{"id":154156,"date":"2008-04-17T00:00:00","date_gmt":"2008-04-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/durai-alias-sethu-pandian-vs-state-rep-by-on-17-april-2008"},"modified":"2018-06-14T07:50:46","modified_gmt":"2018-06-14T02:20:46","slug":"durai-alias-sethu-pandian-vs-state-rep-by-on-17-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/durai-alias-sethu-pandian-vs-state-rep-by-on-17-april-2008","title":{"rendered":"Durai Alias Sethu Pandian vs State Rep.By on 17 April, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Durai Alias Sethu Pandian vs State Rep.By on 17 April, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 17\/04\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCrl.A.No.713 of 2001\nand\nCrl.A.No.738 of 2001\n\n1.Durai alias Sethu Pandian\n2.Krishnan alias Chinnadurai  .. Appellants\/A2 and A3 in\n\t\t\t         C.A.No.713\/2001\n\nVelusamy                      .. Appellants\/A1\n                             \t in C.A.No.738\/2001\n\n\nVs.\n\nState rep.by\nInspector of Police,\nUthumalai Police Station,\nTirunelveli District.\n(Crime No.350 of 1998)        .. Respondent in<\/pre>\n
                                 the above appeals.\n<\/p>\n
PRAYER<\/p>\n
These criminal appeals have been preferred under Section 374 Cr.P.C
\nagainst the judgment dated 12.07.2001 made in S.C.No.279 of 2000 by the  Second
\nAdditional Sessions Court, Tirunelveli.<\/p>\n
\n\n!For Appellants  in\nC.A.No.713\/2001 \t ...  Mr.S.Ramasamy\n\nFor Appellant in\nC.A.No.738\/2001  \t ...  Mr.K.P.S.Palanivel Rajan\n\n^For Respondent   \t ...  Mr.V.Kasinathan,\n\t\t              Addl.Public Prosecutor\n\n:COMMON JUDGMENT\n\n(The judgment of the court was\n   made by M.CHOCKALINGAM, J)\n\n<\/pre>\n
\tThis judgment shall govern these two appeals viz., C.A.Nos.713 and 738 of
\n2001.  These appeals challenge the judgment of the Second Additional Sessions
\nDivision, Tirunelveli dated 12.7.2001 made in S.C.No.279 of 2000 whereby A.2,
\nA.3, who are the appellants in the first appeal, stood charged, tried under
\nSections 302 r\/w 34  IPC whereas A.1, who was the appellant in the later appeal
\nstood charged and tried under Section 302 I.P.C. and they were found guilty as
\nper their charges and each of them were awarded imprisonment for life and fine
\nof Rs.3,000\/- in default to undergo two years rigorous imprisonment.\n<\/p>\n
\t2. Th short facts that are necessary for the disposal of these appeals can
\nbe stated thus:-\n<\/p>\n
\t(i) PW.1 is the elder brother and PW.9 is the wife of the deceased
\nrespectively.  PW.8 is the  son-in-law of the deceased.  PW.3 was the Ward
\nCouncillor of the Manoor Panchayat.  Six months prior to date of occurrence, the
\nfirst accused purchased a goat from the deceased and the goat died subsequently
\ndue to disease.  There was a demand made on the deceased to give him another
\ngoat but it was evaded.  The first accused was aggrieved over the same.  On
\n2.8.1998, at about 6.00 p.m., the deceased was returning from Reddiarpatti after
\nvisiting a weekly market in respect of purchasing goats.  At that time, A.1 to
\nA.3 waylaid him.  A.1 attacked the deceased with belt, while A.2 and A.3 fisted
\nhim.  When the deceased fell down, A.1 stamped him with the  chappals worn by
\nhim with force.  Thus, they caused injuries to the deceased.  Thereafter, they
\nleft the place of the occurrence.  The deceased came home and when questioned
\nabout injuries found on him, he informed PW.8, PW.9 and PW.1 about the incident.
\nHowever, he refused to go to hospital for taking treatment.\n<\/p>\n
\t(ii) On 3.8.1988 at about 7.00 a.m., the deceased was suffered from
\nstomach ache.  He was taken to the Primary Health Centre, Manoor by a car
\nthrough PW.10.  On medically examining the deceased, PW.2 found him died and
\nhence declared that the deceased died.\n<\/p>\n
\t(iii) Thereafter, PW.1 along with PW.3 proceeded to the respondent Police
\nStation where PW.14, Head Constable was on duty on 3.8.1998.  He gave a
\nComplaint Ex.P.1 at about 11.00 a.m.,.  On the strength of the Complaint Ex.P.1,
\nPW.14 registered a case in Crime No.350 of 1998 under Section 302 IPC.,.  F.I.R.
