Kathirvelu, Senthilnathan and Prakash vs State by the Inspector of Police

M. Chockalingam, J.—Challenge is made to the judgment of the learned I Additional Sessions Judge, Salem made in SC. No. 211/2008

dated 04.08.2009 whereby the accused, three in number, stood charged, tried and found guilty and were awarded the punishments as follows:

Rank of the Accused Conviction u/s Sentence Awarded

A1 341 and 302 IPC

1] to undergo one month simple imprisonment for the offence u/Section 341 IPC.

2] To undergo life imprisonment and pay a fine of Rs.10,000/- and in default

to undergo one year rigorous imprisonment.

A2 341 r/w 34 IPC and 302 IPC

1] to undergo one month simple imprisonment for the offence u/Section 341

read with 34 IPC.

2] To undergo life imprisonment and pay a fine of Rs.10,000/- and in default

to undergo one year rigorous imprisonment.

A3 341 r/w 34 IPC and 302 IPC

1] to undergo one month simple imprisonment for the offence u/Section 341

read with 34 IPC.

2] To undergo life imprisonment and pay a fine of Rs.5,000/- and in default

to undergo one year rigorous imprisonment.

Short facts necessary for the disposal of the appeal can be stated as follows:

[a] P.W. 1 is a resident of Kalarampatti village and is the younger brother of the deceased Rajendran. During the relevant time, P.W.1 was living

with the parents and the said deceased developed illicit intimacy with one Parvathy, wife of A1 and both were living in a separate house. On

08.11.2006 at about 7.00 p.m. when P.W.1 and the deceased went to Geetham Coffee Shop for taking tea, all the accused came there suddenly.

At that time, P.W.2, the cashier of the said Shop was also present. A1 uttering the words to the deceased, ""why are you quarreling with my

children and me even after eloping with my wife?"", stabbed the deceased with a knife on the chest while A2 and A3 facilitated the said act of A1

by catching hold of the deceased. Thereafter ,A2 snatched the knife from A1 and attacked the deceased on the right and left side of the ribs. The

deceased fell down with severe injuries. Immediately, A1 took a big brick stone [M.O.1] and dropped the same on the head of the deceased. The

occurrence was witnessed by P.Ws. 1 and 2. When the deceased raised a distressing cry, the accused fled away from the scene of occurrence.

[b] P.W.1, after informing the family members about the occurrence, went to the respondent Police Station where P.W.9, the Sub-Inspector of

Police was on duty at the relevant point of time. P.W.1 gave a complaint under Ex.P.1 at about 20.30 hours on the strength of which a case came

to be registered in Cr. No. 2075/2006 for the offences u/s 341 and 302 IPC. Ex.P. 11, the Express FIR was despatched to the court.

[c] P.W. 11, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, went to the scene of occurrence, prepared an

Observation Mahazar-Ex.P. 2 and a rough sketch-Ex.P. 14 in the presence of witnesses. He examined the witnesses and recorded their

statements. He also recovered M.Os. 1, 3 and 4-blood stained brick stone, blood stained earth and sample earth respectively under the cover of

Mahazars-Ex.P. 3 and 4 respectively. He also held inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars

and prepared Ex.P. 15, the Inquest Report. He also sent the dead body for postmortem along with a requisition, Ex.P. 12.

[d] P.W. 10, the doctor attached to the Government Mohan Kumaramagalam Medical College, Salem, received the requisition under Ex.P. 12

from the Inspector of Police on 09.11.2006 and conducted autopsy on the dead body of the deceased at about 10.10 a.m. Ex.P. 13 is the Post

Mortem Certificate wherein the doctor has opined that the deceased would appear to have died of head injury sustained by him.

[e] In continuance of the investigation, on 09.11.2006 at about 10.00 a.m. the Inspector of Police arrested the accused 1 to 3 in the presence of

witnesses and A1 voluntarily came forward to give a confessional statement, the admissible part of which is marked as Ex.P. 5 pursuant to which

M.O. 2 [knife] was recovered in the presence of witnesses under a cover of Mahazar, Ex.P. 6. The accused were sent for judicial remand. All the

material objects recovered from the place of occurrence and from the dead body and the material objects recovered pursuant to the confessional

statement of A1, were subjected to chemical analysis pursuant to the requisition which resulted in two reports, viz., Exs.P. 8 and 9, the Chemical

Analyst Report and the Serologist Report respectively.

