Madras High Court
Rathnavel vs The State Rep. By on 26 July, 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.07.2016 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Appeal No.634 of 2015 and Crl.M.P.No.5100 of 2016 Rathnavel .. Appellant - Vs - The State rep. by The Inspector of Police, Harur Police Station, (Cr.No.95 of 2013) .. Respondent Prayer:- Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned Principal Sessions Judge, Dharmapuri in S.C.No.122 of 2014 dated 24.07.2015. For Appellant : Mr.A.Raghunathan Senior Advocate for Mr.M.Rajavelu For Respondent : Mr.M.Maharaja Additional Public Prosecutor - - - - - J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu, J.) The appellant, the sole accused in S.C.No.122 of 2014 on the file of the learned Principal Sessions Judge, Dharmapuri, who stands convicted for offences under Section 302 I.P.C. and Section 25(1-B) of Indian Arms Act and sentenced to undergo imprisonment for life and pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months for the offence under Section 302 I.P.C and to undergo simple imprisonment for three years and pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months for the offence under Section 25(1-B) of the Indian Arms Act has come up with this appeal challenging the said conviction and sentence.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case was one Mr.Muthumanickam, he was a resident of Chellampatti village in Dharmapuri District. The accused is the paternal uncle of the deceased. They had a common well to irrigate their respective lands. In relation to the said common right to take water from the common well, there had been a long standing enmity between the accused and the deceased. During the year 2012-13, the accused had raised paddy crop in his field.
2.2. On 25.01.2013, the deceased was irrigating his land by operating an electrical motor in the well. Around 06.00 p.m. the accused came to the well, put on the motor and diverted the water to his land. P.W.1 and the deceased tried to switch off the motor and for that purpose, they were proceeding towards the motor shed. The younger brother of the deceased had gone ahead and entered into the motor shed. The deceased was proceeding towards the motor shed followed by P.W.1. At that time, the accused was standing on the terrace of the building. He had a country made gun. On seeing the deceased proceeding towards the motor shed, he shot him once with the said gun. The pellets hit the deceased. Having sustained bleeding injuries, he fell down. P.W.1 raised alarm, the accused vanished away from the scene of occurrence. P.W.1 and others brought the deceased to their house. They arranged for a van and rushed the deceased to Harur Government Hospital. The doctor who examined him declared him dead.
2.3. Then P.W.1 went to Harur Police Station and made a complaint at 08.00 p.m. on 25.01.2013. Ex.P10 is the F.I.R. and Ex.P1 is the complaint. He forwarded both the documents to Court, which were received by the learned Magistrate at 09.00 P.M. on 25.01.2013. The case was taken up for investigation by P.W.10. He went to the place of occurrence, prepared an observation mahazar and a rough sketch at the place of occurrence in the presence of P.W.4 and another witness. From the place of occurrence, P.W.10 recovered bloodstained earth and sample earth. He found two pellets near the dead body. He recovered the same under Ex.P3 Mahazar. Then, he conducted inquest on the body of the deceased and forwarded the body for postmortem.
2.4. P.W.7 Dr.Saravanakumar conducted autopsy on the body of the deceased on 26.01.2013 at 02.00 p.m. He found the following injuries:
External injuries: fire arm wound (entry):- (1) situated 1 cm from the right sternal border above the nipple in the right 4th intercostal space - circular in shape 1 cm in diameter (2) 1 cm above the biphestenum circular shape 1 cm in diameter (2) 2cm from the right anterior anxillary line in the 5th outer costal space circular in diameter 1 cm in diameter. A black colour narrow ring at scin (sic) - grease dr.dir collar is present in all boarder (sic) in size 1 cm. Distance between 1 & 2 10 cm, 1 & 3 12 cm, 2 & 3 14 cms. Exit wound: (1) posterior anxillary line in the 7th intercostal space circular 1 cm in diameter (2) 10 cm from the spine on the right side 6th intercostal space circular diameter 1 cm in diameter (3) 8 cm from spine on right side in the 9th inter costal space 1 cm in diameter circular space in all the exit wounds. No diam collar or root deposit, continuous bleeding present in all wound.
Internal examination: Hyoid bone intact. Ribs Haemothorac right side present. 5th and 4th rib right side gutter with fracture. Sternum contusion with fracture of **. Heart chambers empty c/s congested. Lungs perforated wound present in middle and lower off the lung ** - left lobe contusion present. Liver right to be perforated wound along with complete maceration. Kidney c/s congested; stomach undigested rice 100 gms present. Bladder empty. Skull intact, Brain solid intact. Traces taken by bullet through body - f1st entry wound through lower lobe of right lung exit wound 2 Nos. 2nd entry wound through right lobe of liver exit wound 3 Nos. 3rd entry wound through middle lobe of right lung exit wound 1 No. Ex.P7 is the postmortem certificate and Ex.P8 is his final opinion regarding the cause of death. He opined that the gun shot injuries found on the deceased, could have been caused by pellets fried from M.O.1 country made gun.
