Madras High Court
Pichaiyakonar vs State Rep. By on 3 March, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A.No.1178 of 2000 1.Pichaiyakonar 2.Annamalai 3.Krishnan 4.Murugesan 5.Sudalai 6.Perumal 7.Valliammal @ Isakkiammal 8.Sudalai 9.Arumugam Ammal 10.Chandran @ Venkatachalam .. Appellants vs State rep. by Sub Inspector of Police Nanguneri Police Station Crime No.238/96 .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the II Additional Sessions Judge, Tirunelveli, made in S.C.No.346 of 1997 dated 6.12.2000. !For Appellants ... Mr.P.H.Pandian Senior Counsel for M/s.Anand Abdul and Vinoth Associates for A-1 and A-4 Mr.P.Senthur Pandian for A-2, A-7, A-8 & A-10 Mr.R.Shanmugasundaram Senior Counsel for Mr.S.Ravi for A-3 and A-9 Mr.G.R.Edmund for A-5 & A-6 ^For Respondent ... Mr.V.Kasinathan Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) The appellants 10 in number, have challenged the judgment of the II Additional Sessions Division, Tirunelveli, made in S.C.No.346 of 1997, whereby they stood charged, tried and found guilty as follows:
-------------------------------------------------------------- Charge Accused Offence Finding Sentence
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I A-1, A-2 Guilty 1 year RI & A-10 148 IPC II A-3 to Guilty Fine of Rs.500/- A-9 147 IPC i/d 2 months RI III A-1 to A-1,A-2 2 years RI and A-10 455 IPC & A-10 fine of Rs.1000/- guilty i/d 3 months RI A-3 to A-9 not guilty IV A-1 to A-1,A-3 2 years RI and A-10 449 IPC to A-6 fine of Rs.1000/- & A-10 i/d 3 months RI guilty A-2 & A-7 not guilty V A-1, A-3 Guilty Life imprisonment A-4, A-5, 302 r/w and fine of A-6 & 34 IPC Rs.2000/- i/d A-10 1 year RI VI A-2, A-7 302 r/w Not to A-9 149 IPC guilty VII A-7 to A-7 & Fine of Rs.500/- A-9 323 IPC A-8 i/d 2 months RI guilty A-9 not guilty VIII A-1 to Not A-6 & 323 r/w guilty A-10 149 IPC IX A-1 324 IPC Guilty 1 year RI X A-2 326 IPC Guilty 3 years RI with fine of Rs.1000/- i/d 6 months RI XI A-3 & 2 years RI with A-4 325 IPC Guilty fine of Rs.500/- i/d 3 months RI XII A-5 323 IPC Guilty Fine of Rs.500/- i/d 2 months RI XIII A-6 to 324 r/w 149, Not A-10 326 r/w 149, guilty 325 r/w 149, 323 r/w 149 IPC respectively XIV A-1, & Not A-3 to 326 r/w guilty A-5 149 IPC XV A-1 to Guilty Fine of Rs.500/- A-10 427 IPC i/e 1 month RI
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2.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 and his elder brother Ramasubbu Konar were the residents of Kothaichery. P.W.2 is the wife of the said Ramasubbu Konar. P.W.3 is the daughter of P.W.2, and her husband, the deceased Ramasubbu Konar. P.W.4 is the husband of P.W.3. P.Ws.3 and 4 were staying in Mumbai. The mother of P.W.4 was ill. Hence, P.Ws.3 and 4 returned to their native place Malayankulam and were staying there. After 10 days, the mother of P.W.4 died. Both P.W.1 and his brother the deceased Ramasubbu, were intimated as to the death of the mother of P.W.4. On receipt of the intimation on 16.5.1996, P.W.1, his wife and Ramasubbu Konar and his wife proceeded to Malayankulam in order to enquire the same. They reached the place at about 11.30 a.m. On seeing them, the accused questioned how these persons belonging to Kothaichery, came there. The brother of A-1 by name Azhvar Konar and his son were murdered on 31.7.1995. A-1 and the other accused entertained a suspicion that Ramasubbu was actually involved in that murder, and hence, they quarreled with them. When there was a wordy altercation, P.W.13 intervened and pacified the situation.
