Chinnan Chetty v. State rep. By Inspector of Police, Marandhahalli Police Station, Dharmapuri

BAIL SLIP---The Appellant/Accused Viz 1.Chinnan Chetty, Aged 65 yearsS/o.Chinna Nanjunda Chetty. 2.Paari, Aged 49 years S/o.Chinnan Chettywere directed to be released on bail as per order of this Court dated16.6.2008 and made in Crl.M.P.No.1/08 in Crl.A.No.516/2007 on thefile of this Court.----IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL No.516 OF 20071. Chinnan Chetty2. Paari.. Appellants/AccusedVs.State rep. By Inspector of Police,Marandhahalli Police Station,Dharmapuri,(Crime No.1020/1997).. Respondent/Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additiona Sessions Judge,Fast Track Court, Dharmpari, made in S.C.No.291 of 2006, dated7.6.2007. For Appellant : Mr.R.C.Paul KanagarajFor Respondents: Mr.N.R.Elango, A.P.P. J U D G M E N T (The judgment of the court was delivered by M.CHOCKALINGAM, J.)This appeal challenges the judgment of the Sessions Division,Dharmapuri made in S.C.No.291 of 2006 whereby the appellants stoodcharged, tried and found guilty as follows:(i) A1 and A2 were found guilty under section 302IPC and awarded life imprisonment along with fine ofRs.2000/- each, in default, to undergo one yearrigorous imprisonment each. https://hcservices.ecourts.gov.in/hcservices/ (ii) A1 was found guilty under section 323 IPCand awarded the punishment of fine of Rs.500/-, indefault, to undergo 15 days rigorous imprisonment(iii) A2 was found guilty under section 324 IPCand awarded fine of Rs.1000/-, in default, to undergoone month rigorous imprisonment.2. The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 is the wife of the deceased Arumuga Chetty. ArumugaChetty had 4 brothers, out of whom, two of them died already. Thesecond accused is the son of the first accused. A1 is the brother ofthe said Arumuga Chetty. The deceased and his brothers divided thefamily properties and were enjoying their respective propertiesseparately. The deceased executed an instrument in favour of his onlydaughter. He gave all the property to the only daughter by way ofinstrument which was not liked by the first accused. On an earlieroccasion, Arumuga Chetty was attacked by A1 and A2. From that time,there was strained relationship between both the families. On thedate of occurrence i.e., on 26.10.1997 at about 5.30 a.m., the saidArumuga Chetty went to his field and cut the ridge for the flow ofwater. On seeing this, A1 questioned, how he could do so. At thattime, A2 was also present there. Both of them immediately dragged himto their land and tied him with the margosa tree with a plastic rope.When P.W.1 was informed, she rushed to the spot and she requestedthem not to beat him but, A1 kicked P.W.1. She fell down.Immediately, the second accused attacked her with a stick ondifferent parts of the body. A1 also joined with him and attacked heron different parts of the body. Both the accused attacked thedeceased who was also tied with the tree. P.W.1 raised alarm.Immediately, both the accused fled away from the place of occurrence. (b) P.W.1 asked P.W.3 to take her husband to the hospital. ThenP.W.1 proceeded to Marandahalli Police Station and gave a complaintat about 10.00 p.m. on 26.10.1997. P.W.10-Sub Inspector of Police, onthe strength of Ex.P1 report, registered a case in Crime No.1020/197.The F.I.R. Ex.P18 was despatched to Court. Thereafter, P.W.2 tookArumuga Chetty to Palacode Government Hospital. P.W.6 doctor attachedto the Government Hospital gave initial treatment. At about 11.10p.m. P.W.6 medically examined P.W.1 and the accident register inthat regard was marked as Ex.P2. On 27.10.1997, at about 1.15 a.m.P.W.6 also examined Arumuga Chetty who was brought by P.W.3 .Thereafter, P.W.6 advised them to take Arumuga Chetty to theGovernment Hospital at Bangalore.(c) P.W.10 took up investigation. He proceeded to the spot, madean inspection and prepared the Observation Mahazar Ex.P19 and arough sketch Ex.P20. He also examined the witnesses and recordedtheir statement. Thereafter, on 27.10.1997 at about 9.420 a.m.Arumuga Chetty who was admitted in the Hospital at Bangalore, died. https://hcservices.ecourts.gov.in/hcservices/ (d) An intimation was given to Willson Garden Police Station andP.W.8 Sub Inspector of Police of Willson Garden Police Station, onreceipt of information at 13.45 hours, registered a case in CrimeNo.276/1997 under Section 174 Cr.P.C and the F.I.R. in that regardwas marked as Ex.P8. It was in Kannada and it was translated in Tamiland the same was marked as Ex.P9. The said F.I.R was despatched tothe Court.