{"id":37218,"date":"2008-04-16T00:00:00","date_gmt":"2008-04-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kumar-alias-kamatchi-vs-state-by-inspector-of-police-on-16-april-2008"},"modified":"2017-12-21T06:44:10","modified_gmt":"2017-12-21T01:14:10","slug":"kumar-alias-kamatchi-vs-state-by-inspector-of-police-on-16-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kumar-alias-kamatchi-vs-state-by-inspector-of-police-on-16-april-2008","title":{"rendered":"Kumar Alias Kamatchi vs State By Inspector Of Police on 16 April, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Kumar Alias Kamatchi vs State By Inspector Of Police on 16 April, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 16\/04\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCRIMINAL APPEAL (MD)NO.1116 OF 2000\n\n\n1.Kumar alias Kamatchi\n2.Kannan, S\/o.Arumugam\n3.Kannan, S\/o.Muthusamy\t\t\t\t\t..  Appellants\n\n\nVs.\n\n\nState by Inspector of Police,\nAdiramapattinam Police Station,\nThanjavur District\n(Crime No.803 of 1998)\t\t\t\t\t..  Respondent\n\n\n\tThis criminal appeal is preferred under Section 374 Cr.P.C. against the\njudgment of the learned II Additional District and Sessions Judge (Protection of\nCivil Rights), Thanjavur made in S.C.No.135 of 1999, dated 27.07.2000.\n\n!For Appellants  : Mr.R.Shanmugasundaram, SC\n\t\t    for Mr.V.Bharathidasan\n\n^For Respondent  : Mr.N.Senthurpandian, APP\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 learned II Additional
\nDistrict and Sessions Judge (Protection of Civil Rights), Thanjavur made in
\nS.C.No.135 of 1999, whereby the A-1 to A-3 stood charged under Section 341 IPC
\n(3 counts), A-1 and A-2 stood charged under Section 302 IPC and A-3 stood
\ncharged under Section 302 r\/w S.34 IPC. On trial, they were found guilty under
\nSections 341 and 302 r\/w S.34 IPC and sentenced to undergo one month S.I. each
\nunder Section 341 IPC and life imprisonment each under Section 302 r\/w S.34 IPC.\n<\/p>\n
\t2.Shorn of unnecessary details, the case of the prosecution can be stated
\nthus:\n<\/p>\n
\ta)P.W.1 is the son and P.W.2 is the wife of Natesan Ambalam. All the three
\naccused belonged to the same place. On 14.10.1998, Natesan Ambalam brought
\nsaplings through the ridge of the second accused, which resulted in a quarrel
\nbetween them and objections were raised by the second accused. The second
\naccused also pushed him down.  Following the same, the deceased along with the
\nothers went to the village. At about 6.00 p.m., they went to Thuvarankurichi to
\ninvite laborers for carrying out  plantation on the next day.\n<\/p>\n
\tb)On 14.10.1998 at about 8.30 p.m., when P.Ws.1 and 2 and Natesan Ambalam
\nwere actually returning home, they were restrained by all the three accused in
\nfront of the house of one Sakthivel. The first accused attacked Natesan Ambalam
\nwith iron rod on his head. The second accused attacked him with the wooden
\nportion of the spade and the third accused also kicked him on his chest. The
\noccurrence was witnessed not only by P.Ws.1 and 2, but also by P.Ws.3,4 and 5.
