Madras High Court
Seenivasan vs State Of Tamil Nadu on 14 September, 2006
Bench: M.Chockalingam, A.Selvam
BEFORE THE MADUAI BENCH OF MADRAS HIGH COURT DATED : 14/09/2006 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE A.SELVAM CRL.A.NO.617 OF 1998 1.Seenivasan 2.Subba Naicker (alias) Subbiah ... Appellants Vs. State of Tamil nadu rep. by the Inspector of Police Kovilpatti West ... Respondent This Criminal Appeal is filed under Section 374 Cr.P.C. against the judgment of the Principal Sessions Judge, Tuticorin in S.C.No.106 of 1995 dated 27.7.1998. !For Appellants ... Mr.M.R.Sreenivasan ^For Respondent ... Mr.N.Senthur Pandian, A.P.P. :JUDGMENT
(The Judgment of the Court was delivered by M.CHOCKALINGAM,J) This appeal has been brought forth by the first and second accused in Sessions Case No.106 of 1995 whereby they along with third accused stood charged and found guilty as follows:
The first accused was convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment, the second accused was convicted for the offence under Section 302 IPC read with 34 IPC and 323 IPC and sentenced to undergo life imprisonment and six months simple imprisonment respectively and the sentence shall run concurrently, while the third accused was initially found guilty for the offence under Section 302 IPC read with 34 IPC and later acquitted of the charges.
2. The short facts that are necessary for the disposal of the appeal can be stated thus:
a. The first accused is the son of Accused 2 and 3, while the fourth accused is sister of the second accused. P.W.1 is the wife of the deceased . In between the house of P.W.1 and the accused, a drainage odai goes and in that odai, the waste water from the house of P.W.1 and from the house of P.W.6, Sankaran, passes through. The accused objected for draining the water through the drainage channel and about the same, the family members of P.W.1 complained to the police twice, The police came and warned and even thereafter, the accused used to quarrel very often. On the date of occurrence that was on 2.8.1992 at about 6 a.m., when the deceased was in his house, P.W.1 saw that the third accused Rengaramanujam was scolding the deceased by showing broomstick towards him. When he went over there to question the third accused, the first accused immediately came out with a knife and inflicted injuries by stabbing the deceased on the chest and also further stabbing with the knife on the parietal region . The deceased snatched the knife from the hands of the first accused and at that time the fourth accused intervened and in that course, the fourth accused sustained injuries. The second accused attacked PW1 with wooden log on her head and she has also sustained injuries. The third accused beat the deceased with a broomstick and the fourth accused who is no more pushed aside PW1 when she rushed towards her husband and thus PW1 sustained pain on her elbow. The accused fled away from the scene of occurrence. The occurrence was witnessed by P.Ws1, 4, 5 and 6.
b. P.W.1 took her husband Ramasamy to her house where he felt unconscious. P.W.6, phoned up to the fire service and the fire service men came and they took Ramasamy, Gengammal and Rengaramanujam(A3) in their van and P.W.1's brother Chandrasekar also went along with them in the Van, P.W.1 went to Kovilpatti Government hospital along with her children in an auto. In the Government Hospital, Kovilpatti, the husband of PW1 was declared dead. P.W.1 gave a statement to the Head Constable which is marked as Ex.P.1.
c. P.W.2, a doctor attached to the Kovilpatti Government Hospital got the dead body of Ramasamy at 7.40 a.m on 2.8.1992 and sent it to the mortuary and registered the same in the accident register which is marked as Ex.P.2. On the same day, he examined one Gengammal for injuries and the accident register registered by him for the same is Ex.P.3. Thereafter, the said Gangammal was sent to Tirunelveli Medical College hospial for further treatment. On the same day at about 7.20 a.m. he examined one Rengaramanujam for injuries sustained by her and the wound certificate issued for the same is Ex.P.3.
d . P.W.15, the former Sub Inspector of Police, Kovilpatti, on information went to Kovilpatti Government Hospital and obtained the statement from Ramalakshmi(PW1), the wife of the deceased and on the strength of which, he registered a case in Crime No.440 of 1992 under Sections 302 and 323 IPC and prepared Printed FIR, the copy of which is Ex.P.15. He sent Ex.P1 and P.15 to the concerned Court and he also sent through P.W.11 the copies of the concerned documents to the higher authorities and the Inspector of Police for investigation. The wife of the second accused also gave a complaint to the same police officer who registered a case in Crime No.441 of 1992 under Sections 324 and 323 IPC and prepared printed FIR, the copy of which is Ex.P.16. He sent the copy of EX.P.16 to the Inspector of Police for investigation.
