Madras High Court
Murugesan vs State on 12 December, 2008
Author: R.Subbiah
Bench: R.Regupathi, R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/12/2008 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Crl.A(MD)No.761 of 2001 1.Murugesan 2.Lakshmanan 3.Arivazhagan @ Nagarajan 4.Maniraj 5.Ganesan 6.Subbiah 7.Senthil @ Senthil Kumar 8.Thangaraj (Deceased) (Mrs.T.Pakialakshmi, W/o.Late.Thangaraj was permitted to continue the criminal appeal No.761/01 on behalf of the appellant No.8 by order of this Court dated 27.07.2007 made in M.P.No.1/07. ... Appellants Vs. State, represented by The Inspector of Police, Maniachi Police Station, Tuticorin District. (Cr.No.3/1997) ... Respondent Prayer Appeal filed under Section 374 of Cr.P.C., against the conviction and sentence imposed upon them by the learned Additional Sessions Judge Cum Chief Judicial Magistrate, Tuticorin in S.C.No.137 of 1998, dated 31.07.2001. !For Appellants ... Mr.P.Shanmugasundaram (1,6&8) S.C. For Appellants ... Mr.V.Gopinath (2 to 5) for Mr.S.Durairaj & Mr.V.R.Shanmuganathan ^Respondent ... Mr.Senthur Pandian, Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by R.SUBBIAH, J.) There were 14 accused before the trial court, of whom the appellants herein, who were arrayed as accused 1 to 5 and 7 to 9 and the acquitted accused arrayed as accused Nos.6, 10, 11, 12,13 and 14, took their trial in S.C.No.137/98 on the file of the Additional Sessions Judge - cum - Chief Judicial Magistrate, Tuticorin, of whom, the appellants herein i.e., the accused 1 to 5 and 7 to 9 alone were found guilty for the offences punishable under Sections 148 and 302 read with 149 IPC. , and sentenced to undergo rigorous imprisonment for one year under section 148 I.P.C., and sentenced to imprisonment for life under section 302 read with section 149 I.P.C., and the rest of the accused were acquitted.
This appeal is filed by the convicted Accused, who took their trial under various offences under different charges on the allegations that on 10.1.1997 at 6.00 P.M. near the house of Krishnammal (PW.1 in this case) in Kandasamipuram within the limits of Maniachi Police Station in Tuticorin district, all the appellants and the acquitted six accused armed with deadly weapons formed themselves into an unlawful assembly with intention to murder the deceased Rajasekar (son of PW-1) and indiscriminately made murderous attack by inflicting many fatal injuries as a result of which the victim Rajasekar instantaneously died on the spot itself and during the course of occurrence P.Ws.1 and 4 to 7 also received injuries at the hand of the accused.
2.The case of the prosecution in short is that the appellants/accused and the acquitted accused are the residents of the village namely Kandasamypuram within the limits of Maniachi Police Station. The deceased Rajeswaran @ Rajasekaran, the son of P.Ws.1 and 2, the husband of P.W.4 and son-in-law of P.W.6, during the time of occurrence, was residing with his parents and he was employed in a wine shop belonging to one Kundamperumal at Ottapidaram.
3.During December, 1996 the general election for the Tamil Nadu Legislative Assembly took place, in which, Thiru Kundamperumal and one Thiru Krishnasamy contested the election opposing each other. The accused supported the candidature of Thiru Krishnasamy, whilst the deceased worked for his Master Kundamperumal. Thiru Krishnasamy ultimately became successful. On account of this, there was a deep animosity existing between the accused and the deceased. Following this animosity, there were frequent quarrels between them.
4.On 3.12.1996 there was a petty quarrel among the children. On account of this a quarrel arose between one Shunmugasundari (PW.8) and one Athilakshmi. The husband of PW.8 by name Natarajan lodged a complaint before the police in respect of this incident citing PW.1 and the deceased as witnesses to the occurrence.
5.On 09.01.1997, when P.W.4, wife of the deceased went to the Electricity Board to pay current bill, she was threatened by A-7 and Aadhilakshmi and one Subbulakshmi stating that if anybody adduced evidence against them, they would be killed. In the said quarrel, P.W.1 was kicked by A-13 and was dragged by other accused.