2.5. During the course of investigation, P.W.10 arrested the accused on 27.01.2013. Then, in the presence of P.W.5 and another witness, he made a voluntary confession, in which, he disclosed the place where he had hidden the country made gun. In pursuance of the same, he took the police and the witnesses to the cattle shed behind his house and from the hideout he took out M.O.1 country made gun and produced the same. P.W.10 recovered the same in the presence of witnesses. Then, he forwarded the accused to the Court for judicial remand. He forwarded all the material objects including the country made gun (M.O.1) and the pellets recovered from the place of occurrence to the Court.
2.6. On the request made by P.W.10 and on the orders of the learned Judicial Magistrate, M.O.1 gun and two pellets recovered from the place of occurrence were sent for ballistic expert's opinion. The expert opined that M.O.1 is a smoothbore country made single barrel muzzle loading (SBML) gun; combustion products of gun powder were detected in the barrel of the gun indicating that it was used for firing previously; there is no reliable scientific method to determine the exact time of firing; the gun was found to be in working order; the effective range of the gun depends on the amount of gun powder and pellets loaded in it and the pellets (2 Nos.) could have been fired from a smoothbore fire arm. P.W.10 examined many more witnesses, collected all the records and finally laid chargesheet against the accused.
2.7. Based on the above materials, the trial Court framed charges under Section 302 I.P.C. and Section 25(1-B) of the Indian Arms Act. The accused denied the same. In order to prove the case on the side of the prosecution as many as 10 witnesses were examined, 18 documents and 6 material objects were marked.
2.8. Out of the said witnesses, P.Ws.1, 2 and 3 have stated that they witnessed the accused shooting with a gun. They have further stated that they took the deceased to the house and then to the hospital. P.W.1 has spoken about the complaint made by him also. Thus, according to these three witnesses, it was only this accused who shot the deceased with M.O.1 country made gun. P.W.4 has spoken about the preparation the observation mahazar and the rough sketch. He has also spoken about the recovery of bloodstained earth and sample earth. But he has not stated anything about the recovery of the pellets from the place of occurrence. P.W.5 has spoken about the confession statement made by the accused 27.01.2013. He has further stated that in pursuance of the disclosure statement made in the said confession, M.O.1 country made gun was recovered.
2.9. P.W.6 the Constable attached to Harur Police Station has stated that he handed over the F.I.R. to the learned Magistrate at 09.00 p.m. on 27.01.2013. P.W.7 Dr.Saravana Kumar has spoken about the postmortem conducted on the body of the deceased and his final opinion regarding cause of death. His final opinion is that there were entry and exit wounds in the body of the deceased. He has further opined that these injuries could have been caused by gunshot. P.W.8 has stated that he handed over the dead body to the doctor for postmortem, after inquest was over, as directed by P.W.10. He has further stated that on 13.03.2013, as per the order of the learned Judicial Magistrate, he handed over the country made gun and three pellets and a cut portion of the skin from the body of the deceased on the site of the injuries were all handed over to the forensic lab. P.W.9 has spoken about the registration of the case on the complaint of P.W.1. P.W.10 has spoken about the investigation done.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. On his side, one Palanivel was examined as D.W.1. He has stated about the previous enmity between the deceased and the accused. He has further stated that on the day of occurrence at around 06.30 p.m. he heard a loud noise caused by a gunshot. He found the deceased falling down with gunshot injuries. From the other side, the brothers of the deceased were running towards the deceased with two guns in their hands. They lamented that an error had occurred and at that time, he found the accused fleeing away from the scene of occurrence. In effect, the crux of his evidence is that the brothers of the deceased had used two country made guns to shoot the accused. But, by mistake, it hit the deceased and the accused ran away from the scene of occurrence.
4. Having considered all the above, the trial Court found the accused guilty under Section 302 I.P.C. and Section 25(1-B) of the Indian Arms Act and that is how, the appellant is before this Court with this appeal.
5. We have heard the learned senior counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State and also perused the records, carefully.
6. At the outset, we would like to clarify that we do not intent to evaluate the evidence of P.Ws.1 to 3, the so called eyewitness, who have stated that it was this accused who shot the deceased with M.O.1 country made gun because having gone through the records and having heard the arguments of the learned senior counsel appearing for the appellant and the learned Additional Public Prosecutor, we are of the view that this appeal deserves to be allowed and the sessions case should be remanded back to the trial Court for fresh disposal as we have noticed lot of lapses and infirmities in the conduct of the trial before the trial Court.
