Murugan & Ors. v. State by: Inspector of PoliceAriyankuppam Police StationPuducherry

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 5-1-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRL.A.No.258 of 20081.Murugan2.Kannan.. Appellants/Accused 1 & 2vsState by:Inspector of PoliceAriyankuppam Police StationPuducherry(Crime No.112/2003).. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Principal SessionsJudge, Puducherry, made in S.C.No.56 of 2005 dated 31.3.2008.For Appellants: Mr.Ashok Kumar Senior Counsel for Mr.A.TamilvananFor Respondent: Mr.S.Natarajan Additional PublicProsecutor (Pondicherry)JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Principal SessionsDivision, Pondicherry, made in S.C.No.56 of 2005 whereby theappellants two in number, stood charged under Sections 341 read with34 and 302 read with 34 of IPC, tried, found guilty as per thecharges and awarded one month Simple Imprisonment and lifeimprisonment along with a fine of Rs.500/- and default sentencerespectively.2.The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 is the mother of the deceased Tamizh @ Tamizhvanan.P.W.2 is also working along with the deceased. The deceased was in https://hcservices.ecourts.gov.in/hcservices/ the habit of taking mamul from the grocery shops of A-1 and others atAriyankuppam. Due to that, there prevailed enmity between A-1 andthe deceased. On the date of occurrence namely 3.8.2003, at about3.00 P.M., when the deceased was riding his motorbike along withP.W.2, both the accused intercepted them at the junction of OldCuddalore Road and Arunthathipuram Road and began to attack thedeceased with iron rods marked as M.Os.2 and 3 respectively. Both thedeceased and P.W.2 fell down. Immediately, both the accused attackedthe deceased severely. (b) P.W.2 who was the sole eyewitness to the occurrence,immediately ran away from the place of occurrence, went to the houseof the deceased and informed P.W.1 about the incident. In themeanwhile, P.W.5, a Constable, who was on his way in connection withservice of summons, found the severely injured at the scene ofoccurrence and took him to the Government Hospital, Pondicherry,where he was declared dead. P.W.5 immediately gave a message toP.W.16, the Inspector of Police, attached to the respondent policestation, from the hospital. There was a CD entry to that effect. (c) In the meanwhile, P.W.1 on information from P.W.2, went tothe place of occurrence, but she did not find her son. Then, she wasinformed that her son was taken to the Government Hospital,Pondicherry. Immediately, she rushed over there and came to knowthat her son already died. P.W.16, who got the message, rushed overto the Government Hospital. He took the statement of P.W.1, returnedto the police station and registered a case in Crime No.112 of 2003under Sections 341 and 302 read with 34 of IPC. The printed FIR,Ex.P27, was sent to the Court. (d) P.W.16 took up investigation, proceeded to the spot, made aninspection in the presence of witnesses and prepared an observationmahazar, Ex.P2, and drew a rough sketch, Ex.P28. He recovered fromthe place of occurrence bloodstained earth and sample earth under acover of mahazar. Then, he went to the hospital and conductedinquest on the dead body of Tamizhvanan in the presence of witnessesand panchayatdars and prepared an inquest report, Ex.P29. (e) On a requisition given by the Investigator, P.W.11, the ChiefMedical Officer, Department of Forensic Medicine, General Hospital,Pondicherry, conducted autopsy on the dead body of Tamizhvanan on4.8.2003, and has issued a postmortem certificate, Ex.P17. TheDoctor has also given his final opinion under Ex.P19 that thedeceased died of head injuries. (f) Pending the investigation, A-2 was arrested on 8.8.2005 bythe Investigating Officer. He volunteered to give a confessionalstatement. The admissible part is marked as Ex.P5. Following thesame, he also produced M.O.3, iron rod, and M.O.6, bloodstainedshirt. They were all recovered under a cover of mahazar. On thevery day, A-1 was also arrested. He gave a confessional statementvoluntarily. The same was recorded. He also produced M.O.2, ironrod, and M.O.7, bloodstained shirt, and they were all recovered undera cover of mahazar. Both the accused were sent for judicial remand.All the material objects were subjected to chemical analysis by theForensic Sciences Department which brought forth two reports namely https://hcservices.ecourts.gov.in/hcservices/ Ex.P18, the chemical analyst's report, and Ex.P25, the serologist'sreport. One Balakrishnan, the Inspector of Police, took up furtherinvestigation and on completion of the investigation, filed the finalreport.3.The case was committed to Court of Sessions, and necessarycharges were framed. In order