{"id":14225,"date":"2008-12-12T00:00:00","date_gmt":"2008-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/murugesan-vs-state-on-12-december-2008"},"modified":"2015-01-04T22:55:05","modified_gmt":"2015-01-04T17:25:05","slug":"murugesan-vs-state-on-12-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/murugesan-vs-state-on-12-december-2008","title":{"rendered":"Murugesan vs State on 12 December, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Murugesan vs State on 12 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\t\t\t\t\t\nDATED: 12\/12\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE R.REGUPATHI\nAND\nTHE HONOURABLE MR.JUSTICE R.SUBBIAH\n\nCrl.A(MD)No.761 of 2001\n\n1.Murugesan\n2.Lakshmanan\n3.Arivazhagan @ Nagarajan\n4.Maniraj\n5.Ganesan\n6.Subbiah\n7.Senthil @ Senthil Kumar\n8.Thangaraj (Deceased)\n  (Mrs.T.Pakialakshmi,\n  W\/o.Late.Thangaraj was\n  permitted to continue the\n  criminal appeal No.761\/01\n  on behalf of the appellant\n  No.8 by order of this Court\n  dated 27.07.2007 made in\n  M.P.No.1\/07.\t\t\t\t\t...  Appellants\n\t\nVs.\n\nState, represented by\nThe Inspector of Police,\nManiachi Police Station,\nTuticorin District.\n(Cr.No.3\/1997)\t\t\t\t\t... Respondent\n\nPrayer\n\nAppeal filed under Section 374 of Cr.P.C., against the conviction and\nsentence imposed upon them by the learned Additional Sessions Judge Cum Chief\nJudicial Magistrate, Tuticorin in S.C.No.137 of 1998, dated 31.07.2001.\n\n!For Appellants  ... Mr.P.Shanmugasundaram\n   (1,6&8)\t\t  S.C.\nFor Appellants\t ... Mr.V.Gopinath\n   (2 to 5)          for Mr.S.Durairaj &\n\t\t     Mr.V.R.Shanmuganathan\n^Respondent      ... Mr.Senthur Pandian,\n                     Additional Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by R.SUBBIAH, J.)
\n\tThere were 14 accused before the trial court, of whom the appellants
\nherein, who were arrayed as accused 1 to 5 and 7 to 9 and the acquitted accused
\narrayed as accused Nos.6, 10, 11, 12,13 and 14, took their trial in
\nS.C.No.137\/98 on the file of the Additional Sessions Judge – cum – Chief
\nJudicial Magistrate, Tuticorin, of whom, the appellants herein i.e., the accused
\n1 to 5 and 7 to 9 alone were found guilty for the offences punishable under
\nSections 148 and 302 read with 149 IPC. , and sentenced to undergo rigorous
\nimprisonment for one year under section 148 I.P.C., and sentenced to
\nimprisonment for life under section 302 read with section 149 I.P.C., and the
\nrest of the accused were acquitted.\n<\/p>\n
\tThis appeal is filed by the convicted Accused, who took their trial under
\nvarious offences under different charges on the allegations that on 10.1.1997 at
\n6.00 P.M. near the house of Krishnammal (PW.1 in this case) in Kandasamipuram
\nwithin the limits of Maniachi Police Station in Tuticorin district, all the
\nappellants and the acquitted six accused armed with deadly weapons formed
\nthemselves into an unlawful assembly with intention to murder the deceased
\nRajasekar (son of PW-1) and indiscriminately made murderous attack by inflicting
\nmany fatal injuries as a result of which the victim Rajasekar instantaneously
\ndied on the spot itself and during the course of occurrence P.Ws.1 and 4 to 7
\nalso received injuries at the hand of the accused.\n<\/p>\n
\t2.The case of the prosecution in short is that the appellants\/accused and
\nthe acquitted accused are the residents of the village namely Kandasamypuram
\nwithin the limits of Maniachi Police Station. The deceased Rajeswaran @
\nRajasekaran, the son of P.Ws.1 and 2, the husband of P.W.4 and son-in-law of
\nP.W.6, during the time of occurrence, was residing with his parents and he was
\nemployed in a wine shop belonging to one Kundamperumal at Ottapidaram.\n<\/p>\n
\t3.During December, 1996 the general election for the Tamil Nadu
\nLegislative Assembly took place, in which, Thiru Kundamperumal and one Thiru
\nKrishnasamy contested the election opposing each other. The accused supported
\nthe candidature of Thiru Krishnasamy, whilst the deceased worked for his Master
\nKundamperumal. Thiru Krishnasamy ultimately became successful. On account of
\nthis, there was a deep animosity existing between the accused and the deceased.
