Madras High Court
Elango @ Elangovan And Ors. vs The State, Rep. By The Inspector Of ... on 24 June, 2003
JUDGMENT A.S. Venkatachalamoorthy, J.
1. The learned II Additional Sessions Judge, Madurai tried the appellants/accused for the charges under Section 302 read with 149 I.P.C. etc., for causing the murder of one Viji @ Vijayakumar at 7.15 p.m. on 28th November, 1998. In his judgment dated 4.7.2000 in S.C.186 of 1999, the learned Sessions Judge found the appellants/accused guilty under Section 302 read with 149 I.P.C.; 148 I.P.C., and sentenced to undergo rigorous imprisonment for life and two years respectively. Though the appellants were found guilty under Section 147 I.P.C., no separate sentence was imposed.
2. The prosecution in its endeavour to establish its case, examined as many as 17 witnesses, marked Exs.P-1 to P-19 and produced Mos.1 to 12.
3. The case of the prosecution can be narrated as under:
(a) PW-1 Kumaresan is the father of the deceased while PW-2 Ilamurugan is his brother. PW-4 Paunraj's brother has married PW-1's daughter. PW-3 Gandhi is related to the deceased.
(b) A-1 to A-3 are closely related. A-4 to A-7 also belong to the same community and related to the other accused.
(c) The prosecution party as well as accused party belong to the village called Anuppanadi. There was an incident in the month of November, 1995 when A-1 was beaten by the deceased and one Balakumar and a complaint before the Police was lodged in that regard. Thereafter in the month of May, 1997, the second accused was beaten by the deceased and two others and the second accused lodged a complaint before the Court and that case is still pending. Similarly, the deceased cut A-3 in September, 1998 and in that regard there is a case pending. Thus, there has been enmity between A-1 to A-3 and the deceased and these accused decided to do away with the deceased.
(d) On 28.11.1998 at about 7.15 p.m. when the deceased was going along with one Pandi in Christhuvar Koil street, each accused armed with pattakathi, encircled the deceased and started attacking him. A-1 stabbed the deceased in the stomach; A-3 on the chest and A-2 cut the deceased indiscriminately on his head. The other accused stabbed the deceased indiscriminately on his hands and legs. PW-1 the father of the deceased and PW-3, who happened to pass by that way, shouting at the deceased, "Stop cutting", ran towards the deceased. PW-2, the brother of the deceased and PW-4 also came there at that time, saw the occurrence and ran towards the deceased. Seeing this, all the accused ran away carrying the weapons with them. The deceased then was taken to the Rajaji Government Hospital, Madurai, where he was declared dead.
(e) PW-1 then proceeded to Theppakulam Police Station and gave an oral complaint to PW-15 Sub Inspector of Police and the same was reduced to writing. On the basis of the said complaint Ex.P-1, Crime No.1731 of 1998 was registered under Section 147, 148, 341 and 302 I.P.C. and Ex.P-15 express First Information Report was prepared and the same was sent to the Court of Judicial Magistrate and copies to his superiors.
(f) On 28.11.1998, PW-17 Inspector of Police, who was on other duty, received message by wireless so also by telephone about the incident. He received the copy of express F.I.R. at about 9.45 p.m. and took over the investigation. He proceeded to the scene of occurrence, reached there by 10.00 p.m. and prepared Ex.P-3 observation mahazar and Ex.P-18 rough sketch in the presence of witnesses Murugesan and Murugavel and others. The blood stained earth MO-1 and ordinary earth MO-2 were also seized in the presence of witnesses. On the next day, PW-17 proceeded to the Rajaji Government Hospital and conducted inquest over the body of the deceased between 7.00 a.m. and 10.00 a.m. Ex.P-19 is the inquest report. PW-17 thereafter examined the witnesses including the Doctor.
(g) PW-16 is Dr. Thyagarajan, attached to Madurai Medical College Hospital, who on the basis of the requisition Ex.P-16 sent by the Inspector of Police, commenced post mortem at about 10.20 a.m. Ex.P-17 is the post mortem certificate issued by the Doctor. In the said certificate, the Doctor has made the following notings.
