Gunasekaran v. State rep. By The Inspector of Police Town Police Station Tiruvarur

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 4-11-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.491 of 20091.Gunasekaran2.Nagaraj @ Nagarajan3.Jayaraman4.Sudhakar @ Sudhakaran.. Appellants vsState rep. ByThe Inspector of PoliceTown Police StationTiruvarurCrime No.461/2006.. RespondentCriminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the District and SessionsJudge, Tiruvarur, made in S.C.No.24 of 2008 dated 29.7.2009.For Appellants: Mr.R.Shunmugasundaram Senior Counsel for Mr.S.SaravanakumarFor Respondent: Mr.Babu Muthu Meeran Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Sessions Division,Tiruvarur, made in S.C.No.24 of 2008 whereby the appellants four innumber, stood charged under Sections 341 and 302 of IPC, tried, foundguilty under Sections 341 and 302 read with 34 of IPC and awarded twomonths Simple Imprisonment under Sec.341 IPC and life imprisonmentalong with a fine of Rs.50000/- and default sentence under Sec.302read with 34 of IPC.2.Short facts necessary for the disposal of this appeal can bestated as follows:(a) P.W.1 is the mother of the deceased Murugesan. P.W.4 is theson-in-law of P.W.1. P.W.1 was a resident of Alivalam Villagesituated about 10 kilometers away from Tiruvarur. She was in the https://hcservices.ecourts.gov.in/hcservices/ practice of taking idlies from her place prepared and selling them infront of the Government Hospital, Tiruvarur. The deceased was anauto driver. On occasions he used to take idlies and sell the sameat that place. A-1 was the son of the owner of the canteen who wasrunning the business in front of the said hospital. A-2 to A-4 wereemployed therein. A-1 to A-4 used to sit in front of the hospital,and they used to tease the ladies who come to the hospital. (b) On the date of occurrence namely 24.12.2006, since P.W.1fell ill, she did not come to the regular business, and it was beingdone by the deceased. While he was doing so, at about 11.00 A.M., hefound all the accused persons committing eve-teasing. He questionedthe same. There was a wordy altercation in which the deceasedsnatched a mala from A-1 which was being worn by him. ImmediatelyA-1 challenged that he would see to that. P.W.4, who witnessed thatincident, phoned over to P.W.1 to come and take the deceased.Thereafter, P.W.4 left for home. (c) P.W.1 on receiving the message, rushed to Tiruvarur by bus.In the meanwhile, the deceased went to the native place; but, hecould not find his mother and then came back. At about 3.00 P.M.,when P.W.1 came in search of her son to the hospital, she found allthe four accused persons armed with veechu aruvals, and it was A-1who cut the deceased on the head and neck. A-4 cut him on the leftabdomen, and A-3 cut him on the chest. A-2 cut the deceased on theneck and left wrist. The same was witnessed by P.W.1 and also byP.Ws.2 and 3. There was a distressing cry. Immediately, all theaccused persons left the place of occurrence along with the weaponsof crime. The body of Murugesan was taken to the hospital in aserious condition. The Doctor examined and declared him dead. Theaccident register copy is marked as Ex.P8. (d) P.W.1 proceeded to the respondent police station and gave acomplaint, Ex.P1, on the strength of which P.W.11, the Sub Inspectorof Police, registered a case in Crime No.461 of 2006 under Sections341 and 302 of IPC. The printed FIR, Ex.P10, was despatched to theJudicial Magistrate concerned. (e) On receipt of the copy of the FIR, P.W.12, the Inspector ofPolice, took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P4, and also arough sketch, Ex.P11. Then, he recovered from the place ofoccurrence bloodstained earth, sample earth and also other materialobjects under a cover of mahazar. The place of occurrence wasphotographed through P.W.9, the Photographer, and the photos aremarked as M.O.7 series. Then the Investigator conducted inquest onthe dead body in the presence of witnesses and panchayatdars andprepared an inquest report, Ex.P12. He gave a requisition to thehospital authorities for the purpose of autopsy.(f) P.W.7, the Assistant Civil Surgeon, attached to theGovernment Hospital, Tiruvarur, on receipt of the said requisition,conducted autopsy on the dead body of Murugesan and has issued apostmortem certificate, Ex.P7, with his opinion that the deceased https://hcservices.ecourts.gov.in/hcservices/ would appear to have died of severe blood loss (haemorrhage) andshock due to injury to vital organ 1) brain with clots of blood.