Manuvel vs State

M. Chockalingam, J.—This judgment shall govern these two appeals in Criminal Appeal (MD) Nos. 160 and 359 of 2009. Criminal Appeal

(MD) No. 160 of 2009 has been brought-forth by Accused No. 1 and Criminal Appeal (MD) No. 359 of 2009 has been brought-forth by

Accused No. 2. These two appellants, stood charged and tried by the Additional Sessions Division, Fast Track Court No. 1, Tirunelveli in S.C.

No. 232 of 2008 whereby they were found guilty and awarded punishment as follows:

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Accused Charge under Finding Punishment

Nos.

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Accused u/s 341 IPC Guilty Each one month

Nos. 1 & 2 simple

Imprisonment

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Accused u/s 302 IPC Guilty life

No. 1 imprisonment and

a fine of

Rs. 1,000/- in

default, to

undergo three

months rigorous

imprisonment

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Accused u/s 302 r/w Guilty life

No. 2 34 IPC imprisonment

and a fine of

Rs. 1,000/- in

default, to

undergo three

months

rigorous

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Accused u/s 506(ii) Guilty Each three

Nos. 1 & 2 IPC years

Rigorous

Imprisonment

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The short facts that are necessary for the disposal of these appeals can be stated as follows:

(i) PW.1 is the son and PW.3 is the brother of the deceased Rajendran, a resident of Ukkirakottai, within the jurisdiction of the respondent Police

Station.

(ii) On 9.5.2007, PW.1 came to the native place to attend a marriage of one Mariya Selvam and at about 11.30 a.m., in the said marriage house,

PW.1, PW.2 and PW.3 along with others assembled. Both the accused along with others were dancing. Looking at them, the said Rajendran

asked them why they should dance like that. There was a wordy altercation. Rajendran was taken away from that place by wife, Thayammal

PW.2 and PW.1 son. At about 12.00 ""O"" clock Rajendran was sitting in front of a Pillaiyar Temple at Ukkirakottai Bus Stop. A.1 armed with an

iron pipe came to the place and A.2 accompanied with him. A.2 caught hold of the said Rajendran and A.1 attacked him on his head with an iron

pipe that was witnessed by PW.1, PW.2 and PW.3. Immediately, PW.1 and others took the victim to the High Ground Hospital, Tirunelveli

where he was given initial treatment. Ex.P.4 is the Accident Register Copy in that regard.

(iii) On receipt of the intimation, the Sub-Inspector of Police, Joseph Judson, attached to the respondent police station, went to the Hospital and

recorded the statement of PW.1 and on the strength of Ex.P.1 complaint, a case came to be registered by the respondent police in Crime No.

120/2007 under Sections 242, 294(b), 307 and 506(2) of the I.P.C., Ex.P.15 F.I.R was despatched to the Court.

(iv) On receipt of the copy of the F.I.R., PW.14, Inspector of police of the Circle, took up investigation, proceeded to the spot, made an

inspection and prepared an Observation Mahazar Ex.P.2 and Rough Sketch Ex.P.16 in the presence of witnesses. He also recovered the

bloodstained earth and sample earth under the cover of Mahazar Ex.P.3. Despite the treatment, the said Rajendran died in the hospital. On receipt

of the death intimation, the case was altered into one u/s 302 of IPC and altered FIR Ex.P.17 was sent to the Court.

(v) Then, PW.14, Investigating Officer took up further investigation and conducted inquest on the dead body and prepared an inquest report

Ex.P.18 and after inquest, the dead body was subjected to post-mortem by Doctor PW.12. He gave a Post-Mortem Certificate Ex.P.14 wherein

he has opined that the deceased would appear to have died of cranio cerebral injuries.

(vi) Pending investigation, on 10.5.2007, when A.1 was travelling in a train running from Tirunelveli to Chennai, he was caught and handed over by

Head Constable PW.7, attached to Railway Police Station, Tirunelveli, to PW.13, who in turn, informed to the Investigating Officer PW.14, in the

instant case and A.1 was arrested by PW.14. During enquiry, A.1 voluntarily came forward to give a confessional statement and the same was

recorded in the presence of witnesses and the admissible part of the confession was marked as Ex.P.19. Pursuant to the confession, he produced

MO.1, iron pipe and the same was recovered under the cover of Mahazar Ex.P.21. A.2 was also arrested and both of them were sent for judicial

remand.

(vii) On completion of the investigation, the investigating officer filed a final report. The case was committed to the Court of Sessions. Necessary

charges were framed against the accused.

In order to substantiate the charges levelled against the accused, the prosecution examined 14 witnesses and relied on 21 Exhibits and 6 MOs.

On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Code of Criminal Procedure On the

incriminating circumstances found in the evidence of the prosecution witnesses, which was denied on the part of the accused. Neither defence

witness was examined nor document was marked on the side of the defence. The trial Court after hearing the arguments advanced by either side

and on considering the materials available on record, took the view that the prosecution has proved its case beyond reasonable doubts and found

the accused guilty of the charges and awarded punishment as referred to above and hence, the appeals at the instance of the appellants.

