Madras High Court
Chandramohan vs State Represented By on 28 July, 2008
Author: Prabha Sridevan
Bench: Prabha Sridevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date : 28/07/2008 Coram The Honourable Mrs. Justice PRABHA SRIDEVAN and The Honourable Mr. Justice M.JEYAPAUL Crl.A.No. 233 of 2008 Chandramohan ... Appellant vs State represented by The Inspector of Police, Suchindiram Police Station, Kanyakumari District. ... Respondent Appeal against the judgment passed in S.C.No.137/2002 on the file of the learned Sessions Judge, Kanyakumari, Nagercoil, dated 11.08.2003. !For Appellant ... Mr.Duraipandi for Mr.P.Ramasamy ^For Respondent ... Mr.P.N.Pandidurai, Additional Public Prosecutor :JUDGMENT
(The judgment of the Court was made by PRABHA SRIDEVAN,J) The accused No.1 has filed this appeal. Seven accused faced trial in S.C.No.137 of 2002 and A2 to A7 were convicted inter alia for offence under Section 302 IPC r/w.149 IPC. A1 was convicted interealia for the offence under Section 302 IPC. A2, A3 and A7 filed Criminal Appeal Nos.1300, 1301 and 1421/2003 and the appeals were dismissed on 19.02.2007.
2. The 1st accused Chandramohan, who was convicted for the offences under Sections 148, 364, 324 and 302 of IPC and sentenced to undergo rigorous imprisonment for 6 months for the offence under Section 148 of IPC, rigorous imprisonment for 5 years and to pay a fine of Rs.1,000/- with default sentence for the offence under Section 364 of IPC. and rigorous imprisonment for 6 months for the offence under Section 324 of IPC and life imprisonment for the offence under Section 302 of IPC has moved this Criminal Appeal.
3. On the side of the prosecution as many as 16 witnesses were examined and 33 documents and 14 Material Objects were marked. Neither oral nor documentary evidence was let in on the side of the defence.
4. The sum and substance of the prosecution case as projected by the witnesses examined reads as follows:
Banumathy P.W.1 is the wife of the deceased Palanivel. Rajan, P.W.2 is the husband of the sister of the deceased. Suresh, P.W.3 is the brother of P.W.1.
5. On 18.07.2001 at about 4.30 p.m., when P.W.1 was with her husband and her mother-in-law at her house in Malaiyaninthan Kudiyuruppu, the 1st accused Chandramohan and the 2nd accused Krishnan came to her house, the 3rd accused Ramesh and the 4th accused Kannan @ Ganesh Kumar were standing in front of her house. All the aforesaid accused came by two motor cycles. The 1st accused under the guise of taking her husband to Thengapudur boarded him in the motor cycle. Her husband was sandwiched in the seat of motor cycle between the 1st accused and the 2nd accused. They proceeded towards Malaiyaninthan Kudiyuruppu intersection.
6. P.W.2 is the sister's husband of the deceased. In his presence, the accused 1 to 4 set down the husband of P.W.1 from the motor cycle and took him into an Ambassador Car. Palanivel, the husband of P.W.1 made a hue and cry and sought for help. When Natarajan, father of the deceased asked the accused to leave Palanivel, the 1st accused attacked on his right hand and caused an injury. Thereafter, all the 4 accused abducted Palanivel in the Ambassador Car.
7. By evening at about 5.50 p.m. on the said day, Natarajan, the father of the husband of P.W.1 informed her that his son was abducted by the accused and at the time, when he resisted, he was attacked. The next day, P.W.1 and her mother-in-law went in search of her husband. She heard that the purse belonging to her husband was found near Murugan Temple in the Sothavinai Beach. Her father-in-law Natarajan died after the occurrence. She identified the signature Ex.P.1 in the complaint.
