Madras High Court
Barathy vs State : Represented By The on 15 July, 2003
Author: M.Chockalingam
Bench: M.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15/07/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.415 of 2000
1. Barathy
2. Kalyanasundaram .. Appellants
-Vs-
State : represented by the
Sub Inspector of Police,
Sirkazhi Police Station
(Cr.No.859 of 1997) .. Respondent
This criminal appeal is preferred under S.374 of The Code of Criminal
Procedure against the judgment of the Principal Sessions Judge, Nagapattinam,
made in S.C.No.209/99 and dated 23.3.2000.
!For Appellants : Mr.D.Veerasekaran
^For Respondent : Mr.V.Jaya Prakash Narayanan
Government Advocate(Crl. Side)
:JUDGMENT
The appellants who were ranked as A-2 and A-3 in a Sessions trial wherein they along with A-1 stood charged, tried and found guilty as narrated hereunder, have brought forth this appeal.
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Accused Charge(IPC) Guilty(IPC) Punishment
------------------------------------------------------------
A-1 341, 302 r/w 341 - 1 month S.I. +
34 fine of
Rs.500/-
in default
1 month S.I.
A-2 341, 302 r/w 325 - 1 year R.I. +
34 & 325 fine of
Rs.2,000/-
in default
2 months R.I.
A-3 341, 324, 323 323 - 3 months R.I. +
323 & 302 fine of Rs.500/-
in default
1 month R.I.
324 - 6 months R.I. +
fine of
Rs.1,000/-
in default
2 months R.I.
304(II) - 10 years R.I. +
fine of
Rs.10,000/-
in default
1 year R.I.
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2. The brief facts necessary for the disposal of this criminal appeal are:
(a) A-1 is the father of A-3 and father-in-law of A-2. The accused and one Nagarajan, since the deceased, belonged to the same village Radhanallur. They had a long standing enmity in respect of the purchase of a landed property. On 23.7.97 at about 8.00 A.M., when P.W.1 Ambika, the wife of the deceased was proceeding towards her house, A-2 and A-3 with the common intention wrongfully restrained her and abused her in a filthy language. In reply to the above, P.W.1 also did the same. At that time A-3 took M.O.1 aruval from his house, attacked P.W.1 on the left side of her head and caused simply injury. A-2 pushed P.W.1 down and assaulted with M.O.3 broomstick on the left and right side of her shoulders and caused grievous injuries. On seeing the said occurrence, the deceased Nagarajan and P.W.2 Thiagarajan came to her rescue. Immediately A-3 threw the aruval in his hand, took M.O.2 wooden log, attacked the deceased on the left side of his head and caused grievous injuries. A-3 also attacked P.W.2 on his left hand forearm with M.O.2 and caused simple injury. From the place of occurrence, the deceased and P.Ws.1 and 2 were taken directly to Sirkali Police Station, where the deceased gave a complaint to P.W.9 Sanjeevi Nathan, Head Constable attached to that Police Station. The said complaint is marked as Ex.P1. P.W.9 sent P.Ws.1 and 2 and the deceased to the Government Hospital, Sirkali, with the medical memo for treatment. At about 10.45 A.M., P.W.5 Dr.Thambusamy attended on the deceased and examined him medically, and he issued Ex.P4 wound certificate. The Doctor also examined P.Ws.1 and 2 and issued Exs.P5 and P6 wound certificates respectively. He referred the deceased to Government Hospital, Tanjore, since his condition was so serious. (b) P.W.11 Madanmohan, Sub Inspector of Police, Sirkali at about 2.30 P.M., registered Ex.P1 complaint in Crime No.859/97, and Ex.P10 printed F.I.R. was despatched to the concerned Judicial Magistrate's Court. P.W.11 at about 5.00 P.M. proceeded to the site of occurrence, made an inspection and prepared Ex.P11 observation mahazar in the presence of two witnesses and Ex.P12 rough sketch. Then he proceeded to the Government Hospital, Sirkali, examined P.Ws.1 and 2, recorded their statements and recovered M.O.4 saree of P.W.1 under Ex.P13 mahazar in front of the witnesses. P.W.6 Dr.V.Gunaseelan at Government Hospital, Tanjore on 24.7.97 at about 3.25 P.M. examined the deceased and issued Ex.P7 copy of the accident register. P.W.7 Dr.J.Sivakumar on 24.7.97 at about 7.25 P.M. gave treatment to the deceased and declared him dead and gave Ex.P8 intimation to the Police. On receipt of the death intimation, P.W.11, Sub Inspector prepared the express report and converted the case into one under S.302 of I.P.C. and despatched the same to the concerned Judicial Magistrate's Court.
