BAIL SLIPThe v. State rep byThe Inspector of Police
Case at a glance
Provisions considered
- Code of Criminal Procedure, 1973 ss. 207, 313
- Indian Penal Code, 1860 ss. 302, 304(ii)
Key paragraphs
- Para 1313. When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., the accused denied his complicitywith the crime. After going through the evidence both oral anddocumentary the learned trial Judge has come to the conclusionthat the offence under Section 304(ii) IPC has been…
- Para 1414. Now the point for determination in this appeal is whetherthe offence under Section 304(ii) IPC has been made out againstthe accused to warrant conviction; or the findings of the learnedtrial judge in S.C.No.125 of 1999 on the file of the learnedPrincipal Sessions Judge, Dharmapuri…
Judgment
BAIL SLIPThe Appellant/Accused was directed to be released on bail inand by the order of this Court dated 20.09.2001 made in Crl MP No.6240 of 2001 in Crl Appeal No. 828 of 2001 on the file of the HighCourt, MadrasIN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 25.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.828 of 2001 Saravanan .. Appellant/AccusedVs.State rep by The Inspector of Police, Uthangarai Police Station, Crime NO.641 of 1997,Dharmapuri District. .. Respondent/ComplainantPrayer:- This appeal has been preferred against the judgment dated14.8.2001 made in S.C.No.125 of 1999 on the file of the learnedPrincipal Sessions Judge, Dharmapuri. For Appellant: Mr.S.Selvathirumurugan for Mrs. Jeya Baharathi For Respondent :Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThis appeal has been preferred against the judgment inS.C.No.125 of 1999 on the file of the learned Principal SessionsJudge, Krishnagiri at Dharmapuri.
The short facts of the prosecution case is that on20.11.1997 at about 5.00 pm while the deceased-Athimulam wasproceeding from Keelkuppam to Chinnavellaiyan Gounder land theaccused has assaulted the deceased with a stone on his head https://hcservices.ecourts.gov.in/hcservices/ thereby causing instantaneous death to the victim.
The case was taken on file by the learned JudicialMagistrate, Uthangarai under PRC.No.16 of 1998. On appearance ofthe accused on summons, the learned Judicial Magistrate hadfurnished copies to the accused under Section 207 of Cr.P.C., andsince the case is triable by a Court of Sessions, the learnedJudicial Magistrate had committed the case under Section 209 ofCr.P.C., to the Court of Sessions.
The learned Sessions Judge, on appearance of the accusedhad framed a charge under Section 302 IPC against the accused andwhen questioned the accused pleaded not guilty. Before thelearned Sesssion Judge P.W.1 to P.W.10 were examined, Ex.P.1 toEx.P.15 were exhibited and M.O.1 to M.O.11 were marked.
P.W.1 to P.W.3, according to the prosecution are ocularwitnesses have not supported the case of the prosecution. Hence, they were treated as hostile witnesses.
P.W.4 is the wife of the deceased. According to her, atthe time of occurrence she had also accompanied her husband andthere was a quarrel between her husband/deceased and the accusedat 10.00 am on the previous day and that the accused had left thehouse by criminally intimidating the deceased that he will notleave him without murdering him and that at about 10.00 am on thedate of occurrence, her husband/deceased went to the post officeto attend to his work. According to P.W.4, her husband was workingas a post master in the village and that at about 4.30 pm herhusband was returning to the house after alighting from the busand she also accompanied him and while they were proceeding alongthe Marriyamman temple land the accused came there and asked herhusband/deceased to give 'parambu jalladai' and while demandingthe said 'parambu jalladai' the accused had assaulted herhusband/deceased with a small stone on his head and due to theimpact her husband/deceased fell down and Immediately the accusedtook a big stone and crushed the head of her husband/deceased, which resulted in his instantaneous death and that on hearing hishue and cry P.W.1, P.W.2, P.W.3 and witnesses Mariyappan and Lakshmi rushed to the place of occurrence. She has identifiedM.O.1 as the small stone used by the accused at the time of theoccurrence for committing the crime and M.O.2 is the big stoneused by the accused at the time of commission of the offence andM.O.3 is the wrist watch of her deceased husband.
P.W.6 is the VAO, who had preferred Ex.P.4-complaint on thebasis of the statement given by P.W.1-Kaliyappan. According tohim, Ex.P.3 is the statement of Kaliyappan (P.W.1). The complaintEx.P.3 was preferred by Kaliyappan on 20.1.1997 at about 9.00 pm. He had immediately rushed to the police station at about 10.00 pm https://hcservices.ecourts.gov.in/hcservices/ on the same day and handed over Ex.P.3-statement along with hisreport-Ex.P.4.
