Madras High Court
V.N.Murugan vs Palpandi (Died) on 27 February, 2020
Equivalent citations: AIRONLINE 2020 MAD 1865
Author: B.Pugalendhi
Bench: T.Raja, B.Pugalendhi
Crl.A(MD)No.340 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A.(MD)No.340 of 2017
V.N.Murugan ... Appellant
Vs.
1.Palpandi (Died)
2.Veerapandi
3.Ramachandran @ Matti Ramachandran
4.Vilvadurai
5.Pandi
6.Chinnamani
7.Moorthy
8.Kannan @ Usadi Kannan
9.State rep. by
The Inspector of Police,
Avaniyapuram Police Station,
Madurai District.
Cr.No.538 of 2007 ... Respondents
[Appeal stands abated as against the first respondent /
first accused vide order dated 20.11.2019]
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http://www.judis.nic.in
Crl.A(MD)No.340 of 2017
PRAYER: Appeal filed under Section 372 of the Code of
Criminal Procedure, to call for the entire records
connected to the judgment in S.C.No.353 of 2011 on the
file of the 4th Additional District and Sessions Court,
Madurai, dated 28.04.2017 and set aside the conviction and
sentence imposed against the appellant.
For Appellant : Mr.R.Anand
for Mr.P.T.Ramesh Raja
For Respondents: Mr.R.Mariappan
for R.2 to R.8
Mr.R.Anandharaj
Additional Public Prosecutor
for R.9
*****
JUDGMENT
(Judgment of the Court was delivered by B.PUGALENDHI,J.) This Criminal Appeal is filed by the complainant [PW1] as against the judgment of acquittal passed by the trial Court, namely, the IV Additional District and Sessions Court, Madurai, in S.C.No.353 of 2011. The trial Court tried the respondents 1 to 8 / accused for the charges framed as under:
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http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Charge Section of Law Against Accused I 148 IPC A1 to A8 II 302 IPC A1 to A6 III 302 r/w 149 IPC A7 & A8 IV 307 IPC A2, A3, A5, A7 & A8 V 307 r/w 149 IPC A1, A4 & A6 VI 307 IPC A6 & A4 VII 307 r/w 149 IPC A1, A2, A3, A5, A7 & A8 In conclusion of the trial, the trial Court, by judgment dated 28.04.2017, found the respondents 1 to 8 / accused not guilty for the charges framed against them and acquitted the accused. As against the same, the complainant [PW1] has preferred the instant Criminal Appeal.
2. The brief facts of the case, in a nutshell, are as follows:
2.1. Thiru Murugan [PW1] is the father of the deceased, Muthukumar and Thiru Nandakumar [PW2] is the brother of the deceased. One Murugan @ Thavanaimurugan is the Nephew of PW1 and he was arrested by the Avaniyapuram Police in connection with a case in Crime No.438 of 2007 for the offence under Section 306 IPC and Section 3(1)(X) of SC/ST Act on 14.11.2007. Thavanaimurugan and his 3/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Cousin, the deceased / Muthukumar were under the impression that on the information provided by the first accused, Thavanaimurugan was arrested by the Police and therefore, the deceased went to the place of the first accused, Palpandi, to enquire about the same, where, the third accused, Ramachandran @ Matti Ramachandran and the fourth accused, Vilvadurai were also present and a problem arose. On 17.11.2007 at about 07.00 pm, when the accused 2 & 4 were crossing the house of one Muthu, the deceased along with his friend Muthu and two others is said to have assaulted them by saying that they only responsible for the arrest of Thavanaiurugan, with Aruval and Knife and caused injury. They also informed the same to PW1.
2.2. At about 09.30 pm, on the same day, the deceased Muthukumar was not available in the house and therefore, PW1 went in search of him along with his second son, Nandakumar [PW2]. They found the accused surrounding the deceased, attacked the deceased indiscriminately. PWs 1 & 2 attempted to prevent the attack and they have also been assaulted by the accused. On seeing the incident, one Mani @ Wireman Mani [PW4], Murugan @ Saudhi Murugan [PW5] 4/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 and N.Murugan [PW6] raised alarm and therefore, the accused persons flew away from the place of occurrence with the weapons. One Muniyandi [PW3] resident of Anupanadi Housing Board took the injured and the deceased to Madurai Meenakshi Mission Hospital.
