Micheal Alias Nai Micheal vs State Represented By on 3 September, 2010

[Cites 19, Cited by 1]

Madras High Court

Micheal Alias Nai Micheal vs State Represented By on 3 September, 2010

This Criminal Appeal has been filed by the appellant against the judgment passed by the District and Sessions Judge, Nagercoil, Kanyakumari District, in S.C.No.179 of 2007, dated 05.03.2010 finding the appellant guilty under Section 294(b) IPC, convicted and sentenced to undergo Simple Imprisonment for three months; finding guilty under Section 302 IPC convicted and sentenced to suffer life imprisonment and also imposed a fine of Rs.3,000/- in default to undergo simple imprisonment for a period of one year and further finding him guilty under Section 506(i) IPC convicted and sentenced to suffer rigorous imprisonment for a period of 2 years and also imposed a fine of Rs.1,000/- in default to undergo simple imprisonment for a period of one month. The sentences were directed to run concurrently.

2. The following are the factual matrix of the prosecution case sans unnecessary details:

2(i). P.W.1, lodged a complaint under Ex.P1, who is the elder brother of the deceased Rambal Singh. He has stated that there was a proposal for the marriage of the accused with the daughter of one George P.W.11 and in connection with that, the said George on 18.09.2005 at about 04.00 p.m., came to the house of one Rathinam and left his house at about 05.00 p.m., that the accused with a wrong impression that the deceased might have conveyed false information about him to the said George and on the same day at about 07.15 p.m. the accused asked the father of P.W.1 about Rambal Singh, for which, he replied that he was standing in front of R.B.R. Neelambal Marriage Hall. Immediately, the accused rushed to the said place with fury, that on seeing him, P.W.1 took his father and followed him, that in front of the above said marriage hall, Rambal Singh, P.Ws.2 and 3 were coming and the accused restrained them and hurled obscene words at the deceased stating that how could he pass false information to the family members of the bride and he suddenly took out a knife from his waist and stabbed on the left side arm-pit of the deceased, who fell down with profuse bleeding, that P.W.1 and others raised alarm and the accused fled away from the scene of occurrence intimidating them that he would do away with them if they came near him, that they stopped an auto, which was passing by at that time, driven by one Selvakumar and took the injured to Thittuvilai Subam Hospital where the Doctor asked them to take him to the Medical College Hospital and he also provided a van in which he was taken to the Medical College Hospital where the Doctor after examining the injured stated that he was brought dead.

2(ii). On receipt of the intimation, the Inspector of Police, by name Veluchamy, proceeded to the hospital and scribed the statement from P.W.1 and came to the police station at 01.00 a.m. on 19.09.2005 and registered a case in crime No.352/2005 under Sections 334, 294(b), 506(1) and 302 IPC, on the file of the Bhoothapandy Police Station. He also lodged First Information Report Ex.P16 and deputed P.W.13 Head Constable to entrust the same to the Court and copies to superior officials. P.W.13 took the First Information Report and complaint to the Judicial Magistrate Court No.III, Nagercoil. The said Veluchamy, Inspector of Police, is no more as evident from his Death Certificate Ex.P15. The present Inspector of Police of Bhoothapandy Police Station, P.W.19 deposed about the investigation taken up by the said Veluchamy.

2(iii). The Investigation Officer proceeded to the scene of crime, prepared observation mahazar Ex.P2 and drew rough sketch Ex.P17. He also lifted the bloodstained earth as well as the sample earth M.Os.2 and 3 from the scene of crime under cover of mahazar Ex.P3. Then, he went to the infirmary, conducted inquest over the dead body of the deceased and prepared Ex.P18 Inquest Report. He also arranged P.W.8 lens-man who took photographs in the scene of crime. M.O.4 series are the three photographs and six negatives. The Investigation Officer also gave intimation to the Dog Squad and the Head Constable P.W.17 took the sniffer dog to the scene of occurrence at about 3.00 or 3.30 a.m. on 19.09.2005. He says that the dog went to the house of the accused and then came to the back side of R.C. Church. His report is Ex.P11. The Investigator examined witnesses and recorded their statements. He gave requisition Ex.P4 through P.W.14 Head Constable for conducting autopsy over the corpse to the Medical Officer. Earlier, while the deceased was brought to the hospital, P.W.15 Doctor had examined him and pronounced the injured dead. Ex.P9 is the death intimation and Ex.P10 is the Accident Register. P.W.5 the Assistant Professor of Forensic Medicine in Medical College Hospital, Nagercoil, held post mortem over the dead body and issued Ex.P5 Post-Mortem Certificate with an opinion that the deceased would appear to have died of stab injury and its sequelae. He found only one following external injury:

"4 x 2+ x 7 c.m. incised punctured wound seen over the left axilla. It is directed inwards and to the right through the 3rd intercosfal space and pierced the left upper lobe of the lung and ends as a point. Both the edged were sharp. There was a rent in the outer aspect of left upper lobe of the lung measuring 5x1x2 cms."

