Madras High Court
Irusappan vs State on 3 March, 2010
Author: M. Chockalingam
Bench: M. Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 03.03.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.755 of 2009 Irusappan ... Appellant ..Vs.. State, rep. by the Deputy Superintendent of Police, Villupuram Division, Villupuram Town Police Station, Villupuram District. ... Respondent Appeal filed against the judgment dated 17.10.2008 passed by the learned Principal Sessions Special Judge, Special Court, Villupuram Sessions Division, Villupuram in S.C. No.27 of 2001. For Appellant : Mr. C.M. Gunasekaran For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT
(Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 17.10.2008 passed by the learned Principal Sessions Special Judge, Special Court, Villupuram Sessions Division, Villupuram in S.C. No.27 of 2001, whereby the appellant, ranked as first accused, stood charged for the offences under Sections 148, 341, 302 of the Indian Penal Code read with Section 3(2)(5) of the Prevention of Atrocities (S.C./S.T.) Act and Section 3(1)(10) of the Prevention of Atrocities (S.C./S.T.) Act along with other six accused ranked as accused 2 to 7 and on trial, he was found guilty under Sections 148, 341, 302 of the Indian Penal Code read with Section 3(2)(5), 3(1)(10) of the Prevention of Atrocities (Scheduled Caste/Scheduled Tribe) Act and awarded the punishment of Rigorous Imprisonment for two years and to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for three months for the offence under Section 148 of the Indian Penal Code; Simple Imprisonment for one week and to pay a fine of Rs.200/- in default to undergo Simple Imprisonment for one week for the offence under Section 341 of the Indian Penal Code; Life Imprisonment and to pay a fine of Rs.10,000/- in default to undergo Rigorous Imprisonment for six months for the offence under Section 302 of the Indian Penal Code read with Section 3(2)(5) of the Prevention of Atrocities (S.C./S.T.) Act and to undergo Simple Imprisonment for one year and to pay a fine of Rs.5,000/- in default to undergo Simple Imprisonment for two months for the offence under Section 3(1)(10) of the Prevention of Atrocities (S.C./S.T.) Act, while all other accused were ordered to be acquitted.
2. The short facts necessary for the disposal of the case can be stated thus:
(i) P.W.1 was doing his graduation course in Arts College, Villupuram. P.Ws.2, 3 and the deceased Pushparaj were also studying during the relevant time. P.W.1 is the student Chairman for the year 2000-2001.
(ii) Prior to 16.10.2000, seventh accused in a drunken mood was eve teasing the girl students and the same was reported to P.W.1. On coming to know about this, P.W.1 and the deceased Pushparaj called accused 6 and 7 and shouted at them and asked them to go out of the College. On coming to know about this, the fifth accused questioned the conduct of P.W.1 and Pushparaj. Apart from that, the fifth accused also attacked P.W.2 on his back. The matter was reported to the Villupuram police station. All the students were called and they were advised to keep peace and accordingly, they returned.
(iii) P.W.6, a girl student by name Sheela complained to P.W.1 and others that when she was going to the College, all the accused were teasing her. On 17.10.2000, P.Ws.1 to 3 and the deceased Pushparaj went to the College to get their hall tickets for the examination. Since they were informed that there was some delay, they were all returned in their motor bikes. When they were just crossing Koliyanur channel, all the accused persons armed with deadly weapons waylaid them. Immediately, the first accused cut the deceased Pushparaj on his left abdomen uttering the words in filthy language. When there was a distrusting cry, the people gathered there. The first accused also threatened them, if they came nearby, they were to meet the same consequence. All the accused persons fled away from the place of occurrence.
(iv) The severely injured Pushparaj was taken to the Hospital in an auto and they proceeded to the Government Hospital, Villupuram.\ P.W.5 Doctor, who was on duty, gave initial treatment to the deceased Pushparaj and noted the injuries in the accident register and a copy of the same is marked as Ex.P2 and they were advised to take the deceased Pushparaj to the Jipmer Hospital, Puducherry.
