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KANNUPAIYAN @ NAGAMALAI versus STATE REP.BY INSPECTOR

High Court of Madras

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Kannupaiyan @ Nagamalai v. State rep.by Inspector - CRIMINAL APPEAL NO.95 of 1995 [2002] RD-TN 683 (9 September 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 09/09/2002

CORAM

THE HONOURABLE MR.JUSTICE P.SHANMUGAM

AND

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

CRIMINAL APPEAL NO.95 of 1995

1. Kannupaiyan @ Nagamalai

2. Palanisamy .. Appellants -Vs-

State rep.by Inspector

of Police, Pallipalayam

Police Station (Cr.No.509/92)

Salem District. .. Respondent This Criminal Appeal is preferred under S.374(2) of Code of Criminal Procedure against the conviction and sentence dated 21.12.1994 in S.C.No.125 of 1994 on the file of the I Additional District and Sessions Judge, Salem. For Appellants : Mr.R.Selvakumar

For Respondent : Mr.Abudukumar Rajarathinam

Assisted by Mr.V.Arul,

Government Advocate for

Public Prosecutor

:JUDGMENT



M.CHOCKALINGAM, J.

The appellants herein have assailed the judgment of the learned I Additional Sessions Judge, Salem, finding both of them guilty under S.3 02 read with S.34 of I.P.C. and awarding life imprisonment and also finding the first appellant guilty under S.324 of I.P.C. and awarding two years R.I.

2. The appellants 1 and 2 stood charged under S.302 read with S.34 of I.P.C., while the first appellant alone stood charged under S.324 of I.P.C., alleging that in pursuance of the common intention, they committed the murder of Arthanari @ Athi Gounder by attacking him with Suri knife and crowbar, and in that transaction A-1 caused simple injuries to P.W.3 Natarajan @ Natesan.

3. The case of the prosecution can be briefly stated as follows: P.W.1 was a resident of Molagoundampalayam. P.W.3 is the son of P. W.1. A-2 is the paternal uncle of A-1. The deceased Arthanari @ Athi Gounder was a pangali of both the above witnesses and the accused. All of them were residing in Kaliyanur Village in Molagoundampalayam. The deceased was owning a land with an extent of 1 acres. His lands were situated on both sides of the lands of A-1 and A-2. Athi Gounder was irrigating a part of his lands situate on the one side of the lands of the accused, from his well situate in the other part. The pipeline put up by Athi Gounder was to cross the field of both the accused, and thus, there was dispute between them in drawing the water by Athi Gounder to his fields. They used to often break the pipelines. A few days prior to the occurrence, the accused made a hole in the hose pipeline, and Athi Gounder was complaining to others about the same. On 3.7.1992, Athi Gounder was to draw water to his fields from the well situate on the other field by using plastic pipes. Consequently, some of the crops in the field of the accused were damaged. On 4.7.1992 at about 6.00 P.M., when Athi Gounder was taking two of his cattle to his house, A-1 armed with suri knife and A-2 armed with crowbar waylaid him and uttered "We won't leave you alive and close you and your family". On seeing the accused armed with deadly weapons, Athi Gounder dropped the strings of the cattle and ran towards Karuppannasam8i Koil. Both the accused chased and stabbed him. P.W.1 Kuzhandhaivelu Gounder, P.W.2 Vijaya, P.W.3 Natarajan @ Natesan, P.W.4 Velusamy and P.W.5 Velappa Gounder all were witnessing the same. Immediately A-1 stabbed Athi Gounder on his right shoulder and pushed him down. When Athi Gounder resisted, A-2 stabbed him with crowbar on his right armpit and left shoulder. Witnessing this, P.W.3 intervened and questioned the accused as to their acts. Asking why he should come in support of him, A-1 stabbed P.W.3 on his right side of the chest, right hand and left hand. P.W.1 on seeing his son being attacked, went nearby to intervene, but he was threatened by the accused with dire consequences. Athi Gounder who received the above injuries died instantaneously. Both the accused fled away from the scene of occurrence. A-2 left the crowbar at the scene of occurrence, while A-1 took the suri knife with him. Immediately, the witnesses engaged a hire taxi of P.W.6 Ravi and took P.W.3 to the Government Hospital, Erode. P.W.11 Dr.Manokaran admitted P.W.3 at about 8.25 P.M. and treated him. The Doctor found the following injuries.

