Madras High Court
Mariappan And Muthu vs State Rep. By The Inspector Of Police on 8 February, 2005
Author: S. Ashok Kumar
Bench: P.D. Dinakaran, S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. The appellants are A.1 and A.2 in S.C. No. 41 of 1998 on the file of the Principal Sessions Judge, Tuticorin. A.1 and A.2 are cousin brothers. Another deceased accused by name Gangari is the brother-in-law of A.1. P.W.l Irulappan is the brother of the deceased Shanmughaiah, P.W.2 is the wife of P.W.1. P.W.s 1 to 3 and all the accused belong to Vellalakkottai, near Sankarankovil. As early as 29.9.1991, brother of A.2 was said to have been attacked by P.W.1 which resulted in lodging of FIR which is marked as Ex.P.24. Nearly a month earlier to the date of occurrence i.e., 3.11.1996, P.W.4 a close relative of P.W.1 is said to have attacked the deceased accused Gangari which resulted in lodging of FIR which is marked as Ex.P.23. After this occurrence P.W.1 and deceased left their village out of fear for the accused and came to reside at Kovilpatti Town.
2. The case of the prosecution is that on 1.12.1996 when P.W.s 1, 2, 3 and the deceased were standing in the Kovilpatti Bus stand, near the Lottery Shop of one Sekar, A1, A.2 along with the deceased accused Gangari came there, each armed with Aruval. The deceased Gangari told the deceased that only at his instigation his relative Ramar has attacked him and so saying, he attacked the deceased on his left cheek and shoulder repeatedly. A.1 attacked the deceased with Aruval on his left shoulder, left flank and left leg. A.2 is said to have attacked the deceased on his right back and right hand repeatedly. The occurrence took place at 2.00 p.m., on a broad day light in the bus stand. Immediately P.W.1 engaged an Autorickshaw and took the deceased to Government Hospital at Kovilpatti for treatment. The injured was admitted at 2.30 pm., in the Kovilpatti Government Hospital and in the extract of Accident Register Ex.P.19 it is mentioned that the injured was brought by his brother Irulappan, and the injured has told the Doctor that at 2.00'o clock, near Kovilpatti Town Busstand he was attacked by three known persons by Aruval on his face, head, left leg, left hand, stomach and other places. P.W.11 Dr.Maheswari admitted the injured and also sent Ex.P.15 intimation to the Judicial Magistrate to record the dying declaration of the injured. The Doctor also sent Ex.P.17, intimation to the Police. P.W.10, Judicial Magistrate No. 1, Kovilpatti received the requisition memo Ex.P.15 and immediately reached the Government Hospital, Kovilpatti at 2.55 p.m., On seeing the injured, he informed himself as the Judicial Magistrate, put some questions to find out whether the injured is in a fit state of mind to give statement and after being satisfied that the injured was conscious and in a fit state of mind, recorded his statement which is marked as Ex.P.16.
3. P.W.11, the Doctor who attended the injured has also certified that the injured was was in full conscious and oriented and was in a fit state of mind to volunteer a statement. The said certificate issued by the Doctor is Ex.P.18. P.W.20, Sub Inspector of Police of Kovilpatti West Police Station received intimation about the admission of the injured in the Hospital at 3.00 p.m., and he reached the Hospital at 3.05 pm., and recorded his statement which is marked as Ex.P.1. After recording Ex.P.1 statement, he came to the Police Station at 4.45 p.m., and registered a case in Crime No. 932 of 1996 for alleged offences under Sections 341 and 307 IPC and the printed form of FIR is Ex.P.25. He sent the printed FIR to the Inspector of Police. P.W.21, Inspector of Police of the said Police Station received the FIR at 6.00 pm., and reached the scene of occurrence i.e., Kovilpatti Bus stand at 6.15 pm., and prepared Ex.p.2 Observation Mahazar. He also prepared the rough sketch Ex.P.26 at 7.00 p.m., under a cover of mahazar Ex.P.3. He seized bloodstained earth, M.O.1 and sample earth M.O.2 on the same day at 7.30 pm.,. He received intimation by wireless from the Outpost Police Station at Government Hospital, Tirunelveli that the injured has died and sent H.C.703, Sivakumar to get the death intimation. Thereafter he examined P.W.8, Subbulakshmi, first wife of the deceased and recorded her statement. At 11.30 p.m., P.W.8 produced M.O.8, dhoti, M.O.9, Shirt which were seized under form 93. He received the death intimation Ex.P.23 at 11.30 p.m., and thereafter he sent altered reoprt altering Sections 341 and 307 IPC into 341 and 302 IPC and sent Ex.P.27, Express Altered Report to the court. On 2.12.1996 between 7.00 am., and 10.30 a.m., in the presence of Panchayatdars, he conducted inquest on the body of the deceased Shanmughaiah and prepared Ex.P.28 inquest report. During the inquest, he examined P.W.1, Irulappan and other witnesses and recorded their statements. He sent the body for autopsy.
