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DURAISAMY versus THE STATE OF TAMILNADU

High Court of Madras

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Duraisamy v. The State of Tamilnadu - Criminal Appeal (MD) No.220 of 2004 [2007] RD-TN 800 (5 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05/03/2007

CORAM:

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Criminal Appeal (MD) No.220 of 2004

1.Duraisamy,

S/o.Chinnaiyan

2.Ramasamy,

S/o.Thanga Nadar

3.Swarnappan,

S/o.Chellappanpillai ... Appellants Accused 1 to 3 vs.

The State of Tamilnadu,

rep.by Inspector of Police,

Manavalakurichi Police Station,

Kanyakumari District.

Crime No.221 of 1998) ... Respondent Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 29.09.2004, of the learned Sessions Judge, Kanyakumari Division at Nagercoil in S.C.No.264 of 2002.

For Appellants : Mr.C.K.M.Appaji

For Respondent : Mr.A.Balaguru,

Addl.Public Prosecutor. :JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM,J) The appellants three in number are accused Nos.1 to 3, respectively in Sessions Case No.264/2002 on the file of learned Sessions Judge, Kanyakumari Division at Nagercoil. In this appeal, they have challenged the judgment made in the

above said sessions case, whereby accused Nos.1 and 2 stood charged under Sections 364, 342 and 302 IPC, while accused No.3 stood charged under Sections 364, 342 and 302 read with section 34 IPC and on trial, accused Nos.1 to 3 were found guilty under Section 364 IPC, convicted thereunder and each of them were sentenced to undergo five years rigorous imprisonment and also to pay a fine of Rs.3000/-, with a default sentence of two years rigorous imprisonment and while accused No.3 was not found guilty under Sections 342 and 302 read with Section 34 IPC and acquitted of the charges, accused Nos.1 and 2 were found guilty under Sections 342 and 302 IPC, convicted thereunder and each of them were sentenced to undergo one year rigorous imprisonment for the former offence and life imprisonment for the latter offence.

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

(a)P.W.5 Annammal is the wife of the deceased. The deceased Gopal, along with some persons from his locality, went to Madras to work along with accused No.2 Ramasamy and one other accused by name Mohanraj, in respect of whom the case was split up. Gopal was working with them for just 15 days, prior to the occurrence. Gopal came to his native place, after stealing Rs.260/- belonged to the accused Mohanraj and also the wrist watch of accused No.2 Ramasamy. (b)On 27.05.1998 at about 9.30 a.m., when Gopal attempted to pledge the wrist watch with P.W.4 Sylus, all the accused witnessed the same and accused No.2 taken back his watch and when the accused Mohanraj asked for the return of his money, the Gopal replied that at the present he does not possess any amount. Therefore, the accused compelled him to work under the accused Mohanraj and when Gopal refused to work under him, all the accused shared the common intention of killing him by kidnapping and in execution of the said common intention, they took Gopal to the place called 'Gna' Road and at that time accused No.2 and accused No.3 followed in a scooter. When they were proceeding in between Kalpadi and Karuparai road, the accused removed the dhoti and the shirt worn by Gopal and he was taken with jatti with his hands tied with a towel. At that time, when P.W.2, who was a driver by profession, was actually driving a passenger bus belonged to Tamil Nadu State Transport Corporation bearing Regn.No.TN 74 N 0263, all the accused saying "die with this", pushed Gopal near the left front wheel of the bus and fled away from the scene of occurrence. P.W.2 witnessed the above occurrence and P.W.3 saw all the accused running. When P.Ws.2 and 3 got down from the bus and went near Gopal, they found him with severe injuries on his thigh. P.W.3 informed to the police about the occurrence over phone.

(c)On receipt of intimation from P.W.3, P.W.8, the Head Constable attached to the respondent Police Station, proceeded to the scene of occurrence with P.W.12, the Constable, reached the place of occurrence at about 11.30 a.m. and recorded the statement given by the injured Gopal and P.W.1 attested in it. The said statement is Ex.p-1. Thereafter, P.W.8 sent the injured to the Government Hospital, accompanied by P.W.12, P.W.5, the wife of the deceased and P.W.1, John Ravi. Ex.P-16 is the Accident Register given to Gopal. P.W.8 returned to the Police Station at about 12.30 p.m. and based on Ex.P-1, the statement given by the injured Gopal, registered a case in Crime No.221/1998 under Section 307 IPC and prepared Ex.P-7, the first information report and despatched the same to the Judicial Magistrate Court, Eraniel. The copies of Ex.P-7 were sent to higher police officials.

