{"id":163222,"date":"2010-07-20T00:00:00","date_gmt":"2010-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/muniyandi-vs-the-state-on-20-july-2010"},"modified":"2016-12-04T17:33:29","modified_gmt":"2016-12-04T12:03:29","slug":"muniyandi-vs-the-state-on-20-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/muniyandi-vs-the-state-on-20-july-2010","title":{"rendered":"Muniyandi vs The State on 20 July, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Muniyandi vs The State on 20 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 20\/07\/2010\n\nCoram\nThe Honourable Mr.Justice M.CHOCKALINGAM\nand\nThe Honourable Mr.Justice M.DURAISWAMY\n\nCriminal Appeal (MD) No.250 of 2009\nCriminal Appeal (MD) No.270 of 2009\nand\nCriminal Appeal (MD) No.306 of 2009\n\n\t\t\t\t\nMuniyandi, S\/o.Vellaian\t\t\t...  Appellant in\n\t\t\t\t\t\tCrl.A.250\/2009\/\t\t\t\n\t\t\t\t\t\tAccused No.5\n1.Kannan, S\/o.Ponniah\n2.Gopal, S\/o.Kilavan\n3.Ponnusamy,S\/o.Karuppazhagu\n4.Sevugaraj, S\/o.Karuppazhagu\t\t\t...  Appellants in\n\t\t\t\t\t\tCrl.A.270\/2009\/\t\t\t\n\t\t\t\t\t\tA-1, A-2, A-6 & A-7\n\n1.Mayakrishnan, S\/o.Muthukrishnan\n2.Tamilselvan\t\t\t\t\t...  Appellants in\n\t\t\t\t\t\tCrl.A.306\/2009\/\t\t\t\n\t\t\t\t\t\tAccused Nos.3 & 4\n\n\nvs\n\n\nThe State, rep.by\nThe Inspector of Police,\nRajapalayam South Police Station,\nVirudhunagar District.\t\t\t... Respondent in all \/<\/pre>\n
(Crime No.857\/2005)\t\t\t  the appeals\/Complainant<\/p>\n
\tAppeals under Section 374 of the Code of Criminal Procedure
\nagainst the judgment of conviction and sentence passed in S.C.No.85\/2006  on the
\nfile of the learned Principal Sessions Judge, Virudhunagar District at
\nSrivilliputtur, dated 07.08.2009.\n<\/p>\n
!For Appellant\t  …\tMr.V.Kathirvelu
\nin Crl.A.\t\t\t<\/p>\n
\nNo.250\/2009\t\t\n\nFor Appellants    ...\tMr.Shanmugha Velayutham,\nin Crl.A.\t\tSenior Counsel for\nNo.270\/2009\t\tMr.M,Suri\n\nFor Appellants\t  ...\tMr.T.Lajapathi Roy\nin Crl.A.\nNo.306\/2009\n\n^For respondent   ...   Mr.N.Senthur Pandian,\nin all the CAs.         Addl.Public Prosecutor.\n\n\n\n:COMMON JUDGMENT\n\n(Judgment of the Court was made by M.CHOCKALINGAM,J)\n\n<\/pre>\n
\t\t\tThis judgment shall govern the following three appeals, namely
\nCrl.A.(MD)No.250 of 2009 preferred by Accused No.5, Crl.A.(MD)No.270 of 2009
\npreferred by Accused Nos.1,2, 6 and 7 and Crl.A.(MD)No.306 of 2009 preferred by
\nAccused Nos.3 and 4.  All these appellants\/accused Nos.1 to 7 , along with other
\naccused ranked as accused No.8, stood charged and tried for the following
\ncharges,<\/p>\n
Charge No.               Accused No.\/s                   Charge Under<\/p>\n
1.                     Accused Nos.1 to 8               U\/s.120(B) IPC<\/p>\n
2.                     Accused Nos.1 to 8               U\/s.147 IPC<\/p>\n
3.                     Accused Nos.1 to 7               U\/s.148 IPC<\/p>\n
4.                     Accused Nos.1 to 7               U\/s.341 IPC<\/p>\n
5.                     Accused Nos.1 to 7           U\/s.302 r\/w 149 IPC<\/p>\n
6.                     Accused Nos.1 to 7            U\/s.506(ii) IPC<\/p>\n
7.                       Accused No.8                U\/s.302 r\/w 212 IPC<\/p>\n
and on trial, Accused No.8 was found not guilty and he was  acquitted of all the
\ncharges levelled against him but, appellants\/accused Nos.1 to 7 were found
\nguilty, convicted and sentenced to undergo imprisonments as detailed below.\n<\/p>\n
Accused No.             Finding                        Sentence\n\n\nAccused Nos.\n1 to 7            Guilty U\/s.148 IPC     Each to undergo one year Rigorous Imprisonment.\n\nAccused Nos.\n1 to 7            Guilty U\/s.341 IPC     Each to undergo one month Simple Imprisonment.\n\nAccused Nos.\n1 to 7            Guilty U\/s.302         Each to undergo life imprisonment and to\n                  r\/w 149 IPC            pay a fine of Rs.1000\/-, in default to\n                                         undergo one year simple imprisonment.\n\nAccused Nos.\n1 to 7           Guilty U\/s.147 IPC        No separate sentence was imposed.\n\n\n<\/pre>\n
In respect of other charges, accused Nos.1 to 7 were found not guilty and
\nacquitted of from those charges.  The above sentences were ordered to run
\nconcurrently.  Aggrieved over the judgment of the trial court founding them
\nguilty, the accused Nos.1 to 7 have brought-forth the above criminal appeals, as
\nstated above.\n<\/p>\n
\t\t\t2.Short facts necessary for the disposal of these three
\nappeals  could be stated thus:\n<\/p>\n
\t\t(a)P.W.1 is the brother and P.W.3 is the wife of the deceased
\nServarayan.  P.W.2 is the younger maternal aunt of the deceased.  P.W.1 is a
\nresident of South Malaiyadipatti and P.W.2 is a resident of Malaiyandipatti in
\nRajapalayam.  During the relevant period of time the deceased was working as a
\nLoadman in Ganesh Transport in Rajapalaym.  Originally, the deceased, along with
\nhis wife and family members, was living at Ramakrishnapuram in Srivilliputtur.
