{"id":183802,"date":"2007-02-20T00:00:00","date_gmt":"2007-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ponnu-alias-peria-pachhai-perumal-vs-the-state-represented-by-on-20-february-2007"},"modified":"2014-03-11T03:59:51","modified_gmt":"2014-03-10T22:29:51","slug":"ponnu-alias-peria-pachhai-perumal-vs-the-state-represented-by-on-20-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ponnu-alias-peria-pachhai-perumal-vs-the-state-represented-by-on-20-february-2007","title":{"rendered":"Ponnu Alias Peria Pachhai Perumal vs The State Represented By on 20 February, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Ponnu Alias Peria Pachhai Perumal vs The State Represented By on 20 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 20\/02\/2007\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nCRIMINAL APPEAL NO.319 OF 2004\n\n1.Ponnu alias Peria Pachhai Perumal\n2.Ganpathi\n3.Chitravelu\n4.Muthulakshmi\t\t\t..  Appellants\n\t\t\t\t    Accused Nos.1 to 4\n\nVs.\n\n\nThe State represented by\nThe Inspector of Police,\nOttapidaram Police Station,\nTuticorin District.\t\t..  Respondent\n\n\n\tThis criminal appeal is preferred under Section 374 Cr.P.C against the\njudgment dated 16.02.2004 made in S.C.No.242 of 2000 on the file of the learned\nAdditional Sessions Judge \/ Fast Track Court No.I, Tuticorin.\n\n!For Appellants ... Mr.C.Ramachandran\n\t\t    Amicus Curiae\n\n^For Respondent ... Mr.N.Senthurpandian,\n\t\t    Additional Public Prosecutor\n\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the Court was made by M.CHOCKALINGAM, J.)<\/p>\n
\tThis appeal has arisen from the judgment of the Additional Sessions Judge
\n\/ Fast Track Court No.I, Tuticorin made in S.C.No.242 of 2000 whereby the
\nappellants\/accused Nos.1 to 4 stood charged, tried and found guilty as follows:
\n\tCharges:\n<\/p>\n
\tA-2 and A-3\t–\tS.302 IPC.\n<\/p>\n
\tA-1\t\t–\tS.302 r\/w S.34 IPC
\n\tA-2 to A-4\t–\tS.302 IPC
\n\tA-1\t\t–\tS.302 r\/w S.34 IPC
\nA.2 and A.3 were found guilty under Section 302 I.P.C (2 counts) and awarded
\nlife imprisonment for each counts along with a fine of Rs.1,000\/- and a default
\nsentence of six months imprisonment.  A.1 was found guilty under Section 302
\nI.P.C read with Section 34 I.P.C and awarded life imprisonment with a fine of
\nRs.500\/- and a default sentence of six months imprisonment.  A.4 was found
\nguilty under Section 302 I.P.C and awarded life imprisonment with a fine of
\nRs.500\/- and a default sentence of six months imprisonment and the sentences in
\nrespect of A-2 and A-3 were ordered to run concurrently.\n<\/p>\n
\t2. The short facts necessary for the disposal of this appeal can be stated
\nthus:\n<\/p>\n
\t(a) P.W.1 is a native of Melameenakshipuram within the jurisdiction of the
\nrespondent police.  She was living with her sons Poomurugan, Periamurugan and
\nher daughter Poomari.  The said Poomari was given in marriage to one Pachhai
\nPerumal of the said village.  The said Poomari had one daughter, namely
\nSakhundala, aged ten years, and one son, namely Sathish Raja, aged six years.
\nThe said Poomari was working at the Noon Meal Scheme of Melameenakshipuram.
