Madras High Court
Ravi vs State Represented By Inspector Of ... on 23 December, 2005
Bench: D.Murugesan, A.C.Arumuga Perumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/12/2005 CORAM: THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE A.C.ARUMUGA PERUMAL ADITYAN CRIMINAL APPEAL (MD) NO.430 of 1996 1. Ravi 2. Sylus 3.Ravi 4.Subramaniam alias Aasi ... Appellants vs State represented by Inspector of Police Eranial Police Station, Kanyakumari District Crime No.10 of 1992) ... Respondent The criminal appeal is filed against the Judgment dated 19.4.1996 made in S.C.No.102/1995 on the file of the Principal Sessions Judge, Kanyakumari Division at Nagercoil. !For appellants ... Mr.G.M.Syed Fasudeen ^For respondent ... Mr.K.Chellapandian,Addl.P.P. :JUDGMENT
A.C.ARUMUGA PERUMAL ADITYAN,J This appeal has been preferred by A1 to A4 in S.C.No.102/1995 on the file of the Principal Sessions Judge, Kanyakumari Division at Nagercoil. There were totally 10 accused arrayed in the charge sheet pending trial, A10 Lingam alias Muthulingam died and the charge against him abated and A5 to A9 were acquitted by the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil and the remaining A1 to A4 are the appellants herein.
2. The short facts of the case relevant for the purpose of deciding this appeal are as follows:
Due to previous enmity, on 7.1.1992 at about 7.15p.m., with a common intention of committing murder of Albert Walter, A1 to A4 had assaulted the said Albert Walter on the neck, chest, right hand, back, head and stomach causing instantaneous death. Against the remaining accused charge under Section 120(B) read with 302 IPC was framed and against A1 to A4 charge under Section 302 IPC was framed by the learned Principal Sessions Judge, after the case was committed by the Judicial Magistrate, Eranial under Section 209 Cr.P.C.
3. On the side of the prosecution, P.Ws.1 to 18 were examined. Exs P1 to P30 and M.O.1 to M.O.9 were marked. Except P.W1,P.W.6, P.W.10, P.W.12 ,P.W.13,P.W.14, P.W.16 to P.W.18 all the remaining witnesses were turned hostile. P.Ws 1to 3 are the occurrence witnesses. P.W.1 is the brother of the deceased Albert Walter. He is an occurrence witness. He would depose in his evidence that on 24.12.1991 while he and his brother deceased Albert Walter were proceeding near Neyoor Hospital, A1 to A4 had threatened his brother Albert Walter. The motive for the occurrence was also spoken to by P.W1 to the effect that there was an enmity prevailing over the first accused and one Sasi and that there is a criminal case pending against the first accused Ravi on the ground that he had assaulted Sasi with an Aruval on his leg and that his brother Albert Walter was an accused in a murder case in which one Kumar was murdered. According to P.W.1, the occurrence had taken place on 7.1.1992 at about 7.15p.m., near Primary School, while he and his brother Albert Walter and one Ranjith Singh were returning from Neyoor Mission Hospital from north to south. P.W.1 has categorically stated that A1 to A4 chased his brother Albert Walter possessing long knifes( Vettu Kathi) each and near Sahul Hameed's house, they hold Albert Walter and that A1 Ravi had assaulted Albert Walter on the neck, chin and right, side of the face with Vettu Kathi and that A2 had assaulted Albert Walter on the right hand, on the back with Vettu Kathi and A3 had assaulted Albert Walter with Vettu Kathi on the head thrice and A4 had assaulted Albert Walter with Vettu Kathi on the lower abdomen causing serious injuries, resutling his instantaneous death. He has further deposed that the occurrence was witnessed by him, Ranjith Guna Singh and Jayachandran and that in the place of occurrence, the light in the nearby church and street lights were burning and that he immediately rushed to Eranial Police Station at about 8.30p.m.,and prepared ExP1 complaint. He has also identified that M.O.1 is the shirt and M.O.2 Lungi were worn by his brother at the time of occurrence.
