Kolingiammal v. 1. State by Inspector of Police, Mangalamedu Perambalur District2. Kannusamy3. Cinnu(a)Murugesan4. Subramaniyan5

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRL.R.C.NO.1066 OF 2003Kolingiammal.. Petitioner-vs-1. State by Inspector of Police, Mangalamedu Perambalur District2. Kannusamy3. Cinnu(a)Murugesan4. Subramaniyan5. Murugesan .. Respondents This Revision is filed against the Judgment of the learned DistrictJudge,Perambalur in S.C.No.52 of 2002 dated 30.4.2003.For petitioner :: Mr.R.SingaravelanFor respondents :: Mr.V.R.Balsubramanian Addl. Public Prosecutor-R1 Mr.A.Sirajudeen-R2 to R5O R D E RThis revision has been preferred by P.W.7,Kolingiammal, the widow ofone of the victims in the double murder case in S.C.No.52 of 2002 on thefile of the learned District Judge,Perambalur.2. The short facts of the prosecution case relevant for the purpose ofdeciding this revision are as follows:Due to previous enmity between the accused and the deceased No.1 Jayaramanand Deceased No.2 Kolinginathan, on 21.12.1998 at 4.30p.m., near Koneririver bund , Valikandapuram village, while A4 was holding the deceasedJayaraman, A3 had stabbed Jayaraman on his stomach and all over his bodyresulting the death of Jayaraman on 7.1.1999 at Government Hospital , https://hcservices.ecourts.gov.in/hcservices/ Thanjavur. A2 to A4 also caused grievous injuries with iron rod onJayaraman, on his stomach, chest and back and hence A1 to A4 were chargedunder Sections 302 IPC and 302 IPC r/w 114 IPC. 2a)It is the further case of the prosecution that Kolinginathan wasalso attacked by A1 with a knife at the same time when Jayaraman wasattacked by A1 to A4 which resulted in the instantaneous death ofKolinginathan.3. The learned Judicial Magistrate Perambalur had taken the case onfile and after furnishing copies under Section 207 of Cr.P.C. hadcommitted the case to the Court of Sessions Under Section 209 of Cr.P.C.and on appearance of the accused, the learned Sessions Judge has framedcharges under Sections 302 IPC(2 counts) against A1 and under Section 302IPC r/w 114 IPC against A2 to A4 and when questioned the accused pleadednot guilty. 4) On the side of the prosecution P.Ws 1 to 12 were examined. Exs P1to P13 were exhibited. M.Os 1 and 2 were marked. 5) P.W.1 is an eye witness to the occurrence, according to theprosecution. According to P.W.1 on 21.12.1998 at about 4.30p.m., while hewas returning to Mettupalayam from Valikandapuram after purchasinggroceries , the deceased Kolinginathan, another deceased Jayaraman weretaking bath in the river and at that time A1 Kannusamy, A2 Murugesan, A3Subramaniyan, A4 Murugesan,S/0 Subbudayar came from behind a bush and A1attacked Kolinginathan on the left side flank with a suri knife causinginstantaneous death and three other accused viz., A2 to A4 had attackedboth Kolinginathan and Jayaraman with iron rod and all the accused ranaway from the place of occurrence, leaving Jayaraman in a seriouscondition. Since Jayaraman was conscious, he was taken in a bicycle tothe hospital by him(P.W.1). The body of Kolinginathan was retrieved fromthe river water and laid near the river bund. The doctor at PerambalurHospital referred Jayaraman to Trichy Government Hospital from where hewas given treatment for 7 or 8 days and since he could not recovercompletely, from there,he was referred to Thanjavur Medical CollegeHospital for further treatment. But without responding to the treatmentJayaraman breathed his last at Thanjavur Medical College Hospital threedays later.5a) P.W.2 is also an another ocular witness on the side of theprosecution who would also corroborate the evidence of P.W.1 to the effectthat on 21.12.1998 at about 4.30p.m., while he was returning toValikandapuram from attending to his personal work,he took bath at KoneriRiver along with P.W.1 and at that time, Jayaraman was crossing the riverwith his cycle along with Kolinginathan,before they could cross the river,they were attacked by A1 to A4 . The overt-act attributed by P.W.2 isthat A1 had attacked Kolinginathan with a knife and