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Guna v. State - Crl. Appeal No.568 of 2005 [2007] RD-TN 272 (23 January 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 23.01.2007

CORAM

THE HONOURABLE MR.JUSTICE R.BALASUBRAMANIAN

and

THE HONOURABLE MR.JUSTICE M.JEYAPAUL

Criminal Appeal No.568 of 2005

1. Guna @ Gunasekaran

2. Chandran ..Appellants Vs

State

rep. By Inspector of Police,

Mannargudi Police Station

(Cr.No.472/02) ..Respondent Criminal Appeal against the Judgment dated 25.11.2003 made in S.C.No.164 of 2003 on the file of the District Sessions Judge, Nagapattinam. For appellants : Mrs.Jayasri Baskar

For respondent : Mr.C.T.Selvam, Addl. Public Prosecutor JUDGMENT



(Judgment of the court was delivered by M.JEYAPAUL,J.) The first accused was convicted and sentenced to undergo life imprisonment for offence under section 302 IPC and the second accused to undergo life imprisonment for offence under section 302 read with 109 IPC and to pay fine of Rs.6000/= each with default sentence. As both the accused had not completed 21 years of age, the Trial Court has sent them to borstal school till they attain the age of 23.

2. On the side of the prosecution, as many as 26 witnesses were examined besides marking 26 documents and 6 Material Objects.

3. The sum and substance of the case of prosecution as unfolded by the witnesses examined on their side is as follows:- Panchavarnam, PW11, is the wife of the deceased Ravichandran. The deceased is the cousin of Sankar, PW1. The deceased was residing with his wife at Pattukottai Poomalliyarkulam. Somayyan and Arumugam purchased a lorry from Selvam, PW12 for a sum of Rs.1,12,000/=. Only a sum of Rs.52,000/= was paid towards the price of the lorry. The balance amount was not settled inspite of the promise they made to settle the dues within fifteen days. As there was some dispute with respect to payment of the balance sale price, the lorry was entrusted to Lorry Owners' Association by PW12. There was some dispute between the lorry broker Gopal, who is the father of the first accused Guna alias Gunasekaran, in respect of the purchase of the lorry by the deceased Ravichandran.

4. Gopal lodged a criminal case on 19.8.2002. On the basis of the complaint given by Gopal that he was attacked by the deceased, a case was registered in Crime No.529 of 2002 for offences under sections 149, 148, 386, 323 and 384 IPC and section 3(1) of TNPPD Act. The said case was registered by the Head Constable, PW21. The Inspector of Police, PW22 arrested the deceased Ravichandran who was arraigned as fifth accused in the aforesaid case during the course of investigation relating to the said case. Thereafter, the deceased Ravichandran was granted conditional bail in the said case.

5. On 25.9.2002, at about 10.30 am, the deceased Ravichandran went to the Judicial Magistrate Court, Thiruvarur for the purpose of complying with the condition. When PW1 and the deceased Ravichandran were proceeding to board a bus bound to Pattukottai after complying with the condition at the Court at Thiruvarur, the first accused exhorted the second accused to finish off the deceased who humiliated his father. The second accused caught hold of the deceased from behind. The first accused took out a knife from his waist and attacked the deceased on his chest and stomach and thereafter, both of them sped away from the scene of occurrence. PW1 took the injured Ravichandran to Government Hospital, Mannargudi at about 12.15 pm on 25.9.2002. Dr.Geetha, PW8, admitted the injured Ravichandran for treatment to Government Hospital, Mannargudi. She found a stab injury over the abdomen, a lacerated injury on the left shoulder and another lacerated injury over the left mammary region. PW8 has deposed that the deceased Ravichandran, when he was admitted to hospital for treatment, informed her that he was stabbed by two known persons with knife at about 11.45 am on 25.9.2002 near Mannargudi Bus Stand. PW8 issued copy of the accident register, Ex.P4 reflecting the injuries noted down by her on Ravichandran. She also referred the injured to Thanjavur Medical College Hospital under Ex.P5. The Sub Inspector of Police, Mr.K.M.Muniasamy, PW16, having received telephonic message from Government Hospital, Mannargudi about the admission of Ravichandran at about 12.00 noon on 25.9.2002, rushed to the hospital and recorded the statement of Ravichandran at about 12.15 pm on the said day. The statement given by Ravichandran was marked as Ex.P8. In Ex.P8, the deceased Ravichandran has spoken to the chronological events detailed by PW1 before the court. Natarajan, PW2, Sekar, PW3 and Natarajan, PW4 are the eyewitnesses to the occurrence examined on the side of the prosecution. Though Sekar, PW3 has turned hostile to the version of the prosecution, P.Ws.2 and 4 have spoken to the occurrence before the Trial Court.