Advancing the arguments on behalf of the appellant/A.1, the learned Counsel appearing for the appellant while assailing the impugned judgment,

put-forth the following points in his favour.

(i) In the instant case, though the prosecution case was registered by one Joseph Judson, attached to the respondent police station, he was not

examined. No reason for the non-examination is adduced by the prosecution.

(ii) Apart from that who gave the information to the concerned Sub-Inspector of Police or the Police Station about the occurrence was never made

known.

(iii) PW.1, PW.2 and PW.3 are the eyewitnesses. A number of other persons were available in the house of marriage, according to the

prosecution but out of them, only three names were actually found in Ex.P.1 and they were not examined.

(iv) PW.3''s name is not stated in the FIR and thus, it would be quite clear that PW.3 could not have been witnessed. According to PW.3, two

injuries were caused but Post-Mortem Certificate would clearly indicate that there was only one injury.

(v) The injured Rajendran was taken to High

Ground Hospital but on the way, there was a police station at Manoor but no complaint was given.

(vi) One private clinic and Health Centre were available in Ukkirakottai and sufficient treatment could have been given in the medical centre but he

was taken to the High Ground Hospital.

(vii) The driver in whose car the deceased was taken to the hospital was not examined.

(viii) PW.8 and PW.9, who were examined by the prosecution in respect of the alleged confession and recovery, have turned hostile.

(ix) According to the prosecution, A.1 was travelling in a train and he was taken to custody by PW.7 Head Constable and thereafter, he was

taken and handed over to PW.13, and thereafter, he was arrested by PW.14, I.O.,. In this regard, no evidence is produced in order to prove

these facts.

(x) The Materials Objects recovered in the case were never subjected to Chemical Analysis and no opinion was put-forth from the prosecution in

that regard.

(xi) Now if the prosecution case is viewed from all these points, it would be quite clear that the prosecution has not proved the case beyond

reasonable doubts. All these reasons are sufficient to reject the prosecution case but the trial Judge has taken an erroneous view and rendered

judgment convicting the appellants.

Learned Counsel appearing for the appellant/A.2 in Criminal Appeal (MD) No. 359 of 2009, adopting the arguments put-forth by the learned

Counsel as recorded above, would further add that in the instant case, the allegation against A.2 was that at the time of occurrence, he was caught

holding of the deceased in order to facilitate the crime. As could be seen from the Post-Mortem Certificate, injury was actually found on the parital

region. If, actually, A.2 caught hold of the deceased from the back side, such injury could not have been caused without causing any injury to A.2.

In the instant case, A.2 was falsely roped in.

Apart from that, in the evidence of the prosecution witnesses, there was nothing to indicate that A.2 shared any intention while actually, A.1 was

attacking the deceased and hence, A.2 was entitled for acquittal in the hands of the Court.

The court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made

and also scrutinised the materials available.

It is not in controversy that one Rajendran, the father of PW.1, following the incident that took place on 19.5.2007 at 12.00 ""O"" Clock in front

of the Bus Stop at Ukkirakottai was attacked and he was taken to the Hospital and despite the treatment, he died. Following the inquest made by

the Investigating Officer PW.14 and the preparation of Inquest Report, the dead body was subjected to Post-Mortem by the Doctor, PW.12,

attached to the Government Hospital and also issued Post-Mortem Certificate Ex.P.14. It is evident from the contents of the Post-Mortem

Certificate that the deceased died out of shock and haemorrhage due to injuries sustained by him. The trial Court was correct in recording the fact

that Rajendran died out of homicidal violence.

In order to substantiate the charges levelled against the appellants, the prosecution relied on the evidence adduced through PWs.1 to 3. It is true

PW.1 is the son; PW.2 is the wife and PW.3 is the brother of the deceased. It is settled proposition of law that on the ground of relationship, the

evidence of these witnesses cannot be rejected but before acceptance, the Court must apply the test of careful scrutiny. In the instant case, even

after the application of test, the Court is thoroughly satisfied that their evidence has got to be accepted since natural.

According to all the three witnesses, on 9.5.2007, both went to marriage of one Mariya Selvam. In the marriage house, while the accused

were dancing, the deceased Rajendran questioned them and there arose a wordy altercation. It was PW.2, the wife of the deceased, took the

deceased outside the marriage house, within a short span of time. While the deceased was sitting in front of the Bus Stop at Ukkirakottai, A.1

armed with an iron pipe along with A.2 came and attacked the deceased while A.2 caught hold of the deceased. It was witnessed by PW.1 and

PW.2.

The evidence of PW.1 and PW.2 would clearly indicate the narration of the incident in full and despite the cross-examination, their evidence

remains unshaken and thus, their evidence coupled with the medical opinion canvassed through the Post-Mortem Certificate Ex.P.14 would clearly

indicate that their ocular testimony stood fully corroborated by the medical evidence.

