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DURAI versus STATE BY INSPECTOR OF POLICE

High Court of Madras

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Durai v. State by Inspector of Police - CRL.APPEAL NO.270 OF 1997 [2002] RD-TN 291 (26 April 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26/04/2002

CORAM

THE HONOURABLE MR.JUSTICE A.PACKIARAJ CRL.APPEAL NO.270 OF 1997

Durai .. Appellant. Versus

State by Inspector of Police,

E-4, Abiramapuram Police Station,

Madras. .. Respondent. For Appellant: Mr.V.Balu

For Respondent: Mr.V.M.R.Rajendran

APP

PRAYER: Appeal against the conviction and sentence passed by the learned VI Additional Sessions Judge, Madras in S.C.No.237 of 1996 dated 29.11.1996. :J U D G M E N T



A funeral procession on 21.3.1996 at 12.45 noon lead to another funeral when the appellant Durai attended the funeral of Ramayee at Kesavapuram Perumal Main Road, Madras-28, a wordy quarrel ensued between the appellant Durai and one Narayanasamy, during which time the appellant flicked out a knife and stabbed the said Narayanasamy, as a result of which Narayanasamy died and thereby the appellant was charged for an offence under Section 302 I.P.C. He denied the offence and hence the trial.

2. The funeral procession of one Ramayee at Door No. 32, Kesavapuram Perumal Main Road, Madras-28 was on its way towards the burning ghats, for which the deceased Narayanasamy a resident of the same street was going along with the procession and at that time the appellant who took part in the said funeral, started quarelling with the other persons going along with the procession. When the deceased Narayanasamy intervened and questioned the appellant as to why he should quarrel with them, the appellant abused Narayanasamy in a filthy language and consequently there springed a wordy quarrel between the two and all of a sudden, the appellant flicked a knife from his waist and stabbed the deceased and ran away from the scene. P.W.2-Mariappan and P.W.3 -Ramamoorthy who also participated the funeral procession had witnessed the occurrence and came to the rescue by bringing an auto and took the injured to the Royapettah Government Hospital. P.W.5-Dr. Tulasikumar, the medical officer attached to Royapettah Government Hospital examined the deceased at 1.10 p.m on 23.1.1996 and declared him to be dead. The death intimation was sent by him to the police through Ex.P-4.

3. P.W.1-Amudha, who is none other than the wife of the deceased went to the Abiramapuram police station and gave a report Ex.P-1 on 21.3 .1996 to P.W.10-Ramakrishnan, the Inspector of Police attached to the said police station, who registered it in Crime No.686 of 1996 for an offence under Section 302 I.P.C. He prepared Ex.P-10, the printed FIR and caused the originals to be sent to the Court, while the copies thereof to his superior officers. He then went to the scene of occurrence and prepared Ex.P-8 Observation Mahazar and Ex.P-11 the Rough Sketch. M.O.5-Blood stained Earth and M.O.6-Sample Earth were seized under mahazar Ex.P-9. Inquest was conducted by P.W.10 in the Hospital from 5.00 p.m to 7.00 p.m, during which period he examined all the eye-witnesses. Ex.P-12 is the inquest report. Ex.P-5 the requisition to conduct the autopsy on the dead body was prepared by him and the same was sent through the constable of his department.

4. P.W.6-Dr.Monohar, the Assistant Professor of Forensic medicine attached to Madras Medical College on receipt of the dead body and the requisition Ex.P-5 through the constable of Abiramapuram Police Station, at 11.30 a.m, conducted the autopsy and found the following injuries: INJURIES:

1. An eliptical stab wound measuring 3.5 x 1 x 5 cms over left side of chest, situated 7 cms below the left nipple and 4 cms lateral to the vertical line from the left nipple; on dissection it penetrated the 6th left intercostal space anterior surface of left lower lobe of lung, pericardium and lateral border of anterior surface of left ventricle and entered into the left ventricular cavity; stab wound margins are bruised; the medial border is obtused and lateral border is acute. Pericardial cavity contains 500 gms of clotted blood and left thoracic cavity contains 1300 ml of fluid blood. Ex.P-7 the postmortem certificate was issued by Dr.Manohar, wherein he has incorporated his opinion that the deceased died of homicidal violence due to stab injury to the heart.

5. In continuation of the investigation, P.W.10 examined the remaining witnesses. Further on receipt of the information on 22.3.96 that the accused surrendered before the XVIII Metropolitan Magistrate, he sought police custody of the accused and the same having been granted to him, he took him to police custody on 25.3.1996 and examined him, during which course, the appellant appears to have voluntarily given a statement, the admissible portion of which has been marked as Ex. P-13, in pursuance of which M.O.4-Knife was recovered under Ex.P-14. Through Ex.P-15 and Ex.P-16 requisitions, the recovered material objects were sent for chemical analysis to the concerned Magistrate, who in turn sent the same to forensic expert by Ex.P-17 and Ex.P-18 requisitions. After the conclusion of the investigation and on receipt of the reports Ex.P-19 and Ex.P-20 that the material objects sent for analysis contained the human blood, the Inspector of Police filed the final report against the accused for an offence under Section 302 IPC.

6. The appellant was examined under Section 313 Cr.P.C with reference to the incriminating materials found against him and he denied having committed any offence.