(v) Thereafter, P.W.1 proceeded to respondent-police and gave complaint Ex.P1 to the Sub Inspector of Police and on the strength of the same, a case was registered in Crime No.1073 of 2000 for the offences under Sections 147, 148, 341, 506(2), 307 of the Indian Penal Code and Section 3(1)(10) of the Prevention of Atrocities (SC/ST) Act. Ex.P27 First Information Report and Ex.P1 complaint were despatched to the Court.
(v) When the deceased was taking treatment in the Jipmer Hospital, Puducherry, he died. The same was reported to the respondent-police and the case was amended to Sections 147, 148, 341, 307, 302 of the Indian Penal Code and Section 3(2)(5) of the Prevention of Atrocities Act and the amended First Information Report Ex.P31 was despatched to the Court.
(vi) P.W.18 Deputy Superintendent of Police, who took up the investigation, proceeded to the place of occurrence, made an inspection and prepared Observation mahazar Ex.P28 and rough sketch Ex.P29. Thereafter, he recovered M.O.4 blood stained earth, M.O.5 sample earth under the cover of mahazar Ex.P30. He recorded the statements of the witnesses. Thereafter, he conducted inquest on the dead body in the presence of witnesses and panchayatars and prepared inquest report Ex.P40. Thereafter, he sent the dead body for autopsy.
(vii) P.W.16 Doctor attached to Jipmer Hospital, Puducherry conduct autopsy on the dead body and issued post-mortem Certificate Ex.P26, wherein the following injuries are found:-
" 1. An irregular abrasion 6.1 x 3.5 cms. was present over the right chin radiating `onto the lower border of the right mandible for a length of 4.6 cms.
2. An irregular abrasion 4.7 x 3.1 cms. was present over the left cheek.
3. An irregular abrasion 2.4 x 1.8 cms. was present over middle of the left forehead. ` 4. An irregular abrasion 2.8 x 1.3 cms. was present over the lateral end of the left eye-brow. This injury was situated 2.1 cms. lateral to the injury No.3.
5. An irregular abrasion 6.3 x 0.9 cms,. was situated adjacent to the lateral canthus of the right eye.
6. An irregular abrasion 3.6 x 1.2 cms. was situated 0.8 cms above the lateral end of the right eyebrow.
7. An irregular abrasion 6.1 x 3.9 cms. was present over the right side of the nose.
8. An irregular abrasion 3.7 x 1.8 cms. was situated over the right mastoid process.
9. Multiple (13) abrasions ranging in size from 1.1 x 0.7 cms. to 0.9 x 0.3 cms. were present over the dorsum of the left hand and its fingers.
10. Multiple (9) abrasions ranging in size from 1.3 x 0.8 to 0.7 x 0.2 cms. were present over the dorsum of the right hand and its fingers.
11. An irregular abrasion 8.6 x 1.3 cms. was present over the left chin.
12. An irregular abrasion 4.1 x 2.6 cms. was present over the left knee.
13. An irregular abrasion 2.8 x 1.2 cms. was present over the dorsum of the left great toe. All the above mentioned abrasions are reddish brown in colour.
14. A dressed wound was present over the abdomen. On removing the dressing the following were observed:-
a) A transverse slit-shaped stab wound was situated in the epigestrium.
b) The injury was placed obliquely and to the right with the inner end higher than the outer end.
c) The depth of the wound was 8.7 cms.
d) The length of the wound was 7.2 cms.
e) The maximum width of the wound was 2.3 cms.
f) The left end of the wound was situated 7.4 cms. below and 2.1 cms left lateral to the xiphisternum.
g) The outer end was sharp.
h) The inner end was blunt and merged imperceptibly with the viscera in the abdomen.
i) A track was established on the upper part of the right side of the anterior abdominal wall. The middle part of the anterior surface of the body of the stomach was hernioting through the abdominal defect. The anterior surface of the stomach near the lesser curvature was contused. The lesser omentum and the blood vessels in it were injured. The inferior surface of the left lobe of the liver showed an incised wound 1.8 cms. in length.`"
In the post-mortem Certificate, the Doctor has opined that the deceased would appear to have died due to shock and haemorrhage due to the injury in the abdomen caused by a weapon with sharp edge.
