Madras High Court
Eswaran vs State Rep By on 18 January, 2019
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.01.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD).Nos.69, 58 & 54 of 2012
Eswaran ... Appellant in
Crl.A.(MD) No.69 of 2012 /
Accused No.1
Mukkottan ... Appellant in
Crl.A.(MD) No.58 of 2012 /
Accused No.2
Aathi @ Aathimoolam ... Appellant in
Crl.A.(MD) No.54 of 2012 /
Accused No.3
Vs.,
State Rep by
The Inspector of Police,
Anna Nagar Police Station,
In Cr.No.2415 of 2010,
Madurai City ...Respondents in all Criminal
Appeals.
PRAYER in Crl.A.(MD) No.69 of 2012: Criminal Appeal filed
under Section 374 of Criminal Procedure Code, against the
judgment and conviction passed by the learned Additional Sessions
Court/ Fast Track Court-I, Madurai in S.C.No.61 of 2011 dated
29.02.2012, wherein the Learned Judge convicted the Accused No.1
for the alleged offence under Sections 341 and 307 of IPC and
imposed punishment to undergo one month simple imprisonment
and for the offence under Section 307 of IPC and sentenced to
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2
undergo 10 years rigorous imprisonment and to pay a fine of Rs.
3000/- and in default of payment each to undergo 6 months
rigorous imprisonment for the offence under Section 307 of IPC and
the imprisonment are ordered to run concurrently.
PRAYER in Crl.A.(MD) No.58 of 2012: Criminal Appeal filed
under Section 374 of Criminal Procedure Code, against the
judgment and conviction passed by the learned Additional Sessions
Court/ Fast Track Court-I, Madurai in S.C.No.61 of 2011 dated
29.02.2012, wherein the learned Judge convicted and sentenced the
Accused No.2 for the alleged offence under Section 307 of IPC and
imposed punishment to undergo one month simple imprisonment
for the offence under Section 341 of IPC and sentenced to undergo
10 years rigorous imprisonment and to pay a fine of Rs.3,000/- and
in default to undergo 6 months rigorous imprisonment for the
offence under Section 307 of IPC and the imprisonment are ordered
to run concurrently.
PRAYER in Crl.A.(MD) No.54 of 2012: Criminal Appeal filed
under Section 374 of Criminal Procedure Code, against the
judgment and conviction passed by the learned Additional Sessions
Court/ Fast Track Court-I, Madurai in S.C.No.61 of 2011 dated
29.02.2012 convicting the Accused No.3 for the alleged offence
under Section 341 of IPC and sentenced to undergo one month
simple imprisonment and for the offence under Section 307 r/w 34
of IPC, sentenced to undergo 10 years rigorous imprisonment and
to pay a fine of Rs.3,000/- and in default to undergo 6 months
rigorous imprisonment and the imprisonment are ordered to run
concurrently.
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For Appellant in : No Appearance
Crl.A.(MD) No.69/ 2012
For Appellant in : Mr.N.Suri
Crl.A.(MD) No.58/2012 For Mr.G.Ramanathan
For Appellant in : Mr.P.N.Pandidurai
Crl.A.(MD) No.54/2012
For Respondent : Mr.M.Chadrasekaran
in all Criminal Appeals Additional Public Prosecutor
COMMON JUDGMENT
Since the issue involved in all these criminal appeals are one and the same, all the appeals are disposed of by this common judgment.
2. These criminal appeals have been filed against the judgment dated 29.02.2012 passed by the learned Additional Sessions Court/ Fast Track Court-I, Madurai in S.C.No.61 of 2011 convicting the accused 1 to 3/ appellants herein.
3. The case of the prosecution is that P.W.2/Rajamani was owning a tea shop in Nethaji Nagar, Vandiyoor and is residing at the back side of his tea shop. The appellant/A1 is said to have misbehaved indecently with P.W.2 in a drunken state and the same was condemned by P.W.2. Further, A1 also committed theft of sheep belonging to P.W.2. On 01.09.2010, during night hours, when Valli Thirumana Drama was staged, A1 once again behaved indecently with P.W.2 in drunken mood and therefore, P.W. 2 / Rajamani warned A1 which created enmity between P.W.2 and A1. Thereafter, on 02.09.2010 at about 5:00 a.m., A1 along with A2 http://www.judis.nic.in 4 and A3 gathered near Anna Nagar, Vandiyur Main road new Kumar jet pump shop opposite to Meenakshi Mahal. At that time, when Rajamani/P.W.2 was travelling towards the east direction from the west side in his cycle, A1 to A3 restrained him and A3 caught hold of P.W.2 and A1 with an intention to kill P.W.2, took a sword and stabbed on the left side chest and right side hip of P.W.2. A2 also took a sword and stabbed deliberately on the left thigh and left knee of P.W.2. Therefore, Rajamani/ P.W.2 sustained injuries on his left knee and left chest and the accused A1 to A3 have committed offence under Sections 341 and 307 r/w 34 of IPC. The injured P.W.2 was taken to Meenakshi Mission Hospital for treatment by his son/P.W.1 and was given treatment for the grievous injuries caused by A1 to A3.
