Madras High Court
Murali @ Muralidharan vs Http://Www.Judis.Nic.In on 24 October, 2018
Author: C.T.Selvam
Bench: C.T.Selvam, M.Nirmal Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.10.2018
CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM
AND
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Criminal Appeal Nos.410, 468 and 537 of 2018
and
Crl.M.P.Nos.9441, 10445 and 11821 of 2018
1.Murali @ Muralidharan
S/o.Janarthanan
2.Karthik @ Muralikarthik
S/o.Thayagrajan
3.Moorthy
S/o.Soundharajan
4.Shanmugam @ Shanmugapandian
S/o.Moorthy ... Appellants/A1 to A4 in
Crl.A.No.410/2018
Raghu @ Mettu Raghu
S/o.Murugesan ... Appellant/A9 in
Crl.A.No.468/2018
1.Arumugam
S/o.Raju
2.Venkatesh
S/o.Muniappan ... Appellants/A5 and A6 in
Crl.A.No.537/2018
Vs
http://www.judis.nic.in
2
State represented by
The Inspector of Police,
Sevaipettai Police Station,
Salem District.
Crime No.360 of 2010 ... Respondent in all appeals
Criminal Appeals filed u/s.374(2) Cr.P.C. against the judgment of learned III
Additional District and Sessions Judge, Salem, in S.C.No.220 of 2011 on 09.07.2018.
Appearance:
Appellants : Mr.N.R.Elango, senior counsel for Mr.Aruna Elango
[Crl.A.No.410 of 2018]
Mr.B.Kumar, senior counsel for Mr.R.Rajan
[Crl.A.No.468 of 2018]
Mr.R.John Sathyan [Crl.A.No.537 of 2018]
Respondent : Mr.R.Prathap Kumar, Additional Public Prosecutor
*****
COMMON JUDGMENT
[Judgment of the Court was made by C.T.SELVAM, J] These appeals arise against judgment of learned III Additional District and Sessions Judge, Salem, in S.C.No.220 of 2011 dated 09.07.2018.
2. Case of prosecution is that on 02.03.2010 at about 11.00 a.m., deceased, PW-3 and one Shanmugam, brother of deceased and the deceased after visiting one Valathi Kumar, who was in prison, were returning home on two motorcycles. While they were at a signal, accused suddenly surrounded and http://www.judis.nic.in 3 indiscriminately stabbed the deceased using knives, owing to which he died. The said Shanumugam preferred Ex.P28, complaint before PW-25, Inspector of Police and a case was registered in Crime No.360 of 2010 on the file of respondent for offences u/s.147, 148 and 302 IPC. Printed First Information Report is Ex.P29. PW- 26, Deputy Superintendent of Police, took up investigation and on completion thereof, filed a charge sheet informing commission of offences u/s.120-B, 148, 302 r/w 149 and 302 r/w 120-B IPC. On committal, the case was tried in S.C.No.220 of 2011 on the file of learned III Additional District and Sessions Judge, Salem.
3. Before trial Court, prosecution examined 26 witnesses and marked 69 exhibits and 30 material objects. None were examined on the side of defence nor were any exhibits marked.
3.1. PW-1, brother of deceased, spoke to relationship between deceased and prisoner Valathi kumar, of deceased having gone over to prison to see him on 02.03.2010 and upon information from another brother at about 01.45 pm. that deceased had been done to death, proceeding to the scene of crime. As the body of deceased was not there, he, coming to know that the body had been taken to Government Hospital, Salem, went there and saw the body of deceased. http://www.judis.nic.in 4 3.2. PW-2, wife of deceased, spoke to enmity between A10 and deceased and Valathikumar, of A10 stating that deceased and Valathikumar would become competitors to his business and hence, he wanted to do away with them. She also deposed to going to hospital.
3.3. PW-3 spoke to knowing the deceased, of riding a two wheeler with deceased riding pillion on 02.03.2010 at about 01.30 p.m, of halting at a signal and of deceased pushing him from behind as a result of which he fell down. PW-3 denied seeing the occurrence since a crowd had gathered and that he did not see the accused. PW-3 has been treated hostile.
