Madras High Court
Manoharan, Malar And Bagavathi vs State Rep. By The Inspector Of Police on 13 February, 2007
Author: M. Chockalingam
Bench: M. Chockalingam, G. Rajasuria
JUDGMENT M. Chockalingam, J.
1. The appellants, three in number, have brought forth this criminal appeal, challenging the judgment of the learned Additional District Sessions Judge, Fast Track Court-1, Thanjavur made in S.C. No. 115 of 2002, whereby the first accused stood charged and tried under Sections 449, 302 and 307 IPC, while the second and third accused stood charged and tried under Sections 302 r/w Section 109 and 307 r/w 114 IPC and A-1 was found guilty under Sections 449, 302 and 324 IPC and he was sentenced to undergo 5 years RI under Section 449 IPC, 3 years RI under Section 324 IPC and life imprisonment for the offence under Section 302 IPC and the second and third accused were found guilty under Section 302 r/w Section 109 IPC and they were sentenced to undergo life imprisonment and they were acquitted of the charge under Section 307 r/w Section 114 IPC.
2. The short facts necessary for the disposal of this appeal can be stated thus:
a) P.W.1 is the wife of the deceased Paulraj. They were living in Olaithevarayan Pettai. ON 19.01.2002, P.W.1 went over to the house of one Renuka, wife of Muruganandam, for getting back her radio. When she asked about the radio, she was attacked by the said Renuka and Muruganandam. In this regard, P.W.1 went to Thiruvaiyaru Police station and gave a complaint. Then, P.W.1 went to his sister's house at Mayiladuthurai and she returned from there to her village on 29.01.2002 and her husband was also available at that time in the house.
b) At about 8.30 p.m. on the date of occurrence, namely on 29.01.2002, A-1 to A-3 came over there and criminally trespassed into the house and dragged Paulraj outside of the house. A-1 stabbed the said Paulraj with knife on his chest and the offence was abetted by A-2 and A-3. On hearing the distressing cry, the accused fled away from the place of occurrence.
c) P.W.1 went to Thiruvaiyaru Police Station and gave the complaint, Ex.P.1, in this regard. On the strength of Ex.P.1, P.W.17, the Sub Inspector of Police, registered a case at about 10.00 p.m. in Crime No. 25 of 2002 under Sections 450, 341, 109, 307 and 302 IPC. Express FIR, Ex.P.15, along with Ex.P.1 complaint was despatched to the Court.
d) P.W.21, the Inspector of Police took up the investigation on receipt of the copy of the FIR. He proceeded to the scene of occurrence and made an inspection in the presence of the witnesses and prepared Ex.P.2, the observation mahazar and Ex.P.19, the rough sketch. Following the same, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.20, the inquest report. The dead body of the deceased was sent to Thanjavur Medical College Hospital for the purpose of autopsy.
e) P.W.20, the Doctor attached to Thanjavur Medical College Hospital, has conducted autopsy on the dead body of the deceased and found the injuries. She has issued Ex.P.18, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.
f) Pending investigation, the Investigating Officer has arrested A-1 on 1.2.2002. A-1 made a confessional statement in the presence of the witnesses and the admissible part of which was marked as Ex.P.7. Pursuant to the confessional statement, he produced M.O.1, knife, which was recovered in the presence of the witnesses under a cover of mahazar. A-2 and A-3 were also arrested. All the accused were sent for judicial remand. In respect of the injuries sustained by A-1, he was medically examined by P.W.19, the Doctor and he has issued Ex.P.17, Accident Register. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and also the M.Os recovered from the accused, were all subjected to chemical analysis by the Forensic Department, on requisition made by the Investigation Officer through the concerned court. Ex.P.11 and Ex.P.12, the Chemical Analyst's reports and Ex.P.13, the Serologist's report were received. On completion of the investigation, final report was filed by the Investigating Officer.
3. The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 21 witnesses and relied on 20 exhibits and 8 M.Os. 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, which they flatly denied as false. No defence witness was examined. After hearing the arguments advanced on either side, the trial court found A-1 guilty under Sections 449, 302 and 324 IPC, while A-2 and A-3 were found guilty under Section 302 r/w Section 109 IPC and A-2 and A-3 were acquitted of the charge under Section 307 r/w Section 114 IPC and all the accused were sentenced to undergo imprisonment as referred to above. Hence, this criminal appeal has been brought forth.
4. Advancing his arguments on behalf of the appellants, the learned Counsel would submit that in the instant case, the prosecution rested its case on the evidence of P.Ws.1 to 3; that insofar as P.W.2 was concerned, he has turned hostile and hence, his evidence was not available for the prosecution; that insofar as P.W.3 was concerned, her husband was examined as P.W.6; that according to him, at the time of occurrence, his wife was serving him food and hence, P.W.3 could not have seen the occurrence at all and hence, the evidence of P.W.3 was to be eschewed; and that insofar as P.W.1 was concerned, from the evidence of P.W.2 at the time of cross examination, though he turned hostile, it would be quite clear that she went to her sister's house at Mayiladuthurai and returned subsequently and hence, she could not have seen the occurrence at all.
