Madras High Court
Jagebar Ali Alias Settu vs Inspector Of Police on 21 July, 2006
Author: M.Chockalingam
Bench: M.Chockalingam, P.Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/07/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.MURGESEN CRIMINAL APPEAL NO.1473 OF 2003 1.Jagebar Ali alias Settu 2.Mohammed Ali 3.Shekar 4.Kaliayamurthy 5.Ramakrishnan 6.Baskar alias Kannan 7.Manoharan 8.Shekar 9.Thevur Packkrisamy .. Appellants Vs. Inspector of Police, Panthanallur Police Station, Kumbakonam Taluk Crime No.72 of 2001 .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the judgment of the learned I Additional Sessions Judge, (Protection of Civil Rights), Thanjavur made in S.C.No.61 of 2003, dated 27.8.2003. !For Appellants ... Mr.A.Padmanabhan for Appellants 1,2 and 4 Mr.A.P.Muthupandian, for Appellants 3 and 5 Mr.G.Pugalendhi for Appellants 7,8 and 9 Mr.D.Shanmuga Raja Sethupathy for M/s.Raj & Pathy for Appellant No.6 ^For Respondent ... Mr.P.N.Pandi Durai, APP :JUDGMENT
(The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal has arisen from the judgment of the learned I Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur made in S.C.No.61 of 2003, dated 27.08.2003.
2.The appellants, who were arrayed as A-1 to A-7, A-9 and A-10 respectively along with A-8, A-11 to A-15 before that court, stood charged, tried and found guilty as detailed below:
I Charge - A-8 to A-15 - Section 147 IPC Finding - A-9 and A-10 alone were convicted and sentenced to undergo one year RI A-8, A-11 to A-15 were acquitted.
II Charge - A-1 to A-7 - Section 148 IPC Finding - A-1 to A-7 were convicted and sentenced to undergo one year R.I. III Charge - A-1 to A-15 - Section 302 r/w 149 IPC Finding - A-1 and A-2 were convicted and sentenced to undergo life imprisonment each and a fine of Rs.15,000/-, in default 5 years RI.
A-3 to A-7 were convicted and sentenced to undergo life imprisonment each and a fine of Rs.10000/-, in default 5 years RI.
A-9 and A-10 were convicted and sentenced to undergo life imprisonment each and a fine of Rs.5000/-, in default 2 years RI.
A-8, A-11 to A-15 were acquitted.
IV Charge - A-3 to A-7 - Section 307 IPC Finding - A-3 to A-7 were convicted and sentenced to undergo 7 years RI along with a fine of Rs.5000/-, in default 2 years RI.
V Charge - A-1 and A-2 - Section 3(1)(x) SC/ST Act Finding - They were acquitted.
VI Charge - A-1 to A-15 - Section 3(2)(5) of SC/ST Act. Finding - They were acquitted.
Aggrieved over the said finding of conviction and sentence, the appellants have brought forth this appeal before this Court.
3.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the native of Thugili Periyar Nagar. P.Ws.2,3,4,5 and 6 all belonged to the same place. P.Ws.2, 3 and 4 were originally employed in Ambika Sugar mills, Kottur. P.Ws.6 and 7 are also the residents of the said place and all were carrying on agricultural operations. P.W.8 belonged to Kelathur vilalge, where he was serving as village Menial. P.W.9 belonged to Keelasuriya Moolai village, where he was serving as village assistant. A-1 to A-11 and A-13 to A-15 belonged to Padayachi community, out of whom, A-1 and A-2, though belonged to Hinduism originally, they switched over to Muslim faith. A-12 belonged to another community. P.Ws.1 to 4 belonged to scheduled caste and they were all employed, at the time of occurrence, under one Bhaskar.
b)On 26.3.2001 at about 5.00 p.m., after finishing work, P.Ws.1 to 4 came out of the sugar factory and went to a nearby tea stall for taking tea. At that time, A-1 was plying auto on the road. On seeing sugarcane on the road, P.Ws.1 to 4 were able to proceed on the middle of the road. When A-1 came nearby, he uttered "you add four more persons and lie on the road". In reply, P.W.1 told him "on hearing the horn of the Auto, we gave way and even then, why are you scolding". There arose a quarrel. In that, the first accused took casurina stick and tried to attack P.W.1. The other witnesses, namely P.Ws.2 to 4 held the accused and stopped him from attacking. This was also witnessed by the deceased Thangaraj, who was taking tea in a nearby tea stall. He suddenly intervened and pacified them.
c)A-1 turned the Auto and took the same to Kelasuriyamoolai village.
