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ARJUNAN versus STATE BY INSPECTOR OF POLICE

High Court of Madras

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Arjunan v. State by Inspector of Police - CRIMINAL APPEAL NO.754 OF 2003 [2007] RD-TN 662 (23 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23/02/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE G.RAJASURIA

CRIMINAL APPEAL NO.754 OF 2003

1.Arjunan

2.Thangapandi .. Appellants Vs.

State by Inspector of Police,

Suthamalli Police Station,

Tirunelveli District

Crime No.153 of 2000 .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge (Fast Track Court No.2), Tirunelveli made in S.C.No.309 of 2002, dated 28.03.2003. For Appellants : Mr.V.Kathirvelu,

Amicus Curiae

For Respondent : Mr.V.Kasinathan, APP

:JUDGMENT



(The judgment of the court was made by M.CHOCKALINGAM, J.) This appeal has arisen from the judgment of the learned Additional Sessions Judge, Fast Track Court No.2, Tirunelveli made in S.C.No.309 of 2002, whereby the appellants, two in number, along with the third accused, stood charged under Sections 341 and 302 r/w S.34 IPC, tried and found guilty as per the charge and awarded life imprisonment each and to pay a fine of Rs.1000/- each and in default to undergo one year RI under Section 302 r/w S.34 IPC and one month SI each under Section 341 IPC. Hence, the appellants herein have challenged the said judgment. Originally, the third accused was shown as accused and pending investigation, he died and hence, no charge sheet was laid against him.

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

a)P.W.1 and 4 are residing at Thangammankoil Street. P.Ws.2 and 3 are residing at Kondanagaram Pillaiyar Koil Street. P.W.1 and the deceased were co- brothers. The deceased Karuppasamy borrowed a sum of Rs.30,000/- from the first accused one year back, but he did not repay the same and many a demand was made. At that time, the deceased Karuppasamy attacked him. Then, a case was registered against the deceased and it was pending. b)While the matter stood thus, on 22.10.2001, P.Ws.1 to 3 were proceeding to Kondanagaram. At about 4.15 p.m. the deceased came in a TVS-50 along with P.W.4 from West to East. The accused, all three in number, were also coming from East to West. A-1 and A-3 armed with aruval and A-2 armed with knife, waylaid the deceased and A-1 told the deceased that "having not repaid the money, you have attacked me and you should be finished off". So saying, A-1, first attacked him with aruval and the deceased ran, but the accused chased him. A-1 attacked the deceased and A-2 also stabbed the deceased. A-3 also attacked the deceased with aruval. P.Ws.1 to 4 have actually seen the entire incident. Following the same, all the accused fled away from the place of occurrence. c)The deceased was taken to the High Ground Hospital through an Auto by P.Ws.1 and 2 at about 6.15 p.m., where he was declared dead. On 22.10.2001 at about 19.00 hours, P.W.11, the Sub Inspector of Police, on receipt of the information, proceeded to Palayamkottai Out police station and got the information. Then, P.W.11 proceeded to the High Ground hospital and recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which the case came to be registered in Crime No.153 of 2001 under Sections 341 and 302 IPC. Ex.P.18, the FIR was despatched to the Court. d)P.W.12, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation, proceeded to the first scene of occurrence, made an inspection and prepared Ex.P.2, the observation mahazar and Ex.P.19, the rough sketch. Then, he proceeded to the second scene of occurrence and made an inspection and prepared Ex.P.4 the observation mahazar and Ex.P.20, the rough sketch. He recovered material objects from the place of occurrence in the presence of the witnesses under a cover of mahazar. Then, he proceeded to the Tirunelveli Medical College Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.21, the inquest report. Following the same, he sent the dead body for the purpose of autopsy along with the requisition.