\nAccused No.1 is closely related to the deceased.  Accused Nos.2 to 8 are closely
\nrelated to accused No.1.\n<\/p>\n
\t\t(b)One year prior to the occurrence, when the deceased was
\nliving with his wife at Ramakrishnapuram, accused No.1 developed illicit
\nintimacy with P.W.3, the wife of the deceased.  The sister of accused No.1 by
\nname Pappa was assisting the same.  The deceased warned both accused No.1 and
\nhis sister and despite the same, the illicit relationship continued.  Some time
\nprior to the occurrence, the decease attacked the said Pappa with a knife,
\npursuant to which a case came to be registered in Crime No.106\/2005, as
\nevidenced by Ex.P-30, copy of FIR in the said case, the deceased was arrested
\nand he was in custody for some time and then he was bailed out.  Thereafter, the
\ndeceased was entertaining a fear that he would be murdered by accused No.1 and
\nhence in view of the same, along with his family, he shifted his residence from
\nSrivilliputtur to Malayadipatti in Rajapalayam within the jurisdiction of the
\nrespondent police.\n<\/p>\n
\t\t(c)On 03.11.2005 at about 9.15 a.m., when P.W.1 and P.W.4 were
\nproceeding in the Railway Feeder Road from West to East, they saw P.W.2.
\nThereafter,  P.W.1, P.W.2 and P.W.4 were proceeding in the said road and 30 feet
\nahead of them the deceased Servarayan was proceeding near A.K.T.R.Choultry.  At
\nthat time, accused Nos.1 to 7, armed with aruvals, came there from West and
\naccused No.1 instigated all the accused to attack the deceased and kill him and
\nwhen P.w.2 shouted not to do so, accused No.1 cut the deceased on his head with
\naruval and thereafter all the other accused attacked the deceased on different
\nparts of the body.  This was witnessed by P.Ws.1, 2 and 4.  At that time, shops
\nwere closed.  Thereafter, accused No.7 accompanied accused No.8, who came there
\nin a TVS 50 motorcycle and all other accused, along with weapons of crime, fled
\naway from the place of occurrence.  P.W.22, Head Constable, who came from the
\nvegetable market, found people running helter-skelter and came to the place of
\noccurrence.  P.W.23, Head Constable – Traffic Wing, also came to the place of
\noccurrence on seeing the people  actually running in panic.  When P.Ws.22 and 23
\nattempted to catch the accused, they escaped and ran away.  Based on a phone
\ncall, P.W.12, Ambulance Driver, came to the place of occurrence in his ambulance
\nand took the deceased to the Government Hospital, Rajapalayam.\n<\/p>\n
\t\t\t(d)P.W.16, the Doctor attached to Government Hospital,
\nRajapalayam, was on duty on 03.11.2005.  At about 9.50 a.m., the deceased was
\nbrought to the hospital by one Constable and also by P.W.1.  P.W.16 admitted him
\nand gave treatment.  Intimation was sent to the respondent Police Station.\n<\/p>\n
\t\t\t(e)P.W.25, the Sub-Inspector of Police, attached to the
\nrespondent Police Station, on receipt of message over phone at about 10.00 a.m.,
\nas to the admission of deceased in the hospital, proceeded to the hospital,
\nrecorded the statement of the deceased at 10.30 a.m., read it over to him and
\nobtained his left index finger impression on it.  The said statement is marked
\nas Ex.P-1.  P.W.1 has also singed in Ex.P-1 and his signature is marked as Ex.P-\n<\/p>\n
2.  P.W.16, the Doctor, who gave initial treatment to the deceased was also
\npresent during the time when the statement was recorded and she has also given a
\ncertificate, marked as Ex.P-22, to the effect that the deceased was conscious
\nenough to give the statement.  On the strength of Ex.P-1, P.W.25 registered a
\ncase in Crime No.857 of 2005 under Sections 147, 148, 341, 307 & 506(2) IPC and
\nEx.P-35, Printed FIR, was sent to the Court and copies of the same were
\nforwarded to the higher police officers for action.\n<\/p>\n
\t\t\t(f)P.W.16, the Doctor, after giving initial treatment advised
\nthat the deceased was to be taken to Government Hospital at Madurai.  Ex.P-21 is
\nthe Accident Register copy given by P.W.16.  The deceased died on the way to
\nMadurai and therefore he was brought back to the Rajapalayam Government
\nHospital.\n<\/p>\n
\t\t(g)On receipt of copy of Ex.P-35 FIR, at bout 3.00 p.m. on
\n03.11.2005, P.W.27, the Inspector of Police, took up the investigation,
\nproceeded to the place of occurrence and enquired the witnesses and recorded
\ntheir statements.  P.W.27, on receipt of death intimation, altered the case into
\nunder Section 302 IPC and sent   Ex.P-36, altered FIR, to the Court.  He