8. Suresh P.W.3 is the brother of P.W.1. He went along with one Masana Muthu to Sothavilai Beach at about 5.00 p.m. on 18.7.2001. An Ambassador Car arrived over there. The 1st and the 2nd accused got down from the car and the 3rd and the 4th accused came by motor cycle. The 6th accused Hemanakumar and the 7th accused Lingam @ Lingadurai also were present. The husband of P.W.1 was inside the car. He was taken out thereafter. Then the 1st accused delivered a cut on the neck of the husband of P.W.1 with Aruval. The 2nd and the 3rd accused attacked him on his cheek. The 4th accused attacked him on his neck with knife. The 5th accused attacked him on the back of his head. The 5th accused also attacked him all over his body with sticks. Thereafter, Palanivel collapsed to the ground. All the accused sped away from the scene of occurrence in the Ambassador Car and the Motor Cycle. Fearing that the accused would give trouble to him, P.W.3 remained in his house without informing anybody. He disclosed the occurrence to his sister P.W.1 only in the next day morning.
9. Mr.Kamurdee Sahib, Head Constable attached to Suchindraum Police Station, P.W.15 recorded a statement Ex.P.22 from Natarajan and registered a case in Crime Number 356/2001 for offence under Section 364 of IPC. He prepared Printed First Information report Ex.P.23 and sent Natarajan with a memo for treatment. Mr.M.V.S.Regunathan, the Inspector of Police attached to Suchindraum Police Station P.W.16 received a copy of the First Information Report Ex.P.23 from P.W.15. The next day morning at about 7.00 a.m., he inspected the scene of occurrence in the presence of P.W.4 Iyappan and prepared Observation Mahazar Ex.P.2 and also drew Rough Sketch Ex.P.24 reflecting the scene of occurrence. He thereafter inspected the place where the dead body was found. He received information that the injured Palanivel breathed his last. Therefore, he converted the case into one under Section 302 of the IPC and prepared an Alteration Report Ex.P.25. Thereafter, he inspected the scene of occurrence at about 10.00 a.m. in the presence of P.W.4 and prepared Observation Mahazar Ex.P.3 and drew Rough Sketch Ex.P.26. He conducted the inquest on the dead body of Palanivel and prepared Inquest Report Ex.P.27.
10. Dr.Jaisingh Rajamony P.W.12 received requisition from P.W.16 for the purpose of conducting postmortem examination on the dead body of Palanivel. He commenced the postmortem examination at about 3.00 p.m. on 19.07.2001. He found the following external and internal injuries on the dead body of the deceased during the course of postmortem:
External Injuries:
1. 10 x 3 x 3 cm horizontal cut injury in front of the neck extends 2 cm above the inner end of let clavicle to the right side 2 cm above the inner end of right clavicle. The injury passes downwards and slightly downwards O/D. The upper end of trachea the oesophagus the muscles and major blood vessels on both sides found cut.
2. 8 x 3 x 3 cm. muscle deep cut injury extends from the base of right ear lobe to the midline of the back of the neck. O/D. Sub-scalpal and intra scalpal blood clots seen on the right side of occipital area. No fracture of skull seen.
3. 3 x 2 x2 cm muscle deep oblique cut injury on right cheek.
4. 2 x . cm muscle deep cut injury on the right side of the upper lip.
5. 1 . x x . cm cut injury just below injury no.1.
6. 3 x . cm. abrasion on the right elbow.
7. 2 x . x . cm cut injury on the right side of the back of the head just above Injury No.2
8. 3 x 3 cm abrasion on the outer aspect of right ankle.
9. 4 x 3 cm abrasion on Right side hip.
10. 5 x 4 cm abrasion on left back.
Internal Examination:
On opening the thorax, the 3rd and 4th ribs on right side and 4th rib on left side found fractured near the costrochondral junction. Blood clots seen on the fracture site.
Heart weight normal chambers empty. The lungs liver and spleen weight normal and C/s. Pale. Stomach contains about 200 gms of semi digested food particles. Kidneys weight normal and c/s.pale. Bladder empty.
He opined in the Postmortem Certificate Ex.P.14 that the deceased appeared to have died of shock and hemorrhage due to injury No.1, 12 to 24 hours prior to postmortem.
11. With the assistance of a Photographer P.W.14, the scene of occurrence was photographed. The photos were marked as Ex.P.20 and the Negatives thereof as Ex.P.21. P.W.16 recovered Blood Stained Earth M.O.2, Sample Earth M.O.3 and Rubber Chapal M.O.4 in the presence of P.W.4 under relevant Seizure Mahazar Ex.P.4.
