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MURUGESAN versus STATE REP. BY

High Court of Madras

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Murugesan v. State rep. by - Criminal Appeal (MD) Nos.458 of 2005 [2007] RD-TN 1166 (28 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 28/03/2007

CORAM

THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM

AND

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

Criminal Appeal (MD) Nos.458 of 2005

Criminal Appeal (MD) Nos.460 of 2005

Criminal Appeal (MD) Nos.476 of 2005

Murugesan

M.Natarajan .. 1st & 2ndAppellants in Crl.A.(MD) No. 458/2005 / A1 & A2 Ramavelu .. Appellant in Crl.A. (MD) No.476/2005 / A3 Marimuthu .. Appellent in Crl.A. (MD)No.460/2005/A4

Vs

State rep. by

The Inspector of Police,

Manapparai Police Station,

Thiruchirappalli,

Thiruchirappalli District. .. Respondent/Complainant in all the Appeals Appeals filed against the conviction and sentence passed in S.C.No.185/2004 dated 5.8.2005 on the file of the I Additional Sessions Judge (PCR), Thiruchirappalli.

For A1 :Mr.Mohanasundaram, Amicus Curiae For A2&A3 :Mr.V.Kathirvelu, Amicus Curiae For A4 :Mr.Gobalamanikandan

For Respondent :Mr.A.Balaguru

Addl.Public Prosecutor

:COMMON JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) The Judgment shall govern these appeals, viz., Crl.A.(MD) No.458/2005 by Accused Nos.1 and 2 (A1 & A2), Crl.A.(MD) No.476/2005 by Accused No.3 (A3) and Crl.A.(MD) No.460/2005 by Accused No.4 (A4). These appeals have arisen from the Judgment passed by the I Additional Sessions Judge, Thiruchirappalli, made in S.C.No.185/2004, whereby these four accused/appellants stood charged under Sections 342 r/w 34, 323 r/w 34 (2 counts each) and 302 r/w 34 IPC and found guilty as per the charges and awarded punishment of 2 months rigorous imprisonment for the offence under Section 342 r/w 34 IPC, 6 months rigorous imprisonment for the offence under Section 323 r/w 34 IPC (2 counts each) and life imprisonment for the offence under Section 320 r/w 34 IPC along with fine and default sentence.

2.The short facts necessary for the disposal of these appeals can be stated thus:

(a)P.W.1 is the wife of the deceased Dharmaraj. P.W.2 is the younger brother of the deceased and P.W.3 is the mother of the deceased. P.W.1 along with her husband, the deceased was living at Sriramapuram at Theerampatti, within the jurisdiction of the respondent Police Station. The accused also belonged to the same place. The house of the accused is situated just opposite to the house of P.W.3. One year prior to the occurrence, a goat belonging to A1 caused damage to the Sappota tree belonging to P.W.3. P.W.3 when questioned, there arose a quarrel in which the daughter of A4 held the tuft of P.W.3 and assaulted her. Following the same, on 3.2.2004, at about 7.00 p.m. all the four accused came and took P.W.2 and tied him in a telephone post situated near the drinking water pipe and assaulted him. P.W.3 who witnessed the same, informed her son, Dharmaraj, the deceased. On hearing this, the deceased, Dharmaraj took a knife and accompanied by P.Ws.1 and 3 went over to the spot. The deceased questioned the act of the accused and untied P.W.2. At that time, the knife which was in the hands of the deceased caused injury to A4. After untieing P.W.2, P.Ws.1 to 3 and the deceased were all proceeding to the house. A4 shouted that "the deceased, who stabbed him by a knife, is going away from the place, and he should be finished off". Immediately, A2 and A3 caught hold of the deceased, Dharmaraj. A1 stabbed on his chest and stomach and also at the back. The deceased fell down and died instanteneously. Immediately, all the four accused fled away from the place of occurrence. The deceased was taken in an ambulance to Manapparai Government Hospital, by P.Ws.1 to 3, where P.W.6, the doctor attached to the said hospital examined the deceased and declared him dead.

(b)P.W.1, then proceeded to the respondent Police Station where P.W.9, the Inspector of Police, was on duty and lodged a complaint, Ex.P.1 on the strength of which a case came to be registered in Crime No.204/2004. The F.I.R., Ex.P.10, was despatched to the Court. P.W.9, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses, prepared Ex.P.2-the Observation Mahazar and Ex.P.11-the rough sketch. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P.12-the Inquest Report. P.W.7, the doctor, attached to the said hospital, medically examined P.Ws.2 & 3 and issued Exs.P.8 and 9-the Wound Certificates respectively, where the injuries sustained by them are noted.

