Iyyanar vs State

V. Periya Karuppiah, J.—The appeal is directed against the judgment dated 31.1.2007 made in S.C. No. 136 of 2006 on the file of the

District Principal Sessions Judge, Namakkal convicting the accused/appellant for the offence u/s 302 I.P.C. and sentencing him to undergo life

imprisonment and to pay a fine of Rs. 1000/-, in default to undergo two months rigorous imprisonment.

The charge against the accused is that due to the prior enmity with regard to return of vehicle pledged by the accused with one Murugan, the

accused, with an intention to commit murder of the said Murugan, on 21.4.2006 at 6.00 a.m. attacked him with a big wooden reaper on his head

when he was sleeping in a tapecot in front of his puncture shop at Thiruchengodu Main Road near Karuveppampatti Road Junction and then

caused to fall a granite stone on his head thereby causing injuries on the front side of the head, forehead, nose, left eye, left side of the lip and on

the brain which resulted in the death of Murugan due to shock and hemorrhage, and thereby he had committed the offence punishable u/s 302

I.P.C.

The accused denied the charge thereby inviting the trial.

Before the trial Court, the prosecution has examined P.Ws. 1 to 13 and marked Exs.P1 to P. 21 along with material objects 1 to 15 to prove

the charge against the accused. The accused did not choose to examine any witness nor marked any documents. On behalf of the Court, C.V.I

and C.W. 2 were examined and exhibits C1 to C5 were marked.

Brief facts of the case are as follows:

(a) The deceased Murugan was running a puncture shop at Karveppampatti Road Junction. The accused became familiar with Murugan by selling

used tubes and tyres to him. Some days prior to the occurrence, the accused brought a TVS-50 with a xerox copy of R.C. Book and asked for

Rs. 10,000/-from the said Murugan. Since Murugan said that he has no money, the accused requested him to pledge the vehicle somewhere and

get money. Therefore, Murugan handed over the vehicle to P.W. 4, who gave Rs. 10,000/-, which was in turn handed over to the accused. After

some days, the accused came with Rs. 5,000/- and asked Murugan to get back the vehicle. But Murugan insisted for repayment of the entire loan

amount. In this regard, there was some dispute between the accused and Murugan for quite some days prior to the occurrence, which was known

to P.Ws. 1 and 2 viz., wife and a relative of Murugan, respectively.

(b) On 21.4.2006 morning when P.W. 1 came out to sweep and clean the entrance of the house, she saw the accused beating her husband

Murugan with a wooden reaper. While P.W. 1 was shouting not to beat her husband, the accused lifted a granite stone and put on the head of the

deceased Murugan and ran away towards south. On hearing the hue and cry of P.W. 1, P.W. 2 who was sleeping inside the puncture shop also

came out and saw the accused beating Murugan with the reaper end dropping the Granite stone on his head, thereby causing his death. Thereafter,

P.W. 1 with the help of a known person wrote a complaint-Ex.P.1, went to Wallerai Gate Police Station and lodged the same. In the meantime,

P.W. 2 also informed about the incident to P.W. 4 and others.

(c) On information, P.Ws. 3 to 5 came to the scene of occurrence and found Murugan lying dead and they also noticed a wooden reaper and

Granite stone beside the deceased Murugan. P.W. 6, the Village Administrative Officer also came to the spot at 8.15 a.m. along with his Assistant

Ravi-P.W. 8, who gave information to him on ascertaining the fact.

(d) On receipt of the complaint Ex.P.1, P.W. 13, the Inspector of Police, registered a case in Cr.Na.lS7 of 2006 for the offence u/s 302 I.P.C.

and prepared printed F.I.R. Ex. P.17. The signature of P.W. 1 in the F.I.R. is marked as Ex. P.2. He sent the complaint and the F.I.R. through

P.W. 10, Head Constable to the Judicial Magistrate, Thiruchengodu and took up the case for investigation. Then he inspected the scene of crime

and caused the scene of occurrence and the dead body to be photographed with the help of P.W. 9. The photographs and negatives are marked

as M.Os.12 and 13 respectively. Then he prepared observation mahazar-Ex.P6 and rough sketch Ex.P.18 in the presence of P.Ws. 6 and 8. He

held inquest over the body of the deceased from 10.30 a.m. to 1.00 p.m. in the presence of panchayatdars, P.Ws. 1 to 3 and others. The inquest

report is Ex. P.19. Thereafter, he sent the body of Murugan for postmortem to Thiruchengodu Government Hospital through P.W. 11 along with

requisition Ex.P7 and his report containing details of the dead body Ex.P8.

