Madras High Court
Ponnuvel vs The State Of Tamil Nadu on 29 February, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.(MD)No.826 of 2000 1.Ponnuvel 2.Alwarsamy ... Appellants Vs. The State of Tamil Nadu rep.by the Inspector of Police, Sattur. (Crime No.400/1997) .. Respondent PRAYER This criminal appeal has been preferred under Section 374 Cr.P.C against the judgment dated 14.07.2000 made in S.C.No.90 of 1999 by the District and Sessions Judge for Communal Clash cases, Madurai. !For Appellants ... Mr.R.Shanmugasundaram, Senior Advocate for Mr.S.Ravi ^For Respondent ... Mr.C.Daniel Manoharan, A.P.P. :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the District and Sessions Division for Communal Clash cases, Madurai, made in S.C.No.90 of 1999, whereby these appellants, two in number, along with three others, who were ranked as A-3 to A-5, stood charged under Sections 148, 341 and 302 read with 34 IPC and tried. A-1 and A-2 were found guilty as per the charges and awarded six months RI under Section 148 IPC, one month S.I. under Section 341 IPC and life imprisonment under Section 302 r/w S.34 IPC and the sentences are to run concurrently and A-3 to A-5 were found not guilty and they were acquitted of the charges levelled against them. Hence this appeal has been brought forth by A.1 and A.2.
2. The short facts necessary for the disposal of the appeal could be stated as follows:-
a)The deceased one Sangiah is the son of P.W.1 and brother of P.W.4. They belonged to Thevar Community and they were the residents of Ammapatti Village.
The accused/appellants belonged to Harijan Community and they were all residents of Sundarakudumbanpatti, which is adjacent to Ammpatti Village. There is a Kanmoi by name Kolwarpatti situated in between these two villages. The villagers used to graze their cattle in the Kanmoi area and there were some trees also. A few days prior to the occurrence, P.W.4 and others cut and carried away the trees from that Kanmoi, which resulted in a report given by Harijan Community people of the other place. On receipt of the compliant, Sattur Police made an enquiry and called all the parties, namely the five accused on one side and P.W.4 and others on the other side. The matter was put an end by issuing instructions to P.W.4 to make payment of Rs.3,500/-, as compensation to other villagers and the matter was thus pending.
b) While the matter stood thus, the occurrence has taken place on 18.06.1997, when P.W.1 accompanied by his son Sangiah went for grazing the cattle. P.Ws.2 and 3 were also grazing their cattle in the nearby area. When P.W.1 found that the cattle went astray, he asked his son to take them. Accordingly, the deceased went over there to take the cattle. At that time, all the accused Nos.1 to 5, having aruval, came to the spot and attacked him indiscriminately. As a result, the deceased died instantaneously. This was witnessed by P.Ws.1 to 3.
c)After doing the crime, the accused Nos.1 to 5 fled away from the place of occurrence. P.W.1 informed to the villagers and proceeded to Sattur Police Station, where P.W.10, the Sub-inspector of Police was on duty. He gave a complaint, Ex.P.1, on the streng`th of which, a case came to be registered in Crime No.400 of 1997 under Sections 147, 148, 341 and 302 IPC. Ex.P.11, the printed FIR, was despatched to the concerned Court.
d)On receipt of the copy of the FIR, P.W.13, the Inspector of Police, took up the investigation, proceeded to the place of occurrence, made an inspection in the presence of witnesses and prepared Ex.P.2, the Observation mahazar, and Ex.P.12, the rough sketch. Further, he recorded the statement of the witnesses. He also recovered bloodstained earth, M.O.1 and sample earth, M.O.2 under a cover of mahazar Ex.P.3. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared an inquest report, Ex.P.13.
e)The dead body of the deceased was sent to the hospital for the purpose of autopsy. P.W.7, the Doctor attached to the Virudhunagar Government Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.6, the post-mortem certificate, wherein she has opined that the deceased would appear to have died out of shock and hemorrhage due to the injuries sustained between 12 and 24 hours prior to autopsy.
f) Pending investigation, P.W.13, the Inspector of Police arrested A.1 and A.2, on 03.07.1997, at about 5.30 A.M. A.1 voluntarily gave a confessional statement, which was recorded in the presence of the witnesses, the admissible portion of which was marked as Ex.P.14. Pursuant to the confession statement, he produced M.O.3, aruval and A-2 also produced M.O.4, aruval, which were recovered under the athakshi, Ex.P.15. Then A-1 and A-2 were sent for judicial remand.
g)P.W.14, the Inspector of Police, took up further investigation. He arrested A.4 on 08.08.1997 at about 8 A.M. He gave a confessional statement, which was recorded in the presence of the witnesses. The admissible portion of the same was marked as Ex.P.17. Pursuant to the same, he produced M.O.5, aruval, which was recovered under a cover of mahazar. At the time of arrest, he hurled a country bomb on the police officials, which resulted in registration of case in Crime No.93/97 under Sections 332 and 307 IPC and also under the Indian Explosive Substance Act. A.4 was remanded to judicial custody and he was shown arrested in this case also.
h)All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were sent for chemical analysis pursuant to a requisition, Ex.P.7, given by the Investigating Officer to the concerned Judicial Magistrate, which resulted in two reports. Ex.P.9 is the Chemical analyst's report, and Ex.P.10 is the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report before the concerned court.
