Madras High Court
Kandan Alias Viral Kandan vs State on 22 November, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal (MD).No.54 of 2011 Kandan alias Viral Kandan .. Appellant vs. State, rep.by Inspector of Police, Srivaikundam Police Station, Thoothukudi District. .. Respondent (Crime No.20/2008) Criminal appeal is filed under Section 374 of Criminal Procedure Code against the judgment and conviction dated 25.10.2010, by the learned Additional District and Sessions Judge (FTC-II), Thoothukudi in S.C.No.105 of 2009 by which, the appellant is convicted (i) under Section 320 IPC and sentenced to undergo Life Imprisonment and fine of Rs.1000/-, in default to undergo 1 years R.I.(ii) under Section 25(1-B) (a) of the Indian Arms Act sentenced to undergo 3 years imprisonment and fine of Rs.500/- in default to undergo 2 months R.I. and further direction that all the sentences to run concurrently. !For petitioner ... Mr.S.Deenadhayalan ^For respondent ... Mr.K.S.Duraipandian Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by S.NAGAMUTHU, J) The appellant is the sole accused in S.C.No.105 of 2009 on the file of the learned Additional District and Sessions Judge (FTC-II), Thoothukudi. He stood charged for the offences under Sections 302 IPC and 25(1-B)(a) of the Indian Arms Act. The trial Court by judgment, dated 25.10.2010 found him guilty under both the charges and sentenced him to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default to undergo Rigorous Imprisonment for one year for the offence under Section 302 IPC and to undergo Rigorous Imprisonment for 3 years and to pay fine of Rs.500/-, in default to undergo two months rigorous imprisonment for the offence under Section 25(1-B)(a) of the Indian Arms Act. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:-
The deceased in this case was one Mr.Manikandan. PWs 1 and 2 are the wife and mother of the deceased respectively. The accused is none else than the brother of the deceased. The deceased was residing in the ground floor of the house along with PW1, PW2 and others. The accused was residing in the first floor of the same house. In respect of partitioning of the said house, there was some misunderstanding between the deceased and the accused. On an earlier occasion, on 02.08.2007, the accused had thrown a country bomb on PW2. In respect of the same, a criminal case was registered against the accused, which culminated in a final report against him. In the said case, ultimately, the accused was convicted by the trial Court. The judgment in that case was delivered two months prior to the occurrence in the instant case.
3. On 26.01.2008, at about 05.00 p.m. PW1, PW2 and the deceased were in the house, which is in the ground floor of the house. They were actually sitting together in a room and they were conversing. Suddenly, the accused climbed down through the stairs from the first floor of the house. At that time, he was carrying a country made gun. On reaching the room, he shouted at the deceased stating that unless the deceased was eliminated, he would not be in a position to get his due share in the house. The accused had lost his right hand already. He has got only left hand. With his left hand, using the country made gun, he shot at the deceased and it fell on the neck of the deceased. The deceased fell down. Out of fear, PWs1 and 2 rushed out of the house. Not stopping with that, the accused dragged the body of the deceased outside the house. Thereafter, after leaving the body on the verandah of the house, he left the place of occurrence along with the gun in a TVS-50 Motor Cycle. The occurrence was witnessed by PWs1 and 2 as well as one Sagadevan. After the accused had left the place of occurrence, PWs 1 and 2 raised alarm, which attracted the neighbours. PWs 3 and 4, who are the neighbours, according to the case of the prosecution, rushed to the spot and witnessed the occurrence.
4. After the said occurrence, PW1 proceeded to Srirangam Police Station at 5.45 p.m. and gave a complaint, which is Ex.P1. Based on the same, PW7 registered a case in Cr.No.20 of 2008 under Section 302 IPC and 25(1-B)(a) of the Indian Arms Act. Ex.P7 is the First Information Report. He forwarded Ex.P1 and Ex.P7 to the Court through PW8, a Head Constable attached to the said Police Station. The First Information Report was received by the learned Magistrate concerned at 11.30 p.m. on the same day. Then, PW7 handed over the case diary for investigation to PW16.