to substantiate the charges, theprosecution marched 16 witnesses and also relied on 30 exhibits and11 material objects. On completion of the evidence on the side of theprosecution, both the accused were questioned under Sec.313 ofCr.P.C. as to the incriminating circumstances found in the evidenceof the prosecution witnesses which they flatly denied as false. Nodefence witness was examined. The lower Court heard the argumentsadvanced and took the view that the prosecution has brought home theguilt of the accused beyond reasonable doubt, and hence, found themguilty and awarded the imprisonment as referred to above. Hence thisappeal at the instance of the appellants.4.Advancing arguments on behalf of the appellants, the learnedSenior Counsel Mr.Ashok Kumar would submit that in the instant case,the occurrence, according to the prosecution, has taken place at 3.00P.M. on 3.8.2003 in a public road; that the entire case rested uponthe evidence of P.W.2 only; that according to P.W.2, he went alongwith the deceased at that time in a motorbike and both of them wereactually waylaid by A-1 and A-2 who were armed with iron rods, M.Os.2and 3 respectively, and they were attacking the deceased, and at thattime, both of them fell down; that had such an occurrence takenplace, P.W.2 could have gone to the rescue of his friend who wasbeing attacked, but not done so; and that it is highly curious tonote that he did not even go to the police station immediately; but,on the contrary, he went to the house of the deceased and informed toP.W.1, which was thoroughly unnatural. 5.Added further the learned Senior Counsel that according toP.W.5, the constable, who was on his way in connection with serviceof summons, found the severely injured at the place of occurrence,and therefrom he took him to the Government Hospital, Pondicherry,where he was declared dead, and he also gave information to theInspector of Police who has also recorded the same; that the FIRwhich has been recorded by the Investigating Officer, P.W.16, iflooked into, would clearly indicate that the information of P.W.5 hasalso been recorded, but it did not disclose the name of theassailants; that had it been true that within a short span of time,P.W.5 has actually seen the severely injured person at the place ofoccurrence, he would have informed about the assailants, but not doneso; that the same would indicate that he was not informed about theassailants; and that it would be indicative of the fact that theaccused/appellants have nothing to do with the crime in question. 6.Added further the learned Senior Counsel that according toP.W.16, on information from P.W.5 from the Government Hospital, hewent over to the hospital and recorded the statement of P.W.1 atabout 17.15 hours; that according to P.W.1, she went to the policestation at about 7.00 or 8.00 P.M. along with a relative and gave astatement, and the same has been recorded by the police officer; thatit would be clearly indicative of the fact that P.W.2 has actually https://hcservices.ecourts.gov.in/hcservices/ been taken as a witness as if he has witnessed the occurrence; thatthis would also go to show that the report, Ex.P1, could not havecome into existence as put forth by the prosecution; that it couldalso be seen that since there was no eyewitness to the occurrence,they have taken the service of P.W.2 in order to implicate both theaccused; that further, the evidence of P.W.2 should not have beenbelieved by the trial Court for the simple reason that at the timewhen the police officer recorded the statement under Sec.161 ofCr.P.C., he has categorically stated that it was A-1 who attacked thedeceased with an iron rod on the head, and A-2 attacked him only onthe face; but, when he gave evidence in Court, he has deposed in sucha way that both the accused have attacked him on the head with ironrods; that the same would be indicative of the fact that it was onlya development, and he has not seen the occurrence at all; that forthe above reasons, the evidence of P.W.2 should have been rejected bythe lower Court; but, on the contrary, it has taken an erroneousview; and that if the evidence of P.W.2 is rejected, then theprosecution had no evidence to offer. 7.Added further the learned Senior Counsel that even P.W.2 didnot know the motive which impelled both the accused to attack thedeceased; that apart from that, the recovery of iron rods pursuant tothe alleged confessions were all cooked up affair, and thus, theprosecution has not proved the case beyond reasonable doubt. 