[f] On completion of investigation and filing of the final report, the case was committed to Court of sessions; and necessary charges were framed

and in order to substantiate the charges, the prosecution examined 12 witnesses [P.Ws. 1 to 12], marked 18 exhibits [Exs.P. 1 to 18] and

produced 13 material objects [M.Os. 1 to 13].

When the accused were questioned u/s 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses

against them, they denied them as false and no defence witness was examined and no documents were marked. Hearing the arguments advanced

on either side and also considering the materials available, the trial court took a view that the prosecution has proved its case beyond reasonable

doubt and thus, rendered the judgment of conviction and sentence as against the appellants as stated supra. As against the said conviction and

sentence, the accused/appellatns [A1 to A3] have preferred the above appeal.

Advancing the arguments on behalf of the appellants/A1 to A3, the learned senior counsel for the appellants would submit that in the instant

case, the prosecution has miserably failed to prove its case beyond reasonable doubt. In order to prove the act of the accused, the prosecution has

marched P.Ws. 1 and 2 as eyewitnesses to the occurrence. According to the prosecution, the occurrence had taken place at about 7.00 p.m. on

08.11.2006 before Geetham Coffee Shop and it is claimed by P.W. 1 that he gave the complaint, Ex.P. 1 to P.W. 9, the Sub-Inspector of Police

at about 9.30 p.m. But, it is a matter of surprise to note that the case was registered by P.W. 11, at about 8.30 p.m. and thus, the case has been

registered even prior to the receipt of Ex.P. 1-complaint. It is further contended that P.W. 4, the Village Administrative Officer, has deposed that

immediately on coming to know about the occurrence at about 6.45 p.m., he visited the place of occurrence at 7.00 p.m. and at that time, the

Inspector of Police was also present at the scene. All would go to show that the occurrence should have taken place much earlier.

The learned Counsel for the appellants contended that P.Ws. 1 and 2 claimed that they witnessed the occurrence. But, in the Observation

Mahazar, Ex.P. 2, it is has been stated that the occurrence has taken place just in front of a mutton stall and thus, both the eyewitnesses, viz.,

P.Ws. 1 and 2 could not have seen the occurrence at all and in the absence of the evidence of these two witnesses, the prosecution has nothing

more to offer to prove its case.

Learned Counsel for the appellants further contended that three types of injuries were noticed by P.W. 10, the Post Mortem doctor, viz.,

abrasions, lacerations and incised wounds, which were 13 in number. But, P.W. 1 accounted only for three injuries and thus, the ocular testimony

of P.W. 1 was not consistent with the medical evidence. It is also contended that the alleged arrest and recovery of M.O. 2-knife and the blood

stained shirts, would by itself, not be sufficient to accept the prosecution case or to sustain a conviction. Learned Counsel also submitted that

insofar as A3, no overt act is attributed to him and hence, only a false accusation is made against him.

The learned Counsel in the second line of argument would contend that there is nothing to indicate that the accused had shared the common

intention or A1 had the intention to cause the death of the deceased and the injuries that were caused by A2 were only on the flank and the doctor,

P.W. 10 has opined categorically that the death was due to head injury sustained by the deceased and the same was actually caused by A1. Under

such circumstances, A2 cannot be attributed with any attack which was fatal to cause the death of the deceased and there is also nothing to

indicate that A2 had any common intention or he has shared the same. If the court takes the view that the prosecution has proved the factual

position, then the act of A1 would not attract the penal provision of murder since he had attacked the deceased due to provocation as his wife was

being kept by the deceased and apart from that, there were also frequent quarrels between the deceased and A1 and insofar as A2, he has caused

only simple injuries and the injuries are not fatal and these aspects have got to be considered by this Court. But, the trial court despite the above

discrepancies, took an erroneous view that the prosecution has proved its case beyond reasonable doubt and awarded the conviction and

sentence to the appellants as stated supra and they are entitled for acquittal in the hands of this Court.

Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made

on either side.