\nproceeded to the hospital and conducted inquest on the body of the deceased
\nServarayan between 4.30 p.m. and 5.45 p.m. in the presence of panchayatdars and
\nwitnesses and prepared Ex.P-37, the inquest report.  Thereafter,  he sent the
\nbody of the deceased for postmortem, through P.W.26, Grade-I Constable.\n<\/p>\n
\t\t\t(h)P.W.17, the doctor attached to the Government Hospital,
\nRajapalayam, conducted postmortem on the body of the deceased at 9.00 p.m. on
\n04.11.2005 and after postmortem she gave Ex.P-23, Postmortem Certificate,
\nopining that the deceased would have died of hypovolaemic shock.  After
\npostmortem, P.W.26 recovered M.O.4 – bloodstained shirt, M.O.5 – bloodstained
\nLungi and M.O.10 – Trouser,  from the body of the decease and handed over the
\nsame to the Investigator.\n<\/p>\n
\t\t(i)After sending the body for postmortem, P.W.27, the
\nInvestigator, proceeded to the place of occurrence at 6.00 p.m., made an
\nobservation in the presence of P.W.11, the Village Administrative Officer, and
\nanother and prepared Ex.P-3, the observation mahazar and also drew Ex.P-38, the
\nrough sketch.  In the presence of the same witnesses, from the place of
\noccurrence, P.W.27 recovered M.O.7 – bloodstained earth and M.O.8 – sample earth
\nunder Ex.P-4 Mahazar attested by the same witnesses.  Thereafter, P.W.28, the
\nInspector of Police, took up the further investigation in the case.\n<\/p>\n
\t\t(j)Pending investigation, P.W.28 came to know that Accused
\nNo.7 surrendered before the Judicial Magistrate, Sankarankovil.  He seized the
\nnote books of P.W.22 and P.W.23, the Head Constables, and they were marked as
\nExs.P-39 and P-40, respectively.   He examined the witnesses and recorded their
\nstatements.  On 07.11.2005 at about 6.00 hours, P.W.28 arrested accused Nos.1 to
\n6 and  when enquired them in the presence of P.W.11 and another, the accused
\ncame forward to give separate confessional statements and P.W.28 recorded the
\nsame and the admissible portions of the confessional statements of accused Nos.1
\nto 6 were marked as Exs.P-6 to 11, respectively and following the same, all the
\nsix accused took and produced six aruvals, the weapons of crime, which were
\nrecovered independently under different mahazars, marked as Exs.P-11 to Ex.P-16.
\nM.Os.1,2,3,9, 11 and 12 were the aruvals recovered from accused Nos.1 to 6.
\nThereafter the accused were sent for judicial custody.  P.W.28 took accused No.7
\ninto police custody and when enquired in the presence of P.W.13, the Village
\nAdministrative Officer and another, accused No.7 came forward to give a
\nconfessional statement, admissible portion of the same is marked as Ex.P-17,
\npursuant to which accused No.7 took and produced M.O.13 Aruval and the same was
\nrecovered under Ex.P-18, Mahazar, attested by the same witnesses. Thereafter he
\nproduced accused No.7 before the Court. On 14.11.2005 at about   6.00 a.m.,
\nP.W.28 arrested accused No.8 and when examined in the presence of P.W.14,
\nVillage Administrative Officer, and another, accused No.8 came forward to give a
\nconfessional statement, admissible portion of the same is marked as Ex.P-19,
\npursuant to which he took and produced M.O.6 TVS Super Excel Vehicle bearing
\nReg.No.TN-67 Q 2343 under Ex.P-20 Mahazar attested by the same witnesses.  Ex.P-
\n41 is the Registration Certificate of M.O.6.   He examined witnesses and
\nrecorded their statements.\n<\/p>\n
\t\t(k)On 22.11.2005, P.W.28 gave Ex.P-27 requisition to the court
\nfor conducting identification parade.\tIdentification parade was conducted on
\n30.11.2005 in the presence of P.W.19, the Judicial Magistrate, Sattur, in which
\nP.W.22 and P.W.23, the Constables, identified the accused.   Ex.P-28 is the
\nsummons sent to the accused and Ex.P-29 is the Identification Parade
\nProceedings.\n<\/p>\n
\t\t(l)P.W.28, the Inspector of Police, examined the witnesses and
\nrecorded their statements.  He gave  Ex.P-31, requisition to the Court for
\nsending the material objects for chemical analysis and accordingly the same were
\nsent to Forensic Department under Ex.P-32, the letter of the Court, which
\nresulted in three reports, namely Ex.P-24, the Chemical Examiner’s Report, Ex.P-
\n25, the Serologist’s Report and Ex.P-27, the Soil Analysis Report.  He examined
\nthe witnesses and recorded their statements.  On completion of investigation,
\nP.W.28 filed final report against the accused under Sections 147 148, 341,
