Kathirvelu v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 04.12.2009CORAMTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAHCRL.A.No.533/20091.Kathirvelu2.Senthilnathan3.Prakash..Appellants/A1 to A3VsState by the Inspector of Police Shevapet Police StationSalem District...Respondent[Cr.No.2075 of 2006]Appeal filed u/s.374[2] Cr.P.C., against the Judgment ofconviction and sentence passed by the learned I Additional SessionsJudge, Salem in the order dated 04.08.2009 in SC.No.211 of 2008.For Appellants:Mr.N.A.RavindranFor Respondent:Mr.Babu Muthu Meeran, Addl. Public ProsecutorJUDGMENT[Judgment of the court was delivered by M.CHOCKALINGAM, J.]Challenge is made to the judgment of the learned I AdditionalSessions Judge, Salem made in SC.No.211/2008 dated 04.08.2009 wherebythe accused, three in number, stood charged, tried and found guiltyand were awarded the punishments as follows:- https://hcservices.ecourts.gov.in/hcservices/ Rank of theAccusedConviction under sectionSentence AwardedA1341 and 302 IPC1]to undergo one monthsimple imprisonmentfor the offenceu/s.341 IPC.2]To undergo lifeimprisonment and pay afine of Rs.10,000/-and in default toundergo one yearrigorous imprisonment.A2341 r/w 34 IPC and 302 IPC1]to undergo one monthsimple imprisonmentfor the offenceu/s.341 read with 34IPC.2]To undergo lifeimprisonment and pay afine of Rs.10,000/-and in default toundergo one yearrigorous imprisonment.A3341 r/w 34 IPC and 302 IPC1]to undergo one monthsimple imprisonmentfor the offenceu/s.341 read with 34IPC.2]To undergo lifeimprisonment and pay afine of Rs.5,000/- andin default to undergoone year rigorousimprisonment.2.Short facts necessary for the disposal of the appeal can bestated as follows:-[a]P.W.1 is a resident of Kalarampatti village and is theyounger brother of the deceased Rajendran. During the relevant time,P.W.1 was living with the parents and the said deceased developedillicit intimacy with one Parvathy, wife of A1 and both were livingin a separate house. On 08.11.2006 at about 7.00 p.m. when P.W.1 and https://hcservices.ecourts.gov.in/hcservices/ the deceased went to Geetham Coffee Shop for taking tea, all theaccused came there suddenly. At that time, P.W.2, the cashier of thesaid Shop was also present. A1 uttering the words to the deceased,"why are you quarreling with my children and me even after elopingwith my wife?", stabbed the deceased with a knife on the chest whileA2 and A3 facilitated the said act of A1 by catching hold of thedeceased.Thereafter, A2 snatched the knife from A1 and attacked thedeceased on the right and left side of the ribs. The deceased felldown with severe injuries. Immediately, A1 took a big brick stone[M.O.1] and dropped the same on the head of the deceased. Theoccurrence was witnessed by P.Ws.1 and 2. When the deceased raised adistressing cry, the accused fled away from the scene of occurrence. [b]P.W.1, after informing the family members about theoccurrence, went to the respondent Police Station where P.W.9, theSub-Inspector of Police was on duty at the relevant point of time.P.W.1 gave a complaint under Ex.P.1 at about 20.30 hours on thestrength of which a case came to be registered in Cr.No.2075/2006 forthe offences u/s.341 and 302 IPC. Ex.P.11, the Express FIR wasdespatched to the court. [c]P.W.11, the Inspector of Police, on receipt of the copy ofthe FIR, took up investigation, went to the scene of occurrence,prepared an Observation Mahazar-Ex.P.2 and a rough sketch-Ex.P.14 inthe presence of witnesses. He examined the witnesses and recordedtheir statements. He also recovered M.Os.1,3 and 4-blood stainedbrick stone, blood stained earth and sample earth respectively underthe cover of Mahazars-Ex.P.3 and 4 respectively. He also heldinquest on the dead body of the deceased in the presence of thewitnesses and panchayatdars and prepared Ex.P.15, the Inquest Report.He also sent the dead body for postmortem along with a requisition,Ex.P.12.[d]P.W.10, the doctor attached to the Government MohanKumaramagalam Medical College, Salem, received the requisition underEx.P.12 from the Inspector of Police on 09.11.2006 and conductedautopsy on the dead body of the deceased at about 10.10 a.m. Ex.P.13is the Post Mortem Certificate wherein the doctor has opined that thedeceased would appear to have died of head injury sustained by him.[e]In continuance of the investigation, on 09.11.2006 at about10.00 a.m. the Inspector of Police arrested the accused 1 to 3 inthe presence of witnesses and A1 voluntarily came forward to give aconfessional statement, the admissible part of which is marked asEx.P.5 pursuant to which M.O.2 [knife] wasrecovered in the presenceof witnesses under a cover of Mahazar, Ex.P.6. The accused were sentfor judicial remand. All the material objects recovered from theplace of occurrence and from the dead body and the material objectsrecovered pursuant to the confessional statement of A1, weresubjected to chemical analysis pursuant to the requisition which https://hcservices.ecourts.gov.in/hcservices/ resulted in two reports, viz., Exs.P.8 and 9, the Chemical AnalystReport and the Serologist Report respectively.