(viii) Pending investigation, the first accused was arrested on 18.10.2000. He gave confession statement voluntarily and the same was recorded in the presence of witnesses. The admissible portion of the same was marked as Ex.P32. Consequent upon the confession statement, he produced M.O.1 Veecharuval and the same was recovered under the cover of mahazar Ex.P33. On the same date, accused 2, 5 to 7 were arrested and the confession statements given by them voluntarily were recorded. The admissible portion of the same were marked as Ex.P.15, 34 to 36. Consequent upon the confession statement, they produced Veecharuvals and the same were recovered under different mahazars viz. Ex.P.16, 37 to 39. All the accused were sent for judicial remand. All the material objects were sent for chemical analysis. The chemical analysis reports are marked as Ex.P48 and 49.
(ix) On the application given by P.W.18 the Deputy Superintendent of Police, P.W.9 Tahsildar of Villupuram issued Ex.P4 Certificate stating that the deceased Pushparaj and P.Ws.1 to 3 belong to Scheduled Caste community and the accused belong to Vanniar Community and the said Certificate was produced before the Court and the same was marked as Ex.P4.
(x) On 23.10.2000, accused 3 and 4 were arrested and they gave confession statement voluntarily and admissible portion of the same are marked as Ex.P44 and P45. Pursuant to the confession statements, they produced Veecharuval and the same were recovered under the cover of mahazar Ex.P46. They were sent for judicial remand. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.
3. In order to substantiate its case, the prosecution examined 18 witnesses and relied on 50 documents and also relied on M.Os.1 to 8. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. No witness was examined on the side of the accused.
4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the first accused guilty under Sections 148, 341, 302 of the Indian Penal Code read with Section 3(2)(5), 3(1)(10) of the Prevention of Atrocities (Scheduled Caste/Scheduled Tribe) Act and awarded sentence as referred to above and acquitted all other accused. Hence this appeal is filed at the instance of the appellant.
5. Advancing arguments on behalf of the appellant, learned counsel Mr. C.M. Gunasekaran would submit that the case of the prosecution was that the occurrence had taken place on 17.10.2000 at 12.30 p.m. near the Koliyanur channel. When P.Ws.1 to 4 were examined as eye witnesses, the earliest document came into existence is Ex.P2 accident register, which was recorded by P.W.5 Doctor, attached to Government Hospital, Villupuram. According to P.W.5 Doctor, the deceased was conscious oriented and he has also given a statement to the effect that the occurrence had taken place in front of the College entrance and the same is also recorded in Ex.P3, which was the intimation issued to the police.
6. Learned counsel added further that P.W.5 also deposed before the Court, according to the statement of the deceased, the occurrence had taken place in front of the college. According to the prosecution, the occurrence had taken place near Koliyanur channel. Learned counsel added further that according to P.W.7 auto driver, he has taken severely injured Pushparaj from Madha temple. When Ex.P29 sketch is looked into, neither Madha temple nor the College entrance is mentioned therein and thus, all would put together, it would clearly indicate that the place of occurrence was actually different and the prosecution has not come up with the true facts. If the occurrence had taken place near Koliyanur channel as per the case of the prosecution, the prosecution has not come with true version, which would affect the prosecution case.
7. Learned counsel took the Court to the evidence of P.W.1. According to him he has not given any information to the police, but only signed in a paper which was already written by the police, which would clearly indicate the fact that P.W.1 has not given any complaint and hence the complaint given by him and the corresponding F.I.R. are not to be believed.
8. Learned counsel added further that in so far as P.Ws.2 to 4 are concerned, they were never questioned by the other accused. P.W.4 has categorically stated that he had not seen the person who attacked Pushparaj. If so, the evidence of P.W.4 should not be believed. Under such circumstances, the Trial Court was not correct in accepting his evidence.
9. Learned counsel added further that according to the prosecution, on the previous date of occurrence, the fifth accused attacked P.W.2. If to be so, the appellant/first accused would not have any motive to attack the deceased Pushparaj at the time of occurrence, which is highly imaginary.
10. Learned counsel added further that the prosecution has neither proved motive nor overt act attributed against the appellant. If the Trial Court has not believed the prosecution case with regard to accused 2 to 7, the same parameters are equally applicable to the appellant also. In the instant case, the inquest report would clearly indicate that there was some quarrel before the occurrence had taken place.
