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KANNAN versus STATE BY INSPECTOR OF POLICE

High Court of Madras

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Kannan v. State by Inspector of Police - Crl.A.(MD) No.452 of 2003 [2007] RD-TN 720 (27 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27/02/2007

CORAM:

THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR. JUSTICE G.RAJASURIA

Crl.A.(MD) No.452 of 2003

Kannan .. Appellant vs.

State by Inspector of Police,

Courtalam Police Station,

Tirunelveli District.

Cr.No.49 of 1999 .. Respondent Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 18.12.2002 made in S.C.No.376 of 1999 on the file of the Addl.Sessions Judge, Fast Track Court No.1, Tirunelveli. For appellant : Mr.Krishnamurthy, Legal Aid Counsel

For respondent : Mr.A.Balaguru

Addl.Public Prosecutor :JUDGMENT



(Judgment of the Court was made by M.CHOCKALINGAM, J) The sole accused in a case of murder in S.C.No.376 of 1999 on the file of the Court of Sessions Division, Fast Track Court No.1, Tirunelveli, where he stood charged and tried for the offence under Sections 341, 303 and 506 (2) IPC and found guilty under Sections 341, 506 (2) IPC, and 302 IPC instead of 303 IPC and awarded one month rigorous imprisonment under Section 341 IPC, five years rigorous imprisonment under Section 506(2) and life imprisonment under Section 302 IPC and sentences are directed to be run concurrently, have challenged the conviction and sentence awarded by the Court.

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

(a) PW.1 is the wife and PW.2 is the son of the deceased. The deceased and the accused had a quarrel all along in respect of partition of properties. The accused was not satisfied with the allotment of the property given to him and thus he was inimical to the deceased. On the date of occurrence i.e. on 19.1.1999, PW.1 and PW.2 accompanied the deceased and proceeded to the field for agricultural operations. The accused came with an Aruval, waylaid and attacked the deceased indiscriminately and the deceased met instantaneous death. The accused sped away from the place of occurrence. The entire incident was witnessed by PW.1 and PW.2. PW.1 and PW.2 proceeded to the respondent police and gave a complaint, which was reduced into writing by the Sub Inspector of Police PW.15 attached to the respondent police and the same was marked as Ex.P.1. On the basis of the same, a case came to be registered in Crime No. 49/1999 under section 302 IPC. Express F.I.R is Ex.P.15, which was despatched to the Court. The Inspector of Police PW.16, who was in-charge of the Courtalam Police Station, took up investigation. He proceeded to the spot and made an inspection and prepared an Observation Mahazar Ex.P.2 and Rough Sketch Ex.P.16. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared an Inquest Report Ex.P.17. He recovered the Material Objects from the place of occurrence inclusive of sample earth and the blood stained earth. The dead body was subjected to post-mortem by PW.10 Doctor, attached to the Government Hospital, Tenkasi who gave post- mortem certificate Ex.P.7 wherein he opined that the decade would appear to have died of injury to vital organs and shock and heamorrhage from multiple injuries. Pending investigation, the accused surrendered before the Judicial Magistrate IV, Tenkasi and police custody was asked for and the same was ordered on 2.4.1999 and he voluntarily came forward to give a confessional statement. Following the same, MO.1 Aruval was recovered from him in the presence of PW.8 and PW.9 and the accused was sent for judicial remand. The Material Objects recovered from the place of occurrence and from the dead body were subjected to chemical analysis, which resulted in two certificates, which were marked as Ex.P.10 and Ex.P.11.

(b) On completion of the investigation, the Investigation Officer filed a final report for the offences stated above.

3. Thereafter, the case was committed to the Court of Sessions and necessary charges were framed against the accused. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses, and marked 19 Exhibits and 10 MOs.

4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused totally denied them as false. No defence witness was examined.

5. After hearing the arguments advanced by both sides, the trial Judge found the appellant/accused guilty under sections 341, 506(2), and 302 IPC and awarded punishment as stated above, which is subject matter of challenge before this court.

6. Learned counsel appearing for the appellant would make sincere attempt to assail the judgment of the trial Court and would submit that in the instant case, PW.1 and PW.2 were close relatives to the deceased and there was no independent witness to corroborate their evidence. Secondly, Ex.P.1 report could not have been come into existence as put-forth by the prosecution and that the occurrence had taken place at 10.00 a.m., as according to PW.1, the police came to the spot within 10 minutes for whom she gave a report and affixed her thumb impression and thus it is highly doubtful whether Ex.P.1 according to the prosecution has come into existence at the respondent police, was the first information.

7. Insofar as the confessional statement and the alleged recovery when the accused was in police custody, it is highly doubtful and the same is not acceptable and PW.8 and PW.9 have not deposed that MO.1 was the Aruval recovered from the accused and thus they have not spoken to that fact and that portion of the evidence has got to be rejected.

