Murugan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 5.8.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANandTHE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMANCriminal Appeal No.59 of 2009Murugan.. Appellant/AccusedVs.State, rep. by Inspector of Police,Bargur Police Station,Dharmapuri District.(Crime No.19/1996).. Respondent/ComplainantPrayer: Appeal filed under Section 374(2) of Crl.P.C against thejudgment of conviction and sentence imposed on the accused inS.C.No.255 of 2007, dated 29.7.2008, on the file of AdditionalSessions Judge, Krishnagiri. For Appellant: Mrs.Jayasri BaskarFor Respondent : Mr.Mohammed Ali Jinna Additional Public ProsecutorJ U D G M E N T(Judgment of the Court was delivered by C. NAGAPPAN, J.) Appellant Murugan is the sole accused in Sessions CaseNo.255 of 2007 on the file of Additional Sessions Judge,Krishnagiri and he has preferred this appeal challenging theconviction and sentence imposed on him by judgment dated 29.7.2008 inthe case. For the sake of convenience, in this Judgment, theappellant will be referred to as accused. 2. Charges under Sections 302 and 307 IPC were framedagainst the accused. The learned Additional Sessions Judge foundthe accused guilty of the charges and convicted and sentenced him toundergo Life Imprisonment and to pay a fine of Rs.2000/-, indefault, to undergo Simple Imprisonment for three years for thecharge under Section 302 IPC and convicted and sentenced him to toundergo Rigorous Imprisonment for seven years and to pay a fine ofRs.1000/-, in default, to undergo Rigorous Imprisonment for eighteenmonths for the charge under Section 307 IPC and ordered the https://hcservices.ecourts.gov.in/hcservices/ substantive sentence of imprisonment to run concurrently.3. To prove its case, the prosecution examined P.Ws.1 to 13and marked Exs.P1 to P15 and M.Os.1 to 20. 4. Briefly the prosecution case is stated as follows. PW.2 Amsa alias Amsaveni is the wife of the accused Muruganand deceased Malliga is their eldest daughter. Malliga got marriedat the age of 17 and lived for eight years with her husband andthey had two daughters and two sons. PW.3 Kalpana is theiryoungest daughter. Malliga quarrelled with her husband andmother-in-law and plunged in a Well as a result of which shebecame paralyzed and she could not walk independently. Herhusband gave her a sum of Rs.17,000/- towards maintenance andmarried another woman. Malliga was living with her parents andPW.3 Minor Kalpana was living with her. Accused Murugan,unable to maintain Malliga, used to quarrel with her and his wifePW.2 Amsaveni by consuming liquor. On 30.4.1996 at 10 pm, accused Murugan consumed liquorand came home and cut Malliga on the neck with MO.1 Knife andPW.2 Amsaveni tried to prevent further attack and the accusedcut her on the neck, lower jaw and right shoulder with MO.1Knife. On hearing the noise, PW.3 Kalpana woke up and saw theaccused standing with the Knife. The accused Murugan threw theKnife on the ground and bolted the door of the house from outsideand went away. PW.3 Kalpana was standing near the windowlooking for help and on hearing her cry, Perumal came and openedthe door and PW.1 Prakash went there and saw Malliga lying dead andPW.2 Amsaveni struggling for life with bleeding injuries. PW.3Kalpana went to inform her uncle PW.4 Dr.Venkatesan. On hearingthe occurrence, PW.4 Dr.Venkatesan came to the occurrence place andsaw Malliga lying dead and he gave first aid to his injuredsister PW.2 Amsaveni and took her to C.M.C. Hospital, Vellorein the car. PW.1 Prakash wrote Ex.P1 Complaint and went to BargurPolice station and PW.8 Head Constable Narasimhan received thesame and registered a case in Crime No.90/1996 under Sections 307and 302 IPC and prepared Ex.P7 First Information Report anddespatched the same to the Court and higher officers. P.W.11 Inspector Asokan received the Express Report and wentto the occurrence place at 11 am and prepared Ex.P2 Observationmahazar in the presence of PW.5 Chinnaraj and another and Ex.P9is the Rough Sketch drawn by him. He recovered M.O.1 Knifeand seized MO.2 Blood stained cement floor, MO.3 Ordinary cementfloor, MO.4 Blood stained blue blotting paper, MO.5 Towel, MO.6Blood stained red colour blouse, MO.7 Blood stained