{"id":26908,"date":"2006-07-11T00:00:00","date_gmt":"2006-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kanniah-vs-state-by-on-11-july-2006"},"modified":"2018-01-04T12:28:07","modified_gmt":"2018-01-04T06:58:07","slug":"kanniah-vs-state-by-on-11-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kanniah-vs-state-by-on-11-july-2006","title":{"rendered":"Kanniah vs State By: on 11 July, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Kanniah vs State By: on 11 July, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 11\/07\/2006\n\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE M.E.N.PATRUDU\n\n\nCRL.A.No.1185 of 2002\n\n\n1.Kanniah\n2.Sonai\n   (Amended as per the order of the\n   Court dated 20.2.2004 in\n   Crl.M.P.No.1906\/2004)\t... \t\tAppellants\n\nvs\n\n\nState by:\nThe Inspector of Police\nIlayankudi Police Station\nSivagangai\t\t\t...\t\tRespondent\n\n\n\n\tCriminal appeal preferred under Sec.374 of the Code of Criminal Procedure\nagainst the judgment of the Principal Sessions Judge, Sivagangai, made in\nS.C.No.89 of 2001 and dated 27.3.2002.\n\n\n!For Appellant \t\t...\tMr.S.Ramasamy\n\n\n^For Respondent\t\t...\tMr.N.Senthur Pandian, A.P.P.\n\n\n:JUDGMENT\n<\/pre>\n
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)<\/p>\n
\tChallenging a judgment of the Principal Sessions Division, Sivagangai,
\nmade in S.C.No.89 of 2001, the appellants who were arrayed as A-1 and A-2
\nrespectively before the trial Court in a case of murder, wherein A-1 and A-2
\nstood charged under Sections 451 and 302 read with 34 of I.P.C., while A-1 under
\nSec.307 of I.P.C., and A-1 and A-2 were found guilty under Sec.302 read with 34
\nof I.P.C. and awarded life imprisonment, the appellants have brought forth this
\nappeal.  So far as the other charges are concerned, the trial Court recorded a
\nfinding of acquittal.\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 Vani Colony within the Ilayankudi Police Limits.
\nThe deceased Alagar was her father.  P.W.4 is the daughter of P.W.1.  The
\nhusband of P.W.1 is the brother of A-1.  A-2 is the father of A-1.  The husband
\nof P.W.1 had four sisters by names Pushpavalli, Panchavarnam, Kanniammal and
\nVellimuthu and one brother by name Kanniah.  Pushpavalli was given in marriage
\nto one Govindan, while Panchavarnam was given in marriage to one Malaisamy.
\nVellimuthu was also given in marriage to one Muniandi.  They were all living
\nseparately.  The mother-in-law of P.W.1 used to raise quarrel on the ground that
\nher daughters were not given sufficient seervarisai at the time of their
\nmarriages.  Pursuant to the quarrel, P.W.1 gave a police complaint, and her
\nmother-in-law  also gave a police complaint.  Both parties were called by the
\nPolice Officials, and they were advised to live peacefully.  While the matter
\nstood thus, one of the sisters-in-law of P.W.1 namely Vellimuthu, died.  There
\nwere negotiations going on to give the other sister-in-law namely Kanniammal, to
\nMuniandi, the husband of Vellimuthu.  Even during that time, they did not even
\ninform about the same to P.W.1 or her husband.  They were living away from the
\njoint family.  P.W.1 who was employed away, just 20 days prior to the marriage,
\ncame over there, and prior to the marriage, the first accused challenged the
\nhusband of P.W.1 stating “You wait till the marriage, I will see you”.  On the
\ndate of occurrence i.e., 5.6.2000, the husband of P.W.1 went for wood cutting.
\nP.W.1 and her daughter P.W.4, were in the house.  At the time of occurrence, A-1
\narmed with an iron rod and A-2 armed with a stick came over there and enquired
\nabout the husband of P.W.1.  On seeing P.W.1, they chased her.  When she raised
\nalarm, her father Alagar, came to the rescue.  At that time, A-1 uttered “We
\nhave been searching for you. You die with this”.  So saying, A-1 attacked him on
\nhis head with the iron rod, and A-2 also attacked him with the stick on
\ndifferent parts of the body.  When P.W.1 interfered, she was also attacked, and
\nshe sustained a fracture on the clavicle bone.  Thereafter, A-1 and A-2 left the
\nplace of occurrence.  P.W.4 who was standing nearby, saw the entire occurrence.
