{"id":177090,"date":"2003-12-12T00:00:00","date_gmt":"2003-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ganesan-muthusamy-vs-state-inspector-of-police-on-12-december-2003"},"modified":"2015-03-20T14:01:41","modified_gmt":"2015-03-20T08:31:41","slug":"ganesan-muthusamy-vs-state-inspector-of-police-on-12-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ganesan-muthusamy-vs-state-inspector-of-police-on-12-december-2003","title":{"rendered":"Ganesan @ Muthusamy vs State : Inspector Of Police on 12 December, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Ganesan @ Muthusamy vs State : Inspector Of Police on 12 December, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 12\/12\/2003\n\nCORAM\n\nTHE HON'BLE MR. JUSTICE P. SATHASIVAM\nAND\nTHE HON'BLE MR. JUSTICE M. THANIKACHALAM\n\nC.A.NO.534 OF 1995\n\n1.     Ganesan @ Muthusamy\n2.      Pazhanimuthu                            ..Appellants.\n\n-Vs-\n\nState : Inspector of Police\nThittakudi\n(Cr.No.138\/93 of Ramanathan P.S)                ..Respondents.\n\n\n        Appeal filed under Section 374 Cr.P.C.  against the judgment  made  in\nS.C.No.123\/94 dated 21.4.1995 on the file of the Learned Sessions Judge, South\nArcot Vallalar Division, Cuddalore.\n\n!For Appellant-1:       Mr.  V.  Gopinath\n                        Senior Counsel\n                        for Mr.V.  Girishkumar\n\nFor Appellant-2:        Mr.  G.R.  Edmund\n\n^For Respondent :       Mr.  V.  Jayaprakash Narayanan\n                        Govt.  Advocate (Crl.  side)\n\n:J U D G M E N T\n<\/pre>\n
(Judgment of the Court was delivered by M.THANIKACHALAM, J.)<\/p>\n
        This  appeal  is directed against the conviction and sentence, slapped
\nby the Principal Sessions Judge,  erstwhile  South  Arcot  Vallalar  Division,
\nCuddalore, in S.C.No.123\/94 dated 21.4.1995.\n<\/p>\n
        2.      The  respondent police laid a final report against the accused
\nappellants, seeking conviction under Section  302  I.P.C.,  alleging  that  on
\n5.5.1993  at  about  1.00  p.m.,  both the accused with an intention to commit
\nmurder, armed with reapers, joined together and voluntarily caused hurt to one
\nMalarkodi, in the verandah of  Pachaiamman  Temple,  Vagaiyur,  resulting  her
\ndeath, instantaneously.\n<\/p>\n
        3.      The  learned  Sessions  Judge,  satisfying  herself that prima
\nfacie case has been made out, to  frame  charges,  did  so,  but  the  accused
\nappellants pleaded not guilty, thereby seeking trial.\n<\/p>\n
        4.      On behalf of the prosecution, 13 witnesses have been examined,
\nseeking support from 21 exhibits and 21 material objects.\n<\/p>\n
        5.      On  behalf of the accused, to prove P.W.2 could not be the eye
\nwitnesses for the incident, as well as to prove that the second accused  could
\nnot  have  been  present  at  the scene of crime, during the alleged incident,
\nD.Ws.1 to 3 were examined.\n<\/p>\n
        6.      The learned trial Judge, perusing the materials placed  before
\nher,  and  considering the effect of oral as well as the documentary evidence,
\nwas of the view that  a  definite  case  was  made  out,  for  the  murder  of<\/p>\n
Malarkodi,  against both the accused and in that view, the learned trial Judge
\nconvicted and sentenced both the accused, to undergo life imprisonment,  which
\nis impugned in this appeal.\n<\/p>\n
        7.      The facts necessary to dispose of the case:\n<\/p>\n
        (a)     Thiru  Elangovan  (P.W.3) and one Malarkodi (deceased) are the
\nhusband and wife and their  daughters  are  Palaniammal  (P.W.2)  and  Indrani
\n(P.W.5).  Accused  1  &  2  are  closely  related.    All are the residents of
\nRamanatham.\n<\/p>\n
        (b)     The first accused, developed illicit intimacy with  Malarkodi,
\nwhen her husband went abroad.  At the instance of the first accused, Malarkodi
\nwas  having  a  Tea Stall near the road, not only in the property of the first
\naccused, but also encroaching  upon  the  poramboke  land,  under  the  banner
\n“Malarkodi Tea Stall”.  In the money transaction between the first accused and
\nMalarkodi, there was some dispute, causing strained relationship.\n<\/p>\n
        (c)     The  son  of  the  second accused had love affairs with P.W.5,
\nIndrani, which was not recognised or approved by the accused.   Malarkodi  was
\ninsisting,  that  the  son  of  the  second accused should marry her daughter,
\nIndrani.  To avoid this, the second accused sent his son abroad, which  caused
\nfrustration to Malarkodi.\n<\/p>\n
        (d)     The request of the first accused, to vacate Malarkodi from tea
\nstall  ended  in  vain  and  therefore,  he  reported  the matter to Panchayat
\nPresident viz., Palanimuthu, P.W.6.  The place, where Malarkodi was having tea
\nstall, was measured and found that the tea stall was in the highway,  covering
\nan extent of 2 1\/2 cents, including 1\/4 cent of the land of the first accused,
\nas spoken  by  P.W.7.    Malarkodi  asserting  that  she  will  not vacate the
\npremises,  demanded  a  sum  of  Rs.60,000\/-  and  jewels  also,  before   the
\nPanchayatdar, which was not accepted by the first accused.\n<\/p>\n
        (e)     Due  to  the  above conduct of Malarkodi, both the accused had
\ndecided to commit the murder of Malarkodi, in order to eradicate all problems.
