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SANTHANAM versus STATE REP. BY

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Santhanam v. State rep. by - Crl.A.(MD) No.648 of 2004 [2007] RD-TN 1411 (11 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 11/04/2007

CORAM:

THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

Crl.A.(MD) No.648 of 2004

Santhanam .. Appellant

vs.

State rep. by

Inspector of Police,

Thuraiyur Police Station,

Thuraiyur,

Trichy District.

Crime No.658 of 2001 .. Respondent Criminal Appeal filed under Section 374 (1) Cr.P.C against the Judgment of conviction and sentence dated 16.3.2004 made in S.C.No.5 of 2003 on the file of the Principal Sessions Judge, Tiruchirapalli. For appellant ... Mr. P.Prabhakaran (Amicus Curiae) For respondent ... Mr. P.N.Pandidurai Addl.Public Prosecutor :JUDGMENT



(Judgment of the Court was made by M.CHOCKALINGAM, J) Challenging the judgment of the Court of the Principal Sessions Division, Tiruchirapalli dated 16.3.2004 made in S.C.No.5 of 2003, the appellant herein who stood charged, tried under Section 302 IPC, found guilty as per the charge and awarded life imprisonment and to pay a fine of Rs.1,000/- in default, to undergo six months R.I., has brought-forth this appeal. In the said Sessions Case, A.2 was also charged, tried under Sections 302 r/w 114 and 506(2) of IPC and was found not guilty and was acquitted of the charges levelled against him.

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

(a) PW.1 is the native of Kanjeerimalaipudur Kattukottagai. The husband of PW.1 was working as a clerk in the Post Office at Tiruchirappalli. They were owning lands in his native place. The deceased Thiruppathi was employed under them as a farm servant. The land of the first accused was situated adjacent to the land of PW.1. Regarding taking of water through a pipe line, they had a pending dispute. A pipe line was to be placed by the prosecution witnesses and there was a quarrel. A panchayat was convened in the past. Two days before 11.12.2001, when the farm servant was irrigating, the first accused closed the pipe line. When pannaiyal (farm servant) Thiruppathi questioned the same, the first accused abused him and assaulted him with stick. Since PW.1 and her husband were not in their house, Thiruppathy himself had gone to Uppiliyapuram Police Station and gave a complaint. When they came to know about the same on 11.12.2001 at about 2.00 p.m., PW.1, her husband and others wanted to convene a panchayat in this regard and they gathered in front of the house of PW.1. At that time, the first accused and the second accused came by a T.V.S.50 vehicle. The first accused and the second accused pulled Thiruppathy and assaulted him with hands. They intervened and prevented them. When Thiruppathy went to nearby the house of Dhandapani both the accused followed him. The first accused assaulted Thiruppathy with a wooden log on his right shoulder, right forearm and on his head. Thiruppathy fell down and fainted. The second accused took MO.2 billhook out of his shirt and threatened the witnesses with dire consequences. Then, the second accused gave the billhook to the first accused and both of them sped away from the occurrence place. Thiruppathy died instantaneously. (b) Immediately, PW.1 and her husband, Ramalingam went to Uppiliyapuram police station, where PW.11, the Sub Inspector of Police was on duty at about 4.00 p.m. on 11.12.2001. The husband of PW.1 viz., Ramalingam gave a complaint, which was marked as Ex.P.14. On the strength of the same, a case was registered in crime No.658/2001 under Sec.302 of IPC. F.I.R, Ex.P.15 was despatched to the court.

(c) On receipt of the copy of the F.I.R., Ex.P.15, the Inspector of police of the said circle, took up the case for investigation. On the same day at about 4.45 p.m., he went to the place of occurrence, made an inspection and prepared an Observation Mahazar in the presence of witnesses and the same was marked as Ex.P.2 and prepared a Rough Sketch, which was marked as Ex.P.19. He recovered MO.4 and MO.5 under cover of Mahazar Ex.P.3. Then, he held inquest on the dead body of the deceased Thiruppathy in the presence of panchayatdars and witnesses and prepared Inquest Report, Ex.P.21. He made arrangements for taking photographs. The photos and negatives of the dead body of the deceased Thiruppathy were marked as Ex.P.9(series) and MO.7 (Series) respectively. Then, he forwarded a requisition for conducting post-mortem on the dead body of the deceased.

