Madras High Court
Unknown vs Muthuramalingam (A 1) on 10 February, 2011
Author: Chitra Venkataraman
Bench: Chitra Venkataraman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/02/2011
CORAM
THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN
AND
THE HONOURABLE MR. JUSTICE T. SUDANTHIRAM
Criminal Appeal (MD) No.339 of 2004
and
M.P.(MD)No.1 of 2011
State by
Inspector of Police,
Thiruvenkadam Police Station,
Crime No.245 of 2001 ..... Appellant / Complainant
Vs
1. Muthuramalingam (A 1),
S/o. Krishnasamy Thevar,
Ayyaneri, Sankarankoil Taluk,
Tirunelveli District.
2. Saravanan (A 2),
S/o. Krishnasami Thevar,
Ayyaneri, Sankarankoil Taluk,
Tirunelveli District.
3. Kaliraj (A 3),
S/o. Krishnasami Thevar,
Ayyaneri, Sankarankoil Taluk,
Tirunelveli District.
4. Muthu Thevar (A 4),
S/o. Pandia Thevar,
Ayyaneri, Sankarankoil Taluk,
Tirunelveli District. ... Respondents / Accused
Criminal Appeal filed under Section 378 of Criminal Procedure Code against
the Judgment dated 10.01.2003 of the First Additional Sessions Judge,
Tirunelveli in S.C.No.306 of 2002.
!For Appellant ... Mr. P. N. Pandidurai
Additional Public Prosecutor
^For Respondents ... Mr.V.Kathirvelu
Senior Counsel for
Mr.K.Prabhu
- - - - - - -
:JUDGMENT
(Judgment of the Court was delivered by T. SUDANTHIRAM, J.) Respondents 1 to 4 are the Accused in S.C.No.306 of 2002 on the file of the First Additional Sessions Judge, Tirunelveli. They were acquitted by the Trial Court from all the charges framed against them. The charges that were framed against the accused are as follows: (i) The first charge was against the third accused under Section 307 I.P.C for attacking P.W.1 - Subburaj; (ii) The second charge was against the first accused under Section 302 read with 109 I.P.C.; (iii) The third charge was against the accused 2 to 4 under Section 302 read with 34 I.P.C. As all the accused were acquitted from the charges, the State has preferred this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
Accused 1 to 3 / Respondents 1 to 3 are brothers and the fourth accused / Respondent No.4 is a junior paternal uncle of Accused 1 to 3. On 13.11.2001 at about 08.30 p.m., P.W.1, in order to go to his place was travelling in Popular Mini Bus. He was sitting on the back seat of the bus. The deceased - Thangapandian and others were also travelling in the same mini bus. At that time, a quarrel arose among the deceased and the mini bus conductor regarding getting ticket. At that time, the first accused, who was the owner of the mini bus, who was sitting in the first row of the bus, came and rebuked the deceased. The bus was going near Appanerivilakku and the quarrel was continuing. The bus came and stopped near G.V.N. College Bus Stop. Accused Nos.2 and 4 came in M.80 motor cycle. The deceased and the first accused got down from the bus and they quarrelled. The third accused also came to the scene of occurrence with an Aruval and he attempted to attack the deceased. P.W.1 was attacked by A-3 with an aruval on the back of his head and again, he was attacked on his left hand. P.W.1 started to run and climbing the college gate, he fell inside. The third accused indiscriminately attacked the deceased with aruval and made several cuts all over his body. The accused ran away from the scene of occurrence. P.W.1 came near the spot where the deceased was lying down. P.W.2 - Irulappan and P.W.4 - Veluchamy took Thangapandian in a two wheeler and P.W.5 - Subramanian and one Selvam took P.W.1 in another two wheeler and they were taken to the Government Hospital at Kovilpatti.
