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Subbaiah v. State represented by - CRIMINAL APPEAL NO.596 OF 2003  RD-TN 766 (1 March 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01/03/2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
CRIMINAL APPEAL NO.596 OF 2003
3.Murugesan .. Appellants
State represented by
Inspector of Police,
Sivanthipatti Police Station,
Crime No.47 of 2001 .. Respondent
This criminal appeal is preferred under Section 374 Cr.P.C. against the judgment of the learned II Additional Sessions Judge, Tirunelveli made in S.C.No.694 of 2001, dated 14.01.2003.
For Appellants : Mr.Gopinath, SC
For Respondent : Mr.Daniel Manoharan, APP
(The judgment of the court was made by M.CHOCKALINGAM, J.) The appellants, three in number, have preferred this appeal, challenging the judgment of conviction and sentence imposed by the learned II Additional Sessions Judge, Tirunelveli made in S.C.No.694 of 2001, whereby A-1 stood charged under Section 342 IPC, A-2 and A-3 stood charged under Sections 302 r/w S.34 IPC and A-1 also stood charged under Section 302 r/w S.114 IPC, tried and A-1 was found guilty under Sections 341 and S.302 r/w S.114 IPC and A-2 and A-3 were found guilty under Sections 302 r/w S.34 IPC and A-1 was sentenced to undergo one month SI under Section 341 IPC and A-2 and A-3 were sentenced to undergo life imprisonment each and to pay a fine of Rs.1000/- and in default to undergo one year RI and A-1 was also sentenced to undergo life imprisonment and to pay a fine of Rs.1000/- and in default to undergo one year RI under Section 302 r/w S.114 IPC.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the younger brother of the deceased. P.W.5 is the wife of the deceased. A-2 is the wife of A-1. A-3 is also closely related to the other accused. Even before the marriage that took place between the deceased and P.W.5, he developed illicit intimacy with the second accused. This was known to all the family members. On coming to know about this, P.W.5 went to her parental house and she was living there for a while.
b)On 30.6.2001, as usual, the deceased along with his brother P.W.1 went over to market and returned by noon. At about 2.00 p.m., the deceased went over for grazing cattle and since the deceased did not return even after 5.00 p.m., P.W.1 went in search of him and the deceased came from West to East. At that time, all the three accused came and waylaid P.W.1 and the deceased. A-2 was armed with an aruval. A-1, first to start with, caught hold of the deceased and uttered that he damaged the family life. It was A-2, who first gave cut on the deceased with aruval. Following the same, A-3 snatched the aruval from A-2 and also attacked the deceased. Then, A-1 also snatched aruval from A-3 and attacked the deceased. The deceased met with an instantaneous death at the place of occurrence. The same was witnessed by P.W.2, who was grazing the cattle nearby. On hearing the distressing cry, all the accused fled away from the place of occurrence.
c)P.W.1 accompanied by P.W.4 went to the respondent police station and gave a written report, Ex.P.1 to P.W.11, the Sub Inspector of Police at about 6.30 p.m., on the strength of which, a case came to be registered by the respondent police in Crime No.47 of 2001 under Sections 342 and 302 IPC. Ex.P.12, the express 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 spot, made an inspection in the presence of the witnesses and prepared Ex.P.4, the observation mahazar and Ex.P.13, the rough sketch. Then, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.14, the inquest report. Following the same, the dead body of the deceased was sent for the purpose of autopsy to the Tirunelveli Medical College Hospital. e)P.W.3, the Doctor attached to the Tirunelveli Medical College Hospital, has conducted autopsy on the dead body of the deceased and has issued Ex.P.3, 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, the Investigating Officer arrested A-1 and A-3. A-3 gave a confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.6. Pursuant to the confessional statement, he produced M.O.3, aruval, which was recovered in the presence of the witnesses under a cover of mahazar. Then, A-2 was also arrested. Then, P.W.13, the Inspector of Police took up further investigation of the matter. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.O. recovered from A-3 pursuant to the confessional statement were all sent for chemical analysis along with a requisition through Court. Ex.P.10, the Chemical Analyst's report and Ex.P.11, the Serologist's report were received by the Court. On 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 13 witnesses and relied on 14 exhibits and 7 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, which they flatly denied as false. No defence witness was examined. On completion of trial, both sides arguments were heard by trial court. The trial court, after hearing the submissions and scrutiny of the materials, found the accused/appellants guilty as stated above and awarded punishment as referred to above, which is the subject matter of challenge before this Court.
