Madras High Court
P.Rajendran vs The State Of Tamilnadu on 20 February, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL (MD)NO.473 OF 2007 1.P.Rajendran 2.G.Kumar 3.Chitharthan 4.A.Ganesan .. Appellants Vs. The State of Tamilnadu, rep. by the Inspector of Police, Thiruvidaimarudur Police Station, Thanjavur District. .. Respondent This criminal appeal is preferred under Section 374 r/w Section 382 Cr.P.C. against the judgment of the Additional Sessions Court, Fast Track Court No.1, Thanjavur made in S.C.No.102 of 2004, dated 27.8.2007. !For Appellants ... Mr.D.Ramesh for M/s.Raj & Pathy ^For Respondent ... Mr.C.Daniel Manoharan, APP :JUDGMENT
(The judgment of the court was delivered by M.CHOCKALINGAM, J.) A challenge is made to the judgment of the Additional Sessions Division, Fast Track Court No.1, Thanjavur made in S.C.No.102 of 2004, whereby these appellants, four in number, ranked as A-1, A-2, A-4 and A-6 along with three others, stood charged as follows:
A-5 - S.147 IPC A-1 to A-4, A-6 and A-7 - S.148 IPC A-1 and A-6 - S.302 IPC A-2 to A-5, A-7- S.302 r/w S.149 IPC On trial, A-1, A-2, A-4 and A-6 were found guilty under Section 302 IPC and they were sentenced to undergo life imprisonment and to pay a fine of Rs.1000/-, in default to undergo one month R.I. The appellants herein were acquitted of the other charges and the other three accused were acquitted in respect of all the charges levelled against them. Hence, this appeal is at the instance of the appellants herein.
2.The short facts necessary for the disposal of this appeal could be stated thus:
a)P.Ws.1 to 5, 7, 11 and 12 belonged to Vannakudi. P.W.1 is the father of the deceased. All the accused belonged to the same place. Originally, the first accused was the village Nattamai along with some others. Regarding rendition of accounts as to the festive occasion in the Temple, there was a quarrel among the groups. Then, the villagers took a decision to remove A-1 and others from Nattamai. They elected P.Ws.3 and 4 and others as Nattamai. A-1 and others were aggrieved over the same. The Nattamais, who were newly elected, have decided to conduct festival, as usual. It was scheduled to take place from 6.5.2003 to 25.5.2003 and the same was opposed to by the first accused and his group.
Despite objection, the festival was commenced on 6.5.2003 as scheduled. On 21.5.2003, when the Car was in procession, it came near the house of A-7, which is situated near the house of P.W.1. A-7 desired that the Car should be taken to the side of his house, but it could not be done, since the house of A-7 is situated in a lane. There arose a quarrel among the parties.
b)Following the same, on 25.5.2003 at about 2.00 p.m., the Sapparam was taken in procession and when it came near the house of P.W.1, again A-7 and the other accused demanded that it must be taken near the house of A-7, which could not be done. At that time, A-1, who was present there, instigated others to attack the deceased. It was A-1 who stabbed the son of P.W.1, by name Mahesh, on his left Flank. Following the same, A-2 stabbed him on his chest. A-3 stabbed the said Mahesh on his left knee. A-5 kicked him by his leg. A-4, A-6 and A-7 stabbed the deceased on his back. The deceased fell down. the occurrence was witnessed by P.Ws.1,4 and one Ramesh and also by one Senthil, who was examined as P.W.2. When distressing cry was raised and a crowd was gathered, all the accused fled away from the place of occurrence.
c)Seriously injured Mahesh was taken to Thiruvidaimarudhur Government Hospital and he was examined by the Doctor, who declared him dead. An intimation was given to Thiruvidaimarudhur Police Station from the hospital. P.W.15, the Sub Inspector of Police, on receipt of the intimation, proceeded to the Hospital and recorded the statement of P.W.1, which was marked as Ex.P.1. He returned to the police station at about 4.30 p.m. and on the strength of Ex.P.1, he registered a case in Crime No.151/2003 under Sections 147,148,341 and 302 IPC. Ex.P.12, the FIR was despatched to the court.