4. The other occurrence witness namely, Ranjith Guna Singh and Jagadish Chandran(the name is wrongly typed as Jayachandran in P.W.13's deposition) have turned hostile. P.W.6 is the Observation Mahazar Witness. He would depose that the Inspector of Police had visited the place of occurrence on 7.1.1992 at about 9.15 p.m., and prepared Ex P2 Observation Mahazar and also recovered M.O.3 blood stained sand and M.O.4 sample sand under Ex P3 Mahazar. P.W.7, P.W.8, and P.W.9 have turned hostile. P.W.10 is the Doctor who had conducted autopsy on the corpse of Albert Walter on the basis of ExP14 requisition on 8.1.1992 at about 12 noon. ExP15 is the Postmortem Certificate issued by P.W.10. P.W.10 has opined that due to the injury, the deceased had sustained on the neck and head, he would have died. The Doctor has further opined that 13 cut injuries mentioned in Ex P15 would have been caused by Vettu Kathi and that injury Nos. 1 to 4 are grievous in nature. P.W.11 is a hostile witness. P.W12 is the then Head Constable of Eranial Police Station, who had handed over the corpse of Albert Walter to P.W.10 Doctor for postmortem, who had handed over the shirt and lungi of the deceased to the Inspector of Police after autopsy. P.W.13 is the Sub Inspector of Police, who had registered the First Information Report on the basis of the complaint preferred by P.W.1 as Crime No.10/92 under Section 302 IPC and Ex P.16 is the First Information Report. P.W.14 is the Photographer who had taken M.O.6 photos of the corpse and M.O.7 are nagatives for M.O.6 positives. P.W.15 is a hostile witness. P.W.16 is the then Judicial Magistrate, Padmanabhapuram. He has recorded a statement under Section 164 Cr.P.C. for witnesses Iyyappan, Selvam and Kaba under Exs P.17 to P.19 respectively. P.W.17 is the Inspector of Police, who had conducted an investigation in this case. P.W.17 would depose that on 7.1.1992 at about 21.15 hours, he visited the place of occurrence and prepared Ex P2 Observation Mahazar. ExP20 rough sketch and conducted inquest in the presence of Panchayatadars and Ex P21 is the inquest report and examined the witnesses and recorded their statement and on 14.1.1992 at about 15.00 hours, he had arrested A1 to A4 and Ex P22 is an admissible portion of the confession statement of A1, on the basis of it, he had recovered one Aruval from south bund of Pandarakulam and the remaining three aruvals from the said Pandarakulam Tank and that they were M.,O8 series under Ex.P.23 Mahazar in the presence of witnesses and he has also seized M.O.9 Car and an Auto and he has given ExP27 letter of request to the Judicial Magistrate for sending the material objects for chemical examination and Ex P28 is the copy of letter sent by the Judicial Magistrate and Ex P29 is the chemical analyst's report and ExP30 is the serologist's report. The further investigation was taken up by P.W.18 since P.W.17 was transferred. P.W.18 has examined the remaining witnesses and after completing the investigation has filed charge sheet on 9.11.1994. The incriminating circumstances under Section 313 Cr.P.C. were put to the accused to which the accused had stated that the witnesses have deposed falsehood.
5. The accused have neither examined any witnesses on their side nor produced any documents.
6. The learned Principal Sessions Judge, Kanyakumari Division at Nagercoil, after going through the documentary and oral evidence, has come to the conclusion that charge under Section 302 IPC has been proved against A1 to A4 and convicted and sentenced to undergo life imprisonment each and acquitted the remaining accused. Hence, the appeal by A1 to A4.
7. Now the point for determination in this appeal is whether the Judgment of the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil in S.C.No.102/1995 dated 19.4.1996 is liable to be set aside for the reasons stated in the memorandum of appeal.