5. Taking up the case for investigation, PW16 proceeded to the place of occurrence at 07.00 p.m. In the presence of PW5-Village Administrative Officer, and another witness, PW16 prepared Ex.P2 -Observation Mahazar at the place of occurrence. Then, he prepared Ex.P24, a rough sketch regarding the place of occurrence. From the place of occurrence, he recovered bloodstained earth and sample earth in the presence of witnesses under Ex.P3 Mahazar. Then, he conducted inquest on the body of the deceased between 8.30 pm. and 10.30 p.m. During the same, PW16 examined PWs1 to 4 and few more witnesses including Sagadevan. Ex.P25 is the inquest report. Then he forwarded the body for autopsy.
6. PW15-Doctor Shayam Sundar Singh was an Assistant Surgeon working as Tutor in Forensic Medicine, Tirunelveli Medical College and Hospital. He conducted autopsy on the body of the deceased on 27.01.2008 at 10.00 a.m. and he found the following injuries on the body;-
"Wound of entrance: is over the center of chin, 1.5cm below the lower lip. It is a circular wound 2 cm in diameter with abrasion collar and dirt collar. There is extensive burning singeing of facial stubbles with blackening and tattooing over an area of 3cam diameter surrounding the wound of entrance. The margins of wound of entrance are inverted. In its course, the bullet has caused a punched hole in the center of mandible (lower jaw) with consequent fracture of lower jawbone in its center. In its further course, the bullet has caused destruction of soft tissues in the floor of mount, the windpipe and food pipe and the bullet is lodged in the body of Cervical Vertebra causing crack facture of c1 cervical vertebra and consequent contusion and avulsive lacertation of spinal cord at site. They hyoid bone, thyroid, thyroid horns and muscles of neck show contusion."
He found the bullet lodged inside the neck. PW15 removed the same and handed over the same to PW16. He opined that the deceased would have died of the injury to the neck due to shock and hemorrhage. He also opined that the death would have occurred 16 to 20 hrs prior to the commencement of the postmortem. Ex.P22 is the postmortem certificate and Ex.P23 is the final opinion offered by him.
7. Continuing the investigation, PW16 examined few more witnesses and recorded their statements. On 28.01.2008 at about 05.30 p.m., PW14 arrested the accused at Aayathurai Villaku in the presence of PW6 and another witness. At the time of arrest, the accused was found in possession of TVS Motor Cycle bearing registration TN 69 Z 6295. The same was recovered under Ex.P5 Mahazar. (During trial, PW1 and PW2 have identified the said TVS-50 as the one used by the accused at the time of occurrence). The accused, at the time of arrest, gave a confession in the presence of witnesses to PW14. PW14 reduced the same into writing. In the said confession, the accused disclosed the place where he had concealed the country made gun and 5 live cartridges. Based on the said confession statement, the accused took PW14 and other witnesses to Srivaikundam Manakarai Road, Alwarkarkulam Village and from a bush near Arasudian temple, he produced the above material objects. PW14 recovered the same under Ex.P6 Mahazar. On the same day, the accused was produced before the Jurisdictional Magistrate. He also gave a request to the learned Magistrate to forward the above material objects for chemical examination. He, then examined PW15, Shayam Sundar Singh, the Doctor, who conducted postmortem. PW12 was the then Head Clerk of the learned Judicial Magistrate, Srivaigundarm. On the orders of the learned Judicial Magistrate, Srivaigundam, on the request made by the investigating officer, he forwarded the material objects for chemical examination. On such examination, from the Forensic Lab, a report was received under Ex.P14. Ex.P15 is the Serologist Report. Under Ex.P14, the Scientific Assistant attached to Forensic Sciences Department, Regional Forensic Science Laboratory, had found bloodstains on the dress materials recovered from the body of the deceased. According to Ex.P15, the said bloodstains are of human origin. On the request made by the Investigating Officer under Ex.P16, the learned Judicial Magistrate, forwarded the gun recovered from the accused and the bullet found lodged in the body of the deceased for comparison and opinion. The Scientific Officer and Firearms Expert, Ballistics Division, Forensic Sciences Department, Chennai, on examining the same, submitted a report under Ex.P19. In the same, he has given the following opinion:-
"(i) item 1 is a country made, short barreled smooth bore, breech loading, hand, gun designed to fire 12 gauge cartridges; it is a firearm as per the definition of firearm in the Arms Act 1959; it is a lethal firearm;
(ii) combustion products of gun powder were detected in the barrel of the gun item I indicating that it was fired previously; there is no scientific method to determine the exact time of firing;
(iii) test firing was conducted and the gun item I was found to be in working condition;
(iv) the cartridges in items 2, 3 and 4 are of 12 gauge; they are reloaded cartridges; they can be used for firing in the gun item 1; during examination two cartridges from item 2 were used for test firing in the gun item 1 and the two cartridges fired; the two test fired cartridge cases along with one unused cartridge are returned under item 2;
(v) the cartridge case item 5 is of 12 gauge; its firing pin mark was found obliterated because of the perforation in the primer cap; the test fired cartridge cases from the gun item I also bore perforated firing pin marks; hence item 5 can not be identified with the gun item 1; however, item 5 could have been fired in the gun item 1. "
He also submitted Ex.P20, wherein he has offered the following opinion;-
"I examined the above metal pieces and I am of opinion that they are of lead and they could have been fired from a smooth bore firearm."
