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Bhaskar v. State rep. by - CRL.A.(MD) No.133 of 2005  RD-TN 1350 (10 April 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10/04/2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
CRL.A.(MD) No.133 of 2005
4.Kanagaraj .. Appellants vs
State rep. by
The Inspector of Police
Sathur Taluk Police Station
Cr.No.144 of 2003 .. Respondent
Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Virudhunagar at Srivilliputhur, made in S.C.No.59 of 2004 dated 17.1.2005. For Appellants : Mr.Gopinath
For Respondent : Mr.V.Kasinathan Additional Public Prosecutor :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) The appellants, four in number, have challenged the judgment of the Principal Sessions Division, Virudhunagar District at Srivilliputhur, in S.C.No.59 of 2004 whereby these appellants ranked as A-1 to A-4 respectively, along with two others ranked as A-5 and A-6, stood charged and tried as follows: I. A-1 to A-6 - under Sec.147 of I.P.C.
II. A-1 to A-4 - under Sec.506(ii) of I.P.C.
III. A-1 to A-4 - under Sec.352 of I.P.C.
IV. A-1 to A-6 - under Sec.302 read with 149 of I.P.C.
2.On trial, A-1 to A-4 were found guilty by the trial Court under Sections 352 and 302 read with 34 of I.P.C. and were awarded life imprisonment along with a fine of Rs.1,000/- and default sentence and 3 months Simple Imprisonment respectively. A-1 to A-4 were acquitted of the other charges, while A-5 and A-6 were acquitted of all the charges.
3.Briefly the facts of the prosecution case before the trial Court can be stated thus:
(a) P.Ws.1, 2, 3, 4, 5 and 7 were all residents of N.Subramaniapuram, Sathur Taluk. They belonged to Reddiar Community. The deceased Tamilselvi, was the sister of P.W.7. A-1 to A-4 are brothers, and A-5 and A-6 are the cousin brothers of A-1 to A-4. They also belonged to the same place. One of the brothers of A-1 to A-4 by name Sagadevan, fell in love with Tamilselvi, and they decided to marry. When the matter was brought to the notice of the family of A- 1 to A-4, they were not for that. Then, the matter was brought to the notice of P.W.6, one of the heads of Reddiar Community of the place, who actually called the parties and advised that the marriage could be solemnized; but, A-1 to A-4 were not for that. Under the circumstances, a petition was given by Tamilselvi to P.W.12, the Sub Inspector of Police, attached to the respondent Police Station, on 31.3.2001. He also called the parties and advised them to solemnize the marriage. Accordingly, the marriage was solemnized, despite the objection by A-1 to A-4. After the marriage was over, for a short while, they were living together in her parental home. Sometime later, on the ill-advice of A-1 to A-4, the said Sagadevan left for Madras on the guise of getting a job. As a result of the marriage, a female child was born. She gave a complaint before the police on 25.9.2003 stating that she was deserted by her husband. P.W.13, the Sub Inspector of Police, attached to All Women Police Station, Sathur Taluk, took up the petition, called both the parties and made an enquiry. At that time, A-2 and A-5 appeared before the police and informed that they would bring Sagadevan within a period of a week. Thereafter, they came on 2.10.2003. At the time of enquiry, they informed that they could not secure Sagadevan, and they had no objection that the properties of Sagadevan could be taken by Tamilselvi, and they would not interfere. Under the circumstances, P.W.13, the Sub Inspector of Police, advised her to go to the Court of civil law and get the remedy. Ex.P17 is the file relating to Petition No.192/2003 given by her in that regard.