3.4. PW-7, Village Administrative Officer, spoke to visiting the scene along with his Assistant upon information obtained from Inspector of Police through telephone, of attesting Ex.P1, Observation Mahazar, Exs.P2, P3, P5 and P6, seizure mahazars for MOs.1, 2, 3, 4, 5, 6 and 7 and Ex.P4, confession of A3.
3.5. PW-10, Doctor, deposed that while he was on duty on 02.03.2010 at about 2.10 p.m., deceased was brought to the hospital and on examination, he found that the deceased had died. PW-10 spoke to informing the death to the police station and of forwarding the body towards conduct of postmortem. http://www.judis.nic.in 5 3.6. PW-13 informed of not knowing anything about the occurrence. 3.7. PW-15, Assistant Director, spoke to examining the viscera of the deceased and of issuing Ex.P8, Forensic Report.
3.8. PW-17, Village Administrative Officer, spoke to attesting Ex.P22 – confession, Ex.P23 – seizure mahazar, Ex.P24 – admissible portion of confession of A10 and Ex.P25 – seizure mahazar.
3.9. PW-18, Head Constable, deposed that while he was on duty as traffic constable on 02.03.2010, he witnessed the occurrence and before he reached the scene, accused ran away. PW-18 also deposed that after informing the control room over walkie talkie, he came back to the scene. The body of deceased was not at the scene and he was informed that the deceased was taken to hospital.
3.10. PW-19, Doctor, who conducted postmortem on the body of deceased, has stated that deceased died of shock and haemorrhage due to multiple injuries.
3.11. Pws.20 and 21, eye witnesses, spoke to accused assaulting the deceased using knives and their running away.
http://www.judis.nic.in 6 3.12. PW-22, Head Constable, spoke to submitting the First Information Report to Court and of handing over the case papers to higher official towards conduct of investigation.
3.13. PW-23, Special Sub-Inspector, spoke to handing over the seized articles to Forensic Department.
3.14. PW-24, Head Constable, spoke to handing over the body of deceased towards conduct of postmortem and of forwarding viscera towards conduct of chemical examination.
3.15. PW-25, Inspector of Police, spoke to registration of Ex.P29, First Information Report, upon receipt of Ex.P28 – complaint from Shanmugam, brother of deceased and of forwarding the same to Court and higher officials.
3.16. PW-26, Deputy Superintendent of Police, who conducted investigation in the case, spoke to visiting the scene, preparation of mahazars, examining witnesses, recording confession of appellants/accused, arrest of accused, alteration of First Information Report to reflect offences u/s.147, 148, 302 and 120-B IPC, obtaining various reports and on completion of investigation, filing a http://www.judis.nic.in 7 charge sheet informing commission of offences u/s.120-B, 148, 302 r/w 149 and 302 r/w 120-B IPC before learned Judicial Magistrate III, Salem.
3.17. PWs.4, 5, 6, 8, 9, 11, 12, 14 and 16 have been treated hostile.
4. Pending trial, A8 died. On questioning u/s.313 Cr.P.C., accused denied charges. On appreciation of evidence, oral and documentary, trial Court, under judgment dated 09.11.2018, while acquitting accused 1 to 7, 9 and 10 of offence u/s.120-B IPC and A10 of offence u/s.302 r/w 120(b) IPC, convicted accused and sentenced them as follows:
Accused Offences u/s. Sentence
A1 to A7 148 IPC 3 years R.I. and fine of Rs.1,000/- each i/d 3
and A9 months R.I.
302 r/w 149 IPCLife imprisonment and fine of Rs.1,000/- each i/d 6 months R.I. Trial Court directed that sentences run concurrently. Against such finding, the present appeals have been filed.
