{"id":137344,"date":"2005-09-26T00:00:00","date_gmt":"2005-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sekar-vs-state-rep-by-on-26-september-2005"},"modified":"2019-03-06T04:15:39","modified_gmt":"2019-03-05T22:45:39","slug":"sekar-vs-state-rep-by-on-26-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sekar-vs-state-rep-by-on-26-september-2005","title":{"rendered":"Sekar vs State Rep. By on 26 September, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Sekar vs State Rep. By on 26 September, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 26\/09\/2005  \n\nCORAM   \n\nTHE HON'BLE MR JUSTICE  N.DHINAKAR        \nand \nTHE HON'BLE MR JUSTICE  M.CHOCKALINGAM           \n\nCrl. Appeal No. 483 of 2001\n\n\n1. Sekar\n2. Ammasi  \n3. Manickam  \n4. Morur Periannan @ Sundar                             ... Appellant.\n\n-Vs-\n\n\nState rep. by\nInspector of Police,\nDeevattipatti Police Station.                                   ... Respondent\n\n\n\n        Prayer:   Appeal  against  the  judgment  passed  by  the  learned   I\nAdditional Sessions Judge-cum-Chief Judicial Magistrate, Salem, in S.C.No.  27\nof 2000 dated :  30.03.2001.\n\n\n!For Appellants :  Mr.  K.V.Sridharan\n\n^For Respondent :  Mr.M.K.Subramanian  \n                Government Advocate (Crl.Side).\n\n\n:JUDGMENT   \n<\/pre>\n
(Judgment of the Court was delivered by M.CHOCKALINGAM,J.)    <\/p>\n
        This appeal has been brought forth by the appellants, who were arrayed
\nas  A-1,  A-3,  A-4  and  A-6  before  the  learned  I   Additional   Sessions
\nJudge-cum-Chief  Judicial Magistrate, Salem, in S.C.No.27 of 2000, where, they
\nalong with three others, who were arrayed as A-2, A-5 and A-7, stood  charged,
\nfound guilty and sentenced to imprisonment as follows:-\n<\/p>\n
        Charge  Nos.1  and 2 were framed against A-1 to A-7 under Sections 148
\nand 449 IPC.  respectively.     Charge No.3 was  framed  against  A-1  to  A-3
\nunder Section  302  IPC.    Charge  No.4  was  framed against A-4 to A-7 under
\nSection 302 read with 149 IPC.  Charge No.5 was framed  against  A-4  and  A-6
\nunder Section  506  (ii)  IPC.  Charge No.6 was framed against A-1 to A-3, A-5
\nand A-7 under Section 506(ii) read with 149  IPC.    Charge  No.7  was  framed
\nagainst A-5 under Section 324 IPC.  Charge No.8 was framed against A-1 to A-4,
\nA-6 and A-7 under Section 324 read with 149 IPC.  Charge No.9 was framed under
\nSection 325 IPC.    against  A-7.   Charge No.10 was framed against A-1 to A-6
\nunder Section 325 read with 149 IPC.\n<\/p>\n
        2.  The trial Judge, on finding A-1 and A-3 guilty under  Section  148
\nIPC.    sentenced   each   one  of  them  to  undergo  three  months  rigorous
\nimprisonment.  Similarly, on being convicted under Section 449 IPC., they were
\neach sentenced to one year rigorous imprisonment and they were  also  directed
\nto  pay  a  fine  of  Rs.200\/-  each  with  a default sentence of three months
\nrigorous imprisonment.  On being convicted under Section 302 IPC., A-1 and A-3
\nwere each sentenced to imprisonment for life and they were  also  directed  to
\npay  a  fine  of  Rs.1,000\/- each with a default sentence of one year rigorous
\nimprisonment.  A-4 and A-6, on being found guilty under Section 449 IPC., were
\neach sentenced to the period of imprisonment, which they had already undergone
\nduring trial, and they were also directed to pay a fine of Rs.200\/- each  with
\na default  sentence  of  one month rigorous imprisonment.  Similarly, on being
\nfound guilty under Section 506(ii) IPC., A-4 and A-6 were  each  sentenced  to
