IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.514, 548 and 631 of 2007 and 353 of 2009 Sivaraj .. Appellant/A-3 in CA 514/2007 Annamalai .. Appellant/A-4 in CA 548/2007 Manickam .. Appellant/A-2 in CA 631/2007 Subramani .. Appellant/A-1 in CA 353/2009 vs State rep. By Deputy Superintendent of Police Omalur Sub Division Jalagandapuram Police Station (Crime No.384 of 2002) .. Respondent in
all appeals
Criminal appeals preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Special Court (Essential Commodities Act), Salem, made in S.C.No.22 of 2005 dated 8.6.2007.
For Appellants : Mr.V.Gopinath
Senior Counsel
for Mr.L.Mahendran
in CA 514/2007
For Respondent : Mr.N.R.Elango
Additional Public
Prosecutor
COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This day, a petition for condonation of delay in preferring an appeal by A-1 was taken up for consideration. On enquiry, that petition was ordered, and the appeal was numbered as C.A.353/2009. The Counsel for the appellant/A-1 in that appeal would submit that he is ready, and the appeal could be heard. Thus, that appeal is also heard this day.
2.All these four criminal appeals namely C.A.514/2007 by A-3, 548/2007 by A-4, 631/2007 by A-2 and 353/2009 by A-1, concentrate in challenging a judgment of the Additional Sessions Division, Special Court (Essential Commodities), Salem, made in S.C.No.384 of 2002 whereby the appellants ranked as A-1 to A-4 respectively along with another accused stood charged, tried and found guilty as follows:
ACCUSED
CHARGES
FINDING
PUNISHMENT
A-1
302 IPC
Guilty
Life imprisonment with a fine of Rs.3000/- and default sentence
A-2 to A-4
302 r/w 34 IPC
Guilty
Life imprisonment with a fine of Rs.3000/- and default sentence
A-5
302 r/w 109 IPC
Not guilty
A-1
326 IPC
Guilty
4 years R.I. With a fine of Rs.1000/- and default sentence
A-1
324 IPC
Guilty
2 years R.I.
A-1
324 IPC
Guilty
2 years R.I.
3.The short facts necessary for the disposal of these appeals can be stated as follows:
(a) P.W.1 is the son and P.W.3 is the wife of the deceased Pachiappan. P.W.2 is the wife of P.W.1. P.Ws.4 and 5 were close relatives of the deceased. The father of the deceased one Koolappa Gounder had two wives. The only son through his first wife was the deceased Pachiappan, while A-1 and A-2 were the sons through his second wife Kuzhandhaiammal, shown as A-5. A-3 and A-4 were the brothers-in-law of A-1. Koolappa Gounder had landed properties which he divided into three shares, and one share was given to the deceased, while another 1/3rd was given to A-1 and A-2. The lands so allotted to them were situated adjacent to each other, and often they had quarrels on the situation of the ridge between the lands.
(b) On 27.9.2002 at about 2.00 P.M., A-1 cut a tree belonging to A-2. Equally, at about 6.00 P.M., A-2 cut a tree which belonged to A-1. The matter was brought to the notice of P.W.6 for a panchayat, and he informed that it would be heard later.
(c) On 29.9.2002 at about 5.30 A.M., the deceased after informing P.Ws.1 to 3, went to have a tea. After sometime, P.Ws.1 to 3 heard the distressing cry of Pachiappan. Immediately they rushed to the place where they found A-2 to A-4 catching hold of Pachiappan, while A-1 cut him on his head and different parts of the body with M.O.1, koduval. P.Ws.1 to 3 immediately rushed to the rescue. At that time, A-2 to A-4 caught hold of P.W.1, while A-1 cut him. A-1 cut P.W.2 and P.W.3 also. P.W.3 lost the middle finger when he was cut. At that time P.Ws.1 to 3 were all injured. A-5 who was standing nearby, uttered “They could better cut all the persons and go to prison.” When a crowd gathered, the accused ran away from the place of occurrence.
(d) P.Ws.1 to 3 were originally taken to a private hospital and thereafter, to the Government Hospital. P.W.10, the Doctor, examined P.W.1, and the wound certificate is Ex.P19. He also examined P.W.2, and the wound certificate is Ex.P21. P.W.3 was examined by the same Doctor, and Ex.P20 is the wound certificate. The accident register copies were also marked as Exs.P22 to P24 respectively.
(e) A-2 proceeded to the respondent police station and at about 6.45 A.M., gave Ex.P26, the report, to P.W.13, the Sub Inspector of Police. On the strength of that report, a case came to be registered in Crime No.384/2002 under Sections 302 and 324 of IPC. The printed FIR, Ex.P27, was despatched to the Court.