(d)P.W.13, the Inspector of Police, took up the investigation, visited the occurrence place, made an observation and prepared Ex.P-2, the observation mahazar, in the presence of witnesses. He also drew Ex.P-17, the rough sketch. From the occurrence place, P.W.13 recovered M.O.2, the bloodstained tar earth and M.O.3, the sample tar earth, under Ex.P-3 mahazar, attested by P.W.6 and another. He received intimation (Ex.P-15) at 5.30 p.m. that the injured Gopal died, based on which the case was altered into under Section 302 IPC and Ex.P-18 is the altered FIR. On 28.05.1998 between 7.00 and 9.00 a.m., P.W.13 conducted inquest over the dead body in the presence of panchayatdars and witnesses and Ex.P-19 is the inquest report prepared by him. He gave a requisition to the doctor for conducting postmortem on the body of the deceased.

(e)P.W.11, the doctor attached to the Government Hospital, Nagercoil, on receipt of Ex.P-13, the requisition, conducted postmortem at 12.00 Noon on 28.05.1998 and after autopsy, he gave Ex.P-14, the postmortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to severe injury to the thigh and its blood vessels and genitalia. After postmortem, M.O.4, the dhoti and M.O.5, the shirt were seized.

(f)Pending investigation, P.W.13, the Inspector of Police, at about 10.00 a.m. on 28.05.1998, arrested accused Nos.2 and 3 in the presence of P.W.7 and others and when enquired, accused No.2 volunteered to give a confessional statement, admissible portion of it is marked as Ex.P-20, pursuant to which accused No.2 produced M.O.7, wrist watch and M.O.8, Scooter, and the same were recovered under Ex.P-21 and Ex.P-22 mahazars, attested by P.W.7 and another. Thereafter, P.W.13, subjected both the accused to judicial remand. (g)P.W.9, the Motor Vehicle Inspector, on receipt of a requisition from the Inspector of Police, inspected M.O.1, the bus, bearing Regn.No.TN 74 N 0263 and issued Ex.P-8 Inspection Report. P.W.13, the Inspector of Police, gave a requisition to the Court to subject all the material objects recovered in the case to the chemical analysis. P.W.10 is the Magisterial Clerk, who speaks about the receipt of Ex.P-9 requisition from the Inspector of Police, sending of the material objects to the Forensic Department under Ex.P-10, the letter of the Court and receipt of Ex.P-11, the Chemical Examiner's Report and Ex.P-12, the Serologist's Report. On completion of the investigation, P.W.13, the Inspector of Police, filed the final report before the concerned Judicial Magistrate Court.

3.The case was committed to the Court of Session. Since the accused Mohanraj was not available for trial, the case in respect of him was split up and therefore necessary charges were framed against the remaining accused, ranked as accused Nos.1 to 3 in the case. To substantiate the charges levelled against the accused, the prosecution marched 13 witnesses as P.Ws.1 to 13 and relied on Exs.P-1 to P-22 as well as M.Os.1 to 7. On the completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them as false. No defence witness was examined. On completion of the evidence, the trial court heard the arguments advanced on either side and took the view that the prosecution has proved the charges beyond reasonable as against accused Nos.1 and 2 under Sections 364, 342 and 302 IPC and so far accused No.3 is concerned, the prosecution proved the charge against 364 IPC alone and registered a conviction and imposed the sentences on the accused as referred to earlier. Hence the said judgment of the trial court is being assailed by all the accused before this Court.