"Following antemortem injuries are seen on the body:
(1) Transversely oblique cut injury right cheek and right ear 10 cm x 1 cm x bone deep cutting the underlying bone above downwards.
(2) Two antero posterior cut injury left side of the skull 8 cm x .5 cm x brain deep, 10 cm x .5 cm x brain deep cutting the parieto occipital bone one below the other 2 cm and 4.5 cm below the midline above downwards.
(3) An oblique cut injury transversely situated on the right side of the root of the neck back 15 cm x 2 cm x bone deep cutting the underlying muscles, vessels upto the spinal column, cutting the disc portion C6 and C7 level.
(4) An oblique stab injury back of left side close to the final column 5 cm x 1 cm entering the thoracic cavity cutting the underlying muscles and passing through the 3rd intercostal space and piercing the left lung 3 cm x linear x 3.5 cm ends as point. Lungs found to be collapsed.
(5) Transversely oblique stab injury left side of the back 5 cm x .5 cm x entering the thoracic cavity passing along the muscles and 6th intercostal space and spiercing the left lung 2.5 cm x linear x 2.5 cm ends like a point.
(6) Oblique stab injury back of right chest 5 cm x linear x entering the thoracic cavity through the muscle and 4th intercostal space and spiercing the lung 3 cm x linear x 1.5 cm ends as a point.
(7) 2 oblique stab injuries one on the right, one on the left back side 5 cm x .5 cm x 3.5 cm ends as a point along muscle plane downwards.
(8) Oblique stab injury 6 cm x 1 cm x entering the abdominal cavity upper part of the centre of the abdomen through which 60 cm intestine protruding out.
(9) On dissection of abdomen: Through and through penetrating wound seen on lower part of the liver 3 cm linear, 3 cm x linear, through and through outer wall of the stomach, 2.75 cm x linear x through and through on the posterior wall of the stomach.
(10) Pelvic cavity contains 600 gms of blood with clot, pleural cavity 350 gms outside blood with clot.
(11) Transversely oblique cut injury right forearm below upwards 6 x 1 cm x bone deep cutting the bones below upwards and left wrist and forearm below upward 8 cm x 1.5 cm x bone deep cutting the underlying bones, left hand dorsum 10 cm x linear x bone deep below upwards of the cuts are appears as defence wounds.
(12) Oblique stab injury front of upper abdomen 5 cm x .5 cm x 2.5 cm passing along the muscle plane ends like a point.
(13) Abrasions both buttooks, thigh, 10 x 8 cm, 8 x 4 cm right and left.
Note: All the stab injuries having regular margins, one end curved, another end pointed.
Other findings:
Peritoneal cavity - described; Pleural cavity - empty; Pericardium - 15 ml of straw colour fluid; Heart - Chambers empty; Coronary vessels - Patent; Lungs - cut section pale. Hyoid bone - Intact; Stomach - Few cc of mucosal fluid with some blood clot. Liver - described already, cut section pale. Spleen and Kidneys - cut section pale; Small intestine - 60 ml of dirty white colour fluid with pungent smell, mucosa - pale. Bladder - empty; Brain - other than injured areas, cut section - pale."
The Doctor had opined that the deceased would appear to have died due to shock and haemorrhage as a result of multiple injuries sustained by him in brain, spinal column, lungs, liver, stomach about 12 to 16 hours prior to autopsy.
(h) On 1.12.1998 at about 8.00 a.m., PW-17 received information about the whereabouts of the accused except A-3. He then proceeded to the place viz., a water tank in the village called Keela Uppilikundu, where six accused were present. PW-17 arrested them in the presence of witnesses. When A-1 was enquired, he gave a voluntary confession statement and the admissible portion of the same is marked as Ex.P-7. Pursuant to the same, A-1 took the police party and witnesses to a place in Koodakoil village and produced six Patta knives Mos.3 to 8. PW-17 recovered the same under mahazar in the presence of witnesses.