(c)Following the inquest, the dead body was sent for postmortem along with a requisition, Ex.P.5. P.W.6, the doctor attached to Manapparai Government Hospital, on receipt of the requisition, conducted autopsy on the dead body of the deceased and gave Ex.P.6-the Postmortem Certificate, wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to the injuries in the vital organs. He also sent the sample blood of the deceased for chemical analysis which resulted in Ex.P.7-the Serologist's Report. (d)Pending investigation, the Investigating Officer arrested A1 to A3 on 5.2.2004 and A1 came forward to give a confessional statement and the same was recorded in the presence of witnesses, the admissible part of which is marked as Ex.P.3. Pursuant to the confessional statement, the accused produced M.O.1, the blood stained knife, under a cover of Mahazar, Ex.P.4. The accused were sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body, and also the blood stained knife, M.O.1, produced by the accused, were subjected to chemical analysis by the Forensic Sciences Department pursuant to a requisition, Ex.P.13, forwarded by the Sub Inspector through the concerned Court which resulted in two reports, viz., the Chemical Analyst's Report-Ex.P.15 and the Serologist's Report-Ex.P.16 respectively. P.W.10, the Inspector of Police, took up further investigation and he examined the witnesses and recorded their statements. On completion of the investigation, the investigating officer filed the final report.

3.The case was committed to Court of Sessions. Necessary charge was framed. In order to substantiate its case, the prosecution marched 10 witnesses and also relied upon 16 exhibits and 3 material objects.

4.On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. No defence witness was examined. On the side of the defence, D.W.1 was examined and also relied upon Exs.D.1 to 3 out of which Exs.D.2 and 3 were marked through the prosecution witnesses and Ex.D.1 was marked through D.W.1.

5.On completion of evidence on both sides, the Trial Court heard the arguments advanced on either side, made thorough scrutiny of the available materials, took the view that the prosecution has proved its case beyond reasonable doubt, found the accused guilty as per the charges and awarded the punishment referred to above, which is the subject matter of challenge before this Court in these appeals.

6.Advancing his arguments on behalf of the appellants/accused, Mr.Mohanasundaram, learned Counsel inter-alia made the following submissions: (a)In the instant case, the prosecution has miserably failed to prove its case though it relied upon the direct evidence by examining P.Ws.1 to 3. Insofar as P.W.1, she could not have been an eye witness to the occurrence at all for the simple reason that according to the prosecution case, after the occurrence, she went to the respondent Police Station and gave a complaint. But, before the Court, she gave the evidence that the police officials came to the spot within an hour and recorded her statement, reduced it into writing and got the signature of P.W.1 and that was the complaint and thus, the narration of the entire incident by her could have been an hear say and she could not have been an eye witness to the occurrence.

(b)Insofar as P.W.3, she was medically examined by P.W.7, the doctor, attached to Manapparai Government Hospital, who gave Ex.P.3, the Wound Certificate, wherein the statement of P.W.3 was recorded that she was attacked by four known persons. It is pertinent to point out that Ex.P.10, the earliest document, as per the prosecution case, is thoroughly silent about any attack made on P.W.3 by all or any one of the accused and thus, it casts a doubt as to whether P.W.3 could have been an eye witness to the occurrence in question. (c)Added further, the learned counsel that as per the available materials, it would be quite clear that it was the deceased, who accompanied by P.Ws.1 and 3, went to the place of occurrence along with a knife and it was he who stabbed A4 and a grievous injury was actually caused. A complaint was given in that regard by A4 on the strength of which a case came to be registered by the respondent Police Station in Crime No.203/2004 at about 9.30 pm. The time of occurrence is 7.30 p.m. and in the present case, where a case came to be registered in Crime No.204/2004, on the basis of the complaint given by P.W.1, the time of occurrence is also 7.30 p.m. and the place and time of occurrence are also same. Thus, it would indicate that Crime No.203/2004 at the instance of A4 and Crime No.204/2004 at the instance of P.W.1 are part and parcel of the same transaction. If to be so, as per the Police Standing Orders, a duty is cast upon the prosecution to place all the materials available in order to enable the Court to arrive at a correct conclusion. But, the prosecution has not placed the copy of the F.I.R., statements recorded from the witnesses under Section 161 Cr.P.C. and the reports which actually led the investigation Agency to drop the case. All would go to show that the prosecution has thoroughly suppressed those materials and made the Court in not arriving at a correct conclusion. It was a fatal to the prosecution case. (d)The learned counsel for the appellants also submitted that the case was registered at 9.30 p.m. and the F.I.R. had reached the Court only on the next day by 12.15 hours and thus, there was an inordinate delay of 14 and . hours. A question was put to P.W.9, the Inspector of Police, as regards the inordinate delay for which he has categorically deposed that since it was night hours, the F.I.R. was sent to the Court only on the next day. The explanation tendered by P.W.9, the Inspector of Police, cannot be accepted as an explanation at all. Hence, the inordinate delay of 14 and . hours cannot but be an embellishment version of the prosecution case. Under the circumstance, this should have been viewed with all possible suspicion.