P.W.10 is the then Inspector of Police, Uthangarai PoliceStation. According to him, his predecessor Narayanasamy hadregistered the case on the basis of the complaint Ex.P.3 under Uthangarai police station Cr.No.641/1997 under Section 302 IPC.Ex.P.12 is the express FIR. After sending the express FIR to theconcerned officials including the Judicial Magistrate throughpolice constable No.291, Narayanasamy-Investigating officer, hadproceeded to the place of occurrence about 11.30 pm and prepared amahazar Ex.P.5 in the presence of P.W.6 and another witness. Hehad drawn Ex.p.13-rough sketch in the presence of P.W.6 andanother witness. He had seized M.O.1-blood stained small stone,M.O.2-blood stained big stone, M.O.4-blood stained sand and M.O.5-sample sand from the place of occurrence under Ex.P.6-recoverymahazar in the presence of P.W.6 and another witness. He hadconducted inquest on the corpse of the deceased Athimulam in thepresence of the panchayatdars. Ex.P.14 is the inquest report. Thereafter, he had sent the corpse of Athimulam for postmortemthrough P.W.8, who had identified the corpse to the Doctor-P.W.5,who had conducted postmortem on the corpse of the deceasedAthimulam.
According to P.W.5, he had noticed the following injurieson the corpse:-i) an incised injury measuring 2 x 1 x 1 cm below hisright eye brow, ii) an abrasion measuring 6 x 8 cms on the right cheek.iii)an abrasion measuring 4 x 4 cm on the rightforehead.iv)a contusion measuring 1 x 1 cm on the right side ofthe fore headv)an abrasion measuring 6 x 4 cm on the backside of theleft ear, near the left eye.vi)blood was oozing out from the left earvii)fracture on the skull through which brain matterswere oozing outviii)an incised wound measuring 4 x 1 cm behind theright pinna. On exploring injury No.7, he could see several fractures on theskull and the brain membrane was found torn to an extent of 8 x 3cm and the left side of the brain blood clots were seen and thebrain was found damaged on the left side to an extent of 4 x 2 cm. The doctor has opined that at about 18 to 24 hours prior to theautopsy the deceased would have died due to the fracture he had https://hcservices.ecourts.gov.in/hcservices/ sustained in the skull bone and also due to hemorrhage. Ex.P.2 isthe postmortem certificate. The Doctor has further opined thatthe injury Nos.1 to 5 would have been caused with a stone likeM.O.1 and injury Nos.6 to 8 would have been caused with a stonelike M.O.2 and that the injuries are sufficient to cause theinstantaneous death of the victim.
After the postmortem P.W.8, postmortem constable, hadrecovered M.O.3-wrist watch, M.O.7-slack shirt, M.O.8-banian,M.O.9-dothi, M.O.10-underwear, and M.O.11-waist rope from thecorpse under form-95 and handed over the same to the InvestigatingOfficer.
P.W.9 would depose that P.W.4's husband was working inposttal department and that on 20.11.1997 at about 4.00 pm he sawthe deceased Athimulam, the accused and P.W.4 at Keelkuppamvillage near a stream and that there was a quarrel between thedeceased Athimulam and the accused and that when he was about togo nearer, the accused had assaulted the deceased with a smallstone on the temple region and also assaulted him with a big stoneon the head causing instantaneous death to Athimulam.
P.W.7 is the then Head Clerk of the Judicial MagistrateCourt, Uthangarai. According to him, as per the letter ofrequisition of the Investigating Officer, the material objectsconnected with this case were sent to the Forensic ScienceLaboratory for chemical analysis along with Ex.P.9, letter of the Judicial Magistrate and that Ex.p.10 is the analyst's report andEx.P.11 is the Serologist's report. According to P.W.10, hispredecessor Narayanasamy, the Investigating Officer, had arrestedthe accused on 22.11.1997 at about 2.00 pm near Anuman Theerthamand recorded the voluntary confession statement of the accused inthe presence of one Ponnurangam and had seized M.O.6-shirt of theaccused under Ex.P.7-mahazar. After completing the formalities, he had filed the charge sheet against the accused on 6.3.1998under Section 302 IPC.
When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., the accused denied his complicitywith the crime. After going through the evidence both oral anddocumentary the learned trial Judge has come to the conclusionthat the offence under Section 304(ii) IPC has been made outagainst the accused and accordingly convicted and sentenced theaccused to undergo 3 years RI, which necessitated the accused toprefer this appeal.
