Murugan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.12.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL NO.738 OF 20091. Murugan2. Chinnarasu .. Appellants (A3 + A4) Vs.State rep. byInspector of Police,Vazhavanur Police Station.Villupuram District... Respondent(Crime No.476/2007)This criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Principal Sessions Judge,Villupuram made in S.C.No.253/2007 dated 09.11.2009.For Appellants : Mr.R.SankarasubbuFor Respondent : Mr.Babu Muthu Meeran, APPJUDGMENT(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment of conviction andsentence passed by the learned Principal Sessions Judge, Villupuramin S.C.No.253/2007 against the appellants/accused 3 and 4.2. The case of the prosecution in brief would be as follows:-(a) The appellants are the accused A3 and A4. The father ofthe accused A1 and A2 and deceased Chinnathambi are brothers theyhave common property, like houses vacant sites, lands, coconut trees,tamarind trees, mango trees without any division. There was a disputein dividing the property and upon the said dispute enmity developedand was prevailing in between them. Since the deceased Chinnathambihad plucked coconuts from the coconut trees for the Mariamman kovil https://hcservices.ecourts.gov.in/hcservices/ temple festival, the accused 1 to 4 on 15.06.2007, at about 05.00p.m, destroyed the bunch of coconut flowers and the buds of tendercoconuts and when the deceased Chinnathambi and witnesses Gopal,Kamalam, Chitra questioned the accused 1 to 4, the 1st accused hadshouted at Chinnathambi that he was responsible and therefore heshould be finished and by saying so attacked him with koduva knife onthe back of his head. A2 had also shouted against him and hadattacked with koduva knife on the left side of his head and whenP.W.1 attempted to prevent him, A2 had with the koduva knife,attacked on his left leg. When P.W.2 Kamalam was about to prevent thesaid incident, A3 with koduva knife cut on her head and A4 hadattacked on her right shoulder. Similarly when P.W.3 Chitra attemptedto prevent the accused A4 beat her with wooden log on her front sideof the head and on her left hand wrist thereby the accused A3 and A4had common intention to help A1 and A2 to commit the murder ofChinnthambi.(b) The Investigating Officer had proceeded on the caseregistered u/s. 294 (b) 323, 324, 302 r/w. 34 I.P.C against theaccused and had filed the charge sheet before the Judicial MagistrateII Villupuram and the case was taken on file in P.R.C.No.48/2007 andwas committed to Principal Sessions court and was taken on file onS.C.No.253/2007. The trial court had framed necessary charges and hadproceeded against all the accused by examining 15 witnesses, 31documents and 9 material objects on the side of the prosecution.3. The case of the prosecution as spoken by the prosecutionwitnesses would be as follows:(a) P.W.1 Gopal is the son of deceased Chinnathambi. P.W.2Kamalam is the wife of the deceased Chinnathambi. P.W.3 is thedaughter of deceased Chinnathambi. The father of the accused 1 and 2and deceased Chinnathambi were brother and were having ancestralproperties and they were in common and a dispute emanated betweenthem and a civil suit was filed and it was pending. (b) The deceased Chinnathambi had plucked coconuts from thecommon coconut trees for donating to the Mariamman kovil festival inthe village. Enraged upon the said action of deceased Chinnathambi,on 15.06.2007, at about 05.00 p.m accused 1 to 4 had destroyed thebunch of coconut flowers and the buds of tender coconuts in thecoconut trees belonging to both of them and when the deceasedChinnathambi and P.W.1 to P.W.3 had gone to the place and questionedthe action of the accused, A1 had shouted at Chinnathambi saying thathe would ask questions if let alive and by saying so, he had causedcut injury on the backside of Chinnathambi's head with koduva knife.A2 had also uttered against him that he should die and then onlytheir family would be happy and by saying so he had cut on the leftbackside of the head of deceased Chinnthambi with koduva knife andthe attempt made by P.W.1 to prevent the assault was in vain. P.W.1 https://hcservices.ecourts.gov.in/hcservices/ was attacked by A1 with koduva knife on the backside of his head. A2had cut on the left leg with koduva knife when P.W.2 attempted toprevent the said incident. A3 had inflicted cut injury on her head.A4 beat her on her left shoulder when P.W.3 went and attempted toprevent the incident A1 beat her on her head and on her left handwrist. The accused persons had fled away from the scene ofoccurrence. The injured persons including Chinnthambi were taken toGovernment general hospital and since the Chinnathambi was havingserious injuries he was taken to Government general hospitalPuducherry from the Government hospital Villupuram.