12. The 2nd and the 3rd accused were arrested in the presence of P.W.5 at about 3.30 p.m. on 23.07.2001. On the basis of the admissible portion Ex.P.5 in the confession statement of the 2nd accused Knife M.O.5 was recovered under Mahazar Ex.P.6. Thereafter, the 2nd and the 3rd accused were remanded to judicial custody. The 4th and the 5th accused were arrested at 2.30 p.m. on 28.7.2001 in the presence of P.W.6 and P.W.7. A4 gave a confession statement and he also surrendered the Knife M.O.1 kept hidden in his waist. P.W.16 thereafter recorded the confession statement of A5. On the basis of the admissible portion Ex.P.30 in the confession statement of A5, Billhook M.O.9 was recovered under Mahazar Ex.P.31. The 4th and the 5th accused were remanded to judicial custody on 3.8.2001. P.W.16 recorded the statement of Natarajan, who was taking treatment in the hospital. On 6.8.2001 at about 10.30 a.m., he arrested the 7th accused in the presence of P.W.8 and P.W.9. He recovered Ambassador Car M.O.10. The 6th accused was arrested at about 9.30 a.m. on 16.8.2001. The 1st accused was surrendered before the Court at Chennai. He was taken into police custody on 4.9.2001. In the presence of P.W.10, the 1st accused gave a confession statement. On the basis of the admissible portion Ex.P.9 in the confession statement of the 1st accused, the Motor Cycle M.O.8 was recovered under Seizure Mahazar Ex.P.11. The 3rd accused also surrendered before the learned Judicial Magistrate No.III, Nagercoil. He was taken into police custody on 26.09.2001. He was examined in the presence of P.W.5. He gave a voluntary confession statement. On the basis of the admissible portion Ex.P.7 in the confession statement, the Billhook M.O.6 was recovered under relevant Mahazar Ex.P.8. The accused was thereafter remanded to judicial custody. P.W.16 gave a requisition Ex.P.15 to the learned Judicial Magistrate for sending the material objects for chemical examination. The Chemical Reports Ex.P.17 and Ex.P.18 and Serology Report Ex.P.19 were received from the Forensic Science Laboratory.
13. P.W.16 having completed the investigation laid final report as against the accused for the offences punishable under Sections 147, 148, 324, 364 and 149 read with 302 IPC.
14. The incriminating portions found in the testimony of the witnesses examined on the side of the prosecution were put in the form of questionnaire to the appellant herein under Section 313 of Cr.P.C. He responded saying that a false case was foisted as against him.
15. We have heard the submissions of the learned counsel for the Appellant and the learned Additional Public Prosecutor for the Respondent.
16. The learned counsel for the appellant submitted that in C.A.Nos.1300, 1311 and 1421/2003, this Court confirmed the conviction under Section 302 IPC even with regard to A1, though the appeal filed by A1 was not before this Court. Therefore, he would submit that this appeal must be heard afresh by this Court and in so far as the appellant is concerned, the aforesaid judgment will not in any way affect his right to contest his appeal and for this purpose, he relied on AIR 1982 Supreme Court 1175 (Shyam Sunder v. State of Rajasthan).
17. With reference to the merits of the case, the learned counsel for the appellant submitted that the occurrence had taken place in 3 stages. According to P.W.1, who is an eye-witness, so far as the first stage is concerned, she has clearly spoken of the deceased being taken by A1 and A2 in a Motor Cycle. A1 and A2 had come in one motor cycle and A3 and A4 had come in another motor cycle. According to the prosecution, the second stage had been witnessed by P.W.2. According to him, A1 had shifted the deceased from the Motor Cycle into the Ambassador Car and the third stage had been spoken to by P.W.3, who actually spoke of the occurrence. The learned counsel submitted that the evidence of P.W.3 is full of infirmities and cannot be accepted. The learned counsel submitted that P.W.3, being the own brother of P.W.1, the wife of the deceased would have immediately rushed after seeing the occurrence at 5.00 p.m. on 18.7.2001 to inform his sister, whereas he had informed his sister only on the morning of 19.07.2001. His case that he did not inform anyone, because he was afraid cannot be believed. The learned counsel submitted that the question whether he was at all an eye-witness looms large in one's mind, since in cross- examination he had stated that subsequent to this occurrence, there was a case against A4 and A5 where he had given evidence and stated that he had never seen the aforesaid accused and that the said case was subsequent to the complaint in the present one. If so, the prosecution case that P.W.3 was aware of and knew the identity of all the accused cannot be accepted.