8. Thereafter, the investigation was again taken over by PW16. On completing the investigation, he laid charge sheet against the accused on 11.12.2008 under Section 302 IPC and Section 25(1-B)(a) of the Indian Arms Act.
9. Based on the above materials, the Trial Court framed charges under Sections 302 IPC and Section 25(1-B)(a) of the Indian Arms Act, 1959. The accused denied the charges and therefore, he was put on trial. During the trial on the side of the prosecution, as many as 16 witnesses were examined and 25 documents were exhibited, besides 12 Material Objects.
10. Out of the 16 witnesses examined, PW1 and PW2 are the eyewitnesses. They have categorically stated that it was this accused, who shot the deceased with the country made gun. PWs 3 and 4, who are the neighbours, turned hostile and their evidences are not in any way helpful to the prosecution. PW5 has spoken to about the preparation of the Observation Mahazar and the recovery of material objects from the place of occurrence. PW6 has spoken to about the confession of the accused and the subsequent recovery of the material objects from the accused. PW10, who is an Assistant Working in the District Collector office, has spoken to about the sanctioning for launching prosecution against the accused. Others are official witnesses. When the above incriminating materials were put to the accused under Section 313 Cr.P.C, he denied the same as false. However, he has not chosen either to examine any witness on his side or to exhibit any document.
11. Having considered the above materials, the Trial Court found him guilty under both the charges. That is how the appellant is before this Court.
12. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent and also perused the documents carefully.
13. As we have narrated above, the prosecution mainly relies on the evidence of eyewitnesses, namely PW1 and PW2. It is the contention of the learned counsel for the appellant that PW1 and PW2 would not have been present at all, at the time of occurrence. He would further state that the actual occurrence of shooting would not have happened in the room inside the house, as it is alleged by PW1 and PW2. In order to substantiate this contention, the learned counsel for the appellant would submit that during cross-examination PW1 has stated that because of hit by bullets, damage was caused to the wall in the room. The learned counsel would further point out that according to the observation mahazar, there was no such damage found on the wall of the room. He would further submit, had it been true that the occurrence was inside the room, there would have been certainly bloodstains on the floor in the room. But, there is no consistent evidence on this aspect, the learned counsel contended. According to him, PW5 stated that bloodstain was not found inside the room, whereas PW16, the investigating officer, would say that bloodstain was not found in the room, but it was found in the verandah. Out of these points, the learned counsel would submit that PWs1 and 2 would not have been present at that time, when the deceased was shot and the occurrence would not have taken place inside the room at all.
14. Per contra, the learned Additional Public Prosecutor would contend that immediately after the deceased had fallen, even before the blood could fall on the floor, the deceased would have been dragged outside the house. That is the reason why no blood was found on the floor. It is further submitted that though PW1 has stated that there was damage caused to the wall of the house and the same was not found by the Investigating Officer, on that ground, it cannot be said that the occurrence was not inside the house. The learned Additional Public Prosecutor would further submit that the presence of PW1 and PW2 is quite natural and there are no reasons as to why their evidences, more particularly, their presence should be doubted.
