{"id":155019,"date":"2008-01-04T00:00:00","date_gmt":"2008-01-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appadurai-vs-state-represented-by-on-4-january-2008"},"modified":"2016-11-20T03:22:34","modified_gmt":"2016-11-19T21:52:34","slug":"appadurai-vs-state-represented-by-on-4-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appadurai-vs-state-represented-by-on-4-january-2008","title":{"rendered":"Appadurai vs State Represented By on 4 January, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Appadurai vs State Represented By on 4 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 04\/01\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nC.A.NOS.2 OF 2006\nC.A.NOS.225 OF 2006\n\n\n1.Appadurai\n2.Ayyadurai\n3.Chellappa\t\t\t\t..  Appellants in\n\t\t\t\t\t\tC.A.No.2 of 2006\n\n\nSundar alias Kandasamy\t\t\t..  Appellant in\n    \t\t\t\t\t        C.A.No.225 of 2006\n\n\nVs.\n\n\nState represented by\nInspector of Police,\nPalayamkottai Police Station,\nTirunelveli District.\n(Crime No.1525\/2004)\t\t\t..  Respondent in<\/pre>\n
\t\t\t\t\t        both the appeals<\/p>\n
\tThese criminal appeals have been preferred under Section 374(2) Cr.P.C.
\nagainst the conviction and sentence imposed on the appellants by the learned
\nFirst Additional Sessions Judge, Tirunelveli made in S.C.No.159 of 2005, dated
\n30.11.2005.<\/p>\n
\n\n!For Appellants  \t\t\t... Mr.V.Kathirvelu in C.A.No.2 of 2006\n\t\t\t\t\t\t   Mr.N.Mohideen Basha in C.A.No.225 of 2006\n\n\n^For Respondents \t\t\t... Mr.P.N.Pandithurai, APP\n\n\n\n\n:COMMON JUDGMENT\n\n<\/pre>\n
(The judgment of the court was made by M.CHOCKALINGAM, J.)<\/p>\n
\t\tThis judgment shall govern these two criminal appeals, namely
\nC.A.No.2 of 2006 made by A-1 to A-3 and C.A.No.225 of 2206 made by A-4.\n<\/p>\n
\t\t2.These two appeals have arisen, challenging the judgment of the
\nlearned First Additional Sessions Judge, Tirunelveli made in S.C.No.159 of 2005,
\nwhereby these four accused\/appellants along with two others, shown as A-5 and A-
\n6, stood charged as follows:\n<\/p>\n
\tA-1 to A-3\t– S.120 B IPC
\n\tA-1 to A-6\t– S.348 IPC
\n\tA-3\t\t\t– S.342 IPC
\n\tA-1,2,4 to 6\t– S.342 r\/w S. 149 IPC
\n\tA-1,2 and 4\t– S.302 IPC
\n\tA-3,5 and 6\t– S.302 IPC r\/w S.149 IPC
\nOn trial, these appellants were found guilty as detailed below, while A-5 and A-
\n6 were acquitted of all the charges.\n<\/p>\n
\tA-1 to A-4\t– S.148 IPC\t– 1 year RI and Rs.1000\/- fine,
\n\t\t\t\t\t\t\t  in default to undergo 1 month SI
\n\tA-3\t\t\t– S.342 IPC\t– 1 month RI.\n<\/p>\n
\tA-1,2 and 4\t– S.342 r\/w \t– 1 month RI
\n\t\t\t\t   S.34 IPC
\n\tA-1,2 and 4\t– S.302 IPC\t– Life imprisonment and Rs.5000\/-\n<\/p>\n
\t\t\t\t\t\t\t  fine, in default 3 months SI.\n<\/p>\n
\tA-3\t\t\t– S.302 r\/w\t– Life imprisonment and Rs.5000\/-\n<\/p>\n
\t\t\t\t   S.34 IPC\t  fine, in default 3 months SI.\n<\/p>\n
\t3.The short facts necessary for the disposal of the case could be stated
\nas follows:\n<\/p>\n
\ta)P.W.6 is the father of the deceased. P.W.1 is the brother of the
\ndeceased. They were the residents of Seidunganallur. On 29.7.2004, P.W.1
\naccompanied by the deceased went over to the village called Pottal for watering
\ntheir lands. After doing so, they were on their way back.  They were just
\nstanding nearby the place of occurrence, namely Rogini Tea Stall at about 9.00
\np.m. At that time, all the accused armed with Aruval proceeded nearby. A-3
\ncaught hold the hands of the deceased. A-1 cut the deceased on the back of his
\nneck. A-2 cut the deceased on his right shoulder and A-4 cut the deceased on his
\nleft shoulder and mandible. The occurrence was witnessed not only by P.W.1, who
\nwas standing nearby, but also by P.Ws.2,3,5 and 9. P.W.1 and others shouted not
\nto cut the deceased. All the accused fled away from the place of occurrence.
