Thirugnanasambanda Moorthy v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.676 of 20081.Thirugnanasambanda Moorthy2.Anbarasan3.Tamilarasan.. Appellants/Accused No 1 to 3vsState rep. ByInspector of PoliceKumaratchi Police StationKumaratchiCrime No.73 of 2006.. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional Districtand Sessions Judge, (Fast Track Court No.I), Chidambaram, made inS.C.No.281 of 2007 dated 18.7.2008.For Appellants: Mr.S.Ashok Kumar Senior Counsel for Mr.C.D.JohnsonFor Respondent: Mr.N.R.Elango Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Additional SessionsDivision, Fast Track Court No.I, Chidambaram, made in S.C.No.281/2007whereby the appellants three in number, stood charged, tried andfound guilty as followsACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-3294(b) IPCGuilty3 months RIA-1307 IPCGuilty10 years RI witha fine ofRs.5000/- anddefault sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-2 & A-3307 r/w 34 IPCGuilty10 years RI witha fine ofRs.5000/- anddefault sentenceA-2 & A-3326 IPCGuilty10 years RI witha fine ofRs.5000/- anddefault sentenceA-2302 IPCGuiltyLifeimprisonmentalong with afine ofRs.5000/- anddefault sentenceA-1 & A-3302 r/w 34 IPCGuiltyLifeimprisonmentalong with afine ofRs.5000/- anddefault sentence2.Short facts necessary for the disposal of this appeal can bestated thus:(a) P.W.1 is a native of Nalanputhur Village. A-1 is the fatherof A-2 and A-3. P.W.1 is the brother of the deceased Kalaimani. Thehouses of the prosecution witnesses and the accused party weresituated next to each other. A tamarind tree in the house of thedeceased was stretching its branches towards the property of theaccused. They were quarreling with each other on that ground. Oneday, the accused cut the branches. Then the help of P.W.7, theVillage Administrative Officer (VAO), was sought for. He came to thespot, measured the property and found that the tamarind tree waswithin the property of the prosecution witnesses. Thereafter, P.Ws.1and 2 put a fence. Aggrieved over the same, A-1 gave a complaint tothe respondent police station on 31.5.2006. P.Ws.1 and 2 weresummoned, but they did not go to the police station. (b) On 1.6.2006 at about 7.00 A.M., A-1 along with his two sonsA-2 and A-3 uttered in filthy language. On hearing this, P.W.2questioned the accused party why should they speak in filthy languageafter approaching the police. Immediately, A-2 cut P.W.2 on hishead. A-1 and A-3 attacked P.W.2 and in that process, A-2 caused thehead injury to the deceased by attacking him with an aruval. P.W.1also witnessed the occurrence. While the crowd gathered, the accusedfled away from the place of occurrence. (c) P.W.1 took both the deceased and also the injured P.W.2 tothe Government Kamaraj Hospital, Chidambaram, where P.W.20, theDoctor, medically examined both at 8.00 P.M. and 9.00 P.M.Respectively. The wound certificates are marked as Exs.P16 and P17 https://hcservices.ecourts.gov.in/hcservices/ respectively. Thereafter, both were advised to take further treatmentat Rajah Muthiah Medical College and Hospital, Annamalai University.Accordingly, both were taken and at about 9.30 P.M. P.W.19, theDoctor, gave treatment to both. Ex.P14 is the copy of the accidentregister for the deceased and Ex.P15 for P.W.2. Thereafter they werefurther advised for better treatment at Pondicherry Institute ofMedical Sciences, where they were treated by P.Ws.21 and 23, theDoctors. Ex.P19 is the discharge summary for P.W.2 and Ex.P21 is themedical records for the deceased. (d) P.W.27, the Inspector of Police, attached to the respondentpolice station, on receipt of the intimation from the GovernmentKamaraj Hospital, Chidambaram, proceeded to Chidambaram and came toknow that he was taken to Rajah Muthiah Medical College and Hospital,Annamalai University, and further he was informed that the deceasedwas taken to Pondicherry Institute of Medical Sciences. Accordingly,he went to Pondicherry at about 6.30 P.M. on 2.6.2006 and recordedthe statement of P.W.1, which is marked as Ex.P1. On the strength ofthe said statement Ex.P1, P.W.27 registered a case in CrimeNo.73/2006 under Sections 294, 324, 326 and 307 IPC. The printed FIR,Ex.P29 was despatched to the Court. (e) P.W.27 took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P3, and also arough sketch, Ex.P30. Then he recovered the material objectsincluding the bloodstained earth and sample earth, under a cover ofmahazar, Ex.P4. He received an intimation on 3.6.2006, thatKalaimani who was under treatment, died. Then the case was alteredto Sec.302 and other provisions of IPC. Ex.P31, the amended FIR, wasdespatched to the Court. An inquest was conducted by theInvestigator in the presence of witnesses and pachayatdars, and aninquest