18. The learned counsel submitted that in this case the complainant had died before he was examined as a witness and though the complainant is said to be injured and the Accident Register Copy is marked as Ex.P.12, the prosecution has not marked the medical memo and further Ex.P.12 has recorded only the date, did not record the time. Therefore, much weight cannot be given to Ex.P.12 The learned counsel also submitted that P.W.16, the Investigating Officer had clearly stated in his cross-examination that he had not seen the injured complainant in the night and that he had not commenced the investigation in the night itself. The learned counsel further submitted that the Rough Sketch Ex.P.24 did not show the Murugan Temple, which according to P.W.3 was situate on the beach near the scene of occurrence and therefore, the scene of occurrence itself is doubtful.
19. The learned counsel also submitted that the medical evidence is also to be suspected. The Postmortem Doctor has not linked the injuries with the weapon and the prosecution has not chosen to show the weapon to P.W.12, the Postmortem Doctor to find out whether the injuries sustained by the deceased could have been inflicted by the M.O.
20. In reply, the learned Additional Public Prosecutor would submit that the Court should take note of the entire evidence as a whole and not dissect the evidence so as to question its credibility.
21. According to the learned Additional Public Prosecutor, the deceased had been taken by A1 to A4 on the motor cycle which was witnessed by P.W.1 and then he was shifted into the Ambassador Car, which was seen by P.W.2. The learned Additional Public Prosecutor further submitted that P.W.2 had also spoken of the fact that A1 was armed and that injury was inflicted on the complainant, who is the father of the deceased. The fact the complainant had sustained injury at the relevant point of time has been spoken to by P.W.11 Doctor and evidenced by Ex.P.12, the Accident Register.
22. The learned Additional Public Prosecutor submitted that the Accident Register refers to the medical memo and therefore, the fact that the medical memo was not marked as a separate exhibit will not in any way weaken the prosecution case.
23. The learned Additional Public Prosecutor submitted that the next stage of the occurrence took place on the beach which was seen by P.W.3 and the fact that he immediately did not report to the police or he did not reveal that he was there will not in anyway affect the prosecution case. The learned Additional Public Prosecutor submits that the reaction of the persons would differ from one person to another. If the prosecution case is credible otherwise, then the fact that this witness informed his sister P.W.1 only early on the next day morning will not in any way affect the prosecution case.
23. The learned Additional Public Prosecutor submitted that Ex.P.26 reflects to the road going to the Murugan Koil and therefore, the fact that the temple is not shown separately in the rough sketch is not material. It was also submitted that all the witnesses had spoken clearly of the role of A1. At least one of the accused has been acquitted, so if there are discrepancies with regard to the overt acts spoken to the ocular evidence and the injuries referred to in the medical evidence, that cannot affect the prosecution case in so far as A1 is concerned.
24. The learned Additional Public Prosecutor also submitted a question for consideration whether once a decision has been arrived at regarding the sentence imposed by the trial judge, another Bench can examine the same.