11. Learned counsel added further that the prosecution has not placed any materials before the Court indicating that there was a wordy quarrel preceded the occurrence, which provoked the young accused. The prosecution has to prove its case that it was the accused who attacked the deceased. However, it would not attract the penal provisions of murder which is culpable homicide, not amounting to murder. This Court has to consider the same and render justice.
12. This Court heard the learned Additional Public Prosecutor on the above contentions.
13. This Court paid its anxious considerations on the above contentions. It is not in controversy that following the incident that had taken place on 17.10.2000 at 12.30 p.m., one Pushparaj was taken to the Government Hospital, Villupuram, where he was given first treatment by P.W.5 Doctor and the injuries are noted in the Accident Register Ex.P2 and thereafter, he was taken to the Jipmer Hospital, Puducherry for further treatment and while he was taking treatment in the Jipmer Hospital, he died.
14. Originally the case was registered for the offences under Sections 147, 148, 341, 506(2), 307 of the Indian Penal Code and 3(1)(10) of the Prevention of Atrocities (SC/ST) Act against the appellant and other accused. Pending investigation, the deceased Pushparaj died. Thereafter, the case was altered to Sections147, 148, 341, 307, 302 of the Indian Penal Code and Section 3(2)(5) of the Prevention of Atrocities (SC/ST) Act.
15. P.W.18 Deputy Superintendent of Police, who took up investigation on receipt of copy of the First Information Report, after conducting inquest, sent the dead body for the purpose of autopsy. P.W.16 Doctor attached to Jipmer Hospital, Puducherry conducted autopsy on the dead body and has given post-mortem Certificate Ex.P26, where he has opined that the deceased appear to have died due to shock and haemorrhage due to the injury in the abdomen caused by a weapon with sharp edge. The deceased Pushparaj died due to homicidal violence was never disputed by the appellant before the Trial Court and hence the Trial Court is perfectly correct in recording so.
16. In order to substantiate its case that it was the appellant, who attacked the deceased and caused his death, the prosecution examined P.Ws.1 to 4 as eye witnesses. From the evidence available, it is quite clear that on the earlier date i.e. 16.10.2000, there was an occasion when the deceased and the others actually questioned the conduct of the accused and also asked them to clear out of the College. When the same was referred to the police, the police advised them to conduct peace.
17. The occurrence had taken place on 17.10.2000 at 12.30 p.m. The gist of the prosecution case is that at the time of occurrence, all the accused persons armed with deadly weapons waylaid the deceased, who accompanied other two witnesses nearby the canal, it was the first accused, who uttering the words in a filthy language, attacked the deceased, as a result of which he died.
18. At this juncture, it is pertinent to point out that in order to attract the provisions of Sections 148 and 341 of the Indian Penal Code read with Section 3(2)(5), 3(1)(10) of the Prevention of Atrocities (Scheduled Caste/Scheduled Tribe) Act, no material is noticed by the Court. Hence, insofar as that particular part of conviction and sentenced imposed by the Trial Court is concerned, it has got to be set aside and accordingly, it is set aside.
19. Insofar as other part of offfence i.e. Section 302 of the Indian Penal Code is concerned, the prosecution has marched over four witnesses viz. P.Ws.1 to 4, who are eye witnesses. P.W.1 is the Chairman of the College. He has no idea about the complaint Ex.P1. He did not give any such complaint. He has only put his signature in the written paper. He disowns Ex.P1 complaint, even though on the strength of Ex.P1 complaint a case came to be registered by the Sub Inspector of Police in Crime No.1073 of 2000 for the offences under Sections 147, 148, 341, 506(2), 307 of the Indian Penal Code and Section 3(1)(10) of the Prevention of Atrocities (SC/ST) Act and thus to the extent of setting the criminal law in motion, his evidence was available.
20. Learned counsel brought to the notice of this Court that the evidence of P.W.4 would clearly indicate that he did not see the face of the accused as to who attacked the deceased and hence his evidence was not useful to the prosecution. Insofar as the evidence of P.Ws.2 and 3 is concerned, the appellant has not placed any material to show as to why their evidence should be disbelieved and discarded.