\nMalarkodi, because of the threat committed by the first accused,  apprehending
\ndanger  to  her  life,  and  to  expose  the  same, in the event of happening,
\ntattooed in her left hand  that  @fnzrd;  vd;fpw  Kj;  Jrhkp  vd;gtuhy;  vdf;F
\ncapUf;F Mgj;J.  ,g;gof;F kyh;f;bfho@\/<\/p>\n
        (f)     On  5.5.1993,  at about 1.00 p.m., Malarkodi and her daughter,
\nP.  W.2, went to the Pachaiamman Temple for worship, in a cycle M.O.10,  hired
\nby P.W.2.      After   reaching  the  temple,  leaving  the  cycle-M.O.10  and
\nchappal-M.O.11, both worshipped Pachaiamman,  offering  coconut,  betel  nuts,
\netc.  just  in front of the temple since closed.  At the request of Malarkodi,
\nP.W.2 went to another sanctum, to worship Lord Subramania.  At that time, both
\nthe accused armed with reapers, came there, in a TVS 50 – M.O.12 and assaulted
\nMalarkodi, indiscriminately all over the body including the head.  On  hearing
\nthe  noise  of  Malarkodi and seeing the occurrence, P.W.2 rushed to the spot,
\nwhere she was warned by the accused.  Thereafter, the accused fled away in the
\nTVS-50.  P.W.2 noticed oozing out of blood and brain from the head.  Perturbed
\nby this incident, she ran to the village and informed her  father,  P.    W.3,
\nThiru Elangovan.\n<\/p>\n
        (g)     P.W.3,  the  husband  of  Malarkodi,  on  information  by  her
\ndaughter about the incident, reached the temple and confirming the death, went
\nto Akkanur, to inform the  incident  to  the  Village  Headman,  P.W.1.    The
\ninformation  furnished  by P.W.3, was reduced into writing by P.W.1 as Ex.P.1.
\nThen, P.W.1  also  went  to  the  scene  of  crime  and  affirmed  the  death.
\nThereafter,  P.W.1  prepared  his  special  report,  Ex.P.2  and requested his
\nmenial, Thangavelu to hand over Exs.P.1 and P2, to Ramanatham Police Station.\n<\/p>\n
        (h)     Thiru Rajendran, P.W.10, the then  Sub  Inspector  of  Police,
\nRamanatham  Police  Station, on receipt of Exs.P.1 & P2 through Thangavelu, on
\n5.5.1993 at about 8.30 p.m., registered a case in Cr.NO.138\/93  under  Section
\n302 I.P.C.   under  Ex.P.10.    The  matter  was  informed to the Inspector of
\nPolice, for investigation.\n<\/p>\n
        (i)     Thiru A.  Vinayagam (P.W.12), on information from P.W.10, went
\nto Ramanatham Police Station, at about 9.30 p.m.  obtained the copy of  F.I.R.
\nImmediately,  he  rushed to the scene of crime, at about 10.00 p.m., inspected
\nthe premises, drawn the sketch Ex.P.13 and  prepared  Ex.P.3  mahazar  in  the
\npresence  of  P.Ws.1,  and another witness, in addition he made an arrangement
\nfor taking photographs (M.O.21).  He had examined P.Ws.1, 2, 3 & 4 on the same
\nday and recorded their statements.  Between 12.30 a.m.   and  3.30  a.m.    on
\n6.5.1993,  he  conducted  inquest  and  prepared  Ex.P.14  in  the presence of
\nPanchayatdars.  Thereafter, with the requisition, Ex.P.11, the body  was  sent
\nthrough P.W.9 for postmortem.\n<\/p>\n
        (j)     Dr.  Mangayarkarasi on receipt of the requisition, Ex.P.11, on
\n6.5.1993 at  about  11.00  a.m.   and on identification of the body, conducted
\nautopsy.  She had noticed Tattoo mark on the left  hand  of  Malarkodi,  which
\nread @fnzrd;  vd;fpw  Kj;Jrhkpahy;  vd;  capUf;F Mgj;J.  ,g;gof;F kyh;f;bfho@.
