IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.12.2009
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH
CRIMINAL APPEAL NO.738 OF 2009
1. Murugan
2. Chinnarasu .. Appellants
Vs.
State rep. by
Inspector of Police,
Vazhavanur Police Station.
Villupuram District. .. Respondent
This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge, Villupuram made in S.C.No.253/2007 dated 09.11.2009.
For Appellants : Mr.R.Sankarasubbu
For Respondent : Mr.Babu Muthu Meeran, APP
- - - -
JUDGMENT
(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)
This appeal is directed against the judgment of conviction and sentence passed by the learned Principal Sessions Judge, Villupuram in S.C.No.253/2007 against the appellants/accused 3 and 4.
2. The case of the prosecution in brief would be as follows:-
(a) The appellants are the accused A3 and A4. The father of the accused A1 and A2 and deceased Chinnathambi are brothers they have common property, like houses vacant sites, lands, coconut trees, tamarind trees, mango trees without any division. There was a dispute in dividing the property and upon the said dispute enmity developed and was prevailing in between them. Since the deceased Chinnathambi had plucked coconuts from the coconut trees for the Mariamman kovil temple festival, the accused 1 to 4 on 15.06.2007, at about 05.00 p.m, destroyed the bunch of coconut flowers and the buds of tender coconuts and when the deceased Chinnathambi and witnesses Gopal, Kamalam, Chitra questioned the accused 1 to 4, the 1st accused had shouted at Chinnathambi that he was responsible and therefore he should be finished and by saying so attacked him with koduva knife on the back of his head. A2 had also shouted against him and had attacked with koduva knife on the left side of his head and when P.W.1 attempted to prevent him, A2 had with the koduva knife, attacked on his left leg. When P.W.2 Kamalam was about to prevent the said incident, A3 with koduva knife cut on her head and A4 had attacked on her right shoulder. Similarly when P.W.3 Chitra attempted to prevent the accused A4 beat her with wooden log on her front side of the head and on her left hand wrist thereby the accused A3 and A4 had common intention to help A1 and A2 to commit the murder of Chinnthambi.
(b) The Investigating Officer had proceeded on the case registered u/s. 294 (b) 323, 324, 302 r/w. 34 I.P.C against the accused and had filed the charge sheet before the Judicial Magistrate II Villupuram and the case was taken on file in P.R.C.No.48/2007 and was committed to Principal Sessions court and was taken on file on S.C.No.253/2007. The trial court had framed necessary charges and had proceeded against all the accused by examining 15 witnesses, 31 documents and 9 material objects on the side of the prosecution.
3. The case of the prosecution as spoken by the prosecution witnesses would be as follows:
(a) P.W.1 Gopal is the son of deceased Chinnathambi. P.W.2 Kamalam is the wife of the deceased Chinnathambi. P.W.3 is the daughter of deceased Chinnathambi. The father of the accused 1 and 2 and deceased Chinnathambi were brother and were having ancestral properties and they were in common and a dispute emanated between them and a civil suit was filed and it was pending.
(b) The deceased Chinnathambi had plucked coconuts from the common coconut trees for donating to the Mariamman kovil festival in the village. Enraged upon the said action of deceased Chinnathambi, on 15.06.2007, at about 05.00 p.m accused 1 to 4 had destroyed the bunch of coconut flowers and the buds of tender coconuts in the coconut trees belonging to both of them and when the deceased Chinnathambi and P.W.1 to P.W.3 had gone to the place and questioned the action of the accused, A1 had shouted at Chinnathambi saying that he would ask questions if let alive and by saying so, he had caused cut injury on the backside of Chinnathambi's head with koduva knife. A2 had also uttered against him that he should die and then only their family would be happy and by saying so he had cut on the left backside of the head of deceased Chinnthambi with koduva knife and the attempt made by P.W.1 to prevent the assault was in vain. P.W.1 was attacked by A1 with koduva knife on the backside of his head. A2 had cut on the left leg with koduva knife when P.W.2 attempted to prevent the said incident. A3 had inflicted cut injury on her head. A4 beat her on her left shoulder when P.W.3 went and attempted to prevent the incident A1 beat her on her head and on her left hand wrist. The accused persons had fled away from the scene of occurrence. The injured persons including Chinnthambi were taken to Government general hospital and since the Chinnathambi was having serious injuries he was taken to Government general hospital Puducherry from the Government hospital Villupuram.