(c) P.W.2 and P.W.3 had spoken in consonance with theevidence given by P.W.1. They have also identified the koduval knifesand the wooden log produced as M.Os.1,2 and 7 series. The clothesworn by the said Chinnathambi were also identified by them as M.Os.3to 6.(d) Doctor P.W.11 had examined Chinnathambi before he wastransferred to Government hospital Puducherry and had found that hesustained serious injuries as found in the A.R.copy Ex.P.13. Doctorhad examined P.W.2 Kamalam for the injuries sustained by her in theincident and opined that the injuries are simple injuries as perEx.P.14 A.R. Copy. He had also examined P.W.3 Chitra for the injuriessustained by her and found two injuries on her body and she wasadmitted as in patient and those injuries were found simple in natureand the A.R.copy issued is Ex.P.15. On the same day P.W.11 had alsoexamined one Gopal [P.W.1] for the injuries sustained by him. P.W. 11and found two injuries inflicted on him and the A.R.copy prepared wasEx.P.16. P.W.11 had also examined and noted the injuries sustained byA1 and the relevant A.R. copy was produced as Ex.D.3.(e) On intimation given from the Government hospitalVillupuram, S.I of Vazhavanur Police station P.W.14 had gone to theGovernment hospital Villupuram and examined P.W.1 Gopal and recordedhis statement Ex.P.1 and returned to the police station andregistered a case in Cr.No.476/2007 u/s. 294 (b), 324,323, 307 I.P.Cand the said F.I.R is EX.P.20. He had also sent the F.I.R to courtthrough Head Constable Chandrasekar. The investigator after thereceipt of the F.I.R commenced the investigation and had proceeded tothe place of occurrence by 06.15 a.m and in the presence of witnessesprepared Observation Mahazar Ex.P.3 and Rough Sketch Ex.P.2. Theinvestigator P.W.15 had also seized the blood stained earth, sampleearth through Seizure Mahazar Ex.P.5 in the presence of thewitnesses. Thereafter, the investigator had examined the injuredwitnesses P.W.2 and P.W.3 at Government hospital Villupuram andrecorded their statement. Similarly, the statement of witnessesRavichandran, Murugan, Srinivasan, Arul, Saravanam were investigatedby the investigator at the place of occurrence. Thereafter, he hadproceeded in search of the accused and near Malattaru, Mettupalayam,he arrested A1 and recorded the voluntary confession given by A1 in https://hcservices.ecourts.gov.in/hcservices/ the presence of witnesses and he had also given confession leading torecovery of koduva knife that he used in the offence. The saidadmissible portion is Ex.P.23.(f) The investigator had also seized two 'koduva' knifes asidentified in pursuance of the confession leading to recovery underthe cover of Mahazar Ex.P.24. Thereafter at about 01.30 p.m, A3 wasarrested and he had also given voluntary confession and the accused 1and 3 were sent to court for judicial remand. The said Chinnathambiwho was admitted at Government hospital Puducherry died on 23.06.2007at about 03.45 a.m. The death of Chinnathambi was informed by P.W.12Doctor to the respondent police. After the receipt of the deathintimation the investigator had altered the provisions from 307 I.P.Cto 302 I.P.C and sent alteration report to the court. Theinvestigator P.W.15 had also examined the witnesses Ramu, Dhanusu,Sundaramoorthy and had recorded their statements. He had alsoexamined Kamalam (P.W.2), Gopal (P.W.1), Chitra (P.W.3) andRavichandran (P.W.4) and recorded their statements. He conductedinquest on the dead body of Chinnathambi on that day itself inbetween 08.00 a.m to 12.00 noon and had prepared the inquest reportEx.P.26. Thereafter, P.W.15 had caused sending the body ofChinnathambi through Head Constable Murugaiyan with the requisitionto the Doctor for post mortem.(g) P.W.13 Doctor had commenced the autopsy on the deadbody of Chinnathambi on 23.06.2007 at 02.45 p.m and had found variousantemortem injuries. He had also opined that the death ofChinnathambi would have caused due to the head injuries sustained byhim. He had also issued the Post Mortem Certificate Ex.P.19.