1. Punctured wound " x " over front of right side of chest exposing torn muscles.

2. A lacerated wound 2" x " over the right forearm 1" below right elbow. 3. Punctured wound 1" x 1" over left shoulder exposed torn muscle. P.W.11 Doctor has opined that all those injuries were simple, and Ex.P7 is the accident register recorded by him.

4. On the same day at about 8.15 P.M., when P.W.14 Gnanasekaran, Sub Inspector of Police was in-charge of Pallipalayam Police Station, P.W.1 gave Ex.P1 complaint. P.W.14, on the strength of Ex.P1 complaint, registered a case in Crime No.509/92 under Ss 302 and 307 of I.P.C. and despatched Ex.P12 Printed First Information Report to the concerned Magistrate's Court. On receipt of a copy of the First Information Report at 8.45 P.M., P.W.15 Sukumaran, Inspector of Police, Pallipalayam Circle took up the investigation, proceeded to the spot by 9.30 P.M., inspected the place of occurrence in the presence of witnesses and prepared Ex.P2 Observation Mahazar in the presence of P.W.7 Vadivelupillai, Villge Administrative Officer and Rajamanickam and Ex.P13 Rough Sketch. He arranged to take the photographs of the dead body and the place of occurrence through P.W.9 Balasundaram, a photographer. The photographs and the negatives were marked as M.Os.8 and 9 series. From 11.00 P.M. to 2.30 A.M. he conducted the inquest on the dead body of Athi Gounder and prepared Ex.P14 inquest report. He enquired the witnesses and recorded their statements. On receipt of Ex.P5 requisition from the Investigation Officer and the dead body of Athi Gounder through P.W.12 Veeramasamy, P.C. 1213, P.W.10 Dr. Krishnasamy attached to Pallipalayam Government Hospital commenced the autopsy at 7.30 A.M. on 5.7.1992, conducted the same and has issued Ex.P6 postmortem certificate. The Doctor has noticed the following external injuries and the corresponding internal injuries. 1. An oval lacerated wound 1" x " x 10" in the 3rd Rt intercostal space in the axilla.

2. A lacerated wound 2" x 1" x " front of left shoulder. 3. An incised wound 1 " x " x " lateral side of right shoulder. Firmly coagulated blood with extensive infiltration into deeper tissues in and about all the wounds present - they are A.M. in nature. O/D of injury No.1 the tract is single directed transversely and medially with an oval laceration of right lung 1 x 1 x 1".

P.W.10 Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to the multiple injuries 12 to 18 hours prior to autopsy.

5. Under Ex.P3 Mahazar, P.W.15 Investigation Officer recovered M.O.1 crowbar, M.O.2 string, M.O.6 bloodstained earth and M..O.7 sample earth in the presence of P.W.7 and Rajamanickam. He proceeded to the Government Hospital and recorded the statement of P.W.3. Again he went to the place of occurrence and recovered M.O.3 hose pipe under Ex. P4 mahazar. On 8.7.1992 both the accused surrendered before the Judicial Magistrate No.II, Salem. On 18.7.1992, the Investigation Officer sent Ex.P8 requisition to the concerned Judicial Magistrate's Court to send the material objects for chemical analysis. Ex.P10 series are the Chemical Analyst's report, while Ex.P11 is the Serologist's report. On completion of the investigation, P.W.15 laid a charge sheet under Ss 302 and 324 of I.P.C.