(b) While the matter stood thus, then and there, A-1 to A-4 were going on abusing the family members of Tamilselvi. On 2.10.2003 at about 8.00 P.M., Tamilselvi went to the house of P.W.3. After that, she went over to attend the nature's call. At that time, she had a torch light taken from P.W.3's house. She was going aside. P.Ws.1 and 2 were standing in front of P.W.1's house and they were chatting. On seeing the deceased, A-5 and A-6 who were standing nearby, uttered the words "Why you have not finished her off". A-1 and A-4 on hearing these words, dragged Tamilselvi towards the house of A-1 and the other accused were also present. A-2 and A-3 also dragged her inside. At that time, it was A-2 who took a stick and beat her on the backside. A-3 snatched the torch light from her and beat her on the mouth and also backside. A-1 took a stick and attacked her on the head. She fell down, and all the accused persons immediately ran away from the place of occurrence. The entire incident was noticed by P.Ws.1 and 2. P.Ws.3 and 7 who were coming nearby, found all the accused persons running from the place of occurrence. (c) P.W.1 proceeded to Sathur Taluk Police Station, where P.W.14, the Sub Inspector of Police, was present, to whom a complaint was given by P.W.1, which is marked as Ex.P1. On the strength of Ex.P1, the complaint, a case came to be registered in Crime No.144/2003 under Sections 147, 323, 354 and 302 of I.P.C. The express First Information Report, Ex.P18, was despatched to Court. (d) On receipt of the copy of the FIR, P.W.15, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared Ex.P2, the observation mahazar, and Ex.P19, the rough sketch. Then, he recovered the sample earth and bloodstained earth under a cover of mahazar. Through P.W.8, the photographer, the photographs were taken. The photos and negatives were marked as M.O.8. Following the same, the Investigator conducted inquest on the dead body of Tamilselvi in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P20. Then, the dead body was sent to the Government Hospital along with a requisition, Ex.P4, for the purpose of autopsy.
(e) P.W.9, the Doctor, attached to the Government Hospital, Sathur, on receipt of the said requisition, conducted autopsy on the dead body of Tamilselvi and found 4 injuries. The Doctor has issued Ex.P5, the postmortem certificate, with his opinion that the deceased would appear to have died of head injury.
(f) Pending the investigation, the Investigating Officer arrested A-1 to A-4 on 6.10.2003. They gave confessional statements voluntarily, which were recorded. The admissible parts of the same are marked as Exs.P10, P12, P13 and P14 respectively. Following the same, they produced M.Os.2 to 5, sticks, respectively, which were recovered under a cover of mahazar. It came to the knowledge of the Investigator that A-5 and A-6 also surrendered before the Court. In the meanwhile, all the material objects recovered from the place of occurrence and from the dead body, and also the material objects recovered from the accused, were subjected to chemical analysis by the Forensic Sciences Department which resulted in two reports namely Ex.P8, the Chemical Analyst's report, and Ex.P9, the Serologist's report. On completion of investigation, the Investigating Officer filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 20 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the trial Court questioned the appellants/accused and others under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as false. No defence witness was examined. After hearing the arguments advanced and also looking into the materials available, the trial Court took the view that the prosecution has proved the case insofar as A-1 to A-4, found them guilty under the above provisions of law and awarded punishment as referred to above. A-5 and A-6 were acquitted of all the charges. Hence, this appeal at the instance of the appellants, who are A-1 to A-4 respectively.
5.Advancing his arguments on behalf of the appellants, the learned Senior Counsel would submit that as far as the case was concerned, according to the prosecution, only there were two eyewitnesses; that those two witnesses are none else than the cousin brothers of the deceased, and thus, they are interested witnesses; that according to them, when the occurrence has taken place at about 8.00 P.M., the deceased went to the house of P.W.3 and had a torch light, with which she proceeded to attend the nature's call; that at that time, it is highly doubtful whether P.Ws.1 and 2 could have seen the occurrence at all; that even P.Ws.1 and 2 have categorically deposed that it was A-3 who snatched the torch light from the deceased and attacked her on the mouth and also on the backside; but, no corresponding injuries are found in the postmortem certificate; that apart from that, the postmortem Doctor has categorically admitted that no such injuries were noticed; and that this would be indicative of the fact that P.Ws.1 and 2 could not have seen the occurrence at all.
