Padmanaban2.Boobathi v. State by Inspector of Police Karumalaikadal Police Station Salem (Dist.)

BAIL SLIPThe Appellant/Accused 2 and 3 namely Padmanaban and Boobathiwere directed to be released on bail in and by the order of thisCourt dated 07.07.2006 and made in Crl.M.P.No.1/2006 in Crl.A.No.545of 2006.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.545 of 20061.Padmanaban2.Boobathi ..Appellants/Accused 2 & 3vsState byInspector of PoliceKarumalaikadal Police StationSalem (Dist.)(Crime No.691/2001) ..Respondent/ComplainantCriminal appeal filed under Sec.374(2) of the Code of CriminalProcedure against the judgment of the Additional Sessions Judge, FastTrack Court No.I, Salem, made in S.C.No.237 of 2002 dated 18.4.2006.For Appellants: Mr.P.VenkatasubramanianFor 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, Salem, made in S.C.No.237 of 2002whereby the appellants ranked as A-2 and A-3 respectively, stoodcharged along with three others, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-3302 r/w 34 IPCA-3 guilty.Others notguilty.Lifeimprisonmentwith a fine ofRs.1000/- anddefault sentenceA-4 and A-5302 r/w 109 IPCNot guiltyA-1 to A-3326 r/w 34 IPCA-2 guilty.Others notguilty.4 years RI witha fine ofRs.500/- anddefault sentenceA-4 and A-5326 r/w 109 IPCNot guiltyA-1 was absconding, and hence the case was split up in his regard.2.The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 is the younger brother of one Jothilakshmi. Thedeceased Duraisamy was the brother of P.W.1. A-1 who was residing inthe adjacent house, was stealing electric energy from the house ofJothilakshmi. On coming to know this, P.W.1 and the deceasedDuraisamy went to the house of A-1 and questioned the same. A-1replied that he would continue to do so. P.W.1 and Jothilakshmiinformed him that they would lodge a complaint before the ElectricityBoard. (b) On 25.12.2001, P.W.4, the wife of P.W.1, while she wasreturning from the grocery shop, found A-1, A-2, A-3 and A-5 talkingabout a plan to do away with P.W.1 and his brother Duraisamy.Immediately, P.W.4 informed to P.W.1 about the said conspiracy. (c) On 26.12.2001 at about 5.30 P.M., P.W.1 and his brotherDuraisamy were returning from the tea shop. At about 7.30 P.M., whenthey were just crossing the house of one Mahalingam at RamamurthyNagar, A-1. A-2 and A-3 waylaid P.W.1 and his brother Duraisamy. A-1uttering the words "Are you going to give complaint to theElectricity Board", took a knife from his waist. At that time, A-3caught hold of Duraisamy, and A-1 stabbed him on his stomach. As aresult, the intestine came out. A-2 stabbed him on the chest. WhenP.W.1 raised a distressing cry, P.Ws.2 and 3 also rushed to the spot.On seeing the crowd, the accused ran away from the place ofoccurrence. Then the severely injured Duraisamy was taken in an autoto the Government Hospital, Mettur. (d) P.W.7, the Doctor, attached to the Government Hospital,medically examined Duraisamy and declared him dead. The accidentregister copy in that regard is marked as Ex.P6. An intimation was https://hcservices.ecourts.gov.in/hcservices/ given to the respondent police station. P.W.9, the Sub Inspector ofPolice, went to the hospital and recorded the statement of P.W.1 atabout 9.15 P.M., which is marked as Ex.P1. On the strength of Ex.P1,the report, a case came to be registered in Crime No.691 of 2001under Sections 341, 324, 307 and 302 of IPC. The printed FIR, Ex.P9,was despatched to the Court. (e) P.W.10, the Inspector of Police, attached to the respondentpolice station, on receipt of the copy of the FIR, took upinvestigation, proceeded to the spot, made an inspection and preparedan observation mahazar, Ex.P3, and also a rough sketch, Ex.P10. Thenhe conducted inquest on the dead body in the presence of witnessesand panchayatdars and prepared an inquest report, Ex.P11.Thereafter, a requisition, Ex.P7, was given to the hospitalauthorities for the purpose of postmortem. (f) P.W.8, the Doctor, attached to the Government Hospital,Mettur, on receipt of the said requisition conducted autopsy on thedead body of Duraisamy and has issued a postmortem certificate,Ex.P8, with his opinion that the deceased would appear to have diedof shock and haemorrhage due to injury to vital organs.