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Arumugam v. The State represented by - CRIMINAL APPEAL No.300 OF 2004  RD-TN 713 (27 February 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27/02/2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
CRIMINAL APPEAL No.300 OF 2004
CRIMINAL APPEAL No.304 OF 2004
Arumugam .. Appellant in
Crl.A.No.300 of 2004 Murugan alias
Murugesan .. Appellant in
Crl.A.No.304 of 2004 Vs.
The State represented by
The Inspector of Police,
C1, Theppakulam Police Station,
Madurai. .. Respondent in
both the appeals
These criminal appeals are preferred under Section 374 of the Code of Criminal Procedure, against the judgment dated 30.12.2003, made in S.C.No.223 of 1999, on the file of the learned III Additional District and Sessions Court (P.C.R), Madurai.
For Appellants : Mr.P.Andiraj
For Respondent : Mr.P.N.Pandidurai,
Additional Public Prosecutor
(The judgment of the Court was made by M.CHOCKALINGAM,J.) Crl.A.No.300 of 2004 by the first accused and Crl.A.No.304 of 2004 by the second accused, have arisen from the judgment of the learned III Additional District and Sessions Judge, (P.C.R), Madurai, made in S.C.No.223 of 1999, dated 30.12.2003, whereby both the appellants/accused stood charged, tried and found guilty as per the charges and convicted under Section 449 I.P.C and awarded rigorous imprisonment for two years with a fine of Rs.5,000/- and a default sentence of rigorous imprisonment for three months and further convicted under Section 302 read with Section 34 I.P.C and awarded life imprisonment with a fine of Rs.10,000/- and a default sentence of rigorous imprisonment for one year and the sentences were ordered to run concurrently.
2. The short facts necessary for the disposal of these appeals can be stated thus:
(i) The deceased Musthapa was resided at Backiam Street, Madurai, within the jurisdiction of the respondent police. His foster-son Abudhageer was also resided with him. The deceased Musthapa was a soothsayer by profession. The first accused was a tailor by profession and the second accused was a load man who were close associates and used to visit frequently and at that time, they used to participate in the Pooja. On the date of occurrence, i.e, on 28.01.1998 at about 08.30 p.m., when the deceased was in his Pooja room, both the accused armed with knifes came inside the house and stabbed him indiscriminately. When the deceased raised distressing cry, both the accused leaving the weapons of crime on the spot, fled away from the place of occurrence. When both the accused on their heels, the same was witnessed by P.W.1, P.W.2, P.W.3 and P.W.8. (ii) The deceased Musthapa was taken to the Government Rajaji Hospital, Madurai where he was admitted and given initial treatment and an intimation was given to the respondent police at about 09.45 p.m. P.W.15, the Sub Inspector of Police attached to the respondent police, on receipt of the intimation, went over the Hospital and recorded the statement of the deceased which was marked as Ex.P.15, on the strength of which a case came to be registered by the respondent police under Section 307 I.P.C. The intimation was sent to the learned Judicial Magistrate concerned and on receipt of the same, P.W.9, the Judicial Magistrate, proceeded to the Hospital and after being satisfied that the declarant was mentally fit and frame of mind was also fit to give a dying declaration, the same was recorded by him and on proceedings, the dying declaration was marked as Ex.P.9. Despite the treatment, the deceased died in the next morning at 09.20 a.m.
(iii) Originally, F.I.R Ex.P.16 was registered by the Sub Inspector of Police in Cr.No.150 of 1998. The case, earlier registered under Section 307 I.P.C was converted to Section 302 I.P.C. The Inspector of Police, P.W.17, took up the investigation and proceeded to the place of occurrence where he prepared the observation mahazar Ex.P.17 and rough sketch Ex.P.18 in the presence of the witnesses. P.W.17 further proceeded to the Government Rajaji Hospital and conducted inquest on the dead body of the deceased Musthapa and prepared Ex.P.21, the inquest report in the presence of the witnesses and the Panchayatars. Following the inquest, the dead body was subjected to post-mortem by P.W.13, the Doctor who after conducting autopsy issued the post-mortem certificate, Ex.P.13, where he opined that the death would appear to have caused due to shock and haemorrhage due to the injuries sustained.
(iv) Pending investigation, both the accused were arrested on 29.01.1998 and the first accused gave a confessional statement and the same was recorded and he also produced the material objects, blood-stained pant M.O.5, blood- stained shirt M.O.6 which were recovered under a cover of mahazar and the accused were sent to the judicial remand. All the material objects recovered from the place of occurrence, from the dead body and also from the first accused on production, were subjected to chemical analysis by the Forensic Science Department and Ex.P.26 Chemical Analysis's report and Ex.P.27 Serologist report were also received and they were also placed before the Court. (v) On completion of the investigation, the Investigating Officer filed the final report. The case was committed to the Court of Session. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and relied on 27 exhibits along with 6 M.Os. (vi) After the evidence on the side of prosecution was over, the Court questioned the accused under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused denied them as false. On the side of the defence, neither oral nor documentary evidence was let in.
