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RANJITH KUMAR versus STATE REP BY

High Court of Madras

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Ranjith Kumar v. State rep by - Crl.A.(MD) No.275 of 2004 [2007] RD-TN 1128 (26 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 26/03/2007

CORAM:

THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

Crl.A.(MD) No.275 of 2004

1.Ranjith Kumar

2.Nedumaran .. Appellants

vs.

State rep by

Inspector of Police,

Kumbakonam East Police Station,

Kumbakonam.

Crime No.201 of 03 .. Respondent

Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 22.11.2004 made in S.C.No.68 of 2004 on the file of the Additional District and Sessions Judge (Special Judge), Thanjavur. For appellants : Mr.C.Ramachandran

for M/s.Thiruvadi Kumar

For respondent : Mr.Samuel Raj

Addl.Public Prosecutor

:JUDGMENT



(Judgment of the Court was made by M.CHOCKALINGAM, J) The appellants two in number have challenged the judgment of the Court of the Additional Sessions Judge/Special Judge, Thanjavur dated 22.11.2004 made in S.C.No.68/2004 whereby the appellants/accused found guilty under Sections 450 and 302 IPC. The first accused was awarded life imprisonment along with a fine of Rs.2,000/-, in default, to undergo two years rigorous imprisonment under Section 302 IPC. Similarly, the second accused was also awarded life imprisonment along with a fine of Rs.2,000/-, in default, to undergo two years rigorous imprisonment under Section 302 IPC r/w 34 IPC. Further, both the accused were awarded two years rigorous imprisonment along with a fine of Rs.1,000/-, in default to undergo three months rigorous imprisonment under Section 450 IPC. The sentences were directed to run concurrently and the period of imprisonment already undergone by the accused were given to be set off.

2. The brief facts necessary for the disposal of the appeal can be stated thus:

(a) PW.1 is the father of the deceased Durai @ Nalla Durai. He was employed in Nithya Agencies, having business of fertilisers at Muppakkoil. It was the deceased, who used to go over for collection and one of the customers was by name Raja, the father of both the accused. When the deceased went over to the house of Raja for collection, he developed intimacy with the daughter of Raja viz., Sathyavadani, the sister of the accused. She became pregnant. The matter came to the notice of both the family. The father of PW.5 Sathyavadani came with a suggestion for the marriage but the father of the deceased Durai @ Nalladurai was not for that. However, with the assistance of friends and others, the marriage was solemnized on 11.9.2002 and the same was registered in the office of the Sub-Registrar, Thiruvidaimarudur. From that time onwards, the family members of the accused were not in talking terms with the deceased family. Both these accused enraged over the deceased. The second accused used to make phone calls and threaten the deceased. One such phone call was also made on 20.4.2003 and that was immediately informed to PW.7, who was a ward councillor, for the purpose of going to police station and give a complaint against the accused. PW.7 advised the deceased family not to go to police station and told them that through the Ex-President of Panchayat, the accused could be advised. On 23.4.2003 at about 5.15 p.m., PW.1 took tea to his son, who was in the fertiliser shop. The deceased came out of the fertiliser shop to attend a phone call in the neighbouring cycle shop. At that time, PW.2 was repairing a cycle. PW.3 was standing nearby. PW.4 also went for getting his cycle repaired. After attending the phone call, when the deceased Durai @ Nalla Durai entered into the fertiliser shop, found the accused in the shop, suddenly, he tried to escape but he was caught hold by the second accused and immediately, the first accused attacked him with an aruval on his neck and back and that was witnessed by PWs.1 to 4. Immediately, both the accused sped away from the place of occurrence. The injured was taken in an auto of PW.8 to the Government Hospital, Kumbakonam at about 5.45 p.m. by PW.1, PW.2 and PW.4. PW.11 was the Doctor, who was on duty at the time of admitting the injured in the said Hospital. He examined the injured Durai and found injuries as described in the Accident Register. Ex.P.7 is the Accident Register in that regard. Then, on the advise of the Doctor PW.11, the injured was taken to the Government Hospital, Thanjavur where PW.12 was the Doctor on duty at that time. He examined the injured and found the injuries as described in the Accident Register. Accident Register is Ex.P.8 in that regard. (b) Intimation was given to the respondent police station. PW.17, the Sub Inspector of Police went over to the Government Hospital, Thanjavur and he enquired the injured. The injured Durai gave a statement to PW.17, and same was reduced to writing by PW.17. Ex.P.14 is the statement. On the basis of Ex.P.14, PW.17, the Sub Inspector of Police registered a case in Crime No.201/2003 under Sections 452 and 307 IPC. F.I.R, Ex.P.15 was despatched to the Court.