report, Ex.P32, was prepared. (f) The dead body was subjected to postmortem by P.W.24, theProfessor and Head, Department of Forensic Medicine, PondicherryInstitute of Medical Sciences, on a requisition by the Investigator.He has issued a postmortem certificate, Ex.P22, with his opinion thatthe deceased would appear to have died of cranio-cerebral cutinjuries. (g) Pending the investigation, all the accused were arrested on5.6.2006. They came forward to give confessional statements whichwere recorded in the presence of two witnesses. The admissible partsare marked as Exs.P33 to P35 respectively. They produced M.Os.1 to3, knives respectively which were recovered under separate mahazars.They were sent for judicial remand. All the material objects weresubjected to chemical analysis by the Forensic Sciences Departmentwhich brought forth Ex.P12, chemical analyst's report, and Ex.P13,serologist's report. On completion of investigation, the Investigatorfiled the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 27 witnesses and also relied on 36 exhibits and https://hcservices.ecourts.gov.in/hcservices/ 8 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses, which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt and hence found the appellants guilty and sentencedthem to imprisonment as stated above. Hence, this appeal at theinstance of the appellants.4.Advancing arguments on behalf of the appellants, the learnedSenior Counsel Mr.S.Ashok Kumar would submit that in the instantcase, the prosecution came out with a story that the occurrence hastaken place on 1.6.2006 at about 7.00 P.M.; that P.Ws.1 and 2 areshown as eyewitnesses out of whom P.W.2 was an injured witness; thatP.W.3, a close relative, has also come to the spot immediately andfound P.W.2 and the severely injured Kalaimani, and it was he whoaccompanied others and took them to the Government Kamaraj Hospital,Chidambaram, and thereafter on advice to Rajah Muthiah MedicalCollege and Hospital, Annamalai University, and then to PondicherryInstitute of Medical Sciences; that though the occurrence is claimedto have taken place at 7.00 P.M. on 1.6.2006, P.W.27 has claimed thathe recorded the statement of P.W.1 at Pondicherry Institute ofMedical Sciences at about 6.00 P.M. on 2.6.2006, but P.W.7, the VAO,has categorically stated that when he went to the spot by 7.00 P.M.On 1.6.2006, the police was present along with the party; that ifreally such an occurrence had taken place and the police was alsopresent that time, naturally one would expect a case to be registeredimmediately; that P.Ws.1 and 3 would claim that they have alsoaccompanied the severely injured namely the deceased and also P.W.2to the Government Hospital; that Ex.P1 report was given after 24hours; and that this would be indicative of the false story.5.Added further the learned Senior Counsel that from theevidence of P.W.7, it would be quite clear that there was a tamarindtree which was stretching its branches towards the house of theaccused; that when there was a quarrel, P.W.7 was called, and he wentover to the spot and found that the tamarind tree was actually on thedivider line, and only on his advice, the prosecution party raisedthe fence; that the prosecution witnesses were quarreling andthereafter, A-1 was compelled to approach the police on 31.5.2006when he gave a complaint; that after the receipt of the complaint,the police have summoned; that the prosecution witnesses instead ofgoing to the police station as per the summons, have entered into thehouse of the accused, damaged the movables and also assaulted thewife of A-1; that this has actually been spoken to by P.W.7, the VAO;that P.W.27, the Investigator, has categorically admitted that acomplaint was given by A-1 on the previous day i.e., 31.5.2006, andapart from that, another complaint was given on 1.6.2006, and it wastreated as CSR No.67/2006; that he would also further add that it wasreferred as mistake of fact; that had it been true, what preventedthe prosecution from filing the copy of the FIR and also the CSR,etc., remained unknown; that even no documents were marked at all;and that this would be indicative of the fact that it was the https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses who have actually entered into the house of theaccused and committed the offences. 