3. P.W.12 - Civil Surgeon, Government Hospital, Kovilpatti had attended P.W.1 and the deceased. He noticed the following injuries on P.W.1:-
1.A cut injury on the Left Occupital region enter to left ear with (ne) present cutting all muscle upper bone depth 10 cm x 3 cm x bone deep
2.A cut injury left forearm on the aspere 4 cm x 3 cm x 2 cm
3.Contusion over the Chamber (nc) from 3 cm x 2 cm"
P.W.12 issued Ex.P.4 - Accident Register. He also noticed the following injuries on the deceased:-
1.A deep cut injury over the right side of face extending from right eye brow cutting across right cheek, right ear, upper part of back of neck skull extending upto left ear cutting left ear lobule with fracture of right zygometic ache meulla, mandible reports crossing spines of the neck cutting all major vessels present with bely from the further nose and both ears (nc) 30 cm x 5 cm x 5 cm. Bleeding from the (nc)
2.A cut injury over the fronto parietal region of the left side of head with fracture of bone (nc) cut injuries with due to (10 cm x 2 cm x 2 cm)
3.An abrasion left temporal region of fractured 3 cm x 3 cm
4.Two cut injuries left shoulder each 3 x 1 x 1 cm
5.Multiple cut injuries over the right hand cut the middle finger, ring finger, and little finger cut all mascular bones 8 cm x 5 cm x 5 cm
6.Cut injury over the middle of right thumb cut fracture bone 3 cm x 2 cm x 2 cm
7.Cut injury left thigh 3 cm x 2 cm x 2 cm
8.Cut injury over the right forearm 3 cm x 2 cm x 2 cm
9.Cut injury left wrist joint cut bone 5 cm x 4 cm x 3 cm
10.Cut injury over the middle of the left forearm 10 cm x 5 cm x 5 cm muscles bone
11.Cut injury over the left dorsum of hand cut muscle are bone 6 cm x 3 cm x 3 cm
12.Cut injury over left forearm above wrist joint 3 cm x 2 cm x 2 cm
13.Cut injury over the left upper arm 6 cm x 3 cm x 1 cm
14.Cut injury right multiple region of the back 3 cm x 1 cm x 1 cm
15.A cut injury over the back of neck 2 cm x 1 cm x 1 cm".
He issued Ex.P.8 - Accident Register. Thangapandian died in the hospital at 10.20 p.m., on 13.11.2001. Ex.P.7 -Death intimation was sent to Kovilpatti East Police Station.
4. P.W.20 - Inspector of Police, on receiving a telephonic message at 10.45 p.m., on 13.11.2001, went to the Government Hospital, Kovilpatti at 11.30 p.m and obtained a complaint from P.W.1 under Ex.P.1. He returned to the police station and on the basis of Ex.P.1 - Complaint, he registered a case in Crime No.245 of 2001 for the offences under Sections 341, 307 and 302 I.P.C on 14.11.2001 at 02.30 hrs. Ex.P.16 is the printed F.I.R. He forwarded the same to the Court through a head constable. He took up the investigation and visited the scene of occurrence at 04.30 a.m., He prepared Observation Mahazar under Ex.P.2 and Rough Sketch under Ex.P.17 in the presence of witnesses. He recovered blood stained earth and sample earth. In the presence of witnesses, he recovered a pocket diary, pair of cheppals, green colour Herculus cycle and the mini bus. Thereafter, he went to the Government Hospital, Kovilpatti at 07.30 a.m., and conducted Inquest over the body of the deceased in the presence of panchayatars. Ex.P.18 is the Inquest Report. He sent the body of the deceased for conducting autopsy along with a requisition under Ex.P.15 through P.W.19. The Doctor P.W.13 held autopsy on the body of the deceased. Ex.P.6 is the Post Mortem Certificate. The Doctor opined that the deceased died due to head injuries. On 14.11.2001, P.W.12 went to the Government Hospital, Tirunelveli wherein P.W.1 was sent for further treatment. He enquired P.W.1 and recorded his statement. On 15.11.2001, he enquired the other witnesses and recorded their statements. He forwarded the material objects to the Court for sending chemical examination. The accused Nos.1 to 4 surrendered before the Judicial Magistrate, Vilathikulam. On 21.11.2001 he filed a petition before the Judicial Magistrate for police custody of the accused. After obtaining an order, on 23.11.2001 he brought the accused to the police station. At about 01.00 p.m he recorded the confession statement of the first accused, at 02.00 p.m he recorded the confession statement of the second accused and at 03.00 p.m he recorded the confession statement of the third accused. In pursuance of the confession statement of the second accused, he recovered M.80 motor cycle under M.O.2 and in pursuance of the confession statement of the third accused, he recovered the Aruval M.O.3. He enquired the doctors who treated the deceased and P.W.1 and recorded their statements. On completing the investigation, on 04.02.2002, P.W.12 filed the charge sheet against the accused.