Now the point for determination in this appeal is whetherthe offence under Section 304(ii) IPC has been made out againstthe accused to warrant conviction; or the findings of the learnedtrial judge in S.C.No.125 of 1999 on the file of the learnedPrincipal Sessions Judge, Dharmapuri, is liable to be set aside https://hcservices.ecourts.gov.in/hcservices/ for the reasons stated in the memorandum of appeal?15.The Point:- 15(a)The entire case of the prosecution hingesupon the evidence of P.W.4 and P.W.9. All the ocular witnessesrelied on by the prosecution viz. P.W.1 to P.W.3 have turnedhostile. Even though P.W.4, the wife of the victim, would claimthat she have accompanied the victim while he was returning fromhis office after alighting from a bus, her statement before the Investigating Officer, which was recorded under Section 161(3) ofCr.P.C., is otherwise. Before the Investigating Officer P.W.4had stated that she had not accompanied the deceased at the timeof occurrence at the place of occurrence.
According to herstatement before the Investigating Officer, she came to know thatat the time of occurrence the accused had criminally intimidatedthe deceased and that P.W.1 to P.W.3 have witnessed the occurrencealong with other witnesses. While deposing before the Court,P.W.4 has stated that the occurrence took place in her presenceand that only after hearing her distress call P.W.1 to P.W.3 andother witness Mariyappan and Lakshmi came to the place ofoccurrence. Under such circumstances, we cannot give any creditto the evidence of P.W.4.15(b)P.W.9 is one Dhandapani. According to P.W.4, P.W.9had not responded to the distress call she made soon after theoccurrence. Even in her statement before the InvestigatingOfficer, she has not stated that Dhandapani was present at thetime of occurrence. In the cross-examination P.W.9 would admitthat he was brought to the Court only by P.W.4 for the purpose ofgiving evidence.
Further no statement under Section 161(3) ofCr.P.C., was recorded from P.W.9 as admitted by P.W.10, thesuccessor of the Investigating Officer Narayanasamy. Under suchcircumstances, the evidence of P.W.9 was also of any use to thecase of the Prosecution.15(c)The learned counsel appearing for the appellantrelying on AIR 2005 SC 1284 (Birendra Rai and others Vs. State of Bihar), would contend that without examining the InvestigatingOfficer the seizure of the material objects cannot be taken to beproved. The learned Additional Public Prosecutor relying onM.O.6-blood stained shirt recovered from the accused, wouldcontend that according to the serologist's report the blood stainseen in M.O.6 belongs to the blood group of the deceased and thiswill go to show that the accused alone was present at the place ofoccurrence at the time of occurrence and have committed the crime. Except the reasoning given in the Judgment of the trial Court ofthe non-examination of the Investigating Officer Narayanasamythere is absolutely no evidence on record to show a validreasoning for the non-examination of the Investigating OfficerNarayanasamy.
Even P.W.10, the successor of Narayanasamy, has notgiven any reasoning in his evidence for the non-examination of the Investigating Officer Narayanasamy. The observation in AIR 2005SC 1284 (Birendra Rai and others Vs. State of Bihar), is to the https://hcservices.ecourts.gov.in/hcservices/ effect that "a mere fact that according to the seizurelist a stick with blood stains and pellet marks wasseized from the place of occurrence, would not advancethis argument any further. The seizures have not beenproved in this case because the investigating officerwas not examined, and the seizure witness has turnedhostile. "Even though in the case on hand the seizure witness P.W.6 has notturned hostile, he (P.W.6) in his evidence has not even deposedto the fact that M.O.6 was blood stained at the time of recoveryby the Investigating Officer Narayanasamy. So practically thereis no evidence against the accused to warrant conviction under Section 304(ii) IPC. Point is answered accordingly.
16. In fine, the appeal is allowed and the conviction andsentence against the accused under Section 304(ii) IPC made inS.C.No.125 of 1999 on the file of the learned Principal SessionsJudge, Dharmapuri, is set aside and the accused is acquitted fromthe charges levelled against him. Bail band shall standcancelled. SsvSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo,1.The Principal Sessions Judge, Dharmapuri. 2. The Judicial Magistrate, Uthangarai.3.-do-The Chief Judicial Magistrate, Dharmapuri. 4. The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/
5. The Inspector of Police, Uthangarai Police Station, Dharmapuri, (Cr.NO.641 of 1997)6. The District Collector, Dharmapuri7. The Directed General of Police, Chennai+ one cc to Mr. N. Jayabharathi, Advocate sr no. 45966akr(co)nm(07.08.07)Crl.A.No.828 of 2001
Questions this judgment answers
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 207, 313; Indian Penal Code, 1860 — ss. 302, 304(ii).
Which court decided this case, and when?
Madras High Court, on 25 Jul 2007. The bench was A C ARUMUGAPERUMAL ADITYAN.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.