\nShe had also noticed the following external injuries  and  some  corresponding
\ninternal injuries.\n<\/p>\n
External Injuries:-\n<\/p>\n
1.      Incised  wound  of about 9 inches in the parietal bone, bony deep with
\nbrain matter coming out.\n<\/p>\n
2.      Incised wound of about 2 x 2″ over occipital area.  Right ear lobe had
\nbeen cut off.  Left ear normal<\/p>\n
3.      Left arm big contusion of about 4″ just above the elbow joint.\n<\/p>\n
4.      A linear contusion in the left fore arm about 6″ x 3″ just  below  the
\nelbow joint.\n<\/p>\n
5.      A lacerated wound about 1 x 1″ just below the above wound.\n<\/p>\n
6.      Cyanosin  of  all  fingers  except  thumb pale out had the abrasion of
\nabout 3″ x 2 cm on the right fore arm.  &       Contusion of right had  palmar
\naspect.\n<\/p>\n
The  doctor  P.W.11,  considering  the effect of the injuries, opined that the
\ndeceased died of shock and hemorrhage, due to the injury to the vital  organs,
\nwhich are incorporated in Ex.P.12.\n<\/p>\n
        (k)     After the postmortem, M.Os.13 to 17 recovered from the body of
\nMalarkodi were handed over to the Inspector, which were recovered by him under
\nEx.P.15 on  6.5.1993  itself.   He recovered M.Os.1 to 9 under Ex.P.4 from the
\nscene of crime, in the presence of P.W.4 and another.  On the same day, he had
\nalso recovered M.Os.11 & 12 under Ex.P.5.  On information, P.W.12 arrested the
\naccused at about 10.00 a.m.  on 7.5.1993 at Labbai Kudikadu  Bus  Stand.    On
\nexamination,  the  first  accused gave Ex.P6 confession and the second accused
\ngave Ex.P7 confession, in the presence of P.W.10 and another.  In pursuance of
\nthe confession statements, M.Os.12 and M.O.18 were recovered along with M.O.19
\nunder Exs.P8 & P9 respectively.\n<\/p>\n
        (l)     In continuation of the investigation,  P.W.12  examined  other
\nwitnesses  also,  recovered Ex.P.21 (Hired Cycle Register Book) from the cycle
\nshop.  Properties recovered or  seized  during  investigation  were  sent  for
\nchemical  examination,  as  per  the request under Ex.P.16, which was complied
\nwith by the Court under, Ex.P.17, inviting  reports  Exs.P.18  &  19.    After
\nP.W.12, P.W.13  took  up the case for further investigation.  The materials so
\ncollected, revealed the offence committed by the accused, resulting filing  of
\na final report.\n<\/p>\n
        (m)     The  learned trial Judge believing the oral evidence of P.Ws.2
\nto 5, concluded that there was unassailable motive for the murder.  The  trial
\nJudge  has  further concluded, because of the dispute between the deceased and
\nthe first accused, regarding money matters and marriage  of  P.W.5,  both  the
\naccused joined together, beat the deceased on the fateful day, taking away her
\nlife.  The trivial contradictions and omission, according to the assessment of
\nthe  learned  trial  Judge,  have not caused any abrasion over the prosecution
\ncase.  Thus, concluding and finding no reason to bring the accused  under  any
\nother   offence,   slapped   the  conviction  under  Section  302  I.P.C.,  as
\naforementioned.\n<\/p>\n
        8.      Heard the learned senior counsel, Mr.  V.  Gopinath  appearing
\nfor  the  first  appellant and the learned counsel for the second appellant as
\nwell as the learned Government Advocate (Crl.  side).\n<\/p>\n
        9.      The learned counsel for  the  appellants  assailed  the  lower
\nCourt’ s verdict on the following grounds that:\n<\/p>\n
(1)     the alleged motives leading to murder are not proved;\n<\/p>\n
(2)     the  trial  Court committed an error in believing the oral evidence of
\nP.W.2, daughter of the deceased, who could not be the eye witnesses;\n<\/p>\n
(3)     the trial Court failed to  take  into  account  the  delay  caused  in
\npreferring the complaint that to when the police station was very near, on the
\nway, when P.W.2 went to her village;\n<\/p>\n
(4)     the  oral  evidence of D.Ws.1 & 2 would amply prove that P.W.2 herself
\nwould have come to the  knowledge  of  murder  of  her  mother,  only  on  the
\ninformation furnished to her and therefore, she could not be the eye witness;\n<\/p>\n
(5)     the Village Administrative Officer while preferring the complaint, had
\nnot followed the guidelines;\n<\/p>\n
(6)     to  explain  the  delay,  the constable, who submitted the FIR was not
\nexamined;\n<\/p>\n
(7)     the non examination of Poosari of  the  temple  as  well  as  the  non
\nexamination of cycle shop owner are fatal to the prosecution case;\n<\/p>\n
(8)     the  injuries  sustained  by  the  deceased were not connected to each
\naccused and therefore, convicting both the accused under  Section  302  I.P.C.
\nis beyond the scope of law and
\n(9)     that in any event for convicting second accused, there is no material.\n<\/p>\n
On the  above  lines, elaborating the same, the learned Senior Counsel Mr.  V.
\nGopinath urged, for an acquittal.\n<\/p>\n
        10.     On the other hand, supporting the reasoning and conviction  of
\nthe  trial Court and in opposing, the reasons enumerated by the learned Senior
\nCounsel, the learned Government Advocate (Crl.  Side) would contend, that  the
\nmotive  for  the murder is not only proved by the oral evidence of P.Ws.1, 4 &
\n6, but also by the intrinsic evidence available on the body of  the  deceased,
\nthat the evidence of P.W.2 is quite natural, being the eye witness, that there
\nis  no  inordinate  delay  and  if  at  all  any delay is noticed, the same is
\nexplained, that on the basis of the confession statements,  weapons  recovered
\nwhich   contain  blood  group  of  the  deceased  and  considering  all  these
\nunquestionable evidence, the learned trial Judge had  rendered  a  conviction,
\nfitting  with the facts, supported by the evidence, which does not warrant any
\ninterference.\n<\/p>\n
        11.     As ruled by the Apex Court, there is no such principle or rule
\nof law that  where  the  prosecution  fails  to  prove  the  motive,  for  the
\ncommission  of  crime, it must necessarily result in acquittal of the accused.