e)P.W.7, the Doctor attached to the Tirunelveli Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has found the injuries. He has issued Ex.P.12, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. f)Pending investigation, P.W.12 arrested all the accused in the presence of the witnesses. A-1 gave a confessional statement, the admissible part of which was marked as Ex.P.6. Pursuant to the same, he produced M.O.1, aruval, which was recovered in the presence of the witnesses under a cover of mahazar. A-2 also gave a confessional statement, the admissible part of which was marked as Ex.P.9. Pursuant to the confessional statement of A-2, he produced M.O.2, knife, which was recovered in the presence of the witnesses under a cover of mahazar. A-3 also has given confessional statement and pursuant to his confessional statement, M.O.3, aruval was recovered under a cover of mahazar. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were sent for chemical analysis by the Forensic Science Department along with a requisition through the concerned Court. Ex.P.15, the Chemical Analyst's report and Ex.P.16, the Serologist's report were received by the Court. After completion of the investigation, the Investigating Officer has filed the final report.

3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 12 witnesses and relied on 22 exhibits and 13 M.Os. 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. The accused have flatly denied them as false. No defence witness was examined.

4.On completion of the trial, the trial court heard the submissions made by either side and found the accused guilty as per the charge and awarded punishment as referred to above. Hence, this appeal has been brought forth by the appellants herein/A-1 and A-2.

5.Advancing his arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case; that according to the prosecution, P.Ws.1 to 4 were the eyewitnesses, but P.W.4 was not believed by the lower court; that insofar as P.W.3 was concerned, Section 161 Cr.P.C statement alleged to have been recorded by the Investigator reached the court along with the charge sheet and hence, it loses its evidentiary value and thus, what was available was the evidence of P.Ws.1 and 2; that P.Ws.1 and 2 could not have been the eyewitnesses; that according to the prosecution, the occurrence has taken place at Northkondangaram, but P.Ws.1 and 2 had no occasion to go over there and they were chance witnesses; that there were number of residents and public available at the time of occurrence, but no one independent witness was examined; that in the instant case, a perusal of the evidence of P.Ws.1 and 2 would clearly reveal that there are lot of discrepancies; that according to P.W.1, he along with the Panchayat President went to the police station, but according to the prosecution, it was he, who took the deceased in an Auto to the police station; that there are lot of discrepancies; that it is doubtful whether Ex.P.1 could have come into existence as put forth by the prosecution; and that in the instant case, the evidence of P.Ws.1 and 2 would clearly indicate major discrepancies and the evidence of one would belie the other.

6.Added further the learned counsel that in the instance case, the medical evidence also did not support the prosecution case and the recovery of weapon of crime pursuant to the alleged confessional statements is nothing but cooked up to make it believe the involvement of the accused with the crime; that a scrutiny of the evidence in this regard would clearly indicate that they were planted to suit the prosecution case; that even assuming that the acts of A-1 and A-2 were proved, there is nothing to show that they had common intention to share with; that in the instant case, even as per the medical opinion, it was the second accused, who stabbed the deceased with knife on kidney, which was a fatal one; that insofar as A-1 was concerned, he has caused only simple injury; that this would indicate that they had no common intention to share with; that apart from that, even as per the evidence of P.W.1, there were family dispute regarding the property and there was a quarrel that preceded on that day and thus, there was a sustained provocation, since the deceased has not repaid the loan amount of Rs.30,000/-; that apart from that, a criminal complaint was given against the deceased. Under these circumstances, there was sustained provocation and also quarrel on the date of occurrence and hence, the same has got to be considered by this Court.

7.Heard the learned Additional Public Prosecutor on the above contentions.

8.The Court has paid its anxious consideration on the submissions made.

9.It is not the fact in controversy that one Karrupasamy was done to death in an incident that took place at the time and place as put forth by the prosecution. The dead body of the deceased was subjected to post-mortem by P.W.7, the Doctor, through whom Ex.P.12, the post-mortem certificate has been marked, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that the deceased died out of homicidal violence was never questioned by the appellants/accused at any stage of proceedings. Hence, it has got to be recorded so.