\nP.W.1’s son Murugan and Muthulakshmi A.4 herein, the daughter of one
\nPetchimuthu, had love affair and when it came to the knowledge of the village,
\nthe marriage was solemnised on the advice of the villagers on 05.02.1999 and
\nthere was a strained relationship then and there.  Muthulakshmi came back to her
\nparental home and she was living there.  A complaint was given in All Women
\nPolice Station, Kovilpatti and that it was treated as a petition No.39 of 1999
\ndated 17.02.1999.  Both the said Muthulakshmi A.4 and her husband were called
\nand enquired into the matter and advised to live together and they lived
\ntogether for sometime and then, she came back to her parental home.\n<\/p>\n
\t(b) On 03.08.1999, all the accused went to the respondent police in
\nrespect of the previous petition No.39 of 1999, Ex.P.22.  At that time, the
\nInspector of Police was not available and P.W.15, the Head Constable asked them
\nto come on the next day.  Sometime later, P.W.1 along with her daughter went
\nthere and they were also informed the same. At that time, A.1 to A.3 informed
\nthe second deceased Poomari that she was responsible for the disturbance in the
\nmatrimony of their sister Muthulakshmi and that they would do away her and her
\nbrother also.  On 04.08.1999 i.e., on the date of occurrence, P.W.1 and P.W.2
\nproceeded to Keelameenakshipuram to purchase idli from a hotel.  At that time,
\nA.3 armed with an aruval and A.2 armed with a knife and A.1 accompanied them,
\ncame over there and attacked the first deceased Murugan indiscriminately.  This
\nwas witnessed by P.W.1 and P.W.2 and immediately after the occurrence, the
\naccused fled away from the place of occurrence.  P.W.1 immediately rushed to her
\nhouse and asked her mother about Poomari and she was informed that Poomari went
\nover to nearby well and she proceeded towards the well at about 09.00 a.m., and
\nshe found A.1 to A.4 there. A.3 armed with an aruval and A.2 armed with a knife,
\nattacked the second deceased Poomari and A.3 handed over the aruval to A.4 and
\nasked her to attack Poomari and A.3 got it back and further attacked Poomari.
\nA.2 stabbed Poomari with the knife.  A.1 instigated them to do so.  The whole
\noccurrence was witnessed by P.W.3, a child aged 10 years, who was also standing
\nnearby and that immediately, after the second occurrence, all the accused fled
\naway from the place of occurrence.\n<\/p>\n
\t(c) P.W.1 along with P.W.2 proceeded to Ottapidaram Police Station and
\ngave a complaint, Ex.P.1, on the strength of which, a case came to be registered
\nin Cr.No.72 of 1999 and the F.I.R which was marked as Ex.P.26, was despatched to
\nthe Court immediately.  P.W.21, the Inspector of Police took up the
\ninvestigation and proceeded to both the scene of occurrences and prepared
\nobservation mahazars, Exs.P.2 and P.3 in the presence of witnesses and through
\nP.W.15, photographs were also taken.  Further, he conducted inquest on the dead
\nbodies in the presence of witnesses and Panchayatars and prepared Ex.P.28, the
\ninquest report of the first deceased Murugan, and Ex.P.31, the inquest report of
\nthe second deceased Poomari.  Further, both the dead bodies were sent with the
\nrespective requisitions for post-mortem to the Government Hospital and P.W.12,
\nthe Doctor attached to the Hospital, conducted autopsy on the dead body of the
\nfirst deceased Murugan and gave post-mortem certificate Ex.P.14, where the
\nDoctor opined that the death would appear to have caused due to shock and
\nhaemorrhage due to the injuries sustained and also conducted the post-mortem on
\nthe dead body of the second deceased and gave post-mortem certificate Ex.P.16,
\nwhere the Doctor opined that the death would appear to have caused due to shock
\nand haemorrhage due to the injuries sustained.\n<\/p>\n
\t(d) On 05.08.1999, the Investigating Officer arrested A.2 to A.4 and A.2
\nmade confessional statement, the admissible portion of which was marked as
\nEx.P.6. Pursuant to the confessional statement, he produced the weapon of
\ncrimes, which were recovered in the presence of the witnesses under a cover of
\nmahazar. The material objects recovered from the place of occurrence from the
\nthe dead bodies as well as the material objects recovered from the accused,
\nincluding the weapons of the crime, were sent for chemical analysis by the
\nInvestigating Officer through the Court concerned to the Forensic Science
\nDepartment with the respective requisitions, which resulted in the Chemical
\nanalysis report Ex.P.19 as well as the Serologist report Ex.P.20 respectively.
