Jagadeesan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.12.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.696 of 20091. Jagadeesan2. Arun @ Arul @ Arunkumar.. Appellants/Accused 2 to 4Vs.State by The Inspector of Police,Hasthamptti Police Station,Salem District(Cr.No.1962 of 2004).. Respondent/ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned First Additional Sessions Judgeof Salem made in S.C.No.324 of 2006 dated 28.11.2007.For Appellant : Mr.S.SureshFor Respondent : Mr.Babu Muthu Meeran, APPJ U D G M E N T(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the I Additional SessionsDivision, Salem made in S.C.No.324 of 2006 whereby these twoappellants/A2 and A4 along with other accused ranked as A1 and A3stood charged, tried and found guilty as follows:AccusedChargesFindingsSentenceA-1148 IPC Guilty1 year R.IA-2 to A-4147 IPCGuilty6 months R.I.each https://hcservices.ecourts.gov.in/hcservices/ AccusedChargesFindingsSentenceA-1302 IPCGuiltyLifeimprisonmentalong with fineof Rs.20,000/-i/d 1 year R.I.A-2 and A-3302 r/w 114 IPCGuiltyLifeimprisonmentalong with fineof Rs.20,000/-i/d 1 year R.I.eachA-4302 r/w 149 IPCGuiltyLifeimprisonmentalong with fineof Rs.20,000/-i/d 1 year R.I.A-4307 IPCGuilty7 years R.Ialong with fineof Rs.5000/- i/d 6months R.I.A-1to A-3307 r/w 149 IPCGuilty7 years R.Ialong with fineof Rs.5000/- i/d 6months R.I.eachThe sentences are ordered to run concurrently.2. The short fact necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 was the resident of Gorimedu Nellikadu Mariamman koilStreet. On 31.10.2004, P.Ws. 2 and 5 went to Rohini theatre, atChinnathirupathi to witness a film. During interval, Appu hit onP.W.5 and the same was questioned by P.Ws.2 and 5. At that time, thesaid Appu and others had beaten them. Immediately, P.Ws. 2 and 5 wenthome and informed it to P.W.1 at about 9.15 p.m. On hearing this,P.W.1 along with P.Ws. 2 and 5, P.Ws. 3 and 4 and the deceased wentto the theatre and they were waiting outside the northern gate ofthe Rohini theatre. After the film was over, A1 to A4 and thejuvenile accused in whose respect the case was split up, came out ofthe theatre. The deceased Karthikeyan questioned A1 why they had beatP.Ws. 2 and 5. Immediately, A1 asked the other accused to catch holdof the deceased. A2 and A3 caught hold of the deceased and A1 took aknife and stabbed him twice on the stomach. When P.W.4 intervened,he was caught hold by A4 and the juvenile accused and the other https://hcservices.ecourts.gov.in/hcservices/ accused by name Negro @ Jayakumar stabbed him. When there wasdistress cry and crowd gathered, all the accused fled away from theplace of occurrence. (b) The deceased was first taken to Salem Medical Centre at10.30 p.m. where P.W.10 doctor, after giving initial treatment toldthe witnesses to take the severely injured Karthikeyan to theGovernment Hospital since his condition was very critical.Thereafter, he was taken to Shanmuga Hospital where he was treated byP.W.11 doctor, at 11.30 p.m. where the doctor advised the witnessesto take him to the Government Hospital. Accordingly, the otherwitnesses took him to the Government Hospital, Salem, where he wasdeclared dead at about 12.30 a.m. (c) P.W.4 was taken to Salem Ruthramoorthy Hospital whereP.W.12-doctor gave initial treatment and the doctor asked thewitnesses to take him to the Government Hospital. The accidentregister copy in respect of P.W.4 was marked as Ex.P.11.(d) P.W.1 proceeded to Hasthampatti Police Station and gaveEx.P1, report to P.W.16 Sub- Inspector of Police. On the strength ofEx.P1, report, a case came to be registered in Crime No.1962/2004.under sections 147, 148, 341, 307 and 302 I.P.C. The F.I.R. Copy,Ex.P.21 was dispatched to Court. (e) On receipt of the copy of F.I.R., P.W.18 Inspector of Policetook up investigation, proceeded to the spot, made an inspection andprepared an observation mahazar Ex.P.2 and also drew a rough sketchEx.P.25. The dead body was photographed through P.W.14 photographer.The photographs and the negatives were marked as Exs.P15 & P16series respectively. Following the inquest made on the dead body, theinvestigating officer prepared Ex.P.26, inquest report in thepresence of witnesses. (f) The