6.The learned Senior Counsel would further add that it is the case of the prosecution that A-5 and A-6 were the persons who instigated the other accused to act so; but, A-5 and A-6 have been acquitted by the trial Court; that it would be quite clear that the lower Court was not ready to believe the evidence of P.Ws.1 and 2 in respect of A-5 and A-6; and that if to be so, in view of the doubts that were attendant over their evidence, the lower Court should have rejected their evidence in entirety, but has believed the evidence of P.Ws.1 and 2 as far as A-1 to A-4 were concerned, to find them guilty, which was nothing but erroneous.
7.Added further the learned Senior Counsel that in the instant case, the medical evidence did not support the ocular testimony; that the arrest of A-1 to A-4, the confessional statements given by them at a time, and the recovery of the weapons of crime namely sticks, from them under a mahazar were nothing but an introduction to suit the prosecution case, and thus, that part of the evidence should have been rejected; that in view of the fact that both P.Ws.1 and 2 are close relatives, and their evidence is unacceptable and should have been rejected, and the ocular testimony was not corroborated by the medical evidence, and the confession and recovery were false, the prosecution failed in entirety, and hence, they are entitled for acquittal in the hands of this Court.
8.Advancing his further arguments on behalf of the appellants, the learned Senior Counsel would submit that in the instant case, the prosecution has not proved the existence of common intention to be shared by the accused; that all these accused persons met the deceased by chance; that it was A-5 and A-6 instigated; that according to the prosecution, originally, A-1 and A-4 dragged her, and A-2 and A-3 also joined with them; that at the time of the occurrence, even as per the prosecution case, A-4 was simply standing nearby; that according to P.Ws.1 and 2, A-3 snatched the torch light from the deceased and attacked on her mouth and back; but, no corresponding injuries are found; that as far as A-2 was concerned, the injury noticed on the back is simple in nature; that according to the postmortem Doctor, the injury found on the head, and the corresponding internal injury were the causes for the death; that according to the prosecution, it was A-1 who attacked her on the head; that in the absence of any common intention to be shared, the accused have got to be dealt with for their individual acts, and under the circumstances, this fact has got to be considered by the Court at the time of the disposal of the case.
9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
10.It is not a fact in controversy that one Tamilselvi, the sister of P.W.7, was done to death in an incident that took place at 8.00 P.M. on 2.10.2003 in front of the house of the accused. Following the registration of the case directly for murder, the case was taken up for investigation by P.W.15, the Inspector of Police. After the inquest was over, the dead body was subjected to autopsy by P.W.9, the Doctor, who has categorically opined that she died out of the injuries sustained on her head. The fact that she died out of homicidal violence was never questioned by the appellants/accused at any stage of the proceedings. Hence, the prosecution has proved the fact that she died out of homicidal violence.
11.In order to establish the case of the prosecution that by the acts of the appellants/accused, she died, the prosecution marched 2 witnesses. True it is, both P.Ws.1 and 2 are cousin brothers of the deceased. This Court is mindful of the caution made by law that before accepting the evidence, the Court has to apply the rule of careful scrutiny. Despite the exercise of the test, this Court is satisfied that their evidence has got to be accepted. They have given a clear narration of the entire incident in one voice. According to them, all the appellants/accused persons were standing in front of the house, and A-5 and A-6 were standing nearby, and when they found the deceased, A-5 and A-6 were shouting that she should be finished off, and immediately, it was A-1 and A-4 who dragged her, and A-2 and A-3 also joined, and it was A-1 to A-3 who took the sticks which were placed nearby, and attacked her, and A-4 was also found standing. The narration of the entire incident from the mouth of P.Ws.1 and 2 would be indicative of the truth of the versions. Had it been their intention, there was no necessity for them to depose that some of them have attacked and some of them were standing nearby, and they would have given a false version; but, they have not done so. The way in which the graphic narration of the entire incident is given, would be indicative of the true version that came from the mouth of the witnesses. Thus, the evidence of P.Ws.1 and 2 though they are close relatives, inspired the confidence of the Court. The lower Court has marshaled the evidence proper, considered the same and accepted the evidence and rightly too. So far as the medical evidence is concerned, it stood in full corroboration of the ocular testimony.