(vii) After completion of trial, the trial court heard the arguments of both sides, perused the materials available. The trial Court took the view that the prosecution has proved its case beyond all reasonable doubts and found the accused guilty under Sections 449, 302 read with 34 I.P.C and awarded the sentences referred to above.
3. The conviction recorded by the trial Court is the subject matter of challenge before this Court.
4. Advancing his arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the occurrence had taken place at 08.30 p.m., on 28.01.1998. There is no direct evidence available. P.W.1, P.W.2, P.W.3 and P.W.8 have seen only the accused running from the place of occurrence and unfortunately, all the witnesses turned hostile. The only available material for the prosecution case placed before the trial Court was the dying declaration Ex.P.9, alleged to have been recorded by the learned Judicial Magistrate P.W.9. It is highly doubtful whether the dying declaration Ex.P.9 came into existence as put forth by the prosecution, since there are number of doubts cast upon the same. Apart from that, number of infirmities were found.
5. According to P.W.9, the Judicial Magistrate, on receipt of the intimation, he proceeded to the Hospital and after verifying that the deceased Musthapa was conscious and mentally fit to give a dying declaration, he recorded the statement in the presence of the medical person between 10.42 p.m., and 11.15 p.m. The Doctor who certified that the declarant was conscious enough and mentally fit, was not examined. The Doctor P.W.14, has clearly stated that at about 09.40 p.m., the deceased Musthapa was brought to the Hospital and at about 10.45 p.m., Anaesthesia was applied and the operation was commenced by 11.00 p.m., and no one was allowed to get in the operation theatre and he died only in the next morning and the case sheet was also produced before the Court. The original Accident Register was virtually found missing. At that juncture, a request was made and P.W.14, the Doctor has also produced the copy available with the Hospital. It has to be pointed out that once P.W.14, the Doctor has come forward to state that at about 10.45 p.m., Anaesthesia was given to the deceased and at about 11.00 p.m., the operation was commenced and when the case sheet was to that effect, the dying declaration Ex.P.9 as claimed by P.W.9 could not have been recorded between 10.42 p.m., and 11.15 p.m. Under such circumstances, the dying declaration Ex.P.9 has got to be eschewed and should not be given any evidentiary value at all.
6. Added further, the learned Counsel for the appellants that in the instant case, according to P.W.15, the Sub Inspector of Police, he received the intimation from the Hospital at about 09.45 p.m., and he rushed to the Hospital at about 10.15 p.m., and recorded the statement of the deceased Musthapa. The evidence of P.W.15, would clearly indicate that it is thoroughly unbelievable and even a look at Ex.P.15 would clearly reveal that the thumb impression of the deceased would have obtained in a blank paper earlier and thereafter, the same was used to suit the conveniences of the prosecution case and even in the original Accident Register, the deceased Musthapa stated to the Doctor that three persons attacked him and this would go to show that the prosecution did not come with the clean hands. Apart from that, the prosecution has not proved its case beyond all reasonable doubts and with the available materials, it is unsafe to sustain the conviction and they are entitled for acquittal in the hands of this Court and the view taken by the trial Court which is erroneous, has got to be set aside by allowing this appeal.
7. Heard the learned Additional Public Prosecutor on the above contentions and this Court has paid its anxious consideration on the submissions made by both sides.
8. It is not the fact in controversy that one Musthapa with all stab injuries sustained by him at about 08.30 p.m., on 28.01.1998, in his residence, who was taken to the Government Rajaji Hospital, Madurai, was admitted and despite the operation and also the treatment given to him, died in the next morning at about 09.20 a.m. The fact that it was a homicidal death, was never questioned by the appellants/accused. The prosecution by examining the post- mortem Doctor P.W.13 and also relying upon the post-mortem Ex.P.13, has proved the said fact and hence, it has got to be recorded that the deceased Musthapa died a homicidal death as recorded so.
9. True, it is, in the instant case, the prosecution had no direct evidence to offer. Even, P.W.1, P.W.2, P.W.3 and P.W.8 who according to the prosecution witnessed both the accused running from the place of occurrence, did not support the prosecution case and turned hostile.
