{"id":89238,"date":"2008-02-21T00:00:00","date_gmt":"2008-02-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-jayabal-vs-state-rep-by-on-21-february-2008-2"},"modified":"2016-08-15T01:07:42","modified_gmt":"2016-08-14T19:37:42","slug":"r-jayabal-vs-state-rep-by-on-21-february-2008-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-jayabal-vs-state-rep-by-on-21-february-2008-2","title":{"rendered":"R.Jayabal vs State Rep. By on 21 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
R.Jayabal vs State Rep. By on 21 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 21\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCRL.A. No.1003 of 2000\n\n1.R.Jayabal\n2.R.Savier\t\t\t\t\t\t\t.. Appellants\n\nvs\n\nState rep. by\nInspector of Police\nNaducauvery Police Station\nThanjavur District\n(Crime No.405\/97)\t\t\t\t\t\t.. Respondent\n\n\n\tCriminal appeal preferred under Sec.374 of the Code of Criminal Procedure\nagainst the judgment of the Principal Sessions Judge, Thanjavur, in S.C.No.168\nof 1999 dated 27.6.2000.\n\n\n!For Appellants\t\t...  Mr.A.Anbalagan\n\n^For Respondent\t\t...  Mr.P.N.Pandithurai\n\t\t\t   Additional Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)<\/p>\n
\tThis appeal challenges a judgment of the Principal Sessions Division,
\nThanjavur, made in S.C.No.168 of 1999 whereby these appellants shown as A-1 and
\nA-2 respectively, along with A-3 stood charged, tried and found guilty as
\nfollows:\n<\/p>\n
————————————————————–
\nAccused\t\tCharge\t\tConviction\t\tSentence\n<\/p>\n
————————————————————–<\/p>\n
\n\nA-1\t\t\t302 IPC\t\t302 IPC\t\tLife imprisonment\n\t\t\t\t\t\t\tand a fine of\n\t\t\t\t\t\t\tRs.1,000\/- with\n\t\t\t\t\t\t\tdefault sentence\n\nA-2 \t\t\t302 read\t302 read \tLife imprisonment\n\t\t\twith 34 IPC\twith 34 IPC\tand a fine of\n\t\t\t\t\t\t\tRs.1,000\/- with\n\t\t\t\t\t\t\tdefault sentence\n\n<\/pre>\n
————————————————————–\n<\/p>\n
\t2.Though A-3 was charged under Sections 302 read with 34 and 341 of IPC,
\nshe was acquitted of the charges by the trial Court.\n<\/p>\n
\t3.Shorn of unnecessary details, the prosecution case can be stated thus:\n<\/p>\n
\t(a) P.W.1 is the native of Melathiruppanthuruthi.  P.W.4 is the wife of
\nthe deceased Ponnthaisezhiyan.  A-1 is the husband of A-3.  A-2 is the elder
\nbrother of A-1.  There was a rivalry between A-3 and the husband of P.W.4 due to
\nthe election that took place in the past. On 23.8.1997 at about 5.00 p.m., A-1,
\nA-2 and A-3 were abusing the deceased standing in front of the house.  The
\ndeceased told that they have already given false complaint, and why they should
\nshout.  At that time, A-1 told that within 24 hours he would see to that. At
\nabout 7.15 p.m., when the deceased was just proceeding outside the house in
\norder to go to Thanjavur, P.W.4 was standing in front of the house.  P.Ws.1, 2
\nand 3 were all standing nearby at that time.  When the deceased was just
\ncrossing the house of A-1, A-1 attacked him with a kuthukol, while A-2 with an
\naruval while he was being waylaid by A-3.  He sustained injuries in that
\nprocess.  The occurrence was witnessed by P.Ws.1 to 4 and also P.W.5.  All these
\naccused fled away from the place of occurrence.\n<\/p>\n
\t(b) When the injured was taken to the hospital, P.W.10, the Doctor, who
\nwas on duty at Thanjavur Medical College Hospital, declared him dead.  Ex.P6 is
\nthe accident register copy issued in that regard.  P.W.12, the Head Constable,
\nattached to Naducauvery Police Station, received an intimation through VHF at
\n9.30 p.m. from the Sub Inspector of Police, Thanjavur Medical College Hospital.
