Ganesh @ AjeetS/o Sakthivel v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.02.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.528 of 2007Ganesh @ AjeetS/o Sakthivel.. Appellant-vs-State rep.by its Inspector of PoliceB-7 Ramanathapuram Police StationCoimbatore..RespondentMemorandum of Grounds of Criminal Appeals under Section 374(2)of the Criminal Procedure Code against the judgment dated24.05.2007 made in S.C.No.337 of 2006 on the file of the learnedAdditional District & Sessions Judge/Fast Track Court No.I,Coimbatore.For Appellant::Mr.C.S.DhanasekaranFor Respondent::Mr.P.KumaresanAddl. Public Prosecutor JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN, J.)The appellant/sole accused was tried in S.C.No.337 of 2006 onthe file of the learned Additional District & Sessions Judge/FastTrack Court No.I, Coimbatore. By the judgment dated 24.05.2007, hewas found guilty of the offence under Section 302 IPC and sentencedto undergo life imprisonment and also to pay a fine of Rs.1,000/-in default to undergo simple imprisonment for three months.Challenging the said conviction and sentence, the present appealhas been filed.2. The case of the prosecution is that the appellant-accusedhad borrowed a sum of Rs.1,000/- from the deceased-Bagyaraj and thesaid amount was not repaid by the accused in spite of repeatedrequests. At about 8.00 p.m., on 3.6.2006, the accused had calledthe deceased to Maasaniamman Temple on the promise that he willrepay the amount. Believing his words, the deceased went to seethe accused at Maasaniamman Temple. However, the accused, byuttering that only if the deceased is alive he would demand the https://hcservices.ecourts.gov.in/hcservices/ money, threw chilli powder on the face of the deceased and stabbedhim with the knife. Thereafter the accused ran away from theplace of occurrence. Later on the deceased was found fighting forhis life by P.Ws.3 & 4 apart from one Padmavathi, wife of P.W.4.On seeing the deceased fighting for his life, the said Padmavathiintimated the control room through her cell phone.3. On receipt of message from the control room, P.W.26, theSub Inspector of Police attached to B-7 Ramanathapuram PoliceStation, Coimbatore District, on patrol duty, rushed to the sceneof occurrence around 11.45 p.m., on 3.6.2006 and took the injuredlying unconscious in the police vehicle with the assistance ofP.W.4 and admitted him in the Government Coimbatore Medical College& Hospital, where he was examined by the duty doctor, P.W.20 at12.15 a.m., on 4.6.2006 and as the condition of the injured wasserious, he admitted him in the trauma ward for treatment. 4. In the meanwhile, P.W.26, the Sub Inspector of Policerecorded the statement of the deceased, which is marked as Ex.P-5,at 12.45 a.m., on 4.6.2006 in the presence of the duty doctor,P.W.21. She returned to the police station at 2.00 a.m., andregistered a case in Cr.No.640 of 2006 for the offence underSection 307 IPC and the printed First Information Report is Ex.P-10. She forwarded the express reports to the Court as well as tothe higher police officials. 5. P.W.28, the Inspector of Police attached to B-7Ramanathapuram Police Station, after taking up investigation in thecase, proceeded to the scene of occurrence at 4.00 a.m., on4.6.2006 and caused photographs of the scene place. He prepared anObservation Mahazar, Ex.P-1 and also drew a rough sketch, Ex.P-13in the presence of P.W.7 and another witness. He seized thebloodstained earth, M.O.1 and the sample earth, M.O.2 under themahazar, Ex.P-2 in the presence of the same witnesses at 7.00 a.m.Thereafter, he went to Government Coimbatore Medical College &Hospital and recorded the statement of the injured at 8.00 a.m. Heexamined P.Ws.1 & 2, mother and father of the injured, and recordedtheir statements. He examined P.W.26, the Sub Inspector of Policeand the other Police Constables and recorded their statements. Healso seized the bloodstained lungi, M.O.5, bloodstained half sleeveshirt, M.O.6 and the bloodstained banian, M.O.7 worn by the injuredfrom P.W.26 under the mahazar, Ex.P-14. He sent the bloodstainedearth and the sample earth to the Court under Form-95.6. P.W.23, the Judicial Magistrate No.VI, Coimbatore, onreceipt of requisition under Ex.P-6 from P.W.28, went to thehospital and, after following the procedures and after ascertainingthe fit state of mind of the injured from the doctor, P.W.29,recorded the dying declaration, Ex.P-7 between 10.50 a.m., and11.05 a.m., on 4.6.2006. P.W.29 has also certified that the patientwas conscious and in a fit state of mind throughout the period ofrecording of the dying declaration. 