\nAll the accused fled away from the place of occurrence.\n<\/p>\n
\tc)P.Ws.1 and 2 informed the matter to one Rasu, the Panchayat President of
\nthe Village. Since there was no bus facility to go to the respondent police
\nstation, P.W.1 proceeded to the respondent police station in the next morning at
\nabout 5.00 a.m. P.W.14, the Inspector of Police, who was on duty at that time,
\nreceived Ex.P.1, the complaint given by P.W.1. On the strength of the same, a
\ncase came to be registered in Crime No.803 of 1998 under Sections 341, 323 and
\n302 IPC. Ex.P.11, the F.I.R. was despatched to the Court.\n<\/p>\n
\td)P.W.14 proceeded to the place of occurrence, made an inspection in the
\npresence of the witnesses and prepared Ex.P.2, the observation mahazar and
\nEx.P.9, the rough sketch. He recovered bloodstained earth, sample earth, iron
\npipe, spade and a stick and the other material objects from the place of
\noccurrence under a cover of mahazar. Then, he conducted inquest on the dead body
\nof the deceased in the presence of the witnesses and panchayatdars and prepared
\nEx.P.10, the inquest report. Thereafter, the dead body was sent to the
\nGovernment Hospital, Adirampattinam for the purpose of post-mortem along with
\nthe requisition.\n<\/p>\n
\te)P.W.9, the Doctor attached to the Government Hospital, Adirampattinam,
\non receipt of the requisition, has conducted post-mortem on the dead body of the
\ndeceased and has issued Ex.P.4, the post-mortem certificate, wherein he has
\nopined that the deceased would appear to have died of shock and haemorrhage due
\nto the injury to vital organ brain.\n<\/p>\n
\tf)Pending investigation, the Investigator arrested A-1 and A-2 in the
\npresence of the witnesses. A-3 was also arrested subsequently. All the accused
\nwere sent for judicial remand. All the material objects recovered from the place
\nof occurrence and from the dead body of the deceased were sent for chemical
\nanalysis by the Forensic Science Department. Ex.P.8, the Chemical Analyst’s
\nreport was received. On completion of the investigation, the Investigating
\nOfficer filed the final report.\n<\/p>\n
\t3.The case was committed to the Court of Sessions and necessary charges
\nwere framed. In order to substantiate the charges, the prosecution examined 14
\nwitnesses and relied on 11 exhibits and 9 M.Os. On completion of the evidence on
\nthe side of the prosecution, all the accused were questioned under Section 313
\nCr.P.C. as to the incriminating circumstances found in the evidence of
\nprosecution witnesses, which they flatly denied as false. No defence witness was
\nexamined. The trial court, after hearing the arguments advanced and looking into
\nthe materials available, took the view that the prosecution has proved the case
\nbeyond reasonable doubt, found the appellants\/accused guilty as stated above and
\nawarded punishments as referred to above, which is the subject matter of
\nchallenge before this court.\n<\/p>\n
\t4.Advancing arguments on behalf of the appellants, the learned Senior
\nCounsel would submit that in the instant case, the prosecution has miserably
\nfailed to prove its case; that it is true, the prosecution has marched 5
\nwitnesses, who are P.Ws.1 to 5, as eyewitnesses; that it would be quite clear
\nfrom their evidence that P.Ws.1 to 5 could not have seen the occurrence at all;
\nthat P.Ws.4 and 5 have candidly admitted that after hearing the distressing cry,
\nthey came out of the house with Chimney, but it did not burn further and they
\ncould not see the assailants, but they saw that the assailants were actually
\nrunning and hence from their evidence, it would be quite clear that they could
\nnot have seen the occurrence at all; that from the evidence of P.W.4, it would
\nbe quite clear that P.Ws.1 and 2 and others have come to the spot only after 15
\nminutes from the time of the occurrence; and thus all would indicate that P.Ws.1
\nand 2 could not have seen the occurrence at all; that so far as P.W.3 is
\nconcerned, he did not see the occurrence, but he actually chased the assailants
\nalong with P.W.1 and thus, his evidence was not available for the prosecution.\n<\/p>\n
\t5.Added further the learned Senior Counsel that the occurrence has taken
\nplace at about 8.30 p.m.; that admittedly, no street light was burnt and it was
\nonly the Chimney of P.Ws.4 and 5 available; that from the evidence available, it
\nwould be quite clear that P.Ws.1 and 2 could not have seen the occurrence; that
\nP.W.3 did not see the occurrence; that P.Ws.4 and 5 also could not have seen the
\noccurrence at all; that all put together would indicate that the so-called
\neyewitnesses were not in favour of the prosecution; that in the instant case,
\nthere was an unexplained and inordinate delay in giving a report to the
\nrespondent police station; that admittedly, the police station is situated at
\nAdiramapatinam, which is situated 10 Kms. from the place of occurrence, namely
\nMunumankollai; that admittedly Thuvarankurichi is situated within 1-1\/2 Kms.,
\nwhere number of Taxis were available and number of shops were situated; that
\nabout 15 to 20 persons have assembled at the place of occurrence; that though
\nthe occurrence has taken place at about 8.30 p.m., the report was given by P.W.1
\nto the respondent police station at about 5.00 a.m. on 15.10.1998 and thus,
\nthere was an unexplained delay for about 8-1\/2 hours.\n<\/p>\n
\t6.The learned Senior Counsel would further add that immediately after the
\noccurrence, P.W.1 informed the same to the Village President, but he was not
\nexamined and thus, a false complaint has been given against the appellants and
\nit was a surmise one; that as per the post-mortem certificate, 5 injuries of
\ndistinct in nature were found; that those injuries were not accounted by the