\nImmediately, P.W.12 proceeded to the hospital and recorded the statement of
\nP.W.1 which is marked as Ex.P1.  On the strength of Ex.P1, he registered a case
\nin Crime No.405\/97 under Sections 341 and 302 of IPC.  Ex.P8 is the express FIR,
\nwhich was despatched to the Court along with Ex.P1.\n<\/p>\n
\t(c) P.W.14, the Inspector of Police, on receipt of the copy of the FIR,
\ntook up investigation and proceeded to the mortuary.  First, he conducted
\ninquest on the dead body of Ponnthaisezhiyan in the presence of witnesses and
\npanchayatdars and prepared an inquest report marked as Ex.P9.  He recovered
\nmaterial objects from the place of occurrence. Then, he gave a requisition to
\nthe hospital authorities for the conduct of postmortem.\n<\/p>\n
\t(d) P.W.11, the Assistant Professor, Department of Forensic Medicine,
\nThanjavur Medical College, on receipt of the requisition, conducted autopsy on
\nthe dead body of Ponnthaisezhiyan and has issued a postmortem certificate,
\nEx.P11, with her opinion that the deceased would appear to have died of shock
\nand haemorrhage due to stab injury of left lung.\n<\/p>\n
\t(e) After the inquest was over, the Investigator proceeded to the place of
\noccurrence, made an inspection and prepared an observation mahazar, Ex.P3, and a
\nrough sketch, Ex.P10.  All the material objects were recovered from the place of
\noccurrence.  P.W.13, the Inspector of Police, Thiruvaiyaru, on a direction given
\nby the D.S.P. concerned, arrested A-3 relating to this case, and he was sent for
\njudicial remand.  It came to the knowledge of the Investigator that A-1 and A-2
\nsurrendered before the Judicial Magistrate, Villupuram.  All the material
\nobjects recovered from the place of occurrence and from the dead body, on a
\nrequisition made by the Investigating Officer through the Judicial Magistrate
\nconcerned, were subjected to chemical analysis by the Forensic Sciences
\nDepartment which resulted in two reports namely the Chemical Analyst’s report,
\nEx.P14, and the Serologist’s report, Ex.P15.  On completion of the
\ninvestigation, the Investigating Officer filed the final report.\n<\/p>\n
\t4.The case was committed to Court of Sessions and necessary charges were
\nframed.  The accused went on trial.  14 witnesses were examined on the side of
\nthe prosecution, and it also relied upon 15 exhibits and 13 material objects.
\nOn completion of the evidence on the side of the prosecution, the accused were
\nquestioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found
\nin the evidence of the prosecution witnesses, which they flatly denied as false.
\nOne Fathima Mary was examined on the side of the defence as D.W.1.  One document
\nwas marked as court exhibit namely Ex.C1.  The trial Court heard the arguments
\nadvanced, looked into the materials available, took the view that the
\nprosecution has proved the case beyond reasonable doubt in respect of these
\nappellants who are A-1 and A-2 respectively, found them guilty and awarded the
\npunishments.  The lower Court has entered a judgment of acquittal in respect of
\nA-3.  Hence, this appeal at the instance of the appellants.\n<\/p>\n
\t5.Advancing arguments on behalf of the appellants, the learned Counsel
\nwould submit that in the instant case, the prosecution has miserably failed to
\nprove its case; that the prosecution has examined 4 eyewitnesses, out of whom
\nP.W.4 is the wife, and they are all closely related and friends also; that
\naccording to the prosecution, they witnessed the occurrence; that the defence
\ncame forward with a theory to state that at the time of occurrence, the deceased
\nalong with his friends criminally trespassed into the house of A-1 and also
\nattempted to outrage the modesty of the wife of A-1 due to the previous enmity;
\nthat in order to save her, A-1 has attacked him; and that the entire prosecution
\nstory as put forth before the lower Court, was not only false, but also
\nthoroughly unbelievable.\n<\/p>\n
\t6.The learned Counsel would further add that the same evidence was not
\nbelieved by the lower Court as far as A-3 was concerned; that according to the
\nwitnesses, it was A-3 who waylaid the deceased, and A-1 attacked him with
\nkuthukol and A-2 attacked with an aruval; but, no corresponding injuries were
\nfound; that all these witnesses have spoken to the fact that A-2 actually
\nattacked him with aruval; that if to be so, some injuries should have been
\ncaused; that not even one injury is noticed; that it would indicate that they
\ncould not have seen the occurrence at all; that the postmortem Doctor has
\nclearly pointed out that the injury that was found should have been caused by a
