspector Kulothungan of Vedaranyam Police Station received intimation at 9.30 pm on 11.4.2005 and went there and found injured Arumugam already referred and taken to Nagapattinam Government Hospital. He recorded Ex.P14 Statement given by Arumugam at 8.30 am on 12.4.2005 at Nagapattinam Government Hospital and returned to Police Station and registered a case in Crime No. of 220/2005 under Sections 341, 324, 506(ii) and 307 IPC and prepared Ex.P15 First Information Report and dispatched the same to the Court and higher officials.
PW.17 Inspector Anbazhagan took up the investigation on 12.4.2005 and went to the occurrence place and prepared Ex.P2 Observation Mahazar in the presence of P.W.7 Rasu. Ex.P21 is the Rough sketch drawn by him. He seized MO.2 Bloodstained Shirt worn by Arumugam under Ex.P1 mahazar in the presence of PW.6 Dhanalakshmi and another at Government Hospital, Nagapattinam. He examined the witnesses and recorded the statements. He arrested A1 Sekar on 13.4.2005 at 6 pm in front of Shanmugam Textile Shop and enquired him in the presence of PW.8 Marimuthu and PW.9 Murugesan and recorded the confession statement given by A1 Sekar. Ex.P5 is the admissible portion of the confession statement. A1 Sekar took them to Andavar Kollai and took and produced MO.3 Knife hidden near the palmyra tree and he recovered it under Ex.P4 mahazar in the presence of said witnesses. He arrested A2 Krishnamurthy near Rajaji Park and enquired him in the presence of PW.10 Muruganandham and another and recorded the confession statement given by A2 Krishnamurthy. Ex.P6 is the admissible portion of the confession statement. He received death intimation of Arumugam on 19.4.2005 and he went to Thanjavur Medical College Hospital and conducted inquest on the body and prepared Ex.P18 Inquest Report. He examined some more witnesses. He sent the body for post-mortem with Ex.P11 Requisition.
P.W.14 Dr.Vijayalakshmi conducted autopsy on the body of Arumugam at 2 pm on 19.4.2005 at Thanjavur Medical College Hospital and found the following.
“EXTERNAL INJURIES:-
1) A Mid line surgically sutured wound with intact silk sutures noted over the front of Abdomen found extending from the ziphisternum upto 13 cms above the supra pubic region - Total length measured 21 cms made for Treatment purpose.
2) A surgically made drainage wound with a rubber drainage tube in situ noted over the left side flank of Abdomen made for Treatment purpose.
3) Surgically made intercostal Drainage wounds one over each side lateral chest walls over the Anterior axillary line over the 6th intercostal spaces with intact silk sutures made for Treatment purpose.
4) An oblique sutured wound with intact silk sutures noted over the Right side inter scapular area measuring 4 cms x 1 cm x Muscle deep found situated 16 cms below the nape of Neck and 4 cms lateral to the mid line.
5) An oblique sutured wound with intact silk sutures noted over the left inter scapular area measuring 4 cms x 1 cm x Muscle deep found situated 17 cms below the nape of Neck and 2 cms lateral to the mid line.
6) 3 cms below the above wound No.5, a vertically oblique sutured wound with intact silk sutures noted over the left side infra scapular area over the renal angle measuring 6 cms x 1 cm x Abdominal cavity deep.
7) 2 cms below the above wound No.6, a curved sutured wound with intact silk sutures noted over the mid line measuring 6 cms x 1 cm x abdominal cavity deep.
8) A sutured wound with intact one silk suture noted over the Right infra scapular area measuring 2 cms x 1/2 cm x 1/4 cm.
9) Multiple linear dark brown coloured scratch abrasions of various sizes about Ten numbers noted over both sides of back of chest.
INTERNAL INJURIES:-
10) On dissection of chest - Anterior and posterior Thoracic wall contusion noted over the whole of both sides of chest. Multiple contusions of various sizes noted over all the lobes of both lungs. Thoracic cavity contained 800 ml of blood stained fluid on both sides.
11) On dissection of Abdomen – Retro peritoneal contusion noted over the whole of both sides. Diffuse contusion over the root of mesentery and whole of mesentery. Spleen found surgically removed and hence missing. Reparative sutures noted over the splenic bed with surrounding contusion. The above mentioned external injury No.6 was found to have injured the body of Pancreas and Surgical reparative sutures noted over it. Further the above mentioned external injury No.7 has found to have injured the middle portion of jejunum and surgical reparative sutures for end to end anastomosis noted. Multiple contusions of various sizes noted over the coils of Jejunum Surgical Reparative sutures noted at four places in the coils of jejunum made for Treatment purpose for the closure of perforations. Abdominal cavity contained about 800 ml of blood stained fluid contusion of whole of both kidneys also noted.
