Lakshmanan2.Rajini v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.01.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.474 OF 20081.Lakshmanan2.Rajini.. AppellantsVs.The State represented byInspector of Police,Ulundurpet Police Station,Ulundurpet,Villupuram District.(Crime No.557/2004).. Respondent This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Principal SessionsJudge, Villupuram, Villupuram District made in S.C.No.164 of 2005,dated 25.04.2008. For Appellants : Mr.K.G.SenthilkumarFor Respondent : Mr.P.Kumaresan, APP JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the PrincipalSessions Division, Villupuram made in S.C.No.164 of 2005, wherebythe appellants herein stood charged under Section 302 r/w S.34 IPC,tried and found guilty as per the charges and awarded lifeimprisonment each and to pay a fine of Rs.2000/- each, in default toundergo three months R.I.2.The short facts necessary for the disposal of this appeal canbe stated as follows: https://hcservices.ecourts.gov.in/hcservices/ a)P.Ws.1 and 2 are the parents of the deceased Kumar. P.Ws.3 to5 are the neighbours. The house of the accused is situated behindthe house of P.W.1. P.W.1 and his son Kumar were employed inBangalore and that they returned and were staying in their nativevillage during the relevant time. P.W.2 was propagating that themembers of the accused family were indulging in petty thefts andthus, there was quarrel often. On the date of occurrence, i.e. on18.08.2004 at about 7.00 p.m., the accused pelted stones on thehouse of the deceased and it was questioned by P.W.2. The firstaccused abused her and P.W.1 pacified her. But, the accused did notstop the same. On hearing the noise, the deceased came there andquestioned the conduct of the accused. Immediately, the firstaccused attacked the deceased with the stone on his forehead, whilethe second accused attacked him with the stick on his head.Immediately, he fell down and died. The accused fled away from theplace of occurrence. b)P.W.1 proceeded to the respondent police station, where theSub Inspector of Police was present, to whom P.W.1 gave thecomplaint at about 8.00 p.m., on the strength of which, a case cameto be registered in Crime No.557 of 2004 under Section 302 IPC.Ex.P.9, the F.I.R. was despatched to the Court.c)P.W.12, the Inspector of Police, on receipt of the copy ofthe F.I.R., took up the investigation, proceeded to the spot andmade an inspection in the presence of the witnesses. He preparedEx.P.4, the observation mahazar and Ex.P.10, the rough sketch. Hehas also conducted inquest on the dead body of the deceased in thepresence of the witnesses and panchayatdars and prepared Ex.P.11,the inquest report. The place of occurrence and the dead body werephotographed through P.W.8, the photographer. M.O.3 (series) photosand M.O.4 (series) negatives were marked. The dead body was sent tothe Government Hospital, Ulundurpet for the purpose of post-mortem.d)P.W.7, the Doctor attached to the Government Hospital,Ulundurpet, on receipt of the requisition, has conducted autopsy onthe dead body of the deceased and has issued Ex.P.3, the post-mortemcertificate, wherein he has opined that the deceased would appear tohave died of intradural and extradural bleeding into the skull dueto head injury about 12 to 24 hours prior to autopsy. e)Pending investigation, the Investigating Officer arrested thefirst accused on 19.08.2004. He voluntarily came forward to giveconfessional statement, which was recorded in the presence of thewitnesses. The admissible part of the same was marked as Ex.P.8.Pursuant to the confessional statement, the first accused producedM.O.1, stone, which was recovered under Ex.P.6, mahazar. M.O.2,stick was also recovered under Ex.P.7, mahazar. The second accusedwas also arrested on the same day, who has come forward to give https://hcservices.ecourts.gov.in/hcservices/ confessional statement voluntarily, which was recorded in thepresence of the witnesses. The accused were sent for judicialremand. The Investigating Officer examined the witnesses andrecorded their statements. On completion of the investigation, theInvestigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 12 witnesses and alsorelied on 13 exhibits and 4 M.Os. On completion of the evidence onthe side of the prosecution, the accused were questioned underSection 313 Cr.P.C. as to the incriminating circumstances found inthe evidence of prosecution witnesses, which they flatly denied asfalse. On the side of