\nP.W.1 and others went nearby and found him dead.\n<\/p>\n
\tb)P.W.1 rushed to the respondent police station and gave the complaint
\nEx.P.1 to P.W.22, Sub Inspector, who was on duty at that time. On the strength
\nof the same, a case came to be registered in Crime No.1525 of 2004 under
\nSections 342, 294(B) and 302 IPC. Ex.P.26, the FIR was sent to the concerned
\nJudicial Magistrate Court through a Constable.\n<\/p>\n
\tc)On receipt of the copy of the FIR, P.W.23, the Inspector of Police, took
\nup the investigation, proceeded to the place of occurrence and made an
\ninspection in the presence of witnesses and prepared Ex.P.28, the Observation
\nmahazar and Ex.P.29, the rough sketch. Further, he recorded the statement of the
\nwitnesses.  He conducted inquest on the dead body of the deceased in the
\npresence of the witnesses and panchayatdars and prepared Ex.P.31, the inquest
\nreport.\n<\/p>\n
\td)The dead body of the deceased was sent to the hospital through P.W.17,
\nthe Constable, for the purpose of autopsy.  P.W.19, the Doctor attached to the
\nTirunelveli Medical College, on receipt of the requisition, has conducted
\nautopsy on the dead body of the deceased and has issued Ex.P.19, the post-mortem
\ncertificate, wherein he has narrated the injuries and has opined that  the
\ndeceased would appear to have died of shock and haemorrhage due to the injury
\nfound on the neck, which was fatal and the other injuries were simple.\n<\/p>\n
\te)Pending investigation, the Investigator arrested A-4 on 2.8.2004 and in
\nthe presence of the witnesses, he made confessional statement, the admissible
\npart of which was marked as Ex.P.32. Consequent upon the same, he produced
\nM.O.10 Aruval, which was recovered in the presence of the witnesses under a
\ncover of mahazar. On 31.7.2004, A-1, A-4 and A-6 surrendered before the court
\nand on 3.8.2004, they were taken to police custody. At the time of enquiry, they
\ngave confessional statements, which were all recorded in the presence of the
\nwitnesses. The admissible part of the confessional statements of A-1, A-5 and A-
\n6 were marked as Exs.P.34 to 36 respectively. Pursuant to the same, A-1 produced
\nM.O.11 aruval, A-5 produced M.O.12 aruval and A-6 produced M.O.13 aruval, which
\nwere recovered in the presence of the witnesses under a cover of mahazar.\n<\/p>\n
\tf)Following the same, the Investigator proceeded with the investigation
\nfurther. A-2 and A-3 also surrendered before the court. They were taken to
\npolice custody on 12.8.2004. They have given confessional statements in the
\npresence of the witnesses. The admissible part of the confessional statement of
\nA-3 was marked as Ex.P.40, pursuant to which he produced M.O.14 aruval which was
\nrecovered under a cover of mahazar. The admissible part of the confessional
\nstatement of A-2 was marked as Ex.P.42, pursuant to which he produced M.O.15
\naruval, which was recovered under a cover of mahazar. All the material objects
\nrecovered from the place of occurrence, from the dead body of the deceased and
\nfrom the accused were sent for chemical analysis on requisition given by the
\nInvestigating Officer to the concerned Judicial Magistrate. Ex.P.22, the
\nChemical analyst’s report and Ex.P.23, the Serologist’s report were received. On
\ncompletion of the investigation, the Investigating Officer has filed the final
\nreport before the concerned court.\n<\/p>\n
\tg)The case was committed to the court of sessions and necessary charges
\nwere framed and the case was taken up for trial. At the time of trial, the
\nprosecution examined P.Ws.1 to P.W.23 and marked Exs.P.1 to P.44 and M.Os.1 to\n<\/p>\n
15. On completion of the evidence on the side of the prosecution, the accused
\nwere questioned under Section 313 Cr.P.C. as to the incriminating circumstances