\nEx.P.8 along with Complaint Ex.P.1 was sent to the Court and to the higher
\nofficials.\n<\/p>\n
\t(iv) On receipt of the copy of the F.I.R.,  PW.16 the Inspector of Police
\nof the Circle, took up the investigation, proceeded to the Tirunelveli Medical
\nCollege Hospital where the dead body of the deceased was kept in the mortuary.
\nHe conducted inquest on the dead body of the deceased in the presence of
\nwitnesses and  panchayatdars from 12.30 p.m. to 3.30 p.m. on the date of
\noccurrence and prepared an Inquest Report Ex.P.11.  He recorded the statements
\nfrom PW.4 and PW.1.  Thereafter, at about 5.00 p.m., on the same day, he
\nproceeded to the place of occurrence, made an inspection in the presence of
\nwitnesses and prepared an Observation Mahazar Ex.P.12 and also a rough sketch
\nEx.P.13.\n<\/p>\n
\t(v) Following the inquest, the dead body of the deceased was subjected to
\npost-mortem.  On receipt of a requisition  for conducting post-mortem, PW.11
\nDoctor, attached to Tirunelveli Government  Medical College Hospital,  conducted
\nautopsy on the body of the deceased and has given Post-Mortem Certificate under
\nEx.P.5 and Final Opinion Report under Ex.P.6.  In Ex.P.6, he has opined that the
\ndeceased would appear to have died of laceration of liver caused by blunt injury
\nto abdomen.\n<\/p>\n
\t(vi) In the mean time, A.1 to A.3 surrendered before the Court.  On
\n12.8.1998, the Investigating Officer took up the accused on police custody by
\nfiling an application before the Court in that regard.  During the course of
\ninvestigation, A.1 volunteered to give confessional statement and the same was
\nrecorded in the presence of witnesses and the admissible part of that
\nconfessional statement was marked as Ex.P.9.  At about 7.00 p.m. on the same
\nday, A.2 also volunteered to give a confessional statement and the same was
\nrecorded in the presence of witnesses.  At about 8.00 a.m., on the same day, A.3
\nalso volunteered to give a confessional statement and the same was recorded in
\nthe presence of witnesses.  Pursuant to his confession, A.1 produced a Belt
\nMO.4, which was seized under a cover of mahazar Ex.P.10.  All the accused were
\nsent for judicial custody.\n<\/p>\n
\t(vii) On completion of the investigation, the investigating officer filed
\na final report before the Court and the case was committed to the Court of
\nSessions.  Necessary charges were framed.\n<\/p>\n
\t3. In order to substantiate the charges, at the time of trial, the
\nprosecution examined 16 witnesses and relied on 13 exhibits and 4 MOs.  On
\ncompletion of the evidence on the side of the prosecution, the
\naccused\/appellants were questioned under Section 313 Cr.P.C. procedurally as to
\nthe incriminating circumstances found in the evidence of prosecution witnesses.
\nThey denied them as false.  No defence witness was examined.  After hearing the
\narguments of the counsel and looking into the materials available meticulously,
\nthe lower court, took the view that the prosecution has proved its case beyond
\nreasonable doubts and the accused were found guilty as per the charges and
\nawarded life imprisonment.\n<\/p>\n
\t4.  The learned counsel appearing for the appellants in C.A.(MD)No.713 of
\n2001 would submit as follows:-\n<\/p>\n
\t(i) In the instant case, the occurrence had taken place at about 6.00 p.m.