(e) The Sub-Inspector conducted inquest on the dead body of thedeceased and the inquest report was marked as Ex.P10. The dead bodywas subjected to post mortem. P.W.12 doctor conducted autopsy andgave his opinion in the post mortem certificate that the deceaseddied out of shock and also due to excessive bleeding and head injuryand the said post mortem certificate was marked as Ex.P.24. Afterreceipt of the copy of the post mortem certificate, the case wasconverted from section 174 Cr.P.C. to Section 302 I.P.C. and theamended F.I.R. was despatched to Court. (f) Pending investigation, both the accused were arrested. A1came forward to give confessional statement. The admissible part ofthe same was marked as Ex.P22, pursuant to which, he produced M.O.2bamboo stick, M.O.1- Malu (knife) and M.O.3- rope. They wererecovered under a cover of mahazar Ex.P23. Further, A2 came forwardto give confessional statement. The same was recorded and theadmissible part of the same was marked as Ex.P.5. The Investigatingofficer examined the witnesses and recorded their statement and sentthe accused to judicial remand. After completion of theinvestigation, the investigating officer filed a final report.(g) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 13 witnesses and reliedon 24 exhibits and 3 material objects. After completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C., they denied them as false. No defencewitness was examined. The trial Court after hearing the argumentsadvanced on either side, took the view that the prosecution hasproved the case beyond reasonable doubt and found the accused guiltyand rendered the judgement of conviction and sentence as referred toabove. Hence, this appeal at the instance of the appellants.3. Advancing the arguments on behalf of the appellants, thelearned counsel would submit that in order to substantiate thecharges levelled against the appellants, the prosecution examinedP.W.1, not only as the eye witness but also as an injured witness.It was P.W.1 who gave Ex.P1 report. According to the prosecution, asper Ex.P1 report , the occurrence has taken place at about 5.30 p.m.on 26.10.1997. P.W.1 has categorically admitted that she went to thepolice station at 7.00 p.m. and informed the Police Officer about theoccurrence and thereafter, she went to the Government Hospital fortreatment. The case was registered at about 10.00 p.m. Thus, itwould be taken that the F.I.R. could not have come into existence asput forth by the prosecution. https://hcservices.ecourts.gov.in/hcservices/

4. Pending appeal, A1 died and the appeal was actuallyprosecuted by A1. Even from the evidence available, A2 could not havebeen present at the place of occurrence. According to P.W.1 when herhusband was being attacked by A1 and A2, she was in the house and shewas informed by one Murugan but the said Murugan was not examined.After getting information, she went to the spot. She found herhusband tied with the margosa tree. When she questioned the same,she was also attacked. Had it been true, she would have raised alarmand the neighbours around the place would have arrived but she hasnot taken any steps at all. According to P.W.2, he went to the spot.He found A1, he talked to him but at the time he did not find A2 atall which would mean A2 was not at all present at the place ofoccurrence. When P.W.1 gave Ex.P1 she has stated A2's name withulterior motive that A2 was also was also present and both attackedthe deceased and P.W.1. 5. Added further learned counsel, P.W.4 would claim that he wasthe neighbour of the deceased. From the evidence of P.W.4 and alsofrom the evidence of P.W.2 it would be quite clear that P.W.2 didnot take the deceased to the hospital but the police came to thescene of occurrence which would indicate that the police had theknowledge of the occurrence even earlier. The occurrence, accordingto the prosecution, has taken place at 5.30 p.m. on 26.10.1997 andthe deceased was immediately taken to hospital by P.W.2 but as perEx.P2 accident register issued in the Government Hospital, Palacode,the deceased was admitted in the hospital at 1.15 a.m. on27.10.1997 and no explanation was forth coming from the prosecution nthat regard.6. According to P.W.3, he saw the deceased in the hospital onlyafter the deceased was admitted but the Accident register Ex.P3 wouldindicate that it was P.W.3 who admitted the deceased in the hospital.This witness was examined after two years from the date ofoccurrence. Ex.P1 though claimed to be received by P.W.10 at10.00 p.m. on 26.10.1997, it reached the Court only on 27.10.1997after 11.00 a.m. i.e., after a delay of 13 hours. Therefore, thearrest, confession and recovery were all manipulated for the purposeof the case. 7. Added further learned counsel, insofar as A2 was concerned,even assuming the factual position putforth by the prosecution thatA2 attacked both the deceased and P.W.1, he beat them only with abamboo stick and there is nothing to indicate that there was anycommon intention to kill the deceased along with A1. The post mortemcertificate would indicate that the injury on the head of thedeceased was fatal and that was caused by A1. Though P.W.1 hasstated that A2 attacked him with stick on different parts of the bodyno corresponding injuries were found. The only injury that is noticedin the post mortem certificate was that it was caused below the knee.Insofar as the charge under section 324 IPC against A2 was concerned,the trial Court has imposed a punishment of fine. Under suchcircumstance, there is nothing to indicate A2's involvement in thecrime. Hence, A2 has got to be acquitted. https://hcservices.ecourts.gov.in/hcservices/