\nFollowing this animosity, there were frequent quarrels between them.\n<\/p>\n
\t4.On 3.12.1996 there was a petty quarrel among the children. On account of
\nthis a quarrel arose between one Shunmugasundari (PW.8) and one Athilakshmi. The
\nhusband of PW.8 by name Natarajan lodged a complaint before the police in
\nrespect of this incident citing PW.1 and the deceased as witnesses to the
\noccurrence.\n<\/p>\n
\t5.On 09.01.1997, when P.W.4, wife of the deceased went to the Electricity
\nBoard to pay current bill, she was threatened by A-7 and Aadhilakshmi and one
\nSubbulakshmi stating that if anybody adduced evidence against them, they would
\nbe killed. In the said quarrel, P.W.1 was kicked by A-13 and was dragged by
\nother accused.\n<\/p>\n
\t6.On 10.01.1997 while P.Ws.1 and 2 were in their house, all the accused
\ncame there with deadly weapons. Among them A-1 to A-4 were armed with swords, A-
\n5,7,8 and 9 were armed with Aruvals, A-13 armed with an iron rod, A-10 armed
\nwith a knife, A-6 armed with a stone, A-14 also armed with a stone and A-11
\narmed with a stick. Then all of them indulged in a quarrel with P.W.1. At that
\ntime, the deceased along with his wife P.W.4 was coming to his house along with
\nP.W.5 (sister’s son of P.W.4), after purchasing cloths for Pongal festival. On
\nreaching the house, the deceased shouted at his mother, P.W.1 as to why she did
\nnot go to the Police Station for lodging a complaint against them. While the
\ndeceased was conversing with P.W.1, all the accused surrounded him with deadly
\nweapons. A-11 first attacked the deceased with a stick on the back side of his
\nhead. A-12 pushed down the deceased. Immediately A-1(1st appellant) cut the
\ndeceased with the sword on his stomach; A-2 (2nd appellant) cut the deceased
\nwith aruval on his shoulder; A-3 (3rd appellant) cut the deceased with the sword
\non the right shoulder; A-5 cut the deceased with aruval on his chest; A-4 cut
\nwith arvual on the right side chest of the deceased; A-8 cut the deceased with
\nAruval on the flank; A-7 and A-9 cut the deceased with Aruval on the neck of the
\ndeceased and A-10 cut the deceased with knife on his neck. A-13 attacked P.W.1
\nwith iron rod on her head. A-6 attacked P.W.6 with stone on the right leg. A-14
\nattacked P.W.2 armed with stone on his backside. A-11 attacked P.W.4 armed with
\nthe stick. A-13 attacked one Ebenezer, P.W.7, armed with an iron rod on his
\nchest. Due to the injuries sustained, the deceased died on the spot. The accused
\nthreatened the witnesses and ran away from the scene of occurrence. P.W.1 went
\nto Maniachi Police Station along with P.W.2 by walk since there was no bus
\nservice at that time. They reached the police station, which is 8 kms away from
\nthe scene of occurrence at about 10.00 p.m. and gave an oral complaint, which
\nwas reduced into writing by P.W.13 and the same was attested by P.W.2.\n<\/p>\n
\t7.P.W.13 (Sub-Inspector of Police of Maniachi Police Station), on the
\nbasis of the complaint Ex.P.1 given by P.W.1 registered a case in Crime No.3\/97
\nfor the offences punishable under Sections 147, 148, 341, 323, 326 and 302 IPC.
\nEx.P.19 is the printed First Information Report. The said First Information
\nReport was sent to the Judicial Magistrate, Kovilpatti through P.W.14. Since the
\nInspector of Police P.W.16 has gone to the High Court in connection with some
\nother case. P.W.15, Inspector of Police of Puliyampatti Police Station was in
\ncharge of Maniachi Police Station. Therefore, P.W.13 sent a wireless message to
\nP.W.15, who, on receipt of the message, came to Maniachi Police Station and
\nreceived a copy of the F.I.R. from P.W.13 and went to the scene of occurrence
\naccompanied by P.W.13. P.W.15 prepared an Observation Mahazar at about 12
\nmidnight and a Rough Sketch of the scene, which are marked as Exs.P.9 and P21
\nrespectively. Then P.W.15 on 11.1.1997 conducted inquest over the dead body of
\nthe deceased at 00.30 hours in the presence of panchayatdars and recorded the
\nstatements of P.Ws.1,2,4,5,8 and 7 and other witnesses and recovered the
\nbloodstained earth and sample earth, bloodstained stone and sample stone M.Os.