the defence, one witness was examined and 2documents were marked. The trial court, on hearing the submissionsmade on either side and looking into the materials available, tookthe view that the prosecution has proved the case beyond reasonabledoubt and found the appellants guilty as per the charge and awardedpunishment as referred to above, which is the subject matter ofchallenge before this court.4.Advancing arguments on behalf of the appellants, the learnedcounsel made the following submissions:a)In the instant case, the occurrence, according to theprosecution, has taken place at about 7.00 p.m. on 18.08.2004. Theprosecution marched 5 witnesses as occurrence witnesses. P.W.1 isthe father and P.W.2 is the mother of the deceased. P.Ws.3 to 5,though claimed to be the neighbours, even after witnessing thequarrel between the accused on one side and P.Ws. on the other side,did not intervene, which would be indicative of the fact that theycould not have been present at the time of occurrence at all. Apartfrom that, there were contradictions in the evidence of P.Ws.3 to 5,which would indicate their absence at the time of occurrence.Further, P.W.2 has categorically admitted that she went to thepolice station along with her husband and gave a complaint, but thepolice officer refused to receive the same and thereafter, herhusband drafted the complaint and gave it to the police station andthus, the first information given by P.W.2 has been suppressed. b)Further, in the instant case, the investigation has beencommenced even before the case was registered by the police. Thelearned counsel relied on the evidence of P.W.8, the photographer,who went to the spot and took the photographs of the dead body andthe scene of occurrence at 7.00 p.m. and thus, it would be quiteclear that the investigation was commenced earlier. Though theprosecution claimed that the recovery of M.Os.1 and 2, stone andstick respectively, was made from A-1 and A-2, they were neversubjected to chemical analysis and no report was placed before the https://hcservices.ecourts.gov.in/hcservices/ court. In the instant case, the medical opinion canvassed was alsonot in favour of the prosecution and all would to go show that theprosecution has miserably failed to prove its case.c)The learned counsel, in the second line of argument, wouldsubmit that there was a quarrel between the accused/appellants onone side and P.Ws. on the other side. Further, Exs.D.1 and D.2, theaccident register copies of A-1 and one Annamalai were also markedbefore the trial court. It would also clearly indicate that theaccused also sustained injuries in the same transaction, but theprosecution did not tender any explanation and thus, all wouldindicate that there was a quarrel between them and as a result ofwhich, the accused also sustained injuries and hence the act of theaccused cannot be termed as murder and all these aspects have got tobe considered by this court. 5.The court heard the learned Additional Public Prosecutor onthe above contentions and has paid its anxious consideration on thesubmissions made. 6.It is not the fact in controversy that one Kumar, the son ofP.Ws.1 and 2, was done to death in an incident that took place at7.00 p.m. on 18.08.2004 at the place of occurrence. Following theinquest made by the Investigating Officer, the dead body wassubjected to post-mortem by P.W.7, the Doctor, who has given hiscategorical opinion that the deceased died out of intradural andextradural bleeding into the skull due to head injury. He has alsoissued post-mortem certificate to that effect. The fact that thedeceased died out of homicidal violence was never disputed by theappellants before the trial court or before this court. Hence it hasgot to be factually recorded so. 7.In order to substantiate the fact that at the time ofoccurrence, A-1 attacked the deceased with stone and A-2 alsoattacked the deceased with the stick, the prosecution marched 5witnesses. It is true, P.Ws.1 and 2 are the parents of the deceased.But, on that ground, their evidence cannot be discarded. Beforeaccepting their evidence, the court must apply the test of carefulscrutiny. Further, the prosecution fortunately had its benefit theevidence of P.Ws.3 to 5, who are the neighbours. No circumstance orreason was brought about by the appellants to cast a doubt on theirevidence. All the five witnesses have spoken about the incident inentirety. At this juncture, it is pertinent to point out thatpreviously, there was a quarrel