Thanika @ Thanikachalam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 14.03.2008Coram:-The Hon'ble Mr. Justice P.D.DINAKARANandThe Hon'ble Mr. Justice R.REGUPATHICriminal Appeal Nos.1040/2006 & 875/2007Thanika @ Thanikachalam... Appellant in C.A. No.1040/2006/Accused No.2Shaji... Appellant inC.A. No.875/2007/Accused No.1vs.The State of Tamil Nadurep. by Inspector of Police,D6, Mancadu Police Station,Mancadu, Kancheepuram Dt.(Crime No.302 of 2001)... Respondent inboth the Appeals./ComplainantAppeals against the orders, dated 20.06.2005 and 10.08.2005,passed by the learned Additional Sessions Judge, Fast Track CourtNo.3, Chengalpattu at Poonamallee, in S.C. Nos.392 of 2003 and580 of 2004.For Appellant in C.A. No.1040/06: Mr.V.RajeshFor Appellant in C.A. No.875/07: Mr.P.ThiagarajanFor Respondent: Mr.N.R.Elango, Addl. Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTR.REGUPATHI, J. The above Criminal Appeals pertain to a case of doublemurder. Though the target of the accused was one Karthik/PW-2,who perchance was not seen by them when they gained entry intothe residence with an intention to finish him off, they succeededin killing his parents due to their jinxed destiny. 2. On 12.04.2001, the accused were talking to oneShanthi and this was questioned by PW-2, whereupon, a wordyquarrel ensued, leading to a clash between the accused and PW-2.Having developed animosity on account of the same, on the nextday ie., on 13.04.2001 at about 2 P.M., the accused, enteredinto the residence of PW-2 and, A-1 had cut PW-2's mother by nameDevaki with patta knife on the left side of her chest, resultingin her death and when it was questioned by the father of PW-2 byname Perumal, he was also attacked by A-2. Therefore, a chargefor the offence punishable under Section 302 IPC. was framedagainst A-1 for causing the death of Devaki. Secondly, in the same transaction, while the firstaccused was stabbing Devaki, the second accused assisted him,therefore, he was charged for the offence punishable underSection 302 read with 34 IPC. Thirdly, in the course of the same transaction, A-2,armed with patta knife, attacked Perumal on the back side of theneck; the first accused stabbed him with patta knife on his rightchest; and when Perumal fell down after receiving cut injuries,A-2 cut him on his right hand, ultimately resulting in his death,thereby, a charge under Section 302 read with 34 IPC. (secondcount) was framed against them. 3. After framing of the charges on 29.12.2003, A-1remained absent from 20.05.2004 to 17.12.2004, resulting inissuance of a non-bailable warrant against him. The case wassplit up and trial against A-2 was taken up first in S.C. No.392of 2003. The Prosecution, in order to substantiate its caseagainst A-2, examined PWs-1 to 13, marked Exs.P.1 to P31 andproduced MOs.1 to 16. On defence side, two witnesses wereexamined as DWs-1 and 2 but no document was marked. The learnedAdditional Sessions Judge, Fast Track Court No.3, Chengalpattu atPoonamallee, by judgment dated 20.06.2005, convicted A-2 underSection 302 read with 34 IPC (2 counts) and sentenced him toundergo life imprisonment for each count and also imposed a fineof Rs.10,000/- for each count, in total Rs.20,000/-, in defaultto undergo rigourous imprisonment for two years on each count.The sentences were ordered to run concurrently. Aggrieved over https://hcservices.ecourts.gov.in/hcservices/ the same, A-2/Thanika @ Thanikachalam, has preferred CriminalAppeal No.1040 of 2006.After the arrest of the first accused, trialproceedings against him were taken up in S.C. No.580 of 2004. Inorder to substantiate its case against A-1, the prosecutionexamined PWs-1 to 10, marked Exs.P1 to P18 and produced M.Os.1 to14. Neither any witness was examined nor any document marked onthe side of the defence. After the trial was over, the learnedtrial Judge convicted and sentenced A-1 as ordered in the case ofA-2. As against the said order, A1/Shaji has filed C.A. No.875of 2007. 4. Inasmuch as the trial against the second accused wastaken up first by the trial court and the case of the firstaccused also met with the same fate as the case of the secondaccused and we are disposing of both these appeals by way of thiscommon judgment, for the sake of convenience, we shall refer tothe evidence, exhibits and other materials from the first case inS.C. No.392 of 2003. As the deceased persons are two in number,the first deceased Devaki is referred as D-1 and the seconddeceased Perumal as D-2, in the course of this Judgment. 