\nknife, and hence, it could not have been caused by a kuthukol as put forth by
\nthe prosecution; that the measurement of the injury as noted by the Doctor in
\nthe postmortem certificate, would also indicate that the said injury could not
\nhave been caused by a kuthukol; that further, in the instant case, the
\nprosecution had projected the election rivalry as motive; but, the election
\nproceedings were pending in the past; that apart from that, number of complaints
\nwere given against the deceased which were all pending, and thus, he had got
\nnumber of enemies; that as far as the scene of occurrence was concerned, the
\nwitnesses have thoroughly given a different version; that bloodstained earth was
\nfound inside the house and pial of the house of A-1; but, according to the
\nprosecution, the occurrence has taken place in the open street; that under the
\ncircumstances, the scene of occurrence was also different; that according to
\nP.W.3, he was very certain that what was used by A-1 at the time of occurrence
\nwas only aruval and not kuthukol; that P.W.5 has also turned hostile; that the
\nother witnesses namely P.Ws.1, 2 and 4 have stated kuthukol; that there is
\ndifferent version in respect of the scene of occurrence; that the lower Court
\nhas not considered the evidence proper; that on the same evidence when the Court
\nhas come to the conclusion that A-3 was to be acquitted not believing the same
\nevidence, the same parameters have got to be applied to A-1 and A-2 also; that
\nin the face of all these doubts, which were all reasonable, the lower Court
\nshould have rejected the case outright and should have acquitted them, but not
\ndone so, and hence, they are entitled for acquittal in the hands of this Court.\n<\/p>\n
\t7.The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions made.\n<\/p>\n
\t8.It is not in controversy that following an incident that took place at
\nabout 7.15 p.m. on 23.8.1997, in which injuries were sustained by the deceased
\nPonnthaisezhiyan, he was taken to the hospital where he was declared dead.
\nFollowing the registration of a case, at the time of investigation the
\nInvestigator made an inquest.  Thereafter, the postmortem was also done by
\nP.W.11, the Doctor.  She has also deposed before the Court, through whom the
\npostmortem certificate has also been marked.  Thus, through the medical
\nevidence, the prosecution has proved the fact that Ponnthaisezhiyan died out of
\nhomicidal violence.  This fact was never questioned by the appellants\/accused
\nthat he died out of homicidal violence.  Hence, it has got to be recorded so.\n<\/p>\n
\t9.In order to substantiate the charges, originally levelled against all
\nthe three accused, the prosecution rested its case on the direct evidence of
\nP.Ws.1 to 5 as eyewitnesses.  P.W.5 turned hostile, and out of the remaining
\nfour witnesses, P.W.4 is the wife, and P.Ws.1 to 3 are admittedly friends of the
\ndeceased.  But, the same cannot be a reason to discard the testimony, and it
\nmust be looked into by the Court by exercising the test of careful scrutiny.
\nAccording to P.W.4, her husband just started from her house to proceed to
\nThanjavur, and she also came out of the house, and when he was just proceeding a
\nshort distance, it was A-1 who attacked him with a kuthukol, and A-1 with an
\naruval, and A-3 waylaid.  This fact that A-1 attacked with kuthukol on the chest
\nof the deceased is spoken to by P.Ws.2 and 4.  It is true that P.W.3 has stated
\nthat A-1 has attacked with an aruval.  Therefore, this evidence could be
\nrejected. However, the prosecution to its advantage had the evidence of P.Ws.1,
\n2 and 4 to the effect that it was A-1 who attacked him on the chest with
\nkuthukol.  The corresponding medical evidence is also available to the
\nprosecution.  There was only one injury that was found on the chest, and that
\ncould be caused by kuthukol according to the Doctor.  The contention put forth
\nby the learned Counsel for the appellants that such an injury could not be
\ncaused by kuthukol cannot be accepted. The nature of the injury found in the
\npostmortem certificate, would clearly indicate that such an injury could be well
\ncaused by a kuthukol as put forth by the prosecution.\n<\/p>\n
\t10.As far as A-2 was concerned, he had aruval and wielded the same,
\naccording to the witnesses examined by the prosecution.  But, no corresponding
\ninjury is found.  The prosecution witnesses came forward to state that A-2 had
\naruval and wielded it also.  According to the prosecution, originally to start
\nwith, A-2 had aruval; but, no injury was caused which was simply warded off.