(h) The investigator on intimation, that the accused 2 and4 had surrendered before the Judicial Magistrate II Villupuram on26.06.2007, and were remanded to judicial custody, the investigatorhad applied for police custody and took A2 and A4 for furtherinvestigation and examined them, between 05.07.2007 to 09.07.2007.The accused No.2 had voluntarily confessed in the presence of P.W.10-Azhagesan V.A.O and his assistant Janakiraman and the investigatorrecorded the same. In the said confession, he had also disclosed theconcealment of the knife and the said admissible portion is Ex.P.9.In pursuance the said confession A2 proceeded to Malattaru,Mettupalayam and identified and took away one knife from the bushesand produced the knife found in M.O.2 series. The seizure mahazarprepared for that purpose was Ex.P.10. Similarly, when A4 wasinterrogated, he had also voluntarily confessed in the presence ofthe same witnesses and disclosed the place of concealment of theknife and wooden log he used of the commission of offence. A4 alsolead the investigator and the witnesses to Malattaru bush and hadidentified the knife and wooden log and produced them. The admissibleportion of the confession statement is Ex.P.11 and the knife and logseized on his confession were produced as M.Os.1,2 and 7. The said https://hcservices.ecourts.gov.in/hcservices/ material objects were seized through Ex.P.12 Mahazar in the presenceof the same witnesses after returning to the police station. Theaccused A2 and A4 were surrendered by the investigator before thecourt. The investigator had sent the material objects for chemicalanalysis. He had also recorded the statement of V.A.O by examiningthem and he had also recorded the statements of Doctors who issuedthe death intimation and performed post mortem and obtained thedocuments concerned. Thereafter, he had also examined furtherwitnesses and recorded their statement and had obtained chemicalexamination and serology reports and had filed the charge sheetagainst the accused, as aforesaid.4. The accused were questioned u/s. 313 Cr.P.C on theincriminating circumstances found against them in the evidence of theprosecution and they simply denied them as false. No oral evidencewas adduced on the side of the accused. However three documents wereproduced as Ex.D.1 to Ex.D.3.5. The learned counsel for the appellants/A3 and A4,Mr.Sankarasubbu would submit in his argument that the lower court hadmiserably failed in fastening the appellants also in the commissionof crime in which the deceased Chinnathambi was murdered. He wouldfurther submit that the evidence of P.W.1 as relied by the lowercourt are contrary to the cross examination. He would also submitthat the P.Ws.1 to 4 are interested witnesses since they are closerelatives of the deceased person and therefore their evidence have tobe discarded as they did not speak the truth. 6. He would further submit in his argument that the Villagetemple festival was celebrated on that day and therefore thevillagers should have witnessed the incident and the entireoccurrence said to have taken place was not correctly spoken byP.Ws.1 to 4. He would further submit that the prosecution witnessesand the deceased were the aggressors and they only initiated thewordy quarrel with the accused 1to 3 and therefore, the accused 3 and4 cannot be held liable. He would also submit that injury was causedto A1 at first and the prosecution did not explain the injury causedto A1. The lower court had not appraised the evidence properly buthad come to a conclusion perversely against all the accused. Evenotherwise the prosecution has not spoken about the overtacts of A3and A4 on the deceased Chinnathambi nor the common intention tocommit the murder of Chinnathambi along with the accused 1 and 2. Hewould further submit in his argument that the prosecution could haverecorded dying declaration since the deceased died after a long timefrom the date of incident and therefore the case of the prosecutionshould be viewed suspiciously. He would further submit in hisargument that the lower court had pre determined the conviction ofall the accused despite there was no evidence available on the sideof the prosecution against A3 and A4. He would further insist in hisargument that the evidence of P.W.1 to P.W.3 who are stated to be the https://hcservices.ecourts.gov.in/hcservices/ eye witnesses are the interested witnesses and their evidence cannotbe relied upon and therefore, conviction