2(iv). After the post-mortem was over, P.W.14 entrusted the mortal remains to the relatives after taking the bloodstained clothes M.Os. 5 to 7 and handed over them to the Investigation Officer with a special report.

2(v). The Investigation Officer arrested the accused on 19.10.2005 at about 17.00 hours, at Kurathiyarai Madavilagam junction and recorded a confession statement voluntarily given by him, in the presence of witnesses and the admissible portion in the confession statement is Ex.P6, in pursuance of which, the accused took the Investigation Officer and witnesses and produced M.O.1 knife which was seized under cover of mahazar Ex.P7. He also requested the Court to send the case properties for analysis under Exs.P19 and 20. Ex.P13 is the Biology Department report in which it is mentioned that blood was not detected in the knife. In Ex.P12, report it is stated that the bloodstained earth and clothes contained blood. Ex.P14 is the Serology Department report which shows that the blood found in bloodstained earth and dresses are human in origin belonging to 'O' group. On completion of the investigation, on 17.01.2006, the said Veluchamy laid charge-sheet against the accused.

2(vi). After the trial, when the accused was examined by the Sessions Court under Section 313 Cr.P.C. as to the incriminating materials available against him in the prosecution evidence, he denied the complicity in the offence. He has stated that this is a false case foisted against him. He did not examine any witnesses nor he marked any document.

3. The following are the points for consideration:-

(i) Whether the charges framed against the accused have been established beyond reasonable doubt?

(ii) Whether conviction of the accused by the Sessions Court under Section 302 IPC is proper?

4. Points 1 and 2: P.W.1 is the elder brother of the deceased. It is available in the evidence that P.Ws.1 to 3, the deceased and the accused are friends. There was a proposal to give the daughter of P.W.11 in marriage to the accused. P.W.11 says that, he told the family members of the accused that he (P.W.11) has got relatives in Ettamadai, who are George (father of the deceased) and sister Rathna Bai and that the family members of the accused told him that the said George and Rathna Bai are presently in inimical terms with them. He also says that the accused told him that if anybody were enquired, he would say that the accused was not a good man. In the cross-examination, he says that Rambal Singh is his sister's son. This piece of evidence shows that there had been love lost between the families of the deceased and the accused.

5. Adverting to the contents in Ex.P1, it is a graphical narration by P.W.1 as to the occurrence and the events aftermath. The oral evidence of P.Ws.1 to 3 are identical while they say about the perpetration of the crime against the accused on the deceased. During the cross-examination, a suggestion was put to them to the effect that there was a fisticuffs between the accused, deceased and P.Ws.1 to 3 that the accused escaped by entering into the marriage hall and he was chased by the deceased, who attempted to jump over the grill gate but failed resulting in sustaining of piercing injury on his left arm-pit by the spikes in the iron gate. The suggestion was denied by the witnesses. No motive was attributed to P.Ws.2 and 3 to depose against the accused. They are also stated to be friends of the accused. Their evidence are convincing and natural, which duly corroborate the version of P.W.1.

6. After the occurrence, an auto driver P.W.7 happened to cross the scene of crime which was intercepted by the prosecution witnesses and he took the injured and others in his auto to Subam Hospital. In his cross-examination, he says that two persons stopped his vehicle but in the complaint it is stated that three witnesses, father of the deceased stopped the auto. Ex.P9 and Ex.P10 the death intimation and Accident Register issued by the hospital show that George, father of the deceased brought him to the hospital. But the said George was not examined before the Court.