(d) On receipt of the requisition for conducting post-mortem, on 11.12.2001, PW.12, Doctor, who was on duty at Government Hospital, Thuraiyur, conducted post-mortem and he found the injuries as described in the Post-Mortem Certificate Ex.P.17, issued by him. He opined in the said Post-Mortem Certificate that the deceased would appear to have died out of shock and haemorrhage due to injuries sustained on head.

(e) Pending investigation, the investigator arrested the first accused at Sobanapuram Bus Stop at about 10.00 a.m. on 13.12.2001 in the presence of witnesses and he voluntarily gave a confessional statement, which was recorded in the presence of witnesses and the admissible portion of the confession was marked as Ex.P.5. Pursuant to the confession, MO.3 TVS 50 and MO.1 wooden log were produced by the first accused and the same were recovered in the presence of witnesses under cover of Mahazar Ex.P.6. On the same day, at about 2.00 p.m. the second accused was arrested near Uppiliyapuram Bazaar in the presence of witnesses and 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.7. Pursuant to the confession, the second accused produced MO.2 bill hook under cover of Mahazar Ex.P.8 in the presence of witnesses. Then, the accused were placed in the judicial custody. All the Material Objects recovered from the place of occurrence and from the dead body were subjected to post- mortem, which resulted in two reports, viz., Chemical Analysis Report Ex.P.12 and Serology Report Ex.P.13.

(f) On completion of the investigation, the investigator filed a final report against the appellants/accused.

3. The case was committed to the Court of Sessions and necessary charges were framed against the accused.

4. In order to substantiate the charges levelled against the accused, the prosecution examined 14 witnesses, relied on 25 Exhibits and produced 8 MOs. On completion of the evidence, on the side of the prosecution, the accused was questioned under Section 313 Crl.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses procedurally. They denied them as false. On the side of defence, 3 witnesses were examined and relied on 16 Exhibits. After hearing the arguments advanced by both sides, the trial Judge found the prosecution has proved its case beyond all reasonable doubts in respect of the first accused and the first accused was found guilty of the charges levelled against him. The second accused was acquitted of the charges levelled against him. Aggrieved over the judgment of conviction and sentence, the first accused has brought-forth this appeal before this Court.

5. Advancing his arguments on behalf of the appellant, Mr. P.Prabhakaran, Amicus Curiae, would submit the following submissions: (a) In the instant case, the occurrence was taken place at about 2.00 p.m. and the case came to be registered at about 4.00 p.m. and the F.I.R. Ex.P.15 reached the Court of Judicial Magistrate on the next morning i.e. on 12.12.2007 at about 4.00 a.m., and thus, there was a delay of 12 hours, which would be an indicative of the fact that several additions and manipulations have been made in the case.

(b) In the instant case, the F.I.R does not mention the name of the second accused. Under the circumstances, identification parade must have been conducted but not done so. The lower Court has acquitted the second accused on the very evidence adduced by the so-called eye-witnesses viz., PW.1, PW.2, PW.6, PW.7 and PW.8 and relied on their evidence and all the suspicious circumstances attendant over the evidence of the eye-witnesses insofar as the second accused, they are strictly applicable to the first accused also. Hence, the lower Court should have rejected the case of the prosecution and acquitted of the first accused of the charge levelled against him.

(c) The learned counsel would further add that in the instant case, insofar as the so-called eye witnesses are concerned, they could not have seen the occurrence. Even according to PW.4, she actually neither saw the occurrence nor saw both the accused armed with the weapon of crime but she came over there and found the severely injured Thiruppathy lying at the house of one Dhandapani. The occurrence was taken place in front of the house of one Dhandapani. If to be so, the so-called eye-witnesses also could not have seen the occurrence at all. This was fatal to the prosecution case.