\n506(2), 302, 120(B),212 and 149 IPC on 27.12.2005.\n<\/p>\n
\t\t3.After committal proceedings, the case was taken on file by
\nthe Sessions Court in S.C.No.85\/2006 and necessary charges were framed.  To
\nprove the charges against the accused, the prosecution examined 28 witnesses as
\nP.Ws.1 to 28 and marked 43 documents as Exs.P-1 to P-43 and produced M.Os.1 to\n<\/p>\n
13.  On completion of the evidence on the side of the prosecution, when the
\naccused were questioned under Section 313 of the Criminal Procedure Code about
\nthe incriminating circumstances found in the evidence of prosecution witnesses,
\nthey denied all of them as false.  On the side of defence, one Balamurugan, Sub-
\nInspector of Police, was examined as D.W.1 and Exs.D-1 to D-3 were marked.  The
\ntrial court, after hearing the parties, took the view that the prosecution has
\nproved certain charges against the appellants\/accused Nos.1 to 7 beyond
\nreasonable doubt, found them guilty thereunder and sentenced them as referred to
\nabove.  Hence these appeals at the instance of the appellants\/accused Nos.1 to\n<\/p>\n
7. Insofar as the other charges levelled against accused Nos.1 to 7 and all the
\ncharges in respect of other accused, namely accused No.8, the trial judge found
\nthat the prosecution has not proved the case beyond reasonable doubt and hence a
\njudgment of acquittal was recorded.\n<\/p>\n
\t\t4.Advancing arguments on behalf of the appellants in
\nCrl.A.No.270 of 2009, the learned senior counsel Mr.Shanmuga Velayutham would
\nmake the following submissions:\n<\/p>\n
\t\t\t(a)In the instant case, the gist of the case of the
\nprosecution is that the crime has taken place at about 9.15 a.m. on 03.11.2005
\nand immediately the injured was taken to the hospital and Ex.P-1, the statement
\nof the deceased, was recorded at about 10.30 a.m. by P.W.25, the Sub-Inspector
\nof Police and on the strength of which a case came to be registered at the
\nrespondent Police Station at 11.30 a.m. and the FIR has reached the Court at
\n8.00 p.m. and, thus, there was a delay of 3-1\/2 hours in the FIR reaching the
\nCourt and the prosecution had no explanation to offer and this itself would
\nclearly indicate, along with other circumstances, that the case could not have
\nbeen registered as put-forth by the prosecution.\n<\/p>\n
\t\t(b)The prosecution relied on the evidence of P.Ws.1,2, 22 and
\n23 to prove the occurrence.  Insofar as P.W.22 was concerned, he was a Head
\nConstable and P.W.23 was concerned, he was also a Head Constable attached to the
\nTraffic Wing of Rajapalayam Police and from the evidence of these two
\nconstables, it is quite clear that they have come to the spot after the
\noccurrence was over.  Apart from that the trial judge was also not ready to
\nbelieve their evidence.  Thus the prosecution had only the evidence of P.Ws.1
\nand 2.\n<\/p>\n
\t\t(c)P.W.1 is the brother and P.W.2 is the younger maternal aunt
\nof the deceased and when they were examined before the Court, P.W.2 has
\ncategorically admitted that her vision was affected and therefore she could not
\nidentify the accused persons who were standing before the Court and insofar as
\nP.W.1 is concerned, at the time of cross-examination, he has admitted that he
\nconsumed liquor on the previous night and thus his evidence could not be proper
\nand unacceptable by the court.\n<\/p>\n
\t\t\t(d)Learned senior counsel would further add that in the
\ninstant case, P.Ws.1 and 2 could not have been in the place of occurrence at
\nall. The earliest document which has come into existence was the Accident
\nRegister Copy, which is marked as Ex.P-21 and given by P.W.16, the Doctor and a
\nperusal of the same would clearly indicate that there was alteration in the
\nnumber of assailants which has been altered from 5 to 6, 6 to 7  and apart from
\nthat it would be clear that the name of P.W.1 ‘Irulappan’ has been inserted
\nafter it was recorded that the deceased was brought by a constable and thus it
\nwould be indicate of the fact that P.W.1 could not have been in the place of
\noccurrence.  Added further the learned senior counsel, insofar as the ambulance
\ndriver, who has been examined as P.W.2, he has categorically stated that
\nconstable alone accompanied the deceased in the ambulance but he has not stated
\neither P.W.1 or P.W.2 accompanied him and all would go to show that P.W.1 could
\nnot have been in the place of occurrence.  Added further, the statements of
\nP.Ws.1 and 2 have been recorded on the very day of occurrence, i.e. 03.11.2005