d)On receipt of the copy of the FIR, P.W.17, the Inspector of Police, proceeded to the Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.13, the inquest report. Pursuant to the requisition made for conducting post-mortem, P.W.8, the Doctor attached to the Thiruvidaimarudhur Government Hospital, has conducted post-mortem on the dead body of the deceased. He has noted the external injuries found on the dead body of the deceased in Ex.P.4, the post- mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage and due to the injuries found on the vital organs 20 to 24 hours prior to post-mortem.
e)Following the same, the Investigator proceeded to the scene of occurrence, made an inspection in the presence of the witnesses and he prepared Ex.P.2, the observation mahazar and Ex.P.14, the rough sketch. He recovered the material objects from the place of occurrence under a cover of occurrence. Pending investigation, he arrested A-2, A-4, A-6 and A-7 on 28.5.2003 in the presence of the witnesses. A-2 voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.10. Following the same, he produced five weapons of crime, namely M.Os.6,7,8,9 and 10 and also M.Os.11 and 12, which were recovered under a cover of mahazar. The accused were sent for judicial remand. The Investigator also arrested the accused Kannan on 31.5.2003. A-1 and A-5 surrendered before the concerned Court. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused No.2 were sent for chemical analysis by the Forensic Science Department, which resulted in Exs.P.6 and 7, Chemical Analyst's reports. Further investigation was done by P.W.16, the Inspector of Police. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and relied on 14 exhibits and 12 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. The trial court, on hearing the submissions made and also looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt insofar as A-1, A-2, A-4 and A-6 in respect of the charge under Section 302 IPC and has acquitted them in respect of the other charges and the trial court has also acquitted all the other accused in respect of all the charges levelled against them. Hence, this appeal has arisen at the instance of the appellants herein.
4.Advancing arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case; that Ex.P.1, the statement, was alleged to have been given by P.W.1, the father of the deceased; that even as per Ex.P.1, two witnesses along with P.Ws.1 and 4 have witnessed the occurrence; that they were one Ramesh and one Senthil; that the said Senthil was examined as P.W.2, who has turned hostile; that the said Ramesh was not examined, though claimed to be an eyewitness; that the only two witnesses available before the court were P.Ws.1 and 4; that P.Ws.1 and 4 could not have been the eyewitnesses at all for more reasons than one; that so far as P.W.1 was concerned, according to him, at the time of occurrence, he witnessed the entire incident; that even as per his evidence, number of persons have attacked his own son; that neither he intervened nor went nearby nor went to the hospital along with the deceased; that according to him, he went to the hospital later; that it is highly unnatural; that further so far as P.W.1 was concerned, he could not have seen the occurrence at all; that according to the prosecution, as could be seen from the rough sketch, the occurrence has taken place in the main road, but according to P.W.1, the occurrence has taken place near his house; that if the rough sketch is looked into, the place of occurrence is not the place of occurrence, as spoken to by P.W.1 and hence he could not have seen the occurrence at all.
5.Added further the learned counsel that so far as P.W.4 was concerned, he could not have been the eyewitness to the occurrence for the reason that according to P.W.4, he did not go to the hospital either, or to the police station; that according to the prosecution, it was he who took the injured Mahesh to the hospital; that had it been true that P.W.4 was an eyewitness and he was by the side, one would naturally expect him to accompany; that he has given a contra evidence and thus, he could not have been the eyewitness; that even as per the inquest report, it was one Marimuthu who took the injured to the hospital and not P.W.4; that all would go to show that P.W.4 could not have been the eyewitness at all; that both P.Ws.1 and 4, as eyewitnesses, have narrated the entire occurrence in a dramatic manner, which is nothing but thoroughly imaginary; that according to them, all the seven accused were armed with weapons; that even as per the prosecution case, one after another attacked the deceased, but a perusal of Ex.P.1, it would be quite clear that A-4 remained unarmed; that so far as evidence of P.Ws.1 and 4 were concerned, A-4, A-6 and A- 7 have stabbed the deceased on his back, but there is only one injury found and hence, they could not have seen the occurrence at all; that the medical evidence also did not support the ocular testimony and thus, it casts a doubt whether P.Ws.1 and 4 could have seen the occurrence at all and hence the evidence of P.Ws.1 and 4 was not useful to the prosecution case.