(d) Insofar as the scene of occurrence, two places were given and thus the prosecution was unable to fix the place of occurrence at all. (e) Apart from that, the medical evidence did not corroborate the case of the prosecution. The occurrence was taken place on 11.12.2001 and the post- mortem certificate says that the deceased would appear to have died 16 to 18 hours prior to the autopsy. But the post-mortem was conducted at 12.00 'O' clock, if to be so, the doctor, who conducted autopsy, went to the extent of saying that the deceased would have died between 7.00 p.m. and 9.00 p.m. on 11.12.2001. If to be so, all the eye- witnesses with one voice said that the occurrence had taken place at 2.00 p.m. on 11.12.2001. Hence, the evidence of the eye-witnesses has got to be eschewed. (f) In view of the fact that the death time differs from the evidence of Post-Mortem Doctor, and the eye-witnesses, the lower Court should have rejected the prosecution case.

(g) The prosecution has miserably failed in proving the case by not examining the necessary witnesses and the place of occurrence is also doubtful. (h) The delay in F.I.R reaching the Court coupled with the evidence of the eye-witnesses are fatal to the case of the prosecution. The lower Court should have outrightly rejected the case of the prosecution. Hence, the Court has to set aside the judgment of the trial Court. (i) The learned Amicus Curiae added further that in the instant case, the accused have acted with provocation and there were a number of criminal and civil cases foisted by PW.1 and PW.2 against the first accused but in all those cases, they came out successfully and hence, they foisted the instant case. At the time of occurrence, a panchayat was convened, and in the panchayat, no one big person of the village was there and all the persons assembled were all relatives of PW.1 and thus, it would be quite clear that the panchayat was convened in their favour. The first accused and the second accused went to the place of occurrence unarmed. After going to the spot, they took a wooden log and attacked him. If to be so, the act of the first accused, would not attract the penal provisions of murder but it would amount to culpable homicide not amounting to murder and this has got to be considered by the Court.

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

7. It is not a fact in controversy that one Thiruppathy in the incident that took place on 11.12.2001 was done to death as put-forth by the prosecution. Following registration of the case, on receipt of a copy of the F.I.R., Investigating Officer PW.10 went to scene of occurrence, made an inspection, prepared an Observation Mahazar and a Rough Sketch in the presence of witnesses and conducted inquest on the dead body of the deceased in the presence of witnesses. Thereafter, the dead body was subjected to post-mortem and the Doctor, who conducted post-mortem has categorically opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained on the head. This fact of homicidal violence was never questioned by the accused/appellant at any stage of the proceedings and hence, it has got to be recorded that the deceased died out of homicidal violence and so recorded.

8. In order to substantiate that it was the act of the first accused/appellant, the prosecution has examined PW.1 to PW.8 as eye-witnesses and out of whom, PW.3 and PW.4 turned hostile. Except these two witnesses, who turned hostile, the evidence of the other eye-witnesses have inspired confidence of the Court and they have spoken in one voice that at the time of occurrence, a panchayat was convened in front the house of PW.1, and both the accused went there personally and the first accused attacked the deceased Thiruppathy with a wooden log and done him to death. The lower Court has acquitted the second accused in view of the fact that evidence was lacking in the instant case. Insofar as the first accused, the evidence of all the witnesses inspired the confidence of the Court. Though PW.3 and PW.4 turned hostile, the other eye- witnesses viz., PW.1, PW.2, PW.6 to PW.8 have categorically spoken to the fact that the first accused attacked the deceased with a wooden log, which caused the death of the deceased. Under the circumstances, the Court has no reason to cast any doubt in the ocular testimony. The evidence of ocular witnesses has stood in full corroboration by the medical evidence.

9. Yet another circumstance, which is against the first accused, was recovery of MO.1 Aruval and MO.3 TVS Moped in the presence of witnesses pursuant to the confession. This is a strong circumstance against the first accused. All these put together, the Court is of the considered opinion that the contention of the learned counsel do not require any consideration.

10. It is true, the occurrence was taken place on 11.12.2001 at 2.00 p.m. and the matter was brought to the respondent police station at about 4.00 p.m. and the F.I.R. has reached the Judicial Magistrate Court, next morning i.e. 12.12.2001 at about 4.00 a.m., and thus, the delay was caused. It is pertinent to point out that this delay by itself cannot be a reason to reject the case of the prosecution.