(e) P.W. 7, Dr. Jayakumar on receipt of the requisition conducted autopsy on the body of the deceased on 21.4.2006 at 1.30 p.m. and found the

following injuries, which are incorporated in Ex.P.9-postmortem certificate:

Lacerated injuries left frontal area 9 x 3 cm brained exposed.

Lacerated injury right forehead 3 x 2 cm bone deep.

Lacerated injury upper part of nose 2 x 2 cm bone deep.

Lacerated injury left side of lip laterally 2 x 2 cm.

Skull:- Fracture left side from frontal to occipital bones 23 x 5 cm. Frontal parietal occipital bones broken into 9 pieces. Right temporal bone

fracture 22 cm up to occipital area. Blood clot over scalp and over occipital and parietal area.

Nose:- Nasal bone fracture both maxillary bones fracture over face.

Brain:- 1400 gms frontal and parietal lacerated.

The doctor had further opined that the deceased would appear to have died of shock and hemorrhage and injuries to vital organs, skull and brain

and 6 to 12 hrs prior to autopsy.

(f) P.W. 13 in continuation of the investigation recovered M.Os.1 to 9 viz., blood stained-wooden reaper, Granite stone, Tapecot, bed sheet,

pillow, banian cloth; a pair of slippers, blood stained earth, sample earth respectively from the place of occurrence under the cover c� Mahazar

Ex.P.4 in the presence of P.Ws.6 & 3. Thereafter, he examined the parents of the deceased Murugan, P.W. 4 and others and recorded their

statements. On the same day i.e. on 21.4.2006 at 4.30 p.m. on information that the accused was sitting near a bridge at Malaisuttru Raod, he

arrested the accused on the identification made by P.W. 2 in the presence of P.Ws. 6 and 8 and recorded voluntary confession statement of the

accused and the admissible portion of the confession statement, with regard to concealment of his blood stained apparels which he worn at the

time of the occurrence, is marked as Ex. P.10, pursuant to which his pant-M.O.10 and his shirt-M.O.11 were recovered under the cover of

mahazar Ex.P.3 in the presence of the same witnesses. Thereafter, he sent the accused for remand and informed the wife of the accused about the

arrest under Ex.P.20. He recovered the personal apparels of the deceased viz., M.Os.14 and 15 produced by P.W. 11 under the Special Report

Ex.P.11. On 22.4.2006, he examined some of the witnesses and recorded their statements. On 24.4.2006, he examined the other witnesses and

recorded their statements. He gave requisition Ex.P.12 along with Form 95 Ex.P.21 to the Court to send for the recovered objects for chemical

examination, which was complied with by the Court under Ex. P. 13 and the reports received are Exs. P14-P.16. Thus, PW. 13 completing his

investigation by following all the procedural formalities filed a final report against the accused.

When the accused was questioned u/s 313 Cr.P.C. with regard to the incriminating materials available against him in evidence, he denied the

same and pleaded innocence.

The learned Principal Sessions Judge, Mamakkal considering the oral and documentary evidence came to the conclusion that the prosecution

has proved its case beyond all reasonable doubt and convicted and sentenced the accused as aforementioned. Hence the appeal by the appellant.

Heard the learned counsel for the appellant, Mr. T.R. Ravi and Mr. P. Kumaresan, the learned Additional Public Prosecutor appearing for the

State.

Mr. T.R. Ravi, the learned counsel for the appellant would submit in his argument;

(i) that the prosecution had examined the wife of the deceased as P.W. 1 and the employee of the deceased as P.W. 2, who were said to have

been present at the time of the occurrence, but there are probabilities that they were not present at the scene of occurrence at the time of the

alleged assault made by the accused;

(ii) that the prosecution has not come forward with a true case, but had utilised the signature of P.W. 1 to prepare a false complaint against the

accused within a short span of 1 � hours from the time of occurrence and had fabricated the case against the accused, whereas the actual culprit

was one of the enemies of the deceased, who had borrowed money at an exorbitant rate of interest from the deceased and the accused was falsely

implicated in the case;

(iii) that the complaint and the F.I.R. reached the Court only on 24.4.2006, whereas the Magistrate had put hie initial and mentioned the date as

