Jesu Adimai vs State

Chitra Venkataraman, J.—These appeals arise out of the judgment of the II Additional Sessions Judge, Tirunelveli dated 22.03.2002 in S.C. No. 209 of 2006. Criminal Appeal No. 518 of 2002 is by A1 and Criminal Appeal No. 519 of 2002 is by A2 to A11.

The case of the prosecution is that on 12.1.1994 at about 3.00 pm, the accused herein attacked the deceased Kennedy and P. Ws.1 to 3 with stick and threw country bomb on the deceased, caused grievous injuries to the said Kennedy, thereby resulting in his death; that the accused caused grievous injuries to others, thereby the accused committed offences punishable under Sections 302, 324, 326, apart from Sections 27(2) and 27(3) of the Indian Explosives Act, 1988.

The accused were convicted sentenced by the learned Additional Sessions Judge, Tirunelveli, as follows:

Accused Conviction SentenceA1 to A11 Section 341 IPC Each to undergo 1 month Rigorous imprisonmentA1 to A11 Section 302 read Each to undergo life imprisonment with Section 149 IPC fine of Rs. 3,000/- each and in default, each to undergo one year rigorous imprisonmentA2 to A4 Section 324 IPC Each to undergo 1 year rigorous imprisonment.A1 to A5 Section 148 IPC Each to undergo 1 year rigorous imprisonmentA6 to A11 Section 147 IPC Each to undergo 6 months rigorous imprisonment.A6 to A10 Section 323 IPC Each to undergo 6 months rigorous imprisonment.

read with 149 IPCA3 Section 326 IPC 3 years rigorous imprisonment. The sentences thus ordered are to run concurrently. A1 to A3 were acquitted of the offence charged u/s 27(2) and 27(3) of the Indian Explosives Act,1988.

To prove its case, the prosecution examined P. Ws.1 to 12, marked Exs.P1to P19 and produced M. Os.1 to 7. In the statement recorded u/s 313,Cr.P.C., the accused denied their complicity in the offence. They did not, however, let in any evidence, nor filed their written statement.

The facts, briefly, are as follows:

P.W.2 is the father of the deceased Kennedy and P.W.1. The deceased Kennedy is the elder brother of P.W.1. The accused and the deceased belong to Perumanal Village. Admittedly, the accused and the family of P.W.2 were not on good terms on account of fishing rights. On 12.1.1994, on account of the death of P.W.2''s cousin Jesu, P.W.2, deceased Kennedy and Raja came to Jesu''s house to attend the condolence. At 3.05 pm, they were standing near the deceased Jesu''shouse which is near A3 - Sahayam''s house. P.W.1 came there to see his father. At that time, along with A11 - Joseph, the accused A1, A2 and A3, with country bombs in their hands, A4 and A5, with aruval in their hands, A6 to A10, with sticks, came there and confronted the deceased, P.W.1, P.W.2 and others. A11incited the other accused to attack and kill the deceased and the injured witness and others and throw the bomb at them. A4 attacked P.W.1 with aruval onthe left shoulder. On seeing P.W.1''s father and one Raja running towardsP.W.1, A1 - Jesu Adimai threw country bomb on them. It hit at the deceased on his forehead, causing grievous injuries, that the deceased fell down. A2 -Selvaraj threw the bomb on Raja, which caused injury on his right leg. A3 threw the bomb; it however fell on the ground. A5 attacked P.W.2 on his left shoulder. A6, A7, A8, A9 and A10 attacked Raja and P.W.1''s father indiscriminately, causing injury to them. On seeing the by-standers and P.W.2coming towards the accused, they ran away from the scene. Thereupon, P.W.3 hired a tempo and took the injured to Nagercoil Kottar Government Hospital.Enroute to the hospital, Kennedy died.

P.W.10 - Thangadurai, Head Constable, on receipt of the intimation from Kottar Government Hospital on 12.1.1994 at 17.35 hours about the injuries suffered by Raja (Ex.P17- wound certificate), P.W.1 (Ex.P19 - wound certificate) and P.W.2 (Ex.P18 - wound certificate) and the death intimation of Kennedy -Ex.P15 respectively, came to the Government Hospital and enquired Raja and recorded his statement. The said statement is marked as Ex.P16. On recording the statement, he informed the Koodankulam Police Station.