\nThen, P.W.1 proceeded to Ilayankudi Police Station, where P.W.10, the Sub
\nInspector of Police, was present, and he registered a case on the strength of a
\ncomplaint, Ex.P1, given by P.W.1, in Crime No.375 of 2000 under Sections 302,
\n324 and 307 of I.P.C.  The printed First Information Report, Ex.P16, was
\ndespatched to the Court.\n<\/p>\n
\t(b) P.W.1 was sent to the Government Hospital for treatment.  P.W.2, the
\nMedical Officer, who was present on 5.6.2000, examined P.W.1 medically and has
\nalso given a wound certificate, marked as Ex.P2, with regard to the injuries
\nsustained by her.  The X-ray was taken by P.W.3, and the X-ray report is Ex.P3.\n<\/p>\n
\t(c) On receipt of the copy of the F.I.R., P.W.11, the Inspector of Police,
\ntook up investigation, proceeded to the scene of occurrence, made an inspection
\nand prepared Ex.P4, the observation mahazar, and Ex.P17, the rough sketch.  He
\nrecovered some material objects from the place of occurrence.  Then, he
\nconducted inquest on the dead body of Alagar in the presence of witnesses and
\npanchayatdars and prepared Ex.P18, the inquest report.  The dead body was sent
\nto the Government Hospital along with a requisition, Ex.P7, for conduct of
\nautopsy.\n<\/p>\n
\t(d) On receipt of the said requisition, P.W.7, the Senior Assistant
\nSurgeon, attached to the Government Hospital, Ilayankudi, conducted autopsy on
\nthe dead body of Alagar and found the following injuries:
\n“(1)A lacerated injury on the left side of the parieto temporal area about 7 cms
\nx 2 cm x bone depth.  Multiple clots and bleeding of dark coloured fluid blood
\nseen on the wound.  On exploration dark coloured blood clots seen in between the
\nscalp and the skull bones.  On further exploration left side of parietal and
\ntemporal bones are fractured.  About 300 ml of dark coloured fluid blood gets
\ncollected in the subarachnoid space, intracerebral cavities, and left lateral
\nventricle.”\n<\/p>\n
The Doctor has given Ex.P8, the postmortem certificate, with his opinion that
\nthe deceased would appear to have died of shock and haemorrhage due to fatal
\nhead injury, 12 to 24 hours prior to autopsy.\n<\/p>\n
\t(e) Both the accused were arrested on 7.6.2000 by the Investigating
\nOfficer at 10.00 A.M.  Since injuries were found on them, they were sent for
\nmedical examination.  P.W.7, the Medical Officer, examined them and gave Exs.P9
\nand P10, the wound certificates, respectively.  All the material objects
\nrecovered from the place of occurrence including the weapon of crime, and also
\nfrom the dead body were subjected to chemical analysis.  The Chemical Analyst’s
\nreport, Ex.P14, and the Serologist’s report, Ex.P15, were received by the
\ncommittal Court.   On completion of investigation, P.W.12, who took up further
\ninvestigation, filed the final report.\n<\/p>\n
\t3.The case was committed to Court of Session, and necessary charges were
\nframed.  In order to establish the charges, the prosecution examined 12
\nwitnesses and relied on 18 exhibits and 7 material objects.  On completion of
\nevidence on the side of the prosecution, both the accused were questioned under
\nSec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence
\nof the prosecution witnesses.  They denied them as false.  No defence witness
\nwas examined.  Only one document namely the observation mahazar, in Crime
\nNo.376\/2000 of Ilayankudi Police Station was marked as Ex.D1.  The trial Court
\nafter hearing the rival submissions and scrutiny of the materials, found both
\nthe accused guilty under Sec.302 read with 34 of I.P.C. and awarded life
\nimprisonment.  In respect of all other charges, they were acquitted.  Hence,
\nthis appeal at the instance of the appellants before this Court.\n<\/p>\n
\t4.Arguing for the appellants, the learned Counsel in his sincere attempt
\nof assailing the judgment of the lower Court, would submit that in the instant
\ncase, there were only two eyewitnesses, who were P.Ws.1 and 4; that P.W.1 is the
\ndaughter of the deceased; that P.W.4 is the grand-daughter of the deceased, and
\nthus, they are interested witnesses; that in the instant case, they could not
\nhave seen the occurrence at all; that apart from that, as regards the motive for
\nthe entire occurrence, even as per the prosecution case, the accused had motive
\nagainst the husband of P.W.1; that there was no motive available for the accused
\nto act against either the deceased or P.W.1; that it is true that a case came to