7. P.W.28, in the meanwhile, examined P.Ws.3 & 5 and recordedtheir statements. On receiving information, he went to https://hcservices.ecourts.gov.in/hcservices/ S.N.R.Arangam near Tiruchirappalli road and arrested the accused at5.00 p.m., in the presence of P.Ws.10 and 24. In pursuance of theadmissible portion of his confession under Ex.P-3, he seized theknife, M.O.3 under the mahazar, Ex.P-4 in the presence of the samewitnesses. He brought the accused and the seized material objectsto the police station and remanded the accused to judicial custody.He sent the material objects to the Court under Form-95. As hereceived intimation from the doctor, P.W.22 that the injured haddied at 7.10 a.m., on 15.6.2006, he altered the offence to oneunder Section 302 IPC and sent the altered report, Ex.P-15 to theCourt. Thereafter, he went to the mortuary at 11.30 a.m., andconducted inquest on the body of the deceased in the presence ofthe panchayatdars and witnesses and prepared the inquest report,Ex.P-16. He sent a requisition under Ex.P-11 through the HeadConstable, P.W.12 to the doctor for conducting post-mortem on thebody of the deceased.8. P.W.27, Professor, Department of Forensic Medicineattached to Coimbatore Medical College & Hospital, commenced post-mortem at 2.45 p.m., on 15.6.2006 and he noted the following ante-mortem injuries:-"(1) Transverse infected sutured wound 2cmx 1/2cm x 3cm (muscle-deep) present over leftside of neck 5cm behind the left ear.(2) There is an obliquely placed 'T' shapedsutured stab wound each of the 2 limbs measuring3cm present over the front of the right chesttouching the lower border of right nipple and 6cmaway from midline. The wound passes backwardsdownwards and inwards through the 4th rightintercostal space 5cm away from midline 3cm x2cm. The wound enters into the right pleuralcavity and pierces through the lateral surface ofthe lower lobe of the right lung over 3x2cmtravels for 6cm through the substance of thelower lobe of the lung and emerges through itsinferior surface over 2cm x 1cm and enters thepericardial cavity piercing through its rightlateral pericardial sac 2cm x 1cm and stops shortof injuring the cariac wall. Right pleural cavitycontains 200ml of brown coloured turbid fluid andthe pericardial tear is covered with purulentslough.(3) A sutured infected wound 2cm x 1cm xpleural cavity deep present over right chest wall8cm below the axilla.(4) A lacerated wound 6 cm x ½ cm skin deepover present the antero lateral aspect of rightlower thigh.(5) A lacerated sutured wound 2cm x 1/2cmbone deep present over the inner aspect of theproximal phalanx of the left thumb.(6) A 25 cm long upper midline sutured(laparotomy) wound present over the front ofabdomen along with a 1.5 cm diameter drainage https://hcservices.ecourts.gov.in/hcservices/ wound in right ileac fossa & 1cm x 0.5cm drainagewound in left ileac fossa. On dissectionperitoneal cavity contained about 100 ml ofturbid muddy fluid & the peritoneum and omentumwere surfaced by flakes of muddy matter. There isan end to end anastomosis done the level ofmidileum (intact), the distal ileal loops andomentum were adherent to each other and muddy."He issued the post-mortem certificate, Ex.P-12 with his opinionthat the deceased would appear to have died of multiple injuriesand their complications.9. P.W.28 examined P.Ws.1,2,16,17,19,20,22,27 on variousdates and recorded their statements. He sent the seized materialobjects through the Court for chemical examination under therequisition Ex.P-17. After completing investigation on 28.7.2006,he laid the final report against the accused before the Court. 10. The prosecution examined 29 witnesses, marked 17 exhibitsand produced 7 material objects in order to prove its case. 11. When the accused was questioned under Section 313 of theCriminal Procedure Code as to the incriminating materials appearingagainst him, he denied each and every incriminating material asfalse. No witness was examined and no document was marked on theside of the defence. However, the learned trial Judge found theaccused guilty, convicted and sentenced him for the offence asstated earlier.12. Mr.C.S.Dhanasekaran, learned counsel for the appellantsubmitted that as there is no eye-witness in this case, theprosecution has relied upon only the following circumstancesnamely, (1) that there was a loan transaction between the accusedand the deceased and for non payment of the loan, the deceased haddemanded the same from the accused and, therefore, the accused hadcommitted the murder. However, there