\nbut, the same have reached the court only on 05.11,.2005 and thus the delay of
\ntwo days, coupled with the fact that FIR has reached the Court after 8-1\/2
\nhours delay, would clearly indicate that FIR could not have come into existence
\nas put-forth by the prosecution.\n<\/p>\n
\t\t(e)Added further the learned senior counsel, according to the
\nprosecution, the deceased was immediately taken to the hospital, where he was
\nadmitted by P.W.16, the Doctor and he was given treatment and P.W.25, the Sub-
\nInspector of Police, would claim that on receipt of  intimation he went to the
\nhospital and thereafter recorded the statement of the deceased, which is marked
\nas Ex.P-1, but the same could not have come into existence as put-forth by the
\nprosecution.  P.W.16, the Doctor, has categorically stated at the time of cross-
\nexamination  that there was profuse bleeding and thus though she has certified
\nthat the patient was conscious at the time when he gave statement, in view of
\nthe fact she has not given a certificate that the patient was in a fit statement
\nof mind to give declaration, as law would warrant, while giving such a
\ndeclaration.\n<\/p>\n
\t\t(f)In the instant case, subsequently the injured died and his
\nstatement, which is marked as Ex.P-1, has reached the stage of dying
\ndeclaration.  Learned senior counsel relying on the decision of the Apex Court
\nin Laxman  v.  State of Maharashtra,<\/a> reported in 2002 SCC (cri) 1491, would
\nsubmit that even when a dying declaration was recorded by a Judicial Magistrate,
\nthe conscious of the declarant is not sufficient but, it must be certified that
\nhe was in a fit state of mind.  In the instant case, P.W.16, the Doctor, though
\ncertified that the deceased was conscious, she has not recorded anything that he
\nwas in a fit statement of mind to give statement.  In such circumstances, the
\nstatement cannot be taken into account.\n<\/p>\n
\t\t(g)Added further, the narration in Ex.P-1 would clearly
\nindicate that six persons were attributed with overt acts  at different parts of
\nthe body and once such profuse bleeding was there he could not have given such a
\nstatement, which went for an half-an-hour,  and thus this is a created one in
\norder to suit for the prosecution case and all would clearly indicate that the
\nprosecution has miserably failed to prove its case.\n<\/p>\n
\t\t(h)Added further the learned counsel, insofar as the recovery
\nof weapons of crime is concerned, the investigator would claim that accused
\nNos.1 to 6 were arrested on 07.11.2005 and pursuant to separate  confessional
\nstatements given by them, they produced the weapons of crime but, the trial
\ncourt did not believe the evidence adduced by the prosecution in respect of
\narrest and recovery for the reason that before the trial court P.w.1 has stated
\nthat the accused persons were actually in the custody of police on the next of
\nday occurrence and it would be clearly indicative of the fact that they were
\nunder the custody of the police for three days and thus the claim of the
\nInvestigator that the accused were arrested on 7.11.2005 and pursuant to their
\nconfessional statements the weapons of crime were recovered should be rejected
\nand that part of the evidence cannot be relied upon by the prosecution.\n<\/p>\n
\t\t5.Advancing arguments on behalf of accused Nos.3 and 4,
\nMr.T.Lajapathi Roy, learned counsel would submit that in the evidence of P.Ws.1
\nand 2, there is vital discrepancy insofar as the overt acts attributed t accused
\nNos.3 and 4 are concerned.  In the evidence of P.Ws.1 and 2, who are the eye-
\nwitnesses relied on by the court, Accused No.3, according to P.W.1, has given a
\ncut on the left leg of the deceased but, P.W.2 has stated that accused No.3 gave
\na cut on the left hand and insofar as accused No.4 is concerned, P.W.1 has
\nstated that he cut the deceased on the right hand on the contrary it is deposed
\nby P.W.2 that accused No.4 has cut on the left leg and thus there is clear
\ndiscrepancy as to the overt acts attributed to accused Nos.3 and 4 in the
\nevidence of P.Ws.1 and 2.  Apart from that P.W.7, a shopkeeper near the place of
\noccurrence, has turned hostile.  Added further, the learned counsel adopted the
\narguments of the learned senior counsel.\n<\/p>\n
\t\t6.Mr.V.Kathirvelu, learned counsel appearing for accused No.5,
\nwould submit that P.Ws.12 has been examined as owner of the ambulance vehicle.