(g) Pending investigation, the Investigating Officer arrestedall the accused the next day at about 11.00 A.M. They came forwardto give a confessional statement. The same was recorded. A-1produced four aruvals, marked as M.O.4 series, which were recoveredunder a cover of mahazar, Ex.P3, in the presence of P.W.5 andanother. The accused were taken to the police station, and theirbloodstained clothes were recovered. They were sent for judicialremand. All the material objects were sent to the Court along with arequisition for analysis. Accordingly, they were subjected tochemical analysis as a result of which Ex.P13, the chemical analyst'sreport, and Ex.P14, the serologist's report, were received by theCourt. On completion of investigation, the Investigator filed thefinal report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 12 witnesses and also relied on 14 exhibits and20 material objects. On completion of the evidence on the side ofthe prosecution, the accused were questioned under Sec.313 of Cr.P.C.as to the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt and hence found them guilty and awarded thepunishment as referred to above. Hence this appeal at the instanceof the appellants.4.Advancing arguments on behalf of the appellants the learnedSenior Counsel Mr.R.Shunmugasundaram would submit that the case ofthe prosecution was that the occurrence has taken place at about 3.00P.M. On 24.12.2006, in front of the Government Hospital, Tiruvarur;that the prosecution has examined P.W.1 and other two witnesses aseyewitnesses; but P.Ws.2 and 3 have not supported the prosecution;that under the circumstances, what was available for the prosecutionwas that of P.W.1; that P.W.1 was actually the mother of thedeceased, and hence she was interested; that admittedly, during therelevant time, she was living at Alivalam Village situated 10 to 13kilometers away from Tiruvarur, the place of occurrence; that she wasactually a chance witness; that she could not have seen theoccurrence at all; that at one stage she would say that she hasstopped her business before one month, and at another stage she wouldsay that she was doing business till the time; that under thecircumstances, as regards carrying on the business, there was aninconsistent version given by her; that the case of the prosecutionwas that on the date of occurrence at about 11.00 A.M., there was anincident between the accused on the one side and the deceased on theother, and the same was witnessed by P.W.4, and immediately, P.W.4informed to P.W.1 to come to Tiruvarur and take her son, and that wasthrough a phone message; that P.W.1 has stated that she has receivedthe message; but, P.W.4 would say that he gave the message and it wasnot received by P.W.1, but by her daughter-in-law; and that there is https://hcservices.ecourts.gov.in/hcservices/ nothing to indicate that she would have been present at the spot;that the evidence of P.W.1 could not be believed for the simplereason that when she witnessed the occurrence in which her son wasbeing attacked by four persons with aruvals and they inflicted cutinjuries, even after that she did not come near the body or make anydistressing cry; and that this conduct of P.W.1 would clearlyindicate that she could not have been present at the spot. 5.Added further the learned Senior Counsel that had it been truethat P.W.1 was present at the place of occurrence, she would havetaken the body of her son inside the hospital; but, Ex.P8, theaccident register copy, and Ex.P9, the information, would clearlyindicate that it was one Murugan who brought him and not P.W.1; thatit would be indicative of the fact that she could not have beenpresent at all; that according to the prosecution, the occurrence hastaken place at about 3.00 P.M.; but, the case was registered by therespondent police at about 4.00 P.M. and the FIR has reached theJudicial Magistrate at about 11.30 P.M. night; that there was a delayof nearly 8 hours; that it would be quite clear that the case shouldhave been registered subsequently; that further the prosecution hadno explanation to offer for the delay that has occurred; that allwould indicate that P.W.1 after receiving the message that her sonwas murdered, should have come from the native place and should haveseen her son's dead body; that as far as P.W.4 was concerned, hisevidence was not useful to the prosecution case; that it is alsopertinent to point out that even P.W.8, the Head Constable, attachedto the Out-Post Police Station at Tiruvarur Government Hospital, hascategorically stated that on seeing the occurrence, which took place200 feet away from the police station, he immediately went to thehospital; that he never deposed that he found P.W.1 there; and thatthis would also clearly indicate that P.W.1 could not have beenpresent. 