10. The prosecution relied upon two pieces of evidence to connect the accused as assailants in the case. First piece of evidence is that immediately after the occurrence at about 08.30 p.m., on 28.01.1998, the deceased Musthapa was taken to the Government Rajaji Hospital and he was admitted and was given first aid. An intimation was given to the Sub Inspector of Police, P.W.15, who on receipt of the same, rushed to the Hospital and recorded the statement of the deceased Musthapa which was marked as Ex.P.15.
11. It is pertinent to point out that on the strength of Ex.P.15, a case came to be registered under Section 307 I.P.C, originally and the F.I.R concerned has also reached the learned Judicial Magistrate at 03.00 a.m. The Sub Inspector of Police P.W.15, the scribe of Ex.P.15 who actually wrote Ex.P.15,, was examined as a witness and the document has come into existence in the Hospital, pursuant to which a case came to be registered by the respondent police and within the limited time, it has also reached the learned Judicial Magistrate at 03.00 p.m and the contention put forth by the learned Counsel for the appellants is highly doubtful that Ex.P.15 cannot be countenanced for the above reasons and Ex.P.15, the statement made by the deceased Musthapa to the Sub Inspector of Police on the strength of which a case came to be registered, is a strong piece of evidence against the appellants/accused.
12. Secondly, the prosecution relied on Ex.P.9, the dying declaration, given by the deceased to the learned Judicial Magistrate, P.W.9. The learned Judicial Magistrate, P.W.9 has deposed to the effect that he received the intimation from the Government Rajaji Hospital and proceeded to the Hospital and on being satisfied that the declarant was conscious and also in a frame of mind to give such declaration, recorded the dying declaration between 10.42 p.m., and 11.15 p.m and the proceedings of the same was marked as Ex.P.9.
13. Now, an attempt was made by the appellants' side challenging such dying declaration recorded by P.W.9, by stating that P.W.14, the Doctor who further treated the deceased Musthapa on 29.01.1998, has stated that at about 10.45 p.m., Anaesthesia was applied to the deceased and the operation was also commenced by 11.00 p.m., and thus, the dying declaration could not have been recorded between 10.42 p.m., and 11.15 p.m., as claimed by P.W.9, the learned Judicial Magistrate. In support of their contention, the learned Counsel for the appellants relied on the case sheet pertaining to the deceased Musthapa. It is true, P.W.14 has deposed as stated by the learned Counsel for the appellants and the case sheet is also available. But, the Court is unable to see any reason to suspect the evidence given by the Judicial Officer who got the intimation, proceeded to the Hospital, followed the procedural formalities and recorded the dying declaration between 10.42 p.m., and 11.15 p.m and this dying declaration recorded by the Judicial Officer has to be given sufficient weight and evidentiary value. P.W.9, the learned Judicial Magistrate has also examined and deposed to the effect that after satisfying that the declarant was conscious and in a fit state of mind, he recorded the dying declaration. At this juncture, this dying declaration could also be tested from the earliest declaration by the deceased to P.W.15, the Sub Inspector of Police, on the strength of which a case came to be registered. In the instant case, what are all stated in Ex.P.15 earlier dying declaration to the Sub Inspector of Police, are also found in the second dying declaration given by the deceased Musthapa to the learned Judicial Magistrate P.W.9.
14. Under such circumstances, this Court is of the considered opinion that merely because, it is stated by P.W.14 that Anaesthesia was applied at 10.45 p.m., and the operation was commenced by 11.00 p.m., and taking to the time factor, it is about half an hour to 00.45 minutes different. This Court is unable to give any weight to the statement made by the Doctor for the purpose of rejecting the evidentiary value of the evidence given by P.W.9, the learned Judicial Magistrate who has given a clear evidence to that effect that he recorded the dying declaration of the deceased Musthapa between 10.42 p.m., and 11.15 p.m. Under such circumstances, the evidence of P.W.9 is accepted as an evidence. From both the pieces of evidence Ex.P.15, statement of the deceased Musthapa recorded by the Sub Inspector of Police P.W.15 and Ex.P.9 the dying declaration recorded by the learned Judicial Magistrate P.W.9, put together, this Court feels that there is sufficient evidence pointing to the guilt of the accused and in the instant case, both the accused entered into the premises of the deceased Musthapa for the purpose of committing the offence and stabbed him to death at 08.30 p.m., on 28.01.1998. All would show that both the accused with a pre-plan murdered the deceased Musthapa and the trial Court rightly found them guilty as per the charges and awarded punishment rightly too.
15. In the result, both the criminal appeals fail and the same are dismissed.
1.The III Additional District and
Sessions Judge, (P.C.R),
2.The Inspector of Police,
C1, Theppakulam Police Station,
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
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