All the above mentioned injuries were of antemortem in nature.
Extremities .. Pale.
Heart .. Normal in size. All the
chambers contained fluid - blood.
Valves .. Normal.
Coronary vessels .. patent. Great vessels Normal.
Lungs .. C/s both pale and oedematous.
Larynx and hyoid bone .. intact.
Stomach .. Empty. Mucosa pale.
No specific smell made out.
Liver, Kidneys .. C/s pale.
Spleen .. Found missing due to Surgical Removal.
Small intestine .. Empty. Mucosa pale.
No specific smell made out.
Bladder .. Empty. Pelvis intact.
Bones and
membranes .. intact.
Brain .. C/s pale and oedematous."
She expressed opinion that the deceased would appear to have died due to multiple injuries involving many of the vital organs. Ex.P12 is the Post-mortem Certificate issued by her.
PW.17 Inspector Anbazhagan gave requisition for sending the properties for chemical examination. Exs.P19 Chemical examiner report and Ex.P20 Serologist report were received in Court. He completed the investigation and filed final report against the accused.
5. The incriminating circumstances appearing against the accused were put to them during their examination under Section 313 CrPC and they denied complicity. No witness was examined and Ex.D1 was marked on their side.
6. The Trial Court held that the charge under Section 341 IPC against A1 to 4; charge under Section 302 IPC against A1 to A3 and the charge under Section 302 r/w 109 IPC against A4 are proved and sentenced them as stated earlier. Challenging the conviction and sentence, they have preferred the present appeal.
7. The prosecution case is that all the accused waylaid Arumugam while he was returning home and A1 to A3 stabbed him indiscriminately with Knives on the back of his chest in the scapular area, resulting in injuries which led to his death and A4 Kittu alias Krishnamurthy aided the attack.
8. The learned counsel for the appellants submits that as per the prosecution case, the case came to be registered on Ex.P14 Statement given by injured Arumugam at 8.30 am on 12.4.2005 at Nagapattinam Government Hospital and the defence has established that the injured Arumugam was taken to Thanjavur Medical College Hospital and admitted there at 5 am on 12.4.2005 through Ex.D1 Accident Register issued by Thanjavur Medical College Hospital and the Investigation Officer in his cross-examination has admitted that the version of PW.16 Sub Inspector Kulothungan as having recorded Ex.P14 Statement of the injured Arumugam at Nagapattinam Government Hospital is false and hence the very foundation of the prosecution case is shown to be false and the prosecution did not examine the Doctors who treated the injured Arumugam in the Government Hospital at Nagapattinam as well as in Thanjavur Medical College Hospital and no medical records have been produced to show the conscious state of mind of injured Arumugam and in the absence of medical evidence relating to the condition of injured Arumugam, the alleged oral dying declarations said to have been given by injured Arumugam to the prosecution witnesses cannot be accepted and though injured Arumugam survived for seven days after the occurrence no steps have been taken to record dying declaration from him and PW.2 Nagaraj, who is the elder brother of Arumugam, alone has testified that he witnessed the occurrence and his version cannot be relied on for the reason that he is residing at 1 km away from the occurrence place and he rushed to the occurrence place on hearing the wailing noise of injured Arumugam and the prosecution has suppressed the fact that the case came to be registered even before the injured was examined by the doctor at Vedaranyam Government Hospital which is evident from the copy of the Accident Register extract issued by him and the complaint given by PW.2 Nagaraj to the police while injured Arumugam was examined at Vedaranyam Government Hospital has been suppressed and the Investigation Officer has not testified about the arrest of the accused and the recovery of weapons pursuant to the information given by the respective accused and the witnesses for the same have also not supported the prosecution case and the prosecution has failed to prove the charges against the accused and the conviction and sentence imposed on them by the trial Court are liable to be set aside.
9. Per contra, the learned Additional Public Prosecutor submits that though PW.2 Nagaraj is related witness, his testimony cannot be discarded on that ground and there are oral dying declarations spoken to by P.Ws.1 and 6 and the prosecution has let in evidence to prove the charges and the conclusion of the trial Court is sustainable.