[f]On completion of investigation and filing of the finalreport, the case was committed to Court of sessions; and necessarycharges were framed and in order to substantiate the charges, theprosecution examined 12 witnesses [P.Ws.1 to 12], marked 18 exhibits[Exs.P.1 to 18] and produced 13 material objects [M.Os.1 to 13]. 3.When the accused were questioned u/s.313 Cr.P.C., as to theincriminating circumstances found in the evidence of the prosecutionwitnesses against them, they denied them as false and no defencewitness was examined and no documents were marked. Hearing thearguments advanced on either side and also considering the materialsavailable, the trial court took a view that the prosecution hasproved its case beyond reasonable doubt and thus, rendered thejudgment of conviction and sentence as against the appellants asstated supra. As against the said conviction and sentence, theaccused/appellatns [A1 to A3] have preferred the above appeal.4.Advancing the arguments on behalf of the appellants/A1 to A3,the learned senior counsel for the appellants would submit that inthe instant case, the prosecution has miserably failed to prove itscase beyond reasonable doubt. In order to prove the act of theaccused, the prosecution has marched P.Ws.1 and 2 as eyewitnesses tothe occurrence. According to the prosecution, the occurrence hadtaken place at about 7.00 p.m. on 08.11.2006 before Geetham CoffeeShop and it is claimed by P.W.1 that he gave the complaint, Ex.P.1 toP.W.9, the Sub-Inspector of Police at about 9.30 p.m. But, it is amatter of surprise to note that the case was registered by P.W.11, atabout 8.30 p.m. and thus, the case has been registered even prior tothe receipt of Ex.P.1-complaint. It is further contended that P.W.4,the Village Administrative Officer, has deposed that immediately oncoming to know about the occurrence at about 6.45 p.m., he visitedthe place of occurrence at 7.00 p.m. and at that time, the Inspectorof Police was also present at the scene. All would go to show thatthe occurrence should have taken place much earlier.5.The learned counsel for the appellants contended that P.Ws.1and 2 claimed that they witnessed the occurrence. But, in theObservation Mahazar, Ex.P.2, it is has been stated that theoccurrence has taken place just in front of a mutton stall and thus,both the eyewitnesses, viz., P.Ws.1 and 2 could not have seen theoccurrence at all and in the absence of the evidence of these twowitnesses, the prosecution has nothing more to offer to prove itscase.6.Learned counsel for the appellants further contended thatthree types of injuries were noticed by P.W.10, the Post Mortemdoctor, viz., abrasions, lacerations and incised wounds, which were https://hcservices.ecourts.gov.in/hcservices/ 13 in number. But, P.W.1 accounted only for three injuries and thus,the ocular testimony of P.W.1 was not consistent with the medicalevidence. It is also contended that the alleged arrest and recoveryof M.O.2-knife and the blood stained shirts, would by itself, not besufficient to accept the prosecution case or to sustain a conviction.Learned counsel also submitted that insofar as A3, no overt act isattributed to him and hence, only a false accusation is made againsthim.7.The learned counsel in the second line of argument wouldcontend that there is nothing to indicate that the accused had sharedthe common intention or A1 had the intention to cause the death ofthe deceased and the injuries that were caused by A2 were only on theflank and the doctor, P.W.10 has opined categorically that the deathwas due to head injury sustained by the deceased and the same wasactually caused by A1. Under such circumstances, A2 cannot beattributed with any attack which was fatal to cause the death of thedeceased and there is also nothing to indicate that A2 had any commonintention or he has shared the same. If the court takes the viewthat the prosecution has proved the factual position, then the act ofA1 would not attract the penal provision of murder since he hadattacked the deceased due to provocation as his wife was being keptby the deceased and apart from that, there were also frequentquarrels between the deceased and A1 and insofar as A2, he has causedonly simple injuries and the injuries are not fatal and these aspectshave got to be considered by this court. But, the trial courtdespite the above discrepancies, took an erroneous view that theprosecution has proved its case beyond reasonable doubt and awardedthe conviction and sentence to the appellants as stated supra andthey are entitled for acquittal in the hands of this court.8.Heard the learned Additional Public Prosecutor on the abovecontentions and the court paid its anxious consideration on thesubmissions made on either side.9.It is not in controversy that one Rajendran, the elder brotherof P.W.1, following an incident that took place at about 7.00 p.m. on08.11.2006, was done to death. Following the registration of thecase in Cr.No.2075/2006 for the offence u/s.341 and 302 IPC, theinvestigation was taken up by the Inspector of Police, P.W.11 andafter conducting the inquest, the dead body was sent for postmortem.P.W.10-the doctor attached to the Government Mohan KumaramagalamMedical College Hospital, Salem, has given his opinion that thedeceased would appear to have died of the head injury sustained byhim. The doctor has given his opinion as a witness before the courtand also through Ex.P.13-the Post Mortem Certificate to that effect.The death of the deceased due to homicidal violence, as put forwardby the prosecution was never disputed by the appellants before thetrial court or before this court and the trial court did not feel anyimpediment in recording so and it has got to be affirmed. https://hcservices.ecourts.gov.in/hcservices/