(c) On 24.4.2003, On receipt of the F.I.R., the Inspector of Police PW.19, took up investigation and proceeded to the place of occurrence, made an inspection and prepared an Observation Mahazar Ex.P.1 in the presence of witnesses and prepared a Rough Sketch Ex.P.23. He recovered blood stained cement mortar MO.5 and sample cement mortar MO.6 under cover of Mahazar Ex.P.2. He examined PW.4 and other witnesses and recorded their statements.

(d) PW.18, the Inspector of Police took up further investigation. On 28.4.2003, when both the accused were coming by a TVS Champ, they were arrested near Palanisamy Nagar Bus Stop and the first accused voluntarily gave a confessional statement in the presence of witnesses and the admissible portion of which was marked as Ex.P.4. TVS Champ (MO.2) was recovered under cover of Mahazar Ex.P.5. He recovered blood stained aruval (MO.1) under cover of Mahazar Ex.P.6. Thereafter, the accused placed under judicial remand. (e) On 9.6.2003, a death intimation of the injured Durai was received from the Government Hospital, Thanjavur. On receipt of the same, the case was altered for the offence under Sections, 450, 452 and 302 r/w 34 IPC by PW.19, who took up further investigation in this case. He despatched the altered F.I.R to the Court. Immediately, he proceeded to the Government Hospital, Thanjavur and he held inquest on the dead body of the deceased in the presence of witnesses. He prepared an Inquest Report Ex.P.26. A requisition was forwarded for the purpose of conducting post-mortem. The Doctor PW.21 conducted autopsy on the dead body of the deceased and she found injuries as described in the Post-Mortem Certificate, which was marked as Ex.P.28 wherein she has opined that the deceased would appear to have died due to the effects and complications of Head and Neck injuries involving the vital organs namely the Brain and Cervical Spinal column.

(f) On completion of the investigation, the Investigating Officer filed final report against the appellants/accused. The case was committed to the Court of Sessions and necessary charges were framed against the accused.

3. In order to substantiate the charges levelled against the accused, the prosecution examined 21 witnesses, marked 28 documents and 6 MOs. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Crl.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. Both the accused denied them as false. No defence witness was examined. After hearing the arguments advanced by both sides, the trial Judge found the appellants/accused guilty as referred to above. Hence, this appeal at the instance of the appellants/accused.

4. Advancing his arguments, learned counsel for the appellants would submit the following submissions:

(a) In the instant case, according to the prosecution, there are four witnesses. PW.1 is the father of the deceased. PW.2 is the cycle shop owner. PW.3 and PW.4 were standing nearby the cycle shop. There are a lot of discrepancies in the evidence of the so-called eye-witnesses, which by itself would be sufficient to reject the testimony of the eye-witnesses. If PW.1 was actually available at the place of occurrence as claimed by him, there was no need for another witness viz., PW.4, Ramesh to take the deceased to the Government Hospital, Kumbakonam. His name alone finds in the Accident Register. Thereby, it is quite clear that PW.1 to PW.4 could not have seen the occurrence.