6. PW16 registered a case in Crime No.472 of 2002 for offences under sections 341 and 307 IPC and prepared the printed FIR, Ex.P9 and despatched the same to the learned Judicial Magistrate.

7. The Inspector of Police, Mr.Krishnamurthy, PW25, having received a copy of the first information report from PW16, took up the case for investigation and went to Government Hospital, Tanjavur at about 2.00 pm on 25.9.2002 and recorded the statement, Ex.P17 from Ravichandran. He recovered the Jeans Pants, M.O.2 and Banian, M.O.4 and half sleeve shirt, M.O.3 under the cover of mahazar, Ex.P1 from the injured Ravichandran. He proceeded to the scene of occurrence at Mannargudi at about 5.30 pm on the said day and prepared observation mahazar, Ex.P26 in the presence of Murugesan, PW5. He also drew rough sketch, Ex.P19 reflecting the scene of occurrence. He received intimation from PW16, Sub Inspector of Police that the injured Ravichandran succumbed to the injuries at about 5.00 pm on 25.9.2002 itself at the Government Hospital, Tanjavur. Thereafter, he advised PW16 to convert the Penal provision to one under section 302 IPC and prepare the express report, and accordingly, he received the express report, Ex.P10. At about 8.00 am on 26.9.2002, he went to the Government Hospital, Tanjavur and held inquest on the dead body of Ravichandran in the presence of Panchayatdars between 9.00 am and 11.00 am on the said day and prepared inquest report, Ex.P20.

8. Dr.Vijayalakshmi, PW23, having received requisition, Ex.P12 for conducting post mortem examination, performed post mortem examination on the dead body of Ravichandran at about 12.30 pm on 26.9.2002. She found the following external and injuries and other symptoms on the dead body of Ravichandran:- "External Injuries:-

1. A wedge shaped stab wound noted 6 cm below the top of left shoulder over the anterior axillary fold measuring 2 cm x 0.75 cm x 6 cm deep entering the anterior chest wall only. 2. An obliquely placed stab wound measuring 1 cm x 0.5 cm x 2 cm noted over the left side front of chest found situated 2 cm medial and 3 cm below the level of left side nipple-muscle deep. 3. A horizontally placed wedge shaped stab wound noted over the front of right side front of upper abdomen found situated 8 cm above the level of Umbilicus, 2 cm lateral to the midline and 16 cm below the ziphisternum measuring 4 cm x 1 cm abdominal cavity deep with fresh bleeding. Internal Injuries:-

4. On dissection of abdomen and on exploration of the above wound No.3-Abdominal cavity contained about three litres of fluid blood. The above said stab wound No.3 has entered the abdominal cavity, injured and made a stab wound over the root of mesentery, adjoining coils of Jejunum, mesentery, mesenteric vessels, sortion and inferior vense cavs. Contusion over the whole of mesentery, root of mesentery, adjoining coils of small intestine, body of the pancreas pre and paravertebrae muscles. All the above mentioned injuries were of ante mortem in nature. Extremities  Pale. Heart  Normal in size. All the Chambers were empty. Valves  Normal. Caronary Vessels-patent. Great Vessels  Normal. Lungs  C/S Both pale. Larynx  Intact.

