Balusamy v. State

was otherwise engaged. P.Ws.2 and 3 also witnessed the occurrence.All the three joined together and made a hue and cry, but the accusedthreatened them with dire consequences and sped away from thescene of occurrence towards his house. PW.4 Sathiyabama, wife of the deceased, arrived on receivingtelephonic message from PW.1 Karunanidhi and Rajamanickam informedher that it was Balusamy who delivered cuts on him and appealed toher to save his life. Rajamanickam was taken to the hospital but onthe way to the hospital, he died. PW.1 Karunanidhi proceeded to Moolanur Police Station alongwith PW.2 Manivel. With the assistance of PW.2 Manivel, PW.1Karunanidhi prepared the Complaint-Ex.P1 and submitted to PW.12Mr.Alagumalai, Inspector of Police, attached to Moolanur PoliceStation at 11 am on 22.1.2008. PW.12 having receivedthe complaint, registered a case in Crime No.22/2008 underSections 341, 302, 506(ii) IPC. He prepared the printed FirstInformation Report-Ex.P15 and despatched the original to the learnedJudicial Magistrate, Dharapuram and copies thereof to the higherofficials concerned. On 22.1.2008 at about 12 noon, PW.12 Inspector Alagumalairushed to the scene of occurrence at about 8.30 am. He inspectedthe scene of occurrence and prepared Observation mahazar-Ex.P6 inthe presence of PW.8 Venkatesan, Village Administrative Officer andanother. He also drew Rough Sketch-Ex.P16 reflecting the scene ofoccurrence. He engaged PW.7 Karthikeyan, Photographer to takephotographs. MO.11 (series) are the Compact Discs containing thephotographs. MO.12 (series) are the photographs. At about 1 pm on 22.1.2008, PW.12 Inspector Alagumalaiseized MO.2 Blood stained Milk Posi, MO.3 a pair of Chappals, MO.4Spectacles, MO.5 Blood stained Lungi, MO.6 Blood stained Banian,M.Os.7 to 9 Blood stained Lungis, MO.10 Bicycle, MO.13 Black stone,MO.14 Blood stained Tar portion, MO.15 Sample Tar portion under Ex.P7mahazar in the presence of said witnesses. He examined PW.9Palanisamy and other witnesses who were present there and recordedtheir statements. He proceeded to the Government Hospital,Dharapuram at about 2 pm on 22.1.2008 and conducted inquest on thedead body of Rajamanickam in the presence of witnesses andpanchayatars and prepared Inquest Report-Ex.P17. He examined PW.1Karunanidhi, PW.2 Manivel, PW.4 Sathiyabama and some other witnessespresent over there and recorded their statements. On the basis of Requisition-Ex.P3 received from PW.12Inspector Alagumalai through PW.11 Prabhakaran Mani, Head Constable,PW.5 Dr.Sathiaraj commenced post-mortem examination on the dead bodyof Rajamanickam at 4.50 pm on 22.1.2008 and found the following. https://hcservices.ecourts.gov.in/hcservices/ "External Injuries:1. Abrasion 5 x 2 cm – Right side face, between Right Angle ofmouth and Right Ear.2. Cut Laceration 2 x 0.5 cm Right Lateral aspect of neck.3. Lacerated Cut Injury – 6 x 2 cm x 4 cm depth, Right upper armouter aspect.4. Deep Lacerated cut injury 25 cm length – 10 cm depth exposingBone, muscle, Tendons, Blood vessel Right extending from lower 1/3of arm to proximal 2/3 of forearm.5. Abrasion 6 x 0.5 cm Right upper hip.6. Abrasion 6 x 0.5 cm Left upper chest.7. Deep cut Lacerated injury – involving left mid arm toproximal 1/3 of forearm involving elbow, irregular margin, size 27cm length exposing bone, muscle, blood vessel.8. Left wrist – completely amputated at the level of wristproximal hand with adjoining just with skin. Both cut ends exposingall Muscles, blood vessels.9. Deep cut injury – 25 x 18 cm x 10 cm depth involving Rightupper posterior thigh, exposing Blood vessels, muscle.10. Lacerated injury 4 x 4 cm. Irregular margins Rightlateral thigh, below the Injury 9.11. Abrasion – 6 x 4 cm Right knee.12. Abrasion 4 x 4 Left knee.13. Cut Injury – involving left forefoot completely involving2/3 of width, both cut ends exposed.14. Lacerated Injury 6 x 4 cm x 4 cm Left upper back.15. 6 x 5 cm Lacerated Injury left upper back.On Internal Examination1. Hyoid Intact.2. No Rib Fracture.3. Right Lung – 540 gms pale. Left Lung – 500 pale. https://hcservices.ecourts.gov.in/hcservices/