\nOn completion of investigation, final report was filed by the Investigating
\nOfficer before the committal court.\n<\/p>\n
\t3. The case was committed to Court of Session and necessary charges were
\nframed.  In order to substantiate the charges levelled against the accused, the
\nprosecution has examined 21 witnesses and relied on 31 exhibits along with 27
\nM.Os.  After the evidence on the side of prosecution was over, the Court
\nquestioned the accused under Section 313 Cr.P.C. as to the incriminating
\ncircumstances found in the evidence of prosecution witnesses.  The accused
\ndenied them as false. On the side of the defence, only one witness as D.W.1 was
\nexamined and through D.W.1, Ex.D.1 was marked.\n<\/p>\n
\t4. After completion of trial, the trial court heard the arguments of both
\nsides, perused the materials available, found the accused guilty as per the
\ncharges and awarded punishment as referred to above. Hence, this appeal at the
\ninstance of the appellants\/accused Nos.1 to 4.\n<\/p>\n
\t5. Advancing his arguments on behalf of the appellants, the learned
\ncounsel would submit that in the instant case, according to the prosecution,
\nthere were two occurrences.   First of all, the prosecution had no immediate
\nmotive for the occurrence at all and actually, A.4 was given in marriage to the
\nfirst deceased and there were disturbances in the matrimony and there was a
\nconciliation and they lived together for some time.  Apart from that, either at
\nthe time of the occurrence or on the previous day, there was no immediate motive
\nfor double murder.  Insofar as the first occurrence is concerned, P.W.1 and
\nP.W.2 were the eyewitnesses.  According to the prosecution, the occurrence took
\nplace at about 08.30 a.m., that too in a public place near a hotel.  If to be
\nso, number of independent witnesses could have been examined as witnesses, but
\nno one of the independent witnesses was examined.  This would indicate that
\nP.W.1 and P.W.2, who were not only the close relatives of both the deceased, but
\nalso interested, have come forward to give evidence against the accused, which
\nwould indicate that the prosecution has planted these witnesses to speak about
\nthe occurrences, which they have not seen at all. Thus, the non-examination of
\nthe independent witnesses would be fatal to the prosecution case.  Added further
\nthe learned counsel that in both the occurrences so far as A.1 was concerned,
\nneither he was shown as armed nor he has participated in the crime and no overt
\nact was attributed against him and hence, his participation in the offence was
\nthoroughly nil.  The first part of the occurrence is highly doubtful whether
\nEx.P.1, the complaint could have come into existence as put forth by the
\nprosecution.  According to P.W.1, on the date of occurrence, she was not
\nconscious and she did not know whether the accused were armed with aruval and
\nknife, etc., and thus, she could not have been the Author of the F.I.R. Apart
\nfrom that, in the instant case, according to P.W.20, the Sub Inspector of
\nPolice, the F.I.R was actually written and recorded by the Head Constable.  But,
\nfrom the F.I.R, it could be seen that it was actually recorded by the Sub
\nInspector of Police and hence, it casts a doubt as to who has prepared the same.\n<\/p>\n
\t6. The learned Counsel for the appellants further submitted that insofar
\nas the second occurrence was concerned, according to the prosecution, the
\nwitnesses available were P.Ws.1 to 3.  Though P.Ws.1 and 2 have claimed that
\nthey have witnessed the occurrence, P.W.21, the Inspector of Police has
\ncategorically deposed that both these P.W.1 and P.W.2 at the time of
\ninvestigation have not spoken about the fact that they have witnessed the
\noccurrence and it is quite clear that P.W.1 and P.W.2 would not have seen the
\noccurrence.  If to be so, the only witness for prosecution was P.W.3, a 10 year
\nold child.  The date of occurrence, namely 04.08.1999, was a working day for the