\nIn this view, the motive may not play any pivotal role, but at the same  time,
\nwhen  it  is  alleged, to find out the probabilities of the case and to accept
\nthe evidence available on the side  of  the  prosecution  as  genuine,  it  is
\nincumbent  upon  the  Court  to  assess  the  motive also, in order to fix the
\nculpability, whether that would be the cause for the murder.\n<\/p>\n
        12.     It is an admitted fact, that the deceased  was  having  a  tea
\nstall under the name of “Malarkodi Tea Stall”, that too at the instance of the
\nfirst accused,  who was her paramour.  P.W.6 had stated that at the request of
\nthe first accused, in order  to  evict  Malarkodi,  from  the  tea  stall,  he
\nconvened  a  panchayat and at that time, the deceased demanded Rs.60,000\/- and
\njewels for which the accused refused, resulting  Malarkodi  also  refusing  to
\nvacate the  premises.    When  this evidence was given so convincingly, in our
\nopinion, the same was not erased by the  cross  examination,  except  throwing
\nsome causal unacceptable suggestion.\n<\/p>\n
        13.     The  oral  evidence of P.W.6 is supported by the oral evidence
\nof P.W.2 also.  She would state, that there was dispute between her mother and
\nthe first accused, in the money transaction, further affirming that her mother
\nstarted tea stall, only at the instance of the  first  accused.    It  is  the
\nfurther  case  of  P.W.2,  that  when  the  first  accused  attempted to evict
\nMalarkodi, through Panchayat, Malarkodi asserted before  the  Panchayat,  that
\nshe  should  be  paid  the  amount, which she was entitled to and the marriage
\nbetween P.W.5 and the son of the second accused, should also be performed.  It
\nis also the case of P.W.2, that  Malarkodi  refused  to  vacate  the  premises
\nsaying that she was having the tea stall, only in the poramboke land.  She has
\nfurther  deposed,  that  the  first  accused had preferred a complaint against
\nMalarkodi in Ramanatham Police Station.  She has further  deposed  that  after
\nthe  first accused threatened Malarkodi to do away, apprehending danger to her
\nlife, she tattooed the words @fnzrd; vd;fpw Kj;Jrhkpahy;  vd;  capUf;F  Mgj;J.
\n,g;gof;F kyh;f;bfho@.   on  her  left  hand.    The evidence so given by P.W.2
\nregarding the motive, in our opinion, not at all shadowed, even  by  effective
\ncross examination  or  putting suggestion.  In fact, the suggestion would make
\nit clear that the first accused and Malarkodi had  illicit  intimacy.    P.W.5
\nwould  state,  that  she  was  having  love  affair with the son of the second
\naccused, though it is not vice versa.  We do not find any  reason,  much  less
\nvalid  reason,  to  ignore  the  motive part of the case, which is well proved
\ninspiringly and acceptably.  Because of the  threat  committed  by  the  first
\naccused,  as  noted by the doctor, there was a tattoo mark, over the left hand
\nof the deceased.  In this view, concluding that  there  was  a  strong  enmity
\nbetween  the  deceased and the first accused, we have to find out whether this
\nwould be the cause for committing the murder.  Even if it is not the cause, as
\naforementioned at the first instance, if the attack is proved otherwise, there
\nis every possibility of these accused, being roped in, under appropriate penal
\nprovisions.\n<\/p>\n
        14.     At the request of the investigating officer,  on  6.5.1993  at
\nabout  11.00 a.m., P.W.11 conducted autopsy and noticed six injuries, over the
\nbody of Malarkodi.  According to the opinion of the doctor, injuries 1 & 2 are
\nfatal, though he would say, that injury 3 & 4 are simple in nature.  When  the
\ndoctor  had given evidence, regarding the cause of death of Malarkodi, that is
\nnot very much challenged, though an effort was  made  to  bring  some  of  the
\ninjuries, as  non fatal or simple in nature.  Accepting the doctor’s evidence,
\nwe would conclude, that only because of the injuries sustained by the deceased
\non the head and all over the body as  noted  in  Ex.P.12,  Malarkodi  died  on
\n5.5.1993 at about  1.00 p.m.  or so.  Thus, fixing it is a homicidal violence,
\nnext we have to see, who did this violence, taking away the life of Malarkodi.\n<\/p>\n
        15.     The incident  took  place  according  to  the  prosecution  on
\n5.5.1993 at  about  1.00 p.m.  P.W.1, the Village Administrative Officer would
\nstate that Elangovan P.W.3, came to his office  and  reported  the  matter  at
\nabout 4.30  p.m., which was reduced into writing as Ex.P.1.  We find in Ex.P.1
\nalso an endorsement of the Village Administrative Officer, giving the time  as
\n5.15 p.m.   This  complaint  accompanied  with  Ex.  P.2 Special Report of the
\nVillage Administrative Officer, reached the police station at 8.30  p.m.    on
\nthe  same  day  as spoken by P.W.10, the Sub Inspector of Police, who received
\nthe complaint and registered a case under Ex.P.10, the printed F.I.R.  The  pr
\ninted F.I.R.    and the complaint reached the hands of the Judicial Magistrate