(i) A-3 surrendered before the Judicial Magistrate, Pollachi on 7.12.1998. Coming to know about this, Inspector of Police took steps to secure police custody of A-3. On 16.12.1998, A-3 was in Police custody when he gave a voluntary confession statement and the admissible portion of the same is marked as Ex.P-9. A-3 then took the police party and witnesses to a place near Vadyar rice mill and took out the knife MO-9, hidden by him earlier in a heap of waste. The Investigating Officer then gave necessary requisition to the Court to send the material objects for chemical analysis. Ex.P-13 is the Chemical Analysis report while Ex.P-14 is the Serologist's report. After completing the investigation, the Investigating Officer filed his final report on 31.12.1998.
4. When questioned under Section 313 Crl.P.C., all the accused denied having any complicity in the commission of the offence and pleaded for their release.
5. The learned II Additional Sessions Judge, Madurai found the appellants/accused guilty under various offences, about which we have already referred to in the opening paragraph of this Judgment and it is unnecessary to refer to the same over again here. The question that arises for consideration is as to whether the prosecution has established the case beyond all reasonable doubt.
6. PW-16 is Dr. Thyagarajan, attached to Madurai Medical College Hospital, who on the basis of requisition Ex.P-16 received from the Inspector of Police, commenced post mortem at about 10.20 a.m. on 29.11.1998 and issued Ex.P-17 post mortem certificate. We have already referred to the same and in fact quoted in extenso the relevant portion from the said certificate. Hence we are not taking up the exercise of repeating the same in detail over again. In Ex.P-17, the Doctor had opined that the deceased would appear to have died of shock and haemorrhage as a result of multiple injuries sustained in brain, spinal column, lungs, liver, stomach, about 12 to 16 hours prior to autopsy. The said Doctor as PW-16 before Court re-affirmed what he had stated earlier. The Doctor has further deposed that the injuries 3, 4, 5, 8 and 9 each of them would be sufficient to cause death in the normal course. The medical evidence adduced before Court would show that the deceased died only because of homicidal violence.
7. Now let us proceed to consider the case of the prosecution as spoken to by four eye witnesses Pws.1 to 4 with reference to the occurrence. 28.11.1998 was the fateful day for the deceased when he was done to death. According to the eye witnesses, the deceased along with one Pandi at about 7.15 p.m. was proceeding from Chinthamani road towards east, where the road taking a turn towards Christhuvar Koil street. Pws.1 and 3 at that time were walking in the Christhuvar Koil Street and they were proceeding towards Chinthamani. Pws.2 and 4 were proceeding from south to north in Chinthamani road and reached the corner of Christhuvar Koil street. The eye witnesses have deposed that at that time all the accused armed with weapons, came from west, waylaid the deceased, encircled him and started attacking him. While A-1 with pattakathi stabbed the deceased in the stomach, A-3 attacked on the chest and A-2 with pattakathi cut the deceased indiscriminately on the head. The other accused indiscriminately cut the deceased on his hands and legs. The further case of the prosecution is that thereafter when the eye witnesses shouted at the accused, they ran away carrying the weapons and the deceased was immediately taken to the Rajaji Government Hospital, where he was declared dead by Dr. Chandrasekaran. The complaint was given by PW-1 to the concerned police station and the police then swung into action and proceeded with the investigation.
8. The learned counsel appearing for the appellant put forth a number of submissions. Firstly he contended that even according to the prosecution, there is enmity between A-1 to A-3 on the one hand and prosecution party on the other hand and A-4 to A-7 have nothing to do whatsoever and they have no grievance against the prosecution party and that they have been falsely implicated. Secondly he contended that the occurrence took place in a busy residential area, where there are number of houses and number of eye witnesses should have witnessed, if really there was any such occurrence, particularly when the time of occurrence was 7.15 p.m. But no independent witness has been examined. It is further submitted that admittedly Pws.1 to 4 are not residing anywhere close to that area and that being so, their presence at the time of alleged occurrence is highly doubtful. Or in other words, they are only chance witnesses to the alleged occurrence and it would not be safe to act on their testimonies since they are closely related to the deceased. Yet another argument is also put forth namely that PW-2 has categorically admitted in his cross examination that the occurrence took place when the deceased came in a two wheeler, whereas that is not the case of the prosecution now before the Court. Pointing out the medical evidence, the learned counsel would contend that the Doctor had noticed only one injury on the hand, whereas the case of the prosecution is, A-4 to A-7 cut the deceased indiscriminately, which should mean there should be not less than eight injuries. According to the learned counsel for the appelants, the only independent witness PW-6 who saw the accused running, had not mentioned about the presence of Pws.1 to 4 at that place. Argument has also been advanced on the non-examination of Dr. Chandrasekar, who saw the deceased first at the hospital. Coming to the recovery of weapons, the learned counsel submitted that MOS.3 to 8 were recovered only at the instance of A-1 and that being so, that would not in any way put against the other accused.
