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KARTHIK ALIAS KARTHEESWARAN versus STATE BY INSPECTOR OF POLICE

High Court of Madras

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Karthik alias Kartheeswaran v. State by Inspector of Police - Crl.A.(MD) No.657 of 1999 [2007] RD-TN 1259 (3 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03/04/2007

CORAM:

THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

Crl.A.(MD) No.657 of 1999

1.Karthik alias Kartheeswaran

2.Meenakshi Sundaram

3.Manoharan .. Appellants vs.

State by Inspector of Police,

Sivakasi Town Police Station,

Virudhu Nagar District. .. Respondent Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 16.7.1999 made in S.C.No.35 of 1999 on the file of the Principal Sessions Judge, Virudhu Nagar District at Srivilliputhur. For appellants : Mr. K.Jegannathan

For respondent : Mr.N.Senthurpanjdian

Addl.Public Prosecutor

:JUDGMENT



(Judgment of the Court was made by M.CHOCKALINGAM, J) The appellants, 3 in number, have challenged the judgment of the Principal Sessions Division, Virudhunagar District at Srivilliputhur dated 16.7.l999 made in S.C.No.35 of 1999, whereby the appellants, who were ranked as A.1 to A.3 were charged along with A.4 under Sections 341 IPC and A.1 to A.3 were charged under Section 302 IPC and A.4 was charged under Section 302 r/w 34 of IPC. On trial, A.1 to A.3 were convicted under Section 341 and 302 of IPC and sentenced to pay a fine of Rs.500/- with default sentence and life imprisonment along with a fine of Rs.1000/- and default sentence respectively. A.4 was acquitted of all the charges levelled against him.

2. Pending the Appeal, A.2, Meenakshi Sundaram died and the appeal against him is abated.

3. Now, the appeal is prosecuted by the appellants, A.1 and A.3 only.

4. The brief facts of the prosecution case can be stated thus: (a) PW.9 is the native of Viswanatham. He is the father of the deceased, Mariappan. PW.1 is another son of PW.9. Two years prior to the occurrence, a cattle of PW.9 was grazing in the field of A.2 and in respect of which, a panchayat was convened and PW.9 was asked to pay a sum of Rs.100/- as per the decision in the panchayat. Thereafter, Mariappan had asked the brother of the first accused why there was a need for payment of a fine since all of them were closely moving with each other. In this regard, there was a wordy duel. Thereafter, on the night at about 11.00 p.m. A.1 to A.3 and one Vijayakumar came to the house of the deceased and questioned the deceased Mariappan how they could beat his brother and that there was a quarrel and PW.1 and the deceased chased them. At that time, Vijayakumr fell down and he was taken to the police when he was produced by Prosecution Witnesses. Thus, they continued to be on inimical terms.

(b) On the date of occurrence, at about 5.00 a.m., the deceased was taking milk by a cycle to be delivered at the shop of one Muthuraju. PW.1 was also following in a cycle. When the deceased had just crossed Murugayyapuram Bridge, all the three accused armed with aruval in their hands way laid him. Further, A.1 uttered the words "you were responsible for the police custody of my brother" and saying so asked the other accused to attack the deceased and all of them attacked indiscriminately. It was actually witnessed by PW.1 and the deceased fell down there.

(c) Immediately, PW.1 proceeded to the respondent police station where PW.12, the Sub Inspector of Police was on duty at about 7.30 a.m. on 13.10.1997 and gave a complaint before him and the same was marked as Ex.P.1. On the strength of the complaint Ex.P.1, a case came to be registered in Crime No.610/1997 under Sections 341 and 302 of IPC. Ex.P.15 F.I.R. was despatched to the Court.

(d) On receipt of the copy of the F.I.R, PW.14, the Inspector of Police of the said circle took up investigation, proceeded to the scene of occurrence, made an inspection, and prepared an Observation Mahazar in the presence of the witnesses and the same was marked as Ex.P.3 and prepared a Rough Sketch Ex.P.17. He conducted inquest on the dead body of the deceased and prepared an Inquest Report in the presence of witnesses, which was marked as Ex.P.18. He took out blood stained earth MO.4 and sample earth MO.5 under cover of Mahazar Ex.P.4. Thereafter, he went to Murugayyapuram Bridge where he recovered the Material Objects including Old Cycle MO.1, Milk Can MO.2 under cover of Mahazar as stated in his evidence.