(f) On receipt of the copy of the FIR, P.W.14, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P6, and also a rough sketch, Ex.P28. Then he conducted inquest on the dead body of Pachiappan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P29. The dead body was sent to the Government Hospital along with a requisition, Ex.P11, for the purpose of autopsy.
(g) P.W.8, the Civil Assistant Surgeon, attached to the Government Hospital, Mettur, on receipt of the said requisition, conducted autopsy on the dead body of Pachiappan and has issued a postmortem certificate, Ex.P12 with his opinion that the deceased would appear to have died of injury to vital organ heart and shock due to the internal haemorrhage.
(h) Pending investigation, A-1 was arrested on 29.9.2002 at 1300 hours. He came forward to give a confessional statement voluntarily which was recorded in the presence of a witness. Ex.P9 is the admissible part. He produced M.O.1, koduval, which was recovered under a cover of mahazar. All these material objects were sent for chemical analysis, and Exs.P32 and P33 are the Chemical report and Serology report respectively.
(i) In the meantime, on petition transfer of investigation was ordered by this Court. Pursuant to the same, P.W.15, the Inspector of Police took up further investigation. He examined P.Ws.1 to 5 and recorded their statements. They implicated A-2 to A-5. Thereafter, P.W.16, the Deputy Superintendent of Police, Omalur, took up further investigation. He made a request to the Chief Judicial Magistrate, Salem, for recording the statements of the witnesses under Sec.164 Cr.P.C. Accordingly, P.W.17, the Judicial Magistrate No.I, Mettur, recorded the statements of P.Ws.1 to 5, which are marked as Exs.P1 to P5 respectively.
(j) P.Ws.1 to 3 were further examined by P.W.9, the Doctor, and the wound certificates are marked as Exs.P18, P14 and P16 respectively. On completion of investigation, the Investigator filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 36 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 witness was examined; but, two documents were marked as Exs.D1 and D2. The trial Court heard the arguments advanced. After scrutiny of the materials available and consideration of the submissions made, the trial Court has found A-1 to A-4 guilty and awarded punished as referred to above and acquitted A-5. Hence these appeals at the instance of the appellants.
5.Advancing arguments on behalf of A-1 in C.A.No.353/2009, the learned Counsel would submit that in the instant case, the occurrence, according to the prosecution, has taken place on 29.9.2002 at about 6.45 A.M.; and that it was A-2 who has given the report which is marked as Ex.P26 on the strength of which a case came to be registered.
6.As far as A-1 was concerned, the learned Counsel would urge that the prosecution has miserably failed to prove its case; that in the instant case, originally P.Ws.1 to 3 were shown as eyewitnesses; that thereafter, when the further investigation was ordered, P.Ws.4 and 5 have been added as eyewitnesses; that originally the final report was filed only against A-1; and that after the further investigation A-2 to A-5 have also been added.
7.The learned Counsel would further add that in the instant case, as far as A-1 was concerned, he was actually injured; that Ex.D1 was the report issued; that Ex.D1 would clearly indicate that he sustained head injury; that no whisper was made by any one of the eyewitnesses how A-1 sustained injuries; and that the non-explanation of the injuries sustained by A-1 by the prosecution would be fatal to the prosecution case.
8.Added further the learned Counsel vehemently that the case came to be registered in Crime No.384 of 2002 on the complaint of A-2; that on investigation, the charge sheet was laid; that it is also admitted by P.W.14, the Investigating Officer, that a case came to be registered in Crime No.385 of 2002 at the instance of one Sampoornam in respect of the injuries sustained by her husband A-1 and thus, it was A-1 who sustained injuries in the course of the very same transaction; that if to be so, the prosecution was duty bound to place the FIR and all other connected records and materials with regard to Crime No.385/2002, but failed to do so; that the prosecution did not enable the trial Court to find out either the genesis of the crime or the truth to adumbrate justice; that under the circumstances, the non-explanation of the injuries sustained by A-1 and also the non-production of all the materials in Crime No.385/2002 were fatal to the prosecution case; that so long the prosecution did not enable the Court to find out the genesis, it is a fit case where the trial Court should have entered a judgment of acquittal, and instead, it has found A-1 guilty, and hence he is entitled for acquittal in the hands of this Court.