7. P.W.11 has taken up the assignment of employing the sniffer dog from the scene of crime to the places where the suspect proceeded. He has given a report Ex.P11. The Doctor P.W.5 is of the opinion that the death was sequelae of stab injury. (Sequala - condition which is the consequence of a previous disease or injury. Sequalae - Plural)

8. Mr.V.Kathirvelu, learned counsel appearing for the accused would indicate various discrepancies in the evidence adduced on the side of the prosecution before us besides the veracity of the witnesses. His first attack on the prosecution case is on the point of delay in the First Information Report reaching the Court. The occurrence took place at 07.15 p.m. on 18.09.2005. The First Information Report was lodged before the Police at 01.00 a.m. on 19.09.2005, it was received by the learned Judicial Magistrate on the same day at 06.00 a.m. A delay of five hours is pointed out. The learned counsel also says that there is a overwriting in the First Information Report at the time of receipt of the same by the learned Judicial Magistrate in the numeral '6'. No doubt there is a overwriting in the figure '6'. But, it does not suggest that already another number was written, over which '6' was overwritten. It does not raise any doubt.

9. It is incumbent upon the prosecution to explain the delay of five hours. If the delay is not explained to the satisfaction of the Court, then, it would be fatal to the prosecution and the Court has to look the First Information Report with suspicion. There are certain materials in the oral evidence to show that the First Information Report was registered at 01.00 a.m. Even if the delay of five hours is there, there is nothing to smell a rat on the prosecution case.

10. P.W.13 was deputed with the job of entrusting the First Information Report to the Judicial Magistrate Court. He says that on 19.09.2005 at about 02.00 a.m. he took the First Information Report and proceeded to Judicial Magistrate No.III, Nagercoil and entrusted the same. In the cross-examination, he would say that he handed over the First Information Report to the Judicial Magistrate in his residence at 3.00 a.m. But, the Magistrate has recorded the time of receipt as 06.00 a.m. It is quite reasonable to say that the information reached the police station at 01.00 a.m and the First Information Report was prepared by 02.00 a.m., P.W.13 took the same to the Court at 03.00 a.m. and then he served the same upon the Judicial Magistrate. In this context, the Court has to see whether the three hours between 03.00 a.m. and 06.00 a.m. would make the Court to disbelieve the case of the prosecution.

11. A Full Bench of the Hon'ble Supreme Court in a decision reported in AIR 1973 Supreme Court 1 (V 60 C1), (Apren Joseph alias Current Kunjukunju and others v. State of Kerala), has held that mere delay in lodging the first information report with the police is, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.

12. Subsequently, an another Full Bench of the Hon'ble Supreme Court has observed in AIR 1985 Supreme Court 131 (State of U.P. v. Gokaran and others), that if in a case, it is found that the First Information Report was recorded without delay and the investigation started on that First Information Report, then however improper or objectionable the delayed receipt of the report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

13. As per the principles laid down by the Hon'ble Supreme Court even if there were delay for the First Information Report in reaching the Judicial Magistrate, if it is shown that immediately after lodging of First Information Report, the investigation started and proceeded, then there is no ground to lay suspicion over the prosecution case.

14. In this case, certain materials are available to see that the investigation has started immediately after lodging of First Information Report. P.W.4 is attesting witness to the observation mahazar Ex.P2 and seizure mahazar Ex.P3, which was for recovery of the bloodstained earth and sample earth. He says that on 19.09.2005 at about 04.00 a.m. the Inspector of Police came to the scene of occurrence and inspected the place. P.W.17 Head Constable would depose in his cross examination that at about 03.00 or 03.30 a.m. on 19.09.2005, he reached the occurrence place with sniffer dog. The lens-man P.W.8 says that at about 2.15 a.m. or 2.30 a.m. on 19.09.2005, he received a phone call from the Inspector of Police and came to the scene of crime at 3.30 a.m. Even though the above said evidence were denied in the cross-examination, the evidence coming out from the above said prosecution witnesses would candidly portray that the investigation started immediately after lodging of First Information Report and proceeded. Hence, even there was a delay of three hours, in view of this Court, it does not make the prosecution case vulnerable.

15. The next leaf of contention of the learned counsel appearing for the accused is that there was no intention nor motive on the part of the accused to inflict injury on the deceased. As already stated it is in the evidence of P.W.11 that there was bad-blood existing between the family members of the accused and the deceased. Apart from that, from Ex.P1 and the oral accounts of P.Ws.1 to 3, it transpires that the accused got enraged with the manner in which the deceased acted. The accused was under an impression that the deceased supplied false information about him to the family members of the bride. It is stated by them that at the time of stabbing the deceased, the accused gave out that he prevented the alliance in his favour. Hence, the motive has been shown in this case. However, motive need not strictly be established in a criminal case.