11. The facts in the instant case are, too short, but a number of witnesses have been examined and the evidence of the witnesses despite the cross-examination stood unshaken. Under the circumstances, so long as no prejudice is brought to the notice of the Court caused by the delay of despatching the F.I.R., that cannot be a point for consideration in favour of the accused/appellant.

12. Insofar as the eye-witnesses are concerned, comments were made that there are discrepancies in their evidence. In the opinion of the Court, they are minor most, which will not tilt the case of the prosecution.

13. According to the learned counsel, medical evidence is not in favour of the prosecution case. According to the prosecution, the occurrence was taken place at 2.00 p.m. on 11.12.2001 and the post-mortem was commenced on the next day at about 12.00 'O' clock. The Post-Mortem Doctor has given his opinion that the occurrence should have taken place between 16 to 18 hours. It to be so, the occurrence should have taken place at 7.00 p.m. on 11.12.2001 and the Post- Mortem Doctor also went to the extent of saying that the occurrence should have taken place between 7.00 p.m. and 9.00 p.m. on 11.12.2001. If to be so, the occurrence as put-forth by the prosecution could not have happened, according to the learned counsel. This cannot be accepted for the simple reason that a number eye-witnesses have been examined. Except the evidence of PW.3 and PW.4, who turned hostile, the evidence of other eye-witnesses viz., PW.1, PW.2, PW.6, PW.7 and PW.8 have inspired the confidence of the Court and they have spoken in one voice about the occurrence that it was the first accused who attacked the deceased with a wooden log and caused instantaneous death. So long as the evidence of the said eye-witnesses are inspiring the confidence of the Court, the Court is of the considered opinion that difference in the time of death can not be taken as a factor to reject the evidence adduced by the prosecution.

14. Thus, all these contentions or any one of the contentions put-forth by the learned counsel will in any way not affect the case of the prosecution.

15. Insofar as the second line of argument put-forth by the learned counsel, even assuming that it was the first accused who attacked the deceased on the head and caused instantaneous death, the act could not come under the provisions of murder, but in the instant case, the act of the accused will attract the provisions of 304 (Part I) of IPC, this contention of the learned counsel cannot be countenanced. It is true that there were a number of proceedings between the parties. There is no doubt about it. But, the deceased Thiruppathy had nothing to do with any one of the proceedings between PW.1 and PW.2 on one side and the accused party on the other side. During the relevant time, the deceased Thiruppathy was working under PW.1 and her husband. On the previous occasion, when the deceased went over to the field and questioned the conduct of the accused in closing a pipe line, the deceased was abused and beaten by the first accused. According to the first accused, a complaint was given against him in the respondent police station. The accused came to know about the same and they were really aggrieved against Thiruppathy. At this relevant point of time, a panchayat was convened by PW.1 and this was conducted in front of the house of PW.1. Even assuming that the first accused was called to participate in the panchayat, he could not have any angry but only with PW.1 and her husband and not against the deceased. It would be quite clear that both the accused went to the panchayat with an anguish in the mind against the deceased and not against PW.1 and her husband. Apart from that when the accused went over there, there was no provocation caused by the deceased. Under the circumstances, the first accused took a wooden log and attacked the deceased Thiruppathy and caused instantaneous death. Though the first accused had no intention to cause death till reaching the panchayat, when he reached the panchayat being conducted in front of the house of PW.1, he got an intention to attack him and attacked on the head, which in the ordinary course of nature would be sufficient to cause death. Under the circumstances, the lower Court is perfectly correct in applying the penal provisions of Section 302 and rightly sentenced too, the accused/appellant.

16. This Court is unable to notice any reason or infirmity to interfere with the judgment of the lower Court either factually or legally. Hence, the judgment of the lower Court is sustained. The Criminal Appeal fails and the same is dismissed.

The learned counsel, who was appointed as amicus curiae in this appeal, is entitled for remuneration from the Legal Aid Services Committee, Madurai Bench of Madras High Court.

asvm

To

1.The Principal Sessions Judge,

Tiruchirapalli.

2.Inspector of Police,

Thuraiyur Police Station,

Thuraiyur,

Trichy 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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