7. The deceased Narayanasamy died due to homicidal violence has been established through the evidence of the Doctor P.W.6, who conducted the autopsy. In the postmortem certificate Ex.P-7 issued by him, he has narrated the injuries found on the deceased and has opined that the death is due to shock and haemorrhage on account of the injuries sustained by the deceased. The same has not been disputed by the defence and consequently, the death was due to homicidal violence has been well established by the prosecution.

8. The question that arises for consideration is whether it was the accused who had caused the injuries. To establish the same, the prosecution has relied on the evidence of P.W.1, P.W.3 and P.W.10. It is the specific case of P.W.1 who is none other than the wife of the deceased that she was residing in the Kesavaperumal Street. She and her husband namely the deceased Narayanasamy attended the funeral procession of one Ramayee Ammal who had resided in the same street. When the funeral procession was in its way to the cremation ground, the appellant Durai who apparently had been present to attend the funeral, picked up a wordy quarrel with the people taking part in the funeral procession. It was at that time, the deceased intervened and tried to pacify the same, whereupon the accused flicked out a knife from his waist and stabbed the deceased on his chest and shoulder. The same is the evidence of P.W.3 and P.W.10. Though these witnesses have been cross examined in detail, nothing material has been brought out on record, which would discredit their version. There is absolutely no motive suggested to any of these witnesses as to why they should implicate the accused leaving out the real assailants.

9. The learned counsel would persuade this Court to disbelieve the evidence of these witnesses on account of their closeness to the deceased, in the sense that P.W.1 is the wife of the deceased, while P.W.3 and P.W.10 are neighbours of the deceased.

Merely because they are close relations, or partisan witnesses, it does not mean to say that their evidence has to be eschewed. The Apex Court has time and again stated that such evidence has to be scrutinised carefully and at the same time, they have also stated that such witnesses would see that the real accused is being booked and would not leave out the real culprits and falsely implicate the other.

10. On going through the evidence of these witnesses, bearing the above observation in mind, I find that their evidence corroborate one another. Further this being a case of a single accused and occurrence having taken place in a broad day light, there is no dispute regarding the identity of the accused is concerned. However, the learned trial Judge has believed the evidence of P.W.1 and P.W.10 alone, while disbelieving the evidence of P.W.3.

11. The learned trial Judge has disbelieved the evidence of P.W.3Ramamoorthy, mainly on the ground that this witness was arrayed as a witness in S.C.No.234 of 1996 and in the cross examination of that case, he has admitted that he has been a witness in 10 or 11 cases and though he was cited as a witness in the present case viz., S.C.No.237 of 1996, he was not aware of the facts.

I am afraid that the said finding has no basis whatsoever. The accused along with his statement under Section 313 Cr.P.C has filed the deposition of one Ramamoorthy who has given the evidence in S.C.No.234 of 1996 about the said facts. It is the claim of the accused that the said Ramamoorthy examined in S.C.No.234 of 1996, was P.W.3 in the present case. But however, the said Ramamoorthy examined as P.W.3, has not been confronted with his version earlier, nor has he been suggested that he was a witness in another case. As a matter of fact, not a single question has been put to this witness to indicate that he had given evidence in other cases. In such circumstances, the learned Sessions Judge has committed a serious error in taking into account, the evidence of a witness in another case and on the basis of those evidence, without being confronted to the the witness in this case, ranked him as a stock witness. In other words, I would not hesitate to state that it is an uncharitable assassination made by the counsel against the witness without affording the opportunity to him, and the learned trial judge upholding it.

12. Yet another contention put forward by the counsel was that the Judge having disbelieved the evidence of this witness, this Court has no power to set aside that finding and believe the witness. I am afraid that it does not appear to be the law. As a matter of fact this being an appeal the entire evidence has to be reconsidered. While considering so, Section 386 of Cr.P.C incorporates the powers of the Appellate Court to reverse the finding or alter the finding which includes that the finding of a particular issue, termed to be false can be reversed by the Court, while maintaining the sentence and conviction.

13. It will not be out of place for me to state that sitting in an appellate Forum, this Court is duty bound to consider the evidence afresh and may agree with the trial Judge or disagree with, in relation to the evidence adduced by the prosecution, while hearing an appeal from a conviction and alter the finding, maintain the sentence or the offence.

14. Therefore, in such circumstances, at the risk of repetition, I may state that the learned Sessions Judge has disbelieved the evidence of P.W.3 solely on the ground of taking the evidence of one Ramamoorthy filed along with the 313 Statement of the accused, stating that the said evidence relates to the evidence of P.W.3-Ramamoorthy who has been examined in some other case and the same has not been brought to his notice. I am of the view that the learned Sessions Judge has committed an error in accepting such a document and on the basis of such document had held P.W.3 as a stock witness. But however, on going through the evidence, I am fully satisfied that his evidence corroborates the evidence of P.W.1 and P.W.10 in all particulars and in the absence of any specific motive attributed to the witness, I hold that the prosecution has established the guilt of the accused beyond all reasonable doubt. Accordingly, I confirm the conviction and sentence passed by the trial Judge.

In the result, the appeal is dismissed. 26-04-2002

Index:Yes/No

Website:Yes/No

csh

To

1. The VI Additional Sessions Judge,

Chennai.

2. -Do- Thro' the Sessions Judge,

Chennai.

3. The Superintendent,

Central Prison,

Madras.

4. The Public Prosecutor,

Madras.

5. The Inspector of Police,

E-4, Abiramapuram Police Station,

Madras.

6. The Director General of Police,

Madras.

A.PACKIARAJ,J.

Judgment in Crl.Appeal No.270 of 1997

26-04-2002 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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