\neyewitnesses and thus, all would go to show that the eyewitnesses could not have
\nseen the occurrence at all and under these circumstances, the prosecution had no
\nevidence to offer. Further, there were discrepancies found in the description of
\nthe weapons of crime. In the complaint, P.W.1 has stated that A-1 attacked the
\ndeceased with iron rod, but in the evidence, he has stated that A-1 attacked the
\ndeceased with iron pipe. Further in Ex.P.1, it was stated that A-2 attacked the
\ndeceased with a stick, but P.W.1 has stated in his evidence that A-2 attacked
\nthe deceased with the wooden portion of the spade. The eyewitnesses did not have
\neither proper description of weapons of crime or account for the injuries
\ncaused.  Thus, it could be easily inferred that they could not have seen the
\noccurrence at all. The lower court has not considered any one of the aspects of
\nthe matter and hence the appellants are entitled for acquittal in the hands of
\nthis court.\n<\/p>\n
\t7.The court heard the learned Additional Public Prosecutor on the above
\ncontentions and has paid its anxious consideration on the submissions made.\n<\/p>\n
\t8.It is not in controversy that one Natesan Ambalam was done to death in
\nan occurrence that had taken place at about 8.30 p.m. on 14.10.1998, as put
\nforth by the prosecution. Following the inquest made by P.W.14, the Inspector of
\nPolice, the dead body was subjected to post-mortem by P.W.9, the Doctor, who has
\nissued Ex.P.4, the post-mortem certificate, wherein he has opined that the
\ndeceased would appear to have died of shock and haemorrhage due to the injuries
\nsustained. Further, the deceased died out of homicidal violence was not the
\nsubject matter of controversy before the trial court. Hence, it has got to be
\nfactually recorded so.\n<\/p>\n
\t9.In order to substantiate the charges levelled against the appellants,
\nthe prosecution examined 5 witnesses, as occurrence witnesses, who are P.Ws.1 to\n<\/p>\n
5. As rightly pointed out by the learned Senior Counsel for the appellants,
\nP.Ws.4 and 5 could not have seen the occurrence at all. P.W.4 is the mother of
\none Sakthivel, in front of whose house, the occurrence has taken place. She has
\ncandidly admitted that she was inside the house at the time of occurrence and on
\nhearing the distressing cry, she came outside with the Chimney light. According
\nto P.W.5, after hearing the distressing cry, she also came outside. From the
\nevidence of P.Ws.4 and 5, it would be quite clear that they could not have seen
\nthe occurrence at all and when they came out, it was darkness and the assailants
\nwere actually running and thus, their evidence has got to be rejected, as
\nrightly pointed out by the learned Senior Counsel for the appellants.\n<\/p>\n
\t10.The contention put forth by the learned Senior Counsel for the
\nappellants that the evidence of P.Ws.1 and 2 is also rejectionable cannot be
\ncountenanced. The learned Senior Counsel   relied on the evidence of P.W.4.
\nAccording to P.W.4, P.Ws.1 and 2 and others have come to the spot after 15
\nminutes from the time of occurrence. But, P.Ws.1 and 2 have categorically spoken
\nabout the fact that both of them went along with the deceased to a nearby
\nvillage for inviting the labourers and they returned to their village and when
\nthey came in front of the house of P.W.4, A-1 armed with iron rod, A-2 armed
\nwith stick and A-3 unarmed came there and attacked the deceased. Both of them
\nhave spoken in one voice. It is true, both of them are close relatives to the
\ndeceased. But, merely on the ground of relationship, their evidence cannot be
\ndiscarded, but it must be scrutinized carefully. After exercising the test of
\ncareful scrutiny, the court is of the considered opinion that as rightly stated
\nby the lower court, their evidence inspired the confidence of the court. Once
\nboth the witnesses have given a clear narration that they went along with the
\ndeceased to a nearby village and when they were returning, the occurrence has
\ntaken place, it cannot be stated that they could not have seen the occurrence at
\nall. It is pertinent to point out that the occurrence has taken place at about
\n8.30 p.m. during night hours when P.Ws.1 and 2 came along with the deceased and
\nall the accused persons were known to them. As rightly pointed out by the lower
\ncourt, their evidence was natural, convincing and hence acceptable.\n<\/p>\n
\t11.The other contention put forth by the learned Senior Counsel for the
\nappellants that 5 distinct injuries were not properly accounted for, cannot be
\naccepted for the simple reason that the occurrence has taken place at about 8.30
\np.m., during night hours. P.W.1 is the son and P.W.2 is the wife of the deceased
\nand thus, they are close relatives of the deceased. Being the close relatives of
\nthe deceased and in that excitement, nobody could expect them to notice or
\naccount the injuries properly.\n<\/p>\n
\t12.Further, much labour was made by the learned Senior Counsel in respect
\nof the delay caused in giving the report to the police. The occurrence has taken
\nplace at about 8.30 p.m. in a remote village. The police station is situated 10
\nKms. away from the place of occurrence. It is admitted that Thuvarankurichi is
\nsituated within 1-1\/2 Kms. from the place of occurrence. It is pertinent to
\npoint out that the place where the occurrence has taken place is not the nearby
\nplace of residence of P.W.1. Immediately, P.W.1 proceeded to the Village
\nPresident and informed about the same. Thus, it would be quite clear that it was
\nnot immediately passed in their mind that they could reach the police station,
\nbut on the other hand, P.W.1 went to the Village Panchayat. Apart from that,
\nthey reached the police station at about 5.00 a.m. even before the dawn hours.