\n10 to 13 under cover of a mahazar Ex.P.10. Ex.P.22 is the Inquest Report.\n<\/p>\n
\t8.P.W.3, the Medical Officer, who on receipt of the requisition given by
\nP.W.15, Investigating Officer, conducted autopsy on 11.01.1997 at 11.00 a.m. and
\nissued the post mortem certificate Ex.P.3 wherein he had noted the following
\ninjuries:\n<\/p>\n
“External:\n<\/p>\n
“1)A cut injury in the right upper chest close to the shoulder measuring 40cm x
\n5cm x 3 cm exposing bones and muscles.\n<\/p>\n
2)A cut injury on the back of the right shoulder extending into the scapular
\nregion measuring 20x3cmx5cm exposing the bone.\n<\/p>\n
3)A curvillinear cut – right mammary region 30cm x 1cm x 3cm\n<\/p>\n
4)A curvillinear injury(cut) from right hypochondrium into left lower chest – 45
\ncm x 3 cm x 3 cm exposing, stomach, liver and intestines.\n<\/p>\n
5)Two linear cuts in the left upper chest measuring\n<\/p>\n
1)10×0.5x1cm 2)5×0.5x1cm\n<\/p>\n
6)A cut in the jaw exposing mandible 10×0.5x3cm\n<\/p>\n
7)Two cuts in the forehead (left) measuring 3×0.5×0.5cm each\n<\/p>\n
8)A cut in the occipital region measuring 20x1x3cm exposing brain.\n<\/p>\n
9)A cut below No.8 measuring 10x1x3cm\n<\/p>\n
10)A cut in the lower face(left) 5cmx0.5x1cm
\nA cut in the back between scapular- 5cmx0.5×0.5cm\n<\/p>\n
11)Two cuts in the right thigh measuring\n<\/p>\n
1)5x1x2cm 2) 3×0.5×0.5cm\n<\/p>\n
12)A cut in the upper loin (right) – 7×0.5x2cm
\nInternal: Heart spleen, Kidneys congested.\n<\/p>\n
2)Lungs: Right – congested – cut along upper lobe 10×0.5x2cm\n<\/p>\n
3)A curvillinear cut in the congested liver 10×0.5x5cm\n<\/p>\n
4)Parts of small and large intestines cut and torn off.\n<\/p>\n
5)Stomach lacerated and cut; Bladder empty.\n<\/p>\n
6)Hyoid bone, atlas, axis intact.\n<\/p>\n
7)Skull\n<\/p>\n
1)A cut injury in the occipital bone 20×0.5x3cm.\n<\/p>\n
2)A cut below the above 10x1x3cm\n<\/p>\n
8)Brain congested”.\n<\/p>\n
P.W.3, the Medical Officer opined that the deceased would appear to have died of
\nshock and haemorrhage due to the injury Nos.1,2,3,4,8 and 9. According to the
\ndoctor, these injuries were likely to have been caused by the weapons like
\naruval and knife. According to P.W.3, the victim might have died about 12 hours
\nprior to the post-mortem.\n<\/p>\n
\t9.Thereafter P.W.15 noted the injuries on P.Ws.1, 2 and 4 to 6 and sent
\nthem for medical examination and treatment. P.W.3, the Medical Officer examined
\nthem on 11.1.1997 and issued the wound certificate. P.W.3 found on P.W.1
\n(Krishnammal) a cut injury measuring 5 cm x 0.5 cm x 0.5 cm on her head, 2 cm
\nabove the forehead. This injury, according to P.W.3 was simple in nature. He
\nissued the wound certificate, Ex.P4.\n<\/p>\n
\t10.Then P.W.3 examined P.W.2, who complained of pain on the neck and back.
\nEx.P5 is the concerned would certificate.\n<\/p>\n
\t11.Thereafter P.W.3 examined P.W.5, who also complained of pain on her
\nchest. There was no external injury. The Medical Officer opined that the injury
\nwas simple in nature and issued the wound certificate, Ex.P6. Then P.W.3
\nexamined P.W.4, who complained of pain on the right hand and leg. The Medical
\nOfficer opined that the injuries were simple in nature and issued the wound
\ncertificate Ex.P7. P.W.6 was medically examined by P.W.3 and the injured
\ncomplained of pain in the waist. P.W.3 opined the injury as simple in nature and
\nissued the wound certificate, Ex.P8.\n<\/p>\n
\t12.P.W.15, the Investigating Officer, on his return to the Police Station
\nhanded over the case for further investigation to P.W.16, Investigating Officer.
\nP.W.16 took up the case for further investigation and proceeded to the scene of
\noccurrence and recorded the statements of P.Ws.1,4 and one Chinnathai. On
\nreceipt of the information, on 13.01.1997, he arrested A-12 (Arumugam) at 6.00
\np.m. in the presence of the Village Administrative Officer, P.W.9 and one
\nAnthonysamy and recovered the bloodstained full-hand shirt and bloodstained
\nLungi M.Os.17 and 15 respectively. A-12, Arumugam gave a statement Ex.P.23 in
\nthe presence of P.W.9, which is inculpatory in nature. A12 requested the police
\nto send him for treatment for the injuries sustained by him. On the basis of the
\nsaid statement, a case was registered for the offence punishable under Section
\n324 IPC., in Cr.No.4\/97. Ex.P.24 is the copy of the First Information Report.\n<\/p>\n
\t13.Thereafter, P.W.16, arrested A-6 at 11.p.m. and recorded the statement,
\ngiven by him in the presence of P.W.9. On 29.01.1997 P.W.16 filed an affidavit
\nbefore the learned Judicial Magistrate, Kovilpatti for securing A-1 and A-3
\nunder police custody and had them secured. On 30.01.1997 P.W.16 recorded the
\nconfession statement of A-1 and A-3 given by them in the presence of P.W.9 and
\nthe admissible portions of which are marked as Exs.P.25 and 26 respectively.