4. Thereafter, P.W.2 was discharged on 25.09.2010. P.W.1 gave a complaint against the accused A1 to A3 in Crime No.2415 of 2010 and P.W.14/ Sub Inspector of Police registered the case under Sections 341, 321 & 307 IPC. The said case against the accused A1 to A3 was taken on file as P.R.C.No.115/2010 on the file of the Judicial Magistrate, No.6, Madurai. The learned Magistrate furnished copies of documents that are relied on by the prosecution to the http://www.judis.nic.in 5 accused under Section 207 Code of Criminal Procedure. As the offence against the accused is exclusively triable by the Court of Sessions, the learned Magistrate committed the same to the Principal Sessions Judge, Madurai. The learned Principal Sessions Judge, Madurai taken the case on file in SC.No.61 of 2011 and made over the case to the file of the learned Additional Sessions and Fast Track Court No.I, Madurai for disposal in accordance with law. The learned trial judge after completing the trial convicted the accused as stated above. Challenging the judgment of conviction the accused have preferred the present appeals before this Court.
5. Heard Mr.M.Suri, learned counsel appearing on behalf of Mr.G.Ramanathan, learned counsel for the appellants and Mr.MV.M.Chadrasekaran, learned Government Advocate (Criminal side) appearing for the respondent State in all the criminal appeals.
6. The prosecution case unfurled from the evidence of the witnesses from P.W.1 to P.W.14 are as follows:-
6.a.)P.W.1/Kumar, S/o Rajamani is residing at Madurai Anna Nagar, Thevar Nagar and he is a building contractor. P.W.2/ Rajamani is residing at Vandiyoor Nethaji Nagar and he is the son of P.W.1. Palapandi/P.W.3 is residing at Anna Nagar, Thevar Nagar as http://www.judis.nic.in 6 a master in a sweet stall. P.W.4/Kannan is residing at Vandiyur Gownderkal Street, who is a building Mason. P.W.5/Babuji is also a building mason. On 01.09.2010, there was a temple festival in Nethaji Nagar. On 01.09.2010 when Valli Thirumana Drama was staged, A1 in drunken mood came there and using filthy words assaulted P.W.2. Before 2-3 months to this incident, A1 in drunken mood came to P.W.2's tea stall at about 4:30 hrs and behaved indecently and P.W.2 condemned A1.
6.b.) In continuance to it, A1 stole the sheep of P.W.2.
Therefore, there was enmity between P.W.2 and A1. On 02.09.2010 at about 5:00 A.M. due to enmity, A1 along with his friends A2 & A3 wrongfully restrained P.W.2 and by using filthy language assaulted P.W.2. A2 caught hold of P.W.2's hands on his back side. A1 stabbed with sword on the chest of P.W.2 and A2 stabbed with sword on P.W.2's right hip and left leg knee. P.W.2 raised alarm and all the accused fled away with their weapons from that place. While running away from that place A1 fell down and his lungi was torn and he left the piece of lungi. At that time P.W.3 and 4 came to the said place for taking tea. P.W.5 & 7 also came there to the same place to take tea. Witnessing the said occurrence, P.W.3, 4 & 5 came to rescue P.W.2. They took P.W.2 to his house and P.W.1, son http://www.judis.nic.in 7 of P.W.2, who came to his house on information from P.W.3, 4 & 5 and P.W.1 took P.W.2 to Meenakshi Mission Hospital for treatment in P.W.11's Auto. P.W.9/ Dr.Dheenadayabaran was on duty and he examined P.W.2 on 02.09.2010 at 5:50 a.m. and found the following injuries:
(i) 5 X 3 cm stab injury over his 5 th and 6th rib bones near the lungs and injury over the backside of his right side shoulder:
(ii) 5 X 3 cm and 1.5 X 1 cm stab injury over the right side chest.
(iii) 2.5 X 0.5 cm stab injury over the right clavicle.
(iv) 3 X 3 cm abrasion over the bottom right side of the stomach.
(v) Pain in the right side stomach.
(vi) Left foreleg was found swollen with 7 X 3 X 1 cm abrasion over the knee.