\nThus, it would be quite clear that though some delay is noticed, it has happened
\nin the course of natural events.\n<\/p>\n
\t13.Further, description in the weapons of crime is concerned, in the
\nreport, it was mentioned as iron rod and in the evidence, P.W.1 has stated that
\nit was iron pipe. Further, in the report, it has been mentioned that A-2
\nattacked the deceased with a stick, but during evidence, it was stated that A-2
\nattacked him with the wooden portion of the spade. The court is of the
\nconsidered opinion that the evidence in this regard do not make the matter much,
\nbecause the description of the weapons of crime will not in any way tilt the
\nbalance in favour of the defence. Once the evidence of P.Ws.1 and 2 are
\navailable for the prosecution and their evidence has also inspired the
\nconfidence of the court and further, their evidence is supported by the medical
\nevidence, the court is of the considered opinion that the prosecution has
\nbrought home the guilt of A-1 and A-2.\n<\/p>\n
\t14.As per the prosecution case, it was the first accused, who attacked the
\ndeceased with iron rod on his head. As per the post-mortem certificate, the
\nshock and haemorrhage due to the injury to the Brain was the cause for death and
\nthus, it could be easily inferred that A-1 has caused fatal injury. Hence, A-1
\ncould be convicted under Section 302 IPC and sentenced to undergo life
\nimprisonment. So far as A-2 is concerned, he has attacked the deceased with the
\nstick and hence it has got to be stated that he has no intention to cause death.
\nTherefore, he could be convicted under Section 324 IPC and awarding punishment
\nof 3 years R.I. would meet the ends of justice. Insofar as A-3, even as per the
\nprosecution case, he has kicked the deceased, but no corresponding injury was
\nfound and thus, the overt act attributed to A-3 remained unproved and hence A-3
\nhas got to be acquitted.\n<\/p>\n
\t15.Accordingly, the judgment of conviction and sentence passed by the
\nlower court under Section 302 r\/w S.34 IPC is set aside and instead, A-1 is
\nconvicted under Section 302 IPC and sentenced to undergo life imprisonment, A-2
\nis convicted under Section 324 IPC and sentenced to undergo three years R.I. The
\nconviction and sentence imposed on A-1 and A-2 under Section 341 IPC are
\nconfirmed. The sentences imposed on A-1 and A-2 are to run concurrently. A-3 is
\nacquitted of the charges levelled against him. The sentence already undergone by
\nA-2 is ordered to be given set off. It is reported that A-1 and A-2 are on bail
\nand hence the concerned Sessions Judge shall take steps to secure and commit A-1
\nto prison to undergo the period of sentence and also to secure and commit A-2 to
\nprison to undergo the remaining period of sentence, if any. The bail bond
\nexecuted by A-3 shall stand terminated.\n<\/p>\n
\t16.With the above modification in conviction and sentence, this criminal
\nappeal is partly allowed.\n<\/p>\n
vvk<\/p>\n
To<\/p>\n
1.The II Additional District and
\n   Sessions Judge (P.C.R.)
\n  Thanjavur.\n<\/p>\n
2.The Inspector of Police,
\n  Adiramapattinam Police Station,
\n  Thanjavur District.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kumar Alias Kamatchi vs State By Inspector Of Police on 16 April, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16\/04\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL (MD)NO.1116 OF 2000 1.Kumar alias Kamatchi 2.Kannan, S\/o.Arumugam 3.Kannan, S\/o.Muthusamy .. Appellants Vs. State by Inspector […]<\/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-37218","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKumar Alias Kamatchi vs State By Inspector Of Police on 16 April, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kumar-alias-kamatchi-vs-state-by-inspector-of-police-on-16-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kumar Alias Kamatchi vs State By Inspector Of Police on 16 April, 2008 - 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