10. The case came to be registered on the statement given by injured Arumugam regarding the occurrence. PW.16 Sub Inspector Kulothungan has testified that he received intimation from Vedaranyam Government Hospital at 9.30 pm on 11.4.2005 about the injuries sustained by Arumugam and he reached the hospital and came to know that Arumugam had already been taken to Nagapattinam Government Hospital and he reached there at 8.30 am on 12.4.2005 and recorded Ex.P14 Statement given by injured Arumugam in Nagapattinam Government Hospital and returned to Vedaranyam Police Station at 12.30 pm on the same day and registered a case in Crime No.220/2005 under Sections 341, 324, 506(ii) and 307 IPC against all the accused and prepared Ex.P15 First Information Report. PW.2 Nagaraj in his testimony has stated that they admitted the injured Arumugam at Nagapattinam Government Hospital at 11.30 p.m. and after giving treatment for half an hour, the Hospital Authorities advised them to take him to Thanjavur Medical College Hospital and on the same night, they took the injured Arumugam and admitted him in Thanjavur Medical College Hospital. The defence would mark Ex.D1 Accident Register extract pertaining to injured Arumugam issued by Thanjavur Medical College Hospital in the cross-examination of the Investigation Officer. It is stated in Ex.D1 Accident Register extract that injured Arumugam was admitted as an inpatient in Thanjavur Medical College Hospital at 5 am on 12.4.2005. Ex.D1 Accident Register extract demolishes the prosecution case that the statement was recorded from Arumugam at 8.30 am on 12.4.2005 at Nagapattinam Government Hospital. The foundation of the prosecution case is shaken and there appears to be element of suppression also. The injured Arumugam was taken to Vedaranyam Government Hospital and he was examined by PW.13 Dr.Ananthakrishnan at 9 pm on 11.4.2005 and according to him, Arumugam was brought before him on Police Memo and he examined him and found four cut injuries on the back of his chest in the scapular area with another injury in LT Renal angle. Ex.P10 is the Accident Register issued by him and in that it is written that the injured Arumugam was brought on Police Memo at 9.30 pm on 11.4.2005. On the top of Ex.P10 Accident Register, it is written as CR.No.220/05 341, 324, 307. Ex.P10 Accident Register is a contemporaneous document which came into existence at the time of examination of injured Arumugam by PW.13 Dr.Ananthakrishnan and it evidences the fact that a case came to be registered regarding the attack made on Arumugam and on Police Memo he was referred to Government Hospital, Vedaranyam and it belies the version of PW.16 Sub Inspector Kulothungan.
11. PW.2 Nagaraj in his testimony has stated that Inspector and Sub Inspector examined him in Vedaranyam Government Hospital and recorded the statement from him and read it over and obtained his signature in it and thereafter he took the injured Arumugam to Nagapattinam Government Hospital. The statement recorded from PW.2 Nagaraj has been burked in the case.
12. Admittedly, injured Arumugam was alive for a period of 7 days from the occurrence and he died only on 18.4.2005 at Thanjavur Medical College Hospital. The prosecution has not examined the doctor who treated the injured Arumugam in Nagapattinam Government Hospital as well as the doctor who treated him at Thanjavur Medical College Hospital and the case sheet has not been filed. No explanation has been given in this regard and the omission to examine them is fatal to the case. In this context, it is also relevant to point out that no attempt was made from any quarter to record the dying declaration of injured Arumugam. Neither the Hospital Authorities nor the Investigation Officer had taken any steps to give requisition to the Judicial Magistrate to record the dying declaration. It is also relevant to note that the Investigation Officer PW.17 Inspector Anbazhagan had claimed in his testimony that he examined the injured Arumugam during investigation but he had stated that he omitted to despatch the said statement to the Court.
13. P.W.1 Subramanian and PW.6 Dhanalakshmi in their testimonies have stated that the injured Arumugam, while being taken to the hospital, told them that the accused inflicted stab injuries on him. There is absolutely no documentary evidence to show that the injured Arumugam was conscious after the occurrence. PW.13 Dr.Ananthakrishnan in his testimony has stated that the injured Arumugam was conscious while he examined him, but we are unable to place reliance on his testimony since nothing is stated about the consciousness of Arumugam in the contemporaneous document Ex.P10 Accident Register issued by him. In the absence of medical evidence regarding the health condition of injured Arumugam, the testimonies of P.Ws.1 and 6 about the oral dying declarations cannot be accepted.
14. P.W.4 Kumar and PW.5 Murugan though examined as having witnessed the occurrence, they did not state so in the trial and they were declared as hostile. PW.2 Nagaraj alone has testified that on 11.4.2005 at about 8.30 pm, he was in his house and he heard the wailing noise of his younger brother Arumugam and he rushed to the occurrence place and saw Arumugam was waylaid by all the accused and A4 Kittu alias Krishnamurthy caught hold of the head of Arumugam and A2 Krishnamurthy stabbed Arumugam on the back of the chest in the scapular area twice with knife and the other two accused also stabbed him with independent knives. PW.2 Nagaraj in the cross-examination has stated that the house of Lakshmi is situated on the west of the occurrence place at a distance of 3/4 km and his house is situated further west of Lakshmi’s house at a distance of 1/4 km. If that is so, the house of PW.2 Nagaraj is located at a distance of 1 km away from the occurrence place. It is doubtful as to whether at such a distance PW.2 Nagaraj could have heard the wailing noise of his brother Arumugam at the time of occurrence. Further, PW.3 Achikkannu in her testimony has stated that she and her husband heard the wailing noise of Arumugam and rushed to the occurrence place and she did not see the occurrence. If that is so, PW.2 Nagaraj also could not have seen the occurrence. It is also unbelievable that the attack continued for such a long time enabling PW.2 Nagaraj to rush and witness the occurrence. The testimony of PW.2 Nagaraj does not inspire confidence and no reliance can be placed on it.