P.W.11 registered a case in Crime No.858/97 on the complaint of A-3 and on investigation, referred the case as mistake of fact. P.W.12 Santhosam, Inspector of Police, who took up the investigation, on 25.7.97 on receipt of the express F.I.R. proceeded to the Government Hospital, Tanjore at about 12.00 A.M., conducted the inquest on the dead body of Nagarajan in the presence of the witnesses and panchayatars and prepared Ex.P15 inquest report. P.W.12 examined P.Ws.1 and 2 and recorded their statements.
(c) P.W.12 Inspector made a request to P.W.8 Dr.Gandhi to conduct autopsy on the dead body of Nagarajan. Accordingly, P.W.8 Doctor conducted the postmortem on the body of the deceased at about 4.15 P.M. on 25.7.97 and noticed the following injuries.
1. A sutured lacerated wound 6 x s cm - bone deep obliquely placed over the left parieto temporal area posterior aspect situated 5 cm left to the midline.
2. On opening the scalp subscalpal blood clot over the whole of right half with subscalpal contusion corresponding to external injury. On further examination linear fracture involving left pterion running posteriorly and upwards and turning forward to meet the coronal suture at its middle and causing sutured separation of coronal suture on the right side.
3. On opening the skull cap - extradural haematoma weighing 150 gms present over the right parieto temporal area and left posterior parietal eminance area. Subdural blood clots in the right middle cranial fossa and right half of posterior cranial fossa seen. Contused laceration of whole of lateral and basal aspects of right temporal lobe along with contusion of posterior aspect of right cerebellum. Diffuse subrachnoid haemorrhage all over both cerebral hemispheres of the brain.
P.W.8 Doctor issued Ex.P9 postmortem certificate and opined that the deceased would appear to have died of head injury namely injury to vital organ brain.
(d) M.O.5 dothi worn by the deceased at the time of the occurrence was recovered by the Investigating Officer under Ex.P16 mahazar. On information, the Investigating Officer arrested A-1 to A-3 in front of P.W.4 Balakrishnan, and on the basis of the confessional statement made by A-3, the admissible portion of which is marked as Ex.P2, M.O.1 aruval, M.O.2 wooden log and M.O.3 broomstick were recovered under Ex.P3 in front of the witnesses, and A-1 to A-3 were sent for judicial custody. On 30.7.97, P.W.12 made a request under Ex.P17 to the concerned Magistrate's Court for sending the material objects for chemical analysis. Accordingly, they were despatched. On 20.8.97, the Investigating Officer examined P.Ws.5 to 8 and other witnesses and recorded their statements. On completion of the investigation, a charge sheet was laid by him against the accused.
3. In order to prove its case, the prosecution has examined 12 witnesses and marked 19 exhibits and 5 material objects. After the evidence of the prosecution was over, the accused were questioned under S.3 13 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, and they flatly denied them as false. No defence witness was examined. On hearing the submissions made by both sides and scrutiny of the materials available, the trial Court found the appellants/A-2 and A-3 guilty of the said offences and sentenced them to imprisonment as stated supra. Aggrieved appellants/A-2 and A-3 have brought forth this appeal.
4. Advancing his arguments on behalf of the appellants, the learned Counsel Mr.D.Veerasekaran made the following submissions for consideration of this Court:
P.Ws.1 and 2 are the eyewitnesses according to the prosecution. There were lot of discrepancies in their evidence. Though the police has recorded the statement of the deceased and registered the case the very day namely on 23.7.97, the F.I.R. has reached the Court on 25.7.97, and thus, there is a delay. From the available evidence, it would be clear that the accused were also assaulted by the prosecution witnesses. They sustained injuries, and they were treated by the same Doctor. At the instance of A-3, a case has also been registered by the same police. But, those material documents were not placed before the trial Court, and hence, the lower Court was not in a position to appreciate the real facts and circumstances of the case. It is highly doubtful from the evidence of P.Ws.1 and 2, who according to the prosecution are eyewitnesses, whether Ex.P1 was a complaint given by the deceased. P.W.1 was medically examined by the Doctor attached to the Government Hospital, Tanjore. The Doctor has stated that the injury was caused by aruval on his head. But, no injury was found on the head of the deceased, and hence, it could be well stated that the ocular evidence as spoken to by P.Ws.1 and 2 in the line of the prosecution case was not supported by the medical evidence.