(e) Following the inquest, the dead body was subjected to Post-Mortem by the Doctor PW.13 and he issued Post-Mortem Certificate Ex.P.16 wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to injury on the head prior to 9 hours to 18 hours of the autopsy. (f) Pending investigation, A.4 was arrested on 14.10.1997 at about 6.30 p.m. and remanded to the judicial custody. A.1 was arrested on 15.10.1997. He voluntarily gave a confessional statement, which was recorded in the presence of witnesses and the admissible portion of the same was marked as Ex.P.19 and pursuant to the confession, MO.14 Aruval was recovered in the presence of witnesses under cover of Mahazar Ex.P.20. On 25.10.1997, A.2 was taken out on police custody since he had surrendered before the Court. He also voluntarily gave a confessional statement, which was recorded in the presence of witnesses and the admissible portion of the same was marked as Ex.P.7. Pursuant to the confession, an aruval M.O.8 was recovered in the presence of witnesses under cover of Mahazar Ex.P.9. When A.3 was examined, he voluntarily gave a confessional statement, which was recorded in the presence of witnesses and the admissible portion of the same was marked as Ex.P.8 and pursuant to the confession, an aruval MO.7 was recovered in the presence of witnesses under cover of Mahazar Ex.P.10. All the Material Objects recovered from the place of occurrence and from the dead body were subjected to chemical analysis by the Forensic Department, which resulted in two reports viz., Chemical Report Ex.P.13 and Serological Report Ex.P.14.

(g) 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.

5. In order to substantiate the charges levelled against the accused, the prosecution examined 14 witnesses, marked 20 documents and 14 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. All the four accused denied them as false. No defence witness was examined. After hearing the arguments advanced by both sides, the trial Judge found the appellant/accused guilty and awarded punishment as stated above. However, A.4 was acquitted of all the charges levelled against him. Hence, the appeal at the instance of the accused 1 to 3.

6. Now, it is represented that pending disposal of the appeal, A.2 died and the appeal abates against him. Hence, the appellants before this Court are A.1 and A.3.

7. Advancing his arguments, learned counsel for the appellants inter alia would submit that in the instant case, the prosecution had only three witnesses before the lower Court and they were PW.1, PW.2 and PW.3 and out of them, PW.2 and PW.3 turned hostile and thus, the prosecution had only one eye-witness i.e. PW.1, who was none else than the brother of the deceased and son of PW.9. Even as per the prosecution case, the accused party and the deceased party were on inimical terms and hence, they planned to rope the accused in the case. The occurrence was taken place at about 5.15 a.m. in the month of October and there would have been darkness at that time and even in the Observation Mahazar and Rough Sketch, no light is indicated and under the circumstances, PW.1 could not have seen the occurrence at all.

8. The learned counsel would further add that there is a vital discrepancy as to the scene of occurrence. Even as per the prosecution, the occurrence had taken place on the main road just near the bridge of Murugayyapuram but the investigator has deposed that the occurrence had taken place 100 feet away on the West of the road, where the dead body of the deceased was found. Thus, there is a vital discrepancy in respect of the scene of occurrence. The lower Court has erroneously took the view that the prosecution has proved its case beyond all reasonable doubts and hence, judgment of the lower Court has got to be set aside and the appellants are entitled for acquittal in the hands of this Court.

9. The Court paid its anxious consideration on the submissions made by either side and also perused the recorded evidence, both oral and documentary.

10. It is not a fact in controversy that one Mariappan was done to death in the incident that took place on the date of occurrence as put-forth by the prosecution. Following the inquest, the dead body was also subjected to Post- Mortem by the Doctor PW.13 and he issued Post-Mortem Certificate Ex.P.16 wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to injury on the head prior to 9 hours to 18 hours of the autopsy. Apart from that, the accused/appellants has never questioned the fact that the deceased died out of homicidal violence at any stage of the proceedings before the lower Court. Thus, without any difficulty, the Court can record that the deceased died out of homicidal violence and recorded so.