\nbe registered by the respondent police on the arrest of the accused on 7.6.2000,
\nin Crime No.376 of 2000; that the observation mahazar prepared by the same
\nInvestigating Officer, is marked as Ex.D1; that a perusal of Ex.D1 would clearly
\nreveal that the place of occurrence is different from one as found in the
\nobservation mahazar prepared in this case; that the occurrence in Crime
\nNo.376\/2000 is exactly the part and parcel of the same transaction; and that
\neven without any investigation in Crime No.376\/2000, the Investigating Officer
\nhas referred the case as mistake of fact the very day.\n<\/p>\n
\t5.The learned Counsel would further submit that P.W.1, after the
\nregistration of the case, was sent for medical examination; that she was
\nexamined by P.W.2, to whom she has clearly stated that she was attacked by 8
\nknown persons; but, in the F.I.R., she has spoken about only two named persons,
\nand thus, the evidence of P.W.1 is highly unbelievable and improbable also; that
\nin the instant case, number of injuries were sustained by A-1 and A-2; that both
\nwere also examined by the Medical Person on 7.6.2000; that the documents are
\nalso marked as Exs.P9 and P10 respectively; that a perusal of the documents
\nwould clearly indicate that the injuries were sustained by them in the
\noccurrence that took place on 5.6.2000; but, neither in the F.I.R. nor in the
\nevidence of P.Ws.1 and 4, who according to the prosecution, were the
\neyewitnesses, these injuries are not explained; that in the absence of any
\nexplanation tendered by the prosecution, the lower Court should have rejected
\nthe case of the prosecution; that apart from that, in the instant case, the
\nInvestigating Officer has also not investigated the case in Crime No.376\/2000;
\nthat even assuming the acts of the accused that they attacked the deceased are
\nproved, so far as A-1 was concerned, only one injury what is stated in the
\npostmortem certificate, is found to be fatal, and that was allegedly inflicted
\nby A-1, and the other injuries alleged to have been inflicted by A-2, were only
\ntrivial in nature; that when they went over to the spot, they did not have any
\nintention to attack the deceased, against whom they had no motive at all; that
\napart from that, the injuries sustained by the accused, would also clearly
\nindicate that there was an occurrence in which they have been attacking each
\nother, and under the circumstances, the acts of the accused would not fall
\nwithin the ambit of murder; that they have got to be individually dealt with;
\nthat so far as A-2 is concerned, the injuries allegedly caused by him, were
\nsimple in nature; that as regards A-1, he had not committed the act with
\nintention or premeditation, and hence, it has got to be considered by the Court.\n<\/p>\n
\t6.The Court heard the learned Additional Public Prosecutor on the above
\ncontentions.\n<\/p>\n
\t7.According to the prosecution, the occurrence has taken place on 5.6.2000
\nnear the house of the deceased Alagar.  The fact that Alagar died out of
\nhomicidal violence is proved by sufficient evidence put forth by the
\nprosecution.  Following the inquest, the dead body was subject to postmortem by
\nP.W.7, who has also spoken to the said fact in Court.  The postmortem
\ncertificate has also been marked, and apart from that, the fact that Alagar died
\nout of homicidal violence was not questioned by the appellants\/accused either
\nbefore the trial Court or before this Court.  Hence, it could be safely recorded
\nso.\n<\/p>\n
\t8.The next question that would arise for consideration is whether the
\ncommission of the offence by the accused is proved by the prosecution beyond anu
\nreasonable doubt.  In the instant case, the prosecution had projected its case
\nthrough two witnesses, P.Ws.1 and 4.  P.Ws.1 and 4 are the daughter and grand-
\ndaughter of the deceased respectively.  When their evidence is closely
\nscrutinised, it inspired the confidence of the Court.  It has to be pointed out
\nthat P.W.1 has narrated as to how the occurrence has taken place and how they
\nhappened to live away from the joint family.  P.W.1 has also spoken to the fact
\nthat A-1 armed with an iron rod and A-2 armed with a stick, came to the spot in
\nsearch of her husband and when they did not find her husband, they chased her to
\nattack her, and at that time, her father Alagar, intervened, and he was attacked
\nby both of them, and he sustained injuries and succumbed to the same.  This
\nevidence of P.W.1 is fully corroborated by the evidence of P.W.4.  Despite full