2.3. Dr.Benedic Resi [PW23], who was on duty at Madurai Meenakshi Mission Hospital on 17.11.2007, provided first aid to the injured and reported the death of the deceased. Since Muthukumar was reported as dead, PWs 1 & 2, without taking further treatment, went to Government Rajaji Hospital, Madurai. Dr.Ashokachakravarthy [PW18], who was on duty at Government Rajaji Hospital, Madurai, attended PWs 1 & 2 in the Hospital at about 12.15 am and issued the Accident Registers Ex.P28 for PW2 and Ex.P29 for PW1 and also gave intimation to the Police.
2.4. One Pandi, Sub-Inspector of Police, Avaniyapuram Police Station [PW20] received information from the Government Rajaji Hospital, Madurai, at about 01.45 am on 18.11.2017, went to the Hospital around 02.30 am and recorded the statement from PW1, who was taking 5/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 treatment in the Hospital and the same was attested by PW2. Thereafter, he returned to the Police Station and registered a case in Crime No.538 of 2007 as against the respondents 1 to 8 / accused for the offence under Sections 147, 148, 341, 307 & 302 IPC.
2.5. On receipt of the first information report in Crime No.538 of 2007, the Inspector of Police, Avaniyapuram Police Station, Thiru Kalaikadhiravan [PW24] proceeded to the place of occurrence, prepared an observation mahazar [Ex.P45] and a rough sketch [Ex.P46] in the presence of PWs 10 & 11 and also collected earth with and without bloodstain [MO11 & MO12, respectively] under a cover of mahazar Ex.P47. He also conducted inquest on the body of the deceased in the presence of Panchayatars and the inquest report is marked as Ex.P48.
He also examined the witnesses PWs 1 to 6 and the Doctor [PW23] at Madurai Meenakshi Mission Hospital and recorded their statements. He handed over the body of the deceased for postmortem through the Constable Angusamy [PW16]. Dr.Natarajan [PW27] of Medical College Hospital, Madurai, conducted the autopsy on the body of the deceased on 6/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 18.11.2007 at about 11.50 am and noted down the following injuries:
“1.An oblique stab injury 6 x 1 cms x pleural cavity deep noted on front of left side of chest, 5 cms below and medial to nipple.
On dissection, the wound passes obliquely downwards and backwards piercing the underlying muscles, vessels, nerves in the 6th intercostals space, piercing the pleura and left ventricle of heart, measuring 2 cms x 0.5 cms x entering into left ventricle. Left Pleural Cavity contains 200 ml of fluid blood with clots. Right Pleural Cavity empty.
Note:
The stab injury is having regular margins, one end is pointed and other end is curved.
2.An oblique cut injury 7 x 0.5 cms x bone deep noted on left occipital region.
On dissection, the wound found cutting the underlying occipital bone measuring 6 x 0.5 cms x through & through and the underlying dura and left occipital lobe of brain measuring 5 x 0.5 cm x 0.5 cm.
3.An oblique cut injury 7 x 0.5 cm x cartilage bone deep, noted on tip of the nose.
4.An oblique cut injury 4 x 1 cms x bone deep on right side of chin.
5.An oblique cut injury 6 x 2 cms x bone 7/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 deep noted on front of lower 3rd of right forearm.
6.A vertically oblique cut injury 6 cm x 0.5 cm x bone deep noted on the left thumb, cutting the thumb into two halves.
Note:
All the cut injuries are having regular margins.” The Doctor has also gave his final opinion that the deceased would appear to have died of shock and hemorrhage due to external injury nos.1 & 2 and its corresponding internal injuries, 16-20 hours prior to autopsy. The postmortem certificate issued by him is marked as Ex.P68.
2.6. The Inspector of Police [PW24] arrested the second accused, Veerapandi and fourth accused, Vilvadurai on 20.11.2007 at Anna Nagar Bus Stop in the presence of the Village Administrative Officer [PW12] and Village Assistant [PW13], recorded their confession statements and recovered a medical record [MO13] and an Aruval under a cover of mahazar Ex.P50 and another Aruval was also recovered from the second accused Veerapandi under a cover of mahazar Ex.P53. He also arrested the eighth accused, Kannan, on 21.11.2007 and recovered a weapon pursuant to his confession statement under a cover of mahazar Ex.P55. 8/42
http://www.judis.nic.in Crl.A(MD)No.340 of 2017 The third accused, Ramachandran and sixth accused, Chinnamani surrendered before the Judicial Magistrate, Kamuthi and the fifth accused, Pandi and seventh accused, Moorthi surrendered before the Judicial Magistrate, Dindigul and the first accused, Palpandi surrendered before the Judicial Magistrate No.2, Madurai, and PW24 taken them on police custody and recorded their confession statements and also recovered the weapons pursuant to their confession statement. The weapon Knife recovered from the first accused was marked as MO1 and the Aruvals recovered from accused 2 to 8 were marked as MOs.2 to 8.