4. Heart 300 gms pale.5. Stomach – 200 ml of clear fluid.6. Intestine mild distention present.7. Liver 1400 gms – pale.8. Spleen – 110 gms – Shrunken pale.9. Kidney – 150 gms each – pale.10. Bladder – empty.11. Skull - No Fracture.12. Brain 1200 gms pale." He opined that the deceased would appear to have died ofHypovolemic Shock due to haemorrhage due to multiple injuries8 to 12 hours prior to autopsy. On 24.1.2008 at about 5.30 am, PW.12 Inspector Alagumalaiproceeded to Kasthuripalayam Bus Stop at Puduppai and arrested theaccused Balusamy in the presence of PW.8 VAO Venkatesan and anotherwitness by name Soundirarajan. On interrogation, the accused gavevoluntarily a confession statement. On the basis of the admissibleportion-Ex.P8, found in the confession statement of the accused,PW.12 went along with the witnesses to the field of the accused andrecovered M.O.1-Blood stained Aruval from the bush near electricpost in the field of the accused under Ex.P9 mahazar in thepresence of same witnesses. He prepared a Rough Sketch-Ex.P18reflecting the location from where the weapon MO.1 Aruval wasrecovered. He also seized a blood stained Lungi produced before himunder Form 95-Ex.P19.PW.6 Dr.Karmegam examined the accused who was produced withPolice memo and found the following injuries on his person. " 1) Abrasion 4 x 2 cm front of right knee. 2) Abrasion 5 x 6 cm Left knee. 3) Abrasion 2 cm dorsum of left foot with underlying swellingof 4 x 3 x 1 cm. Movements of left foot painful and range full. 4) Abrasion 2 x 2 cm anterior aspect of proximal left wrist. 5) Incised wound 1 cm length – obliquely placed, deep ends,proximally creating a proximal flap – on left thumb on index fingerside. Size of wound 1 x 0.2 x 0.3 cm. 6) Abrasion 1 cm dorsum of distal Left fist."PW.6 Dr.Karmegam has recorded in the copy of the AccidentRegister-Ex.P5 that the accused Balusamy informed him that hesustained injuries due to fall while running with Billhook after a https://hcservices.ecourts.gov.in/hcservices/ quarrel with a known person near Alankattu Thottam on Puduppai–Saravanagounder Valasu tar road. The doctor opined that the injuriessustained by the accused were simple in nature.Thereafter the accused was sent for judicial remand and theMaterial Objects were also submitted to the Judicial Magistrate. PW.11 Prabhakaran Mani, Head Constable seized White colourshirt-MO.16 and Brown colour jatti-MO.17 from the dead body afterthe post-mortem examination was over and submitted the same to PW.12Inspector Alagumalai under Special Report-Ex.P14. On the basis of the requisition-Ex.P10 submitted by PW.12Inspector of Police, the learned Judicial Magistrate despatched thematerial objects for chemical examination under Ex.P11 coveringletter. PW.10 Santhanagopalakrishnan, Head Clerk attached to theJudicial Magistrate Court, Dharapuram speaks about the receipt ofExs.P12 and P13 Chemical examiner reports. PW.12 Inspector Alagumalai, having completed theinvestigation, laid final report as against the accused on 27.2.2008before the learned Judicial Magistrate. 4. The incriminating circumstances as spoken to by thewitnesses examined on the side of prosecution were put to the accusedin the form of questionnaire and the accused completely denied hisrole in the commission of murder of Rajamanickam. He filed writtenstatement when he was questioned under Section 313Cr.P.C and submitted that he filed a civil suit against P.W.2 Manivelin O.S.No.109/2002 on the file of District Munsif Court, Dharapuramand got a decree. PW.2 Manivel on his part filed a suit in the verysame court in OS.No.208/2006 seeking for a declaration that the saledeed in the name of the accused was not valid, but the said suit waswithdrawn by him on 25.8.2008. He also objected to the demolitionof the old temple and constructing a new temple without thepermission of the Government. He had not put up a stage fororganising a political party meeting, but the stage put up wasvanished and therefore a complaint was given against PW.2 Manivel andothers. But PW.2 Manivel and others who were interrogated by thepolice were under the impression that it was only the accused who hadlodged the complaint. The