P.W.8 - Sankaranarayanan, working as Head Constable in KoodankulamPolice Station, registered the complaint in Crime No. 23/94 under Sections 147, 148, 326, 307 and 302, I.P.C. as well as under the Indian Explosives Act. The first information report registered is marked as Ex.P9. He forwarded the same along with the statement of Raja and the death intimation to the Magistrate as well as to the authorities.

P.W.9 - Krishnan Nair, Inspector in charge of Koodankulam Police Station, on receipt of the first information report, came to the scene of occurrence and prepared the observation mahazar in the presence of the witnesses. Ex.P1 is the observation mahazar and Ex.P10 is the rough sketch. In the presence of the said witnesses, he collected the blood-stained earth - M.O.6and sample earth - M.O.7 under Ex.P2 in the presence of the witnesses. On the same day at about 9.00 am, in the presence of the panchayatdars and witnesses, he conducted the inquest on the dead body of the deceased. Ex.P11 is the inquest report. Thereafter, he sent the body with a requisition for conducting the autopsy, to the Nagercoil Government Hospital. He examined further witnesses, recorded their statements and handed over the files for further investigation.

P.W.12 - Ganesan, Circle Inspector, Uvari, took up the further investigation on 15.1.1994. He enquired Raja, P.W.1 and P.W.2, recorded their statement and forwarded the blood-stained clothes to the Court. He enquired further witnesses who reiterated the statements made earlier on the first enquiry. Hence, he did not record their statements. He enquired the KottarPolice on 18.1.1994 and 19.1.1994 and recorded their statement. On 25.1.1994,in the earlier hours at 4.45 am, near the stone quarry in Vairavi well toIdinthakarai, on P.W.5 and one Arulanandam identifying the accused, A2 to A10were arrested in the presence of witnesses. A4 made a confession statement on his own and the same was recorded in the presence of witnesses. The confession statement is marked as Ex.P3. Later, A4 took P.W.12 and other witnesses and produced the aruval (khd; bfhz;il gpo nghl;l mhpths;) M.O.2 and aruval with iron handle - M.O.3 on 25.1.1994 at 6.00 am and the same was recovered under Ex.P4,in the presence of the witnesses. The accused, thereupon, were brought to the police station and in the presence of witnesses, confession statements were recorded and they were remanded to judicial custody.

P.W.12, investigating officer also examined Dr. Yusuf and recorded his statement. On 31.8.1994, he examined P.W.6 Dr. Kuthalingam, the Chief Doctor of Kanyakumari Government Hospital, and recorded his statement. After completing the enquiry, he lodged the final report on 08.01.1995.

Ex.P6 is the post mortem report and Ex.P7 is the final report, issued by P.W.6. Ex.P6 reads as follows:" Extensive lacerated injury with burnt out black skin margins present over the face, forehead, both occular areas, root of nose, both eyes found to bemissing. Fracture frontal bone seen through which lacerated frontal bones of brain matter seen. Size of the wound 20 cms x 15 cms x bone deep. Face and forehead seen seriously disfigured. ... Opening of the head Multiple fractures (stellate type) seen over frontal, parietal, temporal and occipital bones on either side. ... Frontal lobes of brain found to be lacerated with its coverings.

On receipt of the chemical examiner''s report, the doctor gave his final opinion that the deceased would appear to have died of head and face injuries, 20 to 22 hours prior to autopsy. In his evidence, P.W.6 pointed out that the final report was based on the chemical report. He pointed out that the face and the forehead were totally disfigured and the front head suffered contusion and the edges of the injury, burnt. The evidence of P.W.6, read withExs.P6 and P7, pointed out that the deceased suffered severe injuries and died of homicidal violence.

