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Nagoor Meeran v. State rep. by Inspector of Police - Crl.A.(MD) No.548 of 2005  RD-TN 1637 (26 April 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
Crl.A.(MD) No.548 of 2005
2.Ismail .. Appellants vs.
State rep. by Inspector of Police,
Achanpudur Police Station,
Crime No.397 of 2004.
Criminal Appeal filed under Section 374 (2) of Cr.P.C against the Judgment of conviction and sentence dated 24.10.2005 made in S.C.No.44/2005 on the file of the Additional Sessions Court (Fast Track Court No.1), Tirunelveli. For appellants ... Mr.M.S.Pandiyan
For respondent ... Mr.Daniel Manoharan
(Judgment of the Court was made by M.CHOCKALINGAM, J) Challenging the judgment of the Additional Sessions Division, Fast Track Court No.1, Tirunelveli dated 24.10.2005 in S.C.No.44 of 2005, whereby both the accused stood charged, tried, found guilty as per the charges and awarded imprisonment for life under Section 302 r/w 34 of IPC, have brought-forth this appeal.
2. The short facts necessary for the disposal of the appeal can be stated thus:
(a) A.1 and A.2 are the brothers. They had a sister by name Jameela. PW.1 is the son and PW.2 is the son-in-law of the deceased Chelliah. Chelliah was doing black magic. The deceased Chelliah even after his marriage had illicit intimacy with Jameela. A.1 and A.2 warned him. Despite the same, they had a child. Chelliah took the Jameela to Ambasamudram and he was living with her. Thus, both the accused were on inimical terms.
(b) On the date of occurrence i.e. on 16.11.2004 at about 2.30 hours PW.1 and PW.2 went to the field to drive away pigs and rats. At that time, the deceased was inside the hut. They heard a distressing cry from the hut. They had a torch light, switched on and with that, they found both the accused armed with aruval attacking Chelliah on different parts of the body. They were weeping for a long time and the accused persons fled away from the place of occurrence soon after the occurrence.
(c) PW.1 proceeded to the respondent police where PW.10, the Sub Inspector of Police was on duty, received a complaint from PW.1 and the same was marked as Ex.P.1. On the strength of Ex.P.1, a case was registered in crime No.279/2004 under Section 302 of IPC. F.I.R. Ex.P.14 was despatched to the court.
(d) On receipt of copy of the F.I.R., the Investigating Officer took up investigation, proceeded to the spot, made an inspection and prepared an Observation Mahazar in the presence of witnesses, which was marked as Ex.P.17 and a Rough Sketch, which was marked as Ex.P.18. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and he prepared an Inquest Report, which was marked as Ex.P.19. The dead body of the deceased was subjected to post-mortem. PW.7, Doctor attached to Shencottai Government Hospital, conducted post-mortem on the dead body of the deceased and he found injuries as described in the Post-Mortem Certificate issued by him and the same was marked as Ex.P.9 wherein he has opined that the deceased would have died of massive haemorrhage and shock due to multiple injuries. (e) Pending investigation, on 17.11.2004, both the accused were arrested. The second accused gave a confessional statement in the presence of witnesses and the admissible portion of the confession was marked as Ex.P.22. Pursuant to the confession, Aruval MO.12 was produced by the accused and the same was recovered under the cover of mahazar Ex.P.23. While the other aruval was recovered from the place of occurrence. Both the accused were sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body were subjected to chemical analysis, which resulted in two reports viz., Chemical Analysis Report Ex.P.12 and Serological Report Ex.P.13. (f) On completion of the investigation, the investigating officer filed a final report against both the accused. The case was committed to the Court of Sessions. Necessary charge was framed.
3. In order to substantiate the charge levelled against the accused, the prosecution has marched 13 witnesses, also relied on 23 Exhibits and 12 MOs.
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 prosecution witnesses and they denied them as false. No defence witness was examined.
5. The trial Court after hearing the arguments advanced on either side and looking into the materials available, took a view that the prosecution has proved the case beyond all reasonable doubts and found both the accused guilty of the charge and awarded imprisonment for life, which is the subject of challenge of this appeal.
6. Advancing his argument on behalf of the appellants, learned counsel, Mr. M.S.Pandiyan would submit the following submissions: (a) In the instant case, PW.1 and PW.2 could not have witnessed the occurrence as claimed by them. PW.1 is the son and PW.2 is the son-in-law of the deceased. Even according to them, they were standing within a distance of 2 feet from the place of occurrence and they were also armed with sticks in their hand. If to be so, in an incident where a close relative was being attacked by A.1 and A.2, naturally, the conduct of PW.1 and PW.2 would have been to rescue and save the deceased but they did not done so but they were mere passive spectators and thus, it would be an indicative of the fact that they could not have witnessed the occurrence.