6.The learned counsel for the appellants would further submit that in the instant case, the lower court has thoroughly disbelieved the entire part of evidence in respect of arrest of A-2, the alleged confession and the recovery; that according to the prosecution, pursuant to the confession made, A-2 produced the weapons of crime, but they are thoroughly unbelievable; that the lower court has rightly rejected the same; that further, in the instant case, the lower court was not prepared to accept the case of prosecution that there was unlawful assembly and common object and hence recording so, it has acquitted A-3, A-5 and A-7; that in the instant case, even as per the Doctor's opinion, the injury that was sustained on chest and the corresponding internal injury was a fatal one, which was caused by A-2; that the injury caused by A-1 either, or the injury caused by A-6 were not caused murder; that A-1 has attacked the deceased below the shoulder and hence it was not fatal to cause death; that A-4 remained unarmed and hence he could not have caused any injury at all and under these circumstances, the legal aspects of the matter has got to be considered by this court.
7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
8.It is not in controversy that one Mahesh, the son of P.W.1, following an incident that took place on 25.5.2003 at about 2.00 p.m., was declared dead by the Doctor, attached to the Government Hospital, Thiruvidaimarudhur. Following an inquest made by P.W.17, the Investigating Officer, the dead body was subjected to post-mortem by P.W.8, the Doctor, who has given a categorical opinion that he died out of shock and haemorrhage and due to the injuries found on the vital organs and further, the said Mahesh died out of homicidal violence was never disputed by the appellants and hence without any impediment, it could be recorded so.
9.The occurrence has taken place on 25.5.2003, in which 7 accused have participated pursuant to the conspiracy hatched up and also pursuant to the common object to carry out the offence of causing death of Mahesh. The lower court was not prepared to accept the case of prosecution as to the conspiracy or common object. Hence it has recorded conviction of A-1, A-2, A-4 and A-6, while it has acquitted all other accused, namely A-3, A-5 and A-7. So far as the acquittal part was concerned, the State has not brought forth any appeal.
10.At this juncture, the court is called upon to look into the evidence placed before the trial court and whether it was sufficient to sustain conviction as against A-1, A-2, A-4 and A-6. In order to substantiate the case of the prosecution, it has examined three witnesses. They are P.Ws.1,2 and 4, our of three, P.W.2 has turned hostile. Thus, the prosecution had only two witnesses, namely P.Ws.1 and 4. According to P.Ws.1 and 4, at the time of occurrence, the temple deity was in procession and it came near the house of P.W.1 and at that time, A-7 wanted to take the deity near his house and the same could not be done, since the house of A-7 is situated in the lane and there was an altercation at that time. So far as the evidence of P.Ws.1 and 4 are concerned, they have narrated the incident, in which A-1 stabbed the deceased on his flank, A-2 stabbed him on his chest and A-4 and A-6 have attacked him on his back and therefore, this part of the evidence is concerned, the court is able to see consistency. It is an admitted fact that from the place of occurrence, the severely injured was taken to the Government Hospital, where he was declared dead. It is not relevant as to who took him to the hospital, but the relevant fact is as to whether he was taken to the hospital or not. According to the prosecution, the Doctor who examined him declared him dead and an intimation was given to the respondent police station. P.W.15, the Sub Inspector of Police went to the hospital and recorded the statement of P.W.1. Thus, the evidence in this regard leaves no doubt.