5. Heard learned senior counsel and learned counsel for appellants and learned Additional Public Prosecutor for respondent. Perused the materials on record.
http://www.judis.nic.in 8
6. Ex.P27, Postmortem Certificate, reads thus:
‘Department of Forensic Medicine Govt M.K.Medical College Hospital – Salem Postmortem Certificate PMC No:267/10 Dt 2/3/2010 Cr.No.-360/10 of Shevapet PS Regarding the body of a male aged about 30 years named Mohan. Requisition received from the Inspector of Police of Shevapet PS on 2/3/2010 at 5.50 p.m. with his Cr.No.360/10 of Shevapet PS. The body was in charge of police Head Constable HC 880 Mr.Sampathkumar.
Identification Marks: 1) AWS over RT side of knee
2) ABM over RT side hand The body was first seen by the undersigned at 6.00 pm on 2/3/2010.
It's condition then was rigor mortis present all over the body. Postmortem commenced at 6.00 pm on 2/3/2010. It was a moderately nourished body of a male person.
Injuries:-
1) An oblique bowelled chopped wound with everted edges was seen over right little finger M-1 x 0.5 x Bone deep. A blood clot was adherent to the margin of wound.
2) An oblique incised wound with everted edges and acute angled margins was seen over the web space between RT thumb and index finger M-1 x 0.5 x 0.25 cms. It enters through the skin of dorsum and exits in the palmar region.
3) An oblique incised wound with everted edges and acute angled margins was seen over upper part of the right chest M-4 x 2 x 1 cms and it is situated 137 cms above RT foot and 5 cms below http://www.judis.nic.in 9 supra sternal notch. A blood clot was adherent to the margin of wound.
4) An oblique incised wound with everted edges and acute angled margins was seen over the mid chest 5 x 0.5 x 2 cms and it is situated 134 cms above right foot ad 6 cms below the previous injury.
5) An oblique stab injury with everted edges and acute angled margins was seen over front of left chest 4 x 1 x cavity deep and it is situated 130 cms above left foot and 6 cms below the previous injury. A blood clot was adherent to the margin of wound.
6) An oblique stab injury with everted edges and acute angled margins was seen over front of left side upper part of abdomen M-6 x 2 x cavity deep and it is situated 113 cms above left foot and 6 cms below the previous injury.
7) An oblique stab injury with everted edges and acute angled margins was seen over the lower part of left abdomen 4 x 1 x 2 cms and it is situated 110 cms above left foot and 4 cms below the previous injury.
8) An oblique stab injury with everted edges and acute angled margins was seen over right hypochondrium 3 x 2 x 1 cms and it is situated 110 cms above the right foot and 29 cms below right clavicular injury.
9) A chopped cut injury with everted edges and acute angled margins was seen over the chin 6 x 2 x bone deep with severence of the underlying muscles with a cut fracture over the tip of the level of mid junction of mandible 11 x 5 cms with tagging of skin and it is situated 146 cms above the Rt foot and 11.5 cms below http://www.judis.nic.in 10 the glabella.
10)An oblique chopped injury with everted edges and acute angled margins was seen over front of neck extending on both sides 13 x 0.5 x 3 cms and it is situated 144 cms above Rt foot and 6 cms above supra sternal notch.
11)An oblique chopped injury with everted edges and acute angled margins was seen over front of neck 8 x 0.5 x 3 cms with underlying muscles, vessels, trachea severed and it is situated 144 cms above Rt foot and 4 cms below midchin.
12)A oblique cut injury with everted edges and acute angled margins was seen over mid forehead 5 x 0.5 x bone deep.
13)A oblique chopped injury with everted edges and acute angled margins was seen over upper part of left cheek extending from left infra orbital region to left mastoid process. 19 x 1cms x bone deep with severence of underlying muscles and cut fracture over left maxilla and zygomatic bone and cut fracture over left mastoid bone and it is situated 167 cms above left foot and 5 cms lateral to the glabella.
14)An oblique incised wound with everted edges and acute angled margins was seen over left temporal region and it extends upto left eyebrow 6 x 0.5 x bone deep and it is situated 1 cm above the previous injury.
15)An oblique chopped injury with everted edges and acute angled margins was seen over left temporal region extending upto left forehead M-13 x 3 x bone deep with underlying cut fracture involving left fronto temporal bone 13 cms long and it is situated 3 cms above the previous injury.