\nPursuant to the confessional statement, P.W.16 recovered long aruvals (3 Nos),
\nknife and sword in the presence of P.W.9 marked as M.Os.1 to 7 under cover of
\nMahazars Exs.P27 and P28. Thereafter, A-1 and 3 were sent to judicial custody on
\n31.01.1997. On coming to know that A-5 surrendered before the Judicial
\nMagistrate, P.W.16 filed an affidavit before the Judicial Magistrate, and
\nsecured him under police custody on 25.02.1997 and recorded the statement given
\nby him in the presence of P.W.9. Pursuant to his confession statement, he
\nrecovered M.Os.8 and 9 under cover of a Mahazar, Ex.P.13. Thereafter, on
\n28.02.1997, a requisition has been given to send the recovered material objects
\nto chemical analysis. The chemical analyst and serologist reports were
\nsubsequently received under Exs.P.16 and 17. On 08.03.1997, P.W.16 recorded the
\nstatement of P.W.3, the medical Officer who gave treatment to the injured
\nwitnesses P.Ws.1,2,4,5 and 6 and issued Wound Certificates Exs.P4 to P8. P.W.16
\nreferred the case in Cr.No.4\/97 registered on the basis of the statement of A12
\nas mistake of law holding that the accused sustained the injury during the
\noccurrence. P.W.16 thereafter was transferred. Thereafter there was no Inspector
\nof Police in charge of that sub-division. Therefore, on 9.5.1997 P.W.13 under
\nthe oral direction of the Superintendent of Police and on the basis of the draft
\ncharge-sheet prepared by the learned Public Prosecutor filed the final report
\nfor the offences punishable under Section 147, 148, 341, 323, 324 and 302 read
\nwith section 149 I.P.C.\n<\/p>\n
\t14.Since the offence is triable by the learned Sessions Judge, the same
\nwas committed to the Court of Session. The trial Court totally framed eight
\ncharges on the basis of the materials placed before it as against accused Nos.A-
\n1 to A-5, A-7 to A-9 and also the other acquitted accused 6, A10 to A14) as
\nfollows:\n<\/p>\n
\tAs per the first charge: As against A1 to A5 and A7 to A10 and A13 for the
\noffence under section 148 I.P.C. and as against A6, A11, A12 and A14 for the
\noffences under section 147 I.P.C.\n<\/p>\n
\tAs per the second charge: As against A1 to A5, A7 to A10 for the offence
\npunishable under section 302 read with section 149 I.P.C.
\n\tAs per the third charge: As against A1, A11 to A14 for the offence under
\nsection 302 read with section 149 I.P.C.\n<\/p>\n
\tAs per the fourth charge: As against A6 for the offence under section 323
\nI.P.C.\n<\/p>\n
\tAs per the fifth charge: As against A11 for the offence under section 323
\nI.P.C
\n\tAs per the sixth charge: As against A14 for the offence under section 323
\nI.P.C.\n<\/p>\n
\tAs per the seventh charge: As against A13 for the offence under section
\n324 I.P.C.\n<\/p>\n
\tAs per the eighth charge: As against A13 for the offence under section 324
\nI.P.C.\n<\/p>\n
\t15.The learned trial Judge on the basis of the oral and documentary
\nevidence produced by the prosecution questioned the appellants\/accused under
\nSection 313 Cr.P.C. The appellants denied the complicity of the offence and
\npleaded innocence. Even though some of the accused said that they have got
\nwitnesses to examine on their side they did not examine any witness.\n<\/p>\n
\t16.To substantiate the above charges the prosecution has examined P.Ws.1
\nto 16 marked exhibits Exs.P-1 to P-28 and marked M.Os.1 to 18. It may be noted
\nthat all the accused i.e., both convicted and acquitted as well as P.Ws.1, 2, 4,
\n5, 6 and 8 belong to Kandasamipuram. Though the prosecution examined P.Ws.1, 2,
\n3,and 4 to 8 as eye witnesses only P.Ws.1, 2 and 4, who are the injured
\nwitnesses, supported the case of the prosecution. P.Ws.5 to 8 have turned
\nhostile to the prosecution despite the fact that P.Ws.5 and 6 were also injured
\nas fortified by the wound certificates Exs.P6 and P8. As it is repeatedly
\nmentioned above, P.Ws.1 and 2 are the mother and father of the deceased and
\nP.W.4 is the wife of the deceased. Among the witness, who are treated as
\nhostile, P.W.5 is the elder sister’s son of P.W.4 and P.W.6 is the mother of
\nP.W.4 and the mother-in-law of the deceased. Among the accused A4 is the son of
\nA9. A7 and A9 are brothers. A8 is the son of A7. A12 is the father of A13 and
\nhusband of A14.\n<\/p>\n
\t17.A careful analysis of the evidence of the eye witnesses P.Ws.1, 2 and 4
\ncoupled with the other circumstantial evidence establish the present prosecution
\ncase and bring about all the key ingredients for proving the offences for which
\nthe appellants stand convicted. The presence of these eye witnesses cannot be
\nbrushed aside because all of them are the injured witnesses as seen from Exs.P4,
\nP5 and P7. It is not disputed that the occurrence did not take place in some
\nother place beyond the visibility of the inmates of the house of P.W.1. Further
\nthe occurrence is said to have taken place at 6-30 P.M. on 10.1.1997, though
\nthere is marginal variation of time in the evidence of some of the witnesses
\ndeposing that the occurrence took place at 7 P.M. Admittedly there was a shop
\nnear the occurrence which was provided with lights. In fact, P.W.4 has stated
\nthat at the time of occurrence street light was burning and that she was able to
\nobserve the accused Arumugham and one Ganesan sustaining the injuries during the
\noccurrence being participated by a number of persons. Apart from that, P.W.10,
\nwho was a wireman in the Electricity Board, has deposed that there was no
\nshutting down of energy in that village. Therefore, there was ample evidence to
\nshow that there was sufficient visibility to witness the occurrence. More over,
\nall the accused are not strangers to the witnesses. In the circumstances, the
\nevidence given by P.Ws.1, 2 and 4 with regard to the material part of the
\nevidence relating to the attack perpetrated by the appellants\/accused are
\numimpeachable.\n<\/p>\n
\t18.Immediately after the occurrence P.Ws.1 and 2 after covering a long
\ndistance of 8 km. by walk has given the complaint by about 10.15 P.M. itself.
