Govindaraj v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 27.10.2009CORAMTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAHCRL.A.No.734/20081.Govindaraj2.Krishnamurthy3.Selvaraj..Appellants/A1 to A3VsState by the Inspector of Police Muthandikuppam Police StationCuddalore District...Respondent[Cr.No.37/2006]Appeal filed u/s.374[2] Cr.P.C., to set aside the conviction andsentence imposed in SC.No.101/2007 dated 21.08.2008 on the file ofthe learned Sessions Judge, Cuddalore, Cuddalore District.For Appellants:Mr.S.Ashok Kumar, SC forMr.S.Palanivelayutham for A1 and A2Mr.K.Gandhikumar for A3For Respondent:Mr.Babu Muthu Meeran, Addl. Public ProsecutorJUDGMENT[Judgment of the court was delivered by M.CHOCKALINGAM, J.]Challenge is made to the Judgment of the learned Sessions Judge,Cuddalore Division, Cuddalore District made in SC.No.101/2007 dated21.08.2008 whereby the accused/A1 to A3 stood charged, tried andfound guilty for the offence u/s.324,302 r/w 34, 294[b] IPC and ontrial, they were found guilty of the charges and were awarded withpunishments as follows:- https://hcservices.ecourts.gov.in/hcservices/ AccusedConvictionSentence awardedA1U/s.294[b], 324 and302 read with 34 IPC1]sentenced to undergolife imprisonment andto pay a fine ofRs.10,000/- and indefault to undergo oneyear simpleimprisonment for theoffence u/s.302 readwith 34 IPC.2]sentenced to undergotwo years rigorousimprisonment and topay a fine ofRs.2,000/- and indefault to undergo oneyear simpleimprisonment for theoffence u/s.324 IPC.3]sentenced to pay afine of Rs.500/- andin default to undergoone month simpleimprisonment for theoffence u/s.294[b]A2 U/s.302 IPCSentenced to undergolife imprisonment andto pay a fine ofRs.10,000/- and indefault to undergo oneyear simpleimprisonment for theoffence u/s.302 IPC.A3U/s.302 read with 34IPCSentenced to undergolife imprisonment andto pay a fine ofRs.10,000/- and indefault to undergo oneyear simpleimprisonment for theoffence u/s.302 IPC. https://hcservices.ecourts.gov.in/hcservices/ The trial Judge ordered the sentence to run concurrently inrespect of the first accused.2.Short facts necessary for the disposal of the appeal can bestated as follows:-[a]P.W.1 is the resident of Elavathadi village and he is the sonof the deceased Swamidurai; P.W.2 is the wife and P.W.3 is thedaughter and P.W.4 is the son of the maternal uncle of P.W.1. Thefamily members of the deceased were in search of a missing goat onthe evening hours on 13.03.2006 and they found a goat lying dead nearthe house of A1. But, they ascertained that the goat did not belongto them. When they were about to return home, A1 was under theimpression that they entertained suspicion over him and hence, hepicked up a wordy altercation with P.W.1 and attacked him with ironpipe and also bite him on his left cheek. P.W.1 along with P.W.5 andone Babu, went to Senthanadu for taking treatment. Since, the doctorwas not available, he stayed with Babu in a tea stall at Senthanaduat about 2.00 a.m. on 14.03.2006.[b]When the deceased was sleeping along with his wife [P.W.2]and his daughter [P.W.3] in his house, all the accused standing infront of the house of the deceased, shouted in filthy languageagainst P.W.2. The deceased came out of the house and tried topacify them to go away. Immediately, A2 assaulted him on his headwith wooden log and pushed the deceased down. A1 attacked thedeceased with iron rod on the chest while A3 attacked him with thewooden log on the chest. The accused also threatened P.W.2 and otherfamily members also. P.Ws.5 and 6 who are the residents of the samevillage, viz., Elavathadi, and who were returning from Senthanadualso witnessed the occurrence. When P.W.1 returned home at about6.00 a.m. in the morning on 14.03.2006, P.W.2 informed about theincident and P.Ws.1,2 along with P.W.4 engaged a taxi, took thedeceased for treatment to the Government Hospital, Panruti and on theway, P.W.1 got down at the respondent police to give a complaint.P.W.12, the Sub-Inspector of Police of the respondent police who wason duty at the relevant point of time, received the complaint ofP.W.1 under Ex.P.1 and on strength of which, registered a case inCr.No.37/2006 for the offences u/s.294,323,324 and 506[ii] IPC.Ex.P.11 is the Express FIR and the same was despatched to the court.Meanwhile, P.W.2 and others reached the hospital at about 11.00 a.m.and P.W.10, the doctor attached to the Government Hospital, Panruti,who was on duty at that relevant point of time, recorded thecondition of the deceased in the Accident Register marked as Ex.P.9.and adviced P.W.2 to take the deceased for further treatment to theDistrict Headquarters Hospital, Cuddalore. When, the