\nAccording to him, he has never stated about the presence of P.Ws.1 and 2 in the
\nplace of occurrence and further when the deceased was taken to the hospital and
\nadmitted in the hospital, in Ex.P-21, Accident Register Copy, the name of P.W.1
\nhas been subsequently included  and this would clearly indicate that he was not
\nall present in the place of occurrence and at the time of occurrence.  Added
\nfurther, accused No.5 was shown to have participated in the occurrence but he
\nwas working as a Nightwatchman in a Trust and Documents are produced in order to
\nshow that he attended duty at the night hours of 03.11.2005 and the occurrence
\nwas taken place on the morning hours and had it been true that he participated
\nin the occurrence, he could not have come for the duty at the night hours and
\nthis would falsify the prosecution case.  Insofar as P.W.11, the Village
\nAdministrative Officer is concerned, sniffer dog was brought to the place of
\noccurrence and if really the culprits were known as found in Ex.P-1, there was
\nno necessity for bringing the sniffer dog at about 6.00 p.m. and this, coupled
\nwith the fact that FIR has reached the court  only  at 8.00 p.m.,  would clearly
\nindicate that the<\/p>\n
FIR has come into existence after a long time.  Added further the learned
\ncounsel, the injuries which were attributed at accused No.5 was not found in the
\nevidence and all would clearly indicate that the prosecution has miserably
\nfailed to prove its case and hence the appellants are entitled for an order of
\nacquittal at the hands of this Court.   He would further submit that the trial
\njudge was not ready to accept the evidence of the same witnesses in respect of
\naccused No.8 but, he applied different parameters and found the
\nappellant\/accused Nos.1 to 7 guilty and therefore they are entitled for an order
\nof acquittal.\n<\/p>\n
\t\t\t7.The court heard the learned Additional Public Prosecutor
\nappearing for the State on the submissions made by the learned senior counsel
\nfor the accused Nos.1,2,6 and 7 and learned counsel for accused Nos.3 and 4 as
\nwell as accused No.5  and paid its anxious considerations to the rival
\nsubmissions and perused the materials available on record.\n<\/p>\n
\t\t\t8.It is not in controversy that one Servarayan, brother of
\nP.W.1, following an indent that took place at about 9.15 a.m. on 03.11.2005 at
\nthe place of occurrence was taken to the Government Hospital, Rajapalayam, in
\nthe ambulance driven by P.W.12 and initial treatment was given to him by P.W.16,
\nthe doctor, at    9.50 a.m. on the very day.  Following the intimation received
\nfrom the Hospital, P.W.25, the Sub Inspector of Police attached to the
\nrespondent police station, has gone  to the hospital and recorded the statement
\nfrom the deceased Servarayan, which is marked as Ex.P-1, and on the strength of
\nwhich a case came to be registered in Crime No.857\/2005 under Sections 148, 341,
\n307 and 506(2) IPC, initially.  Despite the treatment given, the injured
\nbreathed his last and therefore the case was converted into one under Section
\n302 IPC.  Following the inquest made by P.W.27, the Investigator, the dead body
\nwas subjected to postmortem by P.W.17, the doctor.  P.W.17 has categorically, as
\na witness before the Court as well as in the postmortem certificate Ex.P-23, has
\nstated that the deceased died out of hypovoleaemic shock.  This fact that
\nServarayan died out of homicidal violence was never the subject matter of
\ncontroversy before the trial court and hence it was recorded so rightly by the
\ntrial judge.\n<\/p>\n
\t\t\t9.In order to substantiate its case that all the accused
\npersons, armed with deadly weapons, attacked the deceased at the time of
\noccurrence, the prosecution rested its case on the evidence of four eye-
\nwitnesses, who were P.Ws.1, 2, 22 and 23 and also on other circumstantial
\nevidence.  The trial judge has rightly rejected the evidence of P.Ws.22 and 23
\nfor two reasons.  Firstly, they were the Head Constables attached to the
\nRajapalayam Police  and secondly, admittedly, they have come to the place of
\noccurrence after the occurrence was over and hence their evidence do not serve
\nany purpose.  But, the trial judge has relied on the evidence of P.W.1 and
\nP.W.2.  From the evidence of P.Ws.1 and 2, it would be quite clear that P.W.1 is
\nthe brother and P.W.2 is the younger maternal aunt  of the deceased.  Merely on
\nthe account of relationship, their evidence cannot be rejected but, before
\nacceptance, the test of careful scrutiny must be applied.\n<\/p>\n
\t\t10.Insofar as the evidence of P.W.2 is concerned, the Court is
\nof the considered opinion that her evidence cannot be accepted for the simple
\nreason that though P.W.2 has claimed that already the accused are well known to
\nher, she has categorically deposed at the time when she was examined before the
\ntrial Court that she was visually affected and she could not identify the