\non 2.8.1998.  PW.4 was the only eye-witness, according to the prosecution, but
\nhe has turned hostile.\n<\/p>\n
\t(ii)  PW.1 is the elder brother, PW.8 is the son-in-law and PW.9 is the
\nwife of the deceased.   These witnesses claimed that after his returning from
\nReddiarpatti, the deceased informed them that it was the first accused, who
\nattacked him with a belt and also stamped him;  A.2 and A.3 fisted him with
\nhands.  This piece of evidence would go to show that A.2 and A.3 were unarmed
\nand they had not caused any injury and no corresponding injury was found
\nmentioned in the Post-Mortem Certificate Ex.P.5.\n<\/p>\n
\t(iii) No motive was attributed to A.2 and A.3 for committing the crime and
\nthere is nothing to connect the accused with the crime.\n<\/p>\n
\t(iv) There is no direct evidence.  Hence, the prosecution relied on
\ncircumstances.  However, necessary circumstances were neither placed nor proved
\nbefore the Court.\n<\/p>\n
\t(v) The prosecution has claimed that the accused have given confessional
\nstatements and the same were recorded in the presence of witnesses but pursuant
\nto the confession, no weapon was available for the prosecution. Therefore, the
\nappellants\/A.2 and A.3 are entitled for acquittal in the hands of this Court.\n<\/p>\n
\t5. Insofar as the appellant\/A.1 in Criminal Appeal (MD) No.738 of 2001,
\nthe learned counsel appearing on behalf of him would submit as follows:\n<\/p>\n
\t(i) According to the prosecution, PW.1 gave a complaint Ex.P.1 to the
\nrespondent police and on the strength of which, the case came to be registered
\nin Crime No.350 of 1998.  A perusal of Ex.P.1 would clearly indicate that PW.1
\nhad not whispered the name of A.1.  But, at the time of evidence, he has
\ndeveloped as if it was A.1 who attacked the deceased.  Apart from that PW.8 and
\nPW.9 when enquired, they even went to the extent of stating that when the
\noccurrence was informed by the deceased either to PW.1 or PW.8 or PW.9, he did
\nnot inform the identity of A.1.\n<\/p>\n
\t(ii) The prosecution has thoroughly failed in its case since PW.4, the
\nonly eye-witness has turned hostile. Even according to PW.1, PW.8 and PW.9, to
\nwhom, the incident was informed by the deceased, clear identity of A.1 was not
\ninformed to them.\n<\/p>\n
\t(iii) Added further the learned counsel that insofar as the statements
\nrecorded from these witnesses, there was inordinate delay in reaching the Court.
\nThe statement from PW.8 was recorded on 4.8.1998 whereas it has reached the
\nCourt only on 8.1.1999 i.e. after five months.\n<\/p>\n
\t(iv) The medical opinion canvassed through the Post-Mortem Doctor PW.11
\ndid not corroborate with the ocular testimony.\n<\/p>\n
\t(v) Even assuming that the recovery of MO.4 belt, pursuant to the
\nconfession by A.1, was to be true, that can not form the basis for conviction.
\nHence, the judgment of the lower Court has got to be set aside.\n<\/p>\n
\t5. The Court heard the learned Additional Public Prosecutor on the above
\ncontentions.\n<\/p>\n
\t6. The Court paid its utmost attention to the submissions and made a
\nthorough scrutiny on the entire materials available on record.\n<\/p>\n
\t7.  The prosecution was able to prove that following the incident that had
\ntaken place at about 6.00 p.m., on 2.8.1998 at the place of occurrence as put-
\nforth by the prosecution, the deceased returned home.  He was taken to the
\nhospital on the next morning where he was declared dead by the Doctor PW.2,
\nattached to the Primary Health Centre, Manoor.  Following the inquest made by
\nPW.16 the Investigating Officer,  the dead body was subjected to post-mortem by
\nPW.11 Doctor, who has given post mortem certificate Ex.P.5 and Final Opinion
\nReport Ex.P.6  wherein he has  opined that the deceased would appear to have
\ndied of laceration of liver caused by blunt injury to Abdomen.  This part of
\nevidence, adduced through the Doctor PW.11 and the contents in Exs.P.5 and P.6,
\nwere never challenged by the accused before the trial Court.  Hence, the death
\nwas caused to the deceased only by way of homicidal violence and it has got to
\nbe recorded factually so.\n<\/p>\n
\t8.  It is the case of the prosecution as stated above, six months prior to
\nthe date of occurrence, A.1 purchased a goat from the deceased which was
\ninflicted with diseases and following which, it died.  There was a demand for
\nA.1 for another goat.  It was being evaded by the deceased.  Hence, at the time
\nof occurrence, A.1 attacked him.  In that transaction A.2 and A.3 have also
\njoined A.1 and it was the common intention.  Thus, all the three caused the
\ndeath.\n<\/p>\n
\t9. The prosecution has marched only one witness as the eye-witness viz.,