6.On 10.01.1997 while P.Ws.1 and 2 were in their house, all the accused came there with deadly weapons. Among them A-1 to A-4 were armed with swords, A- 5,7,8 and 9 were armed with Aruvals, A-13 armed with an iron rod, A-10 armed with a knife, A-6 armed with a stone, A-14 also armed with a stone and A-11 armed with a stick. Then all of them indulged in a quarrel with P.W.1. At that time, the deceased along with his wife P.W.4 was coming to his house along with P.W.5 (sister's son of P.W.4), after purchasing cloths for Pongal festival. On reaching the house, the deceased shouted at his mother, P.W.1 as to why she did not go to the Police Station for lodging a complaint against them. While the deceased was conversing with P.W.1, all the accused surrounded him with deadly weapons. A-11 first attacked the deceased with a stick on the back side of his head. A-12 pushed down the deceased. Immediately A-1(1st appellant) cut the deceased with the sword on his stomach; A-2 (2nd appellant) cut the deceased with aruval on his shoulder; A-3 (3rd appellant) cut the deceased with the sword on the right shoulder; A-5 cut the deceased with aruval on his chest; A-4 cut with arvual on the right side chest of the deceased; A-8 cut the deceased with Aruval on the flank; A-7 and A-9 cut the deceased with Aruval on the neck of the deceased and A-10 cut the deceased with knife on his neck. A-13 attacked P.W.1 with iron rod on her head. A-6 attacked P.W.6 with stone on the right leg. A-14 attacked P.W.2 armed with stone on his backside. A-11 attacked P.W.4 armed with the stick. A-13 attacked one Ebenezer, P.W.7, armed with an iron rod on his chest. Due to the injuries sustained, the deceased died on the spot. The accused threatened the witnesses and ran away from the scene of occurrence. P.W.1 went to Maniachi Police Station along with P.W.2 by walk since there was no bus service at that time. They reached the police station, which is 8 kms away from the scene of occurrence at about 10.00 p.m. and gave an oral complaint, which was reduced into writing by P.W.13 and the same was attested by P.W.2.
7.P.W.13 (Sub-Inspector of Police of Maniachi Police Station), on the basis of the complaint Ex.P.1 given by P.W.1 registered a case in Crime No.3/97 for the offences punishable under Sections 147, 148, 341, 323, 326 and 302 IPC. Ex.P.19 is the printed First Information Report. The said First Information Report was sent to the Judicial Magistrate, Kovilpatti through P.W.14. Since the Inspector of Police P.W.16 has gone to the High Court in connection with some other case. P.W.15, Inspector of Police of Puliyampatti Police Station was in charge of Maniachi Police Station. Therefore, P.W.13 sent a wireless message to P.W.15, who, on receipt of the message, came to Maniachi Police Station and received a copy of the F.I.R. from P.W.13 and went to the scene of occurrence accompanied by P.W.13. P.W.15 prepared an Observation Mahazar at about 12 midnight and a Rough Sketch of the scene, which are marked as Exs.P.9 and P21 respectively. Then P.W.15 on 11.1.1997 conducted inquest over the dead body of the deceased at 00.30 hours in the presence of panchayatdars and recorded the statements of P.Ws.1,2,4,5,8 and 7 and other witnesses and recovered the bloodstained earth and sample earth, bloodstained stone and sample stone M.Os. 10 to 13 under cover of a mahazar Ex.P.10. Ex.P.22 is the Inquest Report.
8.P.W.3, the Medical Officer, who on receipt of the requisition given by P.W.15, Investigating Officer, conducted autopsy on 11.01.1997 at 11.00 a.m. and issued the post mortem certificate Ex.P.3 wherein he had noted the following injuries:
"External:
"1)A cut injury in the right upper chest close to the shoulder measuring 40cm x 5cm x 3 cm exposing bones and muscles.
2)A cut injury on the back of the right shoulder extending into the scapular region measuring 20x3cmx5cm exposing the bone.
3)A curvillinear cut - right mammary region 30cm x 1cm x 3cm
4)A curvillinear injury(cut) from right hypochondrium into left lower chest - 45 cm x 3 cm x 3 cm exposing, stomach, liver and intestines.
5)Two linear cuts in the left upper chest measuring
1)10x0.5x1cm 2)5x0.5x1cm
6)A cut in the jaw exposing mandible 10x0.5x3cm
7)Two cuts in the forehead (left) measuring 3x0.5x0.5cm each
8)A cut in the occipital region measuring 20x1x3cm exposing brain.