(b) At about 1.00 p.m., all the accused in furtherance of their common object of committing murder proceeded to the house of Sudalaimuthu Konar. While A-1 and A-2 were armed with aruvals, A-3 was armed with palmyra stick. A-10 armed with an iron rod, and all other accused were armed with Seemai karuvai stick. On seeing the accused, P.Ws.1 to 3 got into the house and bolted. The accused break open the door and got inside. Immediately, P.Ws.1 to 3 went to the upstairs portion; but, the accused damaged the house. On being frightened, P.Ws.1 to 3 came to the ground floor. A-1 attacked Ramasubbu on both the shoulders with the blunt portion of aruval. A-3 attacked him on his chest and flank with palmyra stick. A-6 attacked him on the right shoulder with a stick.
A-4 and A-5 both attacked him with the sticks. A-10 stabbed him with an iron rod on his ankle. At that time, when P.W.1 intervened, A-1 attacked him with the blunt portion of the aruval. A-3 attacked P.W.1 on his shoulders with palmyra stick, A-4 and A-5 also attacked him with the karuvai sticks, while A-2 attacked him with the blunt portion of aruval. When P.W.2 shouted, A-7, A-8 and A-9 attacked her with sticks. When all of them raised alarm, all the accused ran away from the place of occurrence.
(c) P.W.1 and the severely injured Ramasubbu Konar were taken to Nanguneri Government Hospital. P.W.11, the Doctor, who was on duty, medically examined P.W.1 and also the deceased. The injuries found on the deceased, were noted in Ex.P8, the copy of the accident register. P.W.1 was examined by P.W.11, the Doctor, at about 3.30 p.m. The injuries found on him were noted in Ex.P9, the accident register copy. P.W.1, on advice by the Doctor, was taken to Tirunelveli Medical College Hospital.
(d) The deceased Ramasubbu died at about 3.40 p.m. An intimation was given to Nanguneri Police Station from where P.W.16, the Head Constable, proceeded to Tirunelveli Medical College Hospital and recorded the statement of P.W.1, which is marked as Ex.P1, on the strength of which a case came to be registered in Crime No.238/96 under Sections 147, 148, 452, 323, 325, 324, 427 and 302 IPC. The printed FIR, Ex.P17, was despatched to the Court.
(e) On 16.5.1996, P.W.19, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch Ex.P19. He recovered the material objects from the place of occurrence. P.W.2 who was injured at the place of occurrence, was taken to Tirunelveli Medical College Hospital by P.W.14. He was examined by P.W.9, the Doctor, and the accident register copy in that regard is marked as Ex.P4. P.W.19 conducted inquest on the dead body of Ramasubbu in the presence of witnesses and panchayatdars and prepared Ex.P20, the inquest report.
(f) On a requisition made, P.W.11, the Doctor, attached to the Government Hospital, Nanguneri, conducted autopsy on the dead body of Ramasubbu on 17.5.1996 and gave his opinion in Ex.P11, the postmortem certificate, that the deceased would appear to have died of shock and haemorrhage due to the fracture of ribs and injury to lung and multiple contusions.
(g) Pending investigation, on 21.5.1996, A-1 to A-9 were arrested by the Investigator. A-1 came forward to give a confessional statement which was recorded. The admissible part is marked as Ex.P22. An aruval was recovered from him under a cover of mahazar, Ex.P23. The confessional statement of A-2 was recorded in the presence of witnesses, and he produced an aruval, which were recovered under a cover of mahazar, Ex.P24. The aruvals recovered from A-1 and A-2 are marked as M.Os.1 and 2 respectively. All other accused have also produced karuvai sticks, which were recovered under a cover of mahazar.