\nthe period of imprisonment, which they had already undergone during trial, and
\nthey  were also further directed to pay a fine of Rs.500\/- each with a default
\nsentence of one month rigorous imprisonment.  Aggrieved over  the  same,  A-1,
\nA-3, A-4 and A-6 have brought forth the above appeal.\n<\/p>\n
        3.   The  short  facts  necessary  for the disposal of the case can be
\nstated thus:-\n<\/p>\n
i.P.W.1 is the elder brother of the deceased, Mathaiyan.  P.W.2 is the  mother
\nof P.W.1 and  the deceased.  They were residing at Elathur Kadamppakkadu.  All
\nthe accused were neighbours.  A-1 to A-3 and A-7  are  the  neighbouring  land
\nowners.   There  was  a land dispute between one Narayanan, father of A-1, and
\nthe family of P.W.1 one year back, due to which, there was  a  quarrel  and  a
\ncase  was  also  registered  at  Omalur Police Station against the prosecution
\nwitnesses and a criminal case was also pending at that time.\n<\/p>\n
iii.On 20th December, 1994, P.Ws.1,  2  and  other  family  members  including
\nMadhaiyan, the deceased in the case, were sleeping outside the house.  At that
\ntime, the electric light was burning inside the house.  At about 1.00 a.m.  on
\n21st  December, 1994, all the accused, arming with deadly weapons, came to the
\nhouse of P.W.1.  On seeing them, P.Ws.1 and 2 tried to get up.  At that  time,
\nA-1 attacked Mathaiyan with a knife, M.O.1, on his head, A-2 attacked him with
\na  knife  on  his  left  ear, A-3 attacked the deceased on the stomach and his
\nback, and A-4 caused criminal intimidation.  When  P.W.1  intervened,  he  was
\nattacked with a  stone  by A-5.  A-6 threatened P.W.1 by showing a spade.  A-7
\nattacked P.W.2 with a wooden log.  A-3 also attacked P.W.2 with a wooden  log.
\nWhen  the prosecution witnesses raised alarm, other villagers gathered and the
\naccused fled away from the  place  of  occurrence.    P.Ws.1,  3  and  4  took
\nMathaiyan  to  Government  Hospital,  Omalur, where P.W.14, doctor, who was on
\nduty at about 1.45 a.m., examined Mathaiyan and  referred  him  to  Government
\nHospital, Salem,  for  better management.  Ex.P-25 is the copy of the accident
\nregister issued by him.    Accordingly,  Mathaiyan  was  taken  to  Government
\nHospital,  Salem, at about 2.30 a.m., where he was declared dead by P.W.8, the
\nMedical Officer, who was on duty at that time.  Ex.P-8  is  the  copy  of  the
\naccident register  issued  by  him.  The death intimation, Ex.P-9, was sent to
\nOut-post Police Station.\n<\/p>\n
v.At about 3.15 a.m., P.W.8 examined P.W.1, who informed the  doctor  that  he
\nwas attacked  by  6  known  persons  and  15 unknown persons.  XRays were also
\ntaken.  Ex.P-10 is the copy of the accident register issued in respect of  the
\ninjuries found on P.W.1.\n<\/p>\n
vi.In  the  meantime,  P.W.13,  Sub  Inspector of Police, Deevattipatti Police
\nStation, received the death intimation from  the  hospital  authorities.    At
\n10.30  a.m.,  P.W.1 came to the said police station and gave a complaint under
\nEx.P-1, on the strength  of  which,  a  case  in  Crime  No.206  of  1994  was
\nregistered under Sections 147, 148, 448, 323, 506(2 ) and 302 IPC.  Ex.P-24 is
\nthe printed first information report.  The express reports were sent to Court.\n<\/p>\n
viii.Investigation  in  the  case  was  taken up by one Syed Gulam Thasthagir,
\nInspector of Police, Omalur Police Station.  Since  he  was  admitted  in  the
\nhospital,  he  was  not  examined  and  the investigation conducted by him was
\nspoken to by P.W.15, the Inspector of Police,  Omalur  Police  Station.    The
\ninvestigating  officer,  on  taking up investigation in the case, proceeded to