7. It is the positive case of the prosecution that two pellets were found at the place of occurrence and they were recovered under Ex.P3 mahazar in the presence of P.W.4 and another witness. But, it was not elicited from P.W.4 that two such pellets were recovered from the place of occurrence. The learned Public Prosecutor, it appears, was not vigilant in eliciting this necessary fact from P.W.4. It is the case that these two pellets were handed over to the Court and they were in turn sent for chemical examination. In Ex.P.16 the report of the ballistic expert, two pellets were received by the forensic lab and they were examined in the lab. It has been elicited from P.W.8 the Head Constable that he handed over three pellets to the forensic lab at Chennai. As we have already pointed out, only two pellets were recovered from the place of occurrence. How it swelled into three pellets has also not been explained. P.W.8 was not called upon to explain. Above all, the pellets which were sent to the forensic lab for examination were again returned back to the Court of the learned Magistrate along with a report. But unfortunately the pellets either two in number or three in number have not been proved in evidence during trial. It has not been explained as to what had happened to those pellets and as to why they were not marked. We directed the learned Additional Public Prosecutor to ascertain the said fact. On instructions, he informed that the pellets are very much available but it was only the omission on the part of the learned public prosecutor who conducted the case to mark the same in evidence. It is also not explained to the Court as to why the ballistic expert who examined the pellets has not been examined.
8. Now turning to the country made gun (M.O.1), it is the case that it was from M.O.1, the pellets were fired by the accused. It is the case of the prosecution that M.O.1 was recovered in pursuance of the disclosure statement made by the accused while in police custody. Though P.W.5 has stated that the accused made a disclosure statement leading to the recovery of M.O.1, the said disclosure statement has not been proved in evidence. What has been not in evidence is only the signature of P.W.5. It is not explained to the Court as to why the learned public prosecutor who conducted the trial before the trial Court did not choose to prove the said disclosure statement of the accused by marking the same. It is also not understandable as to how the learned Judge who conducted the trial could be so negligent without ensuring that a relevant evidence is brought on record by proving the said disclosure statement. Further, P.W.10 the investigating officer who recovered the gun from the accused has not identified M.O.1 as the one which was recovered from the accused.
9. For taking cognizance of an offence under Section 25(1-B), sanction is required under the said Act. Though, it is stated that sanction was issued by the District Collector on 08.09.2013, no witness has been examined to prove the same. It needs to be emphasized that mere marking the document would not amount to proving the contents of the same.
10. The learned senior counsel appearing for the appellant would contend that in view of the above lapses or shortcomings in the case of the prosecution, the accused should be given the benefit of doubt and he should be acquitted.
11. But, we are not persuaded by the said argument. In respect of the above aspects, though evidences were collected during investigation, they were not properly brought on record by way of acceptable evidence by proving the same in the manner known to law. The lapse was on the part of the learned public prosecutor who conducted the case. For that, we cannot afford to acquit the accused as the same would amount to miscarriage of justice. At the same time, we are also conscious of the legal position that at this stage, we cannot allow the prosecution to fill up the lacuna. But in the instant case, allowing the prosecution to prove the above evidences collected during investigation, would not amount to filling up the lacuna. The accused had already been put on notice on the availability of these material evidences. Therefore, in our considered view, in the interest of justice, the conviction and sentence imposed by the trial Court is set aside and the case is remanded back to the trial Court for fresh disposal.
12. We clarify that we have not expressed any opinion regarding the oral evidence of any of these witnesses already examined more particularly P.Ws.1 to 3 and therefore, it is for the trial Court to appreciate the entire evidence afresh.
13. In the result, the criminal appeal is allowed in the following terms:
(i) The conviction and sentence imposed on the accused is set aside and the case in S.C.No.122 of 2014 is remanded back to the file of the learned Principal Sessions Judge, Dharmapuri for fresh disposal in accordance with law. The fine amount, if any, paid by him shall be refunded. Since the appellant is in jail, he shall continue to be in judicial custody subject to the orders to be passed by the trial Court under Section 309 of the Code of Criminal Procedure.
(ii) The prosecution will be at liberty to recall any witness already examined for the purpose of further examination in chief and the accused shall be entitled for cross examination of the said witnesses.
(iii) The prosecution shall also be at liberty to examine any additional witness and the accused shall be entitled to cross examine the said witnesses.
(iv) The accused will be at liberty to recall any witness, who has already been examined, if not recalled by the prosecution and the accused shall be entitled to cross examine the said witnesses.
(v) The prosecution will be at liberty to prove any documents or material objects in accordance with law.
(vi) The trial Court shall question the accused afresh under Section 313 Cr.P.C., after the above exercise is over as required under law by affording sufficient opportunity to the accused.
(vii) The trial Court shall dispose of this case and deliver judgment in accordance with law, within a period of two months from the date of receipt of a copy of this judgment.
(viii) Consequently, the connected Miscellaneous petition in Clr.M.P.No.5100 of 2016 is closed.
(S.N.J.) (V.B.D.J.)
26.07.2016
Index : Yes.
Internet : Yes.
svki/kk
Note:-
(1) The Registry shall transmit the records
forthwith to the trial Court, if any received.
(2) Issue copy on 05.08.2016
S.NAGAMUTHU,J.
&
V.BHARATHIDASAN,J.
svki/kk
To
1. The Principal Sessions Judge,
Dharmapuri.
2. The Inspector of Police,
Harur Police Station,
3. The Public Prosecutor,
Madras High Court.
Crl.A.No.634 of 2015
and Crl.M.P.No.5100 of 2016
26.07.2016