9)A cut below No.8 measuring 10x1x3cm
10)A cut in the lower face(left) 5cmx0.5x1cm A cut in the back between scapular- 5cmx0.5x0.5cm
11)Two cuts in the right thigh measuring
1)5x1x2cm 2) 3x0.5x0.5cm
12)A cut in the upper loin (right) - 7x0.5x2cm Internal: Heart spleen, Kidneys congested.
2)Lungs: Right - congested - cut along upper lobe 10x0.5x2cm
3)A curvillinear cut in the congested liver 10x0.5x5cm
4)Parts of small and large intestines cut and torn off.
5)Stomach lacerated and cut; Bladder empty.
6)Hyoid bone, atlas, axis intact.
7)Skull
1)A cut injury in the occipital bone 20x0.5x3cm.
2)A cut below the above 10x1x3cm
8)Brain congested".
P.W.3, the Medical Officer opined that the deceased would appear to have died of shock and haemorrhage due to the injury Nos.1,2,3,4,8 and 9. According to the doctor, these injuries were likely to have been caused by the weapons like aruval and knife. According to P.W.3, the victim might have died about 12 hours prior to the post-mortem.
9.Thereafter P.W.15 noted the injuries on P.Ws.1, 2 and 4 to 6 and sent them for medical examination and treatment. P.W.3, the Medical Officer examined them on 11.1.1997 and issued the wound certificate. P.W.3 found on P.W.1 (Krishnammal) a cut injury measuring 5 cm x 0.5 cm x 0.5 cm on her head, 2 cm above the forehead. This injury, according to P.W.3 was simple in nature. He issued the wound certificate, Ex.P4.
10.Then P.W.3 examined P.W.2, who complained of pain on the neck and back. Ex.P5 is the concerned would certificate.
11.Thereafter P.W.3 examined P.W.5, who also complained of pain on her chest. There was no external injury. The Medical Officer opined that the injury was simple in nature and issued the wound certificate, Ex.P6. Then P.W.3 examined P.W.4, who complained of pain on the right hand and leg. The Medical Officer opined that the injuries were simple in nature and issued the wound certificate Ex.P7. P.W.6 was medically examined by P.W.3 and the injured complained of pain in the waist. P.W.3 opined the injury as simple in nature and issued the wound certificate, Ex.P8.
12.P.W.15, the Investigating Officer, on his return to the Police Station handed over the case for further investigation to P.W.16, Investigating Officer. P.W.16 took up the case for further investigation and proceeded to the scene of occurrence and recorded the statements of P.Ws.1,4 and one Chinnathai. On receipt of the information, on 13.01.1997, he arrested A-12 (Arumugam) at 6.00 p.m. in the presence of the Village Administrative Officer, P.W.9 and one Anthonysamy and recovered the bloodstained full-hand shirt and bloodstained Lungi M.Os.17 and 15 respectively. A-12, Arumugam gave a statement Ex.P.23 in the presence of P.W.9, which is inculpatory in nature. A12 requested the police to send him for treatment for the injuries sustained by him. On the basis of the said statement, a case was registered for the offence punishable under Section 324 IPC., in Cr.No.4/97. Ex.P.24 is the copy of the First Information Report.
13.Thereafter, P.W.16, arrested A-6 at 11.p.m. and recorded the statement, given by him in the presence of P.W.9. On 29.01.1997 P.W.16 filed an affidavit before the learned Judicial Magistrate, Kovilpatti for securing A-1 and A-3 under police custody and had them secured. On 30.01.1997 P.W.16 recorded the confession statement of A-1 and A-3 given by them in the presence of P.W.9 and the admissible portions of which are marked as Exs.P.25 and 26 respectively. Pursuant to the confessional statement, P.W.16 recovered long aruvals (3 Nos), knife and sword in the presence of P.W.9 marked as M.Os.1 to 7 under cover of Mahazars Exs.P27 and P28. Thereafter, A-1 and 3 were sent to judicial custody on 31.01.1997. On coming to know that A-5 surrendered before the Judicial Magistrate, P.W.16 filed an affidavit before the Judicial Magistrate, and secured him under police custody on 25.02.1997 and recorded the statement given by him in the presence of P.W.9. Pursuant to his confession statement, he recovered M.Os.8 and 9 under cover of a Mahazar, Ex.P.13. Thereafter, on 28.02.1997, a requisition has been given to send the recovered material objects to chemical analysis. The chemical analyst and serologist reports were subsequently received under Exs.P.16 and 17. On 08.03.1997, P.W.16 recorded the statement of P.W.3, the medical Officer who gave treatment to the injured witnesses P.Ws.1,2,4,5 and 6 and issued Wound Certificates Exs.P4 to P8. P.W.16 referred the case in Cr.No.4/97 registered on the basis of the statement of A12 as mistake of law holding that the accused sustained the injury during the occurrence. P.W.16 thereafter was transferred. Thereafter there was no Inspector of Police in charge of that sub-division. Therefore, on 9.5.1997 P.W.13 under the oral direction of the Superintendent of Police and on the basis of the draft charge-sheet prepared by the learned Public Prosecutor filed the final report for the offences punishable under Section 147, 148, 341, 323, 324 and 302 read with section 149 I.P.C.