(b) Insofar as the evidence of PW.2 is concerned, there are discrepancies in respect of the place of occurrence. According to the evidence of PW.2, the place of occurrence is inside the shop whereas according to the Observation Mahazar and also Sketch, the occurrence was taken place in front of the shop. (c) As per the prosecution, PW.4 Ramesh took the deceased Durai to the Government Hospital, Kumbakonam and the deceased was admitted in the hospital. PW.11 was the Doctor, who was on duty at the time of admitting the injured in the said Hospital. The Doctor was told that three assailants attacked the injured with aruval. He examined the deceased Durai and found injuries as described in the Accident Register. Ex.P.7 is the Accident Register, which says that three assailants attacked the deceased Durai. Then, on the advise of the Doctor PW.11, the the deceased was taken to the Government Hospital, Thanjavur where PW.12 was the Doctor on duty at that time. He examined the deceased and found the injuries as described in the Accident Register. Accident Register is Ex.P.8 in that regard. Ex.P.8 also reveals that the deceased Durai was attacked by three assailants. At this juncture, it is pertinent to point out that, PW.11 and PW.12, both the Doctors have spoken to the fact that the deceased was conscious and he also made statement. According to the statement made by the deceased to the Doctors, two persons armed with aruval attacked him. It will go against the case of the prosecution. Even according to the prosecution, the first accused attacked him and the second accused actually caught hold of him. All these would go to show that PW.1 to PW.4 could not have been in the place of the occurrence and could not have seen the occurrence. (d) In all the statements under Section 161 of the Code, the first accused was described as younger brother and the second accused was described as elder brother but actually not so. The first accused is the elder brother and the second accused is the younger brother and the description of these two accused are clearly indicated after the corrections have been made by the Investigating Office, which was also admitted by him. This would go to show that they could not have seen the occurrence at all. (e) Added further the learned counsel that, the occurrence had taken place on 23.4.2003 and the deceased was alive till 11.55 p.m. on 9.6.2003. The Doctor PW.21, who conducted autopsy on the dead body of the deceased, has opined in the Post-Mortem Certificate Ex.P.28 that the deceased would appear to have died due to the effects and complications of Head and Neck injuries involving the vital organs namely the Brain and Cervical Spinal column. (f) In such circumstances, a duty was cast upon the prosecution to produce the entire case sheet but the prosecution neither produced the case sheet nor examined the Doctors who gave treatment to the deceased. The prosecution has miserably failed to prove its case because the Post-Mortem Certificate Ex.P.28 reveals that the accused died due to the effects and complications of Head and Neck injuries involving the vital organs namely the Brain and Cervical Spinal column. According to Ex.P.28, an injury was found on the head but according to the evidence of PW.1 to PW.4, the deceased was attacked on the neck and thus the injury No.4 as found in the Post-Mortem Certificate did not tally with the account of injuries given by PW.1 to PW.4. In the instant case, it cannot be stated that the ocular testimony put-forth by the prosecution viz., PW.1 to PW.4 was corroborated by the medical evidence. Even assuming that the prosecution has proved to the extent that it was the first accused, who attacked while the second accused caught hold of the deceased, the acts of the accused would not attract the penal provisions of murder.

(g) In the instant case, the prosecution has miserably failed to prove the cause of death. The Post-Mortem Doctor has opined the cause of death as otherwise. If at all, the acts of the accused would only attract the provisions of Section 326 of IPC since the deceased died due to subsequent effects and complications of the injury but not as a direct consequence. In order to substantiate his contention, the learned counsel has relied on the decision of the Principal Bench of this Court in Thangappan v. State by Inspector of Police, Thuckkalay Police Station (2002-1-L.W.(Crl.) 107).

5. The Court heard the learned Additional Public Prosecutor on the above contentions.

6. The Court paid its anxious consideration on the rival submissions made, and had a thorough scrutiny of the materials available.

7. It is not a fact in controversy that the deceased Durai @ Nalla Durai, the son of PW.1, following the injuries sustained at the place of occurrence, originally, taken to the Government Hospital, Kumbakonam and thereafter, he was taken to the Hospital, Thanjavur where he died under treatment on 9.6.2003. The Doctor, who conducted autopsy on the dead body of the deceased, has opined in the Post-Mortem Certificate Ex.P.28 that the deceased would appear to have died due to the effects and complications of Head and Neck injuries involving the vital organs. The appellants/accused have never disputed the cause of death at any stage of the proceedings before the lower Court. Thus, it could be safely concluded that the deceased died out of homicidal violence and recorded so.