6. In order to prove the charges levelled against the appellants/ accused, the prosecution examined 15 witnesses and marked 17 exhibits and 9 material objects. When questioned under S.313 of Code of Criminal Procedure, the appellants/accused denied the versions of the prosecution witnesses as false. No defence witness was examined. After hearing the submissions of both sides and scrutiny of the available materials, the Trial Judge found that the accused were guilty as per the charges levelled against them and inflicted the punishment as stated supra. Hence, the aggrieved appellants have brought forth this appeal.

7. Arguing for the appellants/accused, the learned Counsel would submit that in the case of the prosecution commencing from the First Information Report till the completion of investigation, there are so many discrepancies, and hence, the lower court should have given the cumulative effect, which would lead to the conclusion that the prosecution case was a foisted one against the appellants; that though the prosecution has examined five eyewitnesses, P.Ws.4 and 5 have turned hostile; that the evidence of P.Ws.1 to 3 stood not only inconsistent to each other, but also did not tally with the charges framed against the accused; that the medical evidence was thoroughly contrary to the theory of the prosecution; that this case is a glaring example wherein the prosecution could not fix the overt acts on the accused, as per the charges levelled against them; that the lower court has substituted its own views in the place of the Doctor's evidence and has come to an incorrect conclusion, which was not based on evidence; that the lower court had no reason or circumstance to disbelieve the evidence of P.W.10 Doctor, who conducted the autopsy on the body of the deceased; that the three witnesses examined as eyewitnesses by the prosecution have deposed that A-2 attacked on the head of the deceased with M.O.1 crowbar; that contrary to the same, the postmortem Doctor has deposed that there was no injury on the head; that it is pertinent to note that the lower court has believed the evidence of the eyewitnesses stating that A-2 attacked the deceased on his head with the crowbar and has taken an erroneous view that the said injury has led to the instantaneous death of Athi Gounder, which is contrary to the medical evidence; that there was discrepancy in the time of occurrence, since all the three witnesses have given varied versions in that regard; that P.Ws.1 and 2 were only chance witnesses, and if their evidence is carefully examined, it would clearly show that they were planted witnesses to support the prosecution case; that Ex.P1 complaint did not reveal anything about the head injury, which according to the lower court was a fatal one; that P.W.10 Doctor, who conducted the autopsy has opined that the first injury, which is described as "An oval lacerated wound 1" x " x 10" in the 3rd Rt intercostal space in the axilla" and the corresponding internal injury were fatal, and the same would have been caused by a crowbar; that no one of the eyewitnesses has stated that the said injury was caused either by A-2 or with a crowbar; that according to Ex.P14 inquest report, the appellants were shown only as suspects; that P.Ws.1 to 3 were not shown as the persons, who last saw the deceased, and hence, it would be clear that they could not have witnessed the occurrence. Added further the learned Counsel that the prosecution has thoroughly failed to establish the motive against the accused; that it remains to be stated that the deceased had number of enemies in the Village, and some one of them could have caused his death, but the appellants/accused have been unlawfully implicated only on suspicion; that in view of all the discrepancies in the prosecution case and unexplained doubts as stated above, the lower court should have acquitted both the appellants of the charges levelled against them, and hence, the appeal has got to be allowed, and the appellants be acquitted.