4.Advancing his arguments on behalf of the appellants, the learned Senior Counsel would submit that in the instant case, according to the prosecution, there were two eyewitnesses, who are P.Ws.1 and 2; that the evidence of P.W.2 should be rejected outright for two reasons; that firstly, after the case was registered, the Investigator took up investigation, proceeded to the place of occurrence and conducted inquest on the dead body of the deceased; that P.W.2 was also present at that time; that neither the statement nor the name of P.W.2 was found in the inquest report, but the Investigator would claim that he examined all other witnesses; that if P.W.2 was actually present at the place of occurrence and that too at the time of inquest, there was no reason for omitting him; that this would be indicative of the fact that P.W.2 was not present either at the time of occurrence or at the time of inquest and thus, P.W.2 was an eyewitness, was nothing but a falsehood.
5.Added further the learned Senior Counsel that the occurrence has taken place on 30.06.2001; that the inquest has been conducted on the very day; that the statement of P.W.2 has reached the Court on 7.8.2001; that no explanation was forthcoming as to why such delay has caused; and that non mentioning of the name of P.W.2 in the inquest report and the delay caused in sending the statement of P.W.2 recorded under Section 161 Cr.P.C to the Court would indicate that P.W.2 could not have been the eyewitness to the occurrence.
6.The learned Senior Counsel would further add that in the instant case, it is highly doubtful whether Ex.P.1 could have come into existence as put forth by the prosecution on 30.06.2001; that in support of his contention, the learned Senior counsel took the court to the evidence of P.Ws.1,4 and 11; that according to P.W.1, he accompanied by P.W.4, went to the police station and gave the written report; that on the contrary, according to the evidence of P.W.4, it was P.W.1, who gave an information to the police officer and it was the police officer, who recorded the same and that after recording the same, he attested the same; that P.W.11 has deposed that written report was given to him; that the discrepancies available would indicate that Ex.P.1 could not have come into existence as put forth by the prosecution and hence, Ex.P.1, document cannot be given any credence.
7.Added further the learned Senior Counsel that in the instant case, according to the prosecution, it was A-2, who had illicit intimacy with the deceased even before marriage and thus, no grievance is ventilated for A-2 in participating in the crime and thus, the prosecution had no motive for A-2, who attacked the person, with whom she developed illicit intimacy when A-1 is her husband and A-3 is closely related to both the accused; that if to be so, in the instant case, according to the prosecution, there was only one weapon of crime, namely aruval, which was held by A-2; that A-1 to A-3 have waylaid the deceased; that the first cut was made by A-2, following which, A-3 snatched aruval from A-2 and gave cut on the deceased and following the same, A-1, who was not satisfied, snatched the aruval and attacked the deceased and thus, all would go to show that the manner in which the deceased was attacked was thoroughly artificial; that even the prosecution case in that regard cannot be believed; that all put together would go to show that the prosecution has not placed true facts before the court and the evidence was also not satisfactorily and under these circumstances, the accused are entitled for acquittal in the hands of this Court.
8.Heard the learned Additional Public Prosecutor on the above contentions.
9.The Court has paid its anxious consideration on the submissions made.
10.It is not the fact in controversy that the deceased Murugan was done to death in an incident that took place on 30.06.2001 at about 5.00 p.m. In order to substantiate the same, the prosecution has examined P.W.3, the Doctor, who has conducted post-mortem. He has issued Ex.P.3, 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. The appellants/accused never questioned this fact at any stage of proceedings and hence, it has got to be safely recorded that the deceased died out of homicidal violence.
11.In order to prove the charges levelled against the appellants/accused, the prosecution has examined P.Ws.1 and 2, as eyewitnesses. P.W.1 is the brother of the deceased. P.W.2 is also closely related to the deceased. Insofar as P.W.1 was concerned, he has given a clear narration of the incident. Now, at this juncture, it is pertinent to point out that merely because of the reason that he happened to be the brother of the deceased, his evidence cannot be discarded, but it must be tested by exercising careful scrutiny. After exercising the test, the Court is of the considered opinion that the evidence of P.W.1 itself would be sufficient to accept the prosecution case. In the instant case, it is pertinent to point out that though the learned Senior Counsel has argued in extenso, no comment could be made on the evidence of P.W.1. Despite full cross-examination, the evidence of P.W.1 remains intact and unshaken and there could not be any impediment in accepting the evidence of P.W.1, which stood the test of careful scrutiny.