is no evidence for the loantransaction. (2) The investigation is tainted inasmuch as theprosecution has not come forward with a true version of theoccurrence and the genesis of the entire prosecution case isdoubtful. In support of the said submission, the learned counselwould submit that the statement, Ex.P-5 said to have been recordedby P.W.26, the Sub Inspector of Police in the hospital could nothave been recorded, as both the doctors namely, P.Ws.20 & 21 havestated that the deceased was brought unconscious to the hospitaland was admitted in the accident ward. In fact the doctor, P.W.21has stated that the deceased regained consciousness only after 8.00a.m., on 4.6.2006. In the above backdrop, the claim of theprosecution that the deceased had given the statement at 12.45a.m., on 4.6.2006 is untrue and has been made only on theinstructions of P.Ws.1 & 2, the mother and father of the deceased,who were present in the hospital right from the admission of thedeceased and till his death. (3) The dying declaration, Ex.P-7recorded by the Judicial Magistrate, P.W.23 is also tutored sinceP.Ws.1 & 2 were present with the deceased and in fact the https://hcservices.ecourts.gov.in/hcservices/ statements made in the dying declaration before the Magistrate andin the complaint before the police are far from truth throwing aserious doubt about the veracity of such statements by the accused,especially when he was fighting for his life immediately after theoccurrence. (4) In any case, the doctor, P.W.20, who saw thedeceased initially had noticed only two injuries. On the otherhand, the doctor-P.W.21, who was present when Ex.P-5 was recorded,had noticed four injuries and to the worse, the post-mortem doctor,P.W.27 had noticed as many as six injuries. There is noexplanation to the variation in the medical opinion as to thenumber of injuries found on the deceased. He would also submitthat the post-mortem doctor has also found a sutured wound on thestomach of the deceased, but that injury did not relate to theoccurrence and there was some infection in that wound due to theoperation. Therefore, even if the occurrence is proved, in theabsence of any strong motive and the fact that the deceased diedafter 12 days, the appellant cannot be convicted for the offenceunder Section 302 IPC, but could be convicted only for the offenceunder Section 304 (Part-II) IPC.13. We have heard Mr.P.Kumaresan, learned Additional PublicProsecutor for the respondent. So far as the motive is concerned,he would rely upon the evidence of P.Ws.1 & 2 regarding the moneytransaction between the accused and the deceased. In fact both ofthem have spoken about the enquiry made by the deceased just onehour prior to the occurrence as to whether the accused had repaidthe money and he has also informed that he had been asked to cometo Maasaniamman Temple by the accused for repaying the money andtherefore he went to the said temple. The motive has beenestablished since only the deceased requested for repayment of theamount paid to the accused and the accused had committed the murderto avoid repayment. Further the prosecution has proved the lastseen theory through P.W.9, as he has spoken that he saw both theaccused and the deceased near Maasaniamman Temple just before theoccurrence. The prosecution has also let in evidence through P.W.8to show that after the occurrence at 9.45 p.m., on 3.6.2006, P.W.8had seen only the accused. He would also submit that the deceasedin fact had informed P.Ws.3 & 4 at the earliest point of time thathe had been attacked by the accused even before he was admitted inthe hospital. Therefore the learned Additional Public Prosecutorhas submitted that the motive as well as the occurrence have beenestablished. So far as the discrepancy as to the injuries sustainedby the deceased is concerned, he would submit that of course thedoctor, P.W.20 who had seen the deceased at the earliest point oftime has deposed that he found only two injuries on the deceased.Unfortunately the accident register has not been marked. Had theaccident register been marked, the actual number of injuries on thebody of the deceased could have been found. In the absence of thecopy of the accident register, the evidence of the next doctor,P.W.21 who had seen the deceased can be accepted. According toP.W.21, he has seen four injuries, especially the injury on theright side of the chest is spoken to by him, which is alsosupported by the medical evidence namely, post-mortem certificate,Ex.P-12 issued by P.W.27. In fact P.W.27, the doctor who conductedpost-mortem, has found many