(c) P.W.2 and P.W.3 had spoken in consonance with the evidence given by P.W.1. They have also identified the koduval knifes and the wooden log produced as M.Os.1,2 and 7 series. The clothes worn by the said Chinnathambi were also identified by them as M.Os.3 to 6.
(d) Doctor P.W.11 had examined Chinnathambi before he was transferred to Government hospital Puducherry and had found that he sustained serious injuries as found in the A.R.copy Ex.P.13. Doctor had examined P.W.2 Kamalam for the injuries sustained by her in the incident and opined that the injuries are simple injuries as per Ex.P.14 A.R. Copy. He had also examined P.W.3 Chitra for the injuries sustained by her and found two injuries on her body and she was admitted as in patient and those injuries were found simple in nature and the A.R.copy issued is Ex.P.15. On the same day P.W.11 had also examined one Gopal [P.W.1] for the injuries sustained by him. P.W. 11 and found two injuries inflicted on him and the A.R.copy prepared was Ex.P.16. P.W.11 had also examined and noted the injuries sustained by A1 and the relevant A.R. copy was produced as Ex.D.3.
(e) On intimation given from the Government hospital Villupuram, S.I of Vazhavanur Police station P.W.14 had gone to the Government hospital Villupuram and examined P.W.1 Gopal and recorded his statement Ex.P.1 and returned to the police station and registered a case in Cr.No.476/2007 u/s. 294 (b), 324,323, 307 I.P.C and the said F.I.R is EX.P.20. He had also sent the F.I.R to court through Head Constable Chandrasekar. The investigator after the receipt of the F.I.R commenced the investigation and had proceeded to the place of occurrence by 06.15 a.m and in the presence of witnesses prepared Observation Mahazar Ex.P.3 and Rough Sketch Ex.P.2. The investigator P.W.15 had also seized the blood stained earth, sample earth through Seizure Mahazar Ex.P.5 in the presence of the witnesses. Thereafter, the investigator had examined the injured witnesses P.W.2 and P.W.3 at Government hospital Villupuram and recorded their statement. Similarly, the statement of witnesses Ravichandran, Murugan, Srinivasan, Arul, Saravanam were investigated by the investigator at the place of occurrence. Thereafter, he had proceeded in search of the accused and near Malattaru, Mettupalayam, he arrested A1 and recorded the voluntary confession given by A1 in the presence of witnesses and he had also given confession leading to recovery of koduva knife that he used in the offence. The said admissible portion is Ex.P.23.
(f) The investigator had also seized two 'koduva' knifes as identified in pursuance of the confession leading to recovery under the cover of Mahazar Ex.P.24. Thereafter at about 01.30 p.m, A3 was arrested and he had also given voluntary confession and the accused 1 and 3 were sent to court for judicial remand. The said Chinnathambi who was admitted at Government hospital Puducherry died on 23.06.2007 at about 03.45 a.m. The death of Chinnathambi was informed by P.W.12 Doctor to the respondent police. After the receipt of the death intimation the investigator had altered the provisions from 307 I.P.C to 302 I.P.C and sent alteration report to the court. The investigator P.W.15 had also examined the witnesses Ramu, Dhanusu, Sundaramoorthy and had recorded their statements. He had also examined Kamalam (P.W.2), Gopal (P.W.1), Chitra (P.W.3) and Ravichandran (P.W.4) and recorded their statements. He conducted inquest on the dead body of Chinnathambi on that day itself in between 08.00 a.m to 12.00 noon and had prepared the inquest report Ex.P.26. Thereafter, P.W.15 had caused sending the body of Chinnathambi through Head Constable Murugaiyan with the requisition to the Doctor for post mortem.