2.7. The further investigation was conducted by one Ramakrishnan, Inspector [PW25] from 08.06.2008. He sent the recovered articles for chemical analysis and recorded the statements of the Head Clerk and the Scientific Expert and thereafter, the investigation was proceeded with by one Ramasubbu, Inspector [PW26] from 08.03.2009. He filed the final report as against the accused 1 to 6 for the offence under Section 302 IPC and as against the accused 1 to 8 for the offence under Sections 148, 302, 307 r/w 149 IPC and as against accused 9/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 nos.2, 3, 5, 7 & 8 for the offence under Section 307 IPC, before the Judicial Magistrate No.6, Madurai, which was taken on file in P.R.C.No.17 of 2009 and committed to the Court of Sessions and taken for trial before the IV Additional District and Sessions Court, Madurai, in S.C.No.353 of 2011.
2.8. During the trial, on the side of the prosecution, 27 witnesses were examined and 68 documents were marked, besides 13 material objects. After the prosecution evidence was closed, the incriminating materials were put to the accused under Section 313 Cr.P.C and the accused denied the same. On the side of the defence, two witnesses were examined and one document was marked.
3. In conclusion of the trial, the trial Court found the respondents 1 to 8 / accused not guilty and acquitted them from the charges made against them. As against the same, at the instance of the complainant [PW1], the present appeal is filed.
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4. Heard Mr.R.Anand, learned Counsel for Mr.P.T.Ramesh Raja, learned Counsel for the appellant; Mr.R.Mariappan, learned Counsel for the respondents 2 to 8 / accused; and Mr.R.Anandharaj, learned Additional Public Prosecutor for the ninth respondent / State.
5. Mr.R.Anand, learned Counsel for the appellant has filed an application under Section 391 Cr.P.C. to permit the appellant / petitioner to adduce additional evidence before this Court to mark the medical records of Madurai Meenakshi Mission Hospital in Crl.M.P.No.11120 of 2019. The said application was objected by the learned Counsel for the accused by filing a counter affidavit. Considering the rival submissions, this Court, by order dated 07.02.2020, allowed the application in Crl.M.P.No. 11120 of 2019 and summons were also issued to Dr.Benedic Resi [PW23], who treated PW1 at Madurai Meenakshi Mission Hospital, on the date of occurrence. Accordingly, Dr.Benedic Resi [PW23] appeared before this Court on 13.02.2020 and his additional evidence was also taken and the xerox copy of the Accident Register issued by him in 11/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Madurai Meenakshi Mission Hospital in A.R.No.16982, dated 17.11.2007 was also marked, with objection, as Ex.P69.
6. Mr.R.Anand, learned Counsel for the appellant would submit that the trial Court has acquitted the respondents 1 to 8 / accused mainly on the following grounds:
i) Motive has not been proved by the prosecution;
ii) Delay in dispatching the FIR;
iii) The Accident Register which has been prepared by PW23 was suppressed;
iv) Injury No.1 sustained by the deceased could not have been caused by the weapon recovered from the first accused;
v) PWs 1 & 2, even after passage of 4½ years have clearly spelled out each and every minute details of occurrence, which would be nothing but a parrot like version.
vi) The witnesses who speak about the arrest and confession of the accused persons turned hostile.
vii) Earlier registration of case in Crime No.537 of 2007, wherein, the accused nos.2 & 4 have sustained 12/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 injuries have been suppressed by the prosecution.
But, the available evidence is otherwise and the trial Court, without appreciating the evidences in a proper perspective, has acquitted the accused, which is against the law. The findings of the trial Court are perverse and it cannot be sustainable in the eye of law and therefore, prays for interference.