6.The learned Senior Counsel would add that though theInvestigator claimed that the statement of P.W.1 was recorded thevery day under Sec.161 Cr.P.C., it has reached the Court at the nighthours of the next day; that it is also claimed by the Investigatorthat all the four accused were actually arrested next morning atabout 11.00 A.M. and all the aruvals were recovered from them; thatit was a joint confession; that it was A-1 who, according to theInvestigator, produced all the aruvals, M.O.4 series; that accordingto the Investigator, P.W.5 was a witness for the alleged confessionand recovery of M.O.4 series; that if to be so, there could not havebeen taking P.W.5 to the police station; but the Investigator claimedthat after the accused were taken to the police station, theirbloodstained clothes were recovered from them, and it was sent to theCourt; but, there was no recovery mahazar or Form 95; that nothingwas produced before the Court; that the scientific evidence producedby the prosecution through chemical analyst's report and serologist'sreport would be of no use to the prosecution; that further, in theinstant case, when P.W.1's evidence was shrouded with all doubts andconfession and recovery became shaky, it would not be safe to convictthe accused; but the trial Court has taken an erroneous view, andhence, the judgment of the trial Court has got to be set aside andthe appellants be acquitted. https://hcservices.ecourts.gov.in/hcservices/

7.This Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.8.It is not in controversy that Murugesan, the son of P.W.1, wasdone to death in an incident that had taken place at 3.00 P.M. on24.12.2006 in front of the Government Hospital, Tiruvarur. Followingthe registration of the case under Sec.302 of IPC by P.W.11, the SubInspector of Police of the respondent police station, the case wastaken up for investigation by P.W.12, the Inspector of Police.Following the inquest made and preparation of the inquest report, thedead body was subjected to postmortem by P.W.7, the Doctor, pursuantto the requisition given by the Investigator, and he has given acategorical opinion as a witness before the Court and also throughthe contents of the postmortem certificate that he died of severeblood loss (haemorrhage) and shock due to injury to vital organnamely brain with clots of blood. Under the circumstances, the trialCourt felt no impediment in recording so and rightly too.9.In order to substantiate that the accused persons armed withdeadly weapons attacked the deceased and caused his deathinstantaneously, the prosecution marched three witnesses aseyewitnesses. P.Ws.2 and 3 have turned hostile. Hence, it cannot becommented that the prosecution had not examined independentwitnesses. It is true that the prosecution had the sole testimony ofP.W.1 who is happened to be the mother the deceased. It is wellsettled proposition of law that merely because of the relationship ofthe witnesses to the deceased, their evidence cannot be rejected;but, before acceptance, careful scrutiny test must be applied. Lawof evidence does not require number of witnesses, but would expectquality of evidence. In the instant case, though P.W.1 was thesolitary evidence, this Court is of the considered opinion that itinspired the confidence of the Court since it is cogent andacceptable. 10.According to P.W.1, she was carrying on the idly businessjust before the Government Hospital, Tiruvarur, every day; but, onthe date of occurrence, she could not come due to her illness, and atabout 11.00 A.M., she received a message from P.W.4, her son-in-law,that there was a quarrel between the accused and the deceased, andhence she can come and take him back. It is true that this messagewas not received by her, but by her daughter-in-law. P.W.4 hascategorically spoken to the fact that he gave the message. This partof the evidence remained unshaken since there was no cross-examination to that point from P.W.4. After receiving theinformation, according to P.W.1, she rushed to Tiruvarur through abus, and when she came to the spot, she was able to see theoccurrence. She has clearly narrated that all the four accusedpersons were armed with deadly weapons namely aruvals, and when shewas witnessing, they attacked him indiscriminately and caused thedeath. The contention put forth by the learned Senior Counsel forthe appellants that since P.W.1 is happened to be the mother of thedeceased, her conduct on seeing such an occurrence in which her son https://hcservices.ecourts.gov.in/hcservices/ was being attacked by number of persons with aruvals should be to gonearby or go to the rescue of her son or immediately lift the body;but, she has not done so, cannot be countenanced. In a givensituation, when there is an occurrence and that too a heinous crime,the frame of mind would differ from individual to individual. Now,in the instant case, she was an old lady, and she found four personsarmed with deadly weapons, and her son was actually being attacked.One can visualize the grip of psychic fear under which she was put atthat time. Merely because she has not gone to the rescue of thevictim or lifted the body, it cannot be stated that she could nothave seen the occurrence. On that ground, her evidence cannot bedoubted. 