6.Added further the learned Senior Counsel that in the instantcase, the prosecution has not brought to the notice of the Court thegenesis of the occurrence, and thus it did not enable the Court tofind out the truth or otherwise of the prosecution case; that P.W.2though claimed to be an eyewitness, has not spoken the truth, but hasgiven a false version; that even the narration of the incident wouldclearly indicate that the prosecution witnesses have spoken thefalsity; that the trial Court without going to the merits orotherwise of the rival contentions or the defence plea or the non-production of the records in CSR No.67/2006, has entered a judgmentof conviction, and hence they are entitled for acquittal in the handsof this Court.7.Added further the learned Senior Counsel in the second line ofargument that even assuming that the factual position put forth bythe prosecution that A-2 attacked the deceased with an aruval on thehead, and A-1 to A-3 attacked P.W.2, this has actually happenedsubsequent to the damage of the property and also the assault made onthe wife of A-1; that if to be so, they have got sufficientprovocation, and they could not have any intention or premeditation;that the same could have been in exercise of their private defence,and it has got to be accepted for recording an order of acquittal bythis Court. 8.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.9.It is not in controversy that following an incident that tookplace at about 7.00 P.M. on 1.6.2006, one Kalaimani, the brother ofP.W.1, was taken to the Government Kamaraj Hospital, Chidambaram, andthereafter to Rajah Muthiah Medical College and Hospital, AnnamalaiUniversity, and then to Pondicherry Institute of Medical Sciencewhere he died on 3.6.2006. Originally the case was registered underSections 324, 326 and 307 IPC against all the three accused, and onhis death, it was converted to a case of murder. Following theinquest made by P.W.27, the Investigator, the dead body of Kalaimaniwas subjected to postmortem by P.W.24 who has given a categoricalopinion that he died out of cranio-cerebral cut injuries. The factthat Kalaimani died out of homicidal violence was never disputed bythe appellants before the trial Court. Thus the trial Court wasperfectly correct in recording a finding that Kalaimani died out ofhomicidal violence.10.In order to substantiate that at the time of the occurrence,it was A-2 who attacked the deceased with the aruval on the head, andA-1 attacked P.W.2 with a knife, and also A-2 and A-3 attacked P.W.2with aruvals, the prosecution rested its case on the direct evidenceof P.Ws.1 and 2, the eyewitnesses. Out of these witnesses, P.W.2 wasan injured witness. It is settled principle of law that in a givencase like this when one of the eyewitnesses happened to be an injured https://hcservices.ecourts.gov.in/hcservices/ witness, unless and until a strong circumstance is noticed or reasonis brought about, the evidence of that witness cannot be discarded.As could be seen from the available materials and the admittedposition also, there was a tamarind tree situated inside the house ofP.Ws.1 and 2 stretching its arm towards the house of the accusedparty. The accused party made an attempt to cut the same. P.W.7,the VAO, made a visit along with P.Ws.8 and 9, his Assistants, whomeasured the property, and also pacified the situation. Thereafter afence was raised by the prosecution witnesses. On the contrary,according to the accused, they raised the fence. Further, it is alsoclear that a complaint was given by the accused party to therespondent police on 31.5.2006, and the prosecution witnesses wereactually called; but, they did not go there. On the contrary, theoccurrence has taken place on the next day namely 1.6.2006. In theinstant case, P.W.7, the VAO, has categorically spoken to the factthat the movable properties of A-1 situated in his house, weredamaged, and also the wife of A-1 was attacked. Now the VAO was nota party to the dispute. Though he did not witness the occurrence,when he went to the spot after the occurrence was over, he came toknow about the same. He would further add that there was policepicketing. When the VAO went over to the spot, it is pertinent tonote that the incident in question has already occurred. 11.It is also true that there was a complaint given by A-1 toP.W.27, and CSR number was assigned as 67/2006; but no documents wereforthcoming before the Court. From the available materials, it couldbe seen that since the police complaint was given by A-1 on31.5.2006, P.Ws.1 and 2 were aggrieved over the same, and instead ofgoing to the police station, they wanted to settle the affairdirectly with the accused, and in that process, they have actuallyentered into the house, damaged the property and also assaulted thewife of A-1. In such circumstances, the incident in question hasarisen, and thus no intention or premeditation could be attributed.It was an occasion where A-1 and the sons A-2 and A-3 were toexercise their private defence, but it has gone to the extent of A-2attacking the deceased on his head with the aruval, which hasdirectly caused his death. A-2 and A-3 have attacked P.W.2 on theleft hand and thereby caused