sutured wounds on the body of the https://hcservices.ecourts.gov.in/hcservices/ deceased, presumably due to the operation conducted by the doctorsto save the life of the deceased. In the said process, they alsoconducted one operation on the stomach of the deceased, which lateron turned out to be an infected one. Merely because of someinfection in the small intestine, that will not be a ground todisbelieve the prosecution case put forth by way of medicalevidence as to the injuries caused to the deceased by the accused.For the above reasons, the learned Additional Public Prosecutorsubmitted that the prosecution has established all thecircumstances beyond reasonable doubt.14. We have carefully considered the respective submissions.So far as the first contention relating to the motive is concerned,we have the evidence of P.Ws.1 & 2. P.W.1 is the mother of thedeceased and P.W.2 is the father of the deceased and both of themare the fit persons to speak about the money transaction betweenthe accused and the deceased. In fact just one hour prior to theoccurrence, the deceased is said to have contacted his mother-P.W.1and enquired whether the accused had repaid the amount ofRs.1,000/- as promised by him. Therefore, in all probability, theinformation of the deceased to P.Ws.1 & 2 that he was asked by theaccused to come in front of Maasaniammal Temple must be acceptedand therefore only, he had gone to the said place to collect themoney from the accused. Though the learned counsel for theappellant has submitted that the motive is very weak and such amotive cannot be a ground for committing the murder, we are of theconsidered view that the motive for the commission of the offencevaries from person to person and it depends upon the person'sstatus and the money transaction over a sum of Rs.1,000/- betweenthe accused and the deceased cannot be ignored in this case and,therefore, merely because there is no other independent evidence tospeak about the money transaction between the accused and thedeceased, the Court cannot hold that the prosecution has failed toprove the motive. Hence we reject the first contention relating tothe motive.15. The next contention of the learned counsel for theappellant is that the complaint, Ex.P-5 could not have beenregistered at 12.45 a.m., on 4.6.2006 as contended by theprosecution, since the doctors, P.Ws.20 & 21 have specificallydeposed that the deceased was brought unconscious to the hospitaland he had regained consciousness only at 8.00 a.m., on 4.6.2006.In our opinion, the said contention is liable to be rejected forthe simple reason that after the First Information Report wasregistered at 2.00 a.m., it was sent to the Magistrate and the samewas received by the Magistrate at 6.00 a.m., on 4.6.2006 along withthe copy of the complaint also. We have to necessarily refer toone fact that nothing was elicited from the Magistrate that he hasante-timed the receipt of the First Information Report as well asthe complaint. In the absence of any defence taken and theMagistrate was not controverted as to the above aspect, we are notinclined to entertain such a plea at this stage as we have to go bythe records. If the endorsement of the Magistrate as to thereceipt of the First Information Report and the copy of thecomplaint as borne out of record is taken into consideration, https://hcservices.ecourts.gov.in/hcservices/ certainly, the complaint, Ex.P-5 could have been recorded muchprior to 6.00 a.m., on 4.6.2006.16. There is one more strong circumstance put against theaccused namely, the dying declaration, Ex.P-7 recorded by theJudicial Magistrate No.VI, Coimbatore. Before the dyingdeclaration was recorded, the Magistrate had ascertained the fitstate of mind as well as he consciousness of the deceased to givesuch a statement. In fact P.W.29, the doctor was also present andhe has certified the consciousness of the deceased before and afterthe recording of the dying declaration. In the dying declaration,the deceased has specifically implicated the accused for thecommission of the offence and there is absolutely no variation inhis statement before the Magistrate as well as before P.W.26, theSub Inspector of Police who recorded the statement, Ex.P-5 from thedeceased, which was later on treated as the complaint andregistered as the First Information Report. In fact, even beforeExs.P-5 and P-7 had come into existence, from the evidence ofP.W.3, it is seen that the deceased had informed P.W.3 that he wasattacked by the accused. This statement was in fact made by thedeceased while he was taken to the hospital for