\nfound in the evidence of prosecution witnesses. They denied them as false. No
\ndefence witness was examined.  The lower court, after hearing the arguments of
\nthe counsel, took the view that the prosecution has proved the case beyond
\nreasonable doubt so far as A-1 to A-4 were concerned and so far as A-5 and A-6
\nwere concerned, the lower court recorded an order of acquittal. Under these
\ncircumstances, these criminal appeals have arisen before this court at the
\ninstance of A-1 to A-4.\n<\/p>\n
\t4.Advancing arguments on behalf of the appellants, the learned counsel
\nwould submit that it is highly doubtful whether Ex.P.1 would have come into
\nexistence as put forth by the prosecution; that P.W.1 could not have been in the
\nplace of occurrence at all; that P.W.1 is the brother of the deceased and they
\nare the native of Seitunganallur; that the occurrence took place near
\nPalayamkottai; that there was no occasion for P.W.1 to accompany the deceased at
\nthat time; that so far as Ex.P.1 was concerned, nothing is found whether it was
\nwritten at the police station; that he would say that it was written by him at
\nthe post office; that in the instant case, the occurrence has taken place,
\naccording to the prosecution, at 9.00 p.m.; that the police constable, who took
\nthe Sniffer Dog to the place of occurrence, was examined; that according to his
\nevidence, he was informed that the assailants were not known and thus, he was
\nasked to take the Sniffer Dog and that this would reveal that P.W.1 could not
\nhave been in the place of occurrence at all.\n<\/p>\n
\t5.Added further the learned counsel that so far as the other evidence are
\nconcerned, P.Ws.5 and 9 have turned hostile; that the Investigating Officer has
\ncategorically admitted that if the witnesses were standing at the bus stand,
\nthey could not have seen the occurrence at all; that it would be quite clear
\nthat P.Ws.2 and 3 could not have seen the occurrence at all; so far as P.W.1 was
\nconcerned, he is the brother of the deceased; that if the evidence of P.W.1 is
\ntested from the medical evidence, it would falsify the evidence; that he did not
\ngive the correct narration of the injury sustained; that it would also cast a
\ndoubt on the evidence of P.W.1; that apart from that, in the instant case, while
\nP.W.1 has given evidence to the effect that they went over for watering the
\nland, the Investigator had not even conducted investigation in that regard; that
\ninsofar as the place of occurrence, according to P.W.1, the place of occurrence
\nwas just opposite to the bus stop, where they were standing, but there were no
\nbus stop found either in the sketch or in the observation mahazar and that it
\nwould cast a doubt on the prosecution case; that in the instant case, the
\nprosecution originally came with the case of conspiracy; that the prosecution
\nhas miserably failed to prove the case; that so far as A-5 and A-6 are
\nconcerned, the lower court was not prepared to accept the case; that once the
\nlower court was not prepared to accept the evidence of so-called eyewitnesses in
\nrespect of the conspiracy part and also the other part of the prosecution case,
\nit should have given outright acquittal of all the accused, but failed to do so
\nand under these circumstances, justice has got to be rendered by allowing these
\nappeals.\n<\/p>\n
\t6.The court heard the learned counsel for the respondent on the above
\ncontentions.\n<\/p>\n
\t7.The court has paid its anxious consideration on the submissions made and
\nalso scrutinized the materials available. In the instant case, the gist of the
\nprosecution case is that due to prior enmity, A-1, pursuant to the conspiracy
\nhatched up, accompanied with the other accused, cut the deceased at the place of