14.Since the offence is triable by the learned Sessions Judge, the same was committed to the Court of Session. The trial Court totally framed eight charges on the basis of the materials placed before it as against accused Nos.A- 1 to A-5, A-7 to A-9 and also the other acquitted accused 6, A10 to A14) as follows:
As per the first charge: As against A1 to A5 and A7 to A10 and A13 for the offence under section 148 I.P.C. and as against A6, A11, A12 and A14 for the offences under section 147 I.P.C.
As per the second charge: As against A1 to A5, A7 to A10 for the offence punishable under section 302 read with section 149 I.P.C. As per the third charge: As against A1, A11 to A14 for the offence under section 302 read with section 149 I.P.C. As per the fourth charge: As against A6 for the offence under section 323 I.P.C.
As per the fifth charge: As against A11 for the offence under section 323 I.P.C As per the sixth charge: As against A14 for the offence under section 323 I.P.C.
As per the seventh charge: As against A13 for the offence under section 324 I.P.C.
As per the eighth charge: As against A13 for the offence under section 324 I.P.C.
15.The learned trial Judge on the basis of the oral and documentary evidence produced by the prosecution questioned the appellants/accused under Section 313 Cr.P.C. The appellants denied the complicity of the offence and pleaded innocence. Even though some of the accused said that they have got witnesses to examine on their side they did not examine any witness.
16.To substantiate the above charges the prosecution has examined P.Ws.1 to 16 marked exhibits Exs.P-1 to P-28 and marked M.Os.1 to 18. It may be noted that all the accused i.e., both convicted and acquitted as well as P.Ws.1, 2, 4, 5, 6 and 8 belong to Kandasamipuram. Though the prosecution examined P.Ws.1, 2, 3,and 4 to 8 as eye witnesses only P.Ws.1, 2 and 4, who are the injured witnesses, supported the case of the prosecution. P.Ws.5 to 8 have turned hostile to the prosecution despite the fact that P.Ws.5 and 6 were also injured as fortified by the wound certificates Exs.P6 and P8. As it is repeatedly mentioned above, P.Ws.1 and 2 are the mother and father of the deceased and P.W.4 is the wife of the deceased. Among the witness, who are treated as hostile, P.W.5 is the elder sister's son of P.W.4 and P.W.6 is the mother of P.W.4 and the mother-in-law of the deceased. Among the accused A4 is the son of A9. A7 and A9 are brothers. A8 is the son of A7. A12 is the father of A13 and husband of A14.
17.A careful analysis of the evidence of the eye witnesses P.Ws.1, 2 and 4 coupled with the other circumstantial evidence establish the present prosecution case and bring about all the key ingredients for proving the offences for which the appellants stand convicted. The presence of these eye witnesses cannot be brushed aside because all of them are the injured witnesses as seen from Exs.P4, P5 and P7. It is not disputed that the occurrence did not take place in some other place beyond the visibility of the inmates of the house of P.W.1. Further the occurrence is said to have taken place at 6-30 P.M. on 10.1.1997, though there is marginal variation of time in the evidence of some of the witnesses deposing that the occurrence took place at 7 P.M. Admittedly there was a shop near the occurrence which was provided with lights. In fact, P.W.4 has stated that at the time of occurrence street light was burning and that she was able to observe the accused Arumugham and one Ganesan sustaining the injuries during the occurrence being participated by a number of persons. Apart from that, P.W.10, who was a wireman in the Electricity Board, has deposed that there was no shutting down of energy in that village. Therefore, there was ample evidence to show that there was sufficient visibility to witness the occurrence. More over, all the accused are not strangers to the witnesses. In the circumstances, the evidence given by P.Ws.1, 2 and 4 with regard to the material part of the evidence relating to the attack perpetrated by the appellants/accused are umimpeachable.