8. In order to substantiate that it was due to the act of the accused, the deceased died, the prosecution has examined four eye-witnesses. PW.1 is the father of the deceased. PW.2 to PW.4 are independent witnesses. At the time of occurrence as narrated above, PW.1 was taking tea to his son, who was in the fertiliser shop. PW.2 was a neighbouring cycle shop owner. PW.3 and PW.4 were standing nearby the cycle shop. The deceased, after attending a phone call, while entering into the fertiliser shop, found both the accused inside the shop. The second accused caught hold of the deceased and the first accused attacked the deceased with aruval and the deceased sustained injuries. In the evidence of PW.1 to PW.4, there are some discrepancies. It is true but they are minor most. It would not affect the case of the prosecution. The deceased was examined by PW.11 and PW.12 Doctors and they have issued A.R.Copies, which were marked as Exs.P.7 and P.8 respectively. The A.R. Copy reveals that three assailants attacked the deceased with aruval. Therefore, according to the learned counsel, PW.1 to PW.4 could not have seen the occurrence. Under the circumstances, It must be given some importance. The Court feels that if it be true, the prosecution will lose its even basis. Though such contention was attractive at the first instance, it will not stand the scrutiny of law. At this juncture, it is relevant to point out that, according the evidence of Doctor, PW.11, such a statement was given by PW.4, who came over to the cycle shop at the time of occurrence. Once the statement could be given by PW.4, he must have witnessed such occurrence under a panic. It cannot be given much weight and more so the same statement of Ex.P.8 is nothing but the replica of what was found in Ex.P.7. Therefore, much importance need not be attached to this point. Therefore, insofar as the contention put-forth by the learned counsel for the appellants that PW.1 to PW.4 could not have seen the occurrence cannot be accepted. Apart from that, except the injury No.5, all the injuries sustained at the time of occurrence by the deceased as described in the Post- Mortem Certificate were spoken to by the eye-witnesses. Injury under neck is a fatal injury and the injury No.5 is explained by the prosecution that it must be the effect and complications of all the other injuries to vital organs. The Doctor, who conducted post-mortem on the dead body of the deceased, opined that the deceased would appear to have died due to the effects and complications of Head and Neck injuries involving the vital organs namely the Brain and Cervical Spinal column. Therefore, it cannot be stated that PW.1 to PW.4 could not have been at the place of occurrence and could not have seen the occurrence in view of non-explanation of the injury No.5 and the contentions put-forth by the learned counsel for the appellant do not carry any merit. In the instant case, the prosecution had the evidence of PW.1 to PW.4 and they have spoken to the facts in one voice. The ocular testimony was corroborated by the medical evidence. The Court is satisfied with the evidence of ocular witnesses, which has got to be accepted. The prosecution was successful in putting-forth the case that it was the first accused who attacked the deceased and it was the second accused who caught hold of the deceased.

9. At this juncture, the Court is able to see some force in the contention put-forth by the learned counsel for the appellants that the occurrence had taken place on 23.4.2003 and the deceased died on 9.6.2003. The deceased was given treatment all along by the Doctors and such doctors should have been examined by the prosecution and the case sheet should have been produced before the Court. The prosecution has no explanation to offer as to why such doctors were not examined and why the case sheet was not produced before the Court. In view of such infirmity, it can be stated that the prosecution has failed to prove that the act of the accused was a direct cause for the death of the deceased. The medical evidence canvassed through the Post-Mortem Certificate is to the effect that the deceased would appear to have died due to the effects and complications of Head and Neck injuries involving the vital organs namely the Brain and Cervical Spinal column. The Post-Mortem Doctor has not spoken that the injuries sustained at the time of occurrence, were the direct consequence of death either, or the injuries sustained, in the ordinary course of event, would cause death.

10. Under the circumstances, whether the act of the accused would attract the penal provisions of murder has got to be considered.

11. In the instant case, the Court has to necessarily follow the decision of the Principal Bench of this Court reported in 2002-1-L.W.(Crl.) 107 supra as put-forth by the learned counsel for the appellants, which is applicable to the present case. If applied the principles, the Court is unable to deviate anything from the earlier decision referred to above. In the instant case, the attack on the neck of the deceased could cause serious injury. Once it cannot be stated that the deceased died on account of the said injury, the act of the accused would not attract the provisions of Section 302 IPC, but it would attract the provisions of Section 326 IPC. Hence, the conviction and sentence imposed on the appellants under Section 302 IPC and 302 r/w 34 IPC respectively and under Section 450 IPC are modified and instead, the first accused is convicted under Section 326 IPC and the second accused is convicted under Section 326 r/w 34 IPC. Both the appellants are directed to suffer five years Rigorous Imprisonment for the said offence. The period of sentence already undergone by the appellants is ordered to be given set off. It is reported that the second accused is on bail. Hence, the concerned Sessions Judge shall take steps to commit the second accused to jail to undergo the remaining period of sentence.

12. In the result, with the above modification in conviction and sentence, the appeal is dismissed.

asvm

To

1. The Additional District and

Sessions Judge (Special Judge),

Thanjavur.

2. Inspector of Police,

Kumbakonam East Police Station,

Kumbakonam.

Crime No.201/03

3.The Additional Public Prosecutor,

Madurai Bench of

the Madras High Court,

Madurai.


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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