4. P.W.13, Dr.Mani, who received the requisition of P.W.21, Inspector of Police, conducted autopsy on the body of the deceased Shanmughaiah at 11.40 a.m., on 2.12.1996 and found the following injuries:-
"1. Gaping chop cut injury 7x6 cm x muscle deep on on the back of head.
2. Gaping cut injury 15x 5 cm x Bone deep on the right side of Head and it is 3 cm behind the right ear and close to the Nape of Neck.
3. Cut injury 2 x 2 cm x bone deep below thright angle of mandible and below the right ear.
4. Gaping cut injury 8x 3 cm x muscle deep seen on the right upper part of right back close to the midline (spinal cord).
5. Gaping cut injury 7x 2 cm x bone deep in the middle of right back 7 cm below the previous injury with a tailing of 4 cm downwards.
6. Chop cut injury 9 x 2 cm x bone deep involving right ring finger, middle finger and Index finger. The middle and distal phalnx of right ring finger found missing. The underlying muscles vessels nerves found cut.
7. Gaping cut injury 7 x 5 cm x bone deep on the outer aspect of middle of left leg. The underlying muscles, vessels and nerves found out and Tibia is partially found cut in its middle third with surrounding bruising noted.
8. Chop cut injury 7 x 5 cm x bone deep on the left wrist. All the wrist bones found cut and the hand found hanging with a flap of skin. The muscles, vessels and nerves found cut at site.
9. Chop cut injury 9 x 7 cm x bone deep on the back of the lower third of left forearm. It has cut the curpals and lower end of radius and ulna with surrounding bruising. The 8nderlying muscles vessels and nerves found out at site.
10. Cut injury 3 x 1 cm x muscles deep seen above the previous injury.
11. Gaping chop cut injury seen on the back of lower third of left arm. 8X 5 x bone deep. It has cut the muscles vessels, nerves and bone namely humerus in its lower third with surrounding bruising.
12. Gaping out injury 2 x 1 cm x bone deep seen on the middle of outer aspect of left arm with a tailing of 3 cm away from the body. It has cut muscles, vessels, nerves and bone namely humerus in its middle third with surrounding bruising.
13. 5 x 3 cm, 2 x 1 cm, 3 x 1 cm cut injuries gaping one deep seen one below the other on the outer aspect of upper part of left arm. It has cut the muscles, vessels, nerves and bone at side (humerus).
14. Chop gaping cut injury 6 x 3 cm x muscle deep with a tailing of 3 cm towards the body seen above previous injury.
15. 6x 3 cm gaping cut injury bone deep on the top of left shoulder. It has cut the muscles vessels nerves and bone at site (Scapula)
16. Gaping cut injury 12 x 4 cm x bone deep seen on the outer aspect of lower part of left chest and muscles and vessels. It has cut the ribs at site.
17. Gaping cut injury 4 x 3 cm x Bone deep seen on the outer aspect of lower part of left chest and muscles and vessels. It has cut the ribs at site.
18. 2 x 1 cm cut injury muscle deep seen on the left side of neck.
19. Gaping cut injury 8 x 3cm x bone deep seen on the upper part of middle of left back 10 cm away from the midline (spinal cord)
20. Chop cut injury gaping 10 x 6 cm x muscle deep seen on the back of head on the left side and it is 10 cm away from the left ear lobule.
21. Gaping curved cut injury 9 x 3 cm x bone deep seen on the 9 x 3 cm x bone deep seen on the left cheek It has cut the muscles, vessels, and nerves and bone at side.
22. Gaping cut injury 7 x 2 cm x bone deep seen above the previous injury. It has cut muscles, vessels, nerves and bone at side and it is 3 cm away from the left ear lobule.
23. 4 x 2 cm abrasion seen on the top of right shoulder.
24. 5 x 3 cm abrasion on the upper part of left back.