5. The case was committed to the Court of Session. As referred to above, charges were framed against the accused by the trial Court. In order to establish its case, during the course of trial, the prosecution examined P.Ws.1 to 20, exhibited Exs.P.1 to P.21 and marked M.Os.1 and 14. On completion of evidence on the side of the prosecution, when the accused were questioned under Section 313 of the Cr.P.C. as to the incriminating circumstances found in the evidence of the witnesses, they flatly denied their complicity. Accused Nos.1 to 3 filed written statements and during Cross-examination, Ex.D.1 was marked.
6. Having analysed the materials available on record both oral and documentary, the learned First Additional Sessions Judge, Tirunelveli found that the prosecution has failed to prove its case beyond all reasonable doubt and acquitted all the accused from all the charges. Hence, the State has preferred this Criminal Appeal.
7. We have heard the submissions of the learned Additional Public Prosecutor appearing for the appellant and the learned Senior Counsel appearing for the respondents.
8. Learned Additional Public Prosecutor appearing for the State submitted that P.Ws.1 to 3 are eye witnesses to the occurrence and P.W.1 is an injured eye witness. After the occurrence, P.W.1 was taken to the hospital wherein he had given a statement to the Doctor - P.W.12 that near G.V.N. College, he was pulled out from the mini bus. He and the deceased were attacked by known persons. This also finds place in Ex.P.4 - Accident Register. The learned Additional Public Prosecutor submitted that though the name of P.W.3 does not find place in Ex.P.1 - Complaint, the name of P.W.2 - Irulappan, brother of the deceased is mentioned as eye witness to the occurrence. The learned Additional Public Prosecutor further pointed out that there was no delay in preferring the complaint and sending the F.I.R to the Court and the F.I.R contained all the details regarding the occurrence. The mini bus M.O.1 also contained blood stains and the weapon recovered - M.O.3 aruval also contained the blood stains. The accused in their statements while they were questioned under Section 313 Cr.P.C had admitted the enmity that prevailed with the deceased. The learned Additional Public Prosecutor further submitted that the evidence of P.W.1 is well corroborated by the evidence of P.Ws.2 and 3 and also by the medical evidence. But, in spite of all the above, the Trial Court had acquitted all the accused on flimsy grounds such as P.W.1 had failed to narrate in detail about each attack on the deceased connecting to the injuries and he had stated that mercury light was at the scene of occurrence instead of Sodium light and the motive was not strong and P.W.1 did not give any telephonic message to the police immediately after the occurrence and he was drunk at the time of occurrence and also at the time of giving the statement and P.W.1 could not have travelled in the bus since the ticket was not seized and the first accused could not be the mini bus owner and the Doctor - P.W.12 stated that the deceased could not have been carried in a two wheeler and brought to the hospital. The learned Additional Public Prosecutor further submitted that one of the reasons given by the Trial Court for acquitting the accused is that the brother of the deceased Selvam was not examined. But, Selvam is not an eye witness to the occurrence according to the prosecution. The learned Additional Public Prosecutor further submitted that the Trial Court doubted about the existence of Ex.P.1, but P.W.1 was sent from Kovilpatti Government Hospital to Tirunelveli Government Hospital and the complaint was given by him at the Kovilpatti Government Hospital itself where P.W.20 Inspector of Police came and received the same.
9. Per contra, the learned Senior Counsel Mr. V. Kathirvelu appearing for the respondents submitted that the entire family male members were implicated falsely merely for the reason that the second accused had sent a petition to the District Collector against the deceased and others. The learned Senior Counsel also submitted that the evidence of P.W.1 is highly doubtful and as per his evidence, he received an attack on his back of his head and therefore, he had no opportunity to see the real culprits and he could not have travelled in the mini bus along with the deceased and from the place of occurrence a cycle has been recovered and the deceased had come to the place of occurrence only in a cycle and not in the mini bus. The learned Senior Counsel further pointed out that though the scene of occurrence is in between Kovilpatti and Thiruvenkadam, the Investigating Officer while going to the Kovilpatti Government Hospital passing through the scene of occurrence, he had not even cared to see the scene of occurrence. P.W.1 admitted during cross-examination that in Kovilpatti Government Hospital, the police informed P.W.1 about the details of the accused and as such Ex.P.1 could not have been given by P.W.1. The learned Senior Counsel further pointed out that P.W.1 had admitted in the cross-examination that he came to know about the death of the deceased while he was in Palayamkottai Government Hospital, but Ex.P.1, which is said to have been prepared at the Kovilpatti Government Hospital, mentions about the death of the deceased at 10.20 p.m., on 13.01.2001. The learned Senior Counsel further pointed out that though Ex.P.1 was said to have been prepared at 02.30 a.m., it reached the Court at 10.10 a.m., and as per the evidence to reach the Court from the place of occurrence, the total travelling hour taken was only 2 1/2 hours. The learned Senior Counsel further pointed out that the name of P.W.3 was not mentioned in Ex.P.1 though the names of the other witnesses were mentioned in Ex.P.1. The learned Senior Counsel also submitted that P.W.2 could not be an eye witness to the occurrence as Selvam and Subramanian came to the scene only after the occurrence and took the deceased and P.W.1 to the hospital and if P.W.2 had been present there, he would have taken the deceased to the hospital immediately. Though P.W.1 is an injured witness, he is not speaking the truth.