A2 to A4 have attackedboth Kolinginathan and Jayaraman with iron rods. Kolinginathan had https://hcservices.ecourts.gov.in/hcservices/ sustained grievous injuries which resulted in his instantaneous death andJayaraman began to ran away from the scene of occurrence after leaving hiscycle, A1 to A4 chased and attacked him with a knife and iron rod causinggrievous injuries all over his body and thereafter the accused ran awayfrom the scene of occurrence and when P.W.2 saw Jayaraman along with P.W.1, he was in a precarious condition after , retrieving the body ofKolinginathan from the river, the corpse was left at the bund of the riverand the injured Jayaraman was taken in a cycle to Valikandapuram and wasremoved to Perambalur Government Hospital in susuki motor cycle by anotherKolinginathan S/o Murugesan. After admitting at Perambalur GovernmentHospital, he went to the place of occurrence where the Inspector ofPolice, Mangalmedu was present. Later Jayaraman was referred to TrichyGovernment Hospital from there, he was taken to Thanjavur Medical CollegeHospital where he died two days later.5b) P.W.10 is the then Sub Inspector of Police, Mangalmedu policestation. On intimation from the Government hospital, Perambalur,immediately he rushed to the hospital and recorded the statement ofJayaraman who was taking treatment at the hospital.Ex P9 is the statement of Jayaraman . On the basis of Ex P9, P.W.10 hasregistered a case under Sections 302 IPC and 307 IPC under Mangalmedupolice Station under Crime No.916 of 1998. Ex P10 is the first informationreport. He had forwarded the express first information report to theconcerned officials including the concern Judicial Magistrate.5c) P.W.11 is the then Inspector of Arumbavur police station was alsoin charge of Mangalmedu police station ,since Mangalmedu Inspector was onleave, took up investigation in Mangalmedu Police Station under CrimeNo.916/98 and proceeded to Thanjavur Medical College Hospital andconducted inquest on the corpse of Jayaraman which was kept in themortuary of Thanjavur Medical College Hospital. The inquest was conductedby P.W.11 between 12.00noon and 2.30p.m., on 8.1.1999 in the presence ofpanchayatars . Ex P11 is the inquest report relating to deceasedJayaraman.5d) P.W.12 is the Inspector of Police who has conducted aninvestigation, thereafter he went to the place of occurrence on 22.12.1998at about 6.00 a.m., and prepared observation mahazar in the presence ofP.W.8 and recovered blood stained earth M.O.1 and sample earth M.O.2 fromthe scene of occurrence under Ex P7 recovery mahazar. Ex P12 rough sketchwas also drawn by P.W.12. He had conducted inquest on the corpse ofKolinginathan on the same day in the presence of panchayatars. Ex P13 isthe inquest report relating to the deceased Kolinginathan. P.W.12 hadarrested A1 on 22.12.1998 at 3.00 p.m. and recorded his confessionstatement in the presence of P.W.8. The admissible portion of theconfession statement is Ex P8. P.W.12 has not recovered any materialobject on the basis of the confession statement of A4. The corpse ofKolinginathan was entrusted to P.W.9 for handing over the same to thedoctor at Perambalur Hospital for postmortem. https://hcservices.ecourts.gov.in/hcservices/ 5e) P.W.4 is the doctor who had conducted autopsy on the corpse ofJayaraman on 8.1.1999 at 3.45.p.m. and the body was identified by P.W.9.The doctor has noticed as many as 19 injuries on the corpse of Jayaraman.Ex P3 is the post mortem certificate. The doctor has opined that due toinjury Nos.1 and 2, the deceased Jayaraman would have died.5f) P.W.5, the doctor who had examined other injured Jayaraman on21.12.1998 at 5.30p.m, at Perambalur Government Hospital. On examination,he has found a cut injury on the right palm measuring 1 cm x 1 cm x ½ cm.An abrasion on the right hand measuring 5 cm. Three injuries on the rightside of the stomach and another cut injury on the left hand below the leftthumb measuring 6cm x 2 cm x 1 cm. An abrasion seen on the private part.The cut injury on the right side of the chest measuring 1 ½ cm x 