18.Immediately after the occurrence P.Ws.1 and 2 after covering a long distance of 8 km. by walk has given the complaint by about 10.15 P.M. itself. All the three witnesses speak about the motive part of the case in one voice and the existence of the enmity between the deceased and the accused particularly from the date of the general election.
19.The learned trial Judge on the basis of the oral and documentary evidence coupled with the compelling circumstances and after hearing the submissions made on either side, convicted the appellants herein (A1 to A5 and A7 to A9), finding them guilty of the offence punishable under Section 148 IPC and sentenced each one of them to undergo Rigorous Imprisonment for one year and also finding all the appellants guilty under Section 302 read with 149 IPC and sentenced each of them to undergo imprisonment for life and to pay a sum of Rs.1000/- in default to undergo simple imprisonment for three months. For the reasons mentioned in the judgment the learned Judge of the trial court found A- 6, A-10 to A14 not guilty and acquitted them of all the charges. The Court has also given a direction that the substantive sentences are to run concurrently. Aggrieved against the order of conviction and sentence passed by the Trial Court, the appellants herein have preferred the present appeal before this Court. It is informed to this Court that during the pendency of appeal, A-9 (8th Appellant) had died and consequently the appeal of the 8th appellant is abated.
20.The learned counsel for the appellants intensively contended that the origin and genesis of the case is totally suppressed by the prosecution and instead the prosecution has presented a new case before this Court with false evidence and fabricated documents. According to him, though A5 and A-12 have sustained injuries and their wound certificates of have not been produced before the Court. Similarly the Investigating Officer, P.W.16 had not taken any effort to investigate the case in Cr.No.4/97 registering the complaint of A12 but has simply disposed of the case recording that it was a 'mistake of law and fact'. According to the learned defence counsel, these facts create a grave doubt about the manner of occurrence as put forth by the prosecution. The learned defence counsel further submits that in Ex.P1 the name of A2 is mentioned as Thangaraj son of Lakshmanan but in the printed first information report in col. No.7 the name of A2 is mentioned as Lakshmana Perumal son of Krishnan. This vital contradiction even with regard to the name of A2 has not been properly explained. The learned counsel has also very emphatically submitted that the prosecution has not explained as to how and why there was a long and unexplained delay in handing over the first information report to the Judicial Magistrate of Kovilpatti at 5-30 P.M. on 10.1.1997. This inordinate delay gives a death blow to the case of the prosecution because even before 5-30 P.M. the investigation had gone a long way. Thereafter the counsel has pointed out some contradictions, which in our view, are very insignificant. Then he points out that P.W.3, the Medical Officer, who has admitted that he wrote in Ex.P3 the post-mortem report that the deceased had sustained two stab injuries and he thereafter corrected those injuries describing them as cut injuries. According to the counsel, these corrections made in two places in Ex.P3 indicate that there is some manipulation of records. The learned counsel concluded his submission that the cumulative effect of the contradictions and infirmities found in the prosecution undoubtedly goes to show that the entire prosecution case is a concocted story suppressing the real facts before the trial court and therefore, in all probabilities the accused are entitled to be given the benefit of doubt.