P.W.11 - Dr. A.N. Rajan, Conversant with Dr. Yusuf''s handwriting and in the absence of Dr. Yusuf, deposed on behalf of Dr. Yusuf, who attended on some of the injured persons. P.W.11 deposed that on 12.1.1994 at about 3.05 pm, one Raja came with burn injuries. On the same day, P.W.2 also came to the hospital. Apart from him, P.W.1 also came with injuries. Ex.P17 is the accident register of Raja. Ex.P18 is the accident register of P.W.2 and Ex.P19 is the accident register of P.W.1.

Ex.P17 relating to Raja, referred to the assault by the persons throwing bomb on 12.1.1994 at about 3.05 pm on the eastern side of the church.P.W.18, the accident register relating to P.W.2, referred to the assault by Vettaruval at 3.05 pm on 12.1.1994 by persons, on the eastern side of the church. Ex.P19 accident register relating to P.W.1 pointed out to the assault by persons with vettaruval near the eastern side of the church.

It must be noted herein that Raja, although injured, was not examined by the prosecution.

Learned senior counsel appearing for A2 to A5 - Appellants-1 to 4 inCrl. Appeal No. 519 of 2002, submitted that the case of the prosecution rested mainly on the evidence of P. Ws.1 to 3. The occurrence, according to the prosecution, is stated to have taken place in front of A3''s house. However, in his evidence, the Investigating Officer stated that the occurrence had happened before the church and the injured witnesses had stated before P.W.11 that the occurrence was before a church.

Even though P. Ws.1, 2 and 9 stated that the occurrence was near A3''shouse, yet, according to Exs.P16, P17 and P18, it is stated to have taken place near the church. The discrepancy thus weakens the case of the prosecution and the benefit has to be given to the accused. He further referred to the evidence of P.W.12 and to the charge, stating that the occurrence had happened in the Church Street. He also pointed out to the admission by P.W.12 that the rough sketch did not show that the occurrence was in Church Street. Looking at the evidence thus stated above, the case of the prosecution as regards the place of occurrence itself is in serious doubt and there are contradictions between the evidence of P. Ws.1, 2 and 9. He referred to the evidence of P.W.2 that he never stated that the occurrence was on the eastern side of the church. He also referred to the evidence of P.W.11 about the statement of Raja that on12.1.1994, at about 3.05 pm, on the eastern side of the church, the accused threw the bomb.

Learned senior counsel further pointed out to the evidence of P.W.9 deposing that the occurrence was near the church and he had not collected the evidence as regards blasting of the country bomb. Going by the said evidence, learned senior counsel pointed out that the discrepancy in the evidence as regards the place of occurrence as per the statement of the complainant Raja, the evidence of P. Ws.1 to 3 and 9 as well as Exs.P17 and P18, thus weakens the case of the prosecution. He further pointed out that P. Ws.1 to 3 are interested witnesses.

He further submitted that even assuming that there are no discrepancies as to the scene of the occurrence, the presence of the accused, by itself, would not implicate them to the commission of the offence. He made exception to the prosecution not examining Raja, the author of the first information Report - Ex.P16. He referred to the names of one Xavier and Alankaram - independent witnesses referred to in the first information report and who had not been examined in this case. Looking at the above-said loopholes, learned senior counsel pointed out that the non-examination of these persons raises a serious doubt as to the reliability of the prosecution case based on Ex.P16. Hence, there are no evidence to substantiate the allegation that A1 threw the bomb aiming at Kennedy. There are no materials to charge the accused for the offence punishable u/s 149, I.P.C.