\naccused persons properly.  Under the circumstances, it would not be safe to
\nsustain a conviction on her evidence.  But, fortunately the prosecution to its
\nadvantage had the evidence of P.W.1.  P.W.1 has categorically stated that he,
\naccompanied by others, was proceeding near the place of occurrence and at that
\ntime the deceased was proceeding just 30 feet in front of them and at that time
\nall the accused persons, armed with deadly weapons, came there and attacked the
\ndeceased indiscriminately.  The occurrence was  at 9.15 a.m. and  immediately
\nthe deceased was taken in the ambulance driven by P.W.12 to the Government
\nHospital, Rajapalayam where P.W.16, the doctor, has given treatment to him at
\n9.50 a.m., as could be seen from Ex.P-21, the Accident Register copy.\n<\/p>\n
\t\t\t11.Much comment was made that P.W.12, the Ambulance Driver,
\nhas not stated in his evidence that either P.W.1 or P.W.2 accompanied the
\ndeceased in the ambulance driven by him and hence the evidence of P.W.1 should
\nnot be relied.  Further comment was made that in Ex.P-21, the Accident Register
\nCopy,  P.W.16 has inserted the name of P.W.1 subsequently, along with mentioning
\nof the presence of a Constable and hence the evidence of P.W.1 should not be
\nrelied.  But, this contentions in the considered opinion of the Court, have got
\nto be rejected.  It was P.W.16, the Doctor, who had actually recorded in the
\nAccident Register Copy Ex.P-21 that P.W.1 was actually present at the time of
\nthe admission of the deceased in the Hospital.  P.W.1 has categorically given
\nevidence that he was present at the the time of occurrence.  The presence of
\nP.W.1 as spoken to by him and also as found in Ex.P-21 Accident Register Copy
\nwould clearly indicate that he was actually present at the spot at the time of
\noccurrence and also at the time of the admission of the deceased in the
\nhospital.  Further, P.W.16, the Doctor, at the time of examination in the Court
\nhas categorically stated that P.W.1 was also present at the time of admission of
\nthe deceased.  This fact was not even denied by the defence by putting a
\nsuggestion to P.W.16, the Doctor, at the time of cross-examination and thus the
\nevidence of P.w.16 as to the presence of P.W.1 at the time of admission of the
\ndeceased in the hospital was to be taken as an admitted fact and remain in the
\nevidence and therefore the Court is of the opinion that the evidence of P.W.1,
\ndespite full cross-examination, withstood the test and therefore the same has
\ngot to be accepted by the Court.\n<\/p>\n
\t\t12.The another strong piece of evidence available to the
\nprosecution, in the considered opinion of the Court, is Ex.P-1, the Statement,
\ngiven by the deceased at the hospital to P.W.25, the Sub-Inspector of Police.
\nThe occurrence has taken place at 9.15 a.m. and the deceased had been taken to
\nthe hospital and given treatment by P.W.16, the Doctor, at 9.50 a.m. and
\nimmediately on receipt of intimation from the hospital, P.W.25, the Sub-
\nInspector of Police, has gone to the hospital and recorded the statement of the
\ndeceased, which is marked as Ex.P-1 and after the death of the deceased it has
\nattained the status of dying declaration.  At this juncture, learned senior
\ncounsel for the appellants made a caution that P.W.16 has given Ex.P-22
\ncertificate only to the effect that the patient was conscious and she has not
\nstated that the patient was in a fit state of mind to give a statement and hence
\nEx.P-1 cannot be taken as a dying declaration and it would fall short of the
\nsame and in support of the said contention the learned senior counsel for the
\nappellants relied on the decision of the Supreme Court in Laxman vs. State of
\nMaharashtra,<\/a> reported in 2002 SCC (cri) 1491.  The said decision was applicable
\nto a dying declaration recorded by the Judicial Magistrate and, in the instant
\ncase, the court is unable to agree with the contention put-forth by the counsel.
\nWhen the patient was actually admitted by P.W.16 and given initial treatment,
\nP.W.25 has recorded the statement and P.W.16, the doctor, was present at the
\ntime of recording the statement and she has given a certificate that the patient
\nwas conscious and not stating the words  ‘fit state of mind’ leaves no doubt in
\nthe mind of the Court on the recording of the statement by P.W.25 in the
\npresence of P.W.16 from the deceased at the hospital and unless and until the
\ndeceased was conscious and also in fit state of mind, he could not have given
\nEx.P-1 statement.   Apart from that, P.W.16, the Doctor, has categorically
\nstated, at the time of chief-examination, that at the time when the statement
\nwas recorded, the patient was not only conscious but he was in a fit state of
\nmind and thus the court is unable to see any reason why the evidence of P.W.16,
\nthe Doctor, should be looked with suspicion merely because Ex.P-1 was not
\nrecorded by the Judicial Magistrate but recorded by the Sub-Inspector of Police.