21.Per contra, learned Additional Public Prosecutor submits that in Ex.P.1, the complaint preferred by P.W.1 the names of all the accused are clearly and unmistakably mentioned. Similarly, the weapons used by each of the accused and the overtacts attributed to them have also been clearly mentioned in Ex.P.1 and the evidence of P.W.2 and 4 strongly corroborates the evidence of P.W.1. According to him, the evidence adduced by P.Ws.1, 2 and 4 is cogent and convincing. In fact no favourable point was brought in the cross examination of these three witnesses either with regard to the weapons used by the accused or with the overtacts attributed to them. Similarly, P.W.15 in his cross examination had denied the suggestion put forth by the accused that he had suppressed the earlier complaint lodged by A-12 and foisted a false case against the accused. Then it was submitted by the learned Additional Public Prosecutor that the evidence of P.W.16 and the documents Exs.P.23 and 24 collectively go to show that there is neither a suppression of the origin or genesis of the case by the prosecution nor any suppression of the injury sustained by the accused. Though the name of the father of the accused No.2 was mentioned as Thangaraj in Ex.P.1, the First Information Report, it is correctly mentioned as son of Krishnan in the later part of Ex.P1. In fact, no cross examination was done on behalf of the accused relating to this fact to P.W.13 who had registered the First Information Report. Under such circumstances, the present contention of the learned counsel for the appellants that the First Information Report would have been fabricated is nothing but a surmise. Now coming to the argument advanced by the learned defence counsel relating to the inordinate delay in handing over the F.I.R to the Magistrate, the learned Additional Public Prosecutor submits that there was no bus service on that day on account of this incident and that was the reason as to why such a delay had occurred. Therefore, it cannot be said by any stretch of imagination that the prosecution has come forward with a false case. With regard to the correction said to have been made by P.W.3 mentioning as cut injuries though it was originally said to have been recorded as stab injuries. The explanation given by P.W.3 for mentioning the entries as cut injuries by correcting the entry as stab injuries cannot be considered to be of vital contradiction in this case because in a case like this, when number of accused jointly attacked the deceased with aruval, sword and other weapons the nature of the injuries would depend upon the manner of attack because if tip of the aruval or sword had been used, the injuries would look like stab injuries. Therefore, no doubt can be raised about the veracity of the post-mortem certificate, which unquestionable document prepared by an uninterested witness viz., P.W.3 cannot be doubted on this point and ultimately he states that the prosecution has proved the case beyond all reasonable doubt and therefore, the conviction and sentence passed by the trial court has to be sustained and the appeal dismissed.
22.We have perused the materials available on record and carefully considered the submissions made on both sides.
23.The occurrence had taken place in the presence of P.Ws.1,2, 4,5 and 6 who are all the father and mother, wife sister's son of deceased's wife and mother-in-law respectively of the deceased. The evidence of P.Ws.1,2 and 4 strongly corroborates with each other and their evidence has not been shattered in the cross examination conducted by the defence. Of course, P.Ws.5 and 6 have not supported the prosecution case and hence were treated as hostile witnesses to the prosecution. As stated supra, the very presence of P.Ws.1, 2 and 4 during the occurrence is strongly supported by the injuries sustained by them. These injured eye witnesses speak about the motive for the occurrence projecting the election dispute as one of the motives for the murder. It is mentioned in Ex.P1 that there was a quarrel among the children between P.W.8 and one Adhilakshmi, which ultimately ended in lodging a criminal complaint in which P.W.1 and the deceased were cited as witnesses and that the accused party threatened the witnesses not to depose in that criminal case and if they did so, the witnesses would be murdered. This is the immediate motive for the commission of this offence. In fact this part of motive is not totally denied by the defence. Now we shall examine the contentions raised by the defence counsel one by one. According to the learned counsel, in Ex.P1 the 2nd accused's name is mentioned as Lakshmanan son of Thangaraj. But, under col.7 of Ex.P9 i.e.., the printed first information report, the name of A2 is mentioned as Lakshmana Perumal son of Krishnan. Therefore, the contention of the learned counsel that there is no explanation for this contradiction and that A2 is entitled to the benefit of doubt cannot be accepted. A careful examination of the document Ex.P1 shows that in the latter part of Ex.P1 it is unquestionably stated that Lakshmanan referring to A2 cut the deceased with a sword (long aruval). It may be noted that in the printed FIR under col.No.7 requiring to state 'the details of known accused with full particulars' the name of A2 is clearly stated as Lakshmanan son of Krishnan of Kandasamipuram. In the charge-sheet also A2's name is mentioned as Lakshmanan alias Lakshmana Perumal son of Krishnan alias Namakarar. In the judgment of the trial court A2's name is shown as Lakshmanan alias Lakshmana Perumal. A2's name is also shown as Lakshmanan alias Lakshmana Perumal son of Krishnan on the preface of the question put under section 313 Cr.P.C. A2 also has signed his name as Lakshmana Perumal. Therefore, this insignificant mistake which has crept in Ex.P1 while recording A2's father as Thangaraj does not in any way adversely affect the case of the prosecution. Further it is not the case of the defence that Lakshmana Perumal was not one of the accused among the other accused. Probably the name Thangaraj referable to A9 might have been wrongly mentioned as A2's father's name. In that circumstances, that too after witnessing the brutal attack on her son, the deceased herein, P.W.1 might have been in a highly perturbed condition. Therefore, we reject this contention as most trivial and inconsequential. The second contention raised by the defence is that P.W.16 had not taken any effort to investigate the case registered as Cr.No.4/97 on the complaint of A12, but merely referred the case as 'mistake of law and fact' and that he had failed to produce the wound certificate of A5 and
12. It is not the evidence of P.W.16 that he found any injury on the person of A5, but only P.W.4 has deposed that A5 and A12 sustained injuries during the course of the occurrence. It may be noted that A5 when questioned under section 313 Cr.P.C., to the question No.31 under which he was asked to say whatever intended to say about this case, has not whispered anything regarding his sustaining any injury or getting any medical treatment for it, but simply replied that 'it is a false case'. In such a situation the submission made by the defence counsel is not based on any material but only from his imagination and surmise on the basis of the evidence given by P.W.4.