25. We will first deal with the question whether the appellant is entitled to be heard. In AIR 1982 Supreme Court 1175 (Shyam Sunder V. State of Rajasthan), the appeal was transferred from the Jodhpur Bench to the Jaipur Bench without notice to the accused/appellant and though reasons were given for dismissing the appeal, it was heard without giving notice to the accused/appellant. Therefore, the matter was remanded for fresh disposal. It is a short judgment, we will extract it in full:
"This appeal in our opinion must succeed on a short point. The admitted facts are that the criminal appeal filed by the appellant before the Rajasthan High Court was initially presented in Jodhpur which is the headquarter of the High Court. A counsel from Jodhpur was engaged by the appellant to argue the appeal. While the appeal was pending in the Jodhpur Bench it was transferred to the Bench of Jaipur without serving any notice on the appellant. The appellant has stated in affidavit that even his counsel at Jodhpur did not inform him that the appeal had been transferred to Jaipur and will be heard there. In these circumstances, the appeal was heard by the Bench at Jaipur in the absence of the accused, as would appear from the judgment itself, counsel for the State of Rajasthan has not denied these facts and has conceded that as the appeal had been decided without hearing the accused he would not have any objection if the appeal is remitted to the High Court at Jaipur for rehearing in presence of the accused. Although the High Court at Jaipur has given reasons for dismissing the appeal, the fact remains that as the accused was not represented the possibility of the appellant having persuaded the High Court to take a different view cannot be reasonably excluded. In these circumstances, therefore, we allow this appeal, set aside the judgment of the High Court Bench at Jaipur and remand the appeal to the High Court at Jaipur for disposal in accordance with law after hearing the appellant as also the counsel for the respondent. The appellant will now immediately engage his counsel and appear before the High Court for further directions on the 16th of March, 1981. The High Court will fix a short date and dispose of the appeal as soon as possible.
2. The appellant will continue on bail. Appeal allowed."
26. The present case is more strongly in favour of the appellant than the above. In the present case, we have seen the judgment in Crl.A.Nos.1300, 1311 and 1421 of 2003 dated 19.2.2007. They have been filed only by A2, A3 and A7 respectively and not A1 and therefore, the judgment in so far as A1 is concerned is non-est. He was not heard as his appeal was not before the Court. No man can be condemned without being heard. The confirmation of the sentence in an appeal filed by others cannot affect his right to be heard. More than this we need not say. Therefore we have considered the submissions made by the learned counsel for appellant/A1 and the learned Additional Public Prosecutor and examined the materials on record.
27. P.W.1 is the wife of the deceased. On 18.7.2001, while she was sitting outside her house and talking to her husband, the deceased, and her mother-in-law, A1 and A2 came there and A3 and A4 were standing there. They had two motor cycles with them. A1 called the deceased to go to Thengampudur. A1 sat in the driver's seat. The deceased was seated in the middle seat. Krishnan A2 sat on the pillion in the other motor cycle. A3 and A4 were seated and have went towards Malaiyaninthan Kudiyuruppu. P.W.1's father-in-law told her at 5.50 p.m. that he saw the accused taking the deceased in the motor cycle and that when he questioned, he was injured and that thereafter he went and gave a complaint. In the morning, P.W.1 and the mother of the deceased went in search of the deceased. At 9 o' clock P.W.1 heard that the body of the deceased was lying on the beach. The complainant, father-in-law of P.W.1 also died after the occurrence. The evidence of P.W.1 is quite natural and she has stated the manner in which the accused took her husband along with them, how they had shifted him on the motor cycle. She has also stated in her cross-examination that thereafter she did not see the four persons on the motor cycle. In the cross-examination she has stated that at 5 o' clock in the next day morning, her brother told her about her husband's death.
28. P.W.2 is the sister's husband of the deceased. At 4.30 p.m., he was standing near a petty shop talking to others. At that time A2 and A1 came with a motor cycle and thereafter the Ambassador Car came along with the car driver A7 Lingam. This witness has referred to the registration of the Ambassador Car and he has stated that they lifted the deceased and threw him in the car. While the deceased shouted for help, Natarajan, the complainant, who is the father of the deceased went and requested them to let go of his son. Then, A1 with a knife in his hand cut Natarajan on his right hand. Thereafter, they went away in the car. This is the evidence of P.W.2. This too is credible and it gets support from Ex.P.12, the Accident Register, where the injury to Natarajan is referred to. P.W.11 is the doctor who issued Ex.P.12. So until the 2nd stage, the prosecution has clearly proved its case.