\non 6.5.1993 at 2 .35 a.m.,  probably  he  might  have  received  them  in  his
\nresidence.  P.    W.1’s  evidence discloses that the distance between Vagaiyur
\nand Ramanatham is 5 km.  The distance between Vagaiyur-Akkanur, where P.W.1 is
\nhaving his office, is 1 km.\n<\/p>\n
        16.     Considering the distance between the police station,  and  the
\nplace  of  P.W.1  and some delay in the FIR reaching the hands of the Judicial
\nMagistrate, the learned Senior Counsel for the appellants, would contend  that
\nEx.P.1  ought  to  have been prepared subsequently, to build the case, as they
\nlike, after the inspector came to the scene of occurrence  and  therefore,  it
\nshould  be  construed, the genesis of the case itself is suppressed, screening
\nthe real one.  It is the further  submission  that,  since  the  F.I.R.    was
\nsubmitted  belatedly  to  the  court,  it  should  be  the  out  come  of  the
\ndeliberation and discussion, and the entire edifice of  the  prosecution  case
\nshould  also be viewed, doubtfully, giving at least the reasonable benefits of
\ndoubt to the accused, taking into consideration, the non  examination  of  the
\npolice constable, who took the first information report to the Court.\n<\/p>\n
        17.     The  delay  caused in this case, is not an inordinate one, and
\nthis kind of delay would ordinarily occur in this kind of  cases,  considering
\nthe  status  of the complaint, the incident, the distance between the place of
\noccurrence and the police station, as well the place of P.W.1, etc.   The  non
\nexamination  of  the  police  constable also failed to create any doubt in the
\ncase of the prosecution.  Therefore by the delay of few hours, we  are  unable
\nto   entertain  any  doubt,  as  if  Ex.P.1  should  be  the  outcome  of  the
\ndeliberation, that too, after the arrival of the investigating  officer,  with
\nthe help  of the obliging Village Administrative Officer.  The learned counsel
\nfor the appellants attempted to create a shadow over Ex.P.1, since it narrates
\nthe entire incident, which may act against the accused.    We  are  unable  to
\nsubscribe our  view,  as  entertained  by  the  learned Senior Counsel.  Thus,
\nignoring the delay, in view of the inspiring evidence available,  we  have  to
\nfind out the genuineness of the complaint and the oral evidence.\n<\/p>\n
        18.     The  main  attack and bang to shatter the prosecution case is,
\nthat P.W.2 could not be the eyewitness.    It  is  the  further  case  of  the
\naccused,  that  PW2  came  to  know  about  her  mother’s  death,  only on the
\ninformation furnished by D.W.2 at the instance of D.W.1.    The  accused  have
\ntaken  the burden of proof in this view, to some extent, upon their shoulders,
\nthough it is not cast upon  them,  under  criminal  jurisprudence.    In  this
\ncontext, we  have  to  see,  whether  the  evidence  of  D.  Ws.1 & 2 could be
\nbelieved, if it could be believed what would be the effect.\n<\/p>\n
        19.     The Investigating Officer, P.W.12 would admit during the cross
\nexamination that he had examined one Poosari S.    Pachiamuthu  Padayachi  and
\nanother P.    Pachaimuthu  Padayachi,  who  have  informed him, that they have
\ninformed the death of Malarkodi to the Ex-Chairman of the Panchayat Union, who
\nis examined as D.W.1.  It is the case of D.W.1 also that he came to  know  the
\ndeath of Malarkodi  from  S.    Pachaimuthu  Padayachi  and  P.   Patchaimuthu
\nPadayachi, who were not examined in this case.  For that, an  adverse  comment
\nmade in our view, does not deserve any acceptance, since admittedly, they were
\nnot the  eye  witnesses.  The oral testimony of P.W.2, and observation mahazar
\ndisclose the fact, that the temple was not opened, and that is why,  Malarkodi
\noffered coconut,  betel  nut,  etc.   at the entrance of the temple, wherefrom
\nthey have been recovered, thereby showing the poosaris had no  chance  to  see
\nthe incident.    D.W.1  would  state  that  on  the  information  furnished by
\nPatchaimuthu, confirming the same,  upon  visiting  the  scene  of  crime,  he
\nattempted to  contact Ramanatham Police Station, unable to get connection.  He
\nfurther says, thereafter, he phoned up to Petrol Bunk at Ramanatham, which was
\nattended by Selvaraj, D.W.2, to whom  he  had  informed  about  the  death  of
\nMalarkodi,  requesting  him,  to inform the same, either to her daughter or to
\nher husband.  D.W.2 would state, that he had informed this  news  through  one
\nattender and  the  said attender has not been examined.  An attempt might have
\nbeen made by D.W.1 even genuinely, to inform the death of Malarkodi,  probably
\neven without  knowing  whether P.W.2 knew the same or not.  The case spoken by
\nD.W.2 that P.W.2  was  summoned,  and  on  enquiry  P.W.2  informed  him  that
\nMalarkodi  had been to temple, appears to be unbelievable, since it appears to
\nour mind, invented, in order to rescue the accused, from the clutches of  law.