accused has further stated that he had no enmity withthe deceased Rajamanickam, but the accused had enmity with PW.2Manivel. PW.2 Manivel expressed his desire to wreak vengeance asagainst him. He had been to Palani Temple on 21.1.2008. He camedown after 'Thaipoosam Festival' only on 22.1.2008. When he was inhis house on 23.1.2008, PW.2 Manivel and others attacked him andentrusted him to the Police Station. The deceased Rajamanickam had https://hcservices.ecourts.gov.in/hcservices/ an illicit intimacy with the wife of Dhandapani. Therefore thevillagers had a grouse as against Rajamanickam and they also filed acase as against Rajamanickam as he had taken away sand fromAmaravathi River. The father of Rajamanickam was convicted in acase of murder. Therefore Rajamanickam had many enemies in thevillage. As the culprit was not known to anybody, a false case wasfoisted against the accused by PW.1 Karunanidhi at the instigation ofPW.2 Manivel. He has also stated in his statement under Section 313Cr.P.C that P.Ws.1 to 3 were not eye-witnesses. The accused did notchoose to examine any witness or mark any document on his side. 5. The Trial Court, having heavily relied upon the oculartestimony of P.Ws.1 to 3 and the dying declaration alleged to havebeen given by the deceased Rajamanickam to his wife PW.4 Sathiyabamaand the proclamation already made by the accused to do away with thelife of Rajamanickam to PW.9 Palanisamy and in the background ofmedical evidence available on record, returned a verdict ofconviction as against the appellant. 6. PW.1 Karunanidhi, the younger brother of deceasedRajamanickam, has deposed that the accused Balusamy having proclaimedthat Rajamanickam was the root cause for the hostility showed by theentire villagers against him, attacked Rajamanickam with MO.1 Aruvalhaving emerged from the parapet wall of the culvert bridge and cuthim indiscriminately with it. The left hand wrist portion ofRajamanickam was completely severed in the attack launched by theaccused. The accused did not leave Rajamanickam even after he felldown from the cycle. The deceased was attacked on the right sideneck, right shoulder, right hand and right leg when he fell down.Even when the deceased was running to escape from the attack, theaccused delivered a cut on the back side of the deceased with MO.1Aruval. Thereafter the deceased fell down and the accused gave afinal cut on his right side foot with it. 7. PW.1 Karunanidhi speaks about the presence of PW.2 Maniveland PW.3 Tmt.Govindarajamani at the scene of occurrence. It is hisevidence that all the three made a hue and cry, but the accused didnot mind it. After delivering cuts on the deceased, the accusedthreatened P.Ws.1 to 3 to do away with their life and thereafter hetook to heels with the weapon MO.1 Aruval. 8. PW.2 Manivel is the friend of the deceased Rajamanickam.He has testified that his house is located about 400 ft. away fromthe scene of occurrence. Having come out of the house, he reachedthe tar road and was proceeding towards the western side. Thedeceased Rajamanickam was proceeding towards the eastern side bycycle. His younger brother PW.1 Karunanidhi was going by walk a fewfeet away from Rajamanickam. The brothers chatted for a few minutes.Thereafter the accused who came out from the parapet wall of the https://hcservices.ecourts.gov.in/hcservices/ culvert bridge, attacked Rajamanickam with MO.1 Aruval saying thatRajamanickam turned the ire of entire villagers against him. He alsospoke about the indiscriminate cuts delivered by the accused onRajamanickam with M.O.1 even after Rajamanickam fell down from thecycle. It is his evidence that P.Ws.1 and 3 along with him warnedthe accused Balusamy not to launch attack on Rajamanickam butdespite that the accused delivered cuts on the deceased and sped awaytowards his house. 9. PW.3 Tmt.Govindarajamani is the agnate of both theaccused Balusamy and deceased Rajamanickam. While she wasproceeding at about 6.30 am on 22.1.2008 carrying milk for supplyingto Milk Society at Mulayampoondi, she witnessed the accused havingrestrained the deceased Rajamanickam, attacked him with MO.1 Aruvalall over his body. Even after Rajamanickam took to heels , unableto bear the attack launched by Balusamy, the accused attacked himwith M.O.1. She also testifies that P.Ws.1, 2 and herself warnedthe accused not to launch attack as against Rajamanickam. 