\nAll the three witnesses speak about the motive part of the case in one voice and
\nthe existence of the enmity between the deceased and the accused particularly
\nfrom the date of the general election.\n<\/p>\n
\t19.The learned trial Judge on the basis of the oral and documentary
\nevidence coupled with the compelling circumstances and after hearing the
\nsubmissions made on either side, convicted the appellants herein (A1 to A5 and
\nA7 to A9), finding them guilty of the offence punishable under Section 148 IPC
\nand sentenced each one of them to undergo Rigorous Imprisonment for one year and
\nalso finding all the appellants guilty under Section 302 read with 149 IPC and
\nsentenced each of them to undergo imprisonment for life and to pay a sum of
\nRs.1000\/- in default to undergo simple imprisonment for three months. For the
\nreasons mentioned in the judgment the learned Judge of the trial court found A-
\n6, A-10 to A14 not guilty and acquitted them of all the charges. The Court has
\nalso given a direction that the substantive sentences are to run concurrently.
\nAggrieved against the order of conviction and sentence passed by the Trial
\nCourt, the appellants herein have preferred the present appeal before this
\nCourt. It is informed to this Court that during the pendency of appeal, A-9 (8th
\nAppellant) had died and consequently the appeal of the 8th appellant is abated.\n<\/p>\n
\t20.The learned counsel for the appellants intensively contended that the
\norigin and genesis of the case is totally suppressed by the prosecution and
\ninstead the prosecution has presented a new case before this Court with false
\nevidence and fabricated documents. According to him, though A5 and A-12 have
\nsustained injuries and their wound certificates of have not been produced before
\nthe Court. Similarly the Investigating Officer, P.W.16 had not taken any effort
\nto investigate the case in Cr.No.4\/97 registering the complaint of A12 but has
\nsimply disposed of the case recording that it was a ‘mistake of law and fact’.
\nAccording to the learned defence counsel, these facts create a grave doubt about
\nthe manner of occurrence as put forth by the prosecution. The learned defence
\ncounsel further submits that in Ex.P1 the name of A2 is mentioned as Thangaraj
\nson of Lakshmanan but in the printed first information report in col. No.7 the
\nname of A2 is mentioned as Lakshmana Perumal son of Krishnan. This vital
\ncontradiction even with regard to the name of A2 has not been properly
\nexplained. The learned counsel has also very emphatically submitted that the
\nprosecution has not explained as to how and why there was a long and unexplained
\ndelay in handing over the first information report to the Judicial Magistrate of
\nKovilpatti at 5-30 P.M. on 10.1.1997. This inordinate delay gives a death blow
\nto the case of the prosecution because even before 5-30 P.M. the investigation
\nhad gone a long way. Thereafter the counsel has pointed out some contradictions,
\nwhich in our view, are very insignificant. Then he points out that P.W.3, the
\nMedical Officer, who has admitted that he wrote in Ex.P3 the post-mortem report
\nthat the deceased had sustained two stab injuries and he thereafter corrected
\nthose injuries describing them as cut injuries. According to the counsel, these
\ncorrections made in two places in Ex.P3 indicate that there is some manipulation
\nof records. The learned counsel concluded his submission that the cumulative
\neffect of the contradictions and infirmities found in the prosecution
\nundoubtedly goes to show that the entire prosecution case is a concocted story
\nsuppressing the real facts before the trial court and therefore, in all
\nprobabilities the accused are entitled to be given the benefit of doubt.\n<\/p>\n
\t21.Per contra, learned Additional Public Prosecutor submits that in
\nEx.P.1, the complaint preferred by P.W.1 the names of all the accused are
\nclearly and unmistakably mentioned. Similarly, the weapons used by each of the
\naccused and the overtacts attributed to them have also been clearly mentioned in
\nEx.P.1 and the evidence of P.W.2 and 4 strongly corroborates the evidence of
\nP.W.1. According to him, the evidence adduced by P.Ws.1, 2 and 4 is cogent and
\nconvincing. In fact no favourable point was brought in the cross examination of
\nthese three witnesses either with regard to the weapons used by the accused or
\nwith the overtacts attributed to them. Similarly, P.W.15 in his cross
\nexamination had denied the suggestion put forth by the accused that he had
\nsuppressed the earlier complaint lodged by A-12 and foisted a false case against
\nthe accused. Then it was submitted by the learned Additional Public Prosecutor
\nthat the evidence of P.W.16 and the documents Exs.P.23 and 24 collectively go to
\nshow that there is neither a suppression of the origin or genesis of the case by
\nthe prosecution nor any suppression of the injury sustained by the accused.