4.In his sincere attempt in assailing the judgment of the trial court, the learned counsel for the appellants inter alia made the following submissions:

(a)The entire prosecution case rested upon Ex.P-1, which, according to the prosecution, the dying declaration. According to the prosecution, when an intimation was given to the respondent police, the Head Constable attached to the police station came over to the occurrence place, who has been examined as P.W.8 and Ex.P-1, statement of the injured Gopal, was recorded by him and on the strength of it a case came to be registered by P.W.8. But, when examined before the Court, P.W.8 would depose that Ex.P-1 was not recorded by him but it was recorded by P.W.12, the Constable, who accompanied him but, P.W.12 has given a contra evidence and therefore it is highly doubtful whether Ex.P-1 would have come into existence as put-forth by the prosecution and thus if Ex.P-1 is not accepted, the entire prosecution case must fail. (b)In the instant case, P.W.2 was the driver who drove M.O.1, the bus, and at the time of occurrence, P.W.2 could not have seen the occurrence as deposed by him because he was actually driving the vehicle at a speed of 30 k.m. and further, in the instant case, P.W.3, the conductor of the bus, has spoken only to the extent that he saw the accused running from the scene of occurrence.

(c)In the instant case, when the lower court has held that P.W.3, the conductor of the bus, informed about the occurrence to police through phone, P.W.8 would have registered a case on receiving such information but, on the contrary, according to P.W.8, he received an intimation, went to the place of occurrence and recorded the statement of the deceased, which is marked as Ex.P-1 and thereafter returned to the police station and registered a case and this also creates a doubt in the prosecution case.

(d)In the instant case, the alleged arrest of accused No.2, his confession and recovery M.Os.6 and 7 are nothing but false and it was an introduction to strengthen the prosecution case, if at all. Further, in the instant case, the prosecution has proved its case only to the extent of the death of Gopal and nothing more. The injuries noticed by the Doctor at the time of postmortem would clearly reveal that the injuries sustained in the thigh were found to be severe and they were fatal injuries and the deceased could have sustained those injuries only due to the accident and thus it was an negligent act on the part of P.W.2 who drove the vehicle and in such circumstances, the lower even without considering the above all aspects found the appellants/accused guilty and therefore they are entitled for an acquittal in the hands of the Court.

5.The Court heard the learned Additional Public Prosecutor on the above contentions. The Court paid its anxious consideration to the submissions made by the counsel on either side and also scrutinised the materials available on record.

6.It is not the fact in controversy that one Gopal, the husband of P.W.5, pursuant to an incident that took place at the time and place as put- forth by the prosecution, was taken to the Government Hospital at Kottar, where he was given initial treatment and thereafter, despite treatment, he succumbed to injuries and following which his body was subjected to postmortem by P.W.11, the doctor, who has given a postmortem certificate under Ex.P-14 and also deposed before the Court that Gopal died out of the shock and haemorrhage due to severe injury to the thigh and its blood vessels and genitalia. This fact was never questioned by the appellants/accused at any stage of the proceedings and hence it is quite evident that the death of Gopal is a homicidal death.

7.In the instant case, in order to prove its case that it was the accused persons who kidnapped the

deceased and thereafter accused Nos.1 and 2 pushed the deceased in front of a passenger vehicle driven by P.W.2 at the time of occurrence, the prosecution mainly relied on the evidence of two witnesses, namely P.Ws.2 and 3. P.W.2 was the driver of the vehicle and P.W.3 was the conductor. P.W.2, in his evidence, has clearly spoken about the fact that when he was driving the vehicle, he saw the accused keeping a person with his hands tied on the roadside and when the bus reached near them, the accused brought the said person and pushed him in front of the bus and when he immediately applied the brake, the vehicle stopped after moving some distance dragging the deceased and in which incident the deceased sustained severe injuries on his thigh. He has also identified the accused before the Court. In the instant case, no circumstance or reason is brought to the notice of the Court in order to doubt his evidence. P.W.2 has nothing to do either with the accused or the deceased party. Therefore, once the evidence of P.W.2 inspired the confidence of the Court and that it was these appellants/accused who brought the deceased with his hands tied and pushed him in front of the vehicle, no more evidence is required. Further, P.W.3, the conductor of the bus, has also deposed that he saw all the accused running from the place of occurrence and his evidence is an adding factor. Further, in the instant case, the medical opinion that the

deceased died as the direct consequence of the severe injury sustained by him on his thigh stood in full corroboration of the ocular testimony of P.W.2. Yet another circumstance is

the recovery of M.O.6, the wrist watch and M.O.7, the scooter, pursuant to the arrest and confession statement of accused No.2. Thus, prosecution had to its benefit the evidence available and placed the same before the court which were also accepted by the trial court.