P.Ws.1 to 4 went to Muniyandi Vilas for taking tea. 45 minutes later, i.e. at about 6.00 p.m., when the witnesses along with Thangaraj were at the place of occurrence, A-1, A-2, A-4 to A-6 armed with aruvals, A-3 armed with an iron road and A-7 armed with a knife and the other accused armed with casurina sticks, came there. The deceased Thangaraj tried to pacify them. A-1 cut the deceased on the left side of the neck. Again A-1 cut the deceased below the left ear. A-4 cut him on the left side of the hip. A-2 cut him with aruval on the left shoulder. A-5 cut the deceased on the waist. A-7 stabbed him with the knife on the left armpit and the deceased fell down. A-3 beat P.W.1 on the head with the iron road. A-4 cut P.W.1 on the left waist. The rest of the accused surrounded P.W.1 and cut P.W.1 on the right arm, left shoulder, right thigh and on the back respectively and they fled away from the place of occurrence.
d)One Mohan took P.W.1 to the Government Hospital, Kumbakonam, where he was admitted by P.W.10, the Doctor, at about 7.00 p.m. He issued Ex.P.11, the wound certificate. A communication was received by P.W.13, the Head Constable, attached to Kumbakonam East Police Station at 19.30 hours, who in turn informed the same to Panthanallur Police Station, within whose jurisdiction the occurrence has taken place. On receipt of the intimation on 26.3.2001 at 19.30 hours, P.W.16, the Sub Inspector of Police proceeded to the Government Hospital, Kumbakonam at 20.30 hours. He recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which a case came to be registered in Crime No.72 of 2001 under Sections 147, 148, 324, 307 and 302 IPC and Section 3(2)(v) of SC/ST Act. Ex.P.17, the FIR, was despatched to the Court.
e)P.W.19, the Deputy Superintendent of Police, on receipt of the copy of the FIR on 26.3.2001 at about 11.00 p.m., proceeded to the place of occurrence and made an inspection in the presence of two witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.35, the rough sketch. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.36, the inquest report. Following the same, the dead body was sent to the Government Hospital, Thiruvidaimarudur for the purpose of post- mortem.
f)P.W.12, the Doctor, attached to the Government Hospital, Thiruvidaimarudur, conducted autopsy on the dead body of Thangaraj and found the following injuries:
"1.A deep cut injury with clear and sharp edges covered with blood starts from the Postpart of lower 1/3 of the neck on the left side and running transversly and anteriorly to the anterior part of the neck, turning the head and face to the right side of the body. It measures 12 cm length x 8 cm depth x Breadth 7 cm at the centre and 3 cm at the edges.
2.Another cut injury in the upper part of the left side of the neck just below the left ear and extends up to the lower 1/3 of the left side of the face and measures length 10 cm x Breadth 3 cm at the centre and 1 cm at the edges x depth 3 cm on (N.C.) Ist injury sterno mastoid muscle cut in the lower 1/3 of the neck left carotid artery and left external jugular vein cut. Spinal cord is cut and fractured and dislocating vertebra at c5 c6 level. In the second injury sterno mastoid muscle is cut in the upper 1/3 of neck.
3.A stab injury in the left axilla in the anterior axillary line which measures 2 cm length 15 cm depth and 1 cm breadth. 2cm/15cm sub cutaneous haemorrhage. Fracture of left 5th rib present. The injury extends upto the lower lobe of the left lung with a punctured wound measures 1-1/2 cm breach and 1 cm depth.
4.Cut injury in the left shoulder 4 cm x 2 cm breadth and 3 cm depth.
5.A cut injury in the lower part of left side of the chest. Length 2 cm x 1 cm breadth x 1 cm depth.
6.Cut injury in the upper part of the left hip 1-1/2 cm x . cm x . cm."