\nThough the name of the father of the accused No.2 was mentioned as Thangaraj in
\nEx.P.1, the First Information Report, it is correctly mentioned as son of
\nKrishnan in the later part of Ex.P1. In fact, no cross examination was done on
\nbehalf of the accused relating to this fact to P.W.13 who had registered the
\nFirst Information Report. Under such circumstances, the present contention of
\nthe learned counsel for the appellants that the First Information Report would
\nhave been fabricated is nothing but a surmise. Now coming to the argument
\nadvanced by the learned defence counsel relating to the inordinate delay in
\nhanding over the F.I.R to the Magistrate, the learned Additional Public
\nProsecutor submits that there was no bus service on that day on account of this
\nincident and that was the reason as to why such a delay had occurred. Therefore,
\nit cannot be said by any stretch of imagination that the prosecution has come
\nforward with a false case. With regard to the correction said to have been made
\nby P.W.3 mentioning as cut injuries though it was originally said to have been
\nrecorded as stab injuries. The explanation given by P.W.3 for mentioning the
\nentries as cut injuries by correcting the entry as stab injuries cannot be
\nconsidered to be of vital contradiction in this case because in a case like
\nthis, when number of accused jointly attacked the deceased with aruval, sword
\nand other weapons the nature of the injuries would depend upon the manner of
\nattack because if tip of the aruval or sword had been used, the injuries would
\nlook like stab injuries. Therefore, no doubt can be raised about the veracity of
\nthe post-mortem certificate, which unquestionable document prepared by an
\nuninterested witness viz., P.W.3 cannot be doubted on this point and ultimately
\nhe states that the prosecution has proved the case beyond all reasonable doubt
\nand therefore, the conviction and sentence passed by the trial court has to be
\nsustained and the appeal dismissed.\n<\/p>\n
\t22.We have perused the materials available on record and carefully
\nconsidered the submissions made on both sides.\n<\/p>\n
\t23.The occurrence had taken place in the presence of P.Ws.1,2, 4,5 and 6
\nwho are all the father and mother, wife sister’s son of deceased’s wife and
\nmother-in-law respectively of the deceased. The evidence of P.Ws.1,2 and 4
\nstrongly corroborates with each other and their evidence has not been shattered
\nin the cross examination conducted by the defence. Of course, P.Ws.5 and 6 have
\nnot supported the prosecution case and hence were treated as hostile witnesses
\nto the prosecution. As stated supra, the very presence of P.Ws.1, 2 and 4 during
\nthe occurrence is strongly supported by the injuries sustained by them. These
\ninjured eye witnesses speak about the motive for the occurrence projecting the
\nelection dispute as one of the motives for the murder. It is mentioned in Ex.P1
\nthat there was a quarrel among the children between P.W.8 and one Adhilakshmi,
\nwhich ultimately ended in lodging a criminal complaint in which P.W.1 and the
\ndeceased were cited as witnesses and that the accused party threatened the
\nwitnesses not to depose in that criminal case and if they did so, the witnesses
\nwould be murdered. This is the immediate motive for the commission of this
\noffence. In fact this part of motive is not totally denied by the defence. Now
\nwe shall examine the contentions raised by the defence counsel one by one.
\nAccording to the learned counsel, in Ex.P1 the 2nd accused’s name is mentioned
\nas Lakshmanan son of Thangaraj. But, under col.7 of Ex.P9 i.e.., the printed
\nfirst information report, the name of A2 is mentioned as Lakshmana Perumal son
\nof Krishnan. Therefore, the contention of the learned counsel that there is no
\nexplanation for this contradiction and that A2 is entitled to the benefit of
\ndoubt cannot be accepted. A careful examination of the document Ex.P1 shows that
\nin the latter part of Ex.P1 it is unquestionably stated that Lakshmanan
\nreferring to A2 cut the deceased with a sword (long aruval). It may be noted
\nthat in the printed FIR under col.No.7 requiring to state ‘the details of known
\naccused with full particulars’ the name of A2 is clearly stated as Lakshmanan
\nson of Krishnan of Kandasamipuram. In the charge-sheet also A2’s name is
\nmentioned as Lakshmanan alias Lakshmana Perumal son of Krishnan alias Namakarar.