and it was the accused who peltedstones on the house of of P.W.1 and P.W.2 has shouted at the accusedand there was a quarrel and at that time, P.W.1 intervened andpacified the situation and when the accused did not stop the sameand continued the quarrel, it was quite natural for the deceased,the son of P.Ws.1 and 2, to question the conduct of the accused. https://hcservices.ecourts.gov.in/hcservices/ Immediately, A-1 attacked him with the stone and A-2 also attackedhim with the stick. It is pertinent to point out that actually, thegenesis of the occurrence was clearly made known. It was the accusedwho commenced the quarrel and not P.Ws. There was quarrel betweenP.Ws.1 and 2 on one side and A-1 and A-2 on the other side and thatthe deceased had nothing to do. Quite naturally, the deceasedquestioned the conduct of the accused and hence he had no role toplay in the quarrel. Immediately, both the accused attacked thedeceased and caused his death. It is true, the accused sustainedinjuries at the time of occurrence. It remains to be stated that theprosecution is not duty bound to explain the injuries sustained bythe accused in every case. In the instant case, the injuriessustained by them, as could be seen from Exs.D.1 and D.2, theaccident register copies, are simple in nature. Further, the Doctorgave opinion at the time of cross examination that when the firstaccused was running from the place of occurrence, such injuries werelikely to happen. Under these circumstances, non explanation of theinjuries sustained by the accused is not fatal to the prosecution.Further, it was never the case of the accused anywhere that theysustained injuries in the same transaction. Hence the court isunable to agree with the learned counsel for the appellants.8.Further, the contention of the learned counsel for theappellants that the first information has been suppressed cannot becountenanced. Though a suggestion was put to P.W.2, no correspondingsuggestion has been put to the Inspector of Police. According tohim, P.W.1 came to the police station and gave Ex.P.1, the reportand on the strength of which, the case came to be registered andhence it leaves no doubt in the mind of the court. 9.Equally, the contention put forth by the learned counsel forthe appellants that the investigation has actually been commencedbefore the registration of the case cannot be countenanced. Thelearned counsel relied on the evidence of P.W.8, the photographer inrespect of this contention. According to the prosecution, theoccurrence has taken place at 7.00 p.m. The place of occurrence issituated 20 Kms. from Ulundurpet. P.W.8, the photographer, is havinghis photo studio at Ulunderpet. He has given his evidence to theeffect that he took the photographes at about 7.00 p.m., which washumanly impossible. Therefore, it would be quite indicative of thefact that it was only a mistaken version of the photographer. Givingbenefit to the mistaken version, the court cannot come to theconclusion that the investigation has actually been commenced evenbefore the case was registered. 10.Apart from that, it is true, no report was received from theForensic Science Department in respect of the analysis made withregard to the M.Os. But, there is evidence to indicate that both theM.Os., namely stone and the stick, were recovered from A-1 and A-2 https://hcservices.ecourts.gov.in/hcservices/ respectively pursuant to their confessional statements and evidencewas also placed before the trial court to that effect. Hence therecovery of weapon of crime pursuant to the confessional statementsgiven by the accused, in the considered opinion of the court, wouldbe pointing to the nexus of the accused with the crime. All puttogether would clearly indicate that A-1 and A-2 have jointly sharedthe intention and have attacked the deceased and caused his deathinstantaneously. The trial court has come to a correct conclusionafter marshaling the evidence proper. Hence there is nothing foundeither factually or legally to interfere with the judgment of thetrial court.11.In the result, this criminal appeal fails and the same isdismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vvkTo1.The Principal Sessions Judge, Villupuram, Villupuram District.2.Inspector of Police, Ulundurpet Police Station, Ulundurpet, Villupuram District.3.The Additional Pubic Prosecutor, High Court, Madras.4. The SuperintendentCentral Prison, Cuddalore1 cc to Mr.K.G. Senthil Kumar, Advocate, SR. 814CRL.A.NO.474 OF 2008RSI (CO)kk 21/1