(vii) 1 X 1 cm ruptured injury over the left thigh.
(viii) 4 X 3 cm ruptured injury over the left hand.
7. At the time of treatment P.W.2 has spoken that some known persons have assaulted him with knife. C.T scan was taken and from the CT scan report it reveals that his right lung was http://www.judis.nic.in 8 damaged, right scapula bone fractured, 5th and 6th rib bones fractures, right lever was also damaged. The injuries found on lungs, lever bone fractures are grievous injuries. P.W.2 was discharged from the hospital on 25.09.2010. The Wound certificate is Ex.P.6. The accident register copy is Ex.D1.
8. On 02.09.2010 at about 06.45 a.m., P.W.14, Sub Inspector of Police, Anna Nagar received an information from Meenakshi Mission Hospital, Madurai and he went to that hospital and saw P.W.2 in an emergency ward. He received the complaint given by his son / P.W.1 and registered a case in Crime No.2415 of 2010, for the offences under Sections 341, 321 and 307 I.P.C. The complaint given by P.W.1 is Ex.P1. The printed copy of FIR is Ex.P.11. The Sub Inspector of Police, Anna Nagar Police Station/P.W.14 sent the complaint and FIR to the learned Judicial Magistrate No.6 and sent other copies to the concerned officers and sent one copy to the Inspector of Police, Anna Nagar Police Station/ P.W.15 for investigation. P.W.15 went to the place of occurrence on the same day and prepared observation mahazar/Ex.P2 and rough sketch Ex.P12 in the presence of witnesses. Also he recovered blood stained soil, sample soil and torn piece of lungi/M.O.6 by preparing athatchi. The attatchi is Ex.P.3. Blood http://www.judis.nic.in 9 stained soil is M.O.4 and sample soil is M.O.5. P.W.15 obtained the signature of witness in observation mahazar and athatchi. Then he went to the Hospital and found that P.W.2 was not able to speak and then he recorded his 161(3) statement.
9. On 03.09.2010 at 08:15 a.m., he arrested A1 and A3 near Ring Road, near P.C. Perungayam Company in the presence of witness P.W.8. At that time, A1 gave his confession statement The admissible portion of confession is Ex.P.13. The signature of P.W.8 in confession is Ex.P.5. Then the police team went to P.T.R bridge and from the hidden place unearthed two swords and they recovered the weapons in the presence of the same witnesses by preparing attactchi/Ex.P.4 The two swords are M.O.2 and 3. The Inspector then returned to the police station along with the accused to produce them before the Court for remand. On 03.09.2010, he recovered blood stained belt of P.W.2 given by P.W.1 in form No.95 and he send the belt M.O.1 to the court. On 06.09.2010, he request to send the properties to chemical examination. On 19.09.2010 when P.W.12, Ganesan was working as Head Clerk of Judicial Magistrate No.VI, Madurai received the requisition given by the Inspector and on the basis of the requisition, the remanded properties were sent for chemical analysis. http://www.judis.nic.in 10
10. The requisition made by the Inspector of police is marked as Ex.P.7 and the copy of the letter sent from the Court of the Judicial Magistrate to Forensic Lab is Ex.P.8. According to P.W. 13, Th.M.Thangadurai, Junior Science Officer in Madurai Regional Forensic Lab, the blood found in items 1, 3 and 4 are human blood and belonging to A Group. P.W.15 examined P.W.12 and Head Constable Marisamy recorded his 161(3) Cr.P.C statement. On the side of prosecution, P.W.1 to P.W.15 were examined and exhibits Ex.P.1 to Ex.P13 and M.O.1 to M.O.6 were marked. After completion of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C regarding the incriminating evidences and materials against the accused found in the evidence of the prosecution witnesses.
11. According to the learned counsel for the appellants, P.W.1 is the son of P.W.2 and he is not an eyewitness. Eye witnesses P.W.3 to 5 and 7 are relatives of P.W.2 and they are interested witnesses. Hence, their evidence could not be relied upon. Further, he submitted that there is doubt about the original complaint made by P.W.1. P.W.1 in his evidence deposed that he gave a written complaint. Whereas P.W.14 in his evidence has http://www.judis.nic.in 11 deposed that he received the oral complainant and based on the oral complaint, he registered the FIR. Therefore, this reveals that there is suppression of earlier complaint. Further the learned counsel for the appellants submitted that there was an inordinate delay in registering the FIR and transmitting the FIR to the Court. Since the FIR reached the Judicial Magistrate only at 3:00 p.m. and no explanation was offered by the prosecution to prove the fact that FIR reached Court well within the time.