7. Per contra, Mr.R.Mariappan, learned Counsel for the respondents 1 to 8 / accused has made his arguments in the following lines:
7.1. Though several witnesses were examined as eye witnesses, PWs 1 & 2 are the only available occurrence witnesses and they are the father and brother of the deceased and they are interested witnesses and their evidences are also with contradictions and therefore, it cannot be relied upon. Before Dr.Benedic Resi [PW23] at Madurai Meenakshi Mission Hospital, PW1, in the very first document of this case, namely, Accident Register of Madurai Meenakshi Mission Hospital [PW69], stated that he was assaulted by ten known persons. Within two hours, when he lodged the complaint before the Avaniyapuram Police, he 13/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 stated that they were attacked by eight known persons.
During the evidence, he referred only about five persons. This contradictions would expose the quality of the evidence of PW1 and therefore, it has been rightly disbelieved by the trial Court.
7.2. Moreover, there is no corresponding injury to the oral testimonies of PWs 1 & 2 and the medical evidence is contra to each other. Though the weapons were marked through PW1, the arrest and recovery in this case were made in the presence of Pws.12, 13 & 21 and they have not supported the case of the prosecution and they were treated as hostile, as such, the arrest and recovery are not established.
7.3. The learned Counsel has also referred about the delay in reporting the incident and also the delay in FIR reaching the Court. The occurrence was taken place on 17.11.2007 at about 09.30 pm, whereas, the FIR was registered only at 04.00 am on 18.11.2007 and reached the Court at 09.50 am on that day. Moreover, according to the Constable [PW15] who handed over the printed FIR [Ex.P32] 14/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 to the Court, the FIR was handed over to him at 09.15 am, but, according to the Sub-Inspector of Police [PW20] who registered the FIR, the printed FIR was handed over to PW15 at 04.30 am. In column No.15 of the printed FIR, no reference is available when it was dispatched to the Court and therefore, the delay has not been properly explained by the prosecution, which is vital to their case.
7.4. By referring the evidence of PW9 / wife of PW1, the learned Counsel would submit that when she was in the Government Rajaji Hospital, Madurai, a complaint was received from her husband and she also attested in the said complaint, whereas, in Ex.P1 complaint, it was attested by PW2. Therefore, the initial complaint lodged by PW1, attested by PW9, has been suppressed by the prosecution.
7.5. By referring to the first information report in Crime No.537 of 2007, which was registered at the instance of the second accused, Veerapandi, as against the deceased Muthukumar and three others, the learned Counsel would submit that the deceased party are the aggressors 15/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 and they have attacked the accused nos.1 & 2 on 17.11.2007 at about 07.00 pm and on the complaint of the second accused, a case was registered as against the deceased and others for the offence under Sections 341, 324 & 506(ii) IPC, as such, they are the aggressors in this case and after careful analysis of the evidences let-in by the prosecution, the trial Court has rightly acquitted the accused.
7.6. By referring to the injury No.1 sustained by the deceased, the learned Counsel has also made a submission that this injury could not be possible through the weapon like MO1, which was recovered from the first accused. The first accused is said to have caused the stab injury. The Doctor, in his cross examination, would admit that the injury is not possible through a weapon like MO1 and therefore, according to him, the trial Court has rightly acquitted the accused and he prays for dismissal of this Criminal Appeal.
8. The learned Additional Public Prosecutor appearing for the ninth respondent / State has made his 16/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 submissions in line with the submissions made by the learned Counsel for the appellant, assailing the impugned judgment.
9. This Court has paid it's anxious consideration to the rival submissions and also to the materials placed on record.
10. Pending appeal, it is represented that the first accused has expired on 03.05.2019 and death certificate has also been produced. Recording the same, this Court, by order dated 20.11.2019, has abated the charge as against the first respondent / first accused.
11. Before dwelling into the merits of the case, since the appeals are filed as against an order of acquittal, it is necessary to bear in mind the principles governing the appeal against acquittal, as laid down by the Hon'ble Supreme Court in V.Sejappa v. State [(2016) 12 SCC 150], wherein the Hon'ble Supreme Court has followed its own decision in Muralidhar v. State of Karnataka [(2014) 5 SCC 730]. The guidelines issued in the said 17/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 decision are extracted hereunder:
“23. ...