10. The learned counsel appearing for the appellant wouldsubmit that PW.1 Karunanidhi, being the younger brother of thedeceased, is an interested witness and PW.2 Manivel being the friendof the deceased had got a strong enmity to implicate the accused inthis case. Further, he would submit that there was pathway disputebetween the accused and PW.2 Manivel and therefore PW.2 Manivel hascome out with falsehood before the Court. 11. The learned Additional Public Prosecutor submits thatthough PW.1 Karunanidhi is the younger brother of the deceased andPW.2 Manivel had some litigation as against the accused, theirtestimony is quite natural and therefore there is no embargo to relyupon their evidence. It is his further submission that the evidenceof PW.3 Tmt.Govindarajamani cannot be rejected, as she is anindependent witness to the occurrence. 12. It is true that PW.1 Karunanidhi is the brother of thedeceased. It is found that PW.1 was proceeding to Milk Society tosell milk collected by him. The deceased Rajamanickam also wasproceeding by bi-cycle taking milk in a can for supplying to the saidsociety. PW.1 Karunanidhi has deposed that his brother asked him toboard the cycle but PW.1 had preferred to go by walk to the societyand therefore the deceased went by bi-cycle. There is no suggestionfrom the defence that P.Ws.1 to 3 did not collect milk and supply tothe Milk society at Mulayampoondi. Therefore the presence ofPWs.1 and 3 at the scene of occurrence cannot be doubted. PW.3Tmt.Govindarajamani has come out with a cogent explanation that shecarried the milk on that fateful day as her husband was away from thevillage. It is found that PW.2 Manivel is residing in a house whichis located at about 400 ft. away from the scene of occurrence. It https://hcservices.ecourts.gov.in/hcservices/ is quite natural for the villager to come out of the house at about 6am or 6.30 am for various purposes. 13. True it is that the testimony of PW.1 Karunanidhi,brother of the deceased, and PW.2 Manivel, who had some civillitigation with the accused, will have to be evaluated cautiously.But their evidence cannot be rejected outright just because PW.1Karunanidhi happened to be the brother of the deceased and PW.2Manivel was an adverse party in civil litigation launched by theaccused.14. There is a vague suggestion put to PW.3 Tmt.Govindarajamanithat she had some pipeline dispute with the accused and as a resultof which she chose to depose as against the accused. The aforesaidsuggestion was totally denied by her. PW.3 Tmt.Govindarajamani wasfound to be a relative not only to the deceased but also to theaccused. In our considered opinion, PW.3 Tmt.Govindarajamani isfound to be an independent witness and her testimony cannot bebrushed aside on any account. In fact, her evidence lendscorroboration to the testimony of P.Ws.1 and 2. 15. The learned counsel appearing for the appellant wouldattack the evidence of P.Ws.1 and 2 on the ground that blood-stainedclothes of P.Ws.1 and 2 were not recovered by the InvestigationAgency though it is alleged that they were actually present at thetime of occurrence or immediately after the occurrence took place.We find that the non-seizure of the apparels of P.Ws.1 and 2 wouldnot shake the case of the prosecution, as the evidence of P.Ws.1 and2 is corroborated by the evidence of PW.3 Tmt.Govindarajamani. Atany rate, the lapse on the part of the Investigation Agency in notseizing the blood-stained clothes of P.Ws.1 and 2 would not go to theroot of the case. 16. It is contended that there was a strong motive forfoisting the case as against the accused for the murder ofRajamanickam. It has been established by the defence that theaccused purchased a site adjacent to the site of PW.2 Manivel. PW.2Manivel claimed that the accused had purchased a portion of porambokeland. The aforesaid dispute had culminated in filing of a suit bythe accused as against