It is not in controversy that one Rajendran, the elder brother of P.W. 1, following an incident that took place at about 7.00 p.m. on 08.11.2006,

was done to death. Following the registration of the case in Cr. No. 2075/2006 for the offence u/s 341 and 302 IPC, the investigation was taken

up by the Inspector of Police, P.W. 11 and after conducting the inquest, the dead body was sent for postmortem. P.W. 10-the doctor attached to

the Government Mohan Kumaramagalam Medical College Hospital, Salem, has given his opinion that the deceased would appear to have died of

the head injury sustained by him. The doctor has given his opinion as a witness before the court and also through Ex.P. 13-the Post Mortem

Certificate to that effect. The death of the deceased due to homicidal violence, as put forward by the prosecution was never disputed by the

appellants before the trial court or before this Court and the trial court did not feel any impediment in recording so and it has got to be affirmed.

In the instant case, in order to prove the charges against the accused, the prosecution examined P.Ws. 1 and 2 as eyewitnesses before the trial

court. The comment made by the learned Counsel for the appellants in respect of the evidence of P.Ws. 1 and 2 cannot be accepted for the

ensuing reasons. P.W. 1 has categorically deposed that he accompanied his brother, the deceased and went to Geetham Coffee shop and the

occurrence has taken place just in front of the shop. A perusal of Exs.P. 2 and P.14, the Observation Mahazar and the rough sketch, would clearly

indicate that the mutton stall and the Geetha Coffee Shop are situated adjacent to each other and there was all occasion available for P.W. 2, the

cashier, who was sitting in front of the Geetham Coffee Shop, to witness the occurrence. P.W. 1 also has categorically deposed that A1 uttering

the words, stabbed the deceased on his chest and in that process, the deceased fell down immediately with severe injuries. A2 also snatched the

knife from the hands of A1 and stabbed him on this flank and not satisfied by the earlier act, A1 took a big brick stone and dropped on the head of

the deceased. From the perusal of the evidence of P.W. 10, the doctor, it is evident that the injury sustained by the deceased on his head was fatal.

Further, as rightly pointed out by the learned Counsel for the appellants that insofar as A3, the evidence put forward by the prosecution that he

also facilitated the crime by catching hold of the deceased, does not seem to be sound. He may be a passive spectator and that might be a reason

to rope him in the crime.

Insofar as A2, there is nothing to indicate that there was any common intention or A2 shared that intention. At the same time, there is evidence

to indicate that he snatched the knife from the hands of A1 and attacked the deceased on the flank. But the corresponding injury was found to be

simple and it is not the doctor''s opinion that the deceased died out of cumulative injuries sustained by him. But, his evidence was clear to the effect

that the injury on the head was fatal to the deceased who succumbed to the same and the said injury was caused by A1. The act of A1 was that

originally, he stabbed the deceased with knife and when the deceased fell down, he took the big brick stone and dropped it on the head of the

deceased, which would clearly indicate that he acted with an intention to cause the death. Hence, the act of A1 cannot but be termed as murder.

Insofar as A2, he has caused injuries on the flank without sharing any common intention and such act is punishable u/s 324 IPC and awarding

3 [three] years rigorous imprisonment would meet the ends of justice. Insofar as A3 is concerned, the court is unable to see any evidence to sustain

the conviction.

Accordingly, the conviction and sentence imposed by the trial court on A1 under Sections 341 and 302 IPC are confirmed. The conviction

and sentence imposed on A2 u/s 302 IPC are set aside and instead he is convicted u/s 324 IPC and is directed to undergo Rigorous Imprisonment

for 3 (three) years. The fine imposed by the trial court will hold good. The period of sentence already undergone by the 2nd appellant/A2 shall be

given set off. A2 is acquitted of the charge u/s 341 r/w 34 IPC. Insofar as A3, the conviction and sentence imposed by the trial court for the

offence u/s 341 r/w 34 IPC and 302 IPC are set aside and he is acquitted of the charges leveled against him. The 3rd appellant/A3 is directed to

be released forthwith unless his presence is required in connection with any other case. The fine amount, if any paid, will be refunded to him.

In the result, this Criminal Appeal is partly allowed.