\nIn the judgment of the trial court A2’s name is shown as Lakshmanan alias
\nLakshmana Perumal. A2’s name is also shown as Lakshmanan alias Lakshmana Perumal
\nson of Krishnan on the preface of the question put under section 313 Cr.P.C. A2
\nalso has signed his name as Lakshmana Perumal. Therefore, this insignificant
\nmistake which has crept in Ex.P1 while recording A2’s father as Thangaraj does
\nnot in any way adversely affect the case of the prosecution. Further it is not
\nthe case of the defence that Lakshmana Perumal was not one of the accused among
\nthe other accused. Probably the name Thangaraj referable to A9 might have been
\nwrongly mentioned as A2’s father’s name. In that circumstances, that too after
\nwitnessing the brutal attack on her son, the deceased herein, P.W.1 might have
\nbeen in a highly perturbed condition. Therefore, we reject this contention as
\nmost trivial and inconsequential. The second contention raised by the defence is
\nthat P.W.16 had not taken any effort to investigate the case registered as
\nCr.No.4\/97 on the complaint of A12, but merely referred the case as ‘mistake of
\nlaw and fact’ and that he had failed to produce the wound certificate of A5 and\n<\/p>\n
12. It is not the evidence of P.W.16 that he found any injury on the person of
\nA5, but only P.W.4 has deposed that A5 and A12 sustained injuries during the
\ncourse of the occurrence. It may be noted that A5 when questioned under section
\n313 Cr.P.C., to the question No.31 under which he was asked to say whatever
\nintended to say about this case, has not whispered anything regarding his
\nsustaining any injury or getting any medical treatment for it, but simply
\nreplied that ‘it is a false case’. In such a situation the submission made by
\nthe defence counsel is not based on any material but only from his imagination
\nand surmise on the basis of the evidence given by P.W.4.\n<\/p>\n
\t24.The next attack in this connection made by the defence counsel is that
\nthe wound certificate of A12 has not been produced before the Court despite
\nP.W.16 has admitted that he sent A12 for medical examination and obtained the
\nwound certificate. The defence has not taken any effort to summon the wound
\ncertificate of A12 and mark it on its side, had that certificate been of any
\nvital evidence. Further the defence has not constructed any defence theory or
\neven suggested its defence on that basis. It is pertinent to note that A12 in
\nhis statement made under section 313 Cr.P.C., has not whispered anything about
\nhis sustaining any injury or about the medical treatment. In fact, to all the
\nquestions addressed to him during the 313 statement including his arrest, A12
\nexcept saying that ‘it is false’, no other answer was given by him about his
\ninjuries. He also stated to question No.32 in the 313 statement that there was
\nno witness on his side. However, he has filed a written statement before the
\ntrial court denying his complicity in the occurrence and adding that he, on
\n10.1.1997 at 6 or 6-30 P.M. received a cut injury and he came to the police
\nstation where he was detained for three days without recording and registering
\nany case in spite of his request to do so and that he was not sent to any
\nhospital for medical examination. In such a situation the scathing attacking
\nmade by the defence counsel against the prosecution case does not merit any
\nconsideration. The other part of the attack by the defence is, that P.W.16,
\nthough admittedly recorded a complaint from A12 and registered the same as a
\ncase in Cr.No.4\/97, which is marked as Ex.P23, has not taken any effort to
\ninvestigate the case. No doubt Ex.P23 is totally inculpatory thereby
\nincriminating the complainant (A12) with the offence. It may be noted that the
\nstatement Ex.P23 was recorded by P.W.16 after he arrested A12 and while the A12
\nwas in his custody. In other words, the statement Ex.P23 was recorded in the
\ncourse of the investigation while A12 was in police custody. So, we hold that
\nthis statement, Ex.P23, the text of which amounts to an incriminating
\nconfessional statement cannot be brought on record by the prosecution as it is
\nprohibited by section 25 of the Evidence Act. Further, under section 26 of the
\nEvidence Act any statement, which partakes the character of a confession if made
\nby the accused while in custody of a police officer, cannot be proved as against
\nthe maker of the statement except that portion of information, which leads to
\ndiscover any fact under section 27 of the Evidence Act. Therefore, Ex.P23 is now
\neschewed from consideration. Hence the argument advanced by the defence counsel
\nregarding the non-investigation of the case in Cr.No.4\/97 has no force and is
\nliable to be thrown out.\n<\/p>\n
\t25.Now we shall examine the submission of the defence counsel regarding
\nthe inordinate delay in handing over the first information report to the
\nJudicial Magistrate at Kovilpatti at 5-30 P.M. on the next day of the occurrence
\ni.e., on 11.1.1997, which delay, according to the defence counsel, is fatal to
\nthe prosecution. Learned counsel in continuation of his argument has vehemently
\nsubmitted that it must be taken that Ex.P19, the printed first information
\nreport relating to Cr.No.3\/97 should have been prepared much later to the part
\nof the investigation but not on the night of 10.1.1997 at 10-15 P.M. as spoken
\nto by P.Ws.1 and 2 and the Inspector of Police, P.W.13. This inordinate delay,
\nis not properly explained and it cuts the very root of the prosecution case.\n<\/p>\n
\t26.As has been stated supra, while narrating the facts of the case, it is
\nthe evidence of P.Ws.1 and 2 that on the night of 10.1.1997 at about 10.15 P.M.
\nthey, after the occurrence was over, went to the police station and P.W.1 gave
\nan oral complaint which was registered as a case. Supporting this evidence of
\nP.Ws.1 and 2 P.W.13 states that he, on receipt of the complaint, registered it
\nas Cr.No.3\/97 and prepared the first information report, Ex.P19 and despatched
\nthe express report through P.W.14 to the Judicial magistrate, Kovilpatti and the
\ncopies of the same to the other officials. P.W.14, by way of explanation to the
\ndelay, has deposed in his evidence that he received Ex.P19 at about 10-30 P.M.
