IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2.2.2011 Coram The Hon'ble Mr. Justice A.ARUMUGHASWAMY Criminal Appeal No.751 of 2004 1.Velayutham 2.Loganatha Naicker .. Appellants Vs. The State rep. by Inspector of Police Thiruporur Police Station .. Respondent Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional Sessions Judge, (Fast Track Court No.1) at Chengalpattu in S.C.No.606 of 2003 dated 27.5.2004. For Appellant : Mr.R.Vijayakumar For Respondent: Mr.N.Kumanan Govt. Advocate (Crl.Side) JUDGMENT
The first appellant/A-1 stands convicted for the offence under Sections 341 read with 34 IPC and 304 Part II read with 34 IPC and sentenced under section 304 Part II read with 34 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for six months and the second appellant A-2 stands convicted for the offence under Section 304 Part II read with 34 IPC and 341 IPC and sentenced under Section 304 Part II read with 34 IPC to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each in default to undergo rigorous imprisonment for six month and A3 was acquitted by the judgment of the learned Sessions Judge, Chengalpattu in S.C.No.606 of 2003 dated 26.5.2004. Challenging the said conviction and sentence, the appellants have come forward with the present appeal.
2. The case of the prosecution is that one Balakrishna Naicker executed a will in favour of his grand son Sathish who is the son of A2. The deceased and A2 are Pangalis. After execution of the Will the grand father died and the property was inherited by grand son Sathish. However, some of the properties were in possession of the deceased for more than a year. On the fateful day on 20.4.2001 at about 8 p.m. when the deceased and P.W.1 were standing outside the house, the accused came and asked the deceased when he was going to vacate the house. Immediately, the deceased retaliated that he would not vacate the house. Following this, a wordy quarrel started and enraged by the reply of the deceased, A1 went inside his house and brought the scissor. At that time, A2 caught hold of the deceased and A1 stabbed the stomach of the deceased by using the one leaf of the scissor, as a result of which the intestine came out. Again A1 stabbed the deceased on the chest. P.W.3 who came some time later took the injured to the hospital for treatment at Guduvancherry, where the Doctor declared that the injured was brought dead. Therefore, again P.W.3 took the deceased to his home. On the next day morning i.e. on 21.4.2001 at 6 a.m. P.W.1 gave complaint before Tiruporur Police Station. P.W.8 Sub-Inspector of Police registered the case. On receipt of the copy of the FIR, P.W.9 the Inspector commenced investigation and proceeded to the scene of occurrence and examined P.Ws 1 and 2. He prepared an observation mahazar under Ex.P2 and rough sketch Ex.P8. He further conducted inquest on the dead body of Kamalakannan in the presence of witnesses and panchayatdars and prepared Ex.P9, the inquest report. Following the same he recovered the bloodstained earth M.O.1 and sample earth M.O.2 under a cover of mahazar, Ex.P3. Then the Investigating Officer gave a requisition to the hospital for conduct of autopsy. Thereafter on information he arrested A1 at 1 p.m. and A2 at 2 .p.m. P.W.9 examined the other witnesses as regards the weapon scissor. P.W.4 is the hearsay witness. P.W.5 is the brother of P.W.2 P.W.6 is the photographer. P.W.9 the investigating officer has investigated the case and laid the charge sheet for the offence under Sections 341 read with 34 and 302 read with 34.
3. Before the trial court on the side of the prosecution P.Ws.1 to 9 were examined, Exs.P1 to P14 were filed and M.Os. 1 to 6 were marked.
4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, the accused denied their complicity. After due enquiry, the trial court has convicted the the appellants for the offences under Section 341 IPC and 304 part II IPC and sentenced them to undergo imprisonment as stated above. The trial court has acquitted A1.
5. The learned counsel appearing for the appellants would take this court through the entire evidence and elaborately contend, pointing out various irregularities, committed by the investigating agency during the course of investigation, and also the infirmities found in the other materials, collected by the prosecution. His submissions are four folds: (i) There is a delay in lodging the FIR and the delay explained by the prosecution is artificial. (2) The manner as to how more than five injuries said to have been sustained by the deceased has not been explained. (3) While considering the evidence of P.W.2 it could be found that the recovery of material objects and arrest of the accused will belie the version of the prosecution. (4) No independent witnesses have been examined. Hence the appeal has to be allowed.
6. Per contra, the learned Government Advocate (Criminal Side) contended that the delay in lodging the FIR has been explained that for want of bus transport facility there was a delay in lodging the complaint . As regard the second submission, he contended that P.W.1 in her evidence would say that the deceased was stabbed by A1 continuously on the right and left side of the chest of the body. Hence he prayed that the appeal has to be dismissed.
7. From the facts of the case it is seen that on 20.4.2001 at 8 p.m. , while the deceased was talking with P.W.1 the occurrence is said to have taken place. From the evidence it is clear that the grandson of A2 was the beneficiary under a Will said to have been executed by his grandfather. Further from the evidence, it is seen that A2 asked the deceased when he was going to vacate the house. Immediately, the deceased replied negatively which enraged the accused. Thereafter, A1 went inside the house and brought the scissor and stabbed the deceased with a leaf of the scissor. As per the evidence of P.W.1, A1 stabbed the injured twice and caused only two injuries P.W.2 in her evidence would state that she saw A-1 stabbing the deceased only once that too on the abdomen.