5. Added further the learned Counsel that in the instant case, there is no evidence insofar as A-2 and A-3 were concerned; that both of them, even as per the case of prosecution, did not make entry or trespass into the house of the deceased and hence, it was A-1, who dragged the deceased outside and thus, A-2 and A-3 were falsely implicated in the case; that insofar as A-1 was concerned, the medical evidence was not in support of the prosecution; that the eyewitnesses did not properly account for the injuries sustained by the deceased; that according to them, the first accused stabbed the deceased only once, but as per the post-mortem Doctor, she has noted six injuries on the dead body and thus, they did not tally and hence, it could be well stated that the eyewitnesses could not have seen the occurrence at all and their evidence has got to be rejected.
6. Added further the learned Counsel that the evidence as to the alleged confessional statement of A-1 and the recovery of M.O.1 knife were all introduced in order to strengthen the case of prosecution, if possible, but in vain and that the evidence in that regard is worthless and should not be believed by the Court and hence, the prosecution did not prove the case beyond reasonable doubt, but the lower court has, erroneously, taken a view that the prosecution has proved the case and hence, it has got to be set aside.
7. Heard the learned Additional Public Prosecutor on the above contentions.
8. The Court has paid its anxious consideration on the submissions made.
9. The case of the prosecution was that one Paulraj, the husband of P.W.1, was done to death at about 8.30 p.m. on the date of occurrence in front of his house. It is not the fact in controversy that Paulraj died out of homicidal violence. The said fact was never questioned by the accused at any point of time. In order to substantiate the said fact, the prosecution has examined P.W.20, the post-mortem Doctor and she has issued Ex.P.18, the post-mortem certificate to that effect. Hence, it could be recorded so.
10. In order to prove the act of the accused, the prosecution examined three eyewitnesses, namely P.Ws.1 to 3. P.W.2 has turned hostile and thus, his evidence was not available for the prosecution, as rightly contended by the learned Counsel for the appellants. Insofar as P.W.3 is concerned, the evidence of her husband, P.W.6 would clearly indicate that P.W.3 could not have been present at the time of occurrence and thus, P.W.3's evidence was also not available for the prosecution. But, the prosecution, to its benefit, had the evidence of P.W.1. P.W.1 has narrated the entire case. It is needless to say, in a case like this, the Court has to look into the evidence available and apart from that, if the evidence available before the court has inspired the confidence of the Court, the court can rest the conviction. In the instant case, P.W.1 went over to the house of Renuka for getting back the radio and she was attacked and that she preferred a complaint. That was the main reason for A-1 to go to the house of the deceased and attacked him. P.W.1 has clearly narrated the entire incident and thus, the Court is of the considered opinion that her evidence would be suffice for the prosecution pointing to the guilt of A-1. In the instant case, the prosecution had to its benefit the medical opinion, which has corroborated the prosecution case. Apart from that, the evidence as to the recovery of M.O.1, knife pursuant to the confessional statement given by A-1, remains acceptable. Hence, the prosecution was able to prove the act of A-1.
11. At the time of occurrence, according to the witnesses, it was A-1, who entered into the house and dragged the deceased outside and stabbed him and caused his death. This was spoken to by P.W.1 and it was also corroborated by the other evidence, as referred to above. Apart from that, it is to be pointed out that A-1 went to the house of the deceased at about 8.30 p.m. and entered into the house and dragged him outside when he was unarmed and stabbed him to death and hence, it has got to be inferred that A-1 has got an intention to cause his death and thus, the act of A-1 would attract the penal provisions of murder.
12. Insofar as A-3 was concerned, it is brought to the notice of the Court that pending appeal, she died and hence, the appeal becomes abated. Insofar as A-2 was concerned, the Court has to record an order of acquittal. In the instant case, there is nothing to infer that A-2 and A-3 abetted the offence. It is true, A-2 and A-3 proceeded with A-1 to question the conduct of P.W.1 in giving police report against Renuka, but at the same time, it cannot be inferred that they had knowledge of any intention of A-1 to stab or kill the deceased or the criminal act in the house of P.Ws. Apart from that, in the instant case, there is no evidence to show that A-2 and A-3 made any entry into the house of P.W.1. Even as per the evidence, it was A-1, who made criminal trespass into the house and dragged the deceased Paulraj outside and stabbed him. Under these circumstances, insofar as A-2 and A-3 were concerned, this Court is unable to find sufficiency of evidence to hold that they are also guilty of the offence, as stated above. Hence, A-2 and A-3 are entitled for outright acquittal. Insofar as A-1 was concerned, his act as to the criminal trespass and committing murder has been proved. Insofar as the evidence as to the attack on P.W.2 was concerned, though P.W.2 has turned hostile, in the chief examination, he has categorically stated that after the attack made on him by A-1, he became unconscious and fell down. Hence, the conviction and sentence imposed on A-1 have got to be sustained.
13. Accordingly, the conviction and sentence imposed on A-1 are sustained. Insofar as A-2 is concerned, the conviction and sentence imposed on her are set aside and A-2 is acquitted of the charges levelled against her. The bail bond, if any executed by A-2, shall stand terminated. The criminal appeal becomes abated in respect of A-3.
14. In the result, the appeal is dismissed in respect of A-1 and the appeal is allowed in respect of A-2. The criminal appeal becomes abated in respect of A-3.