Mat, MO.8 https://hcservices.ecourts.gov.in/hcservices/ Blood stained Thali, MO.9 Blood stained mat, MO.10 Blood stainedbrown colour blouse, MO.11 Blood stained pillow, MO.12 Bloodstained bed-sheet, MO.13 Blood stained coconut tree stick and MO.14Blood stained bamboo stick from the occurrence place under Ex.P3mahazar in the presence of said witnesses. PW.10 Dr.Binu Pratap Thomas examined PW.2 Amsaveni on1.5.1996 at 11.30 am at C.M.C. Hospital, Vellore and found thefollowing."1. One incised laceration on right lower 6 x 3 x 2 cm with fractureof mandible.2. Incised laceration in the middle of the right side neck 15 x5 x 3 cm with laceration C-5, C-6 and C-7 nerve roots of brachialplexus.3. Incised laceration on the right shoulder with laceration ofdeltoid and Fracture of acromion distal 1/4th and fracturedistal 1/4th clavicle.Ex.P8 is the Wound Certificate issued by him. P.W.11 Inspector Asokan conducted inquest on the body ofMalliga from 12.45 pm to 3.25 pm in the presence of panchayatarsand prepared Ex.P10 Inquest Report. At that time, he examined PW.1Prakash, PW.3 Kalpana and some other witnesses and recorded theirstatements. He gave Ex.P4 Requisition to conduct post-mortem andsent the body through PW.7 Constable Dharman. P.W.6 Dr.Kalaivani conducted autopsy on the body of Malligaat 4.10 PM on 1.5.1996 and found the following:1. Abrasion of 2 cm x 3 cm on the right side of the jaw.2. Lacerated injury measuring 7 cm x 6 cm x 5 cm bone deep rightside of the neck exposing the cervical vertebra and spinal cord,arteries and veins and cut edges of the muscles of the neck.3. Two bed sores measuring 5 cm x 6 cm on both buttocks.Internal examination. Hyoid bone intact. Heart chamber empty. 150 gms. C/s. Pale Lungs Rt 250 grm. Lt 220 grm. C/s. Pale.Liver 900 grms. C/s. Pale. https://hcservices.ecourts.gov.in/hcservices/ Stomach empty. Spleen 100 grms. C/s. Pale.Each kidney weigh 100 grm. Uterus normal. C/s. Cavity empty.Bladder empty. Skull bones intact. Brain 1000 grms. C/s. Pale."She expressed opinion that the deceased died due to shock andhaemorrhage as a result of injury to the vital organ, 12-15 hoursprior to autopsy. Ex.P5 is the Post-mortem Certificate issued byher. P.W.11 Inspector Asokan examined PW.5 Chinnaraj and someother witnesses on 1.5.1996 and recorded their statements. Heexamined PW.7 Constable Dharman, PW.8 Head Constable Narasimhan,PW.9 Duraisami and some other witnesses on 2.5.1996 and recordedtheir statements. He searched the accused Murugan, but could notapprehend him. On 12.5.1996, he examined PW.2 Amsaveni and recordedher statement. He gave Ex.P11 Requisition to send the propertiesfor chemical examination and they were sent by Exs.P12 and P13Letters of the Court. Exs.P14 and P15 Chemical Examiner reportswere received in Court. He examined PW.6 Dr.Kalaivani on 4.7.1996and recorded her statement. He was transferred and PW.12 InspectorJagannathan continued the investigation and examined PW.4Dr.Venkatesan on 23.12.1996 and recorded his statement. He alsoexamined PW.10 Dr.Binu Pratap Thomas and recorded his statement.He completed the investigation on 13.1.1997 and filed final reportagainst the accused. The accused Murugan was absconding and PW.13Inspector Aruljothi Arasu arrested the accused on information at 4pm on 6.10.2007 near Basavanakoil in Krishnagiri to Kuppam Road andsent him for judicial remand. 5. The accused was questioned under Section 313 Cr.P.C andhe denied complicity. No witness was examined and no document wasmarked on his side. 6. The Trial Court found the accused guilty of the chargesand sentenced him as stated earlier. Challenging the same, theaccused has preferred the present appeal. 