\nD.W.2  is  introduced,  as if the death message was conveyed to P.W.2, thereby
\ntaking her out of the purview of the eyewitnesses,  which  we  are  unable  to
\nagree.  In this view also, we are unable to doubt, about the presence of P.W.2
\nat the scene of crime.\n<\/p>\n
        20.     The  conduct of P.W.2 was brought to our notice by the learned
\nSenior Counsel Mr.  V.  Gopinath, to doubt about her presence in the scene  of
\ncrime, as well  as  her  subsequent inaction.  P.W.2.  would state, that after
\nthe incident, she ran to the village to inform the  death  of  her  mother  to
\nP.W.3.   then  both  returned  to Vagaiyur Temple along with others, then they
\nwent to Akkanur Village, to inform the matter to  the  Village  Administrative
\nOfficer at  about  4.30  p.m.    She  admits during cross examination that the
\nresident and tea stall are 200 ft.  away from the junction of Thittakudi Road.
\nShe further admits, that Ramanatham Police Station is at a distance of 100 ft.
\nfrom the junction.  Therefore, the senior counsel pointed out, if really P.W.2
\nhad witnessed the incident, she ought to have gone to the police  station,  to
\nlodge  the  information  at  the  first  instance or if not, at least when she
\nreturned along with her father, P.W.3.    But  here,  curiously  ignoring  the
\npolice  station,  which  is  on  the way, they went to Akkanur, where P.W.1 is
\nhaving office.  This is an unnatural course,  not  fitting  with  probability,
\naccording  to  the learned Senior Counsel and in this view, he urged us not to
\naccept the testimony  of  P.W.2,  taking  her  away  from  the  definition  of
\neyewitness.  We  are  unable  to  agree.   After all, P.W.2 an young unmarried
\nvillage girl and in her presence, her mother was murdered.  Therefore, we have
\nto see, what would be the mind set of P.W.2 and her mental  condition  in  the
\ncharged atmosphere.    She  would  not  have generally thought of preferring a
\ncomplaint to the police, in order to book the accused and the normal course of
\nthinking of P.W.2 would be, to inform the  same  immediately  to  the  father,
\nwhich she did and we find nothing unnatural or strange.\n<\/p>\n
        21.     P.W.3  would  state that he and P.W.2 went to Ramanatham, only
\nto prefer complaint, but had not gone to the police station.  His case is,  on
\nthe advice of one Chellamuthu, not to prefer complaint directly to the police,
\nbut  to  prefer  the  complaint through the Village Administrative Officer, he
\nwent to Akkanur.  Considering the rustic nature of P.W.3 and  their  ignorance
\nregarding  the  action to be taken forthwith, we are unable to find fault with
\ntheir conduct, in not  preferring  the  complaint  forthwith,  to  the  police
\nstation.\n<\/p>\n
        22.     Admittedly,  Ex.P.1  complaint was not given by P.W.2, who had
\nwitnessed the incident, whereas on the information supplied  by  P.W.3,  P.W.1
\nreduced the  same  into writing, in which P.W.2 has not even attested.  On the
\nabove basis, the learned Senior Counsel would contend, that Ex.P.1  would  not
\nhave  been  given,  on the information furnished by P.W.2 and that is why, she
\nhas not even attested the same.\n<\/p>\n
        23.     In support of the above contention, the learned Senior  relied
\non a ruling  in  Mohan  Singh and others vs.  State of Punjab (1981 Crl.L.  J.\n<\/p>\n
998).  In the case involved in the above decision, a conviction was sought  to
\nbe assailed, on the basis of a dying declaration, in which the relative of the
\ndeceased, has  not even attested.  That dying declaration was found fault, for
\nnot taking care to get attested by the wife, who  was  stated  to  be  present
\nthere  or the doctor, who was alleged to be present in the hospital, that too,
\nbecause of the fact, that  the  dying  declaration  contained  minute  details
\ninforming concoction or  fabrication.   Here, this is not the case.  P.W.3 had
\nspecifically stated, which was confirmed by P.W.2 also, that due to shock  and
\nfear,  on seeing the murder of mother, P.W.2 was not in a position to give the
\ndetails to the Village Administrative Officer, though she conveyed the same to
\nthe father, which appears to be probable and acceptable in our view.  Hence on
\nthe ground that P.W.2 has not attested Ex.P.1, we are unable to remove  P.W.2,
\nfrom the scene of crime.\n<\/p>\n
        24.     The  Village  Administrative Officer (P.W.1) admits during the
\ncross examination, that as per the guideline, he has not  taken  three  copies
\nand submitted the copies to Tahsildar and the Judicial Magistrate.  Therefore,
\naccording to the submission of the learned Senior Counsel, Ex.P.1 should loose
\nits importance.   We are unable to agree.  The non compliance of the rules, if
\nat all would amount to violation, and irregularity and on that score alone, we
\nare unable to discard Ex.  P.1, labeling the same as one, come into existence,
\nafter the arrival of the Inspector of Police, to the scene of crime.\n<\/p>\n
        25.     It is the case of P.W.2 that she and her mother  went  to  the
\ntemple in  a hired cycle, belonged to one Chellamuthu.  The said cycle, M.O.10
\nwas recovered from the scene of crime, as spoken by P.W.12 under Ex.P.5, along
\nwith M.O.11 Chappals, belonged to the deceased.  The  cross  examination  does
\nnot  disclose any reason, to doubt about the recovery and in fact, even we are
\nunable to find any suggestion, questioning the recovery.  The fact,  that  the
\ncycle belongs  to  Chellamuthu,  is  also  not  seriously disputed.  For these
\nreasons, in our opinion, the non examination of Chellamuthu,  would  not  make
\nany dent  in  the  prosecution  case.    In  the  same  way, the contradiction
\navailable regarding the fact, whether Malarkodi  knew  cycling  or  not  also,
\nwould  not  cause  any  abrasion  over  the  prosecution  case,  to  doubt its
\ngenuineness.\n<\/p>\n
        26.     The investigating officer  P.W.12,  arrested  the  accused  on
\n7.5.19 93  at  about  10.00 a.m.  and according to him, the first accused gave
\nconfession (Ex.P.6), leading to the recovery of TVS-50 M.O.12 and the reapers.