1 cm x 1cm. Ex P4 is the wound certificate issued by him(P.W.5) on the same day atabout 6.00p.m. P.W.5 had also treated A1 for the injuries he hadsustained in the same occurrence. On the examination, he found that 1)cutinjury on the right shoulder measuring 3 cm x 3 cm x 2 cm 2)another cutinjury on the right shoulder measuring 3 cm x 3 cm x 2 cm .3) Two cutinjuries each measuring 3 cm x 3 cm x 2 cm on the centre of the back.4)An abrasion measuring 6 cm on the left side of the head and the skin wasfound peeled on that region.5) On the right thigh a cut injury measuring 5cm x 4 cm x 3 cm. Since he was in a serious condition, he was referred toTrichy Government Hospital. Ex P5 is the copy of the accident register.5g)P.W.6 is the aunt of deceased Kolinginathan. She would depose thatshe saw the corpse of Kolinginathan on the date of occurrence and alsosaw Jayaraman at Perambalur Government Hospital where Jayaraman hadinformed her that the accused have attacked him and Kolinginathan with aknife.5h) P.W7 is the widow of Kolinginathan. She would depose that therewas a land dispute prevailing between the accused and her husbandKolinginathan at the time of occurrence. 6. After following the formalities, P.W.12 has completed theinvestigation and filed charge sheet against the accused under Sections302 IPC r/w 143 IPC and 34 IPC.7. When incriminating circumstances were put to the accused, theaccused would totally deny their complicity with the crime.8.After going through evidence before him, both the oral anddocumentary, the learned Sessions Judge has held that the prosecution hasnot proved the guilt of the accused beyond any reasonable doubt andaccordingly acquitted all the accused from the charges levelled againstthem under Section 235(1) of Cr.P.C. Aggrieved by the findings of thelearned trial Judge, the wife of the deceased Kolinginathan (P.W.7) haspreferred this revision. https://hcservices.ecourts.gov.in/hcservices/

9. Now the point for determination in this revision is whether thefindings of the learned trial Judge is liable to be set aside for thereasons stated in the memorandum of revision?10. Heard Mr. R.Singaravelan, learned Counsel for the revisionpetitioner, Mr.V.R.Balsubramanian, learned Additional Public Prosecutorappearing for the State-R1 and Mr.A.Sirajudeen, learned counsel appearingfor R2 to R5 and considered their rival submissions.11.The Point:Mr.R.Singaravelan, learned Counsel appearing for the revision petitionerwould contend that the entire case of the prosecution rests on the socalled ocular witnesses P.W.1 and P.W.2 but they could not be an eyewitnesses to the occurrence, basing his reliance on the discrepancies ofP.W.1 and P.W.2 and the complaint Ex P9 said to have been given by one ofthe deceased Jayaraman before the Investigating Officer, while he wasalive on 21.12.1998. The learned counsel would draw the attention of thisCourt to Ex P9 complaint preferred by Jayaraman wherein there is nomention either about the presence of P.W.1 or about the presence of P.W.2at the time of occurrence at the place of occurrence. 11a) Yet another flaw noted by the learned counsel appearing for R2 toR5/accused in the case of the prosecution is that Section 161(3) Cr.P.C.Statement of P.W.2 was recorded by P.W.12, the Investigating Officer on21.12.1998 but it has reached the Court only on 26.4.2001 ie., two yearslater. But in Section 161(3) Cr.P.C.statement of P.W1 Natesan, wouldcategorically state that only after hearing the occurrence, he went andsaw the injured whereas while deposing before the trial Court, hisevidence is that he had seen the occurrence. There is no explanationforthcoming from the Investigating Officer, why P.W.2's statement underSection 161(3) Cr.P.C. was not sent to the Court immediately and there wasno explanation forthcoming for the delay of two years in sending P.W2'sstatement under Section 161(3) Cr.P.C. to the Court by the prosecution.Only on that score, the learned trial Judge has come to a conclusion thatno reliance can be attached to the evidence of both the so called ocularwitnesses