15. We have considered the above submissions. In our considered opinion, the contradictions pointed out by the learned counsel for the appellant are very minor in nature, which would not cause any dent in the case of the prosecution, at all. From the postmortem report we are able to see that the injury caused by the bullet was very narrow in size. It is common knowledge that at the entry point, due to reflex attitude of muscles, the opening would have been narrowed down. In any event, because serious damages were caused only inside the body, it would have taken some time for the blood to ooze out through the external injury. Here, in this case, immediately, after the deceased had fallen down due to the shot on the neck by the bullet, the accused dragged him outside the house and left the body in the verandah. That is why there were bloodstains on the Verandah. This is quite natural and there is no improbability in the said version of the prosecution. Of course, PW5 has stated that bloodstain was found on the floor in the room. But it cannot be given any weightage, in view of the evidence of PW16, who has categorically stated that bloodstain was found only in the verandah of the house. Therefore, we find that from the evidence of PWs1 and 2, the prosecution has clearly established that the occurrence has taken place only inside the room of the house.
16. The learned counsel would nextly contend that it is highly impossible for a man of physical stature like the accused, to drag the body outside the room with his left hand. We do not find any force in this argument at all. A person who has got only one hand for quite sometime would have added strength to use the same for all practical purposes. Therefore, it cannot be accepted that it is impossible that the accused would have used his left hand to shoot and also thereafter to drag the body outside the room.
17. According to the learned counsel for the appellant, there is no need to drag the body outside the room by the accused. In this argument also we do not find any substance. It all depends upon the mental condition of the person involved in the crime. The conduct of such a person, while he was acting in an aggressive mood, cannot be explained by any other individual. Thus, the conduct of the accused in dragging the body outside the room cannot be stated to be a clinching source to disbelieve the evidence of PWs1 and 2.
18. Nextly, the learned counsel for the appellant would submit that there is inordinate delay in forwarding the First Information Report to the Court, though the distance between the Police Station and the Court is hardly 1 km. In this regard, the learned counsel would point out that the occurrence had taken place at 05.00 p.m., whereas the First Information Report was registered at 5.45 p.m. But, the same has reached the Court at 11.30 p.m. The learned counsel for the appellant would submit that this delay has not been explained by the prosecution. The evidence of PW8, the Head Constable attached to the police station, who carried the First Information Report to the Court, is to the effect that he received the First Information Report at 6.45 p.m from the Sub Inspector of Police and thereafter, he handed over the same to the learned Magistrate at 11.30 p.m. He has admitted that the distance between the house of the Magistrate and that of the Police Station is 1/2 km. As rightly submitted by the learned counsel for the appellant, there is no explanation in respect of this delay. But, in our considered view, on this score alone the entire case of the prosecution cannot be rejected. It has been clearly spoken to by PW1 that the complaint was preferred at 5.45 p.m. as First Information Report. We do not find any material before us, to disbelieve this version. when we have come to the conclusion that the first information report would have been registered at 5.45 p.m. without any delay, simply because there is some delay in forwarding the same to the Court, we cannot disbelieve the entire case of the prosecution. Further, the delay cannot be stated to be enormous so as to create doubt in the case of the prosecution. Therefore, we hold that though there was delay in forwarding the First Information to the Court, on that score, the entire case of prosecution cannot be rejected as false.
19. Nextly, the learned counsel for the appellant would make a comment that Mr.Sagadevan, who has been mentioned as eyewitness in the first information report has not been examined. Of course, there is no explanation for the non examination of Mr.Sagadevan. But, the question is as to whether the non examination of Mr.Sagadevan would make the evidences of PWs1 and 2 unbelievable. In our considered opinion, it is not so. PWs 1 and 2 are the natural witnesses being the wife and mother of the deceased. The time of occurrence is 05.00 pm. Therefore, it would be quite natural for PWs 1 and 2 to have been present in the house at the time of occurrence. Thus, we do not find any reason to reject the evidences of Pws1 and 2. Simply on the ground that the said Sagadevan has not been examined, we are not prepared to reject the entire case of the prosecution.