(h) On arrest, A-3 was medically examined by P.W.10, the Doctor, on 22.5.1996 in respect of the injuries sustained by him. The accident register copy in that regard is marked as Ex.P5. Likewise, A-5 was also examined on the very same day by the same Doctor, and the accident register copy is marked as Ex.P6. On 31.5.1996, A-10 was arrested. He gave a confessional statement. The admissible part is marked as Ex.P28, pursuant to which he produced M.O.3, iron rod, which was recovered under a cover of mahazar, Ex.P29. All these accused were sent for judicial remand. All the material objects are subjected to chemical analysis, which resulted in two reports namely the Chemical Analyst's report, Ex.P15, and the Serologist's report, Ex.P16. P.W.20, the Inspector of Police, took up further investigation. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 20 witnesses and also relied on 29 exhibits and 26 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. Only one witness namely Mandira Konar, was examined as D.W.1. No documents were marked on their side. On completion of the evidence on both sides, the lower Court heard the arguments advanced, found the appellants/accused guilty and awarded the punishments as referred to above. Hence, this appeal at the instance of the appellants.
4.Advancing arguments on behalf of the appellants, the respective learned Counsel made the following submissions:
(i) According to the prosecution, the occurrence has taken place at 1.00 p.m. on 16.5.1996. P.Ws.1 to 3 were shown as occurrence witnesses, out of whom P.Ws.1 and 2 were injured. P.Ws.1 and 2 belonged to a village by name Kothaichery. According to the prosecution, all the accused in furtherance of the common object, entered into the house of P.W.3 and attacked the deceased and P.Ws.1 and 2 also. A-1 was 80 years old, and A-2 was aged 75 at the time of occurrence. They could not even move about, and they walk with sticks. Thus, it was highly improbable that both of them also participated in the occurrence.
All the members of the same family were roped in as accused in the instant case.
(ii) The accused challenged the signature found in Ex.P1 that it was not that of P.W.1. Though the signature of P.W.1 was challenged by the accused, no steps were taken by the prosecution to prove the same.
(iii) According to the prosecution, immediately after the occurrence, P.W.1 and the deceased were taken to Nanguneri Government Hospital, and both were attended by P.W.11, the Doctor, and at about 3.40 p.m., Ramasubbu Konar died, and he was declared dead. P.W.1 even after the initial treatment, was taken to Tirunelveli Medical College Hospital, and P.W.16, the Head Constable, proceeded from Nanguneri to Tirunelveli Medical College Hospital where he recorded the statement of P.W.1, which is highly improbable and unbelievable for the reason that both the hospital and the police station are adjacent to each other. Had it been true that P.W.1 and the deceased were taken to the Government Hospital, Nanguneri, and the said Ramasubbu Konar was in such a dying condition, and the condition of P.W.1 was also so serious that he should be treated at Tirunelveli Medical College Hospital, immediately the information should have been given to the police station which is situated in the very same compound, and the police officials could have come immediately. Strangely after P.W.1 was taken to Tirunelveli Medical College Hospital, the intimation was given there, and the police officials went over to Tirunelveli Medical College Hospital and recorded the statement. It is highly improbable and unbelievable. The first information which should have reached Nanguneri police station immediately, has been suppressed.
(iv) The so-called eyewitnesses could not narrate the occurrence as put forth by the prosecution. Even as per the sketch and observation mahazar, all the accused armed with weapons, could not attack the deceased or P.W.1 or P.W.2 simultaneously at the place of occurrence since it was such a tiny room.
(v) According to the FIR, A-3 had got a palmyra stick. When it came before the Court, the witnesses have given different versions. P.W.1 could not identify the weapons. According to the prosecution, A-1 attacked the deceased with the blunt portion of aruval on both shoulders, and A-3 with the palmyra stick attacked him on the chest and flank, and A-4, A-5 and A-6 attacked him with sticks, and A-10 with the iron rod. It is pertinent to point out that the accident register copy in respect of the deceased would indicate that there were only two external injuries which itself would falsify that all these accused have attacked the deceased in such a manner as put forth by the witnesses, and hence, it was thoroughly unbelievable.
(vi) According to the witnesses, A-3 and A-5 on arrest were medically examined by P.W.10, the Doctor, and the accident register copies are placed, from which it would be clear that they sustained cut injuries at the time of the occurrence; but, no whisper is made in the FIR that A-3 or A-5 sustained any injury. But, from the evidence of the eyewitnesses, it would be quite clear that it was one of the prosecution witnesses who took a knife from the waist and caused injuries on those accused. If to be so, the genesis of the occurrence remained unknown. Who caused injury and on whom it was caused also remained unknown. Under the circumstances, the prosecution was unable to fix the assailants or the acts attributed to them. Hence, the prosecution has neither proved the common object nor the participation of the accused. For the above reasons, they are entitled for acquittal.