7. The learned counsel for the appellant/accused contendsthat P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana, who are the eyewitnesses, were recalled on the petition filed by accused Muruganand further cross-examined on 24.4.2008 and in their testimonies theyhave stated that their earlier testimonies given on 2.4.2008 wereunder duress on account of threat by the police and accused Muruganhad not inflicted the injuries and they do not know as to who theassailant was and the counsel further contends that their testimoniesare helping the defence and the benefit of such evidence should go to https://hcservices.ecourts.gov.in/hcservices/ accused since they were not treated as hostile and eschewing theabove testimonies, there is no evidence on record to implicateaccused Murugan in the case and hence, the conviction and sentenceimposed on accused are liable to be set aside. In support of hersubmission, she placed reliance on the decision of the Apex Court inKUNJU MUHAMMED ALIAS KHUMANI AND ANOTHER V.. STATE OF KERALA [2004SCC (CRI) 1425]. Per contra, the learned Additional PublicProsecutor submits that P.W.2 Amsa @ Amsaveni and P.W.3 Kalpanawere examined and cross-examined on 02.4.2008 and in theirtestimonies they have supported the prosecution case andsubsequently, accused Murugan filed a petition under Section 311CrPC to recall and further cross-examine them and that petition wasallowed by the trial Court on 11.4.2008 and they were further cross-examined on 24.4.2008 and only in the further cross-examination, thewitnesses have resiled from the previous testimonies and theirprevious testimonies cannot be doubted and the conviction andsentence imposed on accused Murugan are sustainable. In support ofhis submission, the learned Additional Public Prosecutor relies onthe decision of the Apex Court in NISAR KHAN ALIAS GUDDU AND OTHERSV.. STATE OF UTTARANCHAL [(2006) 2 SCC (CRI) 568]. 8. P.W.2 Amsa @ Amsaveni is the wife of accused Muruganand the deceased Malliga is their eldest daughter. Malliga was givenin marriage when she was 17 and she lived with her husband for eightyears begetting two sons and two daughters and P.W.3 Kalpana istheir youngest daughter. On account of misunderstanding with herhusband and mother-in-law, Malliga plunged into Well, as a result ofwhich she was paralysed and unable to walk. Her husband desertedher by paying a maintenance amount of Rs.17,000/- and left theiryoungest daughter, namely, P.W.3 Kalpana, in her custody. Malligaalong with her daughter P.W.3 Kalpana was living with her parents.Unable to maintain Malliga, accused Murugan used to quarrel with herand P.W.2 Amsa @ Amsaveni often by drinking liquor. P.W.2 Amsa @Amsaveni in her testimony given on 2.4.2008 has stated that accusedMurugan came drunk to the house at 10.00 p.m. and cut Malliga withM.O.1 Knife on the neck and she tried to prevent the further attackand accused Murugan cut her on the neck, lower jaw and right shoulderwith M.O.1 Knife and threw the knife on the ground and went away bybolting the door from outside. P.W.3 Kalpana in her testimony on2.4.2008 has deposed that on the occurrence night, she went to sleepand on hearing the noise, she woke up and saw her mother andgrandmother lying with bleeding injuries and the grandfather, namely,accused Murugan, was standing with knife in his hand and the accusedwent away by bolting the door from outside and she was peepingthrough the window and hearing her cry, somebody came and opened thedoor and she went to inform her uncle, P.W.4 Dr. Venkatesan. P.W.1Prakash is a neighbour and he has stated that he heard the cry andreached the occurrence place and saw Malliga lying dead with injuriesand P.W.2 Amsa @ Amsaveni struggling for life with bleeding injuriesand on hearing the occurrence, P.W.4 Dr. Venkatesan came to the https://hcservices.ecourts.gov.in/hcservices/ occurrence place and took P.W.2 Amsa @ Amsaveni to the hospital andhe went to Bargur Police Station and lodged Ex.P1 Complaint. 9. When the trial is pending, accused Murugan filed apetition under Section 311 CrPC to recall P.W.2 Amsa @ Amsaveni andP.W.3 Kalpana and to further cross-examine them and no objection wasraised by the prosecution and that petition was allowed on 11.4.2008and P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana were further cross-examined on 24.4.2008 and P.W.2 Amsa @ Amsaveni in her furthercross-examination has stated that her husband, namely, accusedMurugan, had gone to her sister-in-law house at Kannadahallivillage on the occurrence night and stayed there and the electricbulbs in their house were not burning on the occurrence night andonly a chimney was burning and her vision was dull and she could notidentify the assailant, who attacked her and her daughter, and therewas threat by the police and her earlier testimony was given underduress. P.W.3 