e. P.W.17, The former Inspector of Police, Kovilpatti(West) took up investigation proceeded to the spot on 2.8.1992 at about 9.30 a.m. made an inspection in the presence of P.W.16, the former VAO prepared Observation mahazar Ex.P.17 and drew a rough sketch Ex.P.22 and he recovered M.Os. and he examined the witnesses and recorded their statement. He went to the Government Hospital, Kovilpatti and conducted inquest in the presence of panchayatdars and the witnesses and prepared Ex.P.23 inquest report. He sent the requisition for postmortem through P.C.972 . He examined Rengaramanujam, the third accused who was inpatient in the Government Hospital, Kovilpatti with respect to Crime No.441 of 1992 and recorded her statement.
f. On receipt of the requisition Ex.P.6 from the Inspector of Police, P.W.7, a medical officer conducted autopsy on the dead body of Ramasamy and found the following injuries:
1.A stab injury 4cm x 3cm x first vertical to right nipple long axis in vertical and slightly to right.
2.A stab wound 1-1/2cm x 1=1/2 cm just below and to right of wound No.1.
3. A stab wound 2cm x 1/2cm on the left parietal region of head.
4. A stab wound 2cm x 1/2cm /1-1/2 cm inches above let ear diverted downwards.
5.A stab wound on the palmar side of base of left thumb.
The doctor issued Ex.P.7 Postmortem certificate wherein he opined that the deceased would appear to have died of shock and haemoharrage due to the injuries sustained.
g. P.W.1 was also examined by the same doctor P.W.7 and he gave a wound certificate which is marked as Ex.P.8.
h. P.W.17, the investigating Officer, referred the case in Cr.No.441 of 1996 as one of mistake of fact.
i. Pending investigation, on 5.8.1992, P.W.17 arrested the 2nd accused and remanded him to judicial custody. On 13.8.1992, he arrested the third accused and sent her for remand. On 10.8.1992, he got information that the first accused Srinivasan surrendered before the Chief Judicial Magistrate Court, Madurai. On 18.8.1992, he presented a petition for police custody of the accused Srinivasan and he got police custody of the accused for two days. On that day evening, he examined the accused Srinivasan in the presence of VAO and his Thaliyari. The first accused volunteered to give a confessional statement in the presence of two witnesses and the same was recorded by the investigator, the admissible part of which was marked as Ex.P.20. Pursuant to the confessional statement, M.O.1 Soori Knife was recovered in the presence of witnesses. The first accused was sent to Judicial remand. All the Mos. recovered from the place of occurrence and from the dead body were subjected to chemical analysis by the Forensic Department. On analysis, Ex.P.12 the Chemical Analyst's report and Ex.P.13 is the Serologist's report were received by the Court. On completion of investigation, the final report was filed by the investigating officer before the committal Court.
3. The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses and relied on 23 exhibits and 6 material objects were marked. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused have flatly denied them as false. On the side of the defence, no witness was examined. But, they relied on two documents which were marked as Ex.D1 and D2. On completion of trial, both sides were heard. The learned trial Judge has found the appellants guilty as referred to above. Hence, this appeal at the instance of the appellants before this Court.