8. The learned Government Advocate in his sincere attempt to sustain the judgment of the Court below would submit that the prosecution has proved by sufficient evidence the motive that prevailed between the deceased and the accused; that out of five witnesses P.Ws.1 to 3 have given a cogent evidence regarding the overt acts committed by the accused; that even in the First Information Report, it has been clearly stated that A-2 attacked the deceased with a crowbar; that it is true that P.Ws.1 to 3 have stated in their evidence that A-2 aimed at his head, but have not stated that A-2 attacked on his head; that from the available evidence, it would be very clear that both the assailants were very well available at the place of occurrence; that A-1 was armed with suri knife, while A-2 was armed with crowbar, and they attacked the deceased, which caused his instantaneous death; that it is pertinent to note that the prosecution has examined P.W.3, who was injured by the criminal act of A-1, from whose evidence it would be abundantly clear that both the assailants attacked the deceased with suri knife and crowbar; that while the ocular evidence is clear and convincing, the medical evidence can even be eschewed by the Court, but in the instant case, the appellants make much of the insubstantial matters, which would not in any way either affect the truth of the prosecution case or take away its vigour; that all the prosecution witnesses have come with a consistent case that A-2 was armed with M.O.1 crowbar which was secured from the place of occurrence at the time of investigation in the presence of two witnesses, out of whom one has been examined; that the said crowbar was sent for chemical analysis along with the other material objects; that the said crowbar contained the human blood; that the lower court after careful consideration of the available materials has taken a correct view that both the accused attacked the deceased, which led to his death and has rightly found them guilty, and hence, the judgment of the lower court has got to be confirmed.

9. Admittedly, the deceased Athi Gounder had his lands situated on both sides of the lands of A-1 and A-2 and used to take water to his field for irrigation from the well situated in the other field through pipeline, which went across the fields of the accused. The accused used to break the pipes and also used to cause holes therein. They committed the same mischief, a few days prior to the occurrence, which led the deceased to use plastic pipes to take water, and by that, he caused some damage to the crops of the accused on the previous day viz. 3.7.1992. Already strained accused were aggrieved over the same. All these facts are clearly spoken to by P.W.2, the wife of the deceased and P.Ws.1 and 3 also. Under such circumstances, it can be well stated that the prosecution has well proved the motive attributed to the accused for committing the crime in question.

10. In order to bring home the guilt of the accused, the prosecution marched P.Ws.1 to 5 as eyewitnesses, out of whom, P.Ws.4 and 5 turned hostile. From the very reading of Ex.P1 complaint given by P.W.1 and the evidence adduced through P.Ws.1 and 3, it is highly doubtful whether P.W.2, the wife of the deceased would have been present to witness the occurrence. Even in the First Information Report, P.W.1 has nowhere stated that P.W.2 was present at the time of the occurrence. On the contrary, he has averred that after the occurrence was over, he shouted and the neighbours assembled there, which would be indicative of the fact that P.W.2 was not at all present at the time of the occurrence, and hence, the evidence of P.W.2 would be of no avail to the prosecution case.

11. According to P.W.1, on 4.7.1992 at about 5.00 P.M., he went to the southern side of Karuppannasamy Temple to take palm leaves, and at that time, he saw the deceased Athi Gounder leading his cattle from east-west, and when the deceased came near Karuppannasamy temple, he heard the sound "Inah. Fj;Jwhnd", and he saw A-1 armed with suri knife and A-2 with crowbar, and on seeing the accused armed with deadly weapons, the deceased dropped the strings of the bulls and ran towards Karuppannasamy temple to escape, and at that time, he witnessed A-2 attacking the deceased with crowbar and A-2 with suri knife. A careful reading of the entire evidence of P.W.1 would reveal that he witnessed A-1 and A-2 armed with suri knife and crowbar respectively, chased and attacked the deceased. It is not his evidence that he also followed the accused and the deceased either, or he went to the rescue of the deceased. Thus, it would be clear that he has witnessed the occurrence from a particular distance. He has also witnessed A-1 attacking his son P.W.3 with suri knife. When he came nearby and questioned the conduct of the accused, he was threatened by them. According to P.W.1, the said Athi Gounder died at the spot instantaneously.