... (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on 18/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
12. In yet another decision in the case of Chandrappa Vs State of Karnataka [(2007) 4 SCC 415], the Hon'ble Supreme Court has laid down the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal:
“(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts on limitation restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as,
'substantial and compelling reaons', good and
sufficient grounds', 'very strong circumstances', distorted conclusions', 'glaring mistakes', etc 19/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”
13. Bearing these broad principles in mind, we have carefully analysed the available evidences. 20/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 14.1. Finding of the trial Court:
There was no direct enmity between the accused 1 to 8 and the deceased. No documents have been produced by the prosecution before the Court to show that Sarathbabu had committed suicide and that Thavanai Murugan was arrested by the police in connection to that case. Absence of motive has been admitted by PW2 / Nandhakumar, who is one of the injured witness as per the version of the prosecution.
Our Reasoning:
PWs 1 & 2 in their evidence have stated that one Thavanai Murugan was arrested by the Police in connection with a case in Crime No.483 of 2007 and Thavanai Murugan and his Cousin / the deceased, namely, Muthukumar were under the impression that it was on the information by the first accused, Thavanai Murugan was arrested and the deceased Muthukumar had also picked up a quarrel with the accused nos.1 & 2. In fact, the deceased Muthukumar had also gone to the place of the accused and enquired about the same, which had led to a problem and the second accused has also lodged a complaint as against the 21/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 deceased Muthukumar and his friends in Crime No.537 of 2007 before the Avaniyapuram Police Station for the offence under Sections 341, 324 & 506(ii) IPC and one Murugan, a friend of the deceased, was also arrested and remanded in that case. The first information report in Crime No.537 of 2007 and other documents pertaining to that case were marked as Ex.D1 on behalf of the accused and the accused have also relied upon Ex.D1 and have taken a stand that the deceased is the aggressor in this case. The reading of Ex.D1 disclose the case of the prosecution, while so, the finding of the trial Court that the motive has not been established by any document is not proper. 14.2.Finding of the trial Court:
Whether Ex.P1 was actually the real and first information has become doubtful and the FIR registered belatedly based on such suspicious information shakes the credibility of the basis of the prosecution case. Our Reasoning:
- The occurrence, in this case, had taken place at 09.30 pm. In the occurrence, the deceased sustained 22/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 several grievous injuries and PW1 has also sustained four injuries and PW2 has sustained one injury. PWs 1 & 2 along with the deceased were taken to the Madurai Meenakshi Mission Hospital on 17.11.2007 at about 11.15 pm, where, they have been provided first aid by Dr.Benedic Resi [PW23]. He also issued a wound certificate to PW1, which is in A.R.No.16982 [Ex.P69]. Since he reported that the deceased was brought dead, PWs.1 & 2 did not want to take further treatment at Madurai Meenakshi Mission Hospital and they have taken the deceased to Government Rajaji Hospital, Madurai and got themselves admitted in Government Rajaji Hospital, on 18.11.2007 at about 12.15 am. Dr.Ashokchakravarthy [PW18], who admitted PWs 1 & 2 as inpatients, has also issued Accident Registers in Ex.P29 & P28 respectively. The date and time of admission have been mentioned as 18.11.2007 at 12.15 am.
- On the intimation from the Government Rajaji Hospital, the Sub-Inspector of Police, Avaniyapuram Police Station [PW20] went to the Government Rajaji Hospital, Madurai, at about 02.30 am and recorded the statement from PW1 and left the Hospital at about 03.15 am, reached the 23/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Police Station at about 04.00 am and thereafter, registered the case in Crime No.538 of 2007. The Sub- Inspector of Police [PW20] handed over the printed FIR [Ex.P32] to PW15 at about 04.30 am and the same was handed over to the concerned Judicial Magistrate at about 09.50 am. By referring to the evidence of PW15, the learned Counsel for the accused made a submission that the printed FIR was handed over to PW15 only at 09.15 am and therefore, there is a considerable delay in registering the FIR and even if it was registered at 04.00 am, as alleged, then there is considerable delay in FIR reaching the Court. In this case, apart from the deceased, PW1 / father of the deceased as well as PW2 / brother of the deceased have also sustained injuries, when they attempted to prevent the attack on the deceased. Immediately after the occurrence, they were sent to the Madurai Meenakshi Mission Hospital by an Auto by PW3. But PW3 turned hostile. Even then, the Doctor who treated PW1 at Madurai Meenakshi Mission Hospital has recorded in the Accident Register [Ex.P69] that the deceased as well as PW1 took treatment at Madurai Meenakshi Mission Hospital on 17.11.2007 at 11.15 pm and he also recorded in his 24/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 evidence that since one of the persons died, PW1 decided to go to Government Rajaji Hospital, Madurai. PWs 1 & 2 were also admitted at Government Rajaji Hospital, Madurai on 18.11.2007 at 12.15 am. The Sub-Inspector of Police [PW20] has also recorded in Ex.P1 that on the medical intimation, he went to the Government Rajaji Hospital, Madurai at about 02.30 am, recorded the statement from PW1 and thereafter, returned to the Police Station and registered the case. The sequence of events would disclose that there is no delay in reporting the incident to the police and similarly, there is no delay in FIR reaching the Court. Though the learned Counsel for the accused, by referring to the submission of PW15 would submit that printed FIR was handed over to him only at 09.15 am, a close reading of the evidence of PW15 would disclose that he started from the police station at 09.15 am and thus, it cannot be construed that the FIR was handed over to him only at 09.15 am.