10. We have considered the rival submissions made on either sides and perused the records.
11. The motive for the occurrence is that the father of accused Nos.1 to 3 was murdered about three years back. The deceased was said to have assisted the accused in that case. Though the Trial Court had observed that this is not the strong motive for the accused to attack the deceased, as the deceased was not an accused in the said case, it appears from the evidence that on the date of occurrence, there was some quarrel between the first accused and the deceased while they were going in the mini bus. There was some ill feeling among the accused and the deceased party. Even according to the defence, it is not the case that the parties were not in inimical terms. While filing the written statement, A-2 filed a copy of the petition sent to the District Collector, Tirunelveli District. The second accused is one among the persons who had sent the said petition to the District Collector. In the said petition, allegations are made against the sons of Karuthaiya Pandi Thevar, who is the father of the deceased.
12. It is the evidence of P.W.1 that on 13.11.2001 at about 08.30 p.m., he was going in Popular Mini bus and the deceased was also travelling in the same mini bus. According to him, a quarrel arose among the first accused and the deceased. The bus came near G.V.N.College bus stop. In the meantime, A-2 and A- 4 had come in M.80 - two wheeler motor cycle. The third accused had arrived at the scene of occurrence with an aruval. According to the evidence of P.W.1, it was only the third accused, who attacked him and also attacked the deceased with aruval indiscriminately. The evidence of P.W.1 is also corroborated by his earlier version to the Doctor P.W.12 wherein he has stated that while the bus was stopped in front of G.V.N.College bus stop, he and the deceased were pulled out of the bus and attacked by known persons with aruval. P.W.1 is seriously injured and he sustained cut injury on the left occipital region and on the left forearm. According to the Doctor, who treated P.W.1, the injuries sustained by P.W.1 were grievous injuries.
13. From the evidence of P.W.1 and the statement given by him to the Doctor P.W.12 it is apparent that he was present at the scene of occurrence at 08.30 p.m.; he and the deceased sustained injuries at one and the same time and there was every possibility for P.W.1 to witness the occurrence regarding the attack on the deceased. Even after cross-examination, P.W.1 does not raise any doubt regarding his presence at the scene of occurrence especially sustaining injury, being grievous in nature. Merely for the reason as pointed out by the Trial Court that the bus ticket for travelling was not seized and he was drunk at the time of occurrence, his evidence cannot be eschewed. Further, though the Sodium lamp was described by P.W.1 as a mercury lamp, that would not falsify his evidence. The answer given by him during cross-examination is that the police, who came to the Government Hospital had informed him about the details regarding all the accused could not be taken in the sense that P.W.1 was not aware of the assailants. He being an injured witness and he having informed the Doctor that he was assaulted by known persons, such answer given by P.W.1 would not affect the veracity of his evidence. It appears that the Trial Court had rejected the evidence of P.W.1 merely for the reason that he did not give any telephonic message immediately to the police. Admittedly, P.W.1 was seriously injured and he was taken to the hospital by others. According to him after he sustained injuries and after the deceased being attacked while going near the deceased, he got giddiness. In the said circumstances, we do not find any reason to reject the evidence of P.W.1.