11. In order to substantiate the case of the prosecution that all the three accused armed with aruvals have attacked the deceased Mariappan in the occurrence that took place as put-forth by the prosecution, it examined three eye-witnesses and out of them, PW.2 and PW.3 turned hostile. Thus, the evidence available to the prosecution was PW.1 alone but he is none-else than the brother of the deceased. But, merely, on the ground of relationship to the deceased, the Court can not discord his evidence but his evidence has to be subjected to careful scrutiny. In the instant case, PW.1 has narrated the entire occurrence in a graphical manner. According to PW.1, the accused was proceeding by a cycle to hand over the milk to the shop of one Muthuraj and PW.1 was also following him by a cycle and when the deceased had just crossed the Murugayyapuram Bridge, all the three accused way laid him armed with aruvals and attacked him indiscriminately and the deceased met instantaneous death. Immediately, PW.1 rushed to the respondent police station and gave a complaint Ex.P.1 and on the strength of which, a case came to be registered. Now, at this juncture, the Court scrutinised the evidence of PW.1. Despite the cross-examination in full, his evidence remains unshaken. The evidence of PW.1 is cogent, natural and convincing and thus, his evidence is acceptable to the Court, which has been rightly done by the trial Court. The ocular testimony through PW.1 fully stood corroborated by the medical evidence and the Doctor, PW.13 who conducted post- mortem on the dead body of the deceased has found 34 cut injuries all over the body and he also opined in the Post-Mortem Certificate Ex.P.16 that the deceased died due to shock and haemorrhage.

12. Yet another circumstance is the recovery of the weapon of the crime from all the three accused in the presence of witnesses. In this regard, the prosecution has examined PW.7 V.A.O in respect of arrest, confession and the recovery of Material Objects and no reason or circumstance is brought out before the Court to cast a doubt on the evidence of the V.A.O.. That part of the evidence would indicate the nexus of the accused with the crime.

13. Insofar as the contention put-forth by the learned counsel for the appellants that the occurrence was taken place at 5.15 a.m. on 13.10.1997 i.e. in the month of October, at that time, there would be darkness and hence PW.1 could not have seen the occurrence, this contention has got to be discountenanced for the simple reason that all the persons belong to the same place and actually, earlier an incident had taken place and hence, it would not be difficult for PW.1 to identify a person already known to him.

14. Insofar as the second line of argument that the scene of occurrence was on the main road but the dead body was found in a bush 100 feet away from the main road. It is true the dead body was found in a bush 100 feet away West on the said road. But, in an incident like this, when a number of persons armed with weapons attacking him, no one would expect him to stand like a tree or stone, but, naturally, to move about. Apart from that, he was also chased by the accused as they have to cut him. The contents in the Observation Mahazar and the Sketch are not disputed. In the Sketch, the scene of occurrence was clearly marked and the bush was found 100 feet away from the main road. In the instant case, the dead body was found in a bush 100 feet way from the main road can not be a reason to disbelieve the prosecution case.

15. The Court is unable to accept the contentions put-forth by the learned counsel for the appellants. The prosecution has got sufficient evidence to bring home guilt of the accused and accordingly, the lower Court has found them guilty of the offences. When all these accused armed with deadly weapons viz., aruvals, way laid the deceased and cut him with aruvals indiscriminately, whereby the deceased sustained 34 cut injuries and met with an instantaneous death, this Court is of the opinion that the accused have acted with an intention to murder the deceased. Thus, the Court is unable to see any infirmity in the judgment of the Court below. Accordingly, the conviction and sentence imposed by the trial Court under Sections 341 and 302 IPC are sustained. As stated earlier, the appeal against A.2 becomes abated. It is reported that the accused No.1 and 3, who are the appellants herein, are on bail. Hence, the concerned Sessions Judge shall take steps to commit them to jail to undergo the period of sentence.

16. In the result, the appeal as against A.1 and A.3 fails and the same is dismissed.

asvm

To

1.The Principal Sessions Judge,

Virudhu Nagar District

at Srivilliputhur.

2.Inspector of Police,

Sivakasi Town Police Station,

Virudhu Nagar District.

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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