9.Advancing arguments on behalf of the appellants/A-3 and A-4 in CA Nos.514 and 548 of 2007, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, the occurrence has taken place on 29.9.2002 at about 6.45 A.M. and a case came to be registered on the strength of Ex.P26, the report, given by A-2; that Ex.P27 is the FIR; that originally the investigation was done by P.W.14; that he has filed the charge sheet on 12.12.2002; that the same was also taken as PRC in which A-1 was shown as only accused in the case; that subsequently, a petition was filed before this Court; that further investigation was ordered, and it was done by P.Ws.15 and 16; that another charge sheet was laid on 6.1.2004, wherein A-2 to A-5 have been added; that it is pertinent to point out that originally the case was registered on the complaint of A-2 marked as Ex.P26; that it is not the case of the prosecution that Ex.P26, the original report given by A-2, was found to be false or incorrect; that the Investigating Officer proceeded on the basis of the complaint given by A-2 under Ex.P26; that even the statement recorded by P.W.14 from the witnesses were actually relied upon; that apart from that, all the materials collected by him, were also relied upon; that it is not the case of either P.W.15 or P.W.16 who made the further investigation, that there was any defect or error or irregularity committed by P.W.14; that what was all added at the time of additional charge sheet made by P.W.16 was that A-2 to A-4 caught hold of the deceased, and A-5 uttered certain words; that once the prosecution rested its case on the complaint given by A-2, how A-2 was also added as an accused remained unknown; that as far as A-2 to A-5 were concerned, it was only a development and without any material whatsoever; that A-2 to A-4 have been added calling it as further investigation; and that as far as A-2 to A-4 were concerned, there was no ioto of evidence.
10.Added further the learned Senior Counsel that insofar as P.W.9, the Doctor, he has examined P.Ws.1 to 3 after a period of 14 months and has given wound certificates and also accident register copies; that he has spoken as to the injuries as found in the wound certificates issued by him; and that the examination of the prosecution witnesses by another Doctor who gave further certificates, would not in any way advance or march the prosecution case.
11.Added further the learned Senior Counsel that in the instant case, so far as A-2 to A-5 were concerned, there was not only lack of evidence, but also bereft of evidence; that under the circumstances, they are entitled for acquittal; but, the trial Court has taken an erroneous view, and hence they are to be acquitted by this Court.
12.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
13.It is not in controversy that one Pachiappan, the husband of P.W.3 was done to death in an incident that had taken place at about 6.45 A.M. on 29.9.2002 at the place of occurrence. Following the complaint given by A-2, marked as Ex.P26, a case came to be registered by the respondent police in Crime No.384 of 2002, and the investigation was taken up by P.W.14. Following the inquest and the preparation of the inquest report by him, the dead body was subjected to postmortem, and the postmortem Doctor has been examined as P.W.8, who has not only deposed before the Court, but also issued a postmortem certificate to the effect that the deceased would appear to have died of injury to vital organ namely heart and shock due to the internal haemorrhage. The fact that Pachiappan died out of homicidal violence was never disputed by the appellants before the trial Court, and hence no impediment was felt. The trial Court was right in recording so.
14.In order to substantiate the fact that Pachiappan died in the said incident and also due to the attack made by A-1 with a koduval, the prosecution examined three witnesses who were P.Ws.1 to 3. True it is, P.Ws.1 to 3 were the close relatives of the deceased Pachiappan. Needless to say that merely on the ground of close relationship, the evidence of the witnesses cannot be rejected. But, it must be subjected to careful scrutiny. It remains to be stated that in a given case where the eyewitnesses happened to be injured witnesses, their evidence should not be discarded unless and until strong circumstance is noticed or reason is brought about. In the instant case, P.Ws.1 to 3 have spoken in one voice that after hearing the distressing cry of Pachiappan, they rushed to the spot; that at that time, they found A-1 attacking the deceased on different parts of the body with M.O.1, koduval; that in that process, when they went to the rescue, they were actually injured; that A-1 attacked them; and that they were taken to the hospital. The accident register copies and the wound certificates are marked as Exs.P.19 to P24 respectively, wherein the place and time of occurrence are all mentioned.
15.It is pertinent to point out that it was A-2 who rushed to the police station within a short span of time and gave the complaint which is marked as Ex.P26 wherein he has narrated the entire incident pursuant to which the Investigating Officer, P.W.14, has taken up investigation, proceeded to the spot and made an inquest, and the dead body was subjected to postmortem by P.W.8, the Doctor, who has also given evidence. The narration of the injuries sustained by Pachiappan as spoken to by P.Ws.1 to 3 are actually found in the postmortem certificate. Thus, it can be well stated that the medical evidence stood in full corroboration of the ocular testimony. Yet another circumstance is the recovery of weapon of crime M.O.1 koduval, pursuant to the confessional statement given by A-1. All would go to show that it was A-1 who attacked the deceased at the time of occurrence and caused his death instantaneously.
16.Now the contentions put forth by the learned Counsel for A-1 remain to be considered. The learned Counsel urged only two points. Firstly, A-1 sustained injuries as could be seen from Ex.D1, and it remained unexplained. Secondly, as far as these injuries were concerned, Sampoornam, the wife of A-1, lodged a complaint before the same police station, and a case has also been registered in Crime No.385/2002, and all records pertaining to this crime have actually been suppressed, and thus the trial Court was unable to find out the genesis of the crime due to the suppression of the required materials. As far as these two contentions are concerned, on analysis of the entire evidence, this Court is of the considered opinion that these two contentions have got to be discountenanced for the following reasons.