12. A careful reading of the testimony of P.W.3 would reveal that at the time of occurrence, he was heaping paddy on the rock at Korukkanpazhi Forest; that only on hearing the cry of the deceased, he ran to the place of occurrence, which is situate nearby and witnessed A-1 and A-2 attacking the deceased Athi Gounder; and that when he interfered, A-1 stabbed him with suri knife on the right side of the chest, right hand and left hand. It remains to be stated that when P.Ws.1 and 3 witnessed the occurrence as stated above, the deceased Athi Gounder was attacked by A-1 armed with suri knife and A-2 armed with crowbar. It is pertinent to point out that except these two accused armed with the said deadly weapons, nobody was present with the deceased at the place of occurrence. Both the eyewitnesses have clearly spoken to the fact that both A-1 and A-2 have attacked Athi Gounder at the place of occurrence.

13. During investigation, P.W.15 Investigation Officer made inspection of the crime spot and prepared Ex.P2 Observation Mahazar and Ex.P1 3 Rough Sketch. The contents of the Observation Mahazar and Rough Sketch were not disputed by the appellants' side. That apart, the Investigation Officer recovered M.O.1 bloodstained crowbar, M.O.6 bloodstained earth and M.O.7 sample earth, which were sent for chemical analysis. Ex.P10 Chemical Analyst's report would reveal that the said bloodstained material objects were found to contain human blood. The appellants have also not disputed the fact that Athi Gounder died out of homicidal violence.

14. A specific charge was levelled against A-1 that P.W.3 was attacked by him with suri knife at the time and in the course of the above transaction, and P.W.3 has also been examined, who has categorically deposed how he sustained the injuries. The injured P.W.3 was taken in a hire taxi of P.W.6 to the Erode Government Hospital. P.W.11 Dr. Manokaran has deposed that on 4.7.1992 he was attached to the Government Hospital, Erode; that at about 8.25 P.M. he examined P.W.3; that at that time P.W.3 was conscious; and that he found three simple injuries as found under Ex.P7 accident register. The Doctor has also further added that P.W.3 gave a statement to him that he was attacked by a known person with suri knife at about 6'O Clock at Korukkanpazhi. This statement of P.W.3 who was not only an eyewitnesses, but also an injured in the course of the said transaction, would also be pointing to the guilt of the accused.

15. After the inquest was over, P.W.15 Investigation Officer sent the dead body of Athi Gounder for autopsy along with Ex.P5 requisition. On receipt of the said requisition, P.W.10 Dr.Krishnasamy has commenced and conducted the autopsy on the dead body of Athi Gounder and has issued Ex.P6 postmortem certificate. According to the postmortem Doctor, the injuries 1 and 2 found in the postmortem certificate as stated supra, would have been caused by a crowbar, and injury No.3 would have been caused by a knife, and injury No.1 and the corresponding internal injury would be sufficient to cause the death of the person instantaneously. Thus, the evidence of P.Ws.1 and 3 stating that A-1 and A-2 armed with suri knife and crowbar respectively attacked Athi Gounder at the time of occurrence and caused his death instantaneously stands fully corroborated by the medical evidence.