21. According to them, when all of them were moving from the College, there was some interval for issuing hall tickets. When they were moving in the motorcycles, they were waylaid by the accused. It was the first accused, who attacked the deceased on his left abdomen, as a direct result, he died. Though learned counsel for the appellant brought to the notice of this Court some discrepancies in the evidence of P.Ws.2 and 3, in the considered opinion of the Court, they are minor discrepancies. The Court is unable to agree with the defence plea.
22. The contention of the learned counsel for the appellant is that the place of occurrence is actually shown nearby channel, but it is not found in the evidence. This contention cannot be countenanced for the simple reason that the contents in Ex.P29 sketch and the observation mahazar Ex.P28 were never disputed. Apart from that the witnesses were also examined to prove the contents of observation mahazar and also contents of sketch. As could be seen from the sketch, the Koliyanur channel was actually running east to west and there is a bridge on the Koliyanur channel and that there is a College road, which lead towards south. According to the prosecution, the occurrence had taken place near the Koliyanur channel. As could be seen from the sketch, the place of occurrence is only Koliyanur channel.
23. The contention put forth by the learned counsel for the appellant that the deceased, when he was taken to the Hospital, was conscious and informed to P.W.5 Doctor that the occurrence had taken place just in front of the college entrance and it is also recorded in Ex.P2 Accident Register and Ex.P3 intimation to the police. Hence, the place of occurrence is different. This contention cannot be countenanced for the simple reason that one of the witnesses clearly spoke to the fact that the scene of occurrence is 500 feet from the college entrance. The deceased has stated as if the occurrence had taken place in front of the gate. It should not be forgotten that when the deceased was taken to the Government Hospital and treated by P.W.5 Doctor, he was in such a condition, which is serious. Hence, no serious importance should be given to his evidence. The documentary evidence put forth by the prosecution is proved through witnesses that the place of occurrence is Koliyanur channel. Hence the Court is unable to notice that the place of occurrence is different, as put forth by the learned counsel for the appellant.
24. The evidence of P.W.2 and 3, which, in the considered opinion of the Court, is believable, since they have accompanied the deceased at the time of occurrence. They have clearly spoken in one voice that it was the first accused, who attacked the deceased on the left abdomen. Hence the contention put forth by the learned counsel for the appellant has got to be rejected.
25. Insofar as the second contention put forth by the learned counsel for the appellant that there was a quarrel between them and hence the act of the accused would not attract the penal provisions of murder is concerned, the Court is unable to agree with the same. It is true, it is mentioned in the inquest report Ex.P40 that there was a quarrel, but the wordings would clearly indicate that the quarrel was actually made by the accused. In order to attract the provisions of sudden provocation, there should be a sudden quarrel which precipitated the accused to act like this. But, there is no material to bring the act of the accused under the exception as envisaged in Section 300 of the Indian Penal Code.
26. As rightly pointed out by the learned counsel appearing for the State, at the time of occurrence, the first accused was actually armed with Veecharuval and thus, it has also been recovered pursuant to the confession statement. It would clearly indicate the fact that the appellant went to the spot with an intention to cause the death. All would clearly indicate that the act of the appellant would attract the penal provisions of murder.
27. The findings of the Trial Court that the first accused is guilty of murder, for which he was awarded with life imprisonment, is to be confirmed by this Court without any hesitation. The judgment of conviction and sentence passed by the Trial Court for the offence under section 302 of the Indian Penal Code is confirmed. Insofar as the offences under Sections 148 and 341 of the Indian Penal Code and Sections 3(2)(5), 3(1)(10) of the Prevention of Atrocities (Scheduled Caste/Scheduled Tribe) Act is concerned, the same is set aside. With this modification, the appeal is dismissed.
ssa.
To
1. The Judicial Magistrate No.I, Villupuram.
2. The Chief Judicial Magistrate Villupuram.
3. The Principal Sessions Special Judge, Special Court, Villupuram Sessions Division, Villupuram.
4. The Superintendent, Central Prison, Villupuram.
5. The District Collector, Villupuram.
6. The Director General of Police, Madras 4.
7. The Public Prosecutor, High Court, Madras