He has issued Ex.P.16, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injury to vital organs like carotid artery, spinal cord and left lung.
g)Pending investigation, on 28.3.2001, P.W.19 arrested A-3, A-4, A-5, A-6 and A-7. At that time, A-5 came forward to give a confessional statement voluntarily and the same was recorded in the presence of two witnesses, the admissible part of which was marked as Ex.P.5. Following the same, he produced 5 aruvals, one iron rod and one knife in the presence of the witnesses, which were recovered under a cover of mahazar, and they were marked as M.O.3 (series), M.O.4 and M.O.5 respectively.
h)Pending investigation, P.W.20 took up further investigation in the case. He came to know that A-1 and A-2 surrendered before the Judicial Magistrate, Kumbakonam and hence, he made an application for police custody and the same was ordered. On 11.4.2001, they were enquired. The first accused gave a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.37. Pursuant to the same, he produced 7 casurino sticks and one iron rod in the presence of the witnesses, which were recovered under a cover of mahazar and they were marked as M.O.13 (series) and M.O.14 respectively. On 29.4.2001, P.W.20 arrested A-8 to A-11. All the accused were sent for judicial remand. All the M.Os recovered from the place of occurrence and from the dead body, and the weapons of crime recovered from the respective accused were subjected to chemical analysis by the Forensic Sciences Department. Ex.P.14, the Chemical Analyst's report, and Ex.P.15, the Serologist's report were received. The Investigating Officer had also obtained community certificates of both the accused and the witnesses and produced the same before the Court. On completion of the investigation, final report was filed.
i)The case was committed to Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution has marched 20 witnesses and relied on 38 exhibits and 14 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. After hearing the submissions and considering the materials available, the trial court found the accused/appellants guilty as per the charge and awarded punishment as referred to above, which is the subject matter of challenge before this Court.
4.Advancing his arguments on behalf of the respective appellants, the learned counsel have made the following submissions:
(a)In the instant case, as per the prosecution case, the occurrence has taken place on 26.3.2001 at 6.00 p.m. on the road leading to Ambika Sugar Mills.
According to prosecution, P.Ws.1 to 4 were the eyewitnesses. They are all close relatives of the deceased and they belonged to the same community. A close scrutiny of their evidence would also indicate that they could not have witnessed the occurrence and even they could not have been present at the place of occurrence. While the occurrence has taken place at 6.00 p.m., according to the prosecution, P.W.1 was taken to the Government Hospital, Kumbakonam and was admitted by P.W.10, the Doctor, at 7.00 p.m. An intimation was given to P.W.13, the Head Constable, Kumbakonam East Police Station, who in turn informed the same to Pandanallur Police Station. P.W.16, attached to Pandanallur Police Station, came to the hospital and recorded the statement of P.W.1, which was marked as Ex.P.1. The earliest document, which has come into existence, is the wound certificate in respect of the injury sustained by P.W.1 at the time of occurrence. P.W.10 has recorded the statement of P.W.1 in the wound certificate, wherein it is clearly found that according to P.W.1, 50 persons were the assailants and at the time of occurrence, they used aruval, cycle chain and soda bottles. But, it is not the case of the prosecution that 50 persons were the assailants either, or soda bottle and cycle chain were used.
(b)Further improvement was made by way of FIR, which came into existence at about 8.30 p.m., wherein the names of 7 assailants have been mentioned. P.W.1 has clearly admitted that he did not know the names of the fathers of the accused and he has not given any description thereon. If to be so, under the circumstances, identification parade should have been conducted. Thus, the non conduct of identification parade is fatal to the prosecution case. In the instant case, the FIR, which came into existence at 8.30 p.m., does not whisper anything about A-8 to A-15 and the same specifically speaks about A-1 to A-7.
5.Added further the learned counsel that FIR reached the Judicial Magistrate at about 5.00 a.m. The Constable has been examined to give some explanation as to the delay, but that explanation is thoroughly unconvincing and not acceptable. According to the Constable, he took the FIR to the Judicial Magistrate Court, but he was informed that the Magistrate is in house and when he went to the Magistrate's house, he was not available there and therefore, he handed over the FIR only by 5.00 a.m. The same would clearly indicate that the FIR has not come into existence as put forth by the prosecution. Thus, the inordinate and unexplained delay would assume importance in the instant case, since the Magistrate's residence is situated within 1 Kms. from the Court. If to be so, it should have been handed over immediately and hence, the explanation tendered through the police Constable is thoroughly improbable and unbelievable. This would go to show that the FIR has not come into existence at 8.30 p.m. as put forth by the prosecution and it has been registered belatedly with all developments and embellishments, wherein number of accused with so many overt acts have been put in.