16. It is also argued on behalf of the accused that the presence of P.Ws.1 to 3 in the scene of occurrence is highly doubtful. But, the evidence of Auto driver would show that the witnesses took the deceased in his auto to the hospital. It is also argued that how P.W.1 came to know the name of the auto driver and put it in the complaint. Merely because the name of the auto driver has been mentioned in the complaint, it would not make the case improbable. They are negligible discrepancies. They are not at great variance with other prosecution evidence.

17. Evidence shows that the father of the deceased was also present in the scene of occurrence and he also accompanied other witnesses to hospital, while the injured was taken. No doubt, he was not examined by the prosecution. But, in the presence of reliable evidence on record from P.Ws.1 to 3, even if the evidence of the father of the deceased is not there, it would not weaken the prosecution case.

18. The learned counsel appearing for the accused also assails the prosecution case by contending that when services of sniffer dog are availed by the police, it must be presumed that the accused was not known. It is his bottom line contention that since the identity of the accused was unknown dog squad was called for. In support of his contention he placed reliance upon a decision of the Hon'ble Supreme Court reported in 2004 SAR (Criminal) 111, (Gorle S. Naidu v. State of A.P. and others), wherein Their Lordships have observed as follows:

(Para 13) "If P.W.1 had stated before the police, the details as contained in the FIR, there was really no necessity of calling a dog squad on 11.4.1991. This to a great extent shows that the police were not sure who the assailants were. Admittedly, dog squad was taken to the place of occurrence at about 01.00 p.m. on 11.04.1991, and dogs were taken to various houses in the village to know about the assailants. P.W.24's statement that dogs are taken when assailants are not know is very significant. It cannot be said that view taken by the High Court is not a possible view."

19. In the said case, there is an observation in para 9 of the judgment that though P.W.1 knew the names of the accused persons prior to giving information, he did not name them specifically. P.W.24 in that case was the Sub Inspector of Police who recorded the complaint who had also stated that the assailants are not known. In that case, the number of accused persons were 39. In this context, the Hon'ble Supreme Court took up the discussion and the above said observation as to the calling of dog squad was rendered. But the facts in the present case are otherwise. It is shown by satisfactory evidence that the investigation started after lodging of First Information Report which contains the name of the accused and the dog squad was also required for further investigation by the police. As far as the facts of the present case are concerned, it cannot be presumed that since the accused was unknown, the dog squad was called. In the above said decisions, it is not observed that a presumption may be drawn that the dog squad is called, when the accused was unknown.

20. As far as the dog tracking evidence in the investigation of criminal cases are concerned, the Hon'ble Supreme Court had many occasions to deal with the admissibility of the same. For variety of reasons, such evidence could not be relied upon, and corroboration is sought to be supplied to the dog tracking evidence. As to the evidentiary value and admissibility of such evidence, principles have been laid in the following cases:

(1) Abdul Rajak Murtaja Dafedar v. State of Maharashtra, 1969 (2) SCC 234 : (AIR 1970 SC 283).

(2) Gade Lakshmi Mangaraju alias Ramesh v. State of A.P. (2001) 6 SCC 205 : (AIR 2001 SC 267).

21. In the above said cases, it has also been observed inter alia that even if such evidence is strictly admissible under the rules of evidence, it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value.

22. As regards the aid rendered by the employment of sniffer dogs in the investigation process, the Hon'ble Supreme Court, in Gade Lakshmi Mangaraju alias Ramesh's case supra, has observed as follows:

"Criminal Courts need not bother much about such evidence based on sniffer dogs, although the investigating agency can employ such sniffer dogs for helping the investigation to track down criminals. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them."

23. As per the above said decision to track down the criminals, in the progress of investigation, the investigator may take the assistance of dog squad. The available materials would show in the present case on hand that even though the accused was identified, in order to know about his whereabouts the services of dog squad were availed. In the Gade Lakshmi Mangaraju alias Ramesh's case cited supra, it is observed that the investigating agency can employ sniffer dogs to track down the criminals in the course of investigation. Hence, the contention that since the accused was unknown the dog squad was called for cannot be countenanced. This Court does not place any reliance upon the outcome of sniffer dog tracking report, since it could not constitute basis for conviction as per law.