deceased wasbrought to the District Headquarters Hospital, Cuddalore, despitetreatment, the deceased died at about 4.15 p.m. P.W.1 who came to theGovernment Hospital, Panruti, on coming to know that the deceased was https://hcservices.ecourts.gov.in/hcservices/ taken to District Headquarters Hospital, Cuddalore, came over thereand came to know about the death of his father, the deceased. [c]P.W.12, took up further investigation, went to the scene ofoccurrence, prepared Observation Mahazar-Ex.P.2 and a rough sketch-Ex.P.12 in the presence of witnesses; examined the witnesses andrecorded their statements. On receipt of the intimation that thedeceased died, he altered the case to one u/s.302 IPC and the alteredFIR under Ex.P.13 was also despatched to the court and also handedover a copy of the altered FIR to Dinakaran, the then Inspector ofPolice.[d]The Inspector of Police, in continuation of hisinvestigation, held inquest on the dead body of the deceased in theHeadquarters Hospital, Cuddaloare, between 8.00 a.m. and 11.00 am inthe presence of the witnesses and panchayatdars and prepared Ex.P.14,the Inquest Report. He also sent the dead body for postmortem alongwith a requisition.[e]P.W.11, the doctor attached to the District HeadquartersHospital, Cuddalore, received a requisition from the Inspector ofPolice and conducted autopsy on the dead body of the deceased.P.W.11 also issued Ex.P.8, the Post Mortem Certificate wherein he hasopined that the deceased would appear to have died out of shock andhaemorrhage due to head injury on the left subdural haemotoma andleft intra cerebral haemorhage.[f]In continuance of the investigation, on 17.03.2006 at about10.00 a.m. the Inspector of Police arrested the accused 1 to 3 inthe presence of witnesses and A1 voluntarily came forward to give aconfessional statement, the admissible part of which is marked asEx.P.15 pursuant to which M.Os.1 to 3 were recovered in the presenceof witnesses under the cover of Mahazar, Ex.P.16. All the materialobjects recovered from the place of occurrence, from the dead bodyand the material objects recovered pursuant to the confessionalstatement of A1, were all subjected to chemical analysis pursuant torequisition.[g]On completion of investigation and filing of the finalreport, the case was committed to sessions; necessary charges wereframed and in order to substantiate the charges, the prosecutionexamined 12 witnesses [P.Ws.1 to 12], marked 18 exhibits [Exs.P.1 to18] and produced 3 material objects [M.Os.1 to 3]. 3.When the accused were questioned u/s.313 Cr.P.C., as to theincriminating circumstances found in the evidence of the prosecutionagainst them, they denied them as false and on the side of theaccused no defence witnesses were examined and no documents weremarked. Hearing the arguments advanced on either side and also https://hcservices.ecourts.gov.in/hcservices/ considering the materials available, the trial court took a view thatthe prosecution has proved its case beyond reasonable doubt and thus,rendered the judgment of conviction and sentence as stated supra. Asagainst the said conviction and sentence, the accused, A1 to A3 havepreferred the above appeal.4.Advancing the arguments on behalf of the appellants/A1 to A3,the learned senior counsel for the appellants would submit that inthe instant case, the prosecution has miserably failed to prove itscase beyond reasonable doubt. The prosecution examined P.Ws.2,3,5and 6 as eyewitnesses. Information was given to the police by P.W.1who was not a eyewitness to the occurrence and hence, the entirenarration of the incident spoken to by him cannot but be only ahearsay. P.W.2, is the wife of the deceased and P.W.3 is thedaughter of the deceased and their narration about the incident asfound in Ex.P.1-complaint and their evidence before the court is adiscrepant one and P.Ws.5 and 6 are the chance witnesses as theirpresence at the place of occurrence in those odd hours at about 2.00a.m. is highly impossible as mentioned by them. 5.Learned Senior counsel contended that the prosecution has comeforward with a story that A1 to A3 shared the common intention and nomaterials were placed before the trial court to substantiate thesame. According to the prosecution witnesses, it was A1 armed withiron pipe and A2 and A3 armed with wooden logs and all theeyewitnesses have categorically stated that it was A2 who hasattacked the deceased with wooden log on the head; but nocorresponding external or internal injury is found by P.W.11-thedoctor who conducted autopsy on the dead body of the deceased. Atthe earliest the deceased was examined by P.W.10-the doctor attachedto Government Hospital, Panruti and the Accident