4. Arguing for the appellants, learned counsel would submit that the prosecution has not proved the case beyond reasonable doubt and the witnesses examined by the prosecution were all close relatives. In the instant case, the lower Court was not prepared to accept the case of the prosecution in so far as the third accused is concerned, but on the same evidence, it has found A1 and A2 guilty. In the instant case, though the lower Court found A2 guilty under Section 302 read with 34 IPC, no evidence with regard to common intention to commit murder is available. Hence, automatically, the charge framed under Section 302 IPC read with 34 IPC against the second accused should have been rejected by the lower Court. In the instant case, the prosecution has not proved the motive at all. Since the dispute between the parties in respect of the drainage water was already settled, there is no motive as stated . On the date of occurrence, according to P.W.1, when the deceased was in his house, P.W.1 saw the third accused scolding the deceased by showing broomstick towards him, but no broom stick was recovered and no evidence is available in that regard also. This would be indicative of the fact that the deceased has gone to the house of the accused and hence he was the aggressor and when he went over there, he began to attack the accused. There are lot of discrepancies found in the instant case and according to the prosecution, PW1 has spoken to the fact that they gave information to the Fire officer and pursuant to which P.W.2 came and took them to the Government Hospital, Kovilpatti . But, according to the fire officer, P.W.3, he got information from the DSP Office. Thus, it would be quite clear that there is a discrepancy in this regard. In so far as First Information Report was concerned, according to the prosecution, the occurrence took place at about 6 a.m. and the FIR came into existence at 8.45 p.m.. But, according to PW1, she gave information to the Head Constable at the police station. According to PW15, he recorded the information from PW1 in the hospital and thus, there is also a discrepancy in that regard also. It is highly doubtful whether Ex.P.1 came into existence as referred to above by the prosecution and the earliest document was suppressed and now what is available before the Court is not the First Information Report. In the same transaction, the third accused sustained injury and A4 was also sustained injury and he was also taken for treatment for a long time and A3 gave a complaint to the very same police officer and pursuant to which a case came to be registered in Crime No.441 of 1992 under Sections 324 and 323 IPC and later it has been referred as mistake of fact. But from the evidence it would be clear that it was the deceased who attacked A4 and in that melee, A4 sustained injury and hence the investigation was not properly conducted and it is biased. The prosecution has suppressed a part of the transaction and brought to the Court the other part of the transaction. Further the lower Court has recorded the confessional statement of the first accused and pursuant to which M.O.1 was recovered, the weapon of the crime. It is pertinent to point to out that when the first accused was questioned , he has expressed that he was not inclined to give any confessional statement even then, police custody was ordered and in the course of police custody, the prosecution has categorically stated that the first accused gave a confessional statement and pursuant to which ,M.O.1 weapon of crime was recovered. The confessional statement and the recovery of weapon of crime are nothing but invited for the purpose of suiting the prosecution case and hence that part of the evidence should have been rejected. In the instant case, the investigation conducted was a biased one, since Crime No.441 of 1992 was not properly investigated. The deceased was the aggressor in the said incident since the occurrence took place inside the house of the accused. From above all, it would go to show that the prosecution case should have been rejected. But the lower Court erroneously found A1 and A2 guilty and hence they are entitled for acquittal in the hands of this Court.
5. The Court heard the learned Additional Public Prosecutor.
6. The Court paid its anxious consideration on the submissions and made a thorough scrutiny of the available materials .
7. It is not the fact in controversy that one Ramasamy, the husband of PW1 died out of homicidal violence in an incident that took place on 2.8.1992 at about 6 a.m.in front of the house of the first accused. Following the same, inquest was made by the investigator and the dead body was subjected to post- mortem and the postmortem doctor P.W.7 has given a postmortem certificate Ex.P.7 where he opined that the deceased died out of shock and haemorrhage due to the injuries sustained. The fact that he died due to homicidal violence was never questioned by the appellants at any stage of proceedings and hence without any hesitation, it can be recorded so. In order to substantiate the case of the prosecution that the occurrence took place at the time and place of occurrence as put forth by the prosecution in which the first accused attacked the deceased Ramasamy with a knife on the chest and also on the pareital region, due to which, the deceased died, the prosecution has examined P.Ws.1,4,5 and 6. At this juncture, on exercise of careful scrutiny of the evidence of P.Ws.1,2,5 and 6 who are close relatives of the deceased, their evidence stood the test and hence their evidence inspired the confidence of the Court. The origin of the occurrence was that when the third accused showed broom-stick from her house to the deceased and aggrieved over the same, the deceased went to the house of the accused and questioned the same. When he questioned, A1 came out with a knife stabbed him on the chest and on the parietal region, immediately the deceased snatched the very same knife from the first accused and was about to attack him, in that course, A4 intervened and sustained injury. The manner in which the prosecution has given the case has been clearly spoken to by all the witnesses and this part of the evidence of the ocular testimony stood in full corroboration with the evidence of postmortem doctor and the postmortem certificate which is marked as Ex.P.7 through him. In the instant case, P.W.1 is the injured witness. It is settled proposition of law in a case like this where eye witness is an injured witness, unless and until strong reason or circumstance is noticed, their evidence need not be discarded or rejected. In the instant case the evidence of P.W.1 has inspired the confidence of the Court. Now, it is to be pointed out that the case of the prosecution is that the occurrence has taken place at about 6.00 a.m. and an intimation was given to the fire station and a Fire Officer PW3 came with a Van and took Ramasamy, Gengammal and Rengaramanujam to the Kovilpatti Government hospital and thereafter PW1 has given a statement to the doctor who medically examined her and following which intimation was given to the Kovilpatti police station and PW15 Sub Inspector of Police, came over there and recorded the statement of PW1 and on the strength of Ex.P.1, a case came to be registered and First Information Report has come into existence at 8.45 a.m. which reached the concerned Court at 9.30 a.m., even within a short span time of 45 minutes. It would clearly indicate that medical evidence stood in corroboration with the ocular testimony as referred to above.