Hyoid Bone  Intact.

Stomach  contained about 100 ml. Of dull white coloured thick fluid with no specific smell/Mucosa  pale. Liver, Spleen, Kidneys  C/S pale.

Small Intestine  Empty. Mucosa  Pale. No specific smell made out Bladder  Empty. Brain  C/S Very much pale."

PW23 opined in the post mortem certificate, Ex.P15 that the deceased Ravichandran would appear to have died of shock and haemorrhage on account of stab injury he received on his abdomen involving many of the vital organs.

9. On 26.9.2002 at about 3.00 pm, PW25 arrested the first accused Guna alias Gunasekaran in the presence of PW6. He gave voluntarily a disclosure statement. On the basis of the admissible portion, Ex.P2, in the disclosure statement of the first accused, knife, M.O.1 was recovered under the mahazar, Ex.P3 in the presence of PW6. Thereafter, the first accused and the M.O recovered from him were sent to the court of Judicial Magistrate. PW25 received intimation that A2, Chandran had surrendered before the learned Judicial Magistrate, Thiruvarur on 4.10.2002 itself. He filed an affidavit before the learned Judicial Magistrate, Mannargudi requesting for police custody of the second accused. As per the orders of the learned Judicial Magistrate, Mannargudi, the second accused was taken police custody on 8.10.2002. He gave confession statement in the presence of Manoharan, PW9 at about 2.00 pm on 9.10.2002. On the basis of the admissible portion, Ex.P21, in the confession statement of the second accused, the blood stained shirt, M.O.5 was recovered from the lorry broker office of Gopal. The second accused was remanded to judicial custody at about 4.00 pm on 10.10.2002. The Material Object recovered from him was also submitted for the purpose of chemical examination. He submitted a requisition, Ex.P23 to the learned Judicial Magistrate requesting him to send the Material Objects for chemical examination.

10. The Inspector of Police, Ayyanar, PW26, who took up the case for further investigation on 5.2.2003, perused the chemical examiner's report, Ex.P25 and the serology report, Ex.P26 and laid final report as against both the accused on 11.2.2003 under section 342, 302 and 302 read with 34 IPC.

11. The incriminating circumstances spoken to by the witnesses examined on the side of prosecution were put to Accused 1 and 2 to respond under section 313 Cr.P.C and they have denied the role alleged as against them by the witnesses.

12. The elder brother of the second accused was examined as DW1 through whom the Transfer Certificate, Ex.D1 was marked. DW2 is the Head Clerk attached to the learned Judicial Magistrate, Thiruvarur. He has spoken to the fact that the deceased Ravichandran, who had been arraigned as fourth accused in Crime No.529 of 2002 pending on the file of the learned Judicial Magistrate, Thiruvarur, appeared before the learned Judicial Magistrate and signed on 29.4.2002 and on 25.9.2002. The surety bond executed by the deceased was marked as Ex.D4 and the note book containing the signatures of the deceased in compliance of the condition imposed on him in the bail order was marked as Exs.D2 and D3.

13. The learned Principal Sessions Judge, Nagapattinam, having adverted to the ocular testimony of P.Ws.1, 2 and 4 in the background of the dying declaration, Ex.P8, has returned a verdict of conviction as detailed above as against both the accused.

14. Learned counsel appearing for the appellants would submit that the signature of the deceased found in Ex.P8 differs from his admitted signature and therefore, Ex.P8, the statement alleged to have been given by the deceased cannot be acted upon. It is submitted that PW1 is the close relative of the deceased. She would further submit that PW3 has completely turned hostile to the version of the prosecution. Very weak motive has been attributed to the crime of murder. The Sub Inspector of Police, PW16 would not have recorded the statement of the injured Ravichandran as the intimation itself had reached him only by 12.00 noon. Therefore, she pleads for acquittal of A1 and A2.