5. Added further the learned Counsel that even according to the prosecution case, the deceased was attacked by A-3 only with M.O.2 wooden log; that the lower Court has awarded a punishment of 10 years R.I. on him, which would be highly excessive, and the same has got to be considered by this Court, if the Court comes to the conclusion that the prosecution has proved its case beyond reasonable doubt.
6. Strongly opposing the above contentions of the appellants' side, the learned Government Advocate (Criminal Side) Mr.Jaya Prakash Narayanan would submit that in the instant case, the deceased was directly taken to the Police Station, where he gave a complaint under Ex.P1 to P.W.9 the Head Constable, who recorded the same, and the said complaint led to the registration of the case; that P.Ws.1 and 2 are not only the eyewitnesses, but they were injured in the occurrence; that they have given a clear narration of the entire events; that so far as the complaint at the instance of A-3 was concerned, it is true that the police has registered a case, but it has been subsequently referred to since it was only a make belief affair; that the nonproduction of the materials in that regard has not in any way affected the prosecution case; that expect the complaint of A-3, in respect of which a case has been registered, nothing was prosecuted further, and in order to escape from the clutches of law, it was done by the accused, and under such circumstances, it cannot be given any weight at all; and that in the instant case, the prosecution has brought forth overwhelming evidence through the injured witnesses, which was fully corroborated by the medical evidence.
7. Added further the learned Government Advocate that there was no delay in despatching the F.I.R. to the Court, since originally a case was registered under Ss 323, 324 and 341 of I.P.C. and subsequently, on the death of Nagarajan, it was altered to one under S.302 of I.P. C. and the F.I.R. was despatched in the ordinary course of things, and hence, no delay could be noticed; that the lower Court in full appreciation of the entire materials available has found the appellants/ accused guilty, and hence, the judgment of the lower Court has got to be sustained.
8. This Court paid its full attention on the rival submissions made and made a close scrutiny of the available materials. But, the Court is unable to notice any substance in the appeal brought forth by the appellants.
9. It is the specific case of the prosecution that P.W.1 when she was proceeding at the time of occurrence towards her house, it was the appellants/A-2 and A-3 who restrained her wrongfully, and following the same, a wordy quarrel ensued; that it was A-3 who first attacked her with M.O.1. aruval and caused simple injuries; that P.W.1 was pushed down by A-2 and was attacked with M.O.3 broomstick, and she sustained injuries; that looking at this, naturally the deceased, her husband and P.W.2 her son came nearby to her rescue, and at that time A-3 throwing the aruval in his hand, took M.O.2. wooden log and attacked on the left side of the head of the deceased. These facts of the prosecution case have been clearly spoken to by P.Ws.1 and 2, who sustained injuries at the time of the occurrence. They were not only eyewitnesses, but they also sustained injuries by the acts committed by the accused. It is true that they are close relations of the deceased, and they are injured themselves also. Hence, the law would expect the exercise of careful scrutiny on their evidence. A close and careful scrutiny of their evidence has inspired the confidence of the Court, since it is cogent and acceptable.
10. It remains to be stated that immediately from the site of occurrence, the deceased and P.Ws.1 and 2 were directly taken to Sirkali Police Station, where the deceased himself has given a complaint within a short span of time to P.W.9 Head Constable, who recorded the same, and on the basis of the said complaint, the case came to be registered against the accused, and hence, this fact would be indicative of the truth of the case. It is pertinent to note that P.Ws.1 and 2 and the deceased were sent to the Government Hospital, Sirkali, and they were examined by P.W.5 Medical Officer, who has deposed as to the statement made to him and has narrated the injuries found by him on all the three persons, and the wound certificates issued by him were marked as Exs.P4 to P6 respectively. A perusal of these three wound certificates and the medical evidence adduced through P.W.5 Doctor would clearly reveal a clear piece of corroboration of the evidence adduced by the prosecution witnesses as stated above. The seriously injured, as per the advise of P.W.5, was taken to the Government Hospital, Tanjore, where he was given treatment by P.W.7 Medical Person, and on 24.7.97 he succumbed to the injuries caused, and hence, by the evidence adduced, the prosecution has clearly proved that it was a homicidal violence; and that the death was only due to the injuries caused by A-3 at the time of the occurrence by attacking the deceased with M. O.2 wooden log. Further, in the instant case, the prosecution has also placed evidence as to the recovery of M.Os.1 to 3 weapons used by the accused for the attack at the time of the occurrence, pursuant to the confessional statement voluntarily made by A-3 in the presence of the witnesses. The evidence adduced by the prosecution in that regard is intact, despite the cross examination made in full, and hence, this evidence itself would also clearly prove the nexus between the accused and the crime in question. All the above would clearly go to show that the appellants/accused have committed the offences as found in the charge levelled against them.