5. The case of the prosecution, as divulged by itswitnesses, is narrated here-under in an abridged manner :- i) PWs-1 to 3 are eye witnesses to the occurrence. PWs-1 and 2 respectively are the daughter and son of the deceased.PW-3 is the cousin of PW-2. ii) It is the evidence of PW-1 that, on the previousday, her brother PW-2 told that the accused quarrelled with himand threatened that on the next day, they would finish off PW-2and his family and on such information being divulged, the familymembers scolded PW-2 for the quarrel with the accused. On theoccurrence day at about 2 P.M., she returned to the residencefrom her working place and was sitting outside along with D-1/her mother while D-2/her father was having lunch, at whichtime, the accused came there and asked for PW-2 and when D-1questioned the accused as to why they were searching for PW-2,A-1 stabbed D-1 on her chest and she fell down. On hearing thealarm raised by PW-1, D-2 came out and questioned the accused asto why they had done like that, whereupon, A-2 cut D-2 on hisneck and, by stating that such injury is not sufficient, A-1intervened and stabbed D-2 on his stomach. Again, A-2 cut D-2on his hand. By that time, PWs-2 and 3 reached the scene placeand the accused ran away from there. PW-2 went to inform thepolice. The statement/complaint given by PW-1 to PW-12, the SubInspector of Police at the scene of occurrence was reduced to https://hcservices.ecourts.gov.in/hcservices/ writing and marked as Ex.P1. In court, PW-1 identified MOs-1 and2 knives as the ones used by the accused for committing theoffence. iii) PW-2 is the son of the deceased, who speaks aboutthe motive part of the prosecution case. According to him, on12.04.2001, at about 9 P.M., when he was returning home, both theaccused were talking to a girl by name Thangam and he questionedthe same, resulting in a wordy quarrel. Both the accused statedthat they would not spare PW-2 without cutting him. In the night,PW-2 conveyed to his family members about the altercation tookplace between him and the accused and they scolded him. On thenext day, finding that the accused are coming with knives, boththe deceased directed PW-2 to stay inside the residence. Whenthe accused questioned D-1 about PW-2, it was answered by D-1that PW-2 had gone out for work, at which time, A-1 stabbed D-1/mother with knife and when it was questioned by D-2/father, A-2cut him on his neck and thereafter, PWs-1 and 2 raised alarm,whereupon, the accused ran away from the scene of occurrence.Both the deceased were found dead. iv) PW-3 is the cousin of PW-2 and he has corroboratedthe evidence of PW-2. v) PW-4 is the son-in-law of the deceased. He hasstated that, while he was returning for lunch, he saw the accusedrunning away from the scene of occurrence with bloodstainedweapons. He made an attempt to catch them but in vain. When hereached the scene of occurrence, he found both the deceased dead.vi) PW-5 is the Ward Member of the Local Panchayat andhe has been examined as a witness for preparation of Ex.P3,observation mahazar and recovery of bloodstained earth MOs-3 and5 and sample earth MOs-4 and 6. He attested the observation andseizure mahazars. He was present at the time of inquestconducted by the Investigating Officer. vii) PW-6 is the attesting witness for the arrest ofthe accused. He also attested Exs.P4 and P5, the confessionstatements of the accused and Ex.P6 & P7 viz., mahazars forrecovery of MOs-1 and 2 weapons.Viii) PW-7 is the Doctor, who conducted post mortemover the dead bodies of the deceased and issued post mortemcertificates under Exs.P8 and P10. In Ex.P8/post mortemcertificate issued in respect of D-2 Perumal, the followinginjuries have been noticed:-" 1. Laceration on the dorsal aspect of righthand 2 x 1 cm bone deep. https://hcservices.ecourts.gov.in/hcservices/