(g) P.W.13 Doctor had commenced the autopsy on the dead body of Chinnathambi on 23.06.2007 at 02.45 p.m and had found various antemortem injuries. He had also opined that the death of Chinnathambi would have caused due to the head injuries sustained by him. He had also issued the Post Mortem Certificate Ex.P.19.
(h) The investigator on intimation, that the accused 2 and 4 had surrendered before the Judicial Magistrate II Villupuram on 26.06.2007, and were remanded to judicial custody, the investigator had applied for police custody and took A2 and A4 for further investigation and examined them, between 05.07.2007 to 09.07.2007. The accused No.2 had voluntarily confessed in the presence of P.W.10- Azhagesan V.A.O and his assistant Janakiraman and the investigator recorded the same. In the said confession, he had also disclosed the concealment of the knife and the said admissible portion is Ex.P.9. In pursuance the said confession A2 proceeded to Malattaru, Mettupalayam and identified and took away one knife from the bushes and produced the knife found in M.O.2 series. The seizure mahazar prepared for that purpose was Ex.P.10. Similarly, when A4 was interrogated, he had also voluntarily confessed in the presence of the same witnesses and disclosed the place of concealment of the knife and wooden log he used of the commission of offence. A4 also lead the investigator and the witnesses to Malattaru bush and had identified the knife and wooden log and produced them. The admissible portion of the confession statement is Ex.P.11 and the knife and log seized on his confession were produced as M.Os.1,2 and 7. The said material objects were seized through Ex.P.12 Mahazar in the presence of the same witnesses after returning to the police station. The accused A2 and A4 were surrendered by the investigator before the court. The investigator had sent the material objects for chemical analysis. He had also recorded the statement of V.A.O by examining them and he had also recorded the statements of Doctors who issued the death intimation and performed post mortem and obtained the documents concerned. Thereafter, he had also examined further witnesses and recorded their statement and had obtained chemical examination and serology reports and had filed the charge sheet against the accused, as aforesaid.
4. The accused were questioned u/s. 313 Cr.P.C on the incriminating circumstances found against them in the evidence of the prosecution and they simply denied them as false. No oral evidence was adduced on the side of the accused. However three documents were produced as Ex.D.1 to Ex.D.3.
5. The learned counsel for the appellants/A3 and A4, Mr.Sankarasubbu would submit in his argument that the lower court had miserably failed in fastening the appellants also in the commission of crime in which the deceased Chinnathambi was murdered. He would further submit that the evidence of P.W.1 as relied by the lower court are contrary to the cross examination. He would also submit that the P.Ws.1 to 4 are interested witnesses since they are close relatives of the deceased person and therefore their evidence have to be discarded as they did not speak the truth.
6. He would further submit in his argument that the Village temple festival was celebrated on that day and therefore the villagers should have witnessed the incident and the entire occurrence said to have taken place was not correctly spoken by P.Ws.1 to 4. He would further submit that the prosecution witnesses and the deceased were the aggressors and they only initiated the wordy quarrel with the accused 1to 3 and therefore, the accused 3 and 4 cannot be held liable. He would also submit that injury was caused to A1 at first and the prosecution did not explain the injury caused to A1. The lower court had not appraised the evidence properly but had come to a conclusion perversely against all the accused. Even otherwise the prosecution has not spoken about the overtacts of A3 and A4 on the deceased Chinnathambi nor the common intention to commit the murder of Chinnathambi along with the accused 1 and 2. He would further submit in his argument that the prosecution could have recorded dying declaration since the deceased died after a long time from the date of incident and therefore the case of the prosecution should be viewed suspiciously. He would further submit in his argument that the lower court had pre determined the conviction of all the accused despite there was no evidence available on the side of the prosecution against A3 and A4. He would further insist in his argument that the evidence of P.W.1 to P.W.3 who are stated to be the eye witnesses are the interested witnesses and their evidence cannot be relied upon and therefore, conviction should not have been recorded against the accused 3 and 4 and therefore the judgment of conviction and sentence passed by the lower court against A3 and A4 should be set aside and the appeal be allowed.