12. The learned counsel for the appellants further submitted that the Investigation Officer has not recovered the Accident Register, Ex.D1, since it is fatal to the prosecution and it was suppressed. Ex.D1 reveals that there is no mentioned about the assailant and the weapons. Further, it is submitted that in the FIR and in the complaint, the presence of P.W.5 & 7 was not mentioned, which creates a doubt about the presence of witnesses P.W.5 and 7. Therefore, the evidence of P.W.5 & 7 could not be relied upon. He also stated that the recovery has not been proved. During cross examination of of P.W.8 he has stated that on inducement of the Investigating Officer, and therefore confession is not volunteered and hence the recovery is also doubtful.
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13. According to the learned Additional Public Prosecutor appearing for the State, P.W.2 is the injured and he has deposed against the accused in a clear manner and his evidence is corroborated by P.W.3 to 5 and P.W.7 and there is no material contradiction among these witnesses. From the evidence of P.W.2, 3 to 5 and 7 it is proved that when P.W.2 was coming near Kumar jet pump at about 5:00 a.m. and the accused came there and restrained him and A2 caught hold of hum and A1 & A2 attacked him with M.O.2 & 3 and caused injuries on his body. Further, he submitted that P.W.2 sustained injuries is proved by the evidence of P.W.9/Doctor. The recovery of weapons on the basis of confession given by A1 also strengthen the prosecution case. Thus, the prosecution has established the guilt of the accused A1 to A3 beyond reasonable doubt.
14. This Court has gone through the documents and materials placed before this Court and also has carefully gone through the depositions made by P.W.1 to P.W.15. From the depositions made by the prosecution witnesses, it is seen that the motive is clearly established from the evidence of P.W.2. From the evidence of P.W.3 to 5 and 7 it is seen that the P.W.2 has come to http://www.judis.nic.in 13 the tea shop during the morning hours at about 5:00 a.m. in a cycle. Whereas the learned counsel for the appellants submitted that from the depositions made by the the prosecution witnesses, they have not spoken that P.W.2 came in his cycle rather they have stated that the Accused persons restrained P.W.2 and indulged in the act of assault. This ground has no merit since P.W.2 was caused grievous injuries and it has been proved through the report of the Doctor Ex.P.6 (i.e.,) the Wound Certificate.
15. Therefore, in the considered view of this Court, it is very clear from the prosecution side witnesses and material records that the guilt of the accused persons A1 to A3 is proved beyond reasonable doubt. Therefore, this Court finds that there is no reason to interfere with the judgment of the learned Additional Sessions Court/ Fast Track Court-I, Madurai in S.C.No.61 of 2011 dated 29.02.2012 convicting the Accused Nos.1 to 3 for the alleged offence as mentioned above.
16. In the result, since P.W.2 has survived the act of assault caused by accused persons A1 to A3, this Court is of the view that the period of sentence from 10 years of imprisonment http://www.judis.nic.in 14 imposed on the Accused persons 1 to 3 would be modified to 7 years of imprisonment which would meet the ends of justice and the details are as follows:-
Accused Sentence imposed Modified sentence Details A1 10 years rigorous 07 years rigorous imprisonment and to pay a imprisonment and to pay a fine of Rs.3000/- and in fine of Rs.3000/- and in default of payment each to default of payment each to undergo 6 months rigorous undergo 6 months rigorous imprisonment for the imprisonment for the offence under Section 307 offence under Section 307 of IPC of IPC A2 10 years rigorous 07 years rigorous imprisonment and to pay a imprisonment and to pay a fine of Rs.3,000/- and in fine of Rs.3,000/- and in default to undergo 6 default to undergo 6 months rigorous months rigorous imprisonment for the imprisonment for the offence under Section 307 offence under Section 307 of IPC of IPC A3 10 years rigorous 07 years rigorous imprisonment and to pay a imprisonment and to pay a fine of Rs.3000/- and in fine of Rs.3000/- and in default of payment each to default of payment each to undergo 6 months rigorous undergo 6 months rigorous imprisonment for the imprisonment for the offence under Section 307 offence under Section 307 r/w 34 of IPC of IPC
17. Accordingly, the Criminal Appeals are partly Allowed. The respondent police is directed to secure the appellants / A1 to A3 http://www.judis.nic.in 15 to undergo the remaining as well as the modified period of sentence imposed by this Court.
18.01.2019.
Index : Yes/No Internet : Yes /No sts To
1.The learned Additional Sessions Court/ Fast Track Court-I, Madurai
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
P.VELMURUGAN, J., sts http://www.judis.nic.in 16 Common Judgment made in Crl.A.(MD)Nos.69, 58 & 54 of 2012 18.01.2019.
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