8.Now, the contentions advanced by the learned counsel for the appellants require consideration. According to the learned counsel for the petitioner, Ex.P-1 has not come into existence as put-forth by the prosecution. Ex.P-1 is the statement given by the deceased Gopal, when he was in the hospital and it was recorded by P.W.8. Now, according to P.W.8, he was the Head Constable attached the respondent Police Station and on an intimation, along with P.W.12, the Constable, rushed to the place of occurrence and recorded the statement given by the injured Gopal. Of course, in the cross-examination he would state that the said statement was recorded by P.W.12, the Constable. That does not mean neither P.W.8 was present when Ex.P-1 statement was recorded nor it is contrary to the prosecution case. As could be seen, according to the available materials, the statement recorded from the deceased by P.W.8 in the presence of P.W.12, the constable and marked as Ex.P-1, was taken to the police station and based on which a case came to be registered by P.W.8 under Section 307 IPC and immediately, Ex.P-7, the FIR, has been sent to the Court and when the case was originally under Section 307 IPC,

P.W.13, the investigator, took up the investigation, proceeded to the spot, made an observation and prepared Ex.P-2, the observation mahazar and also drew Ex.P-17, the rough sketch and those documents have also been sent to the court. Now, the contention put-forth by the learned counsel for the appellants that the case came to be registered only after the death cannot be countenanced for the simple reason that already the FIR registered for the offence under section 307 IPC was before the Court. Further, the evidence available before the Court would clearly indicate the guilt of the accused.

9.Apart from this, the main contention of the learned counsel for the appellants is that it was a case of accident that P.W.2, rashly and negligently drove the vehicle and caused the death. Now, at this Juncture, it is to be pointed out that the entire prosecution case, as put-forth, is that it was the accused who took the deceased to the place and when the bus was coming they pushed him in front of the bus and thus caused severe injuries, upon which he was taken to the hospital and despite treatment he died. The above said fact has been proved by the evidence of independent witnesses and thus, in the facts and circumstances of the case, the plea of the defence has got to be rejected and accordingly the lower court has marshalled the evidence in proper direction and found them guilty.

10.In the instant case, from the evidence available on record, it is clear that it was accused Nos.1 and 2 who pushed the deceased in front of the moving bus and caused severe injuries on his thigh and it would also be quite clear that when they pushed the deceased before a running bus they should have got the clear intention of causing the death and thus they were found guilty under Section 302 IPC and awarded with life imprisonment. Apart from this, it is the statement of the deceased in Ex.P-1 that when he refused to work under the accused Mohanraj, accused Nos.1 to 2 took him with his hands tied. It is also the evidence of P.W.2 that he saw the accused keeping the deceased on the road side with his hands tied. Thus, they were found guilty under Section 342 IPC and imposed sentence thereunder. On the evidence available on record, the trial court is also right in finding all the appellants/accused guilty under Section 364 IPC. But, the lower court found accused No.3 not guilty under Sections 342 and 302 read with Section 34 IPC and acquitted him of the charge. When the evidence available on record would clearly indicate that all the accused kidnapped the deceased for the purpose of murdering him and in the instant case the prosecution has proved the case of murder, the lower court has not adverted its attention over the same but found accused No.3 guilty only under Section 364 IPC and acquitted him from the charge under Section 302 read with Section 34 IPC. However, there is no appeal from the State and therefore the matter is left as it is. In such circumstances, the conviction and sentence imposed on the appellants/accused by the trial court, after finding them guilty under the charges levelled against them, do not require any interference, except to be affirmed by this Court.

11.Hence, the appeal fails and the same is dismissed. The conviction and sentence imposed on the appellants by the trial court are hereby confirmed.

To

1.The Sessions Judge,

Kanyakumari Division at

Nagercoil.

2.The Inspector of Police,

Manavalakurichi Police Station,

Kanyakumari District.

3.The Additional 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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