7. Heard the learned Additional Public Prosecutor Mr. Babu Muthu Meeran and we also paid consideration to his argument. He would insist in his argument that the evidence of P.Ws.1 to 4 are cogent and they would corroborate with the medical evidence and the circumstantial evidence which would clinchingly show that the accused were having common intention to cause the murder of deceased Chinnathambi. He would also submit that the lower court had found that all the accused are having common intention and were liable to be punished u/s. 302 r/w. 34 I.P.C and also other charges framed against them. Therefore, he would request the court to dismiss the appeal.
8. On giving consideration to the arguments advanced on either side, we could see that the evidence adduced by the Doctor P.W.12 would prove the death of Chinnthambi which happened on 23.06.2007. The death intimation produced as Ex.P.17 would support his evidence. The evidence of another Doctor namely P.W.11 would go to show that the deceased Chinnathambi sustained injuries on the back of his head and on the side of the left eye and he was admitted in the hospital at Villupuram and thereafter he was referred to Government hospital Puducherry. He was given treatment in the said hospital. Despite the treatment he died. The inquest conducted by the investigator and the inquest report Ex.P.26 would go to show that the injuries caused against him in the incident caused him death. The evidence of P.W.13 Doctor working in Puducherry Government hospital who had performed the autopsy of deceased Chinnathambi had found eight injuries including the surgical wounds and he had opined in Post Mortem Certificate issued by him Ex.P.19, that the deceased Chinnathambi would have died due to the injuries sustained by him. The injuries found on the body of the deceased Chinnathambi and the evidence of Doctor would go to show that the death of Chinnathambi was caused only due to the injuries sustained by him and his death was proved to be a homicidal death.
9. As regards the cause of injuries leading to death is concerned we have to scrutinize the evidence of P.Ws.1 to P.W.4. P.W.1 was the son, P.W.2 was the wife and P.W.3 was the daughter of the deceased. It is the case of the prosecution that P.W.1 to P.W.3 along with the deceased Chinnathambi went to the place of occurrence to prevent the accused 1 to 4 from destroying the bunch of flowers and buds of tender coconuts in the trees which were common properties at the time of incident. According to the evidence of these witnesses, the accused 1 to 4 had koduva knives and wooden log in their hands and they attacked on the deceased Chinnthambi. They also attacked P.W.1-Gopal and P.W.2-Kamalam, P.W.3-Chitra when they attempted to prevent the overtacts against the deceased Chinnathambi.
10. The documents produced as EX.D.1 to D3 on the side of the accused, would go to show that a case has been registered against P.W.1 to P.W.3 in Cr.No.480 of 2007 on the file of the respondent police in connection with the incident and on investigation the final report was filed closing the case as to the mistake of fact. Ex.D.1 is the F.I.R and Ex.D.2 is the final report. The A.R. copy of the accused 1 is produced as Ex.D.3. In the said document Ex.D.3, a lacerated injury was found to have been sustained by A1. The said final report filed by respondent police in Ex.D.2 was not pursued further by the complainant of Ex.D.1 of by the accused persons. Therefore, those documents produced as Ex.D.1 to D.3 would go to show that there was an incident on 15.06.2007 during the same time in which the accused 1 to 4 and P.Ws.1 to 3 and the deceased Chinnathambi were involved. The evidence of P.Ws.1 to 3 would go to show that they were also injured in the said incident and therefore their evidence cannot be simply brushed aside as relative witnesses. They have spoken to, about the overtacts committed by A1 and A2 against the deceased Chinnathambi as well as against them and also the overtacts of the accused 3 and 4 against them. The evidence of P.Ws.1 to 3 corroborated by the medical evidence produced through P.W.11 to P.W.13 inspired confidence of the court and their evidence cannot be rejected.