\nPW.4 but he has turned hostile.  Thus, the prosecution had no direct evidence to
\noffer.  Hence, it rested its case only on the circumstances available.  PW.1,
\nPW.8 and PW.9 were the persons to whom, the deceased had informed about the
\nincident that took place on the date of occurrence.   It was PW.1 who gave the
\nreport Ex.P.1 to the respondent Police  and on the strength of which, the case
\ncame to be registered by the respondent police.  A perusal of Ex.P.1 would
\nreveal that PW.1 has mentioned the names of A.2 and A.3 but he has not mentioned
\nthe name of A.1.  PW.9 who is the wife of the deceased has categorically deposed
\nthat when her husband came home, on seeing the injuries found on his body, she
\nenquired him and he narrated the names of all the three accused and the entire
\nincident.  Thus, though no direct evidence was available, it was a declaration
\nmade by the deceased to his wife PW.9.  There is no legal impediment in
\naccepting that evidence.\n<\/p>\n
\t10. Added circumstance against A.1 is the recovery of the weapon viz.,
\nbelt MO.4 from A.1 following the confessional statement given by him.  A witness
\nhas been examined to speak about the arrest, confessional statement and recovery
\nof MO.4 belt.\n<\/p>\n
\t11.  Yet another circumstance against A.1 is the medical evidence
\ncanvassed through the Doctor PW.11.  According to him, laceration found on the
\nliver caused by blunt injury to abdomen led to the death of the deceased.  Even
\naccording to the confessional statement given by A.1, he attacked the deceased
\nwith belt and when he fell down, he stamped him with chappals he had worn at
\nthat time and thus, the corresponding injuries were caused by A.1. Now, the
\ncontention put-forth by the learned counsel for the appellant\/A.1 that the
\nDoctor  PW.11 has opined even by falling on the ground, such injuries might be
\ncaused, remains to be stated that once the prosecution has come up with the
\nspecific case that the injuries were caused by A.1, stamping on the abdomen, the
\nother possibility need not be taken into consideration at all.\n<\/p>\n
\t12. Insofar as A.2 and A.3, as rightly pointed out by the learned counsel,
\nthey were unarmed but they have also fisted the deceased with hands.\n<\/p>\n
\t13. At this juncture, it is inferable that the accused did not have any
\ncommon intention to cause the death of the deceased.  But A.1 has got the
\nknowledge that causing such injury would likely to cause death.  Therefore, the
\nact of the first accused would fall under Section 304 (Part-II) of the I.P.C.,
\nand awarding five years rigorous imprisonment would meet the ends of justice,
\nwhile the act of A.2 and A.3 would attract the provision of Section 323 of the
\nI.P.C. and awarding six months rigorous imprisonment would meet the ends of
\njustice.  Therefore, the conviction and sentence imposed on the
\naccused\/appellants by the judgment of the lower Court are set aside and,
\ninstead,  A.1 is convicted under Section 304 (Part-II) of the I.P.C and awarded
\nfive years rigorous imprisonment whereas A.2 and A.3 are convicted under Section
\n323 IPC and awarded six months rigorous imprisonment.   The sentence already
\nimposed by the appellants is ordered to be given set off.  The fine amount
\nimposed on the appellants\/accused by the lower Court is treated as one imposed
\nunder the modified charges. It is reported that the accused\/ appellants are on
\nbail.  The Court concerned is directed to secure the presence of the accused and
\ncommit them to prison to undergo the remaining period of sentence, if any.  With
\nthe above modification, the Criminal Appeal is dismissed.\n<\/p>\n
asvm<\/p>\n
To<\/p>\n
1.The  Second Additional
\n  Sessions Court,
\n  Tirunelveli.\n<\/p>\n
2.Inspector of Police,
\n  Uthumalai Police Station,
\n  Tirunelveli District.\n<\/p>\n
  (Crime No.350 of 1998)<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of
\n  the Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Durai Alias Sethu Pandian vs State Rep.By on 17 April, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17\/04\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.No.713 of 2001 and Crl.A.No.738 of 2001 1.Durai alias Sethu Pandian 2.Krishnan alias Chinnadurai .. Appellants\/A2 and A3 in C.A.No.713\/2001 […]<\/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-154156","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDurai Alias Sethu Pandian vs State Rep.By on 17 April, 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\/durai-alias-sethu-pandian-vs-state-rep-by-on-17-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Durai Alias Sethu Pandian vs State Rep.By on 17 April, 2008 - 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