\nGovernment Hospital, Salem, where, at the mortuary, he conducted inquest  over
\nthe  dead body of Madhaiyan in the presence of Panchayatdars and witnesses and
\nprepared the inquest report under Ex.P-27.  Following the same,  he  issued  a
\nrequisition  under  Ex.P-12  to  the doctor for conducting autopsy on the dead
\nbody of Mathaiyan.\n<\/p>\n
ix.P.W.9, the Assistant Professor and  District  Police  Surgeon  attached  to
\nGovernment  Mohan  Kumaramangalam Medical College, Salem, conducted autopsy on
\nthe dead body of Mathaiayn and found the following injuries:-
\nI.A lacerated wound on the left parietal region 3.5 cm x 1 cm x bone deep 2 cm
\nouter to the midline.\n<\/p>\n
III.An incised wound on the sagittal plane 2.5 cm x 0.5 cm x skin deep,  2  cm
\nouter to the injury No.1 on the left parietal region.\n<\/p>\n
V.An  incised  wound  in the coroneal plane 1.5 cm x 0.5 cm x skin deep on the
\nleft parietal region out to injury No.II.\n<\/p>\n
VII.A lacerated wound 7 cm x 1 cm x bone deep  on  the  left  fronto  parietal
\nregion, 1.5 cm anterior to injury No.1.\n<\/p>\n
IX.A lacerated wound on the left forehead 4 cm x 2.5 cm x bone deep.\n<\/p>\n
XI.A lacerated wound on the left forehead 1 cm x 0.5 cm x bone deep 1 cm outer
\nto the  above mentioned wound No.V.  Both V and VI these two wounds are 2.5 cm
\nabove the left eye brow.\n<\/p>\n
XIII.A transverse cut wound on the upper of nose, 4 cm x  1  cm  exposing  the
\nunderlying structures  with  mariginal  brusing – reddish.  On dissection, the
\nunderlying nasal bones and blood vessels nerves are found cut completely in  a
\ncommunicated manner.\n<\/p>\n
XV.A lacerated wound on the right side lower lip 1 cm x 0.2 cm x muscle deep.\n<\/p>\n
XVII.A  transverse cut wound involving the lower part of pinna or the left ear
\nand left mastoid region, 5 cm x 3 cm x bone deep.\n<\/p>\n
XVIII.A cut wound on the web space of right thumb and index finger 3 cm x 1 cm
\nx bone deep with marginal bruising  reddish.\n<\/p>\n
XX.A transverse stab wound 3 cm x 0.5 cm entering the left thorasic cavity  on
\nthe  back  of  left  chest  in  the  9th  intercostal space, 5 cm outer to the
\nmidline.  Edges are clean cut, outer end is acute, inner end is  abtuse.    On
\ndissection the underlying intercostal muscles, blood vessels, nerves are found
\ncut.  Left thoracic cavity contain 50 ml of fluid blood, right side empty.  On
\nfurther  examination  a  stab wound 1 cm x 0.5 cm x through and through on the
\nlower lobe of left lung.  Left  lung  is  found  collapsed.    Right  lung-cut
\nsection pale.\n<\/p>\n
XXII.A vertical incised wound on the back of right chest, 6 cm x 0.5 cm x skin
\ndeep.\n<\/p>\n
XXIV.Abrasions are present on the following areas:-\n<\/p>\n
a)Right forehead 1 x 0.5 cm.\n<\/p>\n
b)Front of upper part of right chest 2 x 1.5 cm.\n<\/p>\n
c)Back of left shoulder 3 x 1 cm.\n<\/p>\n
d)Back of  upper  part  of  left  chest  3  x  0.5 cm.  (All are dark brown in
\ncolour).\n<\/p>\n
XXV.Sub Scalpular bruising of the left parietal and frontal region 10 cm  x  7
\ncm (Reddish in colour).\n<\/p>\n
The doctor has given the post-mortem certificate under Ex.P-13, wherein he has
\nstated  that  the  deceased  would  appear  to  have died of multiple injuries
\nsustained by him.\n<\/p>\n
x.During the course  of  investigation,  the  investigating  officer  examined
\nwitnesses and recorded  their  statements.    At 5.30 p.m.  on 21.12.1 994, he
\nproceeded to the scene of occurrence,  made  an  inspection  and  prepared  an
\nobservation  mahazar under Ex.P-28 and also drew a rough sketch under Ex.P-29.