\nschool where P.W.3 was studying.  According to D.W.1, she was attending the
\nschool and  the attendance register, Ex.D.1,  would indicate her presence in the
\nschool at 09.00 a.m., and thus, she would have started to School earlier and
\nhence, she could not have seen the occurrence at all.\n<\/p>\n
\t7. Insofar as the second part of the occurrence was concerned in which the
\nsaid Poomari was killed, there was absolutely no evidence at all and the
\nprosecution had no evidence in that regard.  Added further the learned Counsel
\nthat in the instant case, the case of the prosecution that A.4 participated in
\nthe second crime was highly artificial. According to the prosecution, it was
\nA.3, who wielded aruval on the deceased Poomari and after that, he handed over
\nthe same to A.4, his sister and asked her to attack the second deceased Poomari
\nand after she gave cut, again A.3 got it back and inflicted cuts on the second
\ndeceased.  Thus, it would be quite clear that A.4 could not have participated in
\nthe crime at all.  In order to strengthen or to make it believe affair, A.4 has
\nbeen implicated in the instant case. In the absence of the evidence of P.W.3,
\nthere is no evidence at all and under such circumstances, the prosecution has
\nnot proved its case beyond all reasonable doubts. All the facts now brought to
\nthe notice of the court and all these aspects of the matter were not taken into
\naccount by the lower court and they have escaped from the vision of the lower
\ncourt and hence, the accused\/appellants are entitled for acquittal in the hands
\nof this court.\n<\/p>\n
\t8. Heard the learned Additional Public Prosecutor on the above
\ncontentions.\n<\/p>\n
\t9. The Court has paid its anxious consideration on the submissions made.\n<\/p>\n
\t10. It is a case of double murder, in which the first deceased namely
\nMurugan was killed at about 08.30 a.m. on 04.08.1999 before a hotel at
\nKeelameenakshipuram, while the second deceased namely Poomari was killed at
\nabout 09.00 a.m., on the same day near a well situated at Melameenakshipuram.
\nThe prosecution came forward to state that both the persons were killed due to
\nhomicidal violence and in order to substantiate the same, the prosecution
\nexamined not only the eyewitnesses, but also relied on the medical evidence
\nthrough P.W.12, the Doctor, who conducted  autopsy through whom the post-mortem
\ncertificates were marked and apart from that, the fact that both the deceased
\ndied due to homicidal violence was never questioned by the appellants at any
\nstage of proceedings and hence, it has got to be recorded so.\n<\/p>\n
\t11. In order to substantiate the first occurrence in which the first
\ndeceased was murdered, the prosecution has examined P.W.1 and P.W.2. It could be
\nseen that there are sufficient materials pointing to the motive for the
\noccurrence.  All the accused Nos.1 to 3 are the brothers of A.4 and A.4 was
\ngiven in marriage to the first deceased.  There was a disturbance in the
\nmatrimony and there was also a conciliation.  Even then, they could not live
\ntogether and A.4 was living in her parental home and hence, her brothers were
\naggrieved over the same. Even on previous day of the occurrence, they went to
\nthe police station and according to the evidence of P.W.1, there was a challenge
\nmade by all the three accused to the second deceased that they would do away her
\nand also her brother.  Thus, it would be quite clear that the accused persons
\nwere on inimical terms against P.Ws. In the instant case, P.Ws.1 and 2 were the
\neyewitnesses to the first occurrence. According to them, they proceeded to the
\nhotel, situated at Keelameenakshipuram to purchase idli, where they witnessed
\nthe  first occurrence, in which A.1 to A.3 came over there and A.2 armed with
\nknife and A.3 armed with aruval, attacked the first deceased indiscriminately
\nand caused his death.  It is true, they were close relatives of the deceased,
\nbut on that ground alone, their evidence cannot be rejected. The Court is