21.4.2006 at 9.30 a.m. and similarly the other documents viz., the remand report and the statements were said to have been received by the Court

on 24.4.2006, but the endorsement of the Magistrate mentions the date as 21.4.2006 and the time as 9.45 p.m. and in other relevant papers

received by the Court, it has been mentioned as 22.4.2006 and the discrepancies and the corrections made in the date seal of the Court would

create suspicion and on the basis of the said suspicious circumstance and that the Magistrate, who was examined as C.W. 2 had also admitted that

21.4.2006 is the working day and there cannot be any possibility of putting the seal of 24.4.2006 in the complaint and the F.I.R handed over to

him and therefore, the said receipt of the complaint and F.I.R. on 21.4.2006 was doubtful and therefore the benefit of doubt should be given to the

accused.

(iv) that P.W.I had categorically admitted in her evidence that the puncture shop conducted by the deceased husband was away from her house

within the reach of 15 minutes walk and there is no possibility of P.W. 1 to go over to the place of occurrence at the time of occurrence. Similarly,

it is also the case of the prosecution that P.W. 2, who is working in the puncture shop was sleeping inside the shop, whereas the deceased was

sleeping in the tape cot outside the puncture shop when the occurrence had taken place and therefore, it could not be possible for P.W. 2, who

was sleeping inside, to witness the same. Therefore, the evidence of P.Ws. 1 & 2 cannot be relied upon and the suspicious circumstances

emanated with regard to receipt of the complaint and the FIR by the Court, which were not satisfactorily explained by the Magistrate, would give

the benefit of doubt to the accused as the prosecution did not prove its case beyond all reasonable doubts and prayed for the acquittal of the

accused.

The learned Additional Public Prosecutor Mr. P. Kumaresan would submit in his reply argument;

(i) that the complaint was immediately given after the occurrence, which took place on 21.4.2006 by 6.00 a.m. and the same was registered and it

reached the Court by 9.30 a.m. on the same day, without delay and the investigation also commenced immediately resulting the arrest of the

accused on the same day and his confession statement was recorded on which basis, his blood stained clothes worn at the time of occurrence

were seized and thereafter, the accused was remanded to judicial custody on the same day. Therefore, it cannot be said that the investigating

agency had obtained two complaints from P.W. 1 and had manipulated the same in order to incriminate the accused in the case.

(ii) that the initial of the Magistrate endorsed on the complaint, FIR and other documents is the conclusive proof, whereas the court seals were put

by the ministerial staff of the Court, who had inadvertently put the wrong date and therefore, the consequential correction has been carried out

accordingly and the same cannot be doubted in order to find a loophole to acquit the accused especially when the documents had been in the

custody of the Court.

(iii) that P.W. 1 used to go to the puncture shop in the morning where the occurrence had taken place for the purpose of cleaning and during that

routine work, she found the accused attacking the deceased with the reaper on the head and thereafter lifting the granite stone and throwing on his

head in order to make sure the death of the deceased and then the accused fleeing away from the scene of occurrence, which occurrence had also

been witnessed by P.W. 2, when he came out on hearing the screaming of P.W. 1 and the evidence of the eye witnesses viz.,P.Ws. 1 & 2 is

natural and in the nature of corroborating the circumstantial evidence and in the way of supporting the case of the prosecution, which necessitated

the lower Court to come to the conclusion of convicting and sentencing the accused as aforesaid.

(iv) that the clothes worn by the accused seized under Ex.P.3 seizure mahazar were sent along with other material objects viz., the granite stone

and the wooden reaper with blood stains and in the said chemical examination it has been categorically found that the shirt worn by the accused,

granite stone and the wooden reaper contained human blood, which is classified as Group ''B''. Apart from that, the serology report also discloses

that the blood stains in the clothes of the deceased were also found to be of human blood ''B'' Group. Therefore, the scientific evidence collected

by the prosecution also supports the ocular evidence, thereby fastening the liability on the accused. Stressing on the above points, the learned

Addl. Public Prosecutor submitted that the prosecution had proved the case beyond all reasonable doubts and prayed for the dismissal of the

appeal thereby confirming the conviction and sentence.

We have given our anxious thought to the arguments advanced by both sides in support of their cases.