Kalpana in her further cross-examination on 24.4.2008has stated that she was sleeping on the occurrence night and shenever knew as to who the assailant was and her earlier testimony wasas a result of tutoring by the police. It is really surprising tonote that the prosecution did not treat P.W.2 Amsa @ Amsaveni andP.W.3 Kalpana as hostile witnesses on 24.4.2008 and did not seek thepermission of the Court for declaring them as such. The fact remainsthat P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana were never declared ashostile witnesses. In the decision in NISAR KHAN ALIAS GUDDU ANDOTHERS V.. STATE OF UTTARANCHAL (stated supra), relied on by thelearned Additional Public Prosecutor, the prosecution witnesses wererecalled on petition and further examined after lapse of more thanone year and they resiled from the previous statements and weredeclared hostile and in such circumstances, the Apex Court acceptedthe earlier testimonies which supported the prosecution story. Theabove decision does not apply to the facts of the present case, sincethe eye witnesses here were not declared as 'hostile' by theprosecution. On the other hand, in the decision in KUNJU MUHAMMEDALIAS KHUMANI AND ANOTHER V.. STATE OF KERALA (stated supra),relied on by the learned counsel for the appellant, the Apex Courthas laid down that when the witness has not been treated hostile bythe prosecution, and even then his evidence helps the defence, thebenefit of such evidence should go to the accused and not to theprosecution. In the present case, the testimonies of P.W.2 Amsa @Amsaveni and P.W.3 Kalpana have to be considered as a whole and ifit is so considered, the resultant position is that they supportedthe case of the prosecution in their testimonies given on 02.4.2008and in their further testimonies given on 24.4.2008 declared theirearlier testimonies as given under duress by the threat of policeand the witnesses have further stated that they did not know as towho the assailant was. The benefit of this evidence should go to theaccused since they were not declared hostile. In short, P.W.2 Amsa @Amsaveni and P.W.3 Kalpana are not reliable witnesses and theirtestimonies are unworthy of credence. https://hcservices.ecourts.gov.in/hcservices/

10. Malliga died of Homicidal Violence is established bythe testimony of the post-mortem doctor. P.W.6 Dr. Kalaivaniconducted autopsy and she has testified that she found a laceratedinjury on the neck exposing the cervical vertebra and spinal cordand arteries and veins were cut and she has expressed opinion thatthe deceased died due to shock and haemorrhage as a result of injuryto the vital organ. Ex.P5 is the post-mortem certificate issued byher. Accepting her testimony, it is clear that Malliga died ofinjury sustained in the occurrence. 11. Though M.O.1 Knife is said to have been recovered fromthe occurrence place by the Investigation Officer in the presence ofwitnesses under Ex.P3 Mahazar, it is not established that it is theweapon of offence. There is no acceptable evidence available onrecord to implicate accused Murugan in the case and the prosecutionhas failed to prove the charges framed against him. The convictionand sentence imposed by the trial Court are liable to be set aside.12. In the result, the Criminal Appeal is allowed andthe conviction and sentence imposed on the Appellant/Accused Muruganin Sessions Case No.255 of 2007 on the file of the AdditionalSessions Judge,Krishnagiri,are set aside and the Appellant/AccusedMurugan is acquitted of all the charges and the fine amountpaid, if any, is to be refunded to him. The Appellant/Accused Muruganis directed to be released forthwith if his custody is not requiredin any other case.Sd/Asst. Registrar/true copy/Sub Asst.Registrarvks/pbTo1. The Addl. Dist. & Sessions Judge, Krishnagiri.2. - do – through the Principal Sessions Judge, Krishnagiri.3. The Superintendent of Prison, Central Prison, Vellore.4. The Inspector of Police, Bargur Police Station, Krishnagiri.5. The Director General of Police, Mylapore, Chennai 4.6. The District Collector, Krishnagiri.7. The Public Prosecutor, High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras 104.+ 1 cc to Mr.Jaya Sri Baskar,Advocate,SR.35930Crl.A.No. 59 of 2009MBS(CO)EM/19.8.09