- Further, Ex.P1 complaint was recorded by the Sub-Inspector of Police [PW20] from PW1 in Government Rajaji Hospital, Madurai. PW9, wife of PW1, in her 25/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 evidence, has stated that when the statement was recorded at Government Rajaji Hospital, she also attested the said complaint, but, Ex.P1 was attested by PW2. The occurrence had taken place in the year 2007 and the evidence of PW9 was recorded in the year 2014, ie., after seven years and PW9 has admitted that a statement was recorded from her husband at the Government Rajaji Hospital and signature was also obtained from her. The vague reply which was obtained during the cross examination, that too, after seven years, cannot be taken as a ground that yet another complaint was also prepared with the attestation of PW9 and that was suppressed. If really PW9 attested any complaint, then the contents of the same should have been elicited during the cross examination. PW20, the Sub- Inspector of Police went to the Government Rajaji Hospital, on medical intimation at 02.30 am, recorded the statement, returned to the Police Station and registered the case at 04.00 am. When there is no delay in between the statement recorded and the case registered, it cannot be presumed that another complaint could have been received from PW1 within that time. Therefore, the finding of the trial Court in this regard is also not proper. 26/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 14.3.Finding of the trial Court:
Though PW23 Dr.Benedic Resi who had treated PW1 and PW2 at Meenakshi Mission Hospital has deposed that he did not record any accident register, PW18 Doctor from Madurai Rajaji Hospital has admitted that PW1 Murugan was admitted at Rajaji Hospital along with the AR copy with No.16982 issued by Madurai Meenakshi Mission Hospital and the said AR copy has also been suppressed by the prosecution. Likewise PW2 also has deposed that his statement was recorded by the Doctor at Meenakshi Mission Hospital and that also has not been produced by the prosecution before this Court. The Accident Registers of PWs.1 & 2, which have been registered initially, have been suppressed by the prosecution for the reasons best known to them.
Our Reasoning:
Dr.Benedic Resi [PW23] in his evidence before this Court has clearly stated that PW1 along with the deceased came to the Hospital and he provided first aid and also recorded the injury of PW1 in A.R.No.16982 [Ex.P69] and since he declared that the deceased was brought dead, they 27/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 did not want to continue the treatment there at Madurai Meenakshi Mission Hospital and they went to Government Rajaji Hospital, Madurai, where Dr.Ashokachakravarthy [PW18] has also recorded A.R.No.16982 in his Accident Register [Ex.P29]. But, PW18 failed to enclose the A.R.No. 16982 in his Accident Register, even though it was very much available with him and also recorded the injuries as recorded in A.R.No.16982. However, this defect has also been corrected at the instance of PW1 by filing an application under Section 391 Cr.P.C before this Court and this Court has recorded the evidence of Dr.Benedic Resi [PW23] and the Accident Register in No.16982 issued at Madurai Meenakshi Mission Hospital by PW23 dated 17.11.2007 which was also marked as Ex.P69, which discloses the nature of injury sustained by PW1. The Doctor [PW23] has also explained in his evidence that on the date when he deposed before the trial Court, he attended some function and went to the Court without any records. Therefore, he was not in a position to refer to the Accident Register in No.16982 at that point of time.