15. Learned Additional Public Prosecutor would submit that apart from the dying declaration in the form of the statement of the deceased, Ex.P8, ocular witness, PW1 has cogently spoken to the occurrence. The evidence of P.Ws.2 and 4 also lends corroboration to the testimony of PW1. That apart, the medical evidence and the recovery part of the case also support the case of the prosecution. The Trial Court has rightly returned the verdict of conviction as against these accused, he submitted.

16. The occurrence had unfolded at about 12.00 noon on 25.9.2002. Dr.Geetha, PW8 has spoken to the effect that the injured was brought at about 12.05 pm on 25.9.2002 for treatment by a taxi driver. The Sub Inspector of Police, PW16 would depose before the court that he received intimation at about 12.15 pm on 25.9.2002 about the admission of Ravichandran in hospital with stab injuries over telephone. Ex.P8 statement given by the deceased was registered as first information report at about 12.15 pm on the very same day. The aforesaid details referred to above would clinchingly establish that immediately after the occurrence, the injured was admitted to Government Hospital for treatment and the Doctor, who admitted the injured for treatment had passed on the message over phone to the Police Station and PW16 had descended on the hospital within no minute and recorded the statement, Ex.P8 from the injured Ravichandran. There might have been some discrepancy as regards the time when the intimation was passed on to PW16, the time when he reached the hospital and the time when he recorded the statement of the injured. But, the court finds that within a short span of time, the statement of the injured Ravichandran had been recorded by PW16. Such a discrepancy is not so material as to throw overboard the ocular testimony available on record.

17. Sankar, PW1 had accompanied the injured Ravichandran when the injured had gone to the court of learned Judicial Magistrate for the purpose of complying with the condition imposed in the bail order obtained by him. He has categorically deposed before the court that he accompanied the deceased Ravichandran to Mannargudi and when he was in search of the bus bound for Thiruvarur, the first accused having alerted the second accused to finish off the deceased as he had humiliated his father and stabbed him over the chest and abdomen when the second accused caught hold of the deceased from behind facilitating the first accused to stab him. The evidence of PW1 lends corroboration to the statement, Ex.P8 which has now been elevated to the status of dying declaration after the death of the deponent. There is no reason to doubt the veracity of the version found in the statement, Ex.P8. PW1, being the relative of the deceased, had accompanied the deceased who proceeded to the court of the learned Judicial Magistrate, Mannargudi for the purpose of complying with the condition imposed on the deceased. The ocular testimony of PW1 is found to be quite natural and trustworthy. Just because PW1 is the relative of the deceased, we cannot discard his testimony in the above facts and circumstances. PW2, Natarajan and PW4, another Natarajan have also spoken to the role of the accused in the crime of murder alleged as against them. They also support the case of the prosecution. It is true that PW3, who was cited as one of the ocular witnesses, has completely turned hostile to the version of the prosecution. The hostility exhibited by PW3 has not created any infirmity or dent in the strong foundation laid by the prosecution through the ocular testimony of the witnesses examined on their side. The recovery part of the case of the prosecution also has been established through Gunasekaran, PW6 and Manoharan, PW9 who were present at the time when A1 and A2 were arrested by the Inspector of Police, PW25. The Banian, shirt and the knife recovered from the accused were found with human blood. No explanation had flowed from the accused as to how human blood was found in the Material Objects recovered from their custody.

18. To top it all, the wife of the deceased, who was examined as PW11, has cogently spoken to the motive for the murder. The lorry purchased by her husband through the help of the father of the first accused had culminated in a criminal complaint at the instance of the latter. The purchase of lorry has also been spoken to by the lorry owner Selvam, PW12. The Head Constable, PW21 and the Sub Inspector of Police, PW22 have also detailed about the case which was registered as against the deceased based on the complaint given by Gopal. DW2, Head Clerk, attached to the learned Judicial Magistrate Court, has stated that the deceased, on the fateful day, came down to the Court and complied with the condition imposed on him. Therefore, the prosecution has also established the motive for the murder committed by the accused.

19. It is found that the Trial Court, having adverted to the aforesaid telling testimony available on record, has rightly returned the verdict of conviction as against the first and second accused.