(g) Pending investigation, A-1 was arrested. He gave aconfessional statement voluntarily, which was recorded. A-2 wasarrested, and his confessional statement was recorded. Theadmissible part is Ex.P4. Pursuant to the same, he produced M.O.1,knife, which was recovered under a cover of mahazar. Then the otheraccused were arrested. All of them were sent for judicial remand.All the material objects were sent for chemical analysis. Exs.P14and P16 are serologist's reports. Ex.P15 is the chemical analysisreport. On completion of investigation, the Investigator filed thefinal report.3.The case was committed to Court of Session, and necessarycharges were framed. Pending trial, A-1 absconded, and in hisregard, the case was split up. The trial was conducted in respect ofA-2 to A-5. In order to substantiate the charges, the prosecutionexamined 10 witnesses and also relied on 16 exhibits and 7 materialobjects. 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 in respect of the charge against A-2 under Sec.326r/w 34 of IPC and against A-3 under Sec.302 r/w 34 IPC and hencefound them guilty and awarded punishment which is the subject matterof challenge before this Court. https://hcservices.ecourts.gov.in/hcservices/

4.The learned Counsel advancing arguments on behalf of theappellants, would submit that the prosecution relied on the evidenceof P.Ws.1 to 3 as eyewitnesses; that they are all close relatives;that even from the evidence of P.W.1, it would be quite clear thatP.Ws.2 and 3 came to the spot only subsequently; that under thecircumstances, P.Ws.2 and 3 could not have witnessed the occurrenceat all; that what was available for the prosecution was the evidenceof P.W.1, the brother of the deceased Duraisamy; that all the allegedeyewitnesses were on inimical terms since they were under theimpression that A-1 was stealing electric energy from the house ofJothilakshmi, the sister of P.W.1; that as far as A-2 and A-3, theappellants herein, were concerned, no overt act was attributed tothem; that the trial Court has not believed the evidence of the samewitnesses as far as A-4 and A-5 are concerned; that even the trialCourt has found that A-2 had neither motive nor shared the intentionwith the other accused, and under the circumstances, the trial Courtfound him guilty under Sec.326 r/w 34 of IPC, but found A-3 guiltyunder Sec.302 r/w 34 IPC; that it would be quite clear that from theevidence, there is nothing to indicate that they have got anyintention to share with; that further the medical opinion canvassedwas not in favour of the prosecution; that as regards the allegedrecovery of the weapon of crime, M.O.1, knife, from A-2 pursuant tothe confessional statement, the evidence adduced was shaky and thusthe prosecution has miserably failed to prove its case. 5.Advancing his further arguments, the learned Counsel wouldsubmit that as far as A-2 was concerned, the trial Court has foundhim guilty under Sec.326 r/w 34 IPC and awarded four years RigorousImprisonment which is excessive; that it has got to be looked intoleniently; that so far as A-3 was concerned, even at the time of theoccurrence, he was a juvenile; that as per the Juvenile Justice Act,he should have been sent to the forum under that enactment andenquiry should have been conducted by that forum; but, it was notdone; that under the circumstances, the entire trial as against A-3was thoroughly vitiated, and hence justice has got to be rendered bythis Court.6.The Court heard the learned Additional Public Prosecutor onthe above contentions.7.It is not in controversy that in an incident that took placeat 7.30 P.M. on 26.12.2001, one Duraisamy the brother of P.W.1, wasdone to death. He was examined by P.W.6, the Doctor, who hasdeclared him dead. Following the inquest made by the Investigator,the dead body was subjected to postmortem by P.W.8, the Doctor. Hehas deposed as a witness before the Court and has given postmortemcertificate, Ex.P8, to the effect that Duraisamy died out of shockand haemorrhage due to the injuries sustained. The fact thatDuraisamy died out of homicidal violence was never disputed by theappellants before the trial Court, and hence it could be recorded so. https://hcservices.ecourts.gov.in/hcservices/