8.Added further the learned Senior Counsel that if the Courtcomes to the conclusion that the evidence of P.W.2 could be accepted,as far as A-2 was concerned, there is nothing to indicate or inferthat he has actually given the attack which was fatal and has causedthe death; that according to P.W.11, the Doctor, who conductedautopsy, the three external injuries found on the skull and thecorresponding internal injuries have actually caused the death; thataccording to P.W.2 and the earliest statement recorded by theInvestigator, these injuries were caused by A-1 and not by A-2; thataccording to P.W.1 and the earliest statement, A-2 attacked thedeceased only on the face; that the injuries which were found on theface, were only abrasions and simple in nature, and under thecircumstances, this has got to be considered by this Court.9.The Court heard the learned Additional Public Prosecutor on allthe above contentions and paid its anxious consideration on thesubmissions made. 10.It is not in controversy that one Tamizhvanan the son ofP.W.1, died in an incident that took place at about 3.00 P.M. on3.8.2003 at the place of occurrence as put forth by the prosecution.It was P.W.5, the Constable, who took him to the hospital, and he wasdeclared dead by the medical person in the Government Hospital.Following the inquest made by P.W.16, the Investigator, and thepreparation of Ex.P29, the inquest report, the dead body wassubjected to postmortem by P.W.11, the Doctor, who has given hiscategorical opinion in Ex.P17 and final opinion in Ex.P19 that hedied out of the external injuries found on the skull and also thecorresponding internal injuries. Thus, the lower Court was perfectlycorrect in recording that Tamizhvanan died out of homicidal violence.Apart from that, this fact that he died out of homicidal violence was https://hcservices.ecourts.gov.in/hcservices/ never disputed by the appellants before the trial Court. Hencewithout any impediment, it could be recorded so. 11.In order to substantiate the case of the prosecution that itwas A-1 and A-2 who waylaid P.W.2 and the deceased when they were ontheir way in the motorbike at the place of occurrence and attackedthe deceased with the iron rods, the prosecution rested its entirecase on the evidence of P.W.2. Needless to say that the law ofevidence does not require the quantity of evidence, but quality ofevidence. In the instant case, if the evidence of P.W.2 isbelievable, this Court feels that there is no impediment insustaining the conviction. According to P.W.2, he accompanied thedeceased at the time of occurrence in a motorbike and when they wereon the way, A-1 and A-2 waylaid them and began to attack thedeceased, and both of them fell down, and again they attacked thedeceased. At this juncture, a comment was made by the learned SeniorCounsel that had it been true that P.W.2 witnessed such anoccurrence, he would have gone to the rescue of his friend, thedeceased. This contention cannot be accepted for the simple reasonthat it depends upon the individual frame of mind. According toP.W.2, he actually got frightened, ran away from the place ofoccurrence, went to the house of the deceased and informed to P.W.1,the mother of the deceased. Under the circumstances, the othercontention that he has not gone to the police station immediatelycannot be a reason to reject his testimony. 12.Apart from the above, according to P.W.1, when she was in thehouse, the incident was informed to her by P.W.2, and then, alongwith P.W.2 she went to the place of occurrence; but, she could notsee her son, and thereafter, she went over to the hospital where shewas informed that her son actually died. It is further to be pointedout that P.W.5, the Constable, who was actually on his way alongwith the summons for service, found the severely injured at the placeof occurrence, and then he took him in an auto of P.W.3 to thehospital where he was declared dead. At this juncture, it has got tobe pointed out that P.W.5, the Constable, found the severely injured,and it did not pass in his mind that he died; but, on the contrary,in order to save him, he has taken him to the hospital. It is notthe evidence of P.W.5 that anybody was present at the time when hetook the body of the deceased from the place of occurrence to thehospital, and thus, he had no information about the assailants.Under the circumstances, he was unable to give the information inthat regard to the Investigating Officer. It remains to be statedthat the Investigating Officer has stated that he has clearlyrecorded the entire information passed on by P.W.5 from the hospital,and it is the first part of the FIR, and thereafter, the statementgiven by P.W.1, has actually been recorded. All put together wouldgo to show that when such an incident has taken place, it could havebeen recorded so. 13.Added circumstance is that the statement of P.W.2 was recordedthe very day at about 9.00 P.M., and it was sent to the Court. Thiswould be indicative of the fact that without witnessing such anincident, P.W.2 could not have made such a statement. Further, thecase was registered at about 5.15 P.M. and the FIR was handed over tothe Magistrate during night hours namely at 00.45 hours, in his https://hcservices.ecourts.gov.in/hcservices/ residence where both the names of the appellants are clearly stated.Thus, it would be indicative of the role played by the accused in thecase. 