\nTherefore, the Court is unable to see any reason to reject the said document.\n<\/p>\n
\t\t\t13.It is true, there was profuse bleeding and even then
\nP.W.16, the doctor, has certified that the patient was conscious and he has
\ngiven evidence before the Court that he was not only conscious but also he was
\nin a fit statement of mind.  All would clearly indicate that Ex.P-1 document was
\nnot only a statement recorded by P.W.25   but also a Dying Declaration.  Now a
\nperusal of Ex.P-1 would clearly indicate the participation of all the accused
\nperson in the commission crime and attacked the deceased.  The presence of P.W.1
\nand P.W.2 is also spoken to in Ex.P-1 document.  This itself would also indicate
\nthe presence of P.W.1 at the spot when the occurrence has taken place and thus,
\nin the considered of the Court, Ex.P-1 has to be considered as a dying
\ndeclaration in the eye of law and this document is another strong piece of
\nevidence available in favour of the prosecution.\n<\/p>\n
\t\t14.The evidence adduced by the prosecution  as to the arrest
\nof accused and recovery of weapons of crime from the accused persons pursuant to
\ntheir confessional statements recorded by the Investigator, as claimed by the
\nprosecution, as rightly contended by the learned counsel for the appellants, has
\ngot to be rejected for the simple reason that according to P.W.27, the
\nInvestigator, the accused No.1 to 6 were arrested on 07.11.2005 but, according
\nto P.w.1, the accused were in the custody of Police even prior to 07.11.2005 and
\nhence that part of the evidence cannot be accepted.\n<\/p>\n
\t\t\t15.Further, the other contention put-forward by the learned
\ncounsel for the appellants that there was a delay in the FIR reaching the Court
\nat 8.00 p.m. and hence the FIR has got to be looked with a doubt as it goes to
\nthe root of the matter cannot be countenanced for the simple reason that after
\nthe occurrence was over, immediately the deceased was taken to the hospital and
\nhis statement was recorded and thereafter a case came to be registered by the
\nSub-Inspector of Police and the investigation was actually commenced by the
\nInvestigation Officer immediately.  It is true the FIR has reached the Court at
\n8.00 p.m.   The only ground of delay in FIR reaching the Court, in the
\nconsidered opinion of the Court, itself cannot be a reason to reject the
\nprosecution case while all other evidence are available for the prosecution.\n<\/p>\n
\t\t16.Learned counsel for the appellants tried to make much
\ncomment on Ex.P-21, the Accident Register Copy, where number of assailants, by
\nmaking alterations,   has been increased initially from 5 to 6 and thereafter 6
\nto 7.  The Court is of the opinion that this cannot be given much weight for the
\nsimple reason that when the decease was taken to the Hospital, one could
\nvisualize the anxiety with which he would have made the statement to the Doctor
\nand hence the same cannot be given much weightage.  Further, pursuant to the
\nintimation received, P.W.25, the Sub-Inspector of Police, has gone to the
\nHospital and recorded the statement of the deceased and the same is marked as
\nEx.P-1.  Therefore, the said document has got to be acted upon.  Thus, in the
\nconsidered opinion of the Court, on a careful scrutiny of the entire material,
\nthe prosecution has brought home the guilt of the appellant\/accused Nos.1 to 6
\non the basis of the evidence of P.W.1, an eye-witness and also the  Dying
\nDeclaration, marked as Ex.P-1 and they are pointing to the complicity of the
\nappellants\/accused Nos.1 to 6 in the crime.\n<\/p>\n
\t\t17.Now, the contention put-forward by the learned counsel for
\naccused Nos.3 and 4 that there are some discrepancies in the evidence of P.Ws.1
\nan 2 regarding the overt acts attributed to accused No.3 and accused No.4 cannot
\nbe looked into for the reason that the evidence of P.W.2 need not be acted upon
\nand thus the evidence of P.W.1, coupled with Ex.P-1 Dying Declaration, would be
\nsuffice, in the opinion of the court, to  reach the conclusion that the
\nappellants\/accused No.1 to 6 are to be found guilty of the charges levelled
\nagainst  them  and the trial court has marshalled the evidence proper and found
\nthe appellants\/accused Nos.1 to 6 guilty and convicted them and there is nothing
\nto interfere with the same either factually or legally  and  consequently all
\nthe contentions raised by the learned counsel for the appellants do not merit
\nacceptance and all the three appeals are liable to be dismissed.\n<\/p>\n
\t\t\t18.Learned counsel for the appellants brought to the notice of
\nthe Court is that only two injuries which were attributed to Accused No.2 and
\nAccused No.6 were found to be fatal and insofar as the other injuries are
\nconcerned  they remain unaccounted and hence this aspect has got to be looked
\ninto by the Court.  The court is unable to agree with the said contention of the
\nlearned counsel for the appellants for the simple reason that the occurrence has
\ntaken place in a public place and all the accused persons 1 to 7 were actually
\narmed with deadly weapons and in such circumstances, without a common object and
\nin furtherance of the common object, they could not have participated in the
\ncrime and thus they were rightly charged under Section 302 read with Section 149
\nIPC by the trial judge.  In view the same, the court is unable to agree with the
\ncounsel for the appellants that only two injuries were fatal and hence  the
\naccused who were responsible for those injuries alone should be found guilty
\nleaving others cannot be accepted.\n<\/p>\n
\t\t\t19.In the result, all the three criminal appeals are
\ndismissed.  The judgment of the trial Court is confirmed.\n<\/p>\n
gb\t\t\t \t\t\t\t\t\t\t<\/p>\n
To<\/p>\n
1.The Principal Sessions Judge,
\n  Virudhunagar District at
\n  Srivilliputtur.\n<\/p>\n
2.The Inspector of Police,
\n  Rajapalayam South Police Station,
\n  Virudhunagar District.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Muniyandi vs The State on 20 July, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 20\/07\/2010 Coram The Honourable Mr.Justice M.CHOCKALINGAM and The Honourable Mr.Justice M.DURAISWAMY Criminal Appeal (MD) No.250 of 2009 Criminal Appeal (MD) No.270 of 2009 and Criminal Appeal (MD) No.306 of 2009 Muniyandi, S\/o.Vellaian … Appellant in […]<\/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-163222","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMuniyandi vs The State on 20 July, 2010 - 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\/muniyandi-vs-the-state-on-20-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Muniyandi vs The State on 20 July, 2010 - 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