injuries. A-1 has actually cut P.W.2 onthe skull. All would clearly indicate that they have actually actedin exercise of the private defence. Under the circumstances, theyhave got to be dealt with individually for the respective acts. 12.It is true that there was a delay in giving the FIR; but thisCourt is able to see that immediately after the occurrence was over,they were taken to the Government Kamaraj Hospital, Chidambaram, andthereafter to Rajah Muthiah Medical College and Hospital, AnnamalaiUniversity, and then to Pondicherry Institute of Medical Science, andthe Doctors who treated them have been examined as referred to above.The accident register copies have also been placed. All would go toshow that they have spoken about the place of occurrence, and allthree were available in the occurrence spot. All would clearlyindicate that though the FIR has come into existence with a delay, bythat this Court is unable to agree with the defence plea placedbefore this Court that it was a false case. In the instant case it https://hcservices.ecourts.gov.in/hcservices/ cannot be stated that the origin of the occurrence is actuallysuppressed. It is true that the records relating to CSR No.67/2006were not placed before the Court; but, the evidence available wouldclearly indicate that aggrieved over the complaint given by theaccused party, P.Ws.1 and 2 have actually damaged the movableproperties, and also attacked A-1's wife, and following the suddenprovocation, they had acted so. As stated above, they have got to bedealt with for the individual act. As far as A-2 was concerned, hehas caused injury on the head of the deceased with the aruval, and asa direct consequence, he died. Though it was not with intention, ithas got to be pointed out that he should have got the knowledge thatcausing such injury would cause death. Taking into consideration andin appraisement of the totality of the circumstances, the act of A-2in respect of the deceased would attract the penal provisions ofSec.304(Pat II) of IPC and awarding 5 years Rigorous Imprisonmentwould meet the ends of justice.13.As regards the attack on P.W.2 by A-1 to A-3 is concerned, A-1 stabbed P.W.2, and all the injuries sustained by him are actuallynoted in the accident register copies, and the Doctor has also spokento the same. Hence the case of the prosecution that A-1 to A-3attacked P.W.2 and caused such injuries has got to be accepted by theCourt. Since they have got no intention or shared common intention,they have got to be found guilty under Sec.326 of IPC and awardingpunishment of three years Rigorous Imprisonment would meet the endsof justice.14.Accordingly, the conviction and sentence imposed by the trialCourt on A-1 to A-3 under Sec.294(b) IPC are sustained.15.The conviction and sentence imposed on A-1 under Sec.307 IPCare set aside, and instead he is convicted under Sec.326 IPC anddirected to undergo 3 years Rigorous Imprisonment. The fine imposedby the trial Court will hold good.16.The conviction and sentence imposed on A-2 and A-3 underSec.307 read with 34 IPC are set aside, and they are acquitted ofthat charge. The fine amounts if any paid by them will be refundedto them.17.The conviction of A-2 and A-3 under Sec.326 IPC is confirmed;but the sentence imposed by the trial Court is reduced to three yearsRigorous Imprisonment. The fine imposed by the trial Court will holdgood.18.The conviction and sentence imposed on A-2 under Sec.302 IPCare set aside, and instead he is convicted under Sec.304 (Part II)IPC and directed to suffer five years Rigorous Imprisonment. Thefine imposed by the trial Court will hold good.19.The conviction and sentence imposed by the trial Court on A-1and A-3 under Sec.302 read with 34 IPC are set aside, and they areacquitted of that charge. The fine amounts if any paid by them willbe refunded to them. https://hcservices.ecourts.gov.in/hcservices/

20.The sentences are to run concurrently. The sentence alreadyundergone shall be given set off.21.Accordingly, with the above modification in conviction andsentence, this criminal appeal is dismissed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarnsvTo:1.The Additional District andSessions Judge Fast Track Court No.I Chidambaram2.-do- The Principal District and Sessions Judge, Cuddalore.3. The District Munsif-cum-Judicial Magistrate, Kattumannarkoil, Cuddalore.4.-do- The Principal District and Sessions Judge, Cuddalore.5. The Superintendent, Central Prison, Cuddalore.6.The Inspector of Police Kumaratchi Police Station Kumaratchi Crime No.73 of 20067. The Public Prosecutor High Court, Madras.8. The District Collector, Cuddalore.9. The Director General of Police, Mylapore, Chennai-4.+1 cc to Mr.C.D.Johnson, Advocate, SR.No.33508 C.A.No.676 of 2008KSK {CO}TP/30.7.2009.