8.In order to substantiate the fact that A-1 and A-2 stabbedDuraisamy while A-3 facilitated the crime, the prosecution examinedP.Ws.1 to 3. P.W.1 has categorically given evidence that he went tothe tea stall along with Duraisamy, and after taking tea, they werereturning, and at the place of occurrence, A-1 to A-3 waylaid them,and they armed with knives, and A-3 actually caught hold of thedeceased, while A-1 and A-2 stabbed him. Though P.Ws.2 and 3 havecome to the spot on hearing the distressing cry, they havecategorically spoken that they found all the accused persons at thespot. The trial Court marshaling the evidence properly, has believedthe evidence of P.Ws.1 to 3. It is true that they are closelyrelated to the deceased; but, that cannot be a reason to reject thetestimony. The Court has to apply the test of careful scrutiny. Thetrial Court even after application of the test, has found theirevidence cogent, convincing and acceptable. This Court is unable tosee any reason why their evidence should be discarded or looked withdoubt. Their evidence was rightly accepted by the trial Court.Apart from that, the trial Court has given a categorical finding thatA-3 has facilitated the crime, while A-1 and A-2 stabbed him withknife. Taking into consideration the medical opinion canvassed andthe injuries caused by A-2, the trial Court has recorded a findingthat there is nothing to indicate that he shared the common intentionwith A-1 and thus, found him guilty under Sec.326 r/w 34 IPC. ThisCourt is unable to see why the said finding has to be disturbed.Apart from that, the State has not preferred appeal challenging thatpart of the judgment. 9.As far as A-3 was concerned, according to the prosecution, theoccurrence has taken place in the year 2001. From the availableevidence, it would be quite clear that A-3 has facilitated the crime.Thus, the trial Court was perfectly correct in recording a findingthat A-3 was guilty of offence under Sec.302 r/w 34 of IPC. Thatpart of the finding, this Court is unable to see anything to disturb.However, at the time, when the appeal was taken up for enquiry on thelast hearing, it was informed that A-3 was a juvenile at the time ofthe occurrence. Under the circumstances, a report was called forfrom the Sessions Judge. Accordingly, the Additional Sessions Judge,Fast Track Court No.I, Salem, has given his report which reads asfollows:"5.By scrutinizing the documents and the evidence submittedby the witnesses the birth certificate and otherparticulars have been perused and the CW3 has submitted oneEx.C4, in which, before the investigation the physicalexamination findings found. The doctor who has given hisversion as,"On careful physical examination of the aboveindividual, I am of the opinion that he is agedbetween 17 and 18 years." https://hcservices.ecourts.gov.in/hcservices/ The certificate was issued by the Government Head QuartersHospital, Mettur Dam, on 7.1.2002."10.From the report of the learned Additional Sessions Judge, itwould be quite clear that A-3 was a juvenile at the time of theoccurrence that took place in 2001. In such circumstances, it is afit case where he has got to be sent before the forum under theJuvenile Justice Act to make an enquiry on the occurrence. Since theoccurrence has taken place in 2001 and as per the report of theAdditional Sessions Judge, at the time of the occurrence he was 17and not completed 18, it would be quite evident that he was ajuvenile. At this juncture, no meaningful purpose would be served byordering the matter to be placed before the forum under the JuvenileJustice Act to conduct any fresh enquiry. Under the circumstances,A-3 has got to be set free recording that he was a juvenile at thetime of occurrence. Accordingly, A-3 is set at liberty. 11.As far as A-2 is concerned, the conviction under Sec.326 r/w34 IPC is confirmed, while the sentence of 4 years RigorousImprisonment imposed by the trial Court is modified directing him tosuffer 3 years Rigorous Imprisonment. The fine amount imposed by thetrial Court will hold good. The sentence already undergone by himshall be given set off.12.Accordingly, this criminal appeal is disposed of. sd/-Asst.Registrar/true copy/Sub Asst.Registrarnsv/To1. The Additional Sessions Judge, Fast Track Court No.I, Salem.2. -do- Through The Principal Sessions Judge, Salem.3. The Judicial Magistrate, Mettur.4. -do- Through The Chief Judicial Magistrate, Salem.5. The Chief Judicial Magistrate, Pudukottai.6. The District Collector, Salem.7. The Director General of Police, Mylapore, Chennai. https://hcservices.ecourts.gov.in/hcservices/

8. The Superintendent, Central Prison, Coimbatore.9. The Inspector of Police, Karumalaikadal Police Station, Salem District.10. The Public Prosecutor, High Court, Madras. CRL.A.No.545 of 2006NTK (CO)GSK 10.07.2009.