5.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
6.Pursuant to an occurrence that took place at 1.00 p.m. on 16.5.1996 at the house of P.W.3 at Malayankulam, the deceased was taken to Nanguneri Government Hospital. He was attended by P.W.11, the Doctor, and following the same, he was declared dead at about 3.40 p.m. Following the inquest made, a requisition was given to the hospital authorities for conducting postmortem. P.W.11, the Doctor, who conducted autopsy on the dead body, has also deposed before the Court that Ramasubbu died out of shock and haemorrhage due to the injuries sustained. The fact that Ramasubbu Konar died out of homicidal violence was not disputed by the appellants before the trial Court or before this Court. Hence, without any impediment, it could be factually recorded so.
7.The case of the prosecution as could be seen above, was that on 16.5.1996, P.W.1 and his brother the deceased Ramasubbu Konar along with his wife P.W.2, went from their village to the nearby village called Malayankulam to enquire the death of the mother of P.W.4. It is also very clear that the brother of A-1 and his son were murdered, and the accused party entertained an impression that the deceased Ramasubbu had a role to play in that murder. On seeing P.W.1, the deceased and P.W.2 in their village Malayankulam, the accused party were provoked, and thus, there was a wordy altercation. It was P.W.13, who pacified the situation. Within a short span of an hour, the occurrence has taken place. The place of occurrence is shown as the house of P.W.3. The Investigator inspected the place of occurrence, recovered the material objects in the presence of two witnesses and prepared a sketch also, and those documents were placed before the Court. The material objects were also placed before the Court. From that part of the evidence, there is no doubt to be entertained as to the place of occurrence.
8.In the instant case, P.Ws.1 and 2 were injured witnesses. From the place of occurrence P.W.1 and the deceased Ramasubbu were taken to Nanguneri Government Hospital, where they were attended by P.W.11, the Doctor. Ex.P8 is the accident register copy for the deceased, while Ex.P9 is the copy of the accident register as regards P.W.1. They were the earliest documents which have come into existence, wherein it is clearly stated that they were attacked with kathi, kambu and aruval by known 10 persons. P.W.11, the Doctor, has been examined in order to prove the contents of Exs.P8 and P9. It is true that the deceased was declared dead at Nanguneri Government Hospital, and P.W.1 on the advice of the medical person, was taken to Tirunelveli Medical College Hospital. Thus, it would be quite clear that at that juncture, there was no one to speak about the occurrence to the police official, and hence, the police official was compelled to go to Tirunelveli Medical College Hospital where P.W.16, the Head Constable, enquired P.W.1, recorded the statement, came back to the station and registered a case. Hence, the contention put forth by the learned Counsel for the appellants that Nanguneri police on intimation should have entered into Nanguneri Government Hospital immediately and recorded the statement, and hence, the fact that the Head Constable went over to Tirunelveli Medical College Hospital and recorded the statement of P.W.1 was highly improbable cannot be countenanced. This Court is able to see the natural course of events in recording Ex.P1 statement from P.W.1 at Tirunelveli Medical College Hospital. Thus, there was no delay caused. It remains to be stated that the earliest documents that have come into existence namely the accident register copies of the deceased Ex.P8 and of P.W.1, Ex.P9, would clearly indicate the truth of the contents of Ex.P1. Under the circumstances, this Court is unable to entertain any doubt over the same.