10.In order to substantiate the same, the prosecution rested its case on the direct evidence, by examining P.Ws.1 to 4. As rightly pointed out by the learned counsel for the appellants, the evidence of P.W.4 was not believed by the lower court. No evidentiary value also could be attached to the evidence of P.W.3, since Section 161 Cr.P.C statement of P.W.3 has reached the court along with charge sheet. But, the prosecution had to its benefit the evidence of P.Ws.1 and 2. The evidence of P.Ws.1 and 2 when scrutinized carefully, would clearly reveal that they were the eyewitnesses to the occurrence. They have spoken about the incident in one voice. It is true, P.Ws.1 and 2 did not belong to North Kondanagaram, but that would be indicative of the fact that at the time of occurrence, they were available and they could see the occurrence. The statement of P.W.3 under Section 161 Cr.P.C. has also reached the court at the earliest point of time. No reason or circumstance is brought to the notice of the court as to why they should come before the court of law to give evidence either against the accused or in favour of the deceased party. The trial court has marshaled their evidence properly, considered the same and found that their evidence is trustworthy and hence, it has accepted the same and rightly too.

11.In the instant case, the medical opinion was also in support of the prosecution case. P.W.7, the Doctor, who has conducted autopsy, has been examined and through whom, Ex.P.12, post-mortem certificate has been marked, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained at the time mentioned by the prosecution. Apart from that, pending investigation, all the three accused were arrested and from whom, confessional statements were also recorded, which were voluntarily given. The weapon of crime were also recovered in the presence of the witnesses and those witnesses have also been examined before the Court and their evidence remains unshaken. The lower court has relied on the direct evidence adduced by the prosecution, which was corroborated by the medical evidence and also the recovery of weapon of crime. Hence, the contentions of the learned counsel for the appellants do not carry any weight to be considered.

12.Coming to the question of the nature of the act of the accused, this Court is unable to agree with the learned counsel for the appellants. It is true, in the instant case, the Doctor's opinion was to the effect that the injury that was caused by A-2 with knife on the kidney, was the fatal injury and caused the death of the deceased. In the instant case, there was a charge under Section 302 r/w S.34 IPC. At this juncture, it is pertinent to point out that A- 1 to A-3, armed with deadly weapons, waylaid the deceased Karuppasamy, who was unarmed, attacked him and while he ran away, all the accused chased him and attacked. A-1 attacked the deceased with aruval on his hand and the finger was severed. Insofar as A-2 was concerned, he attacked the deceased with knife on his kidney and caused fatal injury. It is pertinent to point out that those injuries, whether simple or grievous as put forth by the learned counsel for the appellant, cannot be separated for the simple reason that the accused have shared the common intention, which would be quite evidence from the conduct of the accused. All the accused waylaid the deceased, when he was proceeding in a public place and attacked him with deadly weapons. In that process, the deceased died. Thus, once common intention was shared by the accused, the Court is not called upon to enter into the field or the nature of the injuries caused by the accused independently on the deceased.

13.Under these circumstances, the contentions of the learned counsel for the appellants that there was a quarrel preceded the occurrence and thus, that benefit should be given and the acts of the accused would not attract the penal provisions of murder, have got to be discountenanced, though attractive at the first instance. The evidence of P.W.1 would go to show that there was a quarrel between the third accused and the deceased Karuppasamy in respect of the property, wherein A-1 and A-2 had no role to play. Under these circumstances, there was a quarrel between A-1 and A-2 on one hand and the deceased on the other hand, cannot be inferred. Under these circumstances, the contentions put forth by the learned counsel for the appellants for mitigating circumstances cannot be countenanced and thus, there is sufficient evidence to hold that they shared the common intention, waylaid the deceased, attacked him and caused his death. Therefore, the lower court was perfectly correct in recording conviction and sentence, which in the opinion of the court, do not require any disturbance.

14.In the result, the criminal appeal fails and the same is dismissed. Since A-1 is on bail, the Sessions Judge shall takes steps to commit him to prison to undergo the period of sentence.

vvk

To

1.The Addl. Sessions Judge,

Fast Track Court No.2,

Tirunelveli.

2.The Inspector of Police,

Suthamalli Police Station,

Tirunelveli District.

3.The Addl. Public Prosecutor,

Madurai Bench of 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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