8. Added the learned counsel for the appellant that, in the instant case, even PW.1 and PW.2, who are the eye witnesses, have not given proper account for the injuries sustained by the deceased. A perusal of the post-mortem certificate would reveal that there were 14 injuries inflicted on the deceased but they have spoken to only about four or five injuries and thus they could not be the eye witnesses. Hence, the prosecution has not proved its case beyond reasonable doubt. The trial Court has erroneously convicted the accused and hence the judgment of the trial Court has got to be set aside.

9. The Court heard the learned Addl.Public Prosecutor on the above contentions and paid its anxious consideration on the rival submissions made.

10. It is not in controversy that the husband of PW.1 was killed at about 10.00 a.m. on 19.1.1999 as put-forth by the prosecution.

11. The prosecution in order to substantiate the fact that the deceased died out of homicidal violence, the prosecution has examined PW.1 to PW.4, and the Doctor PW.10, who conducted post-mortem and the post-mortem certificate Ex.P.7, wherein he has categorically opined that the deceased had died out of homicidal violence.

12. In the instant case, the accused/appellant never questioned the same at any point of time before the trial Court. Hence, it could be safely recorded so.

13. In order to substantiate the fact the accused attacked the deceased indiscriminately with an Aruval and caused his death, the prosecution examined four eye witnesses and out of whom, PW.3 and PW.4 have turned hostile. PW.1 is the wife. PW.2 is the son of the deceased. The Court is mindful of the caution that before accepting the evidence of relative witnesses, the Court must exercise a test of careful scrutiny. In the instant case, despite such exercise, the Court is satisfied that their evidence has got to be accepted.

14. According to the eye witnesses PW.1 and PW.2, they had accompanied the deceased at the time of occurrence and they were proceeding to the field for agricultural operations when the accused who came with an Aruval waylaid and attacked the deceased indiscriminately and caused instantaneous death and their evidence is very clear and thus, the lower Court is perfectly correct in accepting the evidence.

15. Insofar as the comment made by the learned counsel for the appellant that no independent witness was examined, the Court has to reject the contention for the simple reasons that PW.3 and PW.4 are the independent witnesses, who were interrogated and their statements was recorded under Section 161 Cr.P.C. during the course of investigation by the prosecution and they had spoken to the fact but they were turned hostile but it is not the defect on the part of the prosecution but the evidence of PW.1 and PW.2 was sufficient according to the prosecution. The ocular testimony put-forth by the prosecution PW.1 and PW.2 was corroborated by the medical evidence through Post-mortem certificate, which was marked as Ex.P.7. In the instant case, yet another circumstance available for the prosecution was the recovery of the weapon of crime MO.1 Aruval by the investigator pursuant to the confessional statement given by the accused when he was in police custody. PW.7 and PW.8 are the witnesses in the alleged confession and also recovery of MO.1. Both of them have clearly spoken on the confessional statement given to the fact that the accused produced Aruval from his house and recovered by the Investigating Officer but they have not identified the Aruval as MO.1 but PW.1 has clearly identified that MO.1 was the weapon of crime but this was not challenged at the time of cross examination and PW.1's evidence in that regard remains in tact. The Court is of the considered opinion that when the evidence of PW.1 coupled with the evidence of PW.8 and PW.9 would be sufficient to prove the case of the prosecution as to the confessional statement given by the accused and also the recovery of MO.1 Aruval, insofar as the contention put-forth by the learned counsel for the appellant that both the witnesses viz. PW.1 and PW.2 have not accompanied the deceased and could not have witnessed the occurrence as they have not accounted for the injuries sustained by the deceased, the Court is unable to appreciate the same.

16. In a case where the relatives and in particular, the wife and the son, who are PW.1 and PW.2 have witnessed the deceased in the attack indiscriminately with Aruval, no one can reasonably expect them to count injuries sustained. Hence, therefore, this discrepancy cannot be taken into account.

17. Further, the contention of the learned counsel for the appellant that the document Ex.P.1 is doubtful cannot also be countenanced for the simple reason that PW.15 is the author of the Ex.P.1 actually recorded and pursuant to the same, the case came to be registered and the Investigating officer took up investigation and filed final report before the Court and thus the contention put-forth by the learned counsel for the appellant as narrated above did not in any way affect the case of the prosecution.

18. This Court is of the considered opinion that the prosecution has proved its case beyond reasonable doubt by placing sufficient evidence before the court and thus the act of the accused waylaying the deceased who was accompanied with PW.1 and PW.2, attacking with Aruval indiscriminately and causing instantaneous death would attract the penal provisions of murder and thus the trial Court has perfectly

rendered the judgment of the conviction and sentence referred to above and the same in the opinion of the Court does not require any interference. The Criminal Appeal fails and the same is dismissed. asvm

To

1.Addl.Sessions Judge,

Fast Track Court No.1,

Tirunelveli.

2.Courtalam Police Station,

Tirunelveli District.

(Cr.No.49/1999)

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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