Murugesan, Anandan, Thavasu and Kaleeswari vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Additional Sessions Division, Dindigul, made in S.C. No. 9 of 2009 whereby

the accused/appellants four in number, stood charged, tried, found guilty and awarded punishment as follows:

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ACCUSED CHARGES FINDING PUNISHMENT

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A-1 & A-2 148 IPC Guilty 3 years RI with a fine of Rs. 1000/-

and default sentence

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A-3 & A-4 147 IPC Guilty 2 years RI

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A-2 & A-3 341 IPC Guilty 1 month RI

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A-1 302 IPC Guilty Life imprisonment with a fine of

Rs. 2000/- and default sentence

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A-2 & A-3 302 r/w 109 Guilty Life imprisonment with a fine of

IPC Rs. 2000/- and default sentence

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A-1 & A-4 341 IPC Guilty 1 month RI

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A-2 302 IPC Guilty Life imprisonment with a fine of

Rs. 2000/- and default sentence

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A-1 & A-4 302 r/w 109 Guilty Life imprisonment with a fine of

IPC Rs. 2000/- and default sentence

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A-1 & A-3 323 IPC Guilty 1 year RI

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A-3 & A-4 341 IPC Guilty One month RI

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A-2 326 IPC Guilty 10 years RI with a fine of Rs. 1000/-

and default sentence

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A-3 & A-4 326 r/w 109 Guilty 10 years RI with a fine of Rs. 1000/-

IPC and default sentence

A-3 & A-4 323 IPC Guilty 1 year RI

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

(a) P.W.1 is the wife of the first deceased (D1) Raju. P.W.2 is the wife of the second deceased (D2) Mariappan. P.W.3 is the daughter-in-law of

D1. P.Ws.4 to 6 are the sons of D1 and brothers of D2. They were all washerman by profession. A-1, A-2, A-3 and A-4 and both the juvenile

accused are all members of the same family. They were also washerman by profession. There was a business rivalry that the accused party was

demanding and getting less charges for washing, and the same was questioned by D1. A-1 and his family members were aggrieved over the same.

(b) While the matter stood thus, on the date of occurrence i.e., 9.11.2007, at about 7.00 P.M., when P.Ws.1 to 6 and D1 and D2 were all in front

of their house, A-1 and A-2 armed with knives and accompanied by the other two accused shown as A-3 and A-4 and also the other juvenile

accused, came to the place with the common object, and in furtherance of the common object of causing the death of D1 and D2 and on the

instigation of A-2 and A-3, who also caught hold of D2 Mariappan, A-1 uttering ""you should be finished off this day"", stabbed him, and on

different parts of the body, A-1 also attacked him. D2 fell down. Then A-1, A-4 and the other juvenile accused caught hold of D1 Raju, and he

was stabbed by A-2 with a knife. While P.Ws.1 and 3 intervened, P.W.1 was attacked by A-1 and A-3, and P.W.3 was attacked by A-2, while

she was fisted by A-3 and A-4. This occurrence was witnessed by P.Ws.1 to 6. When there was a distressing cry and the crowd nearby

gathered, all the accused persons fled away from the place of occurrence.

(c) Both the deceased D1 and D2 were found dead, and P.Ws.1 and 3 were immediately taken to the Government Hospital, Vathalakundu,

where P.W.13, the Doctor, medically examined P.W.1 and noted the injuries as found in the accident register copy, Ex.P11. P.W.13 gave initial

treatment to P.W.3 and noted the injuries in Ex.P12, the wound certificate, wherein the injuries were found to be grievous. Then, she was advised

to be taken to Madurai Government Rajaji Hospital. But, on the way, she was taken to the Government Hospital, Dindigul, and P.W.7, the

Doctor, gave the treatment. Further, she was taken to the Government Rajaji Hospital, Madurai, where treatment was given by P.W.8, the

Doctor, to her.

(d) P.W.1 proceeded to the respondent police station and gave a complaint, Ex.P1, to P.W.16, the Sub Inspector of Police, attached to the

respondent police station, at about 2100 hours, on the strength of which a case came to be registered in Crime No. 790 of 2007 under Sections

147, 148, 341, 323, 324 and 302 of IPC. The printed FIR, Ex.P16, was despatched to the Court.

(e) On receipt of the copy of the FIR, P.W.19, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an

inspection and prepared an observation mahazar, Ex.P8, and also a rough sketch, Ex.P20. Then he conducted inquest on the dead body of Raju,

D1, in the presence of witnesses and panchayatdars and prepared Ex.P21, the inquest report. Equally, he conducted inquest on the dead body of

Mariappan, D2, in the presence of witnesses and panchayatdars and prepared Ex.P22, the inquest report. The dead bodies were sent to the

Government Hospital for the purpose of postmortem.