Learned senior counsel further pointed out that the case of the prosecution is that A1 to A3 are said to have used country bombs and caused injuries to the deceased, Raja and P. Ws.1 and 2. The bomb thrown by A3 did not cause injury to anyone, as it fell on the ground. Except the evidence ofP.W.12, there was no recovery as to the pieces of exploded bomb from the place of occurrence. He further pointed out that the arrival alleged to have been used by A4 and A5 said to have been recovered through the confession were not sent for chemical analysis, nor the sticks alleged to have been used by A6 and A10,recovered. Thus the overt act alleged as against the accused do not tally even as per the evidence of the prosecution witnesses. He pointed out that since the prosecution placed heavy reliance on the evidence of P. Ws.1 to 3 who are close relatives and the independent names found in the first information report were not examined, apart from Raja, in the absence of any concrete evidence on the overt act alleged, the charge against the accused has to fail. Even though the prosecution alleged that A1 to A3 threw country bombs on the deceased, yet, there was no recovery of splinters from the scene of occurrence. No material were recovered from the scene of occurrence to substantiate the case of the prosecution as to the use of country bomb to attack the deceased. The case registered under the Indian Explosives Act was also without any material. Consequently, he prayed for acquitting the accused.

Learned Counsel appearing for A1/Appellant in Criminal Appeal No. 518of 2002 pointed out to Exs.P1 to P16, containing minute details as to the overact attributed to each one of the accused. Considering the tense moment therein, it is highly unnatural to expect an injured person to give the details. He pointed out that P. Ws.1 to 3 are relatives. Ws.4 and 5, who are witnesses to the mahazar and arrest, were also relatives of the deceased. In the absence of any independent witness to depose on the occurrence and the material objects not sent for chemical analysis, the benefit must go to the accused. He further pointed out that the overt act alleged of A1 and A3 did not tally with the overact spoken to in the evidence of the prosecution witnesses. With no recovery on the remains of the exploded bomb, the allegation on A1 causing the death of the deceased remains highly doubtful. He made particular reference to the evidence of P.W.1 as to the claim for solarium from the Government on the fishermen dying of injuries suffered while fishing and the representation given on the death of the deceased before the Deputy Director of Fisheries, Tuticorin. He further pointed out that even though P. Ws.1 to 3 spoke about Accused 6 to 10 attacking them using sticks, yet, there was no recovery. Thus with the investigating officer P.W.12 deposing that there was no recovery or detection of explosive articles, the scene of occurrence not proved, the Court below should have acquitted the accused. The claim for solarium on the death of the deceased strengthens the case of the defence that death could not be due to murder, as had been alleged by the prosecution.

Learned Counsel appearing for A11 pointed out to the evidence of P.W.10 stating that the accused were armed with other deadly weapons. If that be so, there was no need at all for A11 to instigate them to attack. The implication of A11 in the commission of the offence is highly doubtful. There are no materials to establish the involvement of A11 in the crime. Consequently, he submitted that the prosecution case as against A11 has to fail.

Learned Counsel appearing for A6 and A7 adopted the arguments of the other counsel and reiterated what had been stated by the other counsel

In reply to the submissions made by the Appellants, learned Additional Public Prosecutor pointed out to Ex.P1 - observation mahazar, Ex.P10 - rough sketch as well as P.W.1''s evidence, which clearly showed the place of occurrence as between Sahayam A3''s house and one Soosai Rayammal. The accident registersExs.P18 and P19, which related to the injured witnesses, which were the earliest of the documents available immediately on the occurrence, clearly mentioned the place of occurrence as on the eastern side of the church. Thus the roughs ketch, observation mahazar, Ex.P18, Ex.P19, as well as the evidence of P.W.1clearly pointed out to the scene of occurrence and there was no confusion for the Appellants to contend that the prosecution case has to fail on account of lack of clarity on the scene of occurrence.

As to the submission of the learned senior counsel that Alankaram and Xavier referred to in the first information report (Ex.P9), are strangers, he pointed out to the evidence of P.W.1, which clearly pointed out that Alankaram was P.W.1''s brother and Xavier, cousin of the deceased Kennedy.