9. The occurrence was at about 7.15 p.m. on 28.11.1998 in the public street. Admittedly it is a residential area, since by perusing the plan, we find the Investigating Officer noted number of residential houses. The Investigating Officer, apart from enquiring Pws.1 to 4 has also examined during his investigation some more witnesses at the time of investigation. PW-6 was one of the eye witness, who resides in that area, but however he has turned hostile. PW-5 is also a resident of that area. He has deposed that he saw accused 6, 7 running away. Hence, it cannot be said that the prosecution failed to investigate the matter properly and examined the independent witnesses. In these circumstances, the Court has to proceed to consider the testimonies of Pws.1 to 4, though interested and find out whether the same infuse confidence. In fact, the Supreme Court of India in the decision (Appabhai v. State of Gujarat) has ruled as under, "Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. ..."
10. First let us take the role played by A-4 to A-7, according to the prosecution. Pws.1, 3 and 4 have categorically stated that these four accused, after A-1 to A-3 attacked the deceased, stabbed and cut the deceased indiscriminately over the hands and legs. When it is claimed that these four accused indiscriminately did so, it can only be taken that each of them would have cut at least twice, which should mean there should be 7 or 8 injuries at the minimum over the hands and legs of the deceased. But if we see the post mortem certificate, the Doctor has noted only one injury in the hand. There are no cut or stab injuries at all in the legs. This creates serious doubt on the case of the prosecution with reference to the overt acts attributed to A-4 to A-7. In this context, we also take note of the fact that earlier on three occasions in 1993, 1997 and 1998, the deceased along with another attacked A-1, A-2 and A-3 respectively and these accused were not in the picture at all and thus they had no grievance. Or in other words, what we are trying to impress upon is that there could have been motive only for A-1 to A-3 to attack the deceased. Furthermore PW-4 in his cross examination has stated that during investigation he only mentioned half of the names. The above facts and circumstances would persuade us to entertain a very serious doubt about the participation of A-4 to A-7 in the commission of the offence. After all, as pointed out by the Supreme Court in 2000 SCC (Crl) 222 (Leela Ram v. State of Haryana), the Court has to sift the Chalf from the grain and find out the truth. We have carefully considered the entire evidence of eye witnesses and we are of the view that the prosecution has not proved the participation of A-4 to A-7 in the commission of the offence.
11. What remains to be considered is whether the prosecution has proved the case with reference to A-1 to A-3. Admittedly Pws.1 to 4 are closely related to the deceased. We have carefully considered the testimonies of those witnesses. Pws.1, 3 and 4 would depose that A-1, A-2 and A-3 cut the deceased and they specifically mentioned the exact place at which the deceased was cut. With reference to others they would say that they cut the deceased indiscriminately on the hands and legs. But coming to PW-2, who is none else than the brother of the deceased, has deposed that A-1 stabbed the deceased on his stomach; A-2 with pattakathi stabbed the deceased on the chest and A-4 cut the deceased on the head. His further deposition is that others cut and stabbed the deceased on the hands and legs. Or in other words, when he mentioned 'others', he referred to only A-3, A-5, A-6 and A-7. We have already held that the story of the prosecution that four accused i.e, A-4 to A-7 stabbed and cut the deceased on hands and legs, has not been established beyond all reasonable doubts. That being so, as to on which part of the body A-3 attacked the deceased with deadly weapon, there is inconsistency among the prosecution witnesses. Of course, the majority of the witnesses PWs.1, 3 and 4 would depose that A-3 cut the deceased on a specific part of the body. But what this Court has to remember is that PW-2 is none else than the brother of the deceased and the Court is examining as to the trustworthiness of the interested prosecution witness. In these circumstances, when PW-2 himself has made out a statement, the Court cannot go by majority and hold that he has deposed so by mistake or for any other reason. Certainly, the benefit of such contradiction or confusion would go to A-3. For these reasons, we are inclined to give the benefit of doubt to A-3. Of course, the learned counsel appearing for the State would contend that there was recovery of weapon, which he used and that was found to contain human blood. The fact remains that the group was not detected. Hence that cannot advance the case of the prosecution any further.