(e)Added further, the learned counsel that Ex.P.1, the complaint given by P.W.1 could not have been the first information according to the prosecution case. After the occurrence was over, P.W.1 went to the respondent Police Station and gave a complaint, Ex.P.1 at about 9.30 p.m. But, according to P.W.1, at the time of examination in the Court, she has deposed that the police officials came to the place of occurrence within an hour and she gave the complaint and that was the first information and thus, the first information as per the evidence of P.W.1 which came into existence at the place of occurrence has been thoroughly suppressed and an adverse inference has to be drawn. (f)The learned counsel for the appellants also submitted that A1 to A3 were arrested on 5.2.2004 and A1 came forward to give a confessional statement pursuant to which M.O.1, the blood stained knife was recovered. But, P.W.1 has categorically spoken to the fact that all the accused were secured and taken to the Police Station within an hour from the place of occurrence. It is pertinent to point out that a case came to be registered by the very same respondent Police in Crime No.230/2004 under Section 307 IPC against the deceased. Therefore, the alleged confession and recovery of M.O.1, the blood stained knife, were all nothing but imaginary and it is a subsequent introduction in order to strengthen the prosecution case. Thus, all the pieces of evidence placed before the Trial Court cannot be called worthy as understood in law. Under the circumstance, in view of all these suspicious circumstance and all the infirmities attendant on the prosecution case, the Lower Court should have acquitted the accused of all the charges. But, had not done so. Hence, these appeals are before this Court and the accused are entitled for acquittal in the hands of this Court.

7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and made a thorough scrutiny of the materials available.

8.In the instant case, it is not a fact in controversy that the deceased Dharmaraj, husband of P.W.1 and son of P.W.3 was done to death in an incident that took place on 3.2.2004 at about 7.30 p.m. at the place of occurrence and that the deceased was taken to the hospital by P.Ws.1 to 3 immediately, where he was declared dead by P.W.6, the doctor, attached to Manapparai Government Hospital. Following the inquest conducted by the Investigating Officer, P.W.9, the Inspector of Police, the dead body was subjected to postmortem. P.W.6, the doctor, attached to the said hospital conducted postmortem and opined in Ex.P.6, the postmortem certificate, that the deceased would appear to have died out of shock and haemorrhage due to injuries in the vital organs. The fact that the deceased died out of homicidal violence was never questioned by the accused at any stage of the proceedings and hence, without any impediment it can be factually recorded so.

9.In order to substantiate that it was the accused who stabbed the deceased to death, the prosecution has relied on direct evidence by marching three witnesses, viz., P.W.1-the wife of the deceased, P.W.2-the younger brother of the deceased and P.W.3-the mother of the deceased. Even as per the prosecution case, there was an incident that took place in the earlier occasion in which P.W.2 beat the daughter of A4, following which P.W.2 was taken by all the accused and was tied in a telephone post and the deceased who came to know about the same from P.W.3, proceeded to the spot along with P.Ws.1 and 3. As could be seen from the available materials, the deceased carried a knife with him. At the place of occurrence, A4 actually sustained injuries in the hands of the deceased. It is pertinent to point out that a case came to be registered by the Police in Crime No.203/2004 under Section 307 IPC against the deceased in that regard. If to be so, it is needless to say that the injuries sustained by A4 are grievous in nature. Hence, a duty is cast upon the prosecution to explain as to how the injury was sustained by A4. The injuries sustained by A4 and the deceased was stabbed by A1 were part and parcel of the same transaction, which is noticed from the materials available and it is not the case of the prosecution that the occurrence in Crime No.203/04 and the occurrence in Crime No.204/2004 are separate and independent transactions. But, they are part and parcel of the same transaction. If to be so, a duty is cast upon the prosecution to place all the materials before the Court pertaining to Crime No.203/2004 in order to enable the Court to arrive at a correct conclusion. The non production of all the materials including F.I.R., statements under Section 161 Cr.P.C. and the record notes etc., would clearly indicate that the prosecution did not enable the Court to appraise the situation and also to come to a correct conclusion. So long as it is not done, in the opinion of the Court, the Trial Court could not have come to a correct conclusion. In the instant case, it could also be stated that so long as the materials were not placed before the Trial Court, which relates to the first part of the prosecution, the Court could not understand the genesis of the occurrence and thus, the Police Standing Orders are mandates. The entire materials relating to a case, so long as, not placed before the Court, it cannot but be affecting the prosecution case fatally and thus, that itself in the opinion of the Court would be suffice to reject the prosecution case.