(f) P.W.13, the Medical Officer, attached to the Government Hospital, Vathalakundu, on receipt of the requisitions, has conducted autopsy on the

dead body of Raju and has given a postmortem certificate, Ex.P14. The same Doctor has also conducted postmortem on the dead body of

Mariappan and has issued a postmortem certificate, Ex.P15. The Doctor has opined that both of them would appear to have died of shock and

haemorrhage due to injuries sustained 12 to 18 hours prior to autopsy.

(g) Pending the investigation, A-1, A-2 and A-3 were arrested on 10.11.2007, and they gave confessional statements voluntarily. The same were

recorded. Pursuant to the same, A-1 and A-2 produced two knives, M.O.1 series, which were recovered under a cover of mahazar. A-1 also

produced M.O.13, shirt, which was recovered under a cover of mahazar. Then, the accused were produced before the Judicial Magistrate,

Nilakottai, for remand. On 11.11.2007, A-4 was arrested, and she was sent for judicial remand. Thereafter, both the juvenile accused were also

arrested and sent for judicial remand.

(h) All the material objects recovered from the place of occurrence and from the dead body and from the accused were subjected to chemical

analysis by the Forensic Sciences Department which brought forth two reports namely Ex.P18, the chemical analyst''s report, and Ex.P19, the

serologist''s report. On completion of investigation, the Investigator filed the final report.

The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution

marched 19 witnesses and also relied on 22 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the

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

flatly denied as false. No defence witness was examined, but two documents were marked on their side. The trial Court heard the arguments

advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt insofar as A-1 to A-4 and found

them guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants.

Advancing arguments on behalf of the appellants, the learned Counsel Mr. A. P. Muthu Pandian would submit that in the instant case, the

occurrence according to the prosecution, has taken place at about 7.00 P.M. on 9.11.2007; that P.Ws.1 to 4 are shown as occurrence witnesses

out of whom P.Ws.1 and 3 are shown as injured witnesses; that P.W.1 could not have seen the occurrence at all since she has candidly admitted

that after coming to know that both the deceased were stabbed by the opposite party, she came to the place where she came to know that there

was an occurrence, and thus P.W.1 could not have seen the occurrence at all.

Added further the learned Counsel that from the evidence of P.W.1, it would be quite clear that pursuant to the business rivalry that the accused

party was demanding and getting less charges for washing, D1 and his family members were aggrieved; that D1 was in the past questioning A-1,

and there were quarrels on number of occasions; that on the date of occurrence also, there was a quarrel preceding the occurrence; that all would

clearly indicate that the prosecution witnesses and the deceased were the aggressors and not the accused; and that under the circumstances, there

cannot be any case for common object or the accused having acted in furtherance of the common object.

Added further the learned Counsel that as far as P.W.1 is concerned, she could not have been an eyewitness to the occurrence, and even the

medical opinion canvassed through P.W.13, the Doctor, was of no avail. Added further the learned Counsel that though P.W.3 is shown to be an

eyewitness and also an injured, and P.W.7, the Doctor from the Government Hospital, Vathalakundu, and P.W.8, the Doctor from the

Government Rajaji Hospital, Madurai, were examined, no documentary evidence is produced; and that under the circumstances, it is highly

doubtful whether P.W.3 could have sustained grievous injuries as put forth by the prosecution.

Added further the learned Counsel that all other witnesses are only the sons of P.W.1 and D1, and thus they were all interested, and their

service was taken in order to strengthen the prosecution case.

In his further arguments, the learned Counsel would submit that the confessional statements and the pursuant recovery of weapons of crime were

all only documents created by the investigating agency in order to suit the prosecution case; that all put together, it would be quite clear that the

prosecution has miserably failed to prove its case, and hence they are entitled for acquittal in the hands of this Court since the trial Judge has taken

an erroneous view.

The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions

made.

It is not in controversy that in an occurrence that had taken place at about 7.00 P.M. on 9.11.2007, both Raju, D1, and Mariappan, D2, died

at the spot. Following the inquest that was made by P.W.19, the Inspector of Police of the Circle, and preparation of Exs.P21 and P22, the

inquest reports respectively, both the dead bodies were sent to the Government Hospital for the purpose of postmortem. P.W.13, the Doctor,

attached to the Government Hospital, Vathalakundu, has conducted autopsy and has given two certificates, Exs.P14 and P15 respectively,

wherein he has categorically stated that both the deceased died out of shock and haemorrhage due to the injuries sustained by them. The fact that

both D1 and D2 died out of homicidal violence was never disputed by the appellants before the trial Court, and hence the trial Judge was perfectly

correct in recording so.

In order to substantiate that it was A-1 who stabbed D2 Mariappan, and A-2 stabbed D1 Raju at the time of occurrence and other part of the

incident, the prosecution marched four witnesses namely P.Ws.1 to 4, out of whom P.Ws.1 and 3 are shown as injured witnesses. As far as

P.W.1 is concerned, the comment made by the learned Counsel for the appellant is found to have force. P.W.1 has candidly admitted that after

coming to know that both D1 and D2 were attacked, she came to the place, and hence she cannot be an occurrence witness. Under the

circumstances, her evidence is highly doubtful. But to the extent of giving the information to the police under Ex.P1 on the strength of which the

case came to be registered by P.W.16, the Sub Inspector of Police, the evidence of P.W.1 could be used by the prosecution.