9.In the case on hand, the prosecution had three witnesses as occurrence witnesses, out of whom P.Ws.1 and 2 were injured. In a given case like this, where the occurrence witnesses happened to be injured witnesses, unless and until a strong circumstance is brought about or noticed by the Court, their evidence should not be discarded. It is true that P.Ws.1 and 2 as injured witnesses and P.W.3 as eyewitness, have narrated the entire occurrence. They have clearly spoken about the presence of all these accused and their overt acts. It is true that there are certain contradictions in their evidence, which, in the opinion of this Court, were bound to occur. In a given situation where 10 persons armed with deadly weapons are attacking 3 or 4 persons, one cannot expect all the witnesses to give a graphic or dramatic narration. If they do so, that would become doubtful. In the instant case, the contradictions are found to be minor most, which, in the opinion of the Court, would not affect the truth of the case. Apart from that, the ocular evidence of P.Ws.1 to 3 stood fully corroborated by the medical evidence. Yet another circumstance is the recovery of weapons of crime from the accused on their confessions. Thus, the prosecution had proved the availability of A-1 to A-10 at the place of occurrence, and they armed with respective weapons, attacked the deceased.
10.It is pertinent to point out that though the witnesses claimed number of palmyra sticks, no such injury could have been caused with palmyra sticks according to the medical person. It is clear that A-3 had got a stick, and A-1 and A-2 with aruval in hand. Had it been their intention to cause injury, they would have caused injury with the front portion of aruval; but, they have attacked him with the blunt portion and caused simple injuries, and other accused have got sticks. As could be seen, both A-3 and A-5 sustained injuries, and they were simple injuries. It would be quite clear that due to the provocation, they had acted so, and it was not their intention to do murderous attack or cause death to the other party. In the absence of the common object, they have got to be individually dealt with. It could be seen that due to the injury that was sustained by the deceased on the chest where the fracture of the ribs was found, he has died. According to the prosecution witnesses, it was caused by A-3, and hence, the act of A-3 in causing the death, would attract the penal provision of Sec.304(Part II) IPC, since no intention or premeditation is noticed. This Court is of the view that awarding punishment of 5 years Rigorous Imprisonment would meet the ends of justice.
11.Accordingly, the conviction and sentence imposed by the trial Court on A-1, A-4, A-5, A-6 and A-10 under Sec.302 read with 34 IPC, are set aside, and instead they are convicted under Sec.324 IPC and directed to suffer one year Rigorous Imprisonment.
12.The conviction and sentence imposed on A-3 under Sec.302 read with 34 IPC, are set aside, and instead, he is convicted under Sec.304 (Part II) IPC and directed to undergo five years Rigorous Imprisonment. The fine imposed by the trial Court, shall remain.
13.The conviction of A-2 under Sec.326 IPC is confirmed; but, the sentence imposed on him by the trial Court for that offence, is reduced from three years Rigorous Imprisonment to two years Rigorous Imprisonment. However, the fine imposed by the trial Court, shall remain.
14.As regards A-5, A-7 and A-8, the conviction and the fine imposed on them by the trial Court under Sec.323 IPC, are confirmed.
15.The conviction and sentence imposed on A-1 by the trial Court under Sec.324 IPC, are confirmed.
16.The conviction of A-3 and A-4 under Sec.325 of IPC is confirmed; but, the sentence imposed on them by the trial Court, is reduced from 2 years Rigorous Imprisonment to 1 year Rigorous Imprisonment. The fine imposed by the trial Court, shall remain.
17.The conviction and sentence imposed by the trial Court on A-1, A-2 and A-10 under Sec.148 IPC, and on A-3 to A-9 under Sec.147 IPC, are set aside, and they are acquitted of that charges. The fine amount if any paid by A-3 to A-9 under Sec.147 IPC, will be refunded to them.
18.The conviction of A-1 to A-10 under Sections 455 and 449 IPC is confirmed; but, the sentence imposed on them, is reduced from 2 years Rigorous Imprisonment to 1 year Rigorous Imprisonment. The fine amount imposed by the trial Court, will remain.
19.The conviction and sentence imposed on A-1 to A-10 by the trial Court under Sec.427 IPC, are confirmed.
20.In the result, this criminal appeal is, accordingly, dismissed. The sentences imposed on A-1 to A-6 and A-10, shall run concurrently. It is reported that A-1 to A-6 and A-10 are on bail. Hence, the Sessions Judge shall take steps to commit them to prison to undergo the remaining period of sentence if any.
nsv/ To
1.The II Additional Sessions Judge Tirunelveli
2.Sub Inspector of Police Nanguneri Police Station Crime No.238/96
3.The Additional Public Prosecutor Madurai Bench of Madras High Court