2. Laceration 7 x 3 cm cavity 9 cm in depthon the right side of chest. On dissectionfracture of sternum involving the 4th and 5thintercostal space and laceration of heartinvolving the atrium 6 cm x 2 x 1 cm. 500 ml offluid blood collection into the cavity. 3. Incised wound 9 x 4 x bone deep on thenape of the neck involving the C2 and C3 withextravasation of blood into around the fracturedsite. The above injuries had regular, sharp andeverted edges. ......Opinion: The deceased would appear tohave died of shock and haemorrhage due to stabinjuries of chest."In the post-mortem certificate issued under Ex.P10 in respect ofD-1 Devaki, the Doctor noticed the following injuries:-" Laceration 9 x 3 cm cavity deep 9 cm depthon the right side of chest. Old fracture ofsternum involving the 4th and 5th intercostalspaces and laceration of heart involving theatrium 500 ml. of fluid blood collection in thethoracic cavity. ....Opinion: The deceased would appear to have died orshock and haemorrhage due to stab injury of theheart. "ix) PW-8 is the Constable, who took the dead bodies tothe Hospital for the purpose of post-mortem and after the autopsywas over, he collected the clothing found on the deceased viz.,bloodstained Dhoti MO-11, shirt MO-12, Baniyan MO-13, underwearMO-14, saree MO15 and blouse MO-16 and handed over the same tothe Investigating Officer.x) PW-9 is the Court Clerk, who received the materialobjects from the Inspector of Police and on the direction of thelearned Magistrate, sent the same to the Forensic Lab forchemical examination. xi) PWs-10 and 11 are experts from Forensic Department.They issued chemical analysis reports Exs.P9, P11 and P21 withreference to the material objects received and the vicera. xii) PW-12 is the Sub Inspector of Police. Onreceiving telephonic information from one Karunakaran, he reachedthe scene of occurrence and recorded the statement of PW-1 and https://hcservices.ecourts.gov.in/hcservices/ after the arrival of PW-13/Inspector of Police, he returned backto the police station and registered F.I.R. under Ex.P22.Xiii) PW-13 is the Inspector of Police. His evidence isto the effect that on 13.04.2001, he received the informationabout the occurrence at 2.30 P.M. and reached the scene ofoccurrence at 3 P.M. After sending the Sub Inspector of Policeto the police station for registration of case, he preparedobservation mahazar Ex.P.3 and rough sketch Ex.P23. He conductedinquest over the dead bodies in the presence of panchayatdars.Exs.P24 and P25 respectively are the inquest reports relating toD-2 and D-1. He examined PWs-1 to 4 and others and on the nextday, after the post mortem was over, he received the clothingfound on the deceased from Constable under Form-95. On15.04.2001 at about 11 A.M., he arrested the accused and recordedtheir confession statements. In the presence of PW-6, herecovered the weapons and other material objects. He sent thematerial objects to the court with his requisition to forward thesame for chemical examination. After receiving the experts'opinions, medical reports and on conclusion of the investigation,he filed final report on 25.07.2001 against the accused for theoffence under Section 304 read with 34 IPC. 6. In both the cases, the accused were questioned underSection 313 Cr.P.C. with regard to the incriminating materialsavailable against them and both of them denied their complicityin the crime and pleaded innocence. As pointed out earlier, in S.C. No.580 of 2004, on theside of the defence, two witnesses have been examined as DWs-1and 2. It is the evidence of DW-1 that on the date of occurrence,PW-1 came running from her residence and stated that her parentswere stabbed by some unknown persons. The second accused alongwith others came to the scene of occurrence. Thereafter, PWs-2and 3 chased A2 on the allegation that he accompanied the firstaccused, who committed the offence. DW-2 is the brother of the second accused. Accordingto him, police officials came to their residence searching for A-2 and as he was not available at that time, they took DW-2stating that if the second accused is arrested, the whereaboutsof the first accused, who had committed the offence, would beknown. Since A-2 was arrested on the next day, DW-2 was allowedto go. 7. The learned trial judge, on perusal of the oral anddocumentary evidence and upon hearing the arguments advanced byboth sides, convicted and sentenced A-2 as aforementioned. Thetrial proceedings against A-1 also ended in conviction andsentence as imposed on A-2. Aggrieved by that, Criminal AppealNo.1040 of 2006 has been preferred by A-2 and Criminal AppealNo.875 of 2007 by A-1. https://hcservices.ecourts.gov.in/hcservices/