The case of the prosecution was that on 21.4.2006 at about 6.00 a.m. the deceased Murugan was sleeping in the cot outside his puncture

shop and P.W. 2 who is an employee of the said shop was sleeping inside the shop and when P.W. 1, the wife of the deceased Murugan had

come to the puncture shop in order to clean the entrance and for sprinkling water, she saw the accused Ayyanar attacking her husband with

wooden reaper and while she was shouting not to hit her husband, the accused had lifted a heavy granite stone and put on the head of the

deceased and fled away from the scene of occurrence. P.W. 2 had come out from the shop on hearing the hue and cry of P.W. 1 and saw the

occurrence. Later on P.W. 1 prepared the complaint with the help of the persons available nearby and had taken the same to the police station

which was situated away from Wallarai Gate. On receipt of the complaint, the investigation had commenced after registering the F.I.R. on the basis

of the complaint.

The motive as spoken by P.W. 1 for the commission of the offence by the accused against the said Murugan was that the said Ayyanar was a

customer of puncture shop and some days prior to the occurrence, he brought a TVS-50-Two Wheeler and handed over to the accused and

asked for Rs. 10,000/- promising to repay the said amount and get the vehicle from him, for which the accused replied that he has no money. In

that case, the accused requested the deceased to make arrangement of a loan. Hence the deceased had approached P.W. 4, who had lent money

of Rs. 10,000/-retaining the TVS-50 and gave the deceased Murugan a sum of Rs. 10,000/- and the same was in turn handed over to the

accused. After some days, the accused had brought Rs. 5,000/-and demanded the deceased to hand over TVS 50 pledged by him. For that the

deceased Murugan had demanded the remaining sum, whereas the accused did not heed to it, but was insisting for the return of the vehicle after

the receipt of Rs. 5,000/-. When the deceased Murugan bluntly refused not to receive the amount, the accused had scolded that he would do

away with him. On the basis of the said enmity, the accused was said to have attacked the deceased Murugan with the reaper and also the granite

stone.

The prosecution had produced the evidence of P.Ws. 1 and 2, wife and employee of the deceased as eyewitnesses. The evidence of P.W. 1

would go a long way to show that she had witnessed the accused assaulting the deceased Murugan with the reaper when she had come out to

clean the entrance of the puncture shop and while she was shouting on seeing her husband being attacked by the accused with the reaper, the

accused had lifted the granite stone and put on the head of the deceased. The said evidence of P.W. 1 was also corroborated by P.W. 2, who had

come out of the shop on hearing the shouting of P.W. 1 and witnessed the incident. Therefore, this evidence produced by the prosecution would

show that the aggressor was the accused, who had attacked the deceased Murugan when he was sleeping.

The next argument advanced by the learned counsel for the appellant is that there were two F.I. Rs and the present F.I.R has been embellished

on facts in order to incriminate the accused, who is an innocent person, in order to relieve the actual culprit from the clutches of law. Therefore, we

have to see whether the argument advanced by the appellant''s counsel could be accepted and the evidence of P.Ws. 1 & 2 have to be rejected.

For that we have to see the circumstantial evidence produced by the prosecution to test the veracity of P.Ws. 1 & 2 and also the case put forth by

the prosecution.

On a careful perusal of the original documents, we could see that the F.I.R. and the complaint were received by the Magistrate C.W. 2 by

9.30 a.m. on 21.4.2006 and the investigation was commenced immediately thereafter and the accused was arrested and remanded to judicial

custody on the same day which could also be evidenced on seeing the endorsement of the Magistrate in the remand report. The suspicion raised

by the learned counsel for the appellant would be that the documents sent to Magistrate were stamped with the date seal of 24.4.2006, whereas

those important documents were sent to the Court on 21.4.2006, which is also a working day. On a careful scrutiny of the said documents, we

could see that the endorsement of the Magistrate would show that the documents were received by him on 21.4.2006, whereas the seals have

been wrongly put as 24.4.2006. The putting of seal is being carried out by the ministerial staff of the Court and in the course of such putting of seal,

it has been mistakenly put as 24.4.2006 instead of 21.4.2006. When the initial of the Magistrate with date is available to show that those

documents were received by him on 21.4.2006 and the said receipt of the documents was proved by the evidence of C.W.2-the Magistrate

herself, we need not doubt the prosecution case as put forth in the complaint as well as in the F.I.R. merely because wrong date seal has been put

by the office of the Magistrate. It is pertinent to note that the accused was arrested on the same day evening and he had also given a confession

which lead to the discovery of certain materials.