25. On dissection of thorax, 8th 9th rib on the left side in its front found cut with surrounding bruising noted. Hear: All chambers contained a few c,c, of fluid blood. Lungs: cut Section : pale. Hyoid bone Intact. Stomach: contained 100 grams of partly digested cooked food. Particles: Mucosa: pale. Liver, spleen and kidneys, cut section: Pale. Bladder: empty, Brain: cut section : Pale and edematous."
5. P.W.13 also gave the opinion that the deceased would appear to have died of shock and haemorrhage due to multiple heavy cut injuries sustained by him.
6. Continuing his investigation, P.W.21 examined P.W.12,Dr.Bakthavatchalam, P.W.13, Dr.Mani and recorded their statements On 4.12.1996 at 6.00 a.m., he arrested A.1 Mariappan near Kayatharu Bus stand. The accused volunteered to give a confession statement, admissible portion of which is Ex.P.4 In pursuance of the confession , A.1 took the police party to a place behind the Bethel Home and produced M.O.3 Aruval which was seized under a cove of mahazar Ex.P.5. Thereafter A.1 took P.W.21 and others and witnesses to Vellalakottai and produced M.O.4 bloodstained dhoti and M.O.5, bloodstained shirt from a cattle shed of one Subburaj, which were recovered under a cover of mahazar Ex.P.6. The properties and the accused were remanded to Court. On 5.12.1996 he examined P.W.11 Dr.Maheswari and recorded her statement. On 6.12.1996 at 6.30 a.m., in the presence of witness one Palraj and P.W.7 Poolpandi, he arrested Gangari and Muthu near the Railway Gate situate in Seevalaperi Road the deceased accused gave confession statement, admissible portion of which is Ex.P.7. At 7.30 a.m., A.2 gave another confession statement, admissible portion of which is Ex.P.8. In pursuance of the said statement he produced M.O.6 Aruval which was recovered under a cover of mahazar Ex.P.9. On 7.12.1996, the accused was remanded to custody. On 7.12.1996 P.W.21 examined Dr.Mani and showed him the weapons and further examined the Doctor and also obtained postmortem certificate. On 9.12.1996 he examined P.W4, Ramar and recorded his statement and on 10.12.1996 he sent a requisition to the Judicial Magistrate to send the case properties for chemical analysis report. The serologist report is Ex.P.14, according to which the blood of the deceased belong to A.Group and the same group of blood was found in the Dhoti and Shirt of A.1. After completing the investigation, P.W.21 filed a final report on 30.1.1997 against the accused for offences under Sections 341, 302 read with 34 IPC.
7. Before the Sessions Court, P.Ws 1 to 21 were examined as prosecution witnesses, Exs.P.1 to 28 and M.Os 1 to 10 were marked. On behalf of the accused, Exs.D.1 to D.10 were marked. When the accused were question under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused denied the same as not known or as false.
8. Considering the oral and documentary evidence adduced on behalf of the prosecution, the learned Sessions Judge came to the conclusion that the charges framed against the accused under Sections 341 and 302 read with Section 34 IPC are proved and convicted them under Section 302 r/w. 34 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1000/= in default to undergo one year rigorous imprisonment and convicted under Section 341 IPC to pay a fine of Rs. 100/= each, in default to undergo imprisonment for one month. Hence this appeal.
9. Mr.V.Gopinath, learned Senior Counsel appearing for the appellants wound contend that P.Ws 1 to 3 could not have been eye witnesses, they have been introduced only at a later stage to implicate these accused, the dying declaration said to have been given before P.W.20, Sub Inspector of Police is so lengthy that it cannot be believed to be true and that the prosecution has not examined any independent witnesses except P.Ws 1 to 3 who are close relatives of the deceased. Per contra, the learned Additional Public Prosecutor would contend that the occurrence has taken place at 2.00 p.m., near the Kovilpatti Bus stand, within half an hour, the injured was admitted in the Government Hospital and at the time of admission the injured had told the Doctor that he was assaulted with Aruval by three known persons and within 20 minutes later, the Judicial Magistrate has arrived at the Hospital and has recorded the statement in the question and answer form and immediately thereafter, the Sub Inspector of Police, P.W.20 has also recorded the statement of the injured and the FIR was prepared in time at 3.45 p.m., for offences under Sections 341 and 307 IPC which reached the court without any delay and thus there is no delay either in lodging the complaint or in registering the case or in the FIR reaching the court.