PW.2 Manivel and in passing a decree ofdeclaration in his favour. The defence has also established that inthe very same site purchased by the accused he had put up 'pandhal'with stage for organising a political party meeting, but the said'pandhal' with stage vanished the next day morning which prompted theaccused to lodge a complaint as against the deceased, PW.2 Maniveland others. It is also established that there was an ancient templein Mulayampoondi village. The villagers took a decision to demolishit and put up a new construction over there. The accused opposed forsuch a proposal, but ultimately the decision of the villagers https://hcservices.ecourts.gov.in/hcservices/ prevailed and they had put up a temple demolishing the old structure.The deceased was the head of the six member committee constituted bythe villagers for performing 'Tiruppani work'. 17. In the background of aforesaid circumstances, the learnedcounsel appearing for the appellant would submit that a false casewas foisted on the accused by the villagers after beating the accusedand producing him before the police. 18. It is true that there had been some dispute between PW.2Manivel and the accused Balusamy. The accused also gave a complaintas the 'pandhal' put up by him vanished as against the deceasedRajamanickam, P.W.2 Manivel and others. The deceased also washeading the 'Tiruppani Committee' constituted by the temple. Themotive established is found to be a double-edged weapon. The motivealso can be the reason for the accused to attack the deceased.Considering the testimony of P.Ws.1 to 3, we find that the case ofmurder was not foisted on the accused on account of theaforesaid dispute between the accused and PW.2 Manivel. Theaforesaid motive is found to be the reason for the murder of thedeceased by the accused. 19. Of course, the Investigating Agency failed to explainabout the five abrasions and an incised injury found on the leftthumb measuring 1 x 0.2 x 0.3 cm on the person of the accused at thetime when he was arrested by PW.12 Inspector Alagumalai. Thelearned counsel appearing for the appellant would submit that thenon-explanation of the injuries found on the person of the accusedwould go to the root of the case. Per contra, the learnedAdditional Public Prosecutor would submit that all the injuries werefound to be simple in nature. When ocular testimonies were availableon record, the non-explanation of the injuries sustained by theaccused would not tilt the case of the prosecution, he would contend. 20. It is a settled position of law that where there isconsistent evidence from ocular witnesses that it was only theaccused who perpetrated the crime of murder, the non-explanation ofminor and simple injuries found on the person of the accused cannotat all be a ground to reject the testimony of ocular witnesses. Inthe instant case, we find that all the injuries were found to besuperficial, simple and minor and therefore the non-explanation ofsuch injuries does not cast a doubt on the genesis of the case of theprosecution. 21. The learned counsel for appearing for the appellant wouldrefer to the evidence of P.Ws.2 and 12 and would submit that there issome contradiction as to the preparation of the complaint-Ex.P1 by https://hcservices.ecourts.gov.in/hcservices/ PW.1 Karunanidhi at the instance of PW.2 Manivel. 22. P.W.2 Manivel would state that he went along with PW.1Karunanidhi and prepared the complaint Ex.P1 in the presence ofPW.12 Inspector Alagumalai. PW.12 Inspector on his part wouldstate that PW.1 Karunanidhi came with a written complaint and thesame was registered by him. 23. The fact remains that only a written complaint waspresent by PW.1 Karunanidhi. It is not the case of PW.1Karunanidhi or PW.2 Manivel that only oral complaint was given byPW.1 Karunanidhi and the same was recorded by PW.12. PW.2 admitsthat he was the scribe of complaint-Ex.P1 and PW.1 Karunanidhi wouldadmit that he was the author of Ex.P1 complaint. Therefore therewas no difficulty in placing reliance on the evidence of P.Ws.1 and 2about the manner of preparation of Ex.P1 complaint. In thiscontext, it is relevant to note that PW.2 Manivel has specificallyreferred to in the complaint that he was not only the scribe of thecomplaint but also a witness thereto. 