11.It is true that one Murugan had taken the body inside thehospital, and his name is mentioned in Ex.P8, the accident registercopy. The fact that the name of P.W.1 does not find place in Ex.P8,the accident register copy, or the information, Ex.P9, did not meanthat she has not witnessed the occurrence. It is pertinent to pointout that she was living in a place called Alivalam Village, which issituated 10 to 13 kilometers away from Tiruvarur. Now the case wasregistered within an hour by the respondent police and it was takenup for investigation immediately. It is true that the FIR hasreached the Judicial Magistrate at about 11.30 P.M. Admittedly, itwas a Sunday. Merely because there was delay in FIR reaching theJudicial Magistrate, the same by itself cannot be a reason to doubtthe prosecution case or reject the same. Further even in Ex.P1, thecomplaint, the entire incident is narrated, and the names of theaccused persons are mentioned. It is pertinent to point out thatthere was actually an incident in the morning hours, and theseaccused persons were teasing the ladies which was questioned by thedeceased. At that time, on coming to know about the same, P.W.4 hasintimated to P.W.1. Following the same, the occurrence has takenplace in the afternoon. So long as the evidence of P.W.1 isacceptable, there cannot be any impediment in recording a finding asto the guilt of the accused. 12.Apart from the above, in the instant case, the othercircumstances, which were fortunately in favour of the prosecution,were arrest of the accused the very next day. The Investigator hasarrested all the accused at about 11.00 A.M. on 25.12.2006, and theygave a joint confession. Pursuant to the same, M.O.4 series,aruvals, were actually recovered, and this particular aspect wasspoken to by P.W.5 whose evidence remained unshaken despite cross-examination. Hence the recovery of the weapons of crime pursuant tothe confessional statement given by the accused persons, in theconsidered opinion of the Court, would be indicative of the nexus ofthe crime with the accused. 13.Added circumstance was that all the material objects wereactually subjected to chemical analysis out of which two of theweapons were found to be with human blood, and the clothes which wererecovered found to be tallying with the blood group. The contentionput forth by the learned Senior Counsel for the appellants is thatthe clothes which were worn by the accused should have been recovered https://hcservices.ecourts.gov.in/hcservices/ in the presence of P.W.5, but not done so, and Form 95 or therecovery mahazar was not produced before the Court, and thus it wouldbe indicative of the irregularity committed by the Investigator atthe time of investigation. By this, it cannot be stated that theprosecution should suffer or an injustice has been caused. Under thecircumstances, the evidence put forth by the prosecution in theconsidered opinion of the Court was sufficient to hold that A-1 to A-4 were involved in the crime, and they attacked him indiscriminatelywith aruvals and caused his death instantaneously. Hence the act ofthe accused cannot but be termed only as murder. Unless and untilthey had got common intention, they could not have been with aruvalsbefore the hospital and could not have attacked the deceased at thattime and caused his death. The trial Court was perfectly correct inrecording a finding that they have murdered the deceased by sharingthe common intention. The judgment of the trial Court has got to beaffirmed since there is nothing to interfere with the same eitherfactually or legally.14.In the result, this criminal appeal fails and the same isdismissed confirming the judgment of the trial Court. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The District and Sessions Judge, Tiruvarur2.The Inspector of Police Town Police Station Tiruvarur. Crime No.461/20063.The Public Prosecutor, High Court, Madras.4.The Superintendent, Central Prison, Tirucharapally.5. The District Collector, Thiruvarur6. The Director General of Police, Santhome.7. The Section Officer, Criminal Section, High Court, Madras.+ 1 cc to Mr.S.Saravanakumar, Advocate, SR 54444.C.A.No.491 of 2009BV (CO)RH (19.11.09)