\noccurrence at about 9.00 p.m. on 29.07.2004. According to the prosecution, the
\noccurrence was witnessed by P.W.1, the brother of the deceased, P.Ws.2,3,5 and
\n9, who were standing nearby. So far as P.Ws.5 and 9 are concerned, they have
\nturned hostile and hence, the prosecution could not get their help. Insofar as
\nthe evidence of P.Ws.2 and 3, the court has to necessarily agree with the
\ncontention put forth by the learned counsel for the appellants. According to the
\nevidence of the Investigation Officer, if they were standing near the bus stop,
\nthey could not have seen the occurrence at all and that too, the occurrence has
\ntaken place at 9.00 p.m. It is not the evidence of P.Ws.2 and 3 that they came
\nto the place of occurrence at the time of occurrence and they saw the same. From
\nthe evidence of the Investigating Officer, it is highly improbable to accept the
\nevidence of P.Ws.2 and 3 and hence, their evidence would be of no help to the
\nprosecution case.\n<\/p>\n
\t8.What is available to the prosecution was the evidence of P.W.1. It is a
\nsettled proposition of law that even though the uncorroborated testimony of
\nsingle witness could not be believed, if it is worthy and has inspired the
\nconfidence of the court, the court can sustain the conviction. In the instant
\ncase, it is true, P.W.1 is the brother of the deceased. On the ground of
\nrelationship alone, his evidence cannot be brushed aside, since his evidence has
\ninspired the confidence of the court. According to P.W.1, he accompanied with
\nhis brother and went over to Pottal for watering their land and they returned in
\nthe two wheeler and thereafter, they were standing nearby the place of
\noccurrence. At that time, all the four accused came over there and they were
\narmed with aruval and P.W.1 has narrated the specific overt acts attributed to
\nthem. In the instant case, the first and foremost situation in favour of the
\nprosecution is that the F.I.R. has come into existence within a short span of an
\nhour.  In the F.I.R., P.W.1 has clearly narrated the entire incident and has
\nmentioned all the names of the assailants.\n<\/p>\n
\t9.It is pertinent to point out that the F.I.R. has reached the Judicial
\nMagistrate concerned at 4.00 a.m. on 30.7.2004. The contention of the learned
\ncounsel for the appellants is that the court seal of the Judicial Magistrate
\nCourt was found affixed only on 31.7.2004. But, this contention cannot be
\ncountenanced for the simple reason that the Judicial Magistrate concerned has
\ninitialed in the F.I.R. on 30.07.2004. Under these circumstances, in the instant
\ncase, no delay is noticed. Had P.W.1 not been in the place of occurrence, he
\ncould not have narrated the entire incident along with the overt acts attributed
\nto each and every one of the accused. Further, P.W.1 has also pointed out the
\nfact as to why he was present at the place of occurrence and hence, his evidence
\nhas got to be believed. Further, when the medical evidence is looked into, this
\ncourt is unable to agree with the contention put forth by the learned counsel
\nfor the appellants for the simple reason that according to P.W.1, the first
\naccused cut the deceased on the back side of the neck of the deceased, while A-3
\ncaught hold in front and the other two accused attacked the deceased on his
\nshoulders. A perusal of the post-mortem certificate would clearly reveal that
\nthe injuries are found. Under these circumstances, taking into consideration the
\ntime of occurrence, namely 9.00 p.m. and the fact that P.W.1 is none else than
\nthe brother of the deceased, the court must see the frame of mind of the person
\nconcerned at the time of occurrence and also the other attendant circumstances.