10.In the instant case, in order to prove the charges againstthe accused, the prosecution examined P.Ws.1 and 2 as eyewitnessesbefore the trial court. The comment made by the learned counsel forthe appellants in respect of the evidence of P.Ws.1 and 2 cannot beaccepted for the ensuing reasons. P.W.1 has categorically deposedthat he accompanied his brother, the deceased and went to GeethamCoffee shop and the occurrence has taken place just in front of theshop. A perusal of Exs.P.2 and P.14, the Observation Mahazar and therough sketch, would clearly indicate that the mutton stall and theGeetha Coffee Shop are situated adjacent to each other and there wasall occasion available for P.W.2, the cashier, who was sitting infront of the Geetham Coffee Shop, to witness the occurrence. P.W.1also has categorically deposed that A1 uttering the words, stabbedthe deceased on his chest and in that process, the deceased fell downimmediately with severe injuries. A2 also snatched the knife fromthe hands of A1 and stabbed him on this flank and not satisfied bythe earlier act, A1 took a big brick stone and dropped on the head ofthe deceased. From the perusal of the evidence of P.W.10, thedoctor, it is evident that the injury sustained by the deceased onhis head was fatal. Further, as rightly pointed out by the learnedcounsel for the appellants that insofar as A3, the evidence putforward by the prosecution that he also facilitated the crime bycatching hold of the deceased, does not seem to be sound. He may bea passive spectator and that might be a reason to rope him in thecrime. 11.Insofar as A2, there is nothing to indicate that there wasany common intention or A2 shared that intention. At the same time,there is evidence to indicate that he snatched the knife from thehands of A1 and attacked the deceased on the flank. But thecorresponding injury was found to be simple and it is not thedoctor's opinion that the deceased died out of cumulative injuriessustained by him. But, his evidence was clear to the effect that theinjury on the head was fatal to the deceased who succumbed to thesame and the said injury was caused by A1. The act of A1 was thatoriginally, he stabbed the deceased with knife and when the deceasedfell down, he took the big brick stone and dropped it on the head ofthe deceased, which would clearly indicate that he acted with anintention to cause the death. Hence, the act of A1 cannot but betermed as murder.12.Insofar as A2, he has caused injuries on the flank withoutsharing any common intention and such act is punishable u/s.324 IPCand awarding 3 [three] years rigorous imprisonment would meet theends of justice. Insofar as A3 is concerned, the court is unable tosee any evidence to sustain the conviction.13.Accordingly, the conviction and sentence imposed by the trialcourt on A1 under Sections 341 and 302 IPC are confirmed. The https://hcservices.ecourts.gov.in/hcservices/ conviction and sentence imposed on A2 under Sec.302 IPC are set asideand instead he is convicted under Sec.324 IPC and is directed toundergo Rigorous Imprisonment for 3 (three) years. The fine imposedby the trial court will hold good. The period of sentence alreadyundergone by the 2nd appellant/A2 shall be given set off. A2 isacquitted of the charge u/s.341 r/w 34 IPC. Insofar as A3, theconviction and sentence imposed by the trial court for the offenceu/s.341 r/w 34 IPC and 302 IPC are set aside and he is acquitted ofthe charges leveled against him. The 3rd appellant/A3 is directed tobe released forthwith unless his presence is required in connectionwith any other case. The fine amount, if any paid, will be refundedto him.14.In the result, this Criminal Appeal is partly allowed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarapTo1.The I Additional Sessions Judge Salem District.2. -do- Through The Principal Sessions Judge, Salem.3. The Judicial Magistrate No.III, Salem.4. -do- Through Chief Judicial Magistrate, Salem.5. The District Collector, Salem.6. The Director General of Police, Mylapore, Chennai - 4.7.The Inspector of Police Shevapet Police Station Salem District. https://hcservices.ecourts.gov.in/hcservices/

8. The Public Prosecutor, High Court, Madras.9. The Superintendent, Central Prison, Coimbatore.Copy to The Section Officer,Criminal Section,High Court, Madras.1 cc To Mr.N.A.Ravindran, Advocate, SR.66225.Crl.A.No.533 of 2009 JRG(CO)RVL 16.12.2009