16. According to both the eyewitnesses, A-1 and A-2 fled away from the scene of occurrence immediately. While A-1 took the suri knife, A-2 left the crowbar in the place of occurrence. Along with the other material objects, the Investigation Officer has recovered M.O.1 crowbar from the place of occurrence in the presence of two witnesses viz. P.W.7 and one Rajamanickam under Ex.P3 Mahazar. As stated above along with the other material objects M.O.1 crowbar was also subjected to chemical analysis and found with human blood. The contention put forth by the appellants' side that the evidence of P.Ws.1 to 3 stood inconsistent to each other and did not tally with the charges framed against the accused cannot be countenanced. As stated above, P.W.2 could not have seen the occurrence. So far as P.Ws.1 and 3 are concerned, they could not make out a clear narration of the overt acts of A-1 and A-2, since P.W.1 was standing at a particular distance and P. W.3 has come to the place of occurrence after hearing the cry of the deceased. It is pertinent to note that even in Ex.P1 complaint, P.W.1 has not described the overt acts committed by the accused, but has only stated that A-1 armed with suri knife and A-2 armed with crowbar stabbed the deceased, and in the course of the same transaction, A-1 caused injuries to his son P.W.3, who intervened. It is true that P.Ws.1 and 3 have stated that A-2 attacked the d eceased on his head, and the postmortem Doctor has found no injury on the head of the deceased. Having seen A-1 and A-2 armed with suri knife and crowbar, attacking the deceased at the place of occurrence, P.Ws.1 and 3 while narrating the incident, have made an exaggeration by making a statement during evidence that A-2 attacked Athi Gounder on his head. Merely because of an exaggerated statement, while narrating the overt acts of the accused, the case of the prosecution cannot be rejected as untrue or false, while the prosecution was able to prove the availability of the accused at the time and in the place of the occurrence; and that they attacked the deceased with the said deadly weapons and was further able to prove that the death could not have been caused except by the murderous attack made by the assailants, and the death was the cumulative effect of the attack so made. There is nothing to hold that P.Ws.1 and 3 were either chance witnesses or planted to support the prosecution case. The postmortem Doctor has opined that the first external injury and the corresponding internal injury was fatal, and the same would have been caused by a crowbar. It is true that P.Ws.1 and 3 have not stated that the said injury was caused by A-2 with a crowbar. While A-1 and A-2 were the only two persons available with the deceased, and they have also found the accused attacking the deceased at the time of occurrence, and A-2 was armed with M.O.1 crowbar, there may not be any difficulty in finding that the said injury according to the postmortem Doctor would have been caused by a crowbar, could not have been caused except by A-2 who landed the crowbar on the deceased.

17. The learned Sessions Judge due to over anxiety, has made unwarranted remarks on the evidence of the postmortem Doctor and his Certificate and has expressed his view, which cannot be sustained. However, this Court sitting on the appellate side can re-appreciate the evidence adduced by the prosecution before the Court below, which is available now and decide the case on the merits of the matter.

18. The occurrence has taken place at about 6.00 P.M. at Molagoundampalayam. P.W.1 has proceeded to Pallipalayam Police Station and gave Ex.P1 complaint at 8.15 P.M., and a case has been registered under Ss 302 and 307 of I.P.C. The express First Information Report under Ex.P12 has also reached the concerned Court without any delay. All the material facts stating the place and time of occurrence and the nexus between the accused and the crime in question were very well averred in Ex.P1 complaint. Thus, the prosecution by the above evidence has clearly proved that A-1 and A-2 in furtherance of their common intention have caused the death of Athi Gounder, and A-1 has also caused injuries to P.W.3. Hence, this Court is unable to see any reason to interfere in the finding recorded by the court below that they were guilty of the charges levelled against them. The sentences awarded by the court below do not require any interference. Therefore, the judgment of the lower court has got to be sustained.

19. In the result, this criminal appeal is dismissed, confirming the judgment of the lower court. The learned I Additional Sessions Judge, Salem shall take steps to commit the accused to prison, if they are on bail, to undergo the remaining period of sentence.

Index: yes (P.S.M.J.) (M.C.J.) Internet: yes 9-9-2002 To:

1. The I Additional District and Sessions Judge, Salem. 2. The I Additional District and Sessions Judge, Salem, Through The Principal Sessions judge, Salem.

3. The District Collector, Salem.

4. The Director General of Police, Madras 4.

5. The Judicial Magistrate No.II, Sankagiri.

6. The Judicial Magistrate No.II, Sankagiri,

Through The Chief Judicial Magistrate, Salem.

7. The Superintendent, Central Prison, Coimbatore. 8. The Public Prosecutor, Madras.

9. The Inspector of Police, Pallipalayam Police Station, Salem District.

10.The Station House Officer, Thallakulam Police Station, Madurai.

nsv/

P.SHANMUGAM, J.

AND

M.CHOCKALINGAM, J.

Judgment in

C.A.No.95 of 1995




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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