8. Point:
The learned Counsel appearing for the appellants would contend that P.W.1 is the brother of the deceased Albert Walter and that there were enmity prevailing over the accused and P.W.1 and would contend that the evidence of P.W1 is an interested testimony and the evidence are not corroborated by the other witnesses by name Ranjith Guna Singh, Jagadish Chandran. Learned counsel in support of his contention would rely on Ex P1 complaint and the evidence of P.W.1. The learned counsel for the appellants would contend that P.W.1 in his evidence has stated in the first paragraph itself that there was an enmity between the accused and his brother Albert Walter and that A1 to A4 had criminally intimidated and threatened his brother on 24.12.1991 while he and his brother were returning from Neyoor Hospital and that even in ExP1 the previous enmity which was prevailing between the accused and his brother Albert Walter has been mentioned. A careful reading of Ex P1 and the deposition of P.W1 would go to show that there was enmity prevailing over between A1 to A4 and Albert Walter and that it is nowhere stated in Ex P1 nor in the deposition of P.W1 that A1 to A4 were inimical towards P.W1 or vice versa. Under such circumstances, there cannot be any motive attributed against P.W1 to depose falsehood against A1 to A4.
9. The other contention raised by the learned counsel appearing for the appellants is that the occurrence had taken place , according to the prosecution, in front of one Sahul Hameed's house. But Sahul Hameed was not examined in this case. P.W1 in his cross examination has admitted that A1 to A4 had chased Albert Walter and assaulted him with Vettu Kathi and that he fell down in front of Sahul Hameed's house and that the inmates of Sahul Hameed have seen the occurrence through door way but no one has come out of the house.
10. Learned Additional Public Prosecutor would contend that even according to the evidence of P.W1, the said Sahul Hameed has not specifically seen the occurrence but only the family members of Sahul Hameed had seen the occurrence through door way and immediately, they closed the doors. As rightly observed by the learned Principal Sessions Judge at paragraph 17 of his Judgment , there is no valid ground projected by the learned counsel appearing for the accused to eschew the evidence of P.W1 who is an ocular witness. The evidence of P.W.1 has been corroborated by the evidence of P.W.10 the Doctor, who had conducted the autopsy on the corpse of Albert Walter. The Doctor had issued Ex P15 Postmortem Certificate wherein he has stated that he would find 13 cut injuries on the body of Albert Walter. The injuries spoken to by P.W1 to the deceased Albert Walter at the time of occurrence inflicted by A1 to A14 tally with the injuries mentioned in Ex P.15 Postmortem Certificate and as spoken to by P.W10, the Doctor who had conducted autopsy.
11. The learned counsel appearing for the appellants would contend that as per the evidence of P.W.10, the Doctor, there was partially digested food particles found in the stomach of the deceased Albert Walter. But as per P.W1's evidence, the deceased was with him from 4.00 p.m., on 7.1.1992 and according to the prosecution, the occurrence had took place at 7.15p.m., on the same day. But there is no evidence on record to show that in between 4.00 p.m., and 7.15p.m., the deceased taken any food. So the learned counsel would contend that the occurrence would not have taken place at 7.15 p.m., as alleged by the prosecution,but it would have been taken place between 1.00 p.m., and 2.00 p.m., This contention of the learned counsel appearing for the appellants will not hold any water because P.W.1 in his cross examination has stated that his brother Albert Walter was with him from 4.00p.m., but he has not stated that between 4.00p.m., to 7.15 p.m., they have not taken any food . There was no suggestion put to P.W1 to the effect that the deceased had not taken any food between 4.00p.m., and 7.15.p.m.,. Further the evidence of P.W10 the doctor in the cross examination would go to show that there was only 10 ml undigested food was found in the stomach and it will take six to eight hours for digestion of entire food and that the doctor has opined that the death would have occurred four or five hours after the deceased had taken his food. Under such circumstances, it cannot be said that the occurrence should have occurred between 1.00p.m.,and 2.00 p.m., as alleged by the learned counsel appearing for the appellants.
12. The other point raised by the learned counsel appearing for the appellants is that there was heap of sand collected in front of the house of Sahul Hameed and so P.W1 would not have seen the occurrence because the occurrence had occurred in front of the house of Sahul Hameed. P.W.6 in his cross examination has stated that there was heap of sand to the height of 4 feet present near his shop and that there was open space between the house of Sahul Hameed and the said heap of sand and that the front door of Sahul Hameed's house was facing the vacant site. There is absolutely no contra evidence let in on the side of the accused to show that there was heap of sand between P.W1 and the place of occurrence and P.W1 would not have witnessed the occurrence. Not even a suggestion was put to P.W1 at the time of cross examination that he would not have witnessed the occurrence due to the presence of heap of sand between the place where P.W1 was standing and the place where the occurrence had taken place. Under such circumstances, the contention of the learned counsel for the appellants that P.W1 would not have witnessed the occurrence false to the ground.