20. Nextly, the learned counsel would contend that there has been no definite expert opinion in respect of the bullet recovered from the body of the deceased. In this regard, we may point out that PW15, the doctor, Shayam Sundar Singh at the time of autopsy found the bullet lodged in the head of the deceased. It was removed and the same was handed over to the Investigating Officer. When the accused was arrested, on his confession, from the hide out, cartridges were recovered. The cartridges and the bullet recovered from the body of the deceased along with the gun were sent for examination by expert. The expert has given opinion that the gun was in working condition. As a matter of fact, he has stated that using two of the live cartridges forwarded by the court, the gun was loaded and test shot was made. Thus, it has been clearly established that it was in working condition. Further, in the report of Mr.P.Rajan, a Scientific Officer and Firearms Expert, Ballistics Division, it has been stated that there were smoke particles found in the bore of the gun. He has further opined that this would indicate that the gun was used for shooting. But the expert was unable to say about the approximate time when the gun would have been used. In our considered opinion, it may not be possible for an expert to precisely state about the time at which the gun would have been used for shooting. But, the fact remains that from the opinion of the expert, it has been clearly established that the gun in question had been used. He has opined that the bullet recovered from the body of the deceased would have been shot from this gun. This opinion offered by the expert would only go to show that this country made gun would have been used and the bullet which was found in the body of the deceased would have been shot only from this weapon. In our considered opinion, there is no case for the defence to project before us. Thus, from the evidence of Pws1 and 2 and that of the ballistic expert opinion, the prosecution has clearly established that it was this accused, who really shot the deceased and caused his death.
21. Lastly, the learned counsel would submit that assuming that the accused shot the deceased with the gun and caused his death, still the offence committed by him would fall only under Section 304 Part-I IPC. For this, the learned counsel would submit that the accused would have acted due to sustained provocation. Thus, according to him, his act would fall under exception 1 to Section 300 IPC. This argument, in our considered opinion, is not acceptable. Absolutely, we find no materials anywhere by way of evidence that the accused had any sustained provocation. But, the learned counsel would point out that prior to the occurrence, as spoken to by PW1, there was a wordy quarrel between the deceased and the accused. Assuming that there was wordy quarrel, it is in evidence, that after some time, the accused went to the first floor of the house where he was residing. After a considerable time, he returned from the first floor with the loaded gun and then he shot the deceased.
22. The words uttered by the accused at that time plays a vital role to infer the intention. According to PWs 1 and 2, the accused shouted at the deceased stating that unless the deceased was eliminated, he would not be in a position to get his due share in the house. These words uttered by the accused would clearly go to establish his intention and rule out the possibility of either sudden provocation or sustained provocation. The accused has not pleaded that he acted either in grave and sudden provocation or sustained provocation. For a moment, we are not to say that it is always necessary to plead such a defence. It is enough if the accused has made out a case for either grave and sudden provocation or sustained provocation by means of materials gathered from the prosecution witnesses. The accused can prove the defence by mere probability and the same need not be proved beyond reasonable doubts. But, in this case, absolutely there is no material even prima facie to infer that the accused had either any grave and sudden provocation or any sustained provocation. Therefore, this argument of the learned counsel for the appellant deserves only to be rejected.
23. Now coming to the offence committed by the appellant, in our considered opinion, it falls under the first limb of Section 300 IPC. As we have already stated, the words uttered by the accused would give a clear inference of the intention. Apart from that, the gun in question is not a licensed gun. There is no explanation as to how he came to possess the same. Thus, the possession of an unlicensed gun and carrying the same, uttering of the words, previous motive, and all put together would clearly prove that the accused had a definite intention to kill the deceased. Thus, the act of the accused falls squarely under the first limb of Section 300 IPC. So, the accused is liable to be punished under Section 302 IPC.
24. In respect of the gun, it is not the case of the defence that it was a licensed one. Thus, the possession of arm and using the same by the accused is an offence punishable under Section 25(1-B)(a) of the Indian Arms Act. Therefore, we hold that the trial Court was right in convicting the accused under both the charges. In respect of the sentence imposed also, no infirmities have been pointed out by the learned counsel for the appellant.
25. In the result, the appeal fails and the same is accordingly dismissed. The conviction and sentence imposed on the appellant by the Trial Court is hereby confirmed.
jikr To
1.The Additional District Sessions Judge(FTC) Periyakulam.
2.The Inspector of Police, Srivaikundam Police Station, Thoothukudi District.