12.Now, the contention put forth by the learned Senior Counsel for the appellants is that P.Ws.1 and 2 could not have seen the occurrence since they are unable to give proper description of the injuries sustained; and that according to the prosecution, it was A-3 who snatched the torch light from the hands of Tamilselvi and attacked her on the mouth; but, no corresponding injury is found. Now, at this juncture, it is to be pointed out that the occurrence has taken place at about 8.00 P.M.; that she was holding a torch light, and these two witnesses were witnessing the occurrence from a particular place. When they were witnessing the occurrence, they would have seen A-3 attacking on the mouth. It depends upon the force with which the attack was made; probably, it would not have caused injury. Thus, it would be abundantly clear that they had witnessed the occurrence. The lower Court has accepted their evidence and rightly too.
13.Yet another circumstance in favour of the prosecution is the recovery of the weapons of crime namely sticks, from A-1 to A-4 following the arrest of A-1 to A-4 and the confessional statements given by them. The evidence regarding the confession and recovery, remained unshaken. It would be pointing to the nexus of the accused with the crime in question. Thus, the prosecution has proved the case that death was caused due to homicidal violence and the participation of A-1 to A-4 at the time of the occurrence.
14.So far as the second line of argument advanced by the learned Senior Counsel for the appellants is concerned, this Court is able to see sufficient force in the contention put forth. At the time of occurrence, it was Tamilselvi who went to the house of P.W.3, got a torch light and went for nature's call. At that time, A-2 and A-4 were actually standing in front of the house and chatting, and A-5 and A-6 shouted. Thus, it would be quite clear that it was only a chance meeting. They also remained, even as per the prosecution case, unarmed. There is nothing to indicate that there was any common intention for the accused to share with, and hence, they have got to be dealt with for their individual acts. Now, in the instant case, even as per the ocular testimony, it was A-1 who beat with the stick on her head and the external injury and corresponding internal injury were the causes for the death. Under the circumstances, so far as A-1 was concerned, this was the injury that was fatal. Hence, this Court is of the considered opinion that A-1 had intention to cause such injuries, which in the ordinary course of things, would be sufficient to cause death. Under the circumstances, the act of A-1 would attract the penal provision of murder.
15.So far as A-2 and A-3 are concerned, they have got to be dealt with for causing simple injury to the deceased with the sticks, and the penal provision of Sec.324 would be attracted. As regards A-4, he was only standing by the side. It is not the case of the prosecution that he ever attacked the deceased; but, he has also joined with A-1 to A-3 in dragging her. The lower Court has found A-1 to A-4 guilty under Sec.352 of I.P.C. The conviction and sentence imposed by the lower Court on A-1 to A-4 under Sec.352 of I.P.C., have got to be sustained. Accordingly, it is sustained.
16.As regards A-1, the conviction of A-1 under Sec.302 read with 34 I.P.C. is modified, and instead, he is convicted under Sec.302 of I.P.C. and the life sentence along with the fine and default sentence imposed by the trial Court, is confirmed. As far as A-2 and A-3 are concerned, the conviction and sentence imposed on them under Sec.302 read with 34 of I.P.C. are modified, and instead, they are found guilty under Sec.324 of I.P.C. The learned Senior Counsel for the appellants brought to the notice of the Court that A-2 and A-3 have already served sentence for 2 years and 1 month, which, in the opinion of this Court, would be sufficient to meet the ends of justice. Accordingly, the sentence already undergone by A-2 and A-3 namely 2 years and 1 month, is sufficient for the offence under Sec.324 of I.P.C.
17.As regards A-4, he is acquitted of the charge under Sec.302 read with 34 of I.P.C. The fine amount, if any paid by him, will be refunded to him. It is stated that A-4 is on bail, and he has served sentence for 2 years and 1 month. The same is recorded.
18.In the result, with the above modification, this criminal appeal is dismissed.
1.The Principal Sessions Judge
Virudhunagar at Srivilliputhur
2.The Inspector of Police
Sathur Taluk Police Station
Cr.No.144 of 2003
3.The Public Prosecutor
Madurai Bench of Madras High Court
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