\ncross-examination, their evidence in chief-examination remained intact.  Apart
\nfrom that, their ocular testimony is fully supported by the medical evidence
\nadduced through the postmortem Doctor, P.W.7.  In the instant case, the
\nprosecution to its advantage had the evidence of P.W.1, who is also injured in
\nthe case.  She was examined by P.W.2, the Doctor, who has also given a
\ncertificate as to the injuries sustained by her.\n<\/p>\n
\t9.Now, it is pertinent to point out that the Police Station is situated
\nwithin 6 kilometres from the place of occurrence, and the F.I.R. has come into
\nexistence within an hour, wherein she has clearly mentioned both the names of
\nthe accused and their acts also.  Therefore, this would also indicate the truth
\nof the prosecution case.  The contention put forth by the learned Counsel for
\nthe appellants that when P.W.1 was examined by the Doctor, P.W.2, she had stated
\nthat she was attacked by 8 known persons, which is totally contra to the F.I.R.,
\nand thus, her evidence has got to be disbelieved has got to be stated for the
\npurpose of rejection for the simple reason that the earliest document in the
\ncase is the F.I.R. and not the wound certificate wherein the statement of P.W.1
\nis recorded by the Doctor.  Now, it remains to be stated that when the Medical
\nOfficer was examined, he would say that originally she stated that she was
\nassaulted by four persons, which was recorded, and subsequently, she mentioned
\nthat 8 persons have assaulted her, and thus, there was an alteration.  It has to
\nbe pointed out that in the earliest document, FIR, she has given the names of
\nthe accused and the acts committed by them.  In such circumstances, there is no
\nneed for giving any importance or evidentiary value to the wound certificate
\nissued to P.W.1, wherein such statement has been made.  Hence, the Court need
\nnot give any importance or credence to the statement in the wound certificate.
\nThus, the ocular testimony of P.W.1 stood fully corroborated by the evidence of
\nP.W.4 and inspired the confidence of the Court.  Under the circumstances, this
\nCourt is of the view that their evidence has got to be accepted.\n<\/p>\n
\t10.The next point raised by the learned Counsel for the appellants is that
\nthe appellants\/accused also sustained injuries.  It is pertinent to point out
\nthat all these injuries were found to be simple, and apart from that, though it
\nwas not explained by the prosecution, attempts were made at the time of cross-
\nexamination how bite marks were found on the body of the accused, and it was
\nalso explained.  It is true that In the instant case, a case came to be
\nregistered by the respondent police in Crime No.376 of 2000; but, it was
\nregistered after the arrest of the accused on 7.6.2000.  The occurrence in the
\ninstant case, has taken place on 5.6.2000, and thus, it would be quite clear
\nthat the accused after the occurrence was over, fled away from the place of
\noccurrence and did not come to the Police Station to give a complaint; but,
\nafter they were arrested on 7.6.2000, A-1 came forward to give a complaint, and
\nit has also been registered.  Taking into consideration that a case under
\nSec.302 of I.P.C. and for attempt to murder has also been registered against
\nboth the accused named in the F.I.R., and these injuries found on the accused,
\nwere superficial and simple, and after making the investigation that day, the
\ncase was referred to as mistake of fact, this Court is able to notice no defect
\nin the procedure followed.  Apart from that, the injuries  were found to be not
\nserious in nature, and the explanation was also obtained at the time of the
\ncross-examination.  Now, at this juncture, this Court is unable to attach much
\nimportance to the injuries sustained by the accused, and on that ground, the
\nprosecution case cannot found to be shaky.\n<\/p>\n
\t11.The Apex Court has held in AMAR MALLA VS. STATE OF TRIPURA  (AIR 2002
\nSC 3052) that it is well settled that merely because the prosecution has failed
\nto explain injuries on the accused persons, ipso facto, the same cannot be taken
\nto be a ground for throwing out the prosecution case, especially when the same
\nhas been supported by eye-witnesses, including injured ones as well, and their
\nevidence is corroborated by medical evidence as well as objective finding of the
\nInvestigating Officer.\n<\/p>\n
\t12.It has also been held by the Apex Court in DHANANJAY SHANKER SHETTY VS.