15. The prosecution case is that A1 Sekar was arrested on 13.4.2005 near Shanmuga Textile Shop and enquired in the presence of PW.8 Marimuthu and PW.9 Murugesan and A1 Sekar gave confession statement containing Ex.P5 admissible portion and he took and produced MO.3 Knife hidden near the palmyra tree in the backyard of Andavar Garden. PW.8 Marimuthu in his testimony has stated that A1 Sekar was arrested at 8.30 pm on the occurrence night itself near Shanmuga Textile Shop and he gave confession statement and took them to his house and took and produced MO.3 Knife from his house and it came to be recovered under Ex.P4 mahazar in his presence. Of course, PW.9 Murugesan has testified about the prosecution case regarding the arrest of A1 Sekar and the recovery of MO.3 Knife. PW.8 Marimuthu did not support the prosecution case as to the date of arrest of A.1 Sekar and the place of recovery and he had not been declared hostile and his testimony affects the testimony of P.W.9 Murugesan and the prosecution case with regard to the said recovery.
16. The further case of the prosecution is that A2 Krishnamurthy was arrested and enquired in the presence of PW.10 Muruganandham and another and he gave information in the confession statement in their presence which led to recovery of MO.1 Knife. M.Os.1, 3 and 4 Knives are said to be the weapons of offences used by the accused at the time of occurrence to attack Arumugam and they came to be recovered on the information furnished by the accused. The Investigation Officer, in his testimony in chief examination, did not speak about the arrest of A2 to A4 effected by him by referring to the time and place of arrest and he also did not state that they gave information in their confession statements which led to recovery of M.Os.1 and 4. MO.3 Knife is said to have been recovered on the information given by A1 Sekar, but PW.10 Muruganandham in his testimony has stated that A2 Krishnamurthy gave information in his confession statement containing Ex.P6 admissible portion and took and produced MO.3 Knife near the backyard of Andavar Garden. Though three knives are said to have been recovered, only two of them have been sent for chemical examination and blood was not detected on any of them as evident from Ex.P19 Chemical Examiner reports. In such circumstances, the prosecution has failed to prove the recovery.
17. Arumugam died of homicidal violence is established by the testimony of post-mortem doctor. PW.14 Dr.Vijayalakshmi conducted autopsy on the body at 2 pm on 19.4.2005 and found five wounds over the scapular area and on dissection of chest, found anterior and posterior Thoracic wall contusion on both sides of chest and multiple contusions of various sizes over all the lobes of both lungs and on dissection of abdomen, found Retro peritoneal contusion over the whole of both sides and diffuse contusion over the root of mesentery. She has further stated that the injuries found were antemortem in nature and has expressed opinion that the deceased would appear to have died due to multiple injuries involving many of the vital organs. Ex.P12 is the Post-mortem Certificate issued by her. Accepting the medical testimony, it is clear that Arumugam died of injuries sustained during the occurrence. The prosecution has failed to prove that the accused caused those injuries to Arumugam at the time of occurrence and in such circumstances, they cannot be found guilty of the charges.
18. The trial Court has misdirected itself by wrongly appreciating the material evidence on record and the conclusion reached by it cannot be sustained. The conviction and sentence imposed on the appellants/A1 to A4 are liable to be set aside.
19. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the Appellants/Accused Nos.1 to 4 in Sessions Case No.108 of 2007 on the file of the Sessions Judge, Nagapattinam are set aside and the Appellants/Accused Nos.1 to 4 are acquitted of the charges and the fine amount paid, if any, is to be refunded to them. The Appellants /Accused Nos.1 to 4 are directed to be released forthwith if their custody is not required in any other case.
(C.N.J.) (M.J.P.J.) 14.10.2009 Index: yes. Internet: yes. vks To 1. The Sessions Judge, Nagapattinam. 2. The Inspector of Police, Vedaranyam Police Station Nagapattinam District. 3. The Superintendent of Prisons, Central Prison, Trichi. 4. The Public Prosecutor, High Court, Madras-104. 5. The Section Officer, Criminal side Section, High Court, Madras. C. NAGAPPAN, J. AND M.JEYAPAUL, J. Vks CRL.A.No.211/2009 14.10.2009