12. The learned counsel appearing for the appellants in his endeavour to demonstrate before the Court that A-1 and A-2 are also innocent, put forth several arguments, about which we have already narrated. The contention of the learned counsel is that non-examination of Dr. Chandrasekaran, who saw the deceased first at the hospital would be fatal, is without any substance. Dr. Chandrasekaran was the Doctor attached to Rajaji Government Hospital, Madurai at the relevant time. The prosecution witnesses have clearly deposed that by the time the deceased was seen by the Doctor, he was not alive. It appears the Doctor immediately sent a death memo and later on the body was sent to mortuary. In fact, one of the prosecution witnesses has clearly deposed in the cross examination that the Doctor did not enquire the prosecution witnesses anything. We do not find anything serious and at best it can be said that the investigation was defective, but that would not automatically shatter the case of the prosecution when there are other overwhelming ocular evidence.
13. The learned counsel would strenuously contend that the blood stained cloths of Pws.1 to 4 have not been seized when Since one of the prosecution witness has clearly admitted that while the deceased was taken to the hospital, their cloths also stained with blood. After all the witnesses have been examined in the Court after two years and they might not have remembered clearly what happened on that day. Had the cloths stained with blood, certainly the Investigating Officer would have recovered the same. In fact, the Investigating Officer in the cross examination deposed that he is well aware about the duties of an Investigating Officer and had he noticed any of the cloths of the prosecution witnesses stained with human blood, he would have recovered the same. No motive can be attributed for not seizing the cloths of the prosecution witnesses.
14. The learned counsel would further submit that PW-6 has not mentioned about the presence of Pws.1 to 4 at the time of occurrence. It has to be remembered that PW-6 was aged about 76 years and one cannot expect the witness to look all around at the tense moment and remember well to depose before Court after two years. The Supreme Court of India has ruled that simply because one eye witness fails to mention about the presence of other eye witness, that would not affect the case of the prosecution.
15. Then the learned counsel pointed out that the prosecution has come forward with false case since PW-2 in his cross examination admitted that at the time of occurrence, the deceased came in a two wheeler, but that was not the prosecution case. The learned counsel appearing for the appellant took us through the evidence of all the witnesses and pointed out suggestions to that effect had been put to all of them. True the defence has put such suggestions to all the witnesses. But that would not mean that such a case has been made out by the defence. This Court has to remember that PW-2 has deposed correctly both in chief examination and cross examination. Some stray admission made out of context in the later part of the cross examination would not belie the case of the prosecution, particularly when the witness was examined after two years.
16. Thus we find there is no substance in the above submissions made by the learned counsel for the appellants. From the above discussions, we come to the conclusion that the prosecution has established the case beyond all reasonable doubt as against A-1 and A-2 and not against other accused. This Court finds A-1 and A-2 guilty under Section 302 read with 34 I.P.C.
17. In the result,
(a) The criminal appeal is allowed in so far as A-3 to A-7 are concerned. The conviction and sentence imposed on A-3 to A-7 by the learned Sessions Judge are set aside. A-3 to A-7 are acquitted of all the charges framed against them. A-3 to A-7 are directed to be released forthwith if they are not required in connection with some other cases.
(b) The criminal appeal is dismissed in so far as A-1 and A-2 are concerned. The conviction and sentence imposed on A-1 and A-2 are hereby modified. A-1 and A-2 are convicted under Section 302 read with 34 I.P.C. and sentenced to undergo life imprisonment.