Learned Additional Public Prosecutor pointed out P. Ws.1 and 2 -injured witnesses, went to the hospital immediately on the occurrence at 4.45pm and 5.15 pm, respectively. The witnesses have clearly stated as found inEx.P18 and 19 the accident registers of P. Ws.2 and 1 about the place ofoccurrence, the time of assault, the persons who had assembled there to attack the deceased and the injured witnesses and the weapons used by each one of them to cause the injuries. The occurrence was at 3.05 pm on 12.1.1994. The police received the information on the occurrence immediately at 4.45 pm from the hospital. The evidence of P. Ws.1 and 2, the complaint made by Raja and the first information report, pointing out to the attack by A1 to A11 and the weapons carried by them to attack the deceased and the injured witnesses clearly pointed out to the unlawful association with the common object of attacking the deceased and the injured with deadly weapons. He also referred to the evidence of P.W.6 the post mortem doctor deposing on the extensive injuries on the face and the forehead which had disfigured the very face. Hence, the mere fact that the prosecution did not collect the splinters, by itself, does not disprove the case of the prosecution to result in an acquittal. Consequently, the conviction and sentence imposed are based on materials and no exception could be taken to the same.

Heard learned Counsel appearing for the Appellants and the learned Additional Public Prosecutor appearing for the Respondent and perused the materials on record.

The deceased Kennedy is the son of P.W.2 and the brother of P.W.1.P. Ws.1 to 3 are the injured witnesses who were with the deceased in the scene of occurrence. The occurrence was on 12.1.1994 at about 3.05 pm. Ex.P17 is the accident register relating to Raja. Exs.P18 and P19 are the accident registers relating to P.W.2 and P.W.1 respectively. Ex.P9 is the first information report on the complaint received from Raja. While Ex.P19 was received at 4.45 pm on12.1.1994, Ex.P17 at 5.00 pm and Ex.P18 at 5.15 pm, the complaint by Raja was recorded between 17.35 to 18.00 hours in the hospital. Right from the earliest of the documents, one would note as to the place of occurrence as on the eastern side of the church. While Ex.P17 referred to the injuries caused by the assault on throwing the bombs, Ex.P18 referred to the assault by persons by usingvettaruval and stick and Ex.P19 showing assault by persons using vettaruval. Ex.P9 referred to the scene of occurrence as on the eastern side of the church. Ex.P1 is the observation mahazar made on 13.1.1994 at 6.15 pm, which pointed out to the frozen blood in between A3 Sahayam''s house and the house of one SoosaiRayammal in Peru anal Village in the street running south to north on the eastern side of the church. It also pointed out to the blood-stained earth there. The rough sketch marked as Ex.P10 clearly pointed out to the location saner A3''s house, which is on the eastern side of the church and the road running south to north on the eastern side of the Church Street.

Contrary to the assertions of the Appellant herein, there is nothing in Exs.P16, P17 and P18 to state that the occurrence was near the church. These documents consistently point out to the scene of occurrence as on the eastern side of the church. The assertion of the Appellants that the sketch did not show the location of the church to identify the occurrence spot does not appear to be correct. A perusal of the rough sketch marked as Ex.P10 clearly point out to the Church Street running east to west to the church. At the end of the street, is the road running from south to north. On the northern side of the road running east to west, is another road running east to west. In between the road running east to west on the northern and southern side, there is a small lane wherein, the third accused Sahayam''s house is located. Looking at the sketch, it is clear that the house of the third accused is on the eastern side of the church. Thus looking at the sketch and the observation mahazar Ex.P1, we do not find any inconsistency in the evidence to doubt the scene of occurrence, as had been projected by the defence. The evidence of P.W.1 giving the narration as to the scene of occurrence matches fully with what is shown in the rough sketch -Ex.P1 and in the observation mahazar Ex.P1. Thus, the above-said documents and the evidence belie the claim of the Appellants that the prosecution had not substantiated with any definiteness as to the scene of occurrence.

It is seen from the evidence of P.W.6, the doctor who conducted the autopsy, that the body of the deceased had a deep crush injury on the forehead and both eyes were found missing. The entire face was disfigured and he opined that the deceased would appear to have died of head and face injuries.