11. Now, the learned Counsel for the appellants lays stress on the registration of the complaint made at the instance of A-3 by the same police on the very day. He would further add that the accused were also medically examined by the same Doctor, and they sustained injuries by the acts committed by the prosecution witnesses, and that part of the prosecution case has been suppressed by the prosecution, and hence, the same would be sufficient to reject the prosecution case. The Court is unable to appreciate or accept this contention, since it has got to be thoroughly discountenanced. It is true that the same police has registered a case at the instance of A-3. This fact is not suppressed by the prosecution. But, the case has been subsequently referred to by the same police as one mistake of fact. There is no iota of evidence that the accused sustained injuries. Though the same Doctor was examined by the prosecution and he was cross examined by the accused side, not even one question was asked about the injuries alleged to have been caused to the accused. It remains to be stated that at the time of questioning under S.313 of Cr.P.C., no one of the accused has whispered anything about the alleged incident or the occurrence that has taken place, in which injuries were caused to them, and hence, the petition what was given by A-3 to the concerned police was only a made belief affair in order to escape from the clutches of law. It is pertinent to note that except the fact that A-3 went to the Police Station and gave a complaint, on the basis of which a case was registered, nothing else is available, and not even any cross examination is made on that point to hold that they sustained injuries and the non production of those F.I.R. and other materials has caused prejudice to the accused. But, on the contrary, the prosecution brought to the notice of the Court that the complaint was given by A-3 pursuant to which a case was registered, and the same has been subsequently referred to, and hence, the Court is unable to see any merit in the said contention.
12. Another contention that was raised by the learned Counsel for the appellants that no independent witness was examined has got to be discountenanced. P.Ws.3 and 10 two eyewitnesses, were examined by the police and in the trial Court also. They have turned hostile. Hence, it is not a case where it can be commented or criticised that no independent witness was examined. The learned Counsel for the appellants in support of his contention relied on a decision of the Division Bench of this Court in Criminal Appeal No.537/99 (THANGAVEL VS. STATE-INSPECTOR OF POLICE, TALUK POLICE STATION, THANJAVUR) dated 30.1.20 03. The Court is of the earnest opinion that the decision cited by the learned Counsel for the appellants is not applicable to the present facts and circumstances of the case. In view of all the above, the Court is of the considered view that there is nothing to interfere in the conviction recorded by the lower Court against the appellants/ A-2 and A-3.
13. Coming to the question of punishment, the lower Court has awarded 1 year R.I. and a fine of Rs.500/- and in default of payment of fine, 2 months R.I. to A-2 under S.325 of I.P.C. The Court does not find anything to interfere in the said punishment. So far as A-3 is concerned, the lower Court has sentenced him to undergo 10 years R.I. for the offence under S.304(ii) of I.P.C. According to the prosecution case, A-3 attacked the deceased with M.O.2 wooden log on his head once and has caused injuries. Taking into consideration the facts and circumstances of the case, the Court is of the considered view that the said punishment awarded by the lower Court on A-3 has got to be reduced to 5 years R.I. which would meet the ends of justice. The other sentences imposed by the lower Court on A-3 have got to be confirmed.
14. In the result, the sentence of 10 years R.I. imposed by the lower Court on A-3 under S.304(ii) of I.P.C. alone is modified, and A-3 shall undergo 5 years R.I. under S.304(ii) I.P.C. In other respects, the judgment of the lower Court is confirmed. The Sessions Judge shall take steps to commit A-2 to prison, if he is on bail, to undergo the remaining period of sentence. With the above modification, this criminal appeal is dismissed.
Index: Yes Internet: Yes To:
1) The Judicial Magistrate, Sirkazhi, Nagai District.
2) The Judicial Magistrate, Sirkazhi, Nagai District, Thro' The Chief Judicial Magistrate, Nagapattinam.
3) The Principal Sessions Judge, Nagapattinam.
4) The Superintendent, Central Prison, Cuddalore and Trichy.
5) The Public Prosecutor, High Court, Madras.
6) The D.I.G. of Police, Chennai 4.
7) Mr.V.Jaya Prakash Narayanan, Government Advocate (Crl. Side), High Court, Madras.
8) The Inspector of Police, Sirkazhi Police Station, Nagapattinam District.
nsv/