dead body was subjected to post mortem. P.W.17-doctor, attached to Government Hospital, Salem conducted autopsy onthe dead body of the deceased Karthikeyan and gave his opinion inEx.P.24, post mortem certificate that the deceased died out of shockand haemorrhage due to stab injury to right lung and liver. (g) Pending investigation, A1 and the juvenile accused werearrested and they gave confessional statement and the same wasrecorded. The admissible part of the confessional statement of A1 wasmarked as Ex.P.5, pursuant to which he produced a knife and a bloodstained shirt which were recovered under a cover of mahazar. Theother accused A2, A3 and A4 were also arrested and they were alsosent for judicial remand. All the material objects recovered from theplace of occurrence, from the dead body and also the material objectsrecovered from the accused which were produced pursuant to theconfession statement were subjected to chemical analysis whichbrought forth two reports viz., chemical report Ex.P19 and theserologist report Ex.P.20. On completion of the investigation, theinvestigating officer filed a final order.(h) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 18 witnesses and relied https://hcservices.ecourts.gov.in/hcservices/ in 26 exhibits and 14 material objects. On completion of the evidenceon the side of the prosecution, the accused were questioned undersection 313 Cr.P.C. They denied them as false. No defence witness wasexamined. The Court heard the arguments advanced on either side andtook the view that the prosecution has proved its case beyondreasonable doubt and found the accused guilty and rendered thejudgment of conviction and sentence as referred to above. Hence,these appeals at the instance of A2 and A4.3. Advancing the argument on behalf of the appellants, learnedcounsel would submit that in the instant case, P.Ws. 1 to 6 wereshown as eye-witnesses. As per the prosecution, P.Ws. 2 and 5 wentto Rohini theatre to witness a film and during the intervalat 8.30 p.m., they were attacked by the accused and they came homeand reported to P.W.1 and P.W.1 along with 5 others and the deceasedwent to the theatre to question the conduct of the accused and thus,the incident had taken place. If really such and incident had takenplace at 8.30 p.m., in which P.Ws.2 and 5 were attacked, they wouldhave gone to the Police Station and would have given a complaint butno such complaint was given. The prosecution has come with a storyas if P.Ws. 2 and 5 have gone to the house of P.W.1 and reported tohim. 4. Learned counsel would further add, in the instant case,according to the prosecution, Karthikeyan was stabbed to death at10.30 p.m. in front of the northern gate of Rohini theatre, at thetime, when the film was over. If to be so, there should have beennumber of independent witnesses available. But in the instant case,not even one independent witness was examined. It is claimed by theprosecution witnesses that the severely injured karthikeyan was takento the Medical Centre at about 10.30 p.m. where the witnesses wereadvised to take the deceased karthikeyan to the Government Hospitalbut they did not do so, instead they have taken him to the ShanmugamHospital at 11.30 p.m. and there, they were advised to go to theGovernment Hospital and only thereafter, they took him toGovernment Hospital Salem where he was declared dead at 12.30a.m. Therefore, there was an intervening period of 2 ½ hours. Thecondition of Karthikeyan was so serious when the witnesses wereadvised by the doctor of Medical Centre. If really such an incidenthad taken place, they would have taken him to the GovernmentHospital immediately, but they have not done so. This would clearlyindicate the fact that these witnesses would not have seen theoccurrence at all.5. It was not the case of the prosecution that they attackedP.W.2 or P.W.5 with any weapon but they have only beaten them withhands. It is also further claimed by the prosecution that P.Ws. 2 and5 came to the house of P.W.1 and informed him what had happened inthe theatre. Immediately, P.W.1 along with 5 others went to the https://hcservices.ecourts.gov.in/hcservices/ theatre. Thus, the prosecution witnesses were the aggressors at thetime when the occurrence had taken place. 