24. It is next limb of contention on the defence side that the post-mortem certificate does not contain the time of death nor had the Doctor come out with a definite opinion that the injury was sufficient to cause death. In view of this Court, those contentions could not be approved. The purpose of conducting post-mortem is to find out the cause and time of death. But, as far as this case is concerned, it is shown by plausible satisfactory evidence that when the deceased was brought to the hospital dead. Even at 09.00 p.m. on 18.09.2005, he was not alive as evident from Ex.P10 Accident Register. Hence, absence of time of death in the Post-mortem Certificate is not fatal. As regards the contention as to the sufficiency of the injury for causing the death is concerned, it is the definite opinion in the Post-mortem Certificate that the deceased would appear to have died of stab injury and its sequelae. Hence, the said opinion is enough to come to the conclusion that the injury was sufficient to cause death, even though it has not specifically mentioned in the autopsy report.

25. Much was said about the receipt of statement of P.W.11 by the Court after a long time. His statement under Section 161 (3) Cr.P.C. was received by the Court on 07.01.2006. For this, the learned counsel would draw our attention to a Division Bench decision of this Court reported in 2006-1-L.W.(Crl.) 179 (Abuthagir @ Thagir and others v. State, etc.,). In paragraph 29, it is observed, after quoting a decision of a Division Bench of this Court in Karunakaran Jabamani Nadar In re (1974 L.W. Crl. 190), that the statements of witnesses recorded under Section 161(3) of Cr.P.C. having special importance they should be despatched by the Investigation Officer without any delay to the Magistrate and they should bear the initials of the Magistrate with reference to both the date and time of the receipt. Though Criminal Procedure Code does not prescribe any such guideline, it is declared by this Court, that the documents, which are coming within the meaning of special importance should reach the judicial authority in time, thereby preventing its challenge at later point of time as if concocted one utilizing the delay etc. to suit the convenience of the prosecution. In our considered opinion, even though certain statements recorded by the police under Section 161(3) Cr.P.C. reached the Court at a later point of time, it would not vitiate the investigation since it has been already observed that the investigation had started immediately after lodging of the First Information Report.

26. In view of the above said discussions, we are fortified in our view that the accused is real perpetrator of crime. The combined effect of the oral testimonies of P.Ws.1 to 3 coupled with the motive as stated by P.W.1, the immediate launch of investigation after the lodging of the First Information Report and other attending circumstances have led this Court to conclude that the accused has physically eliminated the deceased.

27. The learned counsel appearing for the accused submitted that if at all this Court reaches a conclusion that the accused is an offender, he cannot be convicted under Section 302 IPC, his act could be brought within the ambit of Section 304 part II IPC. In support of his contention, he cites a judgment of the Hon'ble Apex Court reported in (2010) 3 MLJ (Crl) 569 (SC), (Ramesh Kumar @ Toni v. State of Haryana). With extraction of extracting Exception 4 to Section 300, Their Lordships have held as under:

"Exception 4 to Section 300 reads as under:

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

7. A bare perusal of the aforesaid provision indicates that culpable homicide is not murder (1) if it is committed without premeditation (2) in a sudden fight (3) in the heat of passion upon a sudden quarrel and (4) without the offender having taken undue advantage or acted in a cruel or unusual manner."

In this case, as argued by the learned counsel, the materials in this case do not suggest mala fide intention on the part of the accused to commit murder.

28. Coming to the sentence portion of the judgment of the Sessions Court challenged before this Court, we are of the definite opinion that the offence committed by the accused can be brought within the purview of Section 304 part II of IPC. It has been vividly spoken by the prosecution witnesses in the evidence that even though there had been motive between the family members of the accused and the deceased, when P.W.11 came to his sister's house, that is to say the house of the accused and left the house, the accused entertained a wrong impression in his mind that the deceased might have spoiled his (P.W.11) mind by stating bad about him, he got enraged, rushed to the scene of occurrence and made knife assault on the deceased. Only one injury was received by the deceased which was fatal. The evidence on record does not lead the Court to discern that there was a premeditation nor predetermination in the mind of the accused to do away with the deceased. Hence, in our view, the conviction under Section 302 is not sustainable. We are also of the opinion that imposing of Rigorous Imprisonment for five years for the offence under Section 304 part II IPC upon the accused will meet the ends of justice. We answer these points accordingly.

29. In the result, the appeal is allowed in part setting aside the conviction and sentence imposed under Section 302 IPC. The accused is convicted under Section 304 part II IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.3,000/-. The conviction and sentences imposed by the Sessions Court under Sections 296(b) and 506(i) and the default sentence shall remain undisturbed. The sentences shall run concurrently. The disposal of the material objects shall be in accordance with the direction of the trial Court.

srm To The District and Sessions Judge, Nagercoil, Kanyakumari District.

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