10. It is true that in Ex.P.1 complaint the name of P.W.3 is not mentioned and as rightly pointed out by the learned senior counsel, the presence of P.W.3 at the scene of occurrence is highly doubtful. Even omitting the evidence of P.W.3, there is evidence of P.Ws 1 and 2. P.W.1 is brother of the deceased and P.W.2 is the wife of P.W.1. The presence of P.W.1 at the time of occurrence could not be denied for the simple reason that it was he who took the injured to Hospital within half an hour and the fact that P.W.1 himself took the injured in an auto rickshaw to the Hospital is mentioned in Ex.p.17, intimation to Police and in Ex.P.19, Accident Register. Apart from that in Ex.P.1, complaint given by the deceased before the Sub Inspector of Police, he has categorically mentioned the presence of P.Ws 1 and 2 at the time of occurrence. Therefore, it could be safely concluded that P.W.1 was present at the time of occurrence. Merely because his bloodstained Shirt and Dhoti have not been recovered by the Investigating Officer, we cannot come to the conclusion that he could not be present at the scene of occurrence.
11. P.W.10, Judicial Magistrate No. 1, Kovilpatti, who received the intimation at 2.45 p.m., has reached the Hospital, at 2.55 pm., and he has informed the injured that he is the Judicial Magistrate and after questioning the injured he satisfied that the injured was conscious, oriented and in a fit state of mind to give statement. Thereafter he has recorded the statement of the injured in a question and answer form. A perusal of Ex.P.16, would show that the learned Judicial Magistrate has acted n a very fair manner without putting any leading questions and has simply recorded whatever the injured told him. Ex.P.16, dying declaration was recorded at 3.20 pm., and at the end of the dying declaration , P.W.11, Dr.Maheswari, who attended the injured has also certified that the injured was fully conscious, oriented and was in a fit state of mind to give a voluntary statement and the certificate is Ex.P.18. A perusal of Ex.P.16, would reveal that the statement by the injured is free from any tutoring or outside influence. In fact, he was not able to tell the name of A.1, though he was able to tell his father's name, but in the subsequent statement Ex.P.1, which was recorded by P.W.20, he has mentioned the name of A.1, A.3 and the deceased accused Gangari as the assailants. It is pertinent to note that in Ex.P.19, the earliest version told before he Doctor a the time of admission the injured has stated that he was attacked by Aruval by three known persons in various parts of his body at 2.00 p.m., at Kovilpatti Town Bus stand. At the time of admission and also at the time of recording Ex.P.16, dying declaration by the Judicial Magistrate P.W.10, and Ex.P.1 statement recorded by P.W.20, the Sub Inspector of Police, the injured has been conscious, oriented and in a fit state of mind.
12. In a case in which the dying declaration is natural and reliable, that evidence alone is sufficient to bring home the guilt of the accused. In this case there are two dying declaration one before the Judicial Magistrate and another before P.W.20, the Sub Inspector of Police. In these two dying declarations there is no contradiction. The place of occurrence, time of occurrence and participants in the crime are the samein both the dying declarations.
13. Apart from the two dying declarations and ocular evidence of P.Ws 1 to 3, there is important circumstantial evidence to connect the accused with the crime. When A.1 was arrested on 4.12.1996 at 6.00 a.m., A.1 has volunteered to give Ex.P.4 confession in pursuance of which he has produced M.O.3 Aruval and which was seized under a cover of mahazar Ex.P.5. Thereafter, he has taken the police party to his native place Vellalakottai and produced M.O.4 and M.O.5 Dhoti and Shirt from the cattle shed of one Subburaj. When M.Os 3 to 5 i.e., Aruval, Dhoti and Shirt used by A.1 were sent for chemical analysation along with other case properties, like the bloodstained earth, sample earth, recovered from the place of occurrence, the dress worn by the deceased, it was found that the bloodstain found in M.O.3 Aruval, M.4. Dhoti and M.O.5, Shirt contain human blood and that the blood group is A Group, which tallied with the blood group of the deceased as found out from the dress, sample earth taken from the place of occurrence. This circumstantial evidence also lends support to the prosecution case that A.1 also participated in the occurrence.
14. Having found no defect in the prosecution case, we do not find any merit in the appeal filed by the accused. Hence the appeal deserves to be dismissed and accordingly the same is hereby dismissed.