11. According to their evidence the injuries were inflicted upon the deceased Chinnathambi only by A1 and A2. P.Ws.1 to 3 had also spoken to the effect that they sustained injuries on the overtacts of A1 and A2. Their further evidence would be that A3 inflicted injury on the head of P.W.2 with 'koduva' knife and A4 hit at her right shoulder with wooden log. Similarly A4 beat P.W.3 on the front side of her head and left hand wrist. The evidence of P.Ws.1 to 3 who are the injured eye witnesses had not implicated A3 and A4, for any overtact against the deceased Chinnathambi. However the lower court had come to a conclusion that A3 and A4 had with the common intention of murdering Chinnathambi with A1 and A2 came to place of occurrence.
12. Now, we have to see whether A3 and A4 had any common intention of committing murder of Chinnathambi along with A1 and A2. No doubt the evidence of P.Ws.1 to 3 had spoken about the overtact of A1 and A2 against the deceased Chinnathambi. In the said incident as spoken by P.Ws.1 to 3 that there was an enmity in between Chinnathambi and the accused in respect of sharing common properties and a civil suit is pending in between them. In that circumstances, when the accused 1 to 4 were destroying the bunch of flowers and buds of tender coconuts in the common property the deceased Chinnthambi and P.Ws.1 to 3 were attempting to prevent them. In the said circumstances, the accused persons attacked deceased Chinnathambi and P.W.1 to 3. It was not spoken by prosecution witnesses that accused A1 to A4 had come to the place of occurrence with a common intention of murdering deceased Chinnthambi. We could infer from the sequences of occurrence that there was no common intention for accused A3 and A4 to do murder of Chinnathambi. Therefore recording of conviction by the lower court against A3 and A4 for the charges u/s. 302 r/w. 34 I.P.C is neither in accordance with the evidence available on the side of the prosecution nor in accordance with law. Therefore, this court could see some force in the argument of the learned counsel for the appellants/A3 and A4. However, the evidence of P.Ws.1 to 3 are clinching in respect of the overtacts of the accused persons 1 to 4 against them. Accordingly, P.W.2 was cut by A3 on the backside of her head and A4 hit her on her left shoulder. Similarly P.W.3 was attacked by A4 by wooden log on her head and also on her left had wrist. The said injuries sustained by P.W.2 and P.W.3 were clearly spoken by medical evidence P.W.11 and through A.R. copies produced in Ex.P.14 and Ex.P.15 respectively.
13. The evidence of prosecution was also supported by circumstantial evidence namely the confession of A1 and A2 leading to recovery of material objects A4 also gave confession before the investigator and the witnesses and the koduva knives and wooden logs were also seized under the cover of seizure mahazar through his confession leading to recovery.
14. In the aforesaid circumstances, the prosecution witnesses would clinchingly show the guilty of appellants/A3 and A4 only in respect of offence u/s. 324, 323 (2 counts) I.P.C respectively and not in respect of the offence u/s. 302 r/w. 34 I.P.C. Therefore, we are of the considered view that the lower court was wrong in convicting the appellants/A3 and A4 u/s. 302 r/w. 34 I.P.C. and therefore it has become necessary for us to set aside the same and accordingly the judgment of lower court was undone in respect of the conviction u/s. 302 r/w.34 I.P.C against A3 and A4. The conviction of 323 (2 counts) against A4 and appropriate sentence passed against them are in tact and therefore not disturbed.
15. In the result, A3 and A4 are acquitted from the charges u/s. 302 r/w 34 I.P.C. The charge u/s. 324 I.P.C against A3 and the charge u/s. 323 I.P.C (2 counts) against A4 stand proved and therefore the conviction under these sections and the relevant sentence passed thereon are confirmed. With the above modification in the conviction and sentence against the appellants the appeal is dismissed.
(M.C.,J.) (V.P.K.,J.)
23.12.2009
Index : Yes/No
Internet : Yes/No
kpr
To
1. The Principal Sessions Judge,
Villupuram
2. Inspector of Police,
Vazhavanur Police Station.
Villupuram District
3. The Public Prosecutor,
High Court, Chennai.
M.CHOCKALINGAM,J.
and
V.PERIYA KARUPPIAH,J.
Kpr
Crl.A.No.738 of 2009
23.12.2009
No comments:
Post a Comment