20. Coming to the sentence part of the judgment, it is found that the learned Principal Sessions Judge, Nagapattinam has convicted the first accused for offence under section 302 IPC and the second accused under section 302 read with 109 IPC and sentenced them to undergo life imprisonment. But, to our surprise, the learned Principal Sessions Judge, having found that both the accused have not completed 21 years of age, has chosen to send them to Borstal School for their detention till they complete 23 years of age despite the fact that both of them were sentenced to life imprisonment. It is very much relevant to refer to section 8 of the Tamil Nadu Borstal Schools Act which reads as follows: "Power of Court to pass sentence of detention in Borstal School. (1) Where it appears to a court having jurisdiction under this Act that an adolescent offender should, by reason of his criminal habits or tendencies, or association with the persons of bad character, be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime, it shall be lawful for the court, in lieu of passing a sentence of imprisonment, to pass a sentence of detention in a Borstal school for a term which shall not be less than two years and shall not exceed five years but in no case extending beyond the date on which the adolescent offender will, in the opinion of the Court, attain the age of twenty-three years. (2) Before passing a sentence of detention in a Borstal School under sub-section 91), the Court (a) shall call for a report from the Probation Officer of the area in which the offender permanently resided at the time when he committed the offence and shall consider such report, (b) shall consider any other report or representation which may be made to it, and (c) may make such further inquiry as it may think fit, as to suitability of the case for treatment in a Borstal school and shall be satisfied that the character, state of health and mental condition of the offender and the other circumstances of the case are such that the offender is likely to profit by such instruction and discipline as aforesaid. (3) The report of a Probation Officer referred to in sub-section (2) shall be treated as confidential. Provided that the Court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report."

21. The sum and substance of the recent judgment pronounced by us in PALANISAMY AND CHINNASAMY ALIAS VAKKIL AND THREE OTHERS v. STATE REPRESENTED BY INSPECTOR OF POLICE, VEERANAM POLICE STATION, SALEM DISTRICT (2006-2-LW (CRL.) 628) is as follows:- i) An adolescent offender is one who was not less than 18 years of age and not more than 21 years of age. ii) The crucial date to be taken into account to determine whether the person is an adolescent offender is the date of conviction and not the date on which the crime was committed. iii) No adolescent offender found guilty of an offence imbibes an absolute right to detention in a Borstal School in lieu of sentence of imprisonment. iv) In terms of section 2(1) and section 8 of the Tamil Nadu Borstal Schools Act, an adolescent offender, who receives a definite term of imprisonment and not imprisonment for life, alone is entitled to invoke the provisions of section 8 of the Tamil Nadu Borstal Schools Act as the import of imprisonment for a term couched therein is different from the imprisonment for life. v) Of course, the Government has the power under section 10A of the Tamil Nadu Borstal Schools Act to transfer an adolescent offender to detention in Borstal School even in a case where he was sentenced to life imprisonment. But, in this case, the learned Principal Sessions Judge, having sentenced both of them to life imprisonment, has chosen to pass a sentence of detention in a Borstal School against the spirit of the said Act.

22. At any rate, we find that the State has not preferred any appeal as against the aforesaid mode of sentence passed by the learned Sessions Judge. Therefore, though we find that the sentencing portion of the verdict passed by the learned Principal Sessions Judge is found to be erroneous, we are not in a position to upset the aforesaid verdict of sentence against the interest of the accused as the State has not preferred any appeal aggrieved by such sentencing. In view of the above, confirming the judgment passed in S.C.No.164 of 2003, the appeal preferred by the first and second accused stands dismissed. Ssk.

To

1. The District Sessions Judge,

Nagapattinam.

2. The District Collector,

Nagapattinam.

3. The Director General of Police,

Chennai.

4. The Public Prosecutor,

High Court,

Chennai.

5. The Officer in Charge,

Borstal School,

Pudukkottai.

6. The Inspector of Police,

Mannargudi Police Station.

[PRV/9423]


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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