29. The next stage of the occurrence is what happened on the Beach that P.W.3 saw and P.W.3 has spoken about the presence of the Ambassador Car and the fact that all the accused came there and then he has also referred to the overt acts inflicted by A1 and other accused. He has stated that he did not inform anyone regarding the occurrence. He went away and only early in the next day morning he informed his sister P.W.1. The complaint was given by Natarajan, who died subsequently. Ex.P.23 is the First Information Report. This has been recorded at 9.00 p.m. on 18.07.2001. According to P.W.15, the Head Constable attached to Suchintraum Police Station, who received the complaint, a 72 years old man came to the police station and lodged a complaint and he registered a case in Crime No.356/2001 for the offence under Section 364 of IPC. He has then sent the injured Natarajan to the hospital. P.W.11 Doctor had spoken to the fact that on 19.7.2001 when he was in the Emergency Section, a 72 year old man came with a police memo and stated that on 18.7.2001 at 4.30 p.m. known persons inflicted wound with knife. He has examined the injured person and had given Ex.P.12 Accident Register Copy. He has stated that he has not recorded the time at which he examined the injured.
30. We have considered the picture that is brought before the Court by the prosecution in its entirety. Four persons including the appellant herein had taken the deceased in their motor cycle to a spot, where they shifted him from the motor cycle into the Ambassador Car. So far the evidence is totally credible and believable. Before shifting him in the Ambassador Car, A1 had inflicted injury on the father of the deceased. The fact that the father of the deceased was injured as a part of the same transaction is supported by the evidence of the Doctor P.W.11 and the Accident Register Copy Ex.P.12 and in this background, the evidence of P.W.3 should be considered.
31. If the evidence of P.W.3 is taken in isolation and the case of the prosecution is not believable otherwise, there may be some room for questioning whether he would have kept quiet. In State of Rajasthan Vs. Bhanwar Singh, (2005 Supreme Court Cases (Crl) 73), the Supreme Court held that it was quite unnatural that eyewitnesses on whom the prosecution case is based remained silent after witnessing the assaults on the deceased. But each case has to be dealt on the basis of the facts on hand. In that case before the Supreme Court, P.W.5, the widow of the deceased had categorically stated that she heard about the incident from some persons and sent for P.Ws.3, 4 and 8, who went to the alleged spot of occurrence to bring the deceased in an injured condition. Therefore, it was not possible to accept the case of the prosecution that P.Ws.3, 4 and 8 were eye witnesses when even the widow has stated she had summoned them after the occurrence. But in this case, we see no such infirmity. The occurrence that took place unfolded itself stage by stage and each stage has been explained fully by the prosecution. Further up to the stage, the deceased was transported to the Ambassador Car, the complicity of A1 in the whole transaction is clearly established. Then A1 alone could have given an explanation as to what had happened thereafter, which was within his knowledge exclusively. But, there is no such explanation from A1. So merely because P.W.3 had not immediately gone to the police to report about what he witnessed, we cannot reject the prosecution case. The overt acts spoken to by P.W.3 tallies with the medical evidence, especially the overt act inflicted by A1. The conduct of human beings in critical situation varies from person to person and when in all other respects, the prosecution has proved the case, we are not persuaded to reject the prosecution case, merely because P.W.3 has not immediately reported to the police. Further, there is absolutely no delay in the in the receipt of the complaint nor in the First Information Report reaching the Court. Therefore, the room for possible embellishment has been ruled out. It must be remembered at the stage of the complaint, it was only a case of abduction. It is for this reason that the investigation did not commence at once. The case was altered to one under Section 302 IPC under Ex.P.25 at 7.00 a.m. By 9.00 a.m. the Investigating Officer was at the scene of occurrence. So this explains why the Investigating Officer was at the scene of occurrence only in the morning. This is not an infirmity.
32. The Omission to show the Murugan Temple in Ex.P.24 Rough Sketch is also properly explained. When the oral evidence is convincing, the other alleged weakness will not affect the case against the accused.
33. The evidence is believable, the delay if any is explained, the FIR is not a fabricated one, the deceased complainant was proved to have been injured as part of the same transaction and the case of the prosecution deserves to be accepted.
34. Considering all these, we are not persuaded to interfere with the conviction made by the Sessions Court. In view of the above, we confirm the judgment of conviction recorded and sentences imposed on him by the trial court. Consequently, the appeal stands dismissed.
tsi To
1. The Inspector of Police, Suchindiram Police Station, Kanyakumari District.
2. The Sessions Judge, Kanyakumari, Nagercoil.