He pointed out that a person would suffer these injuries when attacked by a bomb. He also pointed out to the burnt edges of the injury. Even though the doctor P.W.6 stated that he had not undertaken the examination to find out the presence of country bomb explosives, nor sent the blood for chemical examination; yet, the burnt injuries were due to the edges burnt by fire. He also referred to Ex.P97 as to the person suffering death on account of head injuries, which could be caused by hurling the bomb. Thus, going by the nature of injuries suffered and the evidence of P.W.11, Dr. A.N. Rajan, who deposed on the injuries caused on P.W.1, P.W.2 and another, that the injuries on P. Ws.1 and2 would have been caused by a weapon like aruval and on Raja, by the attack on the explosion of a country bomb, it is clear that the deceased and the injured witnesses and Raja suffered grievous injuries on account of the country bomb thrown on him (deceased and Raja) and by the attack using aruval. Thus the evidence herein would clearly prove the case of the prosecution as regards the use of country bomb, arrival and stick by the accused to attack the deceased and the injured witnesses, causing grievous injuries, one resulting in death of Kennedy and the others suffering grave injuries. The evidence thus seen above clearly establish that the evidence of P. Ws.1 to 3 as regards the scene of occurrence, the manner of attack and the accused involved in the attack to accept the evidence of P. Ws.1 to 3 which is coherent, consistent and natural, infusing the confidence of this Court to accept the case of the prosecution.

As already pointed out, the statement was recorded immediately at about 5.00 pm from Raja who came to the hospital with bleeding injuries. The accident register clearly pointed out to the scene of occurrence and who caused the injuries.

Even though learned Counsel appearing for all the accused emphasized that there was no recovery of any of the blasted piece of the country bomb, yet the evidence of P.W.6 pointed out to the severity of the injury that the face was disfigured and the front occipital bone was fractured; that the injuries could have been caused when attacked with a country bomb. The injuries suffered by the eye-witnesses as well as by Raja as per the evidence and Ex.P17 thus clearly prove the nature of weapons used to cause the grievous injuries.

In the above circumstances, the mere fact that the blasted pieces of the country bomb were not sent for chemical examination does not, in any manner, raise any doubt in the prosecution case. As rightly pointed out by the learned Additional Public Prosecutor, no doubt, there was failure on the part of the prosecution to recover the pieces of the blasted country bomb for sending them for chemical examination. It is rather unfortunate that the investigating authorities had not collected the pieces of the blasted country bomb for sending them to chemical examination. But that, by itself, does not lead to the rejection of the prosecution case when the evidence categorically prove the use, the nature and the manner of using the weapons to attack the deceased and the injured witnesses.

Contrary to the assertion of the learned Counsel appearing for A1 that the foundation of the case itself is doubtful as Exs.P1 and P16 had minute details to speak on the overt acts of the accused it must be noted that immediately on the occurrence before A3''s house, which is near the house of one Jesus wherein the deceased and the injured witnesses had gathered to attend the condolence, the accused, who were all known to the persons therein, came and attacked with deadly weapons at 3.05 pm. Immediately thereafter, the injured witnesses as well as Kennedy - the deceased, were taken to the hospital and the statement was recorded from Raja, without any time loss.

In the stated circumstances, the mere fact that Ex.P1 and P16 gives the narration in detail, by itself, does not lead one to accept the case of the accused herein that in a tense moment, it is unnatural for the injured witness to give the details of the occurrence. As already pointed out, the evidence speaking on the overt act of the accused and the evidence marked through the statement of Raja the accident registers - Ex.P17, 18 and 19 and the post mortem report, apart from Ex.P1 - observation mahazar, Ex.P1 and Ex.P10 - rough sketch clearly establishes the scene of occurrence, the presence of the accused attacking the deceased and the injured witnesses and Raja with deadly weapons to result in the death of Kennedy and injuries to others.

In the light of the prosecution thus establishing the case as against all the accused, joining with a common object in an unlawful assembly to attack the deceased and P. Ws.1 to 3 with deadly weapons, we have no hesitation in confirming the judgment of the Court below on the aspect of conviction as well as on the sentence imposed by the trial Court. In the circumstances, the appeals are dismissed.

It is reported that all the accused herein are on bail. Learned II Additional Sessions Judge, Tirunelveli, shall take steps to secure and commit them to undergo the remaining period of sentence.