As far as P.Ws.2 to 4 are concerned, they are shown as occurrence witnesses, out of whom P.W.3 is shown as an injured witness. Trite law it

is that in a given case like this, when one of the eyewitnesses happened to be an injured witness, the evidence of such witness should not be

discarded unless and until a strong circumstance is noticed by the Court, or reason is brought about by the accused. In the instant case, no reason

or circumstance is noticed by the Court to cast any doubt on the evidence of P.W.3. P.W.3 is the daughter-in-law of D1 Raju. According to her,

at the time of occurrence, A-1 attacked D2 Mariappan, and A-2 attacked D1 Raju as a result of which both died at the spot, and when she

intervened, she was attacked by A-2 with a knife in which she sustained injuries. This part of the prosecution case as spoken to by P.W.3 stood

fully corroborated by P.Ws.2 and 4. Under the circumstances, this Court is unable to see any reason to discard the testimony. Despite cross

examination, their evidence stood the test.

In the case on hand, this Court is unable to agree with the case of the prosecution that the accused persons came there with the common

object, and in furtherance of the common object of killing D1 and D2, they acted and committed the crime since the evidence adduced by the

prosecution in that regard is contra. P.Ws.1 and 2 have candidly admitted that there was a professional rivalry, and all of them belonged to

washerman family. In the past, A-1 and his family members were demanding less charges for washing and other process. Aggrieved over the

same, it was D1 who questioned, and there arose quarrel. In fact, they were in loggerheads for a longtime, and there were quarrels. Even on the

date of occurrence at about 4.00 P.M., there was a quarrel, and just preceding the occurrence also, there was a quarrel between A-1 and D1.

Hence it would be quite evident that the accused persons could not have come with the common object also, and thus in the absence of any

common object, the accused have got to be dealt with individually. This Court is unable to further see any quarrel, a sudden one, as a result of

which they have acted. But, the evidence is available to indicate that A-1 stabbed D2 Mariappan and caused his death at the spot. Equally, A-2

attacked D1 Raju and caused his death instantaneously. At this juncture, it is pertinent to point out that neither D1 nor D2 was armed with any

weapon. Thus they were unarmed. At the same time, A-1 and A-2 armed with knives, have attacked them respectively, and they have shared the

intention. A-1 must be found guilty for attacking and causing the death of Mariappan, D2, by stabbing him. Equally A-2 must be found guilty of

murder for stabbing Raju, D1. Thus, they are found to be guilty u/s 302 of IPC, and awarding a punishment of life imprisonment would meet the

ends of justice, as one done by the trial Judge.

As far as A-2 is concerned, he attacked P.W.3, and the wound certificate is marked as Ex.P12 which is issued by P.W.13, the Medical

Person from the Government Hospital, Vathalakundu. He has categorically spoken to the fact that the injuries noticed on P.W.3, were actually

grievous. Under the circumstances, A-2 has got to be found guilty u/s 326 of IPC, and awarding a punishment of five years Rigorous Imprisonment

would meet the ends of justice. Both the sentences imposed on A-2 have got to be ordered to run concurrently.

Insofar as P.W.1 is concerned, though it was urged by the prosecution that the injuries were caused on her by A-1 and A-3, simple injuries

are noticed in the accident register copy. But, her evidence as stated above, is contra, and she could not have been an eyewitness at all. In such

circumstances, the medical evidence canvassed would not serve the purpose.

As regards A-3 and A-4, the prosecution has failed to prove its case in their regard. Hence they are entitled for acquittal.

Accordingly, the conviction and sentence imposed on A-1 and A-2 by the trial Court u/s 302 of IPC are confirmed.

The conviction of A-2 u/s 326 of IPC by the trial Court is confirmed, but the sentence of 10 years Rigorous Imprisonment awarded by the trial

Court is reduced to 5 years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off. The fine amount and default

sentence imposed by the trial Court will hold good. Both the sentences imposed on A-2 shall run concurrently.

As regards the conviction and sentence imposed by the trial Court on A-1 and A-2 in respect of the other charges, they are acquitted of the

same. The fine amounts if any paid by them in that regard, shall be refunded to them.

As far as A-3 and A-4 are concerned, the judgment of the trial Court is set aside, and they are acquitted of all the charges levelled against

them. They are directed to be set at liberty forthwith unless their presence is required in connection with any other case. The fine amounts if any

paid by them, shall be refunded to them.

21.In the result, this criminal appeal is partly allowed.

Mr. A.P. Muthu Pandian, Advocate, appointed as Amicus Curiae to argue the appeal on behalf of the appellants, is entitled to get remuneration

from the Legal Aid, Madurai.