10.Apart from this, there are so many discrepancies that are noticed by this Court in the evidence of P.Ws.1 to 3. According to them they are the eye witnesses. But, Ex.P.1 does not speak about any injury sustained by P.W.3. According to the prosecution case also, P.W.1 went to Police Station immediately from the place of occurrence. But, in her evidence before the Trial Court, she has deposed that the police came to the spot and recorded the statement, i.e, Ex.P.1. If to be so, it cast a doubt whether P.W.1 could have been an eye witness to the occurrence at all. So far as P.W.3 is concerned, at what stage, when and by whom she sustained injuries is not whispered in the F.I.R. P.W.3 was examined by P.W.7, the doctor, attached to Manapparai Government Hospital, who issued Ex.P.8, the Wound Certificate where the injuries sustained by her was noted. Hence, it remains unexplained in the F.I.R. Though she came forward at the time of evidence stating that all the accused attacked and fisted her, no corresponding averment is made in the F.I.R. Had it been true, P.W.3 was an eye witness, it should have found place in the F.I.R. But, there is no such averment made. Thus, it cast a doubt on the evidence of P.W.3.

11.Above all, the prosecution came forward with a version that A1 to A3 were arrested on 5.2.2004 and A1 came forward to give confessional statement on the strength of which A1 produced the M.O.1, the blood stained knife. The witnesses were also been examined to that effect. But, P.W.1 has categorically admitted that all the three accused were nabbed from the place of occurrence within an hour. Viewing the confession alleged to have been given by A1 and also the recovery of M.O.1, the blood stained knife, on production by A1 from the evidence of P.W.1, the alleged confession and recovery cannot but be false and it has got be necessarily rejected and thus, the same falls to ground. All put together, go to show that there was suspicion attendant over the prosecution case.

12.Insofar as the delay in F.I.R. reaching the Court, this Court has to necessarily disagree with the contention of the learned counsel for the appellants and the Judicial Magistrate has signed in the F.I.R. at 12.15 a.m. and that he would mean 00.15 hours, i.e, during night hours. If to be so, then the F.I.R. has reached the Court within the time. This Court is able to see points in favour of the accused. Taking into consideration all the factors mentioned above, i.e, the discrepancies in the evidence of P.Ws.1 to 3, the non explanation of the injuries which is of grievous in nature, sustained by A4 in the F.I.R. which led to registering a case in crime No.203/2004 under Section 307 IPC and also the non production of materials available, all or any one, pertaining to Crime No.203/2004, the Court is of the opinion that it would be suffice to set aside the judgment of the Lower Court. Hence, the accused are entitled for acquittal. The judgment of the Court below has got be made undone only by upsetting the same. Hence, the appeals are allowed.

13.The Judgment of conviction and sentence imposed by the Trial Court in S.C.No.185/2004 on the appellants/Accused Nos.1 to 4 is set aside.

14.The appellants are acquitted of the charges levelled against them. It is reported that A2 and A4 are on bail and A1 and A3 are on jail. Hence, A1 and A3 are directed to be set at liberty forth with unless they are required in connection with any other case. The fine amount, if any paid, shall be refunded to the accused.

To

1. The I Additional Sessions Judge (PCR), Thiruchirappalli. 2.The Principal Sessions Judge, Thiruchirappalli. 3.The Inspector of Police,

Manapparai Police Station,

Thiruchirappalli,

Thiruchirappalli District.

4.The Additional Public Prosecutor,


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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