On a careful perusal of the evidence, we could see that the accused was arrested and he had also given a confession statement and on the

basis of the confession statement, the clothes of the accused were discovered and seized under Ex.P.10 mahazar on the same day. The clothes

recovered from the accused contained blood stains and they were marked as M.Os.10 and 11. The seizure included the wooden reaper as well as

the granite stone with blood stains from the place of occurrence. The clothes worn by the deceased Murugan was also seized through Ex.P. 11

and those clothes, of the accused were also referred to chemical examination by the Magistrate to the Salem Forensic Science Laboratory through

Ex.P.12. On examination, blood was detected in M.OS.10 & 11. The clothes of the accused, M.Os. 1 & 2 viz., the wooden reaper and the

granite stone which were used by the accused for committing the offence and M.Oe.6 14 and 15 viz., the clothes of the deceased were found to

have contained human blood Group ''B''. This circumstance would show that the clothes siezed from the accused and the weapons used for the

offence seized on the confession of the accused were containing the blood group of the deceased and therefore, the ocular evidence P.Ws. 1 & 2

supported by other evidence would go a long way to show that the offence was committed only by the accused.

Further, P.W. 4 with whom the deceased had pledged the vehicle belonging to the accused for getting a sum of RS. 10,000/- had spoken the

said fact of pledging the TVS-50 vehicle. The evidence of P.W. 1 was also to the effect that the accused had insisted the deceased to receive Rs.

5,000/- only for getting back his vehicle for which the deceased was not agreeable and refused to get back the vehicle unless the accused repays

the entire amount of Rs. 10,000/- and the said disagreement between the accused and the deceased had become the reason for the commission of

murder.

The medical evidence as spoken by PW. 7, the doctor would explain the injuries sustained by the deceased Murugan in the occurrence. He

would also speak to the effect that the lacerated injuries on the left frontal area caused the brain exposure, the lacerated injury on the right forehead

was bone deep, the lacerated injury on the upper part of the nose was on the bone deep and there was another lacerated injury on the left lip and

due to the said injuries, the skull frontal occipital bone were fractured on the left side and the frontal occipital bones broken into nine pieces and

right temporal bone fracture to a length of 22 cms up to occipital area. Those injuries, according to P.W. 7 could have been caused by hitting on

the reaper as well as by throwing the granite stone on the head. Thus, the medical evidence also corroborated the evidence of P.Ws. 1 and 2.

The accused had submitted a statement when he was examined u/s 313 Cr.P.C. In the said statement, he had categorically denied that he did

not pledge his TVS-50 Centura bearing Regn.No.TN-30-Y-8239 either with the deceased Murugan or with Venkatesan, whereas the deceased

was using his vehicle as a friend and on the demand of the accused he did not return the vehicle. We have already discussed the evidence of P.W.

4 that the deceased Murugan had approached him along with the accused for pledging the said vehicle for a sum of Rs. 10,000/- and after

entrusting the R.C. Book xerox and the vehicle to P.W.4, the deceased Murugan received money from P.W.4 in order to disburse to the accused

and Murugan was telling to P.W. 4 four days before the date of occurrence that the accused was demanding the vehicle. The said evidence of

P.W.4 would strengthen the motive and would prove that the statement made by the accused in answer to the questionnaire u/s 313 Cr.P.C. is not

correct. Moreover, the blatant denial of the accused that he did not give any confession statement and the clothes viz., M.Os. 10 and 11 alleged to

have been seized from him under Ex.P.11, do not belong to him are also found to have been incorrect since the arrest and seizure has been done

by the police in the presence of witnesses P.W. 6, the Village Administrative Officer and his Assistant, who have no axe to grind against the

accused. The evidence of P.W. 6 is also to the effect that the clothes belonging to the accused were seized in his presence pursuant to the

confession statement given by the accused in his presence. Therefore, the said statement of the accused regarding the seizure of the clothes from

the accused is also not acceptable.

On a over all consideration of the evidence of the prosecution, we are of the considered view that the prosecution has proved the guilt of the

accused beyond all reasonable doubt. Therefore, we have no (sic) to interfere with the finding of the lower Court in convicting and sentencing the

accused u/s 302 I.P.C. as aforesaid.

In the result, the appeal is dismissed confirming the judgment of conviction and sentence made in S.C. No. 136 of 2087 dated 31.1.2007 on the

file of the Principal District and Sessions Judge, Namakkal.