\nmindful of the caution made by the Apex Court that the evidence of the relatives
\nof the deceased cannot be discarded on that ground, but it must be scrutinised
\ncarefully.  Even after exercising the test of careful scrutiny, their evidence
\nhas inspired the confidence of the Court. The comment made by the learned
\ncounsel for the appellants that the independent witnesses have not been examined
\ncannot be accepted for the reason that it is a case where P.W.5 and P.W.6 have
\nbeen examined, but they have turned hostile. Hence the comment made by the
\nlearned counsel for the appellants that no independent witness was examined
\ncannot be warranted.  It is a case where independent witnesses have been
\nexamined, but they have turned hostile.  P.Ws.1 and 2, though relatives of the
\ndeceased, they have given a graphic narration of the entire incident and their
\nevidence has been marshalled, considered and accepted by the trial court and
\nrightly too.\n<\/p>\n
\t12. At this juncture, it is to be pointed out that as per the prosecution
\ncase, A.1 was neither armed nor attributed any overt act and thus, he had no
\nrole to play and nothing has been whispered that he has shared any common
\nintention. Now, what are all stated by the prosecution was that it was he, who
\nhold the legs of the first deceased and twisted the same and he was roped in the
\nmurder case.  Insofar as the first occurrence is concerned, the Court is able to
\nsee that the second accused armed with knife and the third accused armed with
\naruval, attacked the first deceased indiscriminately and caused instantaneous
\ndeath of the first deceased.  This part of the prosecution case through the
\nocular testimony was also fully corroborated by the medical evidence. Thus, in
\nrespect of the first occurrence, the prosecution has proved that murder was
\ncommitted by A.2 and A.3.\n<\/p>\n
\t13. Insofar as the second occurrence was concerned, the second deceased
\nPoomari was killed at about 09.00 a.m. on the same day, in which, according to
\nthe prosecution, A.1 to A.4 have participated.  Even in that occurrence also,
\nA.1 was neither armed nor attributed any overt act and it was A.2 to A.4 who
\nhave  attacked the deceased Poomari.  Insofar as the second occurrence was
\nconcerned, the evidence of P.W.1 to P.W.3 were available.  It is highly doubtful
\nwhether P.W.1 and P.W.2 could have seen the occurrence at all. The Investigator
\nwho was examined as P.W.21, has categorically deposed that P.W.1 and P.W.2, at
\nthe time of interrogation under Section 161 Cr.P.C, have not stated that they
\nhave witnessed the occurrence and thus, it would be quite clear that P.Ws.1 and
\n2 could not have seen the occurrence at all.\n<\/p>\n
\t14. But, the prosecution had its advantage of the evidence of P.W.3.  It
\nis true, P.W.3 was only  10 years old and a school going child.  She, with
\nsufficient maturity, has given evidence before the court.  She has clearly
\nnarrated the entire episode by stating that all these accused came over there
\nand A.2 was armed with knife and A.3 was armed with aruval and A.4 was also
\npresent there. They attacked the deceased Poomari and it was A.3, who handed
\nover the aruval to his sister A.4 and asked her to attack the deceased Poomari
\nand A.4 attacked with that aruval and A.3 got it back and further attacked the
\ndeceased Poomari.  Thus, P.W.3 has given a clear narration about the occurrence,
\nin which A.4 has also participated.  The contention of the learned Counsel for
\nthe appellants that the role of A.4, as projected by the prosecution, was not
\nnatural, cannot be accepted for the simple reason that she was an aggrieved
\nparty and she could not live with her husband and she thought that Poomari was
\nresponsible for the same. Under these circumstances, she, in order to take a
\nrevenge, has acted so.  The contention of the learned Counsel for the appellants
\nthat the evidence of P.W.3 cannot be accepted, has got to be stated only for the
\npurpose of rejection.\n<\/p>\n