Register-Ex.P.9 doesnot indicate any external injury on the skull or any part of the bodyand thus, the evidence of the eyewitnesses that A2 attacked thedeceased with wooden log cannot but be false. It is also contendedby the learned senior counsel that the medical opinion canvassed bythe prosecution did not support the ocular testimony. P.W.11, thedoctor, has given his opinion that the death was due to shock andhaemorrhage on account of head injury; but no injury was actuallyfound and had the death of the deceased been due to sub-duralhaematoma and left intra cerebral haemorrhage, corresponding injuryshould have been found. But, no corresponding injury was noticed byP.W.11 and this opinion is also given after a period of nearly twomonths and hence, no evidenciary value could be attached to theopinion of P.W.11 who conducted the postmortem. 6.Learned Senior counsel would further add that as far as A1attacking the deceased with iron pipe is concerned, though certaininjuries were found on the ribs, that was not shown as the cause forthe death of the deceased and insofar as A3 attacking the deceased is https://hcservices.ecourts.gov.in/hcservices/ concerned, the eyewitnesses have categorically deposed that heattacked him with wooden log. But, on trial, it was found that A3 wasactually fisted the accused with hands and thus, the evidence of theeyewitnesses in respect of the overt act attributed to A3, found tobe inconsistent with Ex.P.1 and hence, it casts a doubt on theirevidence. The prosecution was also unable to show that the accusedhave come with a common intention to share with and thus, the oculartestimonies of the eyewitnesses are with discrepancies and themedical evidence did not corroborate with the ocular testimony. It isfurther added that insofar as the alleged arrest and recoverypursuant to the confession statement is concerned, the same isdoubtful and it could not be believed since the evidence adduced bythe prosecution is shaky in that regard. Under such circumstances, itis contended by the learned senior counsel that the trial court hastaken an erroneous view that the prosecution has proved its casebeyond reasonable doubt and thus, the accused/appellants are entitledto for acquittal at the hands of this court.7.Heard the learned Additional Public Prosecutor on the abovecontentions and the court paid its anxious consideration on thesubmissions made on either side.8.It is not in controversy that one Swmaidurai, the husband ofP.W.2, following an incident that took place at about 2.00 a.m. on14.03.2006, was taken to the Government Hospital, Panruti where hewas treated by P.W.10-doctor and thereafter, he was taken to theDistrict Headquarters Hospital, Cuddalore where, despite treatment,the deceased died at about 4.15 p.m. on the same day. Originally,the case was registered by P.W.12 as evidenced through Ex.P.11 and onthe death of the deceased, the case was altered to one u/s.302 IPCand the investigation was taken up by the Inspector of Police of thatcircle, by name Dinakaran and after conducting the inquest, the deadbody was sent for postmortem. P.W.11-the doctor attached to theDistrict Headquarters Hospital, Cuddalore, has given his opinion thatthe deceased would appear to have died of shock and haemorrhage onaccount of head injury and due to sub-dural haemotoma and left intracervical haemorrhage. The doctor has given his opinion as a witnessbefore the court and also through Ex.P.8-the Post Mortem Certificate.What was all contended before the trial court and equally here also,was that the deceased has sustained head injury by falling down on arough surface. The doctor has given his opinion after a period oftwo months therefrom. This contention of the learned senior counselfor the appellants has to be rejected for two reasons. Firstly,merely because there was no external injury noticed by P.W.10-doctorand also in the Accident Register-Ex.P.9, it cannot be stated thatthe death was not due to homicidal violence and secondly, thepostmortem was conducted immediately after the inquest was over andeven the doctor who conducted the postmortem also has pointed outthat there was sub dural haemotoma and left intra cervical https://hcservices.ecourts.gov.in/hcservices/ haemorrhage and the same could not have been caused by falling on arough surface. 