\nThereafter, he recovered M.Os.2 to 4, 11 and 12 under Ex.P-30 mahazar from the
\nplace of occu rrence.  On 24.12.1994 , he arrested A-5 and A-6 and  questioned
\nthem.   They gave confessional statements, which were recorded in the presence
\nof witnesses.  Thereafter, they were sent to Court for remand.  On  28.12.1994
\nat  11.30 a.m, the investigating officer arrested A-3, who was questioned, and
\nafter recording his statement, he was sent to Court for remand.\n<\/p>\n
xii.Further investigation in the case was taken up by P.W.15, the Inspector of
\nPolice, Omalur Police Station.  He examined the  doctors  and  recorded  their
\nstatements.   On  30.1.1995,  he  sent  all  the  material objects, which were
\nrecovered from the place of occurrence and from the dead body of the deceased,
\nto the Court to subject them for chemical analysis and obtained  Exs.P-13  and
\nP-14, the reports of the Chemical Analyst and the Serologist respectively.\n<\/p>\n
xiv.Further  investigation  was  taken  up  by  P.W.16,  Inspector  of Police,
\nDeevattipatti Police Station.  On 19.4.1995, he arrested A-4, who  volunteered
\nto  give  a  confessional  statement,  which  was  recorded in the presence of
\nwitnesses.   On  10.5.1995,  he  examined  the  doctors  and  recorded   their
\nstatements.   On  25.5.1985,  after  completion of investigation, he filed the
\nfinal report against the accused.\n<\/p>\n
        4.  The case was committed  to  the  Court  of  Sessions.    Necessary
\ncharges were  framed.    In order to substantiate the charges levelled against
\nthe accused, the prosecution examined 16 witnesses and relied on 3 0  exhibits
\nand 12  material  objects.    On completion of the evidence on the side of the
\nprosecution, the accused were questioned under Section 313 of the Cr.P.C.   as
\nto  the  incriminating  circumstances found in the evidence of the prosecution
\nwitnesses.  They flatly denied them as false.  Though D.W.1 was  examined,  no
\ndocument was  marked  on  the  side  of  the  defence.  The trial Court, after
\nhearing both sides and on scrutiny of the materials available,  while  finding
\nA-1,  A-3,  A-4  and  A-6  guilty  as  per the charges framed against them and
\nsentencing them as referred to above, acquitted A-2, A-5 and A-7  of  all  the
\ncharges framed  against  them.    Hence, the above appeal by A-1, A-3, A-4 and
\nA-6.  Pending appeal, it is reported  that  A-1  died.    Hence,  the  appeal,
\ninsofar as A-1 is concerned, abates.\n<\/p>\n
        5.  The learned Counsel appearing for the appellants\/A-1, A-3, A-4 and
\nA-6, inter alia, made the following submissions:-\n<\/p>\n
        (a)  In the instant case, the occurrence took place at about 1.00 a.m.
\non 21.12.1994.  But the case came to be registered after a delay of 10  hours.