8. The Court heard the Additional Public Prosecutor on the abovecontentions and paid its anxious consideration on the submissionsmade.9. It is not in controversy that Arumuga Chetty, husband ofP.W.1 was taken to the hospital at Palacode from the place ofincident. Thereafter, he was taken to the Government Hospital atBangalore, where he was declared died. Following the inquest made bythe investigating officer, the dead body was subjected to postmortem. P.W.12 doctor gave his opinion that the deceased died outof shock due to head injury sustained. The fact that Arumuga Chettydied out of homicidal violence was never disputed by the appellantbefore the trial Court.10. Pending the appeal, A1 died and it was also recorded.Insofar as A2 was concerned, the appeal is further prosecuted. Inorder to substantiate the charges levelled against the appellants,the prosecution examined P.W.1 as not only the eye witness but alsoas an injured witness. From the evidence of P.W.1, it could be seenthat her husband was tied with the margosa tree and it was A1 whoattacked him with Malu (knife) on different parts of the body. Fromthe medical opinion canvassed through post mortem doctor, the headinjury was fatal and it has caused the death of the deceased. P.W.1has categorically deposed that A2 also attacked the deceased withbamboo stick and the corresponding injures are also found ondifferent parts of the body, but all those injuries are found to besimple, as could be seen from the available materials. There isnothing to indicate that both the appellants had common intention toshare. It was A1 who caused the fatal injury and he was found guiltyunder section 302 I.P.C. When A1 was serving sentence, pendingappeal, he died. Thus, the appeal, insofar as A1 is concerned, itstands abated. 11. A1 and A2 had no common intention. In the absence of anymaterials to indicate that A2, in furtherance of common intentionhad kill the deceased Arumuga Chetty, A2 cannot be punished forcausing the death of the deceased but he has got to be dealt with forhis individual act. Insofar as A2 is concerned, as noticed inthe post mortem certificate, injury was found below the knee andon different parts of the body. The injury on the head, caused byA1 was found to be fatal. Under such circumstances, the Court is ofthe opinion that A2 has to be found guilty under section 324 I.P.Cfor causing simple injuries on the deceased and the award of twoyears rigorous imprisonment would meet the ends of justice. Insofaras injury caused by A2 on the body of P.W.1 is concerned, the lowercourt, though found A2 guilty under section 324 I.P.C., it hasimposed a punishment of payment of fine. Insofar as that part isconcerned, no appeal has been preferred by the State in that regardand hence, that part of the judgement cannot be disturbed. 12. Accordingly, the judgment of conviction and sentenceimposed on the appellant under Section 302 IPC is modified andinstead, the appellant is convicted under Section 324 IPC and issentenced to undergo 2 years R.I. The period of sentence already https://hcservices.ecourts.gov.in/hcservices/ undergone by the appellant is ordered to be given set off. The fineamount imposed under Section 302 IPC shall be treated as fine amountimposed under Section 324 IPC. In other respects, the judgment of thetrial court will hold good. 13. With the above modification in conviction and sentence, thiscriminal appeal is dismissed. By order dated 17.7.2009, this courthas issued non bailable warrant as against A2. Hence, the learnedSessions Judge is directed to take steps to secure the presence of A2and commit him to prison to serve the remaining period of sentenceimposed upon him. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarvsiTo1. THE ADDITIONAL SESSIONS JUDGE FAST TRACK COURT, DHARMAPURI.2. -DO- THROUGH THE PRINCIPAL SESSIONS JUDGE, FTC, DHARMAPURI.3. THE INSPECTOR OF POLICE MARANDHAHALLI POLICE STATION, DHARMAPURI.4. THE ADDITIONAL PUBLIC PROSECUTOR, HIGH COURT, MADRAS5. THE JUDICIAL MAGISTRATE, PALACODE, DHARMAPURI.6. THE CHIEF JUDICIAL MAGISTRATE DHARMAPURI @ KRISHNAGIRI.7. THE SUPERINTENDENT CENTRAL PRISON, VELLORE.+1 cc to Mr.R.C.Paul Kanagaraj, Advocate, SR.No.33402 CRL.A.No.516 of 2007PKB {CO}TP/11.8.2009.