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http://www.judis.nic.in Crl.A(MD)No.340 of 2017 14.4.Finding of the trial Court:
According to the medical evidence, the 1st injury shown as stab injury could not have been caused by MO1, because in the stab injury, one end is pointed and the other end is curved, whereas, MO1 is a double edged weapon by which such injury cannot be caused. Therefore, the medical evidence is contra to the oral evidence. Our Reasoning:
The Doctor [PW27] who conducted the postmortem has clearly deposed in his chief examination that the injuries found on the deceased are possible through the weapons recovered in this case. However, in the cross examination, without any relevance to the medical jurisprudence, he has stated that the injury No.1 was not possible through the weapon MO1, which cannot be a ground to state that the medical evidence is in contra to the oral evidence. Moreover, the deceased in this case has sustained six injuries. When the other injuries have been tallied, mere because a vague submission has been made by the Doctor on the possibility of the injury no.1 during the cross examination, the entire case of the prosecution cannot be 29/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 disbelieved. Injury No.1 is a stab injury and according to the prosecution witness, this injury was caused by the first accused with a knife [MO1]. It is also admitted by the Doctor in the chief examination that the injury is possible through the weapon like MO1.
14.5.Finding of the trial Court:
The injuries sustained by PWs 1 & 2 as per their oral evidence are in contra to the medical evidence. Their presence in the scene of occurrence itself is doubtful and their deposition appears to be a parrot like version. Our Reasoning:
- PWs 1 & 2 are injured witnesses in this case and also closely related to the deceased. PW1 is the father of the deceased and PW2 is the brother of the deceased. When they attempted to prevent the deceased, they also sustained injuries. As discussed supra, PW1 was given first aid treatment at Madurai Meenakshi Mission Hospital by PW23, immediately after the occurrence and in the very first document, namely, Ex.P69 – Accident Register in No. 16982 marked before this Court, the Doctor has recorded 30/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 the injuries sustained by him. While so, it cannot be viewed that after 4 ½ years, they have stated in a parrot like version. Their evidence is supported by the deposition of the Doctor [PW23] as well as Ex.P69 – A.R. Copy issued in Madurai Meenakshi Mission Hospital.
- In fact, the learned Counsel for the accused, by referring to the Accident Register in No.16982 issued by the Doctor [PW23] in the Madurai Meenakshi Mission Hospital, First Information Report in the present case and the evidence of PW1, questioned the trustworthiness of the evidence of PW1, since PW1, before the Doctor [PW23] has stated that ten persons have assaulted them. But, when he gave statement before the Sub-Inspector of Police [PW20], he stated that eight persons as assailants. But during the evidence before the Court, he referred to only about five persons. Therefore, the learned Counsel questioned the credibility of the witness [PW1].
- The occurrence took place at 09.30 pm. In the occurrence, PWs 1 & 2 and the deceased have sustained injuries. The deceased was in a serious condition and they 31/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 were taken to the Madurai Meenakshi Mission Hospital, immediately after the occurrence, where the deceased was declared brought dead. At that point of time, when PW1 was not relieved from the shock of the death of his own son, he made a reference that ten known persons have attacked them. While lodging the complaint, he gave the names of the assailants along with overtacts. While giving evidence before the Court, he has spoken about the persons who have caused injuries to the deceased and therefore, this contradiction would not disbelieve the credibility of the evidence of PW1. PW1 has narrated the incident in a cogent manner and there is no reason to doubt his evidence. 14.6.Finding of the trial Court:
All the witnesses, who were examined for the arrest and recovery, have turned hostile, as such, the prosecution has failed to prove the arrest and recovery alleged to have made in this case.
Our Reasoning:
Though the witnesses for arrest and recovery have turned hostile, the weapons MOs 1 to 8 were marked through 32/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 PW1 and the Inspector of Police PW24 has also stated about the arrest and recovery. Therefore, it alone cannot be a ground to disbelieve the entire case of the prosecution. 14.7.Finding of the trial Court:
Though PWs 1 & 2 said to have witnessed the occurrence, they did not speak about the occurrence pertaining to the case in Crime No.537 of 2007 and in fact, they have not even spoken about the registration of the case itself. Either they attempted to suppress the case in Crime No.537 of 2007, which was registered at the instance of the second accused or they would not have witnessed the occurrence in this case, as alleged by them. Our Reasoning:
Admittedly, the occurrence in respect of the case in Crime No.537 of 2007 took place on 17.11.2007 at about 07.00 pm, whereas, in Crime No.538 of 2007, the occurrence took place on the same day at about 09.30 pm. While so, it cannot be stated that PWs.1 & 2 have either witnessed the occurrence at 07.00 pm and suppressed the same or not witnessed the occurrence in the present case at 09.30 pm. 33/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Moreover, PWs.1 & 2 are not a party to the case in Crime No.537 of 2007. In fact, none of the prosecution witnesses is party to that case. While so, they did not have any reason to refer to the incident in Crime No.537 of 2007 and therefore, it cannot be taken as a ground that they have suppressed.