\nThough  the  prosecution  attempted  to  give  some explanation, it is neither
\nacceptable nor convincing.\n<\/p>\n
        (b) In this case, though P.Ws.1 to 5 were examined as  eye  witnesses,
\nP.Ws.3 to  5  turned  hostile.    From the very evidence of P.W.2, it would be
\nquite clear that P.W.2 could not have seen the occurrence at all.  Even in the
\ncross-examination, P.W.1 has categorically admitted that on suspicion that the
\naccused could have murdered the deceased, he has mentioned their names in  the
\nfirst information  report.  Hence, the above said evidence destroys the entire
\nprosecution case.\n<\/p>\n
        (c) In the instant case, though the  lower  Court  was  not  ready  to
\nbelieve  the  evidence of P.Ws.1 and 2 in respect of the injuries sustained by
\nthem and acquitted the other accused in that regard,  it  has  accepted  their
\nevidence for convicting the other accused, viz., the appellants herein.\n<\/p>\n
        (d)  In  the  instant  case,  the  earliest  document, which came into
\nexistence, was Ex.P-25, the copy of the accident register  issued  by  P.W.14,
\nthe  doctor  attached  to  Government  Hospital,  Omalur,  with  regard to the
\ninjuries found on the deceased, wherein it has been found mentioned  that  the
\ndeceased was  attacked  by  20 known persons.  Later, Ex.P-10, the copy of the
\naccident register, was issued with regard to the injuries found  on  P.W.1  by
\nP.W.8,  the  doctor  attached  to  Government Hospital, Salem, wherein 6 known
\npersons and 15 unknown persons were shown as  accused.    Thus,  the  contents
\nfound  in  Ex.P-1,  which  came  into existence after a delay of 10 hours, are
\ncontrary to what were found in the earlier two documents, viz.,  Exs.P-10  and
\nP-25,  and  there  is no proper explanation tendered by the prosecution, which
\nwould go to show that with all  embellishments  and  developments,  the  first
\ninformation report has come into existence.\n<\/p>\n
        (e) Added further, the learned Counsel, that under such circumstances,
\nwhen  three  witnesses out of five, who were examiend as eye witnesses, turned
\nhostile, and the evidence of P.Ws.1 and 2 was not believed by the lower  Court
\nin  respect of the injuries sustained by P.Ws.1 and 2 and hence, acquitted the
\nother accused in that regard, the lower  Court  ought  to  have  rejected  the
\nprosecution case  in  its  entirety and acquitted the appellants also.  Hence,
\nthe counsel wound submit that the appellants are entitled for acquittal in the
\nhands of this Court.\n<\/p>\n
        6.   The  Court  heard  the  learned  Government  Advocate  (Crl.Side)
\nappearing for the State on the above contentions.\n<\/p>\n
        7.   It is not in controversy that one Mathaiyan died out of homicidal
\nviolence.  From the evidence, it would be quite clear that  on  the  night  of
\n20.12.1994,  the  occurrence  took place in front of the house of P.W.1, where
\nthe deceased was attacked and he  was  first  taken  to  Government  Hospital,
\nOmalur,  from  where,  he was taken to Government Hospital, Salem, for further
\nmanagement, where he was declared  dead  by  the  doctor,  P.W.8,  who  issued
\nEx.P-13,  the post-mortem certificate, wherein he has opined that the deceased
\ndied due to multiple injuries sustained by him.  The said fact was also  never
\ndisputed by the appellants either before the trial Court or before this Court.
\nHence,  there  is  no  impediment  in  recording  that  Mathaiyan  died out of
\nhomicidal violence.\n<\/p>\n
        8.  In the instant case, in order to establish  the  charges  levelled
\nagainst  all  the  accused,  P.Ws.1 to 5 were examined as eye witnesses by the
\nprosecution.  But the  prosecution  could  not  claim  any  benefit  over  the
\nevidence of  P.Ws.3 to 5, since they turned hostile.  Insofar as P.Ws.1 and 2,
\nwho are the elder brother and the mother of the deceased, are concerned,  they
\nhave given  contradictory  evidence about the occurrence.  Insofar as P.W.1 is
\nconcerned, there was a clear admission in his cross-examination that  only  on
\nsuspicion,  he has mentioned the names of the accused in the first information
\nreport, which would clearly show that he could not have seen the occurrence at
\nall.\n<\/p>\n
        9.  In the instant case, the Court made  a  careful  scrutiny  of  the
\nevidence of P.W.1 and it could be seen from the said evidence that in Ex.P-25,
\nthe  copy  of  the  accident register issued by P.W.14, the doctor attached to
\nGovernment Hospital, Omalur, in respect of the injuries found on the deceased,
\nit was found mentioned that about 20 persons have attacked the deceased and in
\nthe other document, Ex.P-10, the copy of the accident register issued by P.W.8
\nin respect of the injuries found on P.W.1, it has been mentioned that 6  known
\npersons   and   15  unknown  persons  have  participated  in  the  occurrence.