8. In these Appeals, the point for determination is asto whether the orders of conviction and sentence passed by thetrial court against the appellants/accused are sustainable in thegiven facts and circumstances. 9. First, let us deal with the arguments advanced bythe learned counsel appearing for A-2/appellant in C.A. No.1040of 2006. Learned counsel submits that it was only the firstaccused, who quarrelled with PW-1 as a result of which, theyassaulted each other and there is no evidence to establish"direct motive" on the part of A-2 as against PW-2 or any of hisfamily members. Referring to the evidence of the defencewitnesses, he argues that since the second accused happened to bethe friend of A-1 and just because A-2 was present during thequarrel that took place on the previous day, he has been falselyimplicated in the case. It is submitted that Thangam was notexamined so as to substantiate the motive part of the prosecutioncase as against A-2. On the one hand, it is stated that theinformation relating to the occurrence was given to the police byone Janakiraman while on the other hand, there is also a versionthat one Karunakaran gave the information. According to thelearned counsel, there is a contradiction in that regard andfurther, the said Janakiraman and Karunakaran have not beenexamined by the police. PWs-1 to 3 being closely related to thedeceased, their evidence cannot be relied on. PWs-2 and 3 cameto the scene of occurrence only at a later point of time and theyhave been falsely cited as eye witnesses to the occurrence. IfPWs-2 and 3 were really present at the time of occurrence, theaccused, in view of the motive against PW-2, would not haveattacked his parents, sparing PW-2. Therefore, it is reiteratedthat PWs-1 and 2 are not eye witnesses to the occurrence. Bystating that the police officer obtained the signature from PW-1on two occasions ie., at the scene of occurrence as well as atthe police station, it is submitted that Ex.P1 has been preparedonly at the police station and the case has been fabricatedagainst the accused. Referring to the statement of PW-1 duringthe course of cross examination to the effect that while runningaway from the scene of occurrence, the accused left the weapon atthe scene of occurrence itself, it is contended that that thesubsequent confession and recovery of weapons are falsified. 10. Per contra, learned Additional Public Prosecutorsubmits that the occurrence took place at 2 P.M. and, on receiptof the telephonic information, PW-12, the Sub Inspector of Policereached the scene of occurrence without any delay. Complaint wasprepared on the narration of PW-1 and information has also beengiven to the Inspector of Police PW-13 immediately. Since the https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police reached the occurrence place, PW-12 returnedback to the police station, registered the case and preparedF.I.R., etc. Subsequently, the witnesses were examined at thepolice station for preparation of their statements. PW-1, beingrustic and uneducated, stated that twice she was examined by thepolice and the same need not be construed as if a second F.I.R.has been prepared at the police station. Information has beenreceived from the scene of occurrence and though the informant/shad not been examined, it is contended that they are not materialwitnesses. It is further submitted that the girl with whom theaccused were talking is also not a material witness and non-examination of such witness will not affect the prosecution case.The evidence of PWs-1 to 3 amply establishes the motive/grudgedeveloped by the accused as against PW-2 and his family onaccount of the incident that took place on the previous day.Further, the occurrence took pace in a broad day light, whenboth the accused, to wreck vengeance against PW-2, armed withweapons, reached the scene of occurrence and since PW-2 was notavailable, brutally murdered his parents who were available inthe residence at that time. PWs-1 to 4, though closely related,are natural witnesses for the occurrence. Though PW-1, in thecross-examination, has stated that the accused left the weapon ofoffence at the occurrence place itself, it is the clear andcategoric evidence of