12.Insofar as the evidence of P.W.2 was concerned, it was attacked on two grounds that his name does not find place in the inquest report and his statement reached the Court on 7.8.2001, i.e. nearly after a month and thus, the evidence of P.W.2, as eyewitness, has got to be rejected. After a perusal of the materials available, the Court is of the considered opinion that either of the ground was not available for the appellants for rejection of the evidence of P.W.2. The name of P.W.2 was not mentioned in the inquest report cannot by itself be a reason to reject his testimony. It is a settled proposition of law that non mentioning of the name of the eyewitness in the inquest report cannot be a reason to avoid his testimony and it could be accepted from the other point of view. The earliest document in the instant case is Ex.P.1, the report, on the strength of which, the case came to be registered by P.W.11, the Sub Inspector of Police, at about 6.30 p.m. in the police station. It was immediately sent to the Court along with Ex.P.12, the FIR and it has reached the court. At this juncture, it is to be pointed out that the name of P.W.2 has been clearly mentioned in the earliest document and this would indicate the presence of P.W.2. The inquest report was the document, which has come into existence at a later point of time. Apart from that, in the instant case, it is true, the statement of P.W.2 has reached the Court after a month. So long as the earliest document, namely Ex.P.1 contains the name of P.W.2, as eyewitness, the Court is of the considered opinion that the delay caused cannot be a reason to reject his testimony. Hence, the evidence of P.W.2 cannot be rejected. P.W.2 has categorically deposed in one voice as to the incident.
13.The other contention of the learned Senior counsel is that it is doubtful whether the FIR could have come into existence as put forth by the prosecution. The Court has to necessarily discountenanced the arguments advanced in this regard. In the instant case, the author of the document is P.W.1. According to P.W.1, he went to the police station along with P.W.4 and gave a written report at 6.30 p.m. and a case was registered. The police officer, who registered the case is P.W.11, the Sub Inspector of Police, who has categorically deposed that a written report was given by P.W.1, on the strength of which, the case was registered and thus, the prosecution has examined the author of Ex.P.1, who is P.W.1 and also the person, who registered the case, namely P.W.11. Their evidence in respect of Ex.P.1, a written report, is consistent and under these circumstances, the evidence of P.W.4, who has accompanied by P.W.1, does not loom much significance. Thus, the evidence of P.Ws.1 and 11, insofar as Ex.P.1 was concerned, cannot be rejected. Hence, the contentions have got to be stated only for the purpose of rejection.
14.In the instant case, the other contention as to the manner of attack was concerned, it is true, A-2 was having aruval. According to P.Ws.1 and 2, she attacked the deceased first and following the same, A-3 snatched the aruval and attacked the deceased and thus, there was an instantaneous death on the spot. Insofar as A-1 was concerned, the lower court has found from the evidence that it was only an abetment made by him by way of instigation. Insofar as the attack made by A-1 was concerned, the lower court has not given any finding in this regard. The lower court has found that A-2 and A-3 have attacked the deceased and caused his death and the lower court has marshalled the evidence of P.Ws.1 and 2 properly and has also accepted the case. Insofar as A-1 was concerned, it was only an abetment. Under these circumstances, the court is of the considered opinion that the evidence of P.Ws.1 and 2 that A-1 instigated for the crime, would not be sufficient to hold so.
15.Under these circumstances, the judgment of the lower court, finding A-2 and A-3 guilty under Section 302 r/w S.34 IPC has got to be sustained. Insofar as A-1 is concerned, he is entitled for acquittal. Accordingly, the judgment of conviction and sentence imposed by the lower court on the first accused alone is set aside and he is acquitted of the charges levelled against him. A-1 is directed to be set at liberty forthwith unless he is required in connection with any other case. The fine amount, if any paid by A-1, shall be ordered to be refunded to him. The conviction and sentence imposed by the lower court on A-2 and A-3 are sustained.
16.In the result, the appeal is allowed in respect of A-1 and the appeal is dismissed in respect of A-2 and A-3.
1.The II Additional Sessions Judge,
2.The Inspector of Police,
Sivanthipatti Police Station,
3.The Addl. Public Prosecutor,
Madurai Bench of Madras High Court,
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