\nThereafter, the present first information report, Ex.P-1, came into  existence
\nafter a  delay of 10 hours.  P.W.1, in cross-examination, has admitted that he
\ntook the deceased  to  Government  Hospital,  Omalur,  immediately  after  the
\noccurrence,  and  on  the  way,  the Police Station at Omalur is there, but no
\ncomplaint was given at that time and the complaint  was  given  only  after  a
\ndelay  of  10  hours  and  the  lower  Court  was  not  prepared to accept the
\nexplanation tendered by the prosecution.  In a case like  this,  though  there
\nwas  10 hours delay in laying the complaint, the said delay can be excused, if
\nthe other circumstances have been proved in favour of the prosecution.    But,
\nin  the  instant  case, it was noticed that P.W.1 has given different versions
\nbefore two doctors at Government Hospital, Omalur and Salem and thereafter, he
\nhas given Ex.P-1 after a delay of 10 hours implicating the names  of  all  the
\naccused before  the Court.  Apart from that, he has further stated in the said
\ncomplaint that since he entertained  suspicion,  he  gave  the  names  of  the
\naccused.   In  the above circumstances, it is quite clear that he could not be
\nan eye witness in this case  and  the  prosecution  has  miserably  failed  to
\nestablish the same.\n<\/p>\n
        10.   It  is  also pertinent to point out that the lower Court was not
\neven prepared to accept  the  evidence  of  P.Ws.1  and  2  for  the  injuries
\nsustained by them and acquitted the rest of the accused in that regard.  If it
\nbe  so, then there can be no reason for accepting the said evidence to sustain
\nthe conviction of the appellants.\n<\/p>\n
        11.  Hence, the Court is  of  the  considered  opinion  that  all  the
\ncircumstances  narrated  above would clearly suffice to reject the prosecution
\ncase out right, as pointed out by the learned counsel for the  appellants  and
\naccordingly, the contentions raised by the Counsel are accepted in view of the
\nmerits they carry and hence, the judgment of the lower Court has got to be set
\naside and the appellants are got to be entitled for acquittal.\n<\/p>\n
        12.   In  the  result,  the  appeal  is allowed and the appellants are
\nacquitted.  It is reported that the appellants are on bail.  Their bail  bonds
\nshall stand  cancelled.    The  fine  amount, if paid, will be refunded to the
\nappellants.\n<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
bs\/<\/p>\n
To<\/p>\n
1.The I Additional Sessions Judge-cum-Chief Judicial Magistrate, Salem.\n<\/p>\n
2.-do- through the Principal Sessions Judge, Salem.\n<\/p>\n
3.The District Collector, Salem.\n<\/p>\n
4.The Director General of Police, Madras.\n<\/p>\n
5.The Inspector of Police, Theevattipatti Police Station, Salem.\n<\/p>\n
6.The Superintendent, Central Prison, Coimbatore.\n<\/p>\n
7.The Public Prosecutor, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sekar vs State Rep. By on 26 September, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26\/09\/2005 CORAM THE HON’BLE MR JUSTICE N.DHINAKAR and THE HON’BLE MR JUSTICE M.CHOCKALINGAM Crl. Appeal No. 483 of 2001 1. Sekar 2. Ammasi 3. Manickam 4. Morur Periannan @ Sundar … Appellant. -Vs- State […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-137344","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSekar vs State Rep. 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