PW-4 that he has seen the accused runningaway from the scene of occurrence with bloodstained weapons andhe has also chased them in an attempt to catch hold of them. 11. We have perused the materials available on recordand carefully considered the rival contentions projected oneither side. 12. Before proceeding to deal with the argumentsadvanced, we deem it necessary to observe that the testimonies ofwitnesses, who are closely related to the deceased, cannot bediscarded on the mere categorisation that they are interestedwitnesses. It is the duty of the court to examine their evidenceas to whether the same is natural, cogent and veracious. Further,Courts would not expect the witnesses, who are rustic anduneducated, to depose in accurate terms with regard to each andevery minute details, which is beyond human capability. If thecore aspects involved are spoken to by them in a natural manner,contradictions, which are trivial and venial, would in no way becited as a reason to water down their evidence as a whole. 13. Of course, PWs-1 to 4 are closely related to eachother. At the time when the deceased and PW-1 were in theirresidence, the occurrence is said to have taken place. It is theevidence of PW-1 that D-2 was taking lunch and she was sittingalong with D-1, at which time, the accused reached their https://hcservices.ecourts.gov.in/hcservices/ residence and asked D-1 about PW-2, whereupon, she asked them asto why they are searching for him and on that, she was stabbed bythe first accused. When D-2 came out on hearing noise andquestioned them, he was also stabbed and both the deceased diedinstantaneously at the scene of occurrence and the accused ranaway from there. The endeavour of the learned counsel to criticise theevidence of PW-1 by stating that she did not speak to thepresence of PW-2 at the residence, would be of no use on awholesome assessment of her evidence along with that of other eyewitnesses. In fact, PW-1 in her cross examination stated that onwitnessing the brutal murder, she was under shock not even ableto perceive that her parents died and in that line, PW-3 alsostated in his cross examination that PW-1 did not notice him aswell as PW-2. In such circumstance, the testimony of PW-1 as tothe alleged occurrence cannot be doubted merely because she doesnot speak about the presence of PW-2 or PW-3 in view of theaforesaid aspects adverted to by us. The narration of occurrenceas put forth by PWs-1 to 3 is consistent and cogent and we do notfind any major contradiction or deviation in their evidence inmaterial particulars relating to motive as well as theoccurrence. 14. The occurrence is said to have taken place at 2P.M. and, on telephonic information, PW-12, the Inspector ofPolice reached the scene of occurrence within 20 minutes andrecorded the complaint given by PW-1. PW-13 also reached thescene of occurrence within one hour. Further, on a perusal of the F.I.R. both the motivepart as well the acts attributed to the accused have beennarrated in a natural sequence. As rightly pointed out by thelearned Additional Public Prosecutor, the witnesses are rusticand uneducated and their examination at the police station andrecording of their statements cannot be projected to contend thatthe police had created/fabricated the materials in support of theprosecution case. All relevant details as to the motive, identityof the assailants and their overtacts have been furnished to thepolice and clearly reflected in the F.I.R. as well as in theevidence of the witnesses in particular PW-1. In suchcircumstances, we do not find any substance in the contentionthat the F.I.R. has been fabricated at a later point of time.15. Coming to the argument advanced by the learnedcounsel with reference to recovery of weapons, it is the evidenceof PW-4 that the accused were seen running from the occurrenceplace with bloodstained weapons. We have already pointed outthat the incident in which the deceased, who are none else thanthe parents of PW-1, were murdered, had occurred in the presenceof PW-1 putting her in complete shock and in such circumstances, https://hcservices.ecourts.gov.in/hcservices/ minor mistakes could not be ruled out and for such mistakes, herstatement could not be discarded which was corroborated inmaterial particulars by statements of other eyewitnesses