3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 14 witnesses and relied on 17 exhibits and 8 M.Os. On completion of the evidence on the side of the prosecution, the accused/appellants were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. No defence witness was examined. After hearing the arguments of the counsel, the lower court took the view that the prosecution has proved the case beyond reasonable doubt and found A-1 and A-2 alone guilty as per the charges and awarded punishments as referred to above. A-3 to A-5 were not found guilty and they were acquitted of the charges. Under these circumstances, this criminal appeal has arisen at the instance of A.1 and A.2.
4.Advancing arguments on behalf of the appellants, the learned Senior Counsel would submit that in the instant case, the prosecution came with the false story before the trial court; that admittedly, regarding the grazing of cattle, there was a quarrel between the villagers; that the prosecution witnesses and the deceased belonged to Ammapatti village, while the opposite party belonged to the other village; that they belonged to two different communities also; that there was a quarrel between the villagers regarding the grazing of cattle in the Kanmoi area; that it was given colour that as if there was a communal clash, but that was not so; that admittedly, five accused were facing trial; that they were enquired by the very same Sathur Police earlier when there was a complaint given against P.W.4 and others; that both sides were enquired by the police and a fine of Rs.3500/- was imposed on P.W.4 and thus, all the five persons, who were enquired by the police, have been brought as accused in this case.
5.Added further, the learned Senior Counsel that the prosecution rested its case on the evidence of three witnesses, namely P.Ws.1 to 3; that the trial court was not prepared to accept the evidence of P.W.3 and hence it was not useful for the prosecution; that the evidence of P.Ws.1 and 2 only available for the prosecution; that admittedly, P.W.1 was the aged man; that at the time of examination before the court, his eye sight was tested by the court; that he was not having the vision of identifying the person, who is standing within a distance of 10 feet; that under these circumstances, P.W.1 could not have seen the occurrence at all, which took place 50 feet away and thus, he could not identify the accused and hence, his evidence also would not serve any useful purpose for the prosecution case; that the lower court, surprisingly, has rested the case on his evidence; that apart from that, even from the evidence of P.W.2, it would be quite clear that P.W.1 came to the spot only at a later point of time; that when P.W.2 was at the spot, he did not see P.W.1 at all and thus, it would be quite clear that P.W.1 has come to the spot only after the occurrence was over and hence his evidence is highly improbable and unacceptable.
6.The learned Senior Counsel would further add that so far as the evidence of P.W.2 was concerned, he has categorically stated that he saw all the accused stamping the deceased and nowhere he has stated that all the accused were cutting the deceased with any weapon; that while the prosecution came forward with the story that all the five accused have attacked the deceased with deadly weapons, like aruval and caused his death instantaneously, the evidence of P.W.2 was to the effect that all the accused have stamped the deceased and there was no cut at all; that if to be so, the evidence of P.W.2 should have been outrightly rejected and that the prosecution had no evidence to offer and hence the lower court should have rejected the case of prosecution and should have acquitted the accused/appellants herein.
7.Added further the learned Senior Counsel that the arrest of A-4 was shown as if he was arrested on 8.8.1997, i.e. long after the occurrence, and as if there was confessional statement; that his confessional statement was also relied on by the prosecution; that if the confessional statement was to be relied on, it must be relied on by the prosecution in full; that the confessional statement would indicate that there were only four accused, but who were the four assailants remained unknown and that the prosecution is unable to fix who were the assailants.
8.The learned Senior Counsel would further add that there was an undue and inordinate delay in sending the F.I.R. to the court; that the occurrence has taken place on 10.30 a.m.; that the F.I.R. has come into existence at about 12.00 noon; that it has reached the court on the next day morning at 9.10 a.m.; that the court is situated just 2 Kms. from the police station and thus, the delay of nearly more than twenty hours would indicate that the prosecution added all the names of the accused possible and has also improved and embellished the case and the prosecution wanted to give communal colour; that the prosecution did not bring home the guilt of the accused in any manner known to law; that the lower court should have rejected the case of prosecution and should have acquitted all the accused, but it has not done so and hence all these aspects have got to be considered by this court and the appellants have got to be acquitted in the hands of this court.