\nIt is also the further case of P.W.12, that the second  accused  also  gave  a
\nconfession i.e.    Ex.P.7  and  thereafter,  in  pursuance  of the same M.O.18
\nreapers were recovered.  The learned senior counsel for the appellant submits,
\nthat this recovery itself is doubtful, because  of  two  alleged  confessions,
\nleading to  recovery.  Even as per the case of the prosecution, Ex.P6 relates,
\nnot only to the disclosure of reapers, but also the disclosure of  M.O.12,  in
\nwhich  the  accused  travelled to the scene of crime, then escaped from there.
\nEx.P7 relates to the disclosure of the  reapers  alone.    Though  the  second
\nconfession  said to have been given by the second accused under Ex.P.7 may not
\nbe admissible, but that does not mean, we should ignore  in  toto,  Ex.    P.6
\nconfession.   The over anxious Investigating Officer obtained two confessions,
\nforgetting the fact, the first  confession  itself  had  served  the  purpose.
\nThere  is  nothing wrong in eschewing the second confession and relying on the
\n1st confession, and  on  that  ground,  doubting  the  investigation,  is  not
\npossible.   P.W.8,  who  was  present at the time of the arrest and confession
\nwould state, how P.W.12 arrested  the  accused  and  how  Exs.P.6  &  P7  were
\nobtained from  them,  though Ex.P7 is redundant.  I do not find any reason, to
\ndiscard the oral testimony of P.W.8, which is supported by  the  investigating
\nofficers’ evidence  also.    Hence,  accepting the oral evidence of P.W.8, the
\ntrial Court came to the conclusion that only on the basis  of  the  confession
\ngiven by  the  first  accused,  M.Os.12 and 18 were recovered.  The eyewitness
\nP.W.2 also identified the vehicle, as the one used by the accused, as well  as
\nthe weapon viz., M.O.12 & 18, respectively, used by both the accused.\n<\/p>\n
        27.     At  the  request  of  the  investigating  officer, the reapers
\nseized, on the basis of the confession of the first  accused,  were  sent  for
\nchemical  examination,  through court, as evidenced by Ex.P.17, which elicited
\nthe chemical examination report Ex.P.18 and the Serologist’s Report,  Ex.P.19.
\nThe  Forensic  Science  Department,  after examining the two reapers, detected
\nblood and when the  same  was  subjected  to  further  examination  for  blood
\ngrouping,  it revealed human ‘AB’ Group Blood as disclosed by the Serologist’s
\nReport, Ex.P.19, which are not seriously questioned.   The  dresses  recovered
\nfrom the  body  of  Malarkodi were also subjected to chemical examination.  It
\nalso revealed human ‘AB’ Group  blood,  thereby  indicating  that  Malarkodi’s
\nblood group  is ‘AB’.  The same blood group was detected in the reapers, which
\nwere  recovered  on  the  basis  of  the  confession,  thereby  by  all  means
\nestablishing  that  these  two  reapers  have  been  used,  for assaulting the
\ndeceased Malarkodi.   Thus,  in  our  considered  opinion,  the  weapons  were
\nconnected with the crime and the accused.  Thus, fixing the involvement of the
\naccused with the crime, next we have to see, who caused the fatal injuries, to
\nthe deceased and what is the offence made out against each.\n<\/p>\n
        28.     P.W.2,  Palaniammal  has stated that both the accused had beat
\nher mother over the head and body indiscriminately, thereby causing  injuries.
\nShe  would  further  state,  she  was  also  threatened  by  the  accused  and
\nthereafter, escaped from the scene of crime  in  TVS-50  motorcycle  (M.O.12).
\nWhen  both  the  accused  had  jointly  assaulted  the  deceased, causing head
\ninjuries and other bodily injuries, both must be held  responsible,  since  as
\naforementioned by us, the doctor’s evidence is that injuries 1 & 2 were fatal,
\nwhich were  caused  by  both  the accused.  The learned Senior Counsel for the
\nappellants contended, that there is no clinching  evidence  even  through  the
\nmouth  of  P.W.2,  who caused which injury and in this view, it is not safe to
\nconvict both the accused under Section 302 I.P.C.  When two  persons  jointly,
\nwith  common  intention,  assaulted  a  person, it may not be possible for the
\neyewitness to say clinchingly, which injury fell on which part  of  the  body.
\nIn this view, we are of the opinion that failure of P.W.2 to speak, who caused
\nwhich  injury,  would not relieve any one of the accused, creating doubt, from
\nthe offence committed by them, that too, in  view  of  the  specific  evidence
\ngiven  by P.W.2, that both the accused have assaulted her mother over the head
\nalso.  Postmortem certificate also reveals as spoken  by  P.W.11,  that  there
\nwere  two  incised  wounds,  over the head; one in Parietal region and another
\nover  occipital  area,  which  are  proved   to   be   fatal   causing   death
\ninstantaneously.   After witnessing the incident, P.W.2 reported the matter to
\nP.W.3, the father, who in turn preferred the complaint,  as  discussed  above.