15. In our considered opinion, the trial Court has wrongly entertained frivolous doubt for the sake of smelling doubt on every trivial aspect of the prosecution case and in that process, has allowed the guilty to escape from the clutches of law.
16. The Hon'ble Supreme Court in State of Rajasthan v. N.K., reported in 2000 (5) SCC 30, has held as under:
“It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in 34/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females.”
17. In view of the foregoing discussions and reasonings and taking note of the decisions of the Hon'ble Supreme Court, as extracted supra, we are of the considered view that the judgment of acquittal passed by the learned IV Additional District and Sessions Judge, Madurai, in S.C.No.353 of 2011, dated 28.04.2017, warrants our interference.
18. Accordingly, this criminal appeal is allowed and the judgment of acquittal passed in S.C.No.353 of 2011, dated 28.04.2017, on the file of the learned IV 35/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Additional District and Sessions Judge, Madurai, is set aside and the accused persons are found guilty as under:
Accused Sections of Law
A1 Charge stands abated
A2 148, 302, 307 IPC
A3 148, 302, 307 IPC
A4 148, 302, 307 IPC
A5 148, 302, 307 IPC
A6 148, 302, 307 IPC
A7 148, 302 r/w 149, 307 IPC
A8 148, 302 r/w 149, 307 IPC
19. Post the matter on 28.02.2020, for questioning on sentence. The ninth respondent / Police is directed to secure the respondents 2 to 8 / accused and produce them before this Court for questioning the accused on sentence.
[ T.R.J.,] [ B.P.J.,]
27.02.2020
Index : Yes / No
Internet : Yes / No
gk
To
1)The IV Additional District and Sessions Judge, Madurai.
2)The Inspector of Police, Avaniyapuram Police Station, Madurai District. 36/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017
3)The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4)The Section Officer, E.R. / V.R. Section, Madurai Bench of Madras High Court, Madurai.
37/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 T.RAJA, J., and B.PUGALENDHI, J., gk Crl.A.(MD)No.340 of 2017 27.02.2020 38/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Crl. A. (MD)No.340 of 2017 T.RAJA, J.
and B.PUGALENDHI, J.
O R D E R (Order of the Court was made by B.PUGALENDHI, J.) As directed by this Court, the respondents 2 to 8 / accused 2 to 8 are produced before this Court today. When they were questioned with regard to sentence, they pleaded innocence and prayed for leniency.
2. Since the first respondent / first accused died pending this appeal, the charges as against him stand abated.
3. Considering the nature of the offences and the request made by the respondents 2 to 8 / accused 2 to 8, this Court convicts and sentences them as follows:
i) The respondents 2 to 6 / accused 2 to 6 are sentenced
- to undergo rigorous imprisonment for a period of two years each for the offence under Section 148 IPC; 39/42
http://www.judis.nic.in Crl.A(MD)No.340 of 2017
- to undergo life imprisonment and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) each and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months each, for the offence under Section 302 IPC; and
- to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months each, for the offence under Section 307 IPC.
ii) The respondents 7 & 8 / accused 7 & 8 are sentenced
- to undergo rigorous imprisonment for a period of two years each for the offence under Section 148 IPC;
- to undergo life imprisonment and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) each and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months each, for the offence under Section 302 r/w 149 IPC; and
- to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.2,000/- (Rupees Two 40/42 http://www.judis.nic.in Crl.A(MD)No.340 of 2017 Thousand only) each and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months each, for the offence under Section 307 IPC.
4. The sentences are ordered to run concurrently and the period of imprisonment already undergone, if any, shall be given set off under Section 428 Cr.P.C.
5. Registry is directed to commit them to prison to undergo the sentence imposed on the respondents 2 to 8 / accused 2 to 8.
[T.R., J.] [B.P., J.]
28.02.2020
gk
Copy to
The Superintendent of Prison,
Central Prison,
Madurai.
41/42
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Crl.A(MD)No.340 of 2017
T.RAJA, J.
and
B.PUGALENDHI, J.
gk
Crl.A.(MD)No.340 of 2017
28.02.2020
42/42
http://www.judis.nic.in