17.Firstly, a perusal of Ex.D1 would clearly indicate that there was a sutured wound on the head of A-1. It would clearly be indicative of the fact that he has actually been treated by a medical person already. But, that medical person has not been examined. Apart from this, from the very nature of the injuries as found in Ex.D1, it is quite evident that they were only superficial and simple. Needless to say that in every criminal case, the prosecution is duty bound to explain the injuries sustained by the accused. But, in the case on hand and that too when the injuries are simple and superficial, the contention that the injuries as found in Ex.D1 were not explained, in the considered opinion of this Court, would not in any way affect the truth or rigor of the prosecution case.
18.As regards the second contention raised that the records pertaining to Crime No.385/2002 were not placed before the trial Court, this Court is unable to agree with the learned Counsel for A-1. In any given criminal trial, whenever a case is registered by the police at the instance of the accused in respect of the same transaction, the prosecution is duty bound to place before the Court all the materials pertaining to that crime. In the instant case, Crime No.384/2002 was registered at the instance of A-2 and on the strength of Ex.P26, the report. As far as the next crime number namely 385/2002, is concerned, it is admitted that it was registered on a complaint given by Sampoornam, the wife of A-1. At this juncture, the learned Additional Public Prosecutor took the Court to the suggestions made to the eyewitnesses that they suspected that it was A-1 who caused the death of Pachiappan, and thereafter they trespassed into the house of A-1, dragged him out and caused injuries, and this suggestion would be indicative of the defence plea. Further from the analysis of the entire evidence, this Court is unable to see that the injuries were sustained by A-1 in the course of the very same transaction. So long the defence is unable to show that the injuries were sustained by A-1 in the course of the same transaction, though a case was registered under the next crime number namely 385/2002, the Court cannot take it into account. It is true that two crime numbers are next to each other, and it is also admitted that Sampoornam, the wife of A-1, has given a complaint, and a case has also been registered. So long it is not shown that A-1 sustained injuries in the course of the very same transaction, though a case registered, the defence cannot be allowed to take advantage to put forth an argument that the prosecution did not place the materials in order to find out the genesis of the crime or did not enable the Court to find out the truth. In the instant case, the narration of the entire incident by P.Ws.1 to 3 would clearly indicate the genesis of the crime that it was A-1 who attacked Pachiappan with a koduval and caused instantaneous death, and in that process, P.Ws.1 to 3 have also been injured. Under the circumstances, the contentions put forth by the learned Counsel for A-1 cannot be countenanced, and hence they have got to be rejected. Thus, the prosecution has factually proved that it was A-1 who attacked Pachiappan and caused instantaneous death. The trial Court was perfectly correct in recording a finding that A-1 was guilty of murder and awarding punishment referred to above. Hence no interference is warranted. Accordingly, the judgment of the trial Court as regards A-1 is confirmed.
19.As far as A-2 to A-5 are concerned, they have been added as accused in the additional charge sheet after the further investigation was ordered. It is pertinent to point out that originally P.W.14, after investigation filed the charge sheet, wherein A-1 was the only accused shown, and once further investigation was ordered by this Court, P.Ws.15 and 16 have added A-2 to A-5 in order to make them as accused. The only addition that was made was that A-2 to A-4 actually obstructed the deceased, and as far as A-5 was concerned, he made some utterances. It is pertinent to point out that even P.Ws.15 and 16 who conducted further investigation, have not given up the original FIR or the materials recovered or the statements recorded by P.W.14 under Sec.161 Cr.P.C. from the witnesses, and thus they remained in tact. But, these additions have been made. So long as the original FIR and also the statements recorded from the witnesses led P.W.14 to file such a charge sheet, these additions in no way would develop the case in order to add A-2 to A-5. Therefore, as regards A-2 to A-5, the prosecution had neither materials to be added apart from the original charge sheet, nor any evidence to be placed before the trial Court. But, the trial Court though acquitted A-5, has found A-2 to A-4 guilty erroneously, and hence the judgment of the trial Court insofar as A-2 to A-4 has got to be set aside, and they are entitled for acquittal.
20.In the result, C.A.Nos.514, 548 and 631 of 2007 are allowed setting aside the judgment of the trial Court in respect of A-2 to A-4. A-2 to A-4 are acquitted of the charges levelled against them. The bail bonds executed by them shall stand terminated. The fine amounts if any paid by them will be refunded to them.
21.In the result, C.A.No.353 of 2009 is dismissed confirming the judgment of the trial Court in respect of A-1.
nsv/
To:
1.The Additional Sessions Judge
Special Court (Essential
Commodities Act),
Salem
2.The Deputy Superintendent of Police
Omalur Sub Division
Jalagandapuram Police Station
(Crime No.384 of 2002)
3.The Public Prosecutor
High Court,
Madras