6.The learned counsel would further add that in the instant case, when the eyewitnesses have no idea of description about the accused, the conduct of identification parade is a vital one. The non conduct of identification parade, in such a situation, is not explained by the prosecution in any way. P.Ws.1 to 4's evidence was thoroughly unreliable. Apart from that, all the injuries alleged to have been sustained by P.W.1 were simple in nature as per the wound certificate. It has to be stated that the accused had no intention to commit murder. Insofar as A-9 and A-10 are concerned, there is nothing to indicate that they were present at the place of occurrence either, or they acted in any manner or attacked either P.W.1 or deceased.
7.Added further the learned counsel that from the evidence of P.W.1, it could be seen that about 200 persons were there at the time of occurrence and there could not have been any common object to commit the murder of the deceased or attempt to murder of P.W.1. Under these circumstances, this part of the prosecution case also cannot be believed. There was a group clash and hence, P.Ws.1 to 4 could not identify the assailants properly. Under these circumstances, the case of prosecution should have been rejected outright and the appellants/accused are entitled for acquittal in the hands of this Court.
8.Heard the learned Additional Public Prosecutor on the above contentions.
9.The Court paid its anxious consideration on the submissions made. The fact that one Thangaraj met with an instantaneous death in the occurrence that took place on 26.3.2001 at 6.00 p.m. at the place of occurrence is not in dispute. Following his death, a case came to be registered by the respondent police. The inquest was also made by P.W.19. Following the same, the dead body was subjected to post-mortem by P.W.12, the Doctor and he has given Ex.P.16, the post-mortem certificate, wherein he has opined that the deceased died out of shock and haemorrhage due to the injuries sustained in the vital organs. Apart from that, the fact that the deceased died out of homicidal violence was not disputed by the appellants either before the court below or before this Court. Hence, it has got to be recorded so.
10.The next question that would arise for consideration is whether the charges levelled against the appellants/accused were brought home. It is pertinent to point out that in respect of the acquittal of some of the accused, the State has not preferred any appeal. In order to substantiate the act of the accused that they attacked the deceased on 26.3.2001 at 6.00 p.m. at the place of occurrence, the prosecution rested the case on the direct evidence projected through P.Ws.1 to 4. At the outset, the Court has to mention that P.W.1 is not only an eyewitness, but also an injured witness. The Court is mindful of the caution made by the learned counsel for the appellant that P.Ws.1 to 4 are close relatives and they belonged to the same community. Hence, before accepting their evidence, the Court has to exercise the test of careful scrutiny. In the instant case, P.W.1 is not only an eyewitness, but also an injured witness. It is a well settled proposition of law, unless and until strong circumstance is brought to the notice of the Court, the Court should not reject the testimony of the eyewitnesses. P.W.1 has narrated the entire incident in Ex.P.1, which came into existence within a short span of time, while he was admitted in the Government Hospital, Kumbakonam for treatment. At this juncture, the contention that the earliest document was the wound certificate, which was recorded by P.W.10, the Doctor, wherein P.W.1 has given a statement at 7.00 p.m. in the hospital has to be considered. The court is of the considered opinion that this contention has got to be rejected for the simple reason that P.W.1 with the injuries sustained, was taken to the hospital. At this juncture, when a person was admitted in the hospital with injuries, one could not expect him to make a statement correctly, narrating the entire incident. On that ground, the earliest statement made by P.W.1 to P.W.10 Doctor that there were 50 assailants and they were armed with aruval, cycle chain and soda bottles, cannot be given much importance. Ex.P.1 has come into existence at 8.30 p.m., wherein he has given a clear narration of the incident, stating that only 7 persons, namely A-1 to A-7 were present, out of whom A-1, A-2, A-4, A-5 and A-6 were armed with Aruvals, A- 7 was armed with knife and A-3 was armed with iron rod. He has also given a narration of the overt acts attributed to them as to how they attacked the deceased and who were all, attacked him. The evidence of P.W.1 stood in corroboration with the other witnesses, namely P.Ws.2 to 4.