24.The next attack in this connection made by the defence counsel is that the wound certificate of A12 has not been produced before the Court despite P.W.16 has admitted that he sent A12 for medical examination and obtained the wound certificate. The defence has not taken any effort to summon the wound certificate of A12 and mark it on its side, had that certificate been of any vital evidence. Further the defence has not constructed any defence theory or even suggested its defence on that basis. It is pertinent to note that A12 in his statement made under section 313 Cr.P.C., has not whispered anything about his sustaining any injury or about the medical treatment. In fact, to all the questions addressed to him during the 313 statement including his arrest, A12 except saying that 'it is false', no other answer was given by him about his injuries. He also stated to question No.32 in the 313 statement that there was no witness on his side. However, he has filed a written statement before the trial court denying his complicity in the occurrence and adding that he, on 10.1.1997 at 6 or 6-30 P.M. received a cut injury and he came to the police station where he was detained for three days without recording and registering any case in spite of his request to do so and that he was not sent to any hospital for medical examination. In such a situation the scathing attacking made by the defence counsel against the prosecution case does not merit any consideration. The other part of the attack by the defence is, that P.W.16, though admittedly recorded a complaint from A12 and registered the same as a case in Cr.No.4/97, which is marked as Ex.P23, has not taken any effort to investigate the case. No doubt Ex.P23 is totally inculpatory thereby incriminating the complainant (A12) with the offence. It may be noted that the statement Ex.P23 was recorded by P.W.16 after he arrested A12 and while the A12 was in his custody. In other words, the statement Ex.P23 was recorded in the course of the investigation while A12 was in police custody. So, we hold that this statement, Ex.P23, the text of which amounts to an incriminating confessional statement cannot be brought on record by the prosecution as it is prohibited by section 25 of the Evidence Act. Further, under section 26 of the Evidence Act any statement, which partakes the character of a confession if made by the accused while in custody of a police officer, cannot be proved as against the maker of the statement except that portion of information, which leads to discover any fact under section 27 of the Evidence Act. Therefore, Ex.P23 is now eschewed from consideration. Hence the argument advanced by the defence counsel regarding the non-investigation of the case in Cr.No.4/97 has no force and is liable to be thrown out.
25.Now we shall examine the submission of the defence counsel regarding the inordinate delay in handing over the first information report to the Judicial Magistrate at Kovilpatti at 5-30 P.M. on the next day of the occurrence i.e., on 11.1.1997, which delay, according to the defence counsel, is fatal to the prosecution. Learned counsel in continuation of his argument has vehemently submitted that it must be taken that Ex.P19, the printed first information report relating to Cr.No.3/97 should have been prepared much later to the part of the investigation but not on the night of 10.1.1997 at 10-15 P.M. as spoken to by P.Ws.1 and 2 and the Inspector of Police, P.W.13. This inordinate delay, is not properly explained and it cuts the very root of the prosecution case.