8. Now at this juncture, the contention of the learned counsel for the appellants have got to be considered. The first contention that the First Information Report was suppressed by the prosecution and now what is available before the Court is not the First Information Report has got to be rejected. It is an admitted position that PW1 was the author of the said document and the same was marked as Ex.P.1 . According to PW1, she gave a statement to the Head Constable, but according to the Sub Inspector of Police, it was he who recorded the statement from PW1. Now, in view of the fact that Ex.P.1 is the statement given by PW1 and on the strength of which a case came to be registered, a mistake has crept in from the mouth of an illeterate woman that she has given a statement to the Head Constable cannot be a reason to disbelieve Ex.P.1. Hence, this contention has got to be rejected and in so far as the information that has been given to the Fire Officer or the constable attached to the DSP office cannot be a reason to doubt the prosecution case.
9. The other contention that the manner in which the occurrence has taken place has not been properly brought forth by the prosecution, has got to be rejected. The contention put forth by the learned counsel before the lower court and equally here also, is that the deceased was the aggressor and he went to the house of the accused where he attempted to attack the accused party and he only attacked the fourth accused and also sustained injury. This theory was invented only for the purpose of removing the clutches or rigour of law because, from the evidence available, it could be seen that when A3 showed broomstick, the deceased went to question the same. It is quite natural, but at the same time, it is pertinent to note that he went unarmed. Hence when the first accused attacked the deceased on the chest and parietal region, he snatched the knife from him and in that course the fourth accused intervened and sustained injury. Thus, it could be seen that the deceased was neither aggressor nor he had inflicted any injury on A4 and hence this contention of the defence side on the basis of the available material, has got tobe rejected.
10.The another contention put forth by the learned counsel for the appellants that there is no motive on the part of the first accused, cannot be acceptable. Because the origin of the occurrence was that when A3 showed broomstick to the deceased and that was the immediate motive for the occurrence . In the instant case, the prosecution has proved the act of the first accused that it was he who took the knife, attacked the deceased and pursuant to which he succumbed to injuries . In so far as the act of the first accused is concerned, all the contentions put forward by the appellants have got tobe rejected. He has acted intentionally and thus the said act comes under the penal provision of murder. The lower court was perfectly correct in recording the conviction under Section 302 IPC and awarding life imprisonment and it does not require any interference by this Court. In so far as A2 is concerned, this Court is able to see some force in the contention put forth by the learned counsel for the appellants that there is nothing to draw common intention attracting the penal provision of Section 34 IPC that the second accused has not got any common intention, when the first accused attacked the deceased with a knife. The case of the prosecution is that the second accused has neither attacked the deceased nor caused any injury. Under such circumstances, the finding of the lower court in so far as A2 is concerned under Section 302 read with 34 IPC has got to be set aside. But in so far the second accused is concerned, he has attacked PW1 and it was also proved through medical evidence and hence the punishment of awarding 6 months Simple Imprisonment has got to be sustained .
11. With the above modification, the appeal is partly allowed in so far as the second accused is concerned and in other respects, the conviction and sentence is sustained and the appeal is dismissed.
VJY To
1.The Principal Sessions Judge, Tuticorin District, Tuticorin
2.The Director General of Police, Chennai.
3.The Inspector of Police, Kovilpatti West.
4.The Superintendent of Police, Central Prison, Palayamkottai
5.The Public Prosecutor, Maduai Bench of Madras High Court, Madurai.