16)An oblique chopped injury with everted edges and acute angled http://www.judis.nic.in 11 margins was seen over left posterior parietal region M – 12 x 0.5 cms x bone deep with underlying cut fracture involving left parietal bone 9 cms long and it is situated 2 cms above the previous injury.
17)An oblique injury with everted edges and acute angled margins was seen over the frontal region 15 x 1 x bone deep with a cut fracture over the frontal bone 9 cms long and it is situated 13 cms above the glabella and 22 cms above the occipital protruberence.
18)An oblique chopped injury with everted edges and actue angled margins was seen over LT hand it extends from little to index finger with a cut fracture involving metacarpal bone with severence of muscles and vessels.
19)An oblique chopped injurty with everted edges and acute angled margins was seen over the web of thumb and index finger 6 x 1 cms x bone deep.
20)An oblique incised wound with everted edges and acute angled margins was seen over dorsum of left hand 7 x 0.25 x 0.25 cms.
21)An oblique chopped injury with everted edges and acute angled margins was seen over middle 3rd of inner aspect of Lt arm O/d fracture of left ulnar with severence of blood vessels and muscles and it is situated 45 cms below top of left shoulder and 8 cms above the left wrist.
22)An oblique chopped would with everted edges and acute angled margins was seen over lower 3rd of Lt arm extending upto middle 3rd of left forearm 30 x 9 x bone deep with cut fracture involving upper 3rd of left radius and ulna with severence of vessels, muscles and subcutaneous tissue.
http://www.judis.nic.in 12
23)An incised wound with everted edges and actue angled margins was seen over left leg 2 x 0.5 x 0.5 cms.
24)An incised would with everted edges and acute angled margins was seen over upper part of left shoulder 13 x 0.25 cms.
25)A vertical incised would with everted edges and acute angled margins was seen over left scapular region 6 x 0.5 x 0.5 cms.
26)A linear dark red abrasion seen over the upper part of left arm 22 x 0.25 cms.
(All the above injuries are antemortem in nature). Findings:-
1. P/D Head : Sub scalpal contusion seen over B1-fronto-parieto-
temporal region 26 x 8x 0.5 cms. Cranial vault – vide injury column. Dural membranes – Torn under cut fractures, brain – sub- dural and sub-arachnoid haemorrhage seen over both cerebral hemispheres. Base of skull – intact.
2. O/D neck. All neck structures are intact. Hyoid bone intact.
3. O/S Thorax : Heart: Normal in size. Chambers contained minimal fluid blood Myocardium-Normal. Coronaries patent. Lungs – O/s pale.
4. O/D Abdomen : Stomach contains about 125 gms. of brown coloured partly digested cooked rice particles with no specific smell. Mucosa C/s pale. Live, Spleen and kidnesy – O/S pale, bladder – empty, genitalia – no injuries made out pelvis – intact.
5. O/D Spinal colum – intact. Viscera sent for chemical analysis. Opinion : -
Cause of death : - Died of shock and haemorrhage due to multiple injuries.
Time since death : - Died 4 hours ± 1 hour prior to autopsy.’ http://www.judis.nic.in 13
7. It is the prosecution case that deceased, his brother Shanmugam and PW-3 Vijay @ Settu had visited a prisoner by name Valathikumar at Central Prison, Salem and were on their way back on 02.03.2010 at about 11.00 a.m. Shanmugam, brother of deceased and PW-3 were on one motorcycle while the deceased was on another. They had stopped at the Pulikuthi junction traffic signal, the deceased in front and PW-3 and Shanmugam behind him. Two persons on a motorcycle rammed the motorcycle of the deceased resulting in his falling down. Before the deceased could gather his wits, the assailants set upon him with knives and the deceased attempted to run away. When Shanmugam, brother of deceased, shouted for help, the accused wielding knives threatened him against approaching. The deceased was chased down at an optical shop and nine of the accused indiscriminately cut and stabbed him. When PW-3 and shopkeepers nearby approached, the accused threatened them. The shopkeepers downed shutters and when a traffic constable on duty approached and sought to catch them, the accused made a get away.