6. It is a matter of surprise to note that two of the accusedwere having knife at the time which was thorough unbelievable andunacceptable. Even the medical evidence canvassed did not support theocular testimony. The arrest, confession statements and pursuant tothe confessional statements, recoveries were made, were all nothingbut cooked up story to strengthen the prosecution case.7. The learned counsel would submit that insofar as P.W.4 wasconcerned, there was an attempt made to murder him but the accusedwho stabbed him actually died, pending trial. The charges levelledagainst that accused stood abated. Insofar as the appellants/A2 andA4 are concerned, the case of the prosecution is that A2 caught holdof the deceased and he was actually on the same footing along withA3. On an earlier occasion, this Court considered the appealfiled by A3 on the merits of the matter and acquitted him. Exceptthe above said allegation, nothing is further submitted by theprosecution as far as A2 was concerned. Insofar as A4 was concerned,the case of the prosecution is that he actually caught hold ofP.W.4 but in the earlier appeal referred to above, the evidence ofP.W.4 was rejected since P.W.4 was unable to identify, either theperson who attacked him or the person who caught hold of him. Oncethe evidence of P.W.4 was not believed then the act alleged to havebeen done by A4 is also not acceptable. Hence, the appellants areentitled for acquittal in the hands of the Court. 8. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.9. It is not in controversy that one Karthikeyan, following theincident that had taken place at the place as putforth by theprosecution, was taken to Medical Centre and thereafter, toShanmugham Hospital and thereafter, to the Government Hospital, Salemwhere he was declared dead at 12.30 a.m. on the date ofoccurrence. Following the investigation made by P.W.17 Inspector ofPolice, the dead body was subjected to post mortem and the postmortem. P.W.17 doctor who conducted autopsy has deposed before theCourt as a witness and has also given opinion through the contents ofthe post mortem certificate Ex.P.24 that the deceased Karthikeyandied out of homicidal violence. The fact that Karthikeyan died out ofhomicidal violence was never questioned by the appellants before thetrial Court. Hence, no impediment is felt by this Court in recordingso.10. In order to substantiate the act of the accused/appellants,the prosecution has marched P.Ws 1 to 6 as eye witnesses. As couldbe seen from the available materials, originally, there was an https://hcservices.ecourts.gov.in/hcservices/ incident that had taken place at 8.30 p.m. inside Rohini theatre atChinnathirupathi, Salem in which P.Ws. 2 and 5 were beaten by theaccused party. Thereafter, P.Ws. 2 and 5 approached P.W.1 andinformed him about the incident and after hearing the same, P.W.1accompanied by P.Ws. 2 and 5 along with the deceased and others wentto the theatre and they were waiting till the accused come out of thetheatre and they question them about their conduct. When we visualisesuch a situation, it would be quite clear that P.Ws. 1 to 5 and thedeceased went to the theatre to question the same and when theaccused came out of the theatre, they would have quarrelled withthem and in that process, the occurrence had taken place. Thewitnesses have spoken in one voice that it was A1 who stabbed thedeceased on the stomach twice. At this juncture, the contentionputforth by the learned counsel for the appellants that such anoccurrence at 10.30 p.m. in front of the theatre in which Karthikeyanwas attacked could not have taken place at all, cannot be accepted.It is true that the severely injured Karthikeyan was originallytaken to Medical Centre, Salem and thereafter, he was treated byP.W.10 doctor who has categorically deposed before the Court. Insofaras the treatment given in Shanmuga Hospital is concerned, P.W.11doctor has been examined and he has also spoken to the fact.Thereafter, the said Karthikeyan was declared dead in the GovernmentHospital, Salem. All put together would clearly indicate that theseverely injured Karthekeyan was taken to the MedicalCentre,thereafter, he was taken to Shanmuga Hospital and then to theGovernment Hospital, Salem. Therefore, the contention put forth bythe learned counsel for the appellants that Karthikeyan could nothave been stabbed in the incident as putforth by the prosecution,cannot be countenanced. 