\nand as there was no transport up to 9 A.M. of the next day to go to Kovilpatti
\nand as he could not get any bus, he, by getting into a lorry, came to Kurukku
\nSalai and afterwards he reached the Court of the Magistrate, Kovilpatti, which
\nis at a distance of 40 km from Kurukku Salai and at 5-30 P.M. he handed over the
\nreport to the Magistrate. Now the question that arises for consideration is
\nwhether there is any unexplained delay in handing over the report by P.W.14 to
\nthe Magistrate raising any doubt in the preparation of Ex.P1. P.W.14 has sworn
\nin his evidence that he, on receipt of the wireless message, by 10-20 P.M. on
\n10.1.1997 came to Maniachi and received a copy in Cr.No.3\/97 registered under
\nvarious sections inclusive of Sec.302 IPC., and took up the investigation and
\nprepared an observation mahazar Ex.P9 on the same day at midgnight and conducted
\nthe inquest on the dead body at the scene of occurrence at 00.30 A.M. on
\n11.1.1997. P.W.3, the Medical Officer, has deposed that, he on receipt of Ex.P2,
\nconducted the post-mortem on the dead body of the deceased at 11 A.M. It is
\npertinent to note that even in Ex.P2, which was prepared before the inquest, it
\nis mentioned under the heading ‘subject’ reading ‘Maniachi Police Station
\nCr.No.3\/97 under various sections inclusive of section 302 IPC., the dead body
\nof the deceased shall be examined by post-mortem’. This copy has been sent to
\nthe Judicial Magistrate, Kovilpatti also. Therefore, even much earlier, the
\nregistration of the case has been mentioned in many documents viz., Ex.P2, and
\nEx.P3, the post-mortem certificate, which were registered much earlier before
\nP.W.14 handed over the FIR to the Magistrate at Kovilpatti. Therefore, this
\ndelay in handing over the FIR to the Magistrate cannot be said to have been
\nprepared much later is unacceptable and this delay caused by P.W.14 cannot stand
\nin the way of the veracity of the prosecution case and hence the submission made
\nby the defence counsel that the delay is fatal to the prosecution does not
\nassume much importance in the present case having regard to the documentary
\nevidence viz., Exs.P2, P3 and P9. which is supported by the evidence of the
\nofficials inclusive of the doctor, P.W.3. The other submission with regard to
\nthe contradiction of the description of the injury in the post-mortem
\ncertificate, Ex.P3 has been explained by us in the earlier part of the judgment.
\nThe other theory about the occurrence projected by the defence that the murder
\nwas committed by some youths is nothing but only a concocted defence unworthy of
\nacceptance.\n<\/p>\n
\t27.Though certain infirmities have been pointed out by the defence, they
\nare all very minor in nature and inconsequential. So no importance can be
\nattached to the other submission relating to certain discrepancies, which would
\nnormally occur in every case, in such circumstances as in this case.\n<\/p>\n
\t28.In fine, we find that it is the case of a brutal murder, in which the
\ndeceased was attacked by the appellants along with other accused in the presence
\nof the father, mother, wife of the deceased, who were not strong enough to
\nprevent the attack of the accused armed with deadly weapons. We are of the
\nopinion that the prosecution case does not suffer from any infirmities. Under
\nsuch circumstances, we do not find any justification to interfere with the
\njudgment of the trial court. It may also be stated that the State has not
\npreferred any appeal against the acquittal of the accused Nos.A6, A10 to A14. As
\nwe have stated already, the conviction of the 8th appellant, who is reported to
\nhave died pending the appeal, his conviction has abated. The conviction and
\nsentence passed by the learned Sessions Judge, barring the 8th appellant, are
\nconfirmed. Resultantly, the conviction under Section 148 IPC., and the sentence
\nof RI for one year imposed therefor and the conviction under sec.302 read with
\nsection 149 IPC., against all the other accused and the sentence of imprisonment
\nfor life passed against each of the accused are confirmed and the direction
\ngiven by the court below that the sentence shall run concurrently is also
\nconfirmed.. The fine amount of Rs.1,000\/- imposed by the trial court with the
\ndefault clause is retained.\n<\/p>\n
\t29.In the result, the appeal is dismissed. The period, if any, already
\nundergone shall be given set off. It is reported that the accused are on bail.
\nThe Sessions Judge concerned is directed to take steps to secure the presence of
\nthe accused and commit them to prison to undergo the remaining period of
\nsentence.\n<\/p>\n
sms<\/p>\n
To:\n<\/p>\n
The Inspector of Police,
\nManiachi Police Station,
\nTuticorin District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Murugesan vs State on 12 December, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12\/12\/2008 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Crl.A(MD)No.761 of 2001 1.Murugesan 2.Lakshmanan 3.Arivazhagan @ Nagarajan 4.Maniraj 5.Ganesan 6.Subbiah 7.Senthil @ Senthil Kumar 8.Thangaraj (Deceased) (Mrs.T.Pakialakshmi, W\/o.Late.Thangaraj was permitted to continue the criminal […]<\/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-14225","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMurugesan vs State on 12 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/murugesan-vs-state-on-12-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Murugesan vs State on 12 December, 2008 - 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