11.At this juncture, the Court has to consider the contention put forth by the learned counsel for the appellants that identification parade should have been conducted. The Court is of the considered opinion that identification parade is must in a case where the assailants were already not known to either the injured person or the eyewitnesses. In the instant case, there is no material to hold that they were not known already. The witnesses have clearly spoken the fact that the names of the assailants were not known and they were not acquainted already, but at the opening, they said that they knew the assailants previously. In the instant case, there was an incident just preceding the occurrence, in which the witnesses including the deceased were present. A-1, following the incident, went to his village and came over with the other assailants. Under these circumstances, it is a clear case where the assailants were already known to P.Ws., in particular the eyewitnesses. Under these circumstances, the Court is of the considered opinion that non conduct of identification parade cannot be said to be fatal to the prosecution case. It has to be stated that in a given case, non conduct of identification parade itself cannot be fatal, if the witnesses are able to identify the assailants in the Court, when the trial is on. At this juncture, the learned counsel would state that in the absence of conduct of identification parade, under the circumstance, it would be unsafe to accept the testimony. In the instant case, the Court is satisfied that the assailants were already known to P.W.1, who has given a statement to the police, which was marked as Ex.P.1. The other witnesses have also spoken about the fact. Hence, the Court is of the considered opinion that the evidence of eyewitnesses, in particular the evidence of P.W.1, an injured witness, would be suffice to point the guilt of the accused. Further, the medical evidence, namely post-mortem certificate, narrating the injury sustained by the deceased, was in corroboration with the ocular testimony through P.Ws.1 to 4. Insofar as P.W.1 is concerned, wound certificate has been brought forth and simple injuries seven in number are noticed. At this stage, it has to be stated that the intention of the accused to commit murder was not spelt out.
12.Now, coming to the question of the act of the accused that they had common object to commit the murder of the deceased either, or attempt to commit murder of P.W.1, the same cannot be inferred for the simple reason that there was a quarrel and following the same, A-1 went to his village and brought all of them and therefore, what was to be expected is an assault and it cannot be said to be one common object to murder the persons. Thus, the Court is unable to notice any common object among the accused to cause murder of the deceased. At this juncture, it has to be pointed out that so far as the deceased was concerned, they had no independent motive at the time of occurrence. Hence, this Court is unable to see anything as to the common object or to find them guilty under Section 302 r/w Section 149 IPC. At this juncture, if there was no common object, the charges under Sections 147 and 148 IPC do not require for consideration and no punishment could be awarded.
13.Insofar as Section 302 r/w Section 149 IPC is concerned, this Court is unable to accept the case of prosecution for common object and the Court has to punish the accused in respect of the respective act committed by them. From the post-mortem certificate, it could be seen that the first injury was caused by A-1 with aruval on the neck and the corresponding injury caused the death. At the same time, A-2, A-4, A-5 and A-6 armed with aruval, A-7 with knife and A-3 with iron rod have attacked the deceased and contributed respective injury. Under the circumstances, as far as the first accused is concerned, his act would attract the provisions of Section 302 IPC. While the others are concerned, though they have not acted with any intention, they should have got the knowledge that by their act, it is likely to cause death. Therefore, the act of A-2 to A-7 would attract the provisions of Section 304(2) IPC and awarding punishment of 5 years R.I. would meet the ends of justice. In respect of the charge under Section 307 IPC is concerned, the injuries, that are noticed, are simple and there is nothing to infer that they had intention to attempt at the life of P.W.1 and hence, it has got to be converted to one under Section 324 IPC and awarding punishment of 2 years RI would meet the ends of justice. Insofar as A-9 and A-10 are concerned, even in the FIR, their names are not found and evidence was also not available. Under the circumstances, A-9 and A-10 are entitled for acquittal.
14.Hence, the judgment of conviction and sentence imposed by the trial court in respect of A-1 to A-7 is modified as follows:
The first accused is found guilty under Section 302 IPC and sentenced to undergo life imprisonment. A-2 to A-7 are found guilty under Section 304(II) IPC, for which they are directed to suffer 5 years R.I. A-3 to A-7 are found guilty under Section 324 IPC and they are sentenced to undergo 2 years R.I. A-1 to A-7 are acquitted of the other charges levelled against them. The period of sentence already undergone by A-2 to A-7 is directed to be given set off. Insofar as A-3 to A-7 are concerned, the sentences should run concurrently. It is reported that A-1, A-2, A-6 and A-7 are on bail. Hence, the trial court is directed to secure A-1, A-2, A-6 and A-7 and commit them to prison to undergo the remaining period of sentence.
15.As regards A-9 and A-10, the judgment of the lower court is set aside, and they are acquitted of the charges levelled against them. The bail bonds, if any executed by them, shall stand terminated and the fine amounts, if any paid, are directed to be refunded to them.
16.Accordingly, the criminal appeal is partly allowed.
vvk To
1.I Additional District and Sessions Judge, (Protection of Civil Rights), Thanjavur.
2.Inspector of Police, Panthanallur Police Station, Kumbakonam Taluk.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.