P.W.1 and P.W.2.11b) Further in Ex P13 inquest report relating to the deceasedKolinginathan and in the inquest report Ex P11 relating to the deceasedJayaraman both P.Ws 1 and 2's name do not find a place. The nonexamination of P.Ws 1 and 2 at the time of inquest of both the deceaseditself is a fatal to the case of the prosecution as rightly held by thelearned trial Judge.11c) Further the non explanation of injuries sustained by A1 and A3were also lead us to an adverse inference against the case of theprosecution as rightly held by the learned trial Judge. Even P.W.12 theInvestigating Officer, in the re-examination would admit that a counter https://hcservices.ecourts.gov.in/hcservices/ case has been registered on the complaint preferred by A1 under CrimeNo.917 of 1998. But neither copy of the first information report inCr.No.917 of 1998 nor final report in the said case was filed before thetrial Court to show who are the aggressor for the occurrence. No doubt twopersons have been done to death in this case.11d) One of the victims Jayaraman was alive for nearly 15 days fromthe date of occurrence, the prosecution has not taken minimum care torecord his dying declaration by the Judicial Magistrate. In Ex P9 theearliest statement recorded from Jayaraman, only his left thumb impressionis said to have been obtained. The learned trial Judge has observed inhis judgment that Jayaraman is a foreignreturn and he knows to sign andthere is no explanation forthcoming from the Investigating Officer why thesignature of Jayaraman was not obtained in Ex P9. The prosecution hasnot taken the minimum pain to send the same to a fingerprint to provethat the left thumb impression contain in Ex P9 belongs to the deceasedJayaraman. Under such circumstances, I do not find any reason to interferewith the findings of the learned District Judge, Perambalur in C.C.No.52of 2002.12. In fine, the revision is dismissed confirming the order inC.C.No.52 of 2002 on the file of the Court of District Judge, Perambalur.13. The learned Additional Public Prosecutor relying on a decisionreported in K.Chinnasamy Reddy-vs- State of Andhra Pradesh(AIR 1962 SC1788 would contend that while exercising the revisional power of thisCourt, this Court can either order for re-trial or for rehearing for thepurpose of re-appreciation of the evidence. But I am of the opinion thatno purpose will be served, if retrial or re hearing is ordered in thiscase because both the alleged ocular witnesses P.Ws 1 and 2 are proved tobe procured witnesses for the purpose of this case.14. It is pertinent to note in this case that the InvestigatingOfficer Mr.S. Gnanasekaran (P.W.12) has not discharged his duties properlyand to the satisfaction of his conscience. I record my displeasure in thiscase as to the slipshod and lethargic manner in which the investigationhas been conducted by P.W.12,the Investigating Officer,Mr.S.Gnanasekaran.A copy of the order to be marked to the Director General of Police fortaking appropriate action against P.W.12, Mr.S.Gnanasekaran, who hadbungled in the investigation in this double murder case. I am of the viewthat it is a fit case in which as a moral obligation the Government shallgive suitable compensation to the legal heirs of the victims viz.,Kolinginathan and Jayaraman which shall not be less than Rs.2,00,000/-(Per unit) within a period of six months. After paying the compensation to https://hcservices.ecourts.gov.in/hcservices/ the legal heirs of the deceased, the Government is at liberty to recoverthe same from P.W.12, the Investigating Officer, Mr.S.Gnanasekaran. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1. The District Judge,Perambalur.2. The Inspector of Police, Mangalamedu Police station, Perambalur District3. The Public Prosecutor, High Court, Madras4. The Chief Secretary, Government of Tamil Nadu, Secretariat Fort St.George, Chennai.5. Director General of Police(Law and Order) Chennai-4+ 1 CC To Mr.R.Singaravelan, Advocate SR NO. 25755+ 1 CC To Mr.Siraj and Siraj, Advocate SR NO.25568Crl.R.C.No.1066/2003gb[co]Gp/24.4