24. It is submitted by the learned counsel for the appellantthat though P.Ws.1 and 3 would state that they left behind theirmilk cans at the scene of occurrence, only one milk can wasrecovered by PW.12 Investigation Officer. PW.12 Inspector Alagumalaiis concerned only with the milk can related to the case and notwith the milk cans of P.Ws.1 and 3 and therefore the non-seizure ofthe other milk cans by the Investigation Officer will not affect thecase of the prosecution. 25. The learned counsel appearing for the appellant wouldlastly submit that one Dhandapani, a grocery shop keeper, whoallegedly witnessed the occurrence was not examined as a witness tothe occurrence. 26. We find that an embarrassing question was put to theocular witnesses by the defence that the deceased had an illicitintimacy with the wife of Dhandapani, grocery shopkeeper.Fortunately, Dhandapani was saved from such embarrassment in the openCourt. Further, when the testimony of P.Ws.1 to 3 are found to betrustworthy and believable, non-examination of other persons wouldnot tilt the case of the prosecution. 27. Coming to the medical testimony, we find thatPW.5 Dr.Sathiaraj has found as many as seven cut injuries,three lacerated injuries and some abrasions on the person of thedeceased. PW.5 Dr.Sathiaraj has opined that the deceased wouldappear to have died of Hypovolemic Shock due to haemorrhage onaccount of multiple injuries about 8 to 12 hours prior to autopsy.The injuries found on the person of the deceased were found to be https://hcservices.ecourts.gov.in/hcservices/ sufficient to cause the death. It is found that the deceasedbreathed his last on the way to the hospital. 28. PW.5 Dr.Sathiaraj also deposed to the fact that theaforesaid injuries would have been caused by a weapon likeMO.1 Aruval. The medical evidence also lends corroboration to theocular testimony available on record. The weapon MO.1 Aruvalidentified by the ocular witnesses was recovered pursuant to thearrest effected in the presence of PW.8 VAO Venkatesan on the basisof the admissible portion in the confession statement given by theaccused. 29. Of course, PW.9 Palanisamy has spoken to the fact thatabout four days prior to the occurrence, the accused proclaimed to doaway with the life of the deceased. We are not inclined to accepthis testimony as he has come out with a version during the course ofcross-examination that he could not say when the accused informedabout his decision to do away with the life of the deceased. Weare also not inclined to accept the evidence of PW.4 Sathiyabama asregards the dying declaration alleged to have been given by thedeceased to her as it is found from the evidence of PW.12Investigation Officer that during the course of investigation shenever disclosed that her husband informed her that it was only theaccused who delivered cuts on him. But, at any rate, we find thatthe prosecution has established through the ocular and medicaltestimony that the accused having restrained the deceased, attackedhim with an intention to cause his death and committed murder andalso threatened P.Ws.1 to 3 with dire consequences. There is noreason to interfere with the well considered judgment of the TrialCourt. 30. The conviction and sentence imposed on the accused by theTrial Court stand confirmed and the appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvks https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District and Sessions Judge,(Fast Track Court No.III), Dharapuram, Erode District.2. -do- through the Principal District and Sessions Judge, Erode.3. The Inspector of Police, Moolanur Police Station,Dharapuram Taluk, Erode District.4.The Superintendent of Prisons, Central Prison, Coimbatore.5.The Director General of Police,Mylapore, Chennai-600 004.6.The District Collector, Erode District, Coimbatore.7.The Public Prosecutor, High Court, Madras-104.8.The Section Officer, Criminal Side Section, High Court,Madras-104.1 cc To Mr.A.K.Kumaraswamy, Advocate, SR.45679CRL.A.No.28 of 2009sai(co)pmk.29.9.2009.