14.The contention put forth by the learned Senior Counsel thatP.W.1 has stated that she went to the police station and gave astatement at about 7.00 or 8.00 P.M., and therefore, it casts a doubton the registration of the case as put forth by the Investigatorcannot be accepted. As far as P.W.1 was concerned, she was not aneyewitness, and apart from that, it is not her case that she lookedat the involvement of A-1 or A-2; but, it was only an informationpassed on by P.W.2, and to that extent of setting the criminal law inmotion, the evidence of P.W.1 could be taken. As far as P.W.2 wasconcerned, he was the only eyewitness. On a careful scrutiny of theevidence of P.W.2 though uncorroborated and solitary, this Court issatisfied that his evidence has got to be accepted. Apart from this,the evidence of P.W.2 stood fully corroborated by the medicalevidence. Yet another circumstance is the recovery of the weapons ofcrime, M.Os.2 and 3, iron rods, which would also be pointing to thenexus of the crime with the accused. Thus, the factual position thatboth the accused persons attacked the deceased at the time and placeof occurrence has got to be accepted. Accordingly, it is accepted. 15.As far as the second line of argument put forth by the learnedSenior Counsel for the appellants is concerned, this Court is able tosee force in the same. The medical opinion was canvassed throughP.W.11, the Doctor, who has given his final opinion in Ex.P19 thatthe death was caused by the three external injuries found on theskull and the corresponding internal injuries. Ex.P17 is thepostmortem certificate which would also clearly indicate that threeexternal injuries on the skull and the corresponding injuries arealso noticed. The Doctor has given his categorical opinion that theinjuries sustained on the skull has caused the death. At theearliest when P.W.1 gave the statement to the police which wasrecorded under Sec.161 Cr.P.C., she has stated that it was A-1 whoattacked the deceased, and it was A-2 who attacked him on the face.As rightly pointed out by the learned Senior Counsel for theappellants, the injuries found on the face, were only simple innature. It is not the case of the prosecution or the medical opinioncanvassed that death was due to the cumulative effect of the injuriessustained. But, the Medical Person was so specific that the injuriessustained on the head, caused the death. Under the circumstances,there is nothing to infer or indicate that they had got commonintention to share with. Under the circumstances, the act of A-1 hascaused the death, and thus, A-1 has got to be convicted under Sec.302of IPC. Accordingly, the conviction of A-1 under Sec.302 read with34 of IPC are set aside, and instead, he is convicted under Sec.302of IPC. The sentence awarded by the lower Court is affirmed. 16.As regards A-2, the act of A-2 would attract the penalprovision of Sec.324 of IPC and awarding punishment of 2 yearsRigorous Imprisonment would suffice in the considered opinion of theCourt. Accordingly, the conviction and sentence of life imprisonmentimposed on A-2 under Sec.302 read with 34 of IPC are set aside, andinstead, he is convicted under Sec.324 of IPC for which he isdirected to suffer two years Rigorous Imprisonment. The sentence https://hcservices.ecourts.gov.in/hcservices/ already undergone by him shall be given set off. The fine anddefault sentence imposed by the trial Court will hold good. 17.As regards the conviction of A-1 and A-2 by the trial Courtunder Sec.341 read with 34 of IPC, the same is modified, and they areconvicted under Sec.341 of IPC. The sentence awarded by the trialCourt in that regard is affirmed.18.In the result, with the above modification in conviction andsentence, this criminal appeal is dismissed. Regarding the return ofthe property, the order made by the trial Court is affirmed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The Principal Sessions Judge Pondicherry.2.The Judl. Magistrate No.1 Pondicherry.3.-Do-Thro' the Chief Judl. Magistrate.4.The Superintendent, Central Prison, Pondicherry.5.The Inspector of Police Ariyankuppam Police Station Puducherry (Crime No.112/2003)6.The Public Prosecutor (Pondicherry) High Court, Madras.1 CC To Mr.A.Tamilvanan, Advocate, SR NO.3371 CC to the Government Pleader, SR NO.69 CRL.A.No.258 of 2008gv(co)pmk/19.1.2009.