treatment. For allthe above reasons, we are of the considered view that there is novariation or discrepancy in the dying declaration. However, thedying declaration recorded by the Magistrate is questioned on theground that there was a possibility of tutoring the deceased tofalsely implicate the accused, since right from the admission ofthe deceased in the hospital and till his death, P.Ws.1 & 2 werepresent with him. Again this submission cannot be accepted for thesimple reason that the Magistrate, who recorded the dyingdeclaration, has not been controverted with any question as to thepossibility of tutoring by P.Ws.1 & 2 to falsely implicate theaccused. In the absence of any such defence, we are not inclined toentertain such a contention in the appeal. For all these reasons,we are of the considered view that the prosecution has proved allthe circumstances as to the involvement of the accused in thecommission of the offence and we will have to necessarily rejectall the contentions made on behalf of the accused questioning theconviction.17. This leads us to the last submission of the learnedcounsel for the appellant as to the sentence, particularly, withreference to the offence. The deceased was at the earliest pointof time seen by the doctor, P.W.20 attached to GovernmentCoimbatore Medical College & Hospital. In his evidence, he hascategorically stated that he noticed only two injuries namely, 3 x2 cm of lacerated wound on the right chest and 5 x 5 cm abrasion onthe right thigh. Except the above two injuries, he has not noticedany injuries on the body of the deceased. Strangely, theprosecution has failed to mark the accident register as well as thewound certificate issued by P.W.20, though he has admitted that heprepared the accident register and the wound certificate and gavethem to the Investigating Officer.18. Coming to the evidence of the doctor, P.W.21, of course,he has also found the same two injuries as noticed by P.W.20. In https://hcservices.ecourts.gov.in/hcservices/ addition to the above, he has noticed the injuries on the smallintestine after an operation was conducted and the post-mortemdoctor, P.W.27 had found as many as six injuries on the variousparts of the body of the deceased including the two injuriesnoticed by P.W.20. In fact his opinion is that the deceasedshould have died of multiple injuries and their complications. Hehas admitted that there was an infection due to the surgeryconducted on the small intestine.19. From the above facts, we will have to necessarily go backto the evidence of P.W.20 as to the nature of injuries sustained bythe deceased in the occurrence. P.W.20 has spoken only twoinjuries, which we have referred to earlier. Of course, the secondinjury was due to an operation performed on the left thigh of thedeceased. The first injury is on the right chest necessarilymeaning thereby that in the occurrence, the deceased had sustainedonly one injury and he has been treated for almost 12 days in thehospital and in the meantime, there were at least three surgeriesconducted and he died only after 12 days. Going by the above factsand coupled with the further fact that the accused had inflictedonly one injury, which is also not on the vital part but on theright chest, and the opinion of the doctor is that the deceased haddied due to the multiple injuries and due to the furthercomplications, we are of the considered view that the accused canbe convicted and sentenced only for the offence under Section 304(Part-II) IPC.20. In fine, we set aside the conviction and sentence imposedon the appellant for the offence under Section 302 IPC and insteadconvict him for the offence under Section 304 (Part-II) IPC andsentence him to undergo rigorous imprisonment for ten years andalso to pay a fine of Rs.1,000/-, in default to undergo simpleimprisonment for three months. The appeal stands disposed of withthe above modification in the conviction and sentence. sd/-Asst.Registrar/true copy/Sub Asst.Registrarss https://hcservices.ecourts.gov.in/hcservices/ To1. The Addl. District & Sessions Judge, (Fast Track Court No.I), Coimbatore2. -do- thru' the Principal Sessions Judge, Coimbatore3.The Judicial Magistrate No.6, Coimbatore.4.-do- Thro' The Chief Judicial Magistrate, Coimbatore.5. The Superintendent, Central Prison, Coimbatore6. The Public Prosecutor, High Court, Madras7. The District Collector, Coimbatore8. The Director General of Police, Chennai9. The Inspector of Police, B-7, Ramanathapuram Police Station, Coimbatore+1 cc To Mr.C.S.Dhanasekaran, Advocate, SR.9004.Crl.A.No.528 of 2007ksk [co]gkg/12.3