should not have beenrecorded against the accused 3 and 4 and therefore the judgment ofconviction and sentence passed by the lower court against A3 and A4should be set aside and the appeal be allowed.7. Heard the learned Additional Public Prosecutor Mr. Babu MuthuMeeran and we also paid consideration to his argument. He wouldinsist in his argument that the evidence of P.Ws.1 to 4 are cogentand they would corroborate with the medical evidence and thecircumstantial evidence which would clinchingly show that the accusedwere having common intention to cause the murder of deceasedChinnathambi. He would also submit that the lower court had foundthat all the accused are having common intention and were liable tobe punished u/s. 302 r/w. 34 I.P.C and also other charges framedagainst them. Therefore, he would request the court to dismiss theappeal.8. On giving consideration to the arguments advanced on eitherside, we could see that the evidence adduced by the Doctor P.W.12would prove the death of Chinnthambi which happened on 23.06.2007.The death intimation produced as Ex.P.17 would support his evidence.The evidence of another Doctor namely P.W.11 would go to show thatthe deceased Chinnathambi sustained injuries on the back of his headand on the side of the left eye and he was admitted in the hospitalat Villupuram and thereafter he was referred to Government hospitalPuducherry. He was given treatment in the said hospital. Despite thetreatment he died. The inquest conducted by the investigator and theinquest report Ex.P.26 would go to show that the injuries causedagainst him in the incident caused him death. The evidence of P.W.13Doctor working in Puducherry Government hospital who had performedthe autopsy of deceased Chinnathambi had found eight injuriesincluding the surgical wounds and he had opined in Post MortemCertificate issued by him Ex.P.19, that the deceased Chinnathambiwould have died due to the injuries sustained by him. The injuriesfound on the body of the deceased Chinnathambi and the evidence ofDoctor would go to show that the death of Chinnathambi was causedonly due to the injuries sustained by him and his death was proved tobe a homicidal death.9. As regards the cause of injuries leading to death isconcerned we have to scrutinize the evidence of P.Ws.1 to P.W.4.P.W.1 was the son, P.W.2 was the wife and P.W.3 was the daughter ofthe deceased. It is the case of the prosecution that P.W.1 to P.W.3along with the deceased Chinnathambi went to the place of occurrenceto prevent the accused 1 to 4 from destroying the bunch of flowersand buds of tender coconuts in the trees which were common propertiesat the time of incident. According to the evidence of thesewitnesses, the accused 1 to 4 had koduva knives and wooden log intheir hands and they attacked on the deceased Chinnthambi. They also https://hcservices.ecourts.gov.in/hcservices/ attacked P.W.1-Gopal and P.W.2-Kamalam, P.W.3-Chitra when theyattempted to prevent the overtacts against the deceased Chinnathambi.10. The documents produced as EX.D.1 to D3 on the side of theaccused, would go to show that a case has been registered againstP.W.1 to P.W.3 in Cr.No.480 of 2007 on the file of the respondentpolice in connection with the incident and on investigation the finalreport was filed closing the case as to the mistake of fact. Ex.D.1is the F.I.R and Ex.D.2 is the final report. The A.R. copy of theaccused 1 is produced as Ex.D.3. In the said document Ex.D.3, alacerated injury was found to have been sustained by A1. The saidfinal report filed by respondent police in Ex.D.2 was not pursuedfurther by the complainant of Ex.D.1 of by the accused persons.Therefore, those documents produced as Ex.D.1 to D.3 would go to showthat there was an incident on 15.06.2007 during the same time inwhich the accused 1 to 4 and P.Ws.1 to 3 and the deceasedChinnathambi were involved. The evidence of P.Ws.1 to 3 would go toshow that they were also injured in the said incident and thereforetheir evidence cannot be simply brushed aside as relative witnesses.They have spoken to, about the overtacts committed by A1 and A2against the deceased Chinnathambi as well as against them and alsothe overtacts of the accused 3 and 4 against them. The evidence ofP.Ws.1 to 3 corroborated by the medical evidence produced throughP.W.11 to P.W.13 inspired confidence of the court and their evidencecannot be rejected.11. According to their evidence the injuries