\nThe minor discrepancies found in the evidence cannot be a reason for rejecting
\nhis evidence. When the evidence of P.W.1 is looked into with the medical
\nevidence, it was in favour of the prosecution case. In the instant case, though
\nit was  solitary, it was cogent, believable and convincing. It is true, the
\nwitnesses examined for the recovery of M.Os., pursuant to the confessional
\nstatement, have turned hostile. Even assuming that part of the evidence is not
\navailable, the court is of the considered opinion that the evidence of P.W.1
\nwould suffice to accept the case of prosecution and hence, the court has to
\nagree with the case of prosecution.\n<\/p>\n
\t10.Now, coming to the question as to the act of the accused, the
\nprosecution originally started the case with conspiracy, but it has miserably
\nfailed. The lower court has acquitted A-5 and A-6 and in respect of which, no
\nappeal has been preferred. This court is unable to notice any common intention
\namong the accused at the time of occurrence. So far as A-3 was concerned, he
\ncaught hold of the deceased and there is nothing to indicate that he had any
\nintention to share with the other accused that the deceased was to be murdered.
\nHence, Section 342 IPC alone would be attracted and the maximum punishment of 1
\nyear R.I. has got to be given. Insofar as A-1, the evidence of P.W.1 is clear
\nthat A-1 cut the deceased on the back side of his neck and thus, he caused fatal
\ninjury, leading to his death. Hence, A-1 has got to be convicted for the offence
\nunder Section 302 IPC and life imprisonment has got to be imposed. So far as A-2
\nand  A-4 are concerned, there is nothing to show that they shared the common
\nintention at the time of the occurrence. They have caused simple injury by
\ncutting the deceased on his shoulders, as per the medical evidence. Hence,
\nSection 324 IPC has got to be attracted and the maximum punishment of 3 years
\nR.I. has got to be awarded.\n<\/p>\n
\t11.In the result, the judgment of conviction and sentence imposed on the
\nappellants are modified. The conviction and sentence imposed on A-1 under
\nSection 302 IPC are confirmed. A-2 and A-4 are convicted under Section 324 IPC
\nand they are sentenced to undergo three years R.I. A-3 is convicted under
\nSection 342 IPC and is sentenced to undergo one year R.I. The sentence already
\nundergone by the accused Nos.2 to 4 is ordered to be given set off. It is
\nreported that  A-3 in on bail and hence, the Sessions Judge shall take steps to
\ncommit him to prison to undergo the remaining period of sentence, if any.  In
\nall other respects, the judgment of the lower court is set aside. The fine
\namounts, if any, paid in respect of Section 148 IPC by the appellants will be
\nrefunded. With the above modification in conviction and sentence, these criminal
\nappeals are dismissed.\n<\/p>\n
vvk<\/p>\n
To\n<\/p>\n
1.The First Additional SEssions Judge,
\n  Tirunelveli.\n<\/p>\n
2.Inspector of Police,
\n  Palayamkottai Police Station,
\n  Tirunelveli District.\n<\/p>\n
3.The Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Appadurai vs State Represented By on 4 January, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04\/01\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU C.A.NOS.2 OF 2006 C.A.NOS.225 OF 2006 1.Appadurai 2.Ayyadurai 3.Chellappa .. Appellants in C.A.No.2 of 2006 Sundar alias Kandasamy .. Appellant in C.A.No.225 […]<\/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-155019","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAppadurai vs State Represented By on 4 January, 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\/appadurai-vs-state-represented-by-on-4-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appadurai vs State Represented By on 4 January, 2008 - 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