Non-examination of the Sub-Inspector of Police, who registered the case, cannot affect the prosecution case, for the simple reason that the

case was actually registered within a short span of time and the FIR has also reached the Court within the reasonable time. PW.14, the Inspector

of Police has deposed that he knew the signature of the Sub-Inspector of Police, who recorded the complaint Ex.P.1 and also registered the case.

The other contention put-forth by the learned Counsel for the appellants that according to the evidence of PW.1, two injuries were caused

whereas, actually, one injury was found in the Post-Mortem Certificate Ex.P.14 cannot be countenanced. According to the evidence of PW.1, A.1

attacked the deceased Rajendran on the skull once along with an iron pipe and also attacked with the hand. It is true only one injury was noticed

by the medical persons on the skull of the deceased and thus, it would be quite clear that when he was attacked by A.1 with the hand, no injury

should have been caused.

Further, the non-examination of Car Driver in whose car, the deceased Rajendran was taken cannot in no way affect the case of the

prosecution since the eye-witnesses have been examined.

Apart from that, the other contention put-forth by the learned Counsel for the appellant/A.1 is that no complaint was given to Manoor Police

Station immediately, after the occurrence. It cannot be a reason to reject the case of the prosecution. When a person is severely injured, the natural

conduct of any person would be, to take the injured immediately to the hospital to save him and not to go to the police station to give a complaint.

The learned Counsel added that there was a private clinic and there was a Primary Health Centre on the way and the injured should have been

given treatment but instead, he was taken to High Ground Hospital, which was situated far away. It is pertinent to point out that PW.1 and other

family members would have taken the injured to the High Ground Hospital, to give a better and proper treatment immediately and therefore, this

ground also cannot be taken as a ground to reject the case of the prosecution.

It is pertinent to point out, as rightly pointed out by the learned Counsel for the appellant that PW.8 and PW.9, who were the witnesses

examined for confessional statement and recovery, have turned hostile and hence, that part of reliance by the prosecution has got to be rejected.

Even though that part of the evidence is rejected, the prosecution had sufficient evidence in the considered opinion of the court. It is true, the

Material Objects recovered were not subjected to medical evidence. It was an irregularity committed by the investigator but the other evidences

were available for the prosecution to bring home the guilt of the accused and the irregularity committed by the investigator cannot be given much

weight.

From the evidence available, it would be quite clear that it was A.1 who attacked on the right side of the skull of the deceased and as a direct

consequence, he died. Thus, in the instant case, insofar as the act of A.1 is concerned, in the considered opinion of the Court, it would attract the

penal provision of murder.

Admittedly, there was a wordy altercation between the deceased Rajendran and A.1 and A.2 about 11.30 a.m.; following the same, the

incident took place at about 12.00 ""O"" Clock within a span of half an hour. The words, which were actually spoken to by Rajendran had actually

provoked the youngsters, who were A.1 and A.2 and following the same, the incident took place. At the time of occurrence, A.1 went and

attacked with the iron pipe MO.1 only once and caused injury. It was due to the provocation and it was neither intentional nor premeditated.

Hence, the act of the A.1 would not attract the penal provision of murder but would attract the penal provision of Section 304 Part II, and

awarding five years rigorous imprisonment would meet the ends of justice.

Insofar as A.2 is concerned, in the considered opinion of the Court, as could be seen from the evidence of witnesses, he caught hold of the

deceased Rajendran from the back and A.1 attacked him in front. Post-Mortem Certificate Ex.P.14 would actually show that the injury was on the

right fronto parietal region. Taking into consideration the length of the pipe, the seat of the injury as could be seen if caused while A.2 was caught

hold of him from the back side, A.2 should also have sustained injury but it is not the case of the prosecution. In the instant case, it is highly

doubtful whether A.2 would have caught hold of the deceased. Apart from that there is nothing to connect that A.2 had any intention to cause the

death and has shared the same from A.1.

Thus, the Court is of the considered opinion that insofar as A.2 is concerned, the prosecution has not brought home the guilt of A.2. Hence,

Accused No. 2 is entitled for acquittal of all the charges from the hands of this Court and accordingly, Accused No. 2 is acquitted of all the

charges. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The Criminal Appeal (MD)

No. 359 of 2009 is allowed. If the fine amount imposed by the trial Court was already paid, the same shall be refunded to the appellant.

Insofar as A.1 is concerned, the conviction and sentence under Sections 341, 506(ii) and 302 of the IPC are set aside and instead, the

conviction is modified into one u/s 304 Part II, of the IPC and five years rigorous imprisonment is awarded. The fine amount imposed by the trial

Court is ordered to be treated as one imposed u/s 304 Part II, of the IPC. The period of sentence already undergone by the appellant/A.1 is

directed to be given set off. Accordingly, the Criminal Appeal (MD) No. 160 of 2009 is ordered.