8. P.W.7 is the Doctor, who conducted the post mortem. From the postmortem certificate, Ex.P6 it is seen that the deceased sustained around 9 injuries of which Sl.Nos. 4 to 9 are stab injuries and other injuries are simple injuries. But the nature of injuries and by what kind of weapon those injuries would have been inflicted has not been explained. Further the prosecution has failed to examine any independent witnesses. Only P.W.1, who is the wife of the deceased speaks about the injuries. P.W.2 is said to have been the concubine of the deceased. From the evidence of P.Ws1 and 2 only three injuries have been explained. If really they were the eye witnesses to the occurrence the they could have explained the other injuries also. Even assuming that those injuries have been caused by the same weapon, the remaining injuries have not been explained by P.Ws.1 and 2. Therefore I am of the view that the prosecution has failed to prove through the witnesses how the said injuries were caused and hence the said non-explanation throws a doubt in the manner of the occurrence.
9. The next contention of the learned counsel for the appellants is that there was a delay in lodging the FIR and therefore the benefit of doubt should be given to the accused. From the evidence it is seen that immediately after the occurrence, P.W.3 took the injured to the hospital at Hasthnapuram and the Doctor refused to attend the injured. Thereafter P.W.4 Kothandan took the injured to Dr.Kannan at Guduvancherry, wherein he was informed that the injured was already dead. Thereafter he brought the deceased to the house of the deceased. Thereafter the complaint was admittedly given at 6 am by next day. Thus it could be seen that there was an inordinate delay of more than 8 hours in reporting the matter to the police after the death. This creates another doubt in the mind of the court.
10. The next contention of the learned counsel for the appellant is that on the next day morning i.e. on 21.4.2001 P.W.1 went to the police station and lodged a complaint. Thereafter while the investigation was going on on the basis of the information A1 and A2 were arrested at 1 p.m. and 2 p.m. respectively on the same day. P.W.5 who is the brother of P.W.2 has been examined to speak about the arrest and confession statement. P.W.5 speaks about the arrest and confession and recovery of the weapon. P.W.2 during cross examination has admitted as follows:-
md;W ,ut[ 2tJ vjpup nghyPRf;F bry;ytpy;iy/ tPl;oy; ,Ue;jhh;/ kWehs; fhiyapy; jhd nghyPrhu; te;J miHj;Jr; brd;wdh;/ md;W ,ut[ 12/30 kzp tiu 3tJ vjpupia ghh;j;njd;/
Thus, P.W.2 in her evidence would state that even after the occurrence A2 was only at his residence and the Inspector of Police came to the village and enquired him and thereafter he was taken by the police for investigation. From this it is very clear that the so called confession, recovery of materials are artificial which cannot be believed. Further as regards the arrest of A1 the evidence of P.W.5 and P.W.9 seem to be contradictory. Hence I reject those evidences.
11. Further from the evidence it is seen that A2 caught hold of the deceased while A1 stabbed the deceased which also cannot be believed, in view of the fact that A2 was aged about 70 years and the deceased was 40 years and hence A2 could not have participated in the occurrence and his presence could not have been possible at the place of of occurrence. A3 has already been acquitted by the trial court. Since there was acquittal against A3, considering the evidence of P.Ws.1 and 2, the presence of A2 at the time of occurrence was doubtful and the role played by A2 in this case cannot be believed. Hence, I acquit A2 from all the charges.
12. One injury 2.5 x 1 c.m. which is simple in nature alone has been caused by A1 to the deceased. The other stab injuries have not been properly explained. The occurrence is said to have taken place only in the night. Further there is a delay in lodging the FIR. From this cumulative effect, it is clear that the occurrence could not have taken place in the same manner as spoken by the prosecution.
13. It is seen from the Ex.P6 post mortem certificate, that four stab injuries have been noted but as per the evidence of P.W.1 only one injury has been caused in the left chest. As per post mortem certificate, the deceased sustained injuries continuously in and around the chest, this alone will not be a ground for acquittal. However, the trial court has made the conviction under Section 304 and the same is hereby confirmed. With regard to the question of sentence is concerned the A1 is aged about 72 years and the quarrel had taken place when the deceased refused to give back possession of the property to the accused. Considering the fact that A1 has to undergo medical observation very often in view of his old age, I am of the view that the sentence can be reduced to two years.
14. In the result, the appeal is partly allowed and the conviction on the first appellant/A1 under Section 304 Part II IPC is confirmed and however, the sentence to undergo five years of R.I. for the offence u/s 304 Part II is reduced to two years. As regards A2, the conviction and sentence imposed upon him by the trial court are set aside and he is acquitted of the offences levelled against him. Fine if any paid already is ordered to be refunded to the second appellant/A2. The bail bonds shall stand cancelled. The trial court is directed to take steps to secure the presence of A1 to undergo the remaining period of the sentence.
krr/smi
To
1. The Additional Sessions Judge,
(Fast Track Court No.1) at Chengalpattu
2. The Public Prosecutor
High Court
Chennai