13. The other point canvassed before us by the learned counsel appearing for the appellants is that there was no sufficient light at the place of occurrence, since the occurrence had taken place at 7.15p.m., and that P.W.1 would not have identified the accused at the time of occurrence. But P.W1 in his chief examination itself in clear terms has stated that there was light in the nearby church and the street lights near the primary school and lights were burning at the time of occurrence and that he could see the occurrence in the light. There is no contra evidence let in on the side of the accused to show that the occurrence had taken place in pitch dark. The presence of street lights near the place of occurrence was shown in Ex P.20 rough sketch also. So this contention of the learned counsel appearing for the appellants will not hold good. In this case, M.O.8 series, four Vettu Kathis were recovered by the Investigating Officer under Section 27 of the Evidence Act on the basis of Ex P.4 Confession Statement of A1.
14. The decisions relied on by the learned counsel appearing for appellants in 1997 Supreme Court Cases(crl)640 (BIR SINGH AND OTHERS -VS- STATE OF UTTAR PRADESH), 1995 Supreme Court cases (Cri) 151(STATE OF HARYANA-vs- INDERAJ AND ANOTHER) ,and 2001(2) Crimes 49(SC) (SOHAN AND ANOTHER-vs- STATE OF HARYANA AND ANOTHER ) are not applicable to the present facts of the case because in the above said decisions, it has been held that the case of the prosecution rests on sole evidence of an interested witness who is inimical to the accused. As we have already dealt with this point in earlier paragraph to the effect that even though P.W1 is the brother of the deceased Albert Walter only his brother Albert Walter was inimical towards A1 to A4, and there is no evidence on record to show that P.W1 is also inimical towards A1 to A4. If P.W1 was inimical towards A1 to A4, A1 to A4 would have assaulted P.W1 also at the time of occurrence. Even though, P.W2 and P.W.3 the other two occurrence witnesses have turned hostile, P.W1, the other occurrence witness has spoken to about the occcurrence which was corroborated by the medical evidence of P.W.10 the Doctor.
15. The learned Additional Public Prosecutor relied on the decisions reported in 2004 Supreme Court Cases (Cri) 437 (CHAVDA JIVANJI CHELAJI AND OTHERS-vs-STATE OF GUJARAT) and contended that the fact that an eye witness was closely related to the deceased cannot be a ground for disbelieving his testimony in a murder case, when the incident had taken place in the property of the deceased himself.
16. Under such circumstances, we are of the considered view that the conclusion arrived at by the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil in S.C.No.102/95 cannot be set aside for the reasons stated in the grounds of appeal. The point is answered accordingly.
17. In the result, the appeal is dismissed and the Judgment in S.C.No.102/95 on the file of the Principal Sessions Judge, Kanyakumari Division at Nagercoil dated 19.4.1996 is hereby confirmed. A1 was released on bail as per the order of this Court in Crl.M.P.No. 4923 of 1999 dated 19.7.1999, A2 and A4 were released on bail as per the order of this Court in Crl. M.P.No.3872 of 1998 dated 23.7.1998. A3 was released on bail as per the order of this Court in Crl.M.P.No.2189 of 2001 dated 25.4.2001. The above orders of bail are hereby cancelled and A1 to A4 are to be secured by the Chief Judicial Magistrate, Kanyakumari District at Nagercoil by issuing non bailable warrant and send to prison to undergo the unexpended portion of the sentence. The bail bonds stand cancelled for A1 to A4.
To
1. The Principal Sessions Judge, Kanyakumari Division at Nagercoil.
2.The Inspector of Police Eranial Police Station Kanyakumari District.
3. The Public Prosecutor, Madurai Bench at Madras High Court Madurai.