11.It is true, there are certain discrepancies brought to the notice of the court by the learned counsel for the appellants. In the opinion of the court, those discrepancies are minor most, which cannot shake the truth of the prosecution case. Further, the case was originally registered under Section 302 IPC and also under other provisions and the F.I.R. has come into existence earlier, where the names of A-1, A-2, A-4 and A-6 were found. According to the Investigator, the F.I.R. was actually handed over to the Constable to be taken to the concerned Judicial Magistrate, but P.W.13, the Head Constable, who took the same, has handed over the same to the Magistrate at about 10.00 p.m. Now, this court is able to see some delay. In the absence of any prejudice, which is shown to have been caused to the appellants, this court is unable to appreciate the same as a point for rejecting the prosecution case.
12.Further, in the instant case, the ocular testimony, namely the evidence of P.Ws.1 and 4, stood corroborated by the evidence of P.W.8, the post-mortem Doctor. In the instant case, the learned counsel for the appellants brought to the notice of the court some discrepancies in the evidence of P.W.1 as to the place of occurrence. According to the witness, the place of occurrence is just in front of the house of P.W.1, but, as per Ex.P.14, the rough sketch, the occurrence took place in the main road and thus, P.W.1 could not have seen the occurrence at all. This contention of the learned counsel for the appellants cannot be accepted for the simple reason that P.W.1 has categorically stated in his evidence that the deity was in front of his house and immediately after the deity was moved from that place, the occurrence has taken place. So far as the place of occurrence is concerned, as found in the rough sketch and the observation mahazar, no dispute was raised before the court below. Hence, no doubt could be entertained as put forth by the State.
13.So far as the act attributed to these accused/appellants herein are concerned, the court has to consider the second part of the argument. In the instant case, it is not in controversy that the death has occurred. P.W.8, the post-mortem Doctor has categorically opined that the injury No.1 found on the chest of the deceased was a fatal one, which according to the prosecution witnesses, namely P.Ws.1 and 4, was caused by A-2, who stabbed him on his chest and the death has ensued. The lower court was not prepared to accept the case of prosecution as to the common object. Further, the lower court has not even stated that they have actually shared common intention. Hence, their individual acts have got to be dealt with. So far as A-2 is concerned, the injury caused by him was a fatal one and hence, he has got to be convicted under Section 302 IPC. So far as A-1 is concerned, he has stabbed the deceased just below the shoulder and caused grievous injury to the deceased and hence he has got to be convicted under Section 326 IPC. Insofar as A-6, he has attacked the deceased on his back and caused simple injury and hence, he has to be punished under Section 324 IPC. Further, so far as A-4 is concerned, though P.Ws.1 and 4 have stated in their evidence that A-4 had weapon, in Ex.P.1 there is no averment found that A- 4 was having any weapon at all. If he was not having any weapon, there was no possibility to cause injury on the deceased. Under these circumstances, insofar as A-4, nothing could be attributed and hence, A-4 has got to be acquitted.
14.Therefore, the judgment of conviction and sentence imposed by the lower court is modified to the effect that A-1 is convicted under Section 326 IPC and is sentenced to undergo three years R.I; that the conviction and sentence imposed on A-2 under Section 302 IPC are confirmed; that the conviction and sentence imposed on A-4 are set aside and A-4 is acquitted of the charges levelled against him and that A-6 is convicted under Section 324 IPC and is sentenced to undergo two years R.I. The sentence already undergone by A-1 and A- 6 is ordered to be given set off. The fine imposed on A-1 and A-6 under Section 302 IPC shall be treated as fine amount imposed under Sections 326 and 324 IPC respectively. The bail bond if any executed by A-4 shall stand terminated and the fine amount if any paid by him shall be refunded to him. It is reported that A-6 is on bail and hence the concerned Sessions Judge shall take steps to commit him to prison to undergo the remaining period of sentence, if any.
15.With the above modification in conviction and sentence, this criminal appeal is partly allowed.
vvk To
1.The Inspector of Police, Thiruvidaimarudur Police Station, Thanjavur District.
2.The Additional Sessions Judge, Fast Track Court No.1, Thanjavur.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.