9.In the instant case, in order to substantiate that the headinjury was sustained by the deceased while he was attacked by A2 withwooden log, the prosecution has examined P.Ws.2,3,5 and 6 who haveall spoken in one voice and the evidence of those eyewitnessescoupled with the evidence of the doctor along with the Post MortemCertificate-Ex.P.8, would clearly indicate that the fatal injury wascaused by A2 when he attacked the deceased with wooden log. It istrue that P.W.1 was not an eyewitness to the occurrence, but from theevidence of P.W.1, it would be quite clear that on the previous dayto the occurrence, a goat belonging to the family of P.W.1 wasmissing and that they made a search and found a goat lying dead nearthe house of A1 and when they went there, they ascertained that thedead goat did not belong to them and when they were about to return,A1 picked up a quarrel since, he entertained a suspicion that P.Ws.1to 3 suspected him of having stolen the goat. In that incident, heattacked P.W.1 with iron pipe apart from biting him. P.W.1 went toSenthanadu for getting treatment and could not come back that nightsince the doctor was not available. Thus, when he came on the nextday morning, i.e., 14.03.2006, he was informed by P.W.2, his motherabout the incident and thereafter, P.Ws.1,2 and others took thedeceased in a taxi to the Government Hospital, Panruti and on theirway, P.W.1 got down near the respondent police station to lodge acomplaint under Ex.P.1. Though P.W.1 was not an eyewitness to theoccurrence, he has narrated the incident as he heard the same fromP.W.2 and hence, the evidence of P.W.1 could serve the purpose ofsetting the crime in motion. 10.Insofar as the incident is concerned, the eyewitnessesmarched, viz., P.Ws.2,3,5 and 6 have deposed about the same and fromtheir evidence, it would be quite clear that it was A2 who attackedthe deceased with wooden log on the head of the deceased while A1attacked him with iron pipe and A3 fisted the deceased on the chest.The fatal injury as could be seen from the medical opinion, wascaused only by A2. There is nothing to indicate that all theaccused, viz., A1 to A3 shared the common intention of causing thedeath of Swamidurai or only A1 and A3 shared the common intention.Under such circumstances, they have got to be dealt withindividually. A2 has attacked the deceased with wooden log and hascaused the head injury. Though external injury could not be noticed,it was the doctor's, viz., P.W.11's opinion that the deceased wouldappear to have died of shock and haemorrhage due to the head injury-sub dural haemotoma and left intra cervical haemorrhage. Thus, theact of A2is not done intentionally to cause the death of the deceasedbut he should have done with the intention of causing the said injuryon the head and the same was sufficient in the ordinary course ofnature to cause the death and hence, the act of A2 has got to be https://hcservices.ecourts.gov.in/hcservices/ termed as murder and he is liable to be punished u/s.302 IPC and gotto be awarded the sentence of life imprisonment. Insofar as A1 isconcerned, he has attacked the deceased with iron pipe on the chestand hence, he has got to be found guilty u/s.324 ad 294[b] IPC and apunishment of two years rigorous imprisonment for the offence u/s.324IPC and to pay a fine of Rs.500/-in default to undergo one monthsimple imprisonment for the offence u/s.294[b] IPC. As far as A3 isconcerned, he fisted the deceased on the chest with his hands andhence, he is found guilty u/s.323 IPC and awarded the sentence of oneyear simple imprisonment for the said offence.11.Accordingly, the appeal is dismissed in respect of the SECONDAPPELLANT/ACCUSED NO.2 and the judgment of conviction and sentenceagainst A2 passed by the learned Sessions Judge, Cuddalore, CuddaloreDistrict, in SC.No.101/2007 dated 21.08.2008 is confirmed and thejudgment of conviction and sentence in respect of A1 and A3 aremodified as follows:-RankModification ofconvictionSentence awardedAccused No.1U/s.324 and 294[b]IPC1]to undergo two yearsrigorous imprisonmentfor the offenceu/s.324 IPC2]to pay a fine ofRs.500/- and indefault to undergo onemonth simpleimprisonment for theoffence u/s.294[b] IPCAccused No.3U/s.323 IPCTo undergo one yearsimple imprisonmentfor the offenceu/s.323 IPC.The period of sentence already undergone by A1 and A3 shall be givenset off. The Superintendent of Prison concerned is directed to actaccordingly. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarap https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate, Panruti.2. Do Thro The Chief Judicial Magistrate, Cuddalore.3.The Sessions Judge, Cuddalore, Cuddalore District.4. The Superintendent, Central Prison, Cuddlaore.5. The Inspector of Police Muthandikuppam Police Station Cuddalore District.6.The Public Prosecutor, High Court, Chennai.7. The Director General of Police,8. The District Collector, Cuddalore.+1 cc to Mr.K.Gandhikumar, Advocate, SR.No.57241+2 cc to Mr.S.Palanivelayutham, Advocate, SR.No.57453Judgment inCrl.A.No.734 of 2008MG {CO}TP/30.10.2009.