\nSTATE OF MAHARASHTRA (AIR 2002 SC 2787) that the non-explanation of injuries
\nassumes significance when there are material circumstances which make the
\nprosecution case doubtful.  In the instant case, there are no material
\ncircumstances available to doubt the case put forth by the prosecution.  Apart
\nfrom that, the injuries sustained by the accused, have been explained by the
\nwitness.\n<\/p>\n
\t13.In a decision reported in 2003 SCC (CR) 1144 (NARENDRA NATH KHAWARE VS.
\nPARASNATH KHAWARE), the Apex Court has held that the complainant was an injured
\neye-witness, and therefore, there could not be any doubt about his presence on
\nthe spot.\n<\/p>\n
\t14.In view of the above, there is sufficient evidence to hold that by
\ntheir act, the appellants\/accused have caused the death of the deceased Alagar,
\nat the time of incident.\n<\/p>\n
\t15.Coming to the question of the nature of the act of the accused, the
\nCourt is able to see some force in the contention put forth by the appellants’
\nside.  Even as per the prosecution case, A-1 and A-2 went in search of the
\nhusband of P.W.1, and it was not their intention to attack either P.W.1 or the
\nfather of P.W.1.  Thus, they had no intention to share.  Under the
\ncircumstances, the question of invoking Sec.34 of I.P.C. would not arise.  From
\nthe medical evidence, it would be quite clear that there is only one fatal
\ninjury, and the same was also inflicted by  A-1, and all other injuries
\nsustained were simple injuries, which were inflicted by A-2.  So long as there
\nis no common intention, which could be seen or drawn, they have got to be dealt
\nwith for the acts committed by them.  In the instant case, the accused have also
\nsustained injuries.  The nature of injuries found in the wound certificates,
\nEx.P9 in respect of A-1, and Ex.P10 in respect of A-2, would clearly<\/p>\n
indicate that some quarrel has preceded, and there would have been scuffling, in
\nwhich these injuries could have been sustained by the accused.  But, the
\nevidence is clearly pointing that it was the act of A-1 which caused the death
\nof Alagar; but, it is not intentionally or deliberately done.  But, at the same
\ntime, A-1 should have got the knowledge that by acting so, the injuries are
\nlikely to cause death.  Under the circumstances, the act of A-1 will not fall
\nwithin the ambit of murder, but would attract the penal provisions of Sec.304
\n(Part II) of I.P.C.  So far as the act of A-2 causing simple injuries, is
\nconcerned, it would attract the penal provisions of Sec.324 of I.P.C.  As
\nregards the punishment, this Court is of the view that 5 years Rigorous
\nImprisonment to A-1 and 2 years Rigorous Imprisonment to A-2 would meet the ends
\nof justice.\n<\/p>\n
\t16.Therefore, the conviction and sentence imposed on the appellants by the
\ntrial Court under Sec.302 read with 34 of I.P.C. are set aside, and instead A-1
\nis convicted under Sec.304 (Part II) of I.P.C., for which he is directed to
\nundergo five years Rigorous Imprisonment.  A-2 is convicted under Sec.324 of
\nI.P.C. and is sentenced to 2 years Rigorous Imprisonment.  The sentence already
\nundergone by them, shall be given set off.  It is reported that A-2 is on bail.
\nHence, the Sessions Judge shall take steps to commit A-1 to prison to undergo
\nthe remaining period of sentence if any.\n<\/p>\n
\t17.In the result, with the above modification in conviction and sentence,
\nthis criminal appeal is dismissed.\n<\/p>\n
To:\n<\/p>\n
1)The Principal Sessions Judge
\n   Sivagangai\n<\/p>\n
2)The Inspector of Police
\n   Ilayankudi Police Station
\n   Sivagangai\n<\/p>\n
3)The Public Prosecutor,
\n   Madurai Bench of Madras High Court<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kanniah vs State By: on 11 July, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11\/07\/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU CRL.A.No.1185 of 2002 1.Kanniah 2.Sonai (Amended as per the order of the Court dated 20.2.2004 in Crl.M.P.No.1906\/2004) … Appellants vs State by: The […]<\/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-26908","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKanniah vs State By: on 11 July, 2006 - 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\/kanniah-vs-state-by-on-11-july-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kanniah vs State By: on 11 July, 2006 - 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