14. Apart from P.W.1, in this case, P.W.2 and P.W.3 were also shown as eye witnesses to the occurrence. According to their evidence, the first accused had instigated the third accused to attack the deceased and while A-2 and A-4 caught hold of the deceased, A-3 attacked the deceased wherein the specific evidence of P.W.1 is that a dispute arose between the first accused and the deceased and thereafter, the first accused had left that place. At that time, A-2 and A-4 came and enquired P.w.1 regarding the quarrel. Then, A-3, who came there with an Aruval attacked P.W.1 and the deceased. If the evidence of P.W.1 is taken into consideration, only A-3 would become liable for attacking P.W.1 and the deceased. But, P.Ws.2 and 3 implicated A-1, A-2 and A-4 also. The name of P.W.3 was not given in Ex.P.1 - Complaint as an eye witness to the occurrence. Of course, P.W.1 had mentioned the name of P.W.2 as an eye witnesses to the occurrence in Ex.P.1. In the evidence, P.W.1 had not stated that P.Ws.2 and 3 were also present in the scene of occurrence. Admittedly, it was only P.W.4 - Veluchamy and P.W.2 - Irulappan took the deceased and P.W.5 - Subramanian and Selvam took P.W.1 to the Government Hospital, Kovilpatti. Subramanian is the Brother of P.W.1; Veluchamy is the nephew of the deceased. P.W.2 - Irulappan and Selvam are brothers of the deceased. Except P.w.2 all the others came to the place only after the occurrence was over. In such a case, a doubt arises as to whether P.W.2 could have been present in the scene of occurrence or he also came later to the scene of occurrence along with others. If P.W.2 had been present in the scene of occurrence, immediately he would have taken the deceased to the hospital. Further, in Exs.P.4 and P.8 - Accident Registers, the names of Subramanian and Selvam were shown as the persons who brought them to the hospital. In the said circumstances, we do not want to place reliance on the evidence of P.Ws.2 and 3 in order to convict A-1, A-2 and A-4 and benefit of doubt is to be given to them.
15. But, as far as A-3 is concerned, the evidence of P.W.1 is very much against him and the weapon recovered under M.O.3 in pursuance of his confession also contained human blood stains of "B" Group.
16. The Hon'ble Supreme Court has held in the decision reported in STATE OF RAJASTHAN ..VS.. RAJA RAM (2003 (8) S.C.C. 180) as follows:-
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (BHAGWAN SINGH ..VS.. STATE OF M.P. (2002(4) S.C.C. 85)). The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference......."
17. It is held in the decision reported in STATE OF GOA ..VS.. SANJAY THAKRAN AND ANOTHER (2007 (3) S.C.C. 755) as follows:-
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with".
18. Applying the principle laid down by the Hon'ble Supreme Court, we hold that in this case, the entire approach of the Trial Court in dealing with the evidence of P.W.1 was patently illegal and the conclusions arrived at are wholly untenable.
19. We conclude that the case of the prosecution is established beyond all reasonable doubt as against A-3 / Respondent No.3 alone and he is liable to be convicted under Section 326 I.P.C in respect of attacking P.W.1 and under Section 302 I.P.C., in respect of causing the death of the deceased.
20. Though we are aware of the fact that before sentencing the third accused, he must be heard regarding the sentence to be imposed on him, as the third accused is not present before this Court and it appears that it is not possible to secure him in the near feature and as we also propose to impose only the minimum sentence that is prescribed under Section 302 I.P.C and whatsoever the sentence that is to be prescribed under Section 326 I.P.C., is to be made to run concurrently along with the sentence that is to be imposed under Section 302 I.P.C., we are of the view that no prejudice would be caused to the third accused by not questioning him in respect of the sentence that is to be imposed on him.
21. Accordingly, this Criminal Appeal is dismissed in respect of A-1, A-2 and A-4 / Respondent Nos.1,2 and 4 and the same is allowed in respect of A-3 / Respondent No.3 and he is convicted under Sections 326 and 302 I.P.C., and sentenced to undergo one year rigorous imprisonment for the offence under Section 326 I.P.C and also to undergo life imprisonment for the offence under Section 302 I.P.C. The sentence of imprisonment imposed under Section 326 I.P.C., shall run concurrently on the sentence imposed under Section 302 I.P.C. The period of sentence of imprisonment already undergone by A-3 / Respondent No.3 shall be given set off. The learned First Additional Sessions Judge, Tirunelveli must take steps to apprehend him and send him to judicial custody. The connected M.P.(MD)No.1 of 2011 is closed.
Dpn/-
To:
1. The Principal District Judge, Tirunelveli.
2. The First Additional Sessions Judge, Tirunelveli.
3. The Chief Judicial Magistrate, Tirunelveli.
4. The Judicial Magistrate, Sankarankovil.
5. The Director General of Police, Mylapore, Chennai.
6. The District Collector, Tirunelveli.
7. The Inspector of Police, Thiruvenkadam Police Station.
8. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.