\nBut, the witnesses have made a development at the time of the examination before
\nthe Court, and thus, it casts a doubt whether A-2 could have been in the place
\nof occurrence with an aruval either, or he attacked the deceased, since no
\ncorresponding injury is found.  The evidence of these witnesses in respect of A-
\n2, casts a doubt, and hence, it could not be taken as a proof, since it is
\nshrouded with doubts.  Under the circumstances, that part of the prosecution
\ncase in respect of A-2, cannot be believed.\n<\/p>\n
\t11.After consideration of the other contentions put forth by the learned
\nCounsel for the appellants, this Court is of the opinion that they do not carry
\nany merit whatsoever.  According to the eyewitnesses, immediately after the
\noccurrence, the accused threw bloodstained weapons on the pial of the house of
\nA-1, and it is quite natural that the pial of the house was found bloodstained.
\nBut, it did not mean that that was the place of occurrence.  According to the
\nInvestigator, he proceeded to the spot, made an inspection and prepared an
\nobservation mahazar and also a sketch.  Much comment was made by the learned
\nCounsel that originally, the observation mahazar was not before the Court; but,
\nsubsequently, a copy was filed, and the lower Court has relied upon the copy,
\nwhich should not have been done.  But, at the same time, this Court is able to
\nsee that there was a sketch prepared by the Investigator.  According to the
\nInvestigating Officer, the sketch was prepared after observation.  The contents
\nin the sketch were never disputed by the appellants’ side at the time of the
\ntrial.  Hence, the scene of occurrence is clearly mentioned as in front of the
\nhouse of A-1, in that sketch.  So long what is found in the sketch is not
\ndisputed, it can be well stated that that was the place of occurrence.  Hence,
\nit leaves no doubt in the mind of the Court.\n<\/p>\n
\t12.As far as the motive is concerned, even according to P.W.4, there was a
\nwordy altercation at about 5.00 p.m. when A-1 came over and was standing in
\nfront of the house of the deceased and shouting, and further, he would challenge
\nthat within 24 hours he would see to it.  When, the deceased came out at 7.15
\np.m., this occurrence has taken place.  Therefore, the evidence of P.W.4 would
\nbe pointing to the incident that took place within a short while prior to the
\noccurrence.  Apart from this, it is an admitted fact that they had got the
\nrivalry, and also political motive in the election process in the past.
\nFurther, in the instant case, some discrepancies are brought to the notice of
\nthe Court among the evidence of the witnesses.  They are all minor most
\ncontradictions.  This Court is of the opinion that it will not in any way affect
\nthe truth of the prosecution case.  All put together would go to show that the
\nprosecution had sufficient evidence pointing to the complicity of A-1 that it
\nwas he who attacked him with kuthukol and caused the death of the deceased
\ninstantaneously, and it was also clear from the nature of the injuries.  Neither
\nthere was any provocation nor there was any quarrel preceding.  Under the
\ncircumstances, this Court is of the view that the judgment of the trial Court
\ninsofar as A-1 finding him guilty under Sec.302 of IPC and awarding life
\nimprisonment, has got to be sustained.  Accordingly, it is sustained.\n<\/p>\n
\t13.As regards A-2, this Court is able to see that the evidence is shrouded
\nwith reasonable doubts, and hence, A-2 is entitled for acquittal. Accordingly,
\nthe conviction and sentence imposed on A-2 by the trial Court, are set aside,
\nand he is acquitted of the charge.  The fine amount if any paid by him, will be
\nrefunded to him.  The bail bond executed by him, shall stand terminated.\n<\/p>\n
\t14.In the result, this criminal appeal is partly allowed. It is reported
\nthat A-1 is on bail.  Hence, the Sessions Judge shall take steps to commit him
\nto prison to undergo the life sentence imposed on him.\n<\/p>\n
nsv\/<\/p>\n
To:\n<\/p>\n
1.The Principal Sessions Judge, Thanjavur\n<\/p>\n
2.The Inspector of Police
\n  Naducauvery Police Station
\n  Thanjavur District
\n  (Crime No.405\/97)\n<\/p>\n
3.The Additional Public Prosecutor
\n  Madurai Bench of Madras High Court<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court R.Jayabal vs State Rep. By on 21 February, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21\/02\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A. No.1003 of 2000 1.R.Jayabal 2.R.Savier .. Appellants vs State rep. by Inspector of Police Naducauvery Police Station Thanjavur District (Crime No.405\/97) […]<\/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-89238","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nR.Jayabal vs State Rep. 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