(b) PW.1 went to the police station to give a complaint at about 11.30 a.m., when the occurrence had taken place at about 3.00 a.m. and thus, the F.I.R came into existence after a long delay and the delay remains unexplained by the prosecution.
(c) Insofar as the motive part, Chelliah had illicit intimacy with Jameela for the past four years but they were on cordial terms. While the matter stood thus, there was no occasion for A.1 and A.2 to commit the offence. The deceased was doing black magic. He had a number of enemies. He got illicit intimacy with a number of persons and he got inimical terms with so many persons and thus, actually, the deceased should have been killed by some one else. (d) The medical opinion was not in favour of the prosecution. (e) Insofar as the arrest and recovery of the weapon from A.2, it is nothing but false introduction and hence that should have been rejected by the Court but did not do so.
(f) In the instant case, for the aforesaid reasons, the lower Court should have rejected the case of the prosecution outrightly. Hence, the judgment of the lower Court has got to be set aside 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.
8. It is not a fact in controversy that one Chelliah, father of PW.1 was done to death in the incident that took place on 16.11.2004 and following the inquest made, the dead body was subjected to post-mortem by the Doctor PW.7, who has issued Post-Mortem Certificate Ex.P.9 wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to multiple injuries sustained. The fact that the deceased died out of homicidal violence was never questioned by the accused/appellants at any stage of the proceedings. Hence, the fact that the deceased died out of homicidal violence could be factually recorded and so recorded.
9. In order to substantiate the case of the prosecution that these two accused shared the common intention with each other to cause the death of the deceased Chelliah, the prosecution has marched 13 witnesses among them PW.1 and PW.2 are the eye-witnesses. PW.1 is the son and PW.2 is the son-in-law of the deceased. The Court is mindful of the caution where the eye-witness are relatives to the deceased, the test of careful scrutiny has to be applied. In the instant case, despite the test of careful scrutiny, the Court is of the considered opinion that the evidence of PW.1 and PW.2 has got to be accepted since their evidence has inspired the confidence of the Court.
10. According to both the witnesses, they were in the field nearby the hut where they heard a distressing call from inside the hut, they put on the torch light when they found both these accused persons armed with aruvals attacking the deceased Chelliah. Despite the cross-examination in full, their evidence stood the test. With regard to the contention put-forth by the learned counsel for the appellants that they could not have been a passive spectator, when the occurrence was taking place when they were standing nearby the hut, at this juncture, it is pertinent to point out that the mental frame of the individual would differ. Apart from this, both these persons though had sticks in hand, the accused persons were having aruvals in their hand. Apart from that, they would be under grip of fear. Merely because that they did not go nearby the accused to rescue him, it cannot be stated that they could not have witnessed the occurrence. Naturally, in an incident in which father of PW.1 died, both the witnesses were weeping. Pursuant to the occurrence, PW.1 gave a complaint to the respondent police and following the same, a case came to be registered. Thus, the evidence of both the witnesses, viz., PW.1 and PW.2 who happened to be in the field at the time of occurrence and saw the occurrence nearby the hut are natural, convincing and inspiring the confidence of the Court, which was rightly accepted by the trial Court.
11. In the instant case, the medical opinion canvassed through the Post- Mortem Certificate is in full corroboration of the ocular testimony. The Court is unable to find any thing contra to the prosecution case in the evidence of the Doctor PW.7.
12. Yet another circumstance is the recovery of MO.12 Aruval, weapon of crime, pursuant to the confession made by the second accused. With regard to this aspect, two witnesses were examined viz., PW.4 and PW.6. PW.4 was the Jamath leader. According to whom, he produced both the accused. He was treated as hostile. It could be easily inferred that he happened to be the Jamath leader of which these two accused belonged to, but the prosecution for its benefit had the evidence of PW.6 V.A.O.,. According to whom, on 17.11.2004 both the accused were arrested and A.2 gave a confessional statement in their presence and the admissible portion of the same were marked as Ex.P.22. The recovery of MO.12 Aruval from the second accused pursuant to the confession was also pointing to the nexus of the accused in the crime.
13. Any of the contentions or any one of the contention put-forth by the learned counsel for the appellants in the instant case did not carry any merit whatsoever. Hence, the prosecution has proved the case beyond all reasonable doubts.
14. Coming to the act of the accused, it would only attract the penal provisions of murder for the simple reason that the occurrence had taken place at about 3.00 a.m. in the place of occurrence i.e. in a hut on 16.11.2004. These two accused persons armed with aruvals went to the spot and attacked the deceased Chelliah. Thus, it cannot be, but a pre-planned act, which would only attract the penal provisions of murder.
15. The lower Court was perfectly correct in making a finding factually and legally in its judgement and it does not require any disturbance in the hands of this Court. The criminal appeal has got to be dismissed and accordingly dismissed, sustaining the judgment of the trial Court.
1.The Additional Sessions Court
(Fast Track Court No.1),
2.Inspector of Police,
Achanpudur Police Station.
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
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