26.As has been stated supra, while narrating the facts of the case, it is the evidence of P.Ws.1 and 2 that on the night of 10.1.1997 at about 10.15 P.M. they, after the occurrence was over, went to the police station and P.W.1 gave an oral complaint which was registered as a case. Supporting this evidence of P.Ws.1 and 2 P.W.13 states that he, on receipt of the complaint, registered it as Cr.No.3/97 and prepared the first information report, Ex.P19 and despatched the express report through P.W.14 to the Judicial magistrate, Kovilpatti and the copies of the same to the other officials. P.W.14, by way of explanation to the delay, has deposed in his evidence that he received Ex.P19 at about 10-30 P.M. and as there was no transport up to 9 A.M. of the next day to go to Kovilpatti and as he could not get any bus, he, by getting into a lorry, came to Kurukku Salai and afterwards he reached the Court of the Magistrate, Kovilpatti, which is at a distance of 40 km from Kurukku Salai and at 5-30 P.M. he handed over the report to the Magistrate. Now the question that arises for consideration is whether there is any unexplained delay in handing over the report by P.W.14 to the Magistrate raising any doubt in the preparation of Ex.P1. P.W.14 has sworn in his evidence that he, on receipt of the wireless message, by 10-20 P.M. on 10.1.1997 came to Maniachi and received a copy in Cr.No.3/97 registered under various sections inclusive of Sec.302 IPC., and took up the investigation and prepared an observation mahazar Ex.P9 on the same day at midgnight and conducted the inquest on the dead body at the scene of occurrence at 00.30 A.M. on 11.1.1997. P.W.3, the Medical Officer, has deposed that, he on receipt of Ex.P2, conducted the post-mortem on the dead body of the deceased at 11 A.M. It is pertinent to note that even in Ex.P2, which was prepared before the inquest, it is mentioned under the heading 'subject' reading 'Maniachi Police Station Cr.No.3/97 under various sections inclusive of section 302 IPC., the dead body of the deceased shall be examined by post-mortem'. This copy has been sent to the Judicial Magistrate, Kovilpatti also. Therefore, even much earlier, the registration of the case has been mentioned in many documents viz., Ex.P2, and Ex.P3, the post-mortem certificate, which were registered much earlier before P.W.14 handed over the FIR to the Magistrate at Kovilpatti. Therefore, this delay in handing over the FIR to the Magistrate cannot be said to have been prepared much later is unacceptable and this delay caused by P.W.14 cannot stand in the way of the veracity of the prosecution case and hence the submission made by the defence counsel that the delay is fatal to the prosecution does not assume much importance in the present case having regard to the documentary evidence viz., Exs.P2, P3 and P9. which is supported by the evidence of the officials inclusive of the doctor, P.W.3. The other submission with regard to the contradiction of the description of the injury in the post-mortem certificate, Ex.P3 has been explained by us in the earlier part of the judgment. The other theory about the occurrence projected by the defence that the murder was committed by some youths is nothing but only a concocted defence unworthy of acceptance.
27.Though certain infirmities have been pointed out by the defence, they are all very minor in nature and inconsequential. So no importance can be attached to the other submission relating to certain discrepancies, which would normally occur in every case, in such circumstances as in this case.
28.In fine, we find that it is the case of a brutal murder, in which the deceased was attacked by the appellants along with other accused in the presence of the father, mother, wife of the deceased, who were not strong enough to prevent the attack of the accused armed with deadly weapons. We are of the opinion that the prosecution case does not suffer from any infirmities. Under such circumstances, we do not find any justification to interfere with the judgment of the trial court. It may also be stated that the State has not preferred any appeal against the acquittal of the accused Nos.A6, A10 to A14. As we have stated already, the conviction of the 8th appellant, who is reported to have died pending the appeal, his conviction has abated. The conviction and sentence passed by the learned Sessions Judge, barring the 8th appellant, are confirmed. Resultantly, the conviction under Section 148 IPC., and the sentence of RI for one year imposed therefor and the conviction under sec.302 read with section 149 IPC., against all the other accused and the sentence of imprisonment for life passed against each of the accused are confirmed and the direction given by the court below that the sentence shall run concurrently is also confirmed.. The fine amount of Rs.1,000/- imposed by the trial court with the default clause is retained.
29.In the result, the appeal is dismissed. The period, if any, already undergone shall be given set off. It is reported that the accused are on bail. The Sessions Judge concerned is directed to take steps to secure the presence of the accused and commit them to prison to undergo the remaining period of sentence.
sms To:
The Inspector of Police, Maniachi Police Station, Tuticorin District.