were inflicted uponthe deceased Chinnathambi only by A1 and A2. P.Ws.1 to 3 had alsospoken to the effect that they sustained injuries on the overtacts ofA1 and A2. Their further evidence would be that A3 inflicted injuryon the head of P.W.2 with 'koduva' knife and A4 hit at her rightshoulder with wooden log. Similarly A4 beat P.W.3 on the front sideof her head and left hand wrist. The evidence of P.Ws.1 to 3 who arethe injured eye witnesses had not implicated A3 and A4, for anyovertact against the deceased Chinnathambi. However the lower courthad come to a conclusion that A3 and A4 had with the common intentionof murdering Chinnathambi with A1 and A2 came to place of occurrence.12. Now, we have to see whether A3 and A4 had any commonintention of committing murder of Chinnathambi along with A1 and A2.No doubt the evidence of P.Ws.1 to 3 had spoken about the overtact ofA1 and A2 against the deceased Chinnathambi. In the said incident asspoken by P.Ws.1 to 3 that there was an enmity in betweenChinnathambi and the accused in respect of sharing common propertiesand a civil suit is pending in between them. In that circumstances,when the accused 1 to 4 were destroying the bunch of flowers and budsof tender coconuts in the common property the deceased Chinnthambiand P.Ws.1 to 3 were attempting to prevent them. In the saidcircumstances, the accused persons attacked deceased Chinnathambi andP.W.1 to 3. It was not spoken by prosecution witnesses that accused https://hcservices.ecourts.gov.in/hcservices/ A1 to A4 had come to the place of occurrence with a common intentionof murdering deceased Chinnthambi. We could infer from the sequencesof occurrence that there was no common intention for accused A3 andA4 to do murder of Chinnathambi. Therefore recording of conviction bythe lower court against A3 and A4 for the charges u/s. 302 r/w. 34I.P.C is neither in accordance with the evidence available on theside of the prosecution nor in accordance with law. Therefore, thiscourt could see some force in the argument of the learned counsel forthe appellants/A3 and A4. However, the evidence of P.Ws.1 to 3 areclinching in respect of the overtacts of the accused persons 1 to 4against them. Accordingly, P.W.2 was cut by A3 on the backside of herhead and A4 hit her on her left shoulder. Similarly P.W.3 wasattacked by A4 by wooden log on her head and also on her left hadwrist. The said injuries sustained by P.W.2 and P.W.3 were clearlyspoken by medical evidence P.W.11 and through A.R. copies producedin Ex.P.14 and Ex.P.15 respectively. 13. The evidence of prosecution was also supported bycircumstantial evidence namely the confession of A1 and A2 leading torecovery of material objects A4 also gave confession before theinvestigator and the witnesses and the koduva knives and wooden logswere also seized under the cover of seizure mahazar through hisconfession leading to recovery.14. In the aforesaid circumstances, the prosecution witnesseswould clinchingly show the guilty of appellants/A3 and A4 only inrespect of offence u/s. 324, 323 (2 counts) I.P.C respectively andnot in respect of the offence u/s. 302 r/w. 34 I.P.C. Therefore, weare of the considered view that the lower court was wrong inconvicting the appellants/A3 and A4 u/s. 302 r/w. 34 I.P.C. andtherefore it has become necessary for us to set aside the same andaccordingly the judgment of lower court was undone in respect of theconviction u/s. 302 r/w.34 I.P.C against A3 and A4. The conviction of323 (2 counts) against A4 and appropriate sentence passed againstthem are in tact and therefore not disturbed.15. In the result, A3 and A4 are acquitted from the charges u/s.302 r/w 34 I.P.C. The charge u/s. 324 I.P.C against A3 and thecharge u/s. 323 I.P.C (2 counts) against A4 stand proved andtherefore the conviction under these sections and the relevantsentence passed thereon are confirmed. With the above modification inthe conviction and sentence against the appellants the appeal isdismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarkpr https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, Villupuram 2. The Inspector of Police, Vazhavanur Police Station. Villupuram District3. The Public Prosecutor, High Court, Chennai. 4. The Superintendent, Central Prison, Cuddalore. 5. The District Collector, Villupuram 6. The Director General of Police, Chennai + 1 cc to Mr.R.Sankarasubbu, Advocate, SR No.71499Crl.A.No.738 of 2009AKR (CO)RH (8.1.10)