anddocuments produced by the prosecution. PW-6 is an independentwitness examined for the arrest of the accused and recovery ofthe weapons. It is the positive medical evidence that both thedeceased died of homicidal violence and that the cut injurieswould have been inflicted with the weapons produced before court.The prosecution witnesses have clearly spoken to the vitalaspects viz., the motive aspect, the presence of both the accusedat the residence of PW-2, their brutal attack on the parents ofPW-2 when they did not find PW-2, their escape from the scene ofoccurrence, arrest and recovery of weapons at their instance.Some minor discrepancies in narrating the sequence of eventswould not be a reason to impeach the testimonies of theprosecution witnesses. The trial court assessed the oral anddocumentary evidence in a proper perspective and rightly passedthe order of conviction and sentence as against A-2; therefore,we do not find any valid or acceptable ground to interfere withthe same. 16. Coming to C.A. No.875 of 2007 preferred by A-1 asagainst the order of the trial court in S.C. No.580 of 2004,learned counsel submits that he adopts the arguments put forth bythe counsel for the second accused and apart from that, contendedthat the motive aspect projected by the prosecution as againstthe first accused to commit the double murder is flimsy, whichraises doubt with regard to the case of the prosecution. Hecontended that almost all contemporaneous documents have beenprepared at the police station and that several crucial witnesseshave been omitted to be examined, thereby great prejudice hasbeen caused to the defence.17. Per contra, learned Additional Public Prosecutor,by pointing out that the witnesses and other materials producedat the time of first trial, have been produced at the time whenthe trial in respect of the first accused was taken up, wouldsubmit that the learned trial Judge has considered the evidencein a proper perspective to hold against the accused. 18. Inasmuch as the learned counsel adopted thearguments advanced by the counsel for the secondaccused/appellant in C.A. No.1040 of 2006 and we have given ourfindings after deliberating upon the merits of those arguments,it goes without saying that such findings would be applicable tothe case of the present appellant as well. While reiteratingthat this is a case of double murder, we again add that, ontesting the testimonies of PWs-1 to 4 with the touchstone oftruthfulness and trustworthiness, we find nothing to doubt their https://hcservices.ecourts.gov.in/hcservices/ credibility or veracity. It is the first accused, in order towreck vengeance against PW-2 with whom he had a scuffle on theprevious day, accompanied by A-2 and armed with patta knives,went to PW-2's residence, searched for PW-2 and when he was notavailable, stabbed D-1, the mother of PW-2 on her stomach. Asspoken to by the prosecution witnesses, when D-2 questioned theact of the accused, A-2 cut him on the back side of the neck,whereupon, it was A-1, who told A-2 that such attack was notsufficient and stabbed D-2 on his stomach, which shows the gravenature of the crime committed by the first accused along with thesecond accused. The other evidence including medical evidencesupports the case of the prosecution as put forth by the eyewitnesses and we are of the considered view that it is a fit casefor confirming the order of conviction and sentence passed by thetrial court as against A-1. The trial court exhaustively dealt with all material aspectsto hold against the appellants/accused. 19. We do not find any valid ground for interfering with thewell considered judgments of the trial court. Criminal Appealsfail and the same stand dismissed.JI.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Additional Sessions Judge, Fast Track Court No.3,Chengalpattu.2. Do Thro' The Prl Sessions Judge, Chengalpattu.3. The District Collector, Chengalpattu.4. The Director General of Police, Mylapore, Chennai.5. The Superintendent, Central Prison, Puzhal, Chennai. https://hcservices.ecourts.gov.in/hcservices/

6. The Inspector of Police, D6, Mancadu Police Station,Mangadu, Kancheepuram Dt., (Crime No.302 of 2001).7. The Public Prosecutor, High Court, Madras.TEJ(CO)SR/26.3.2008 CommonJudgment in CriminalAppeal Nos.1040/2006 and 875 of 2007.