8. PW-16, Village Administrative Officer, who has been examined to speak to the recovery of Mos.7, 14 and 25 on the confession of A3 has been treated hostile since he has admitted that the accused were not present when recovery was effected. Although PW-17 has spoken to recovery of MO-8 on the confession of A8 and MO-9 on the confession of A10, his evidence does not inspire confidence inasmuch as he admits to not having received any summons from the investigation http://www.judis.nic.in 14 officer, of having gone to a place near Jayarani School on receipt of a phone call and further that the place where confession of A8 and A10 was recorded and recovery of MOs.8 and 9 made was a crowded place and about 20 persons were present. Investigation Officer has failed to seek attestation of the confession and seizure mahazar by any independent witness. PW-17, Village Administrative Officer, can only be seen as an obliging witness. PWs.4, 5, 6, 8, 9, 11, 12 and 14, who have been examined to speak to having witnessed the occurrence have totally denied knowledge thereof. PW-20 did not remember if he had seen the accused.
PW-20 has spoken to working at a shop when on hearing a sound he went and saw 7 to 8 persons attacking a person with weapons. When he and others sought to intervene, the assailants intimidated them as also a traffic constable and thereafter, made a get away. He was unable to identify any of the assailants. PW- 21 has also spoken to an occurrence wherein one was attacked by many but that he had not seen the accused.
9. In the aforesaid circumstances, although the present is a clear case of a ghastly murder where several persons had attacked one, inflicting as many as 26 injuries, the prosecution case finds absolutely no support from the testimony of witnesses. While the evidence of PWs.20 and 21 points to no more than their having witnessed the occurrence, that of PW-17, Village Administrative Officer, at whose instance some recoveries have been effected on the confession of A8 and http://www.judis.nic.in 15 A10, does not inspire confidence. It is now common place particularly in occurrences involving rowdy elements that independent witnesses, fearing for their safety, do not come forward to depose. Nevertheless, on evidence which does not reach the touchstone of proof beyond reasonable doubt, a finding of conviction cannot be made. In the present day scenario we can only hope that the witness protection scheme envisaged will serve the cause of justice.
10. A perusal of the Forensic Report informs that the blood grouping of the blood stained earth recovered at the scene was inconclusive. Several of the articles seized have reflected blood stains of Group ‘A’. Towards finding that the blood group of the deceased indeed was ‘A’ we are left with the grouping of the blood stains found on the clothes of the deceased. Several would be the cases where blood of the accused also comes to stain the clothes of deceased. The surer method would be that which was vogue till quite recently i.e taking samples of ‘control blood’ at the post mortem. This time tested procedure seems to have been given a go-by of late. It would be the duty of the investigation officer to collect the same and forward to the concerned Magistrate.
11. The Criminal Appeals are allowed. The conviction and sentence passed by learned III Additional District and Sessions Judge, Salem, in S.C.No.220 of 2011 on 09.07.2018, are set aside. Appellants are acquitted of all charges leveled http://www.judis.nic.in 16 against them. Appellants are directed to be released forthwith unless their presence/custody is required in connection with any other case/proceedings. Fine, if any, paid shall be refunded. Connected miscellaneous petitions are closed.
Registry is directed to forward a copy of this judgment to the Director of Medical Education towards issue of due instructions for collection of ‘control blood’ at postmortems as a routine practice to be followed throughout the State. Copy of the order shall also be forwarded to the Director General of Police towards ensuring of investigation officer to collect the samples of ‘control blood’ and forward to Court.
[C.T.S., J] [M.N.K., J]
24.10.2018
Index:yes/no
Internet:yes
gm
http://www.judis.nic.in
17
To
1.The III Additional District and Sessions Judge, Salem.
2.The Inspector of Police, Sevaipettai Police Station, Salem District.
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent of Central Prison, Salem.
5.The Director of Medical Education, Tamil Nadu.
6.The Director General of Police, Tamil Nadu.
http://www.judis.nic.in 18 C.T.SELVAM, J and M.NIRMAL KUMAR, J gm Criminal Appeal Nos.410, 468 and 537 of 2018 24.10.2018 http://www.judis.nic.in