\t15. It is true that D.W.1 has been examined and Ex.D.1 attendance
\nregister, was marked to the effect that P.W.3 attended the school on 04.08.1999,
\nthe date of occurrence, and the school also commenced functioning by 09.00 a.m.,
\nwhich was the time of the second occurrence in which Poomari was murdered.  It
\nis pertinent to point out that even on 05.08.1999, when the dead bodies were
\ncremated, the entries in respect of P.W.3 were made in Ex.D.1, the attendance
\nregister, which would be indicative of the fact that even on the date when the
\nchild did not go to School, there was an entry of her presence and this would be
\nindicative of the fact that the attendance register was given entry of her
\npresence automatically.  D.W.1 has stated in his evidence that from June 1999 to
\nDecember 1999, there were no absentees at in all these months.  Thus, this would
\nbe indicative of the fact that the entries of the presence of the child were
\nmade automatically whether they were present or not. Under such circumstances,
\nthe Court at no stretch of imagination can rely on either the evidence of D.W.1
\nor the document Ex.D.1. While the witness, namely P.W.3, before the court has
\ncategorically spoken about her presence and has also given a graphic narration
\nof the entire incident, the Court without any hesitation has to believe such an
\nevidence, since it has inspired the confidence of the Court. Thus, the
\nprosecution has proved that A.2 to A.4 have participated in the crime. Insofar
\nas in the first occurrence was concerned, A.2 and A.3 have acted and shared
\ncommon intention and murdered the first deceased, while in the second
\noccurrence, A.2 to A.4 have shared common intention and caused the death of the
\nsecond deceased.  But, in both the occurrences, A.1 was a passive spectator and
\nthere is nothing to indicate that he shared the common intention of causing
\nmurder of either the first deceased or the second deceased.  Under such
\ncircumstances, in the absence of any overt act, A.1 cannot be found guilty as
\nput forth by the prosecution and he is entitled for acquittal of the charges
\nlevelled against him.\n<\/p>\n
\t16. In the result, this criminal appeal is partly allowed in respect of
\nA.1. The conviction and sentence imposed on the accused No.1 by the trial court
\nare set aside and the first accused alone is acquitted of the charges levelled
\nagainst him. A.1 is directed to be set at liberty forthwith unless his presence
\nis required in connection with any other case.  The fine amount, if any paid by
\nA.1, is ordered to be refunded to him.\n<\/p>\n
\t17.The criminal appeal is dismissed in respect of A.2 to A.4 and the
\nconvictions and sentences imposed by the trial court as against A.2 to A.4 are
\nconfirmed.\n<\/p>\n
\t18. Mr.C.Ramachandran, Advocate, who was appointed as Amicus Curiae
\ncounsel to argue the appeal on behalf of the appellants, is entitled to get
\nremuneration from the Legal Aid, Madurai.\n<\/p>\n
To<\/p>\n
1.The Additional Sessions Judge \/
\n  Fast Track Court No.I,
\n  Tuticorin.\n<\/p>\n
2.The Inspector of Police,
\n  Ottapidaram Police Station,
\n  Tuticorin 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 Ponnu Alias Peria Pachhai Perumal vs The State Represented By on 20 February, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20\/02\/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE G.RAJASURIA CRIMINAL APPEAL NO.319 OF 2004 1.Ponnu alias Peria Pachhai Perumal 2.Ganpathi 3.Chitravelu 4.Muthulakshmi .. Appellants Accused Nos.1 […]<\/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-183802","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPonnu Alias Peria Pachhai Perumal vs The State Represented By on 20 February, 2007 - 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\/ponnu-alias-peria-pachhai-perumal-vs-the-state-represented-by-on-20-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ponnu Alias Peria Pachhai Perumal vs The State Represented By on 20 February, 2007 - 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