11. Added further learned counsel, it is true that there was adelay in registering the F.I.R. The occurrence had taken placeat 10.30 p.m. and P.W.1 has given Ex.P1 report to P.W.16 SubInspector of Police at Hasthampatti Police Station at 12.30 a.m. andthereafter,a case came to be registered. It is true that the place ofoccurrence is not far away from the Police Station. It is pertinentto point out that when the witnesses were to save the life of theirfriend and in their attempt to safe life, they took him to differenthospitals and one cannot expect them to go to the police stationimmediately and give a complaint. Hence,in that process, the delayhas naturally occurred. Therefore, the said delay, in the consideredopinion of the Court, will in no way take away the truth of theprosecution case. 12. As could be seen from the available materials, it was A1 whostabbed the deceased, as a result, he died. Insofar as P.W.4 isconcerned, he was severely injured and the Accident Register copyis that regard was marked as Ex.P.11. But insofar as P.W.4 wasconcerned, he was unable to identify either the person who attacked https://hcservices.ecourts.gov.in/hcservices/ him or the person who caught hold of him. Hence, his evidence in totois not acceptable.13. It is true that identification parade has taken place andthis identification parade did not bring home any useful result asexpected by the prosecution. Thus, as rightly pointed out by thelearned counsel for the appellants, at the time of occurrence A2caught hold of the deceased and A4 caught hold of P.W.4 tofacilitate the crime, cannot be taken as true, on consideration ofthe facts and circumstances of the case. 14. This Court had an occasion to consider the appeals putforthby A1 in Crl.A.No.1081/2007 and A3 in Crl.A.1102/2007. On consideringthe merits of the matter, A3 was acquittal of the charges levelledagainst him and in respect of A1, the conviction and sentence aremodified from that of Section 302 IPC and awarding life imprisonmentto that of Section 304(1) IPC and awarded 7 years rigorousimprisonment and in respect of other charges, A1 was acquitted.15. As rightly pointed out by the learned counsel, insofar as A2was concerned, the only allegation made against him was that hecaught hold of the deceased. Insofar as A3 was concerned, the Courthad occasion to consider the case of A3 and acquitted him. The Courtis of the opinion that A2 was also on the same footing as that of A3and the charges against him was not proved by the prosecution and hehas got to be acquitted. Insofar as A4 is concerned,the evidence ofP.W.4 was not believed by the Court. The only allegation against A4is that he caught hold of P.W.4. It is true the medical opinion wascanvassed through Ex.P11, accident register copy in respect of theinjuries sustained by P.W.4 but this Court did not accept the oculartestimony of P.W.4. So long as the evidence of P.W.4 is notacceptable, the medical opinion canvassed to whatever extent it maybe, it cannot be accepted. Hence, A4 is also entitled foracquittal.16. Accordingly, the criminal appeal is allowed, setting asidethe conviction and sentence imposed on the appellants/A2 and A4 bythe court below. The appellants/A2 & A4 are acquitted of the chargeslevelled against them. They are directed to be released forthwithunless their presence are required in connection with any other case.The fine amount if any paid by the appellants is ordered to berefunded to them. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vsiTo1. The First Additional Sessions Judge, Salem.2. -do- Through The Principal Sessions Judge, Salem.3. The Inspector of Police, Hasthamptti Police Station, Salem District.4. The Superintendent, Central Prison, Salem.5. The District Collector, Salem.6. The Director General of Police, Santhome, Madras.7. The Public Prosecutor, High Court, Chennai.1 cc To Mr.S.Suresh, Advocate, SR.70165.CRL. APPEAL No.696 of 2009 PUR(CO)RVL 07.01.2010