\nWe  are  unable  to find any infirmity in the evidence of P.W.2, affecting the
\nroot of prosecution, except minor contradictions, which are bound to occur  in
\nany case.  In this context, we have to remember the motive and the tattoo mark
\ninscribed over the left arm.\n<\/p>\n
        29.     There  was  an intuition in the mind of the deceased after the
\npanchayat, that her adamant attitude not to vacate the premises, and insisting
\nthe marriage of P.W.5 with the son of the 2nd accused,  that  because  of  her
\nquestioning,  Ganesan  would  cause bodily harm and to expose the same, in the
\nevent of happening, she tattooed the words ” fnzrd;  vd;fpw  Kj;Jrhkpahy;  vd;
\ncapUf;F Mgj;J.  ,g;gof;F  kyh;f;bfho@.  which proved to be correct.  The above
\nwords inscribed over the left hand of the deceased were noticed by the  doctor
\nalso, not   challenged.     Unless  there  is  strong  motive  and  reasonable
\napprehension, in the mind of the deceased, she would  not  have  gone  to  the
\nextent  of  implicating the first accused, apprehending danger from him, which
\nproved to be correct, for which the second accused  also  aided.    Therefore,
\nanalysing  the case from all possible and probable angle, we find no reason to
\ndiscard the oral testimony of P.W.2, who narrated  the  incident,  as  in  the
\nfirst information and final report.\n<\/p>\n
        30.     In  the investigation also, we are unable to see any laches or
\nany grey area, to doubt, and imagine any false  implication  of  the  accused,
\neven regarding  A2.   As seen from the oral evidence of D.W.3, a plea of alibi
\nwas projected.  D.W.3 would state that the second accused performed the  first
\ndeath anniversary  of  her mother on the date of Chitra Pournami.  There is no
\nevidence even from the mouth of D.W.3, when the mother of the  second  accused
\ndied.   In  the  absence  of  any  such evidence, it is highly unbelievable to
\naccept the plea of alibi projected through D.W.3.  Even  assuming  that  there
\nwas  some ceremony performed by D.W.3, considering the time of incident, it is
\npossible to conclude that because of the satisfactory  evidence  available  on
\nrecord, that the second accused also would have participated in the attack and
\nthat  is  why, when two reapers were recovered, both contained the human blood
\nof ‘AB’ group that belonged to the deceased.\n<\/p>\n
        31.     The learned trial Judge analysing all the  fact  available  on
\nrecord,  supported  by  the strong attending circumstances, accepting the oral
\ntestimony of P.W.2, had  come  to  a  just  and  correct  conclusion,  in  our
\nconsidered opinion,  not warranting any interference by this Court.  Hence, we
\nfind no substance in the appeal and  the  appeal  deserves  to  be  dismissed,
\nconfirming the conviction.\n<\/p>\n
        32.     In   the  result,  the  appeal  is  dismissed  confirming  the
\nconviction and sentence imposed by the trial Court upon both  the  accused  as
\nper  the judgment in S.C.No.123\/94 dated 21.4.1995, on the file of the Learned
\nSessions Judge, South Arcot Vallalar Division, Cuddalore.\n<\/p>\n
        The accused, who are on bail are  directed  to  surrender  before  the
\ntrial  Court  forthwith,  to undergo the remaining period of sentence, failing
\nwhich the trial Court is directed to take  appropriate  steps  to  secure  the
\naccused.\n<\/p>\n
Index :  Yes
\nWebsite :  Yes<\/p>\n
kv<\/p>\n
To\n<\/p>\n
1.      The Judicial Magistrate, Thittakudi\n<\/p>\n
2.      -do- thro’ the Chief Judicial Magistrate, Cuddalore\n<\/p>\n
3.      The Chief Judicial Magistrate, Villupuram\n<\/p>\n
4.      The Sessions Judge, South Arcot at Cuddalore.\n<\/p>\n
5.      The Superintendent, Central Prison, Vellore.\n<\/p>\n
6.      The Public Prosecutor, High Court, Madras.\n<\/p>\n
7.      The Inspector of Police, Ramanatham Police Station,
\n        South Arcot District.\n<\/p>\n
8.      The Office-in-charge of Vellore South Police Station,   Vellore.\n<\/p>\n
9.      The District Collector, Cuddalore.\n<\/p>\n
10.     The Director General of Police, Chennai – 4.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ganesan @ Muthusamy vs State : Inspector Of Police on 12 December, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12\/12\/2003 CORAM THE HON’BLE MR. JUSTICE P. SATHASIVAM AND THE HON’BLE MR. JUSTICE M. THANIKACHALAM C.A.NO.534 OF 1995 1. Ganesan @ Muthusamy 2. Pazhanimuthu ..Appellants. -Vs- State : Inspector of […]<\/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-177090","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nGanesan @ Muthusamy vs State : Inspector Of Police on 12 December, 2003 - 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\/ganesan-muthusamy-vs-state-inspector-of-police-on-12-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ganesan @ Muthusamy vs State : Inspector Of Police on 12 December, 2003 - 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