9.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made and also made a thorough scrutiny of the materials available.
10.It is not in controversy that the deceased Sangiah was done to death in an occurrence that took place on 18.06.1997. Following the inquest made by P.W.13, the Investigator, the dead body was subjected to post-mortem by P.W.7, the Doctor, who has categorically given her opinion in Ex.P.6, the post-mortem Certificate and has also deposed before the court that the deceased would appear to have died of shock and hemorrhage due to the injuries sustained. The fact that the deceased died out of homicidal violence was never questioned by the appellants at any stage of the proceedings. Hence, without any impediment, it could be safely recorded so.
11.In order substantiate the charges levelled against the five accused that in furtherance of the common object, they attacked the deceased on the spot and caused his instantaneous death, the prosecution marched three witnesses, as occurrence witnesses. Out of these three witnesses, the lower Court, for the reasons adduced by it, which in the opinion of the Court was proper and correct, was not ready to believe the evidence of P.W.3. Thus, the prosecution to its advantage had the evidence of two witnesses, who are P.Ws.1 and 2.
12.Now all the contentions put forth by the learned counsel for the appellants, commenting over their evidence and levelling criticism over the prosecution case and on their evidence, have been throughly considered. But, the Court is unable to agree with the contentions of the Senior Counsel in that regard. Admittedly, there was a Kanmoi situated between these two villages and there was often a quarrel between the parties. The evidence of P.W.4 would indicate that pursuant to the cutting of trees, a complaint was given by the accused party and he was called for enquiry by the Sattur Police Station earlier and he was also directed to pay a compensation of Rs.3,500/- to the village of the accused party. Pending same, the occurrence has taken place. On the date of the occurrence, according to P.W.1, he accompanied his son in the morning hours for grazing the cattle. He was actually sitting in the shadow of tree. When the cattle were found astray, he asked his son to gather the disintegrated grazing cattle and when his son went over, he heard a distressing cry and he found that five persons were attacking him. Two persons were actually known to him, who are A.1 and A.2. According to him, he went to the village. The F.I.R. has come into existence within a short span of time and the police station is situated 10 Kms. away from the place of occurrence, which would indicate that he knew those two named persons and the other three were not known, thus totally, there were five persons. It is true, the F.I.R. has gone to the court only on the next day morning, as pointed out by the learned Senior Counsel. If any embellishment was to be made and improvement was to be shown, there could not be any impediment for naming all the five accused, but, it was not done. The earliest document would indicate only two named persons, who were known to P.W.1 and they are A.1 and A.2 and the other three were not known and hence this by itself would indicate the truth in the contents of the F.I.R.
13.So far as P.W.1 was concerned, according to him, he saw his son being attacked by those persons and he immediately rushed to the village. He would further add that P.W.2, by name Muthusamy, and an another Muthusamy were grazing cattle in the nearby field. According to P.W.2, when he saw the occurrence, the assailants were stamping the deceased and at that time, P.W.1 was not present. It is quite natural from the way in which the occurrence has taken that immediately on noticing his son being attacked with aruval by the assailants and P.W.1 on seeing these five persons, including A.1 and A.2, rushed to the village to get assistance. At that time, he did not notice P.W.2, coming near the spot. Before P.W.2 came to the spot, he actually left the place and therefore, P.W.2 did not see P.W.1 at the place of occurrence and it did not mean that P.W.1 has not seen the occurrence. The later part of the stamping was noticed by P.W.2. Thus, the evidence of P.Ws.1 and 2 put together is natural and has also inspired the confidence of the Court. Under the circumstances, this Court is unable to agree with contentions put forth by the learned Senior Counsel for the appellants.
14.In the instant case, the lower Court has rightly acquitted A.3 to A.5, because the lower Court had entertained all the doubts possible and it is also probable that all these three accused could not be fixed. By taking into consideration that those three accused along with A-1 and A-2 were enquired by the Sattur Police on the earlier occasion, they could have been probably added. In the earliest document, there was no identifying features of A.3 to A.5. Further, they were also arrested subsequently. Under the circumstances, the case of the prosecution in respect of A.3 to A.5 is shrouded with reasonable doubts. So far as A.1 and A.2 are concerned, the evidence of P.W.1 and 2 has inspired the confidence of the Court and the evidence was also corroborated with the medical evidence and further, the recovery part was also proved. Under these circumstances, the lower Court has found A-1 and A-2 guilty as per the charges. In the opinion of the court, the judgment of the lower court does not require any interference either factually or legally.
15.The criminal appeal must fail and it fails. Accordingly, the criminal appeal is dismissed. It is reported that the appellants are on bail. Hence the concerned Sessions Judge shall take steps to secure and commit them to prison to undergo the period of sentence.
ssm/vvk To
1.The District and Sessions Judge, Madurai.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.