Murugesan, Raman and Sakthivel vs The Inspector of Police, Eriyodu Police Station

V. Dhanapalan, J.—This appeal is directed against the conviction and sentence ordered against the accused 1 to 3 in the judgment dated

22.11.2011 made in S.C. No. 85 of 2011 by the Additional District and Sessions Judge, Dindigul. By this judgment, the first accused/first

appellant was convicted under Sections 341, 302 read with Sections 34 and 201 IPC and was sentenced to undergo life imprisonment and to pay

a fine of Rs. 1,000/- for each of the offences under Sections 302 and 304 IPC, in default, to undergo six months Simple Imprisonment; for the

offence u/s 341 IPC, he was sentenced to undergo one month Rigorous Imprisonment; for the offences u/s 201 read with section 302 IPC, he was

sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs. 100/-, in default, to undergo 3 months Simple Imprisonment;

for the offence u/s 324 IPC, he was sentenced to undergo Rigorous Imprisonment for a period of 3 years. Similarly, accused 2 and 3 were also

sentenced to undergo life imprisonment for the offences under Sections 302 read with 34 IPC for each of the offences and to pay a sum of Rs.

1,000/-each as fine, in default, to undergo six months Simple Imprisonment; for the offence u/s 341, they were sentenced to undergo one month

Rigorous Imprisonment; for the offences u/s 201 read with 302 IPC, they were sentenced to undergo 3 years Rigorous Imprisonment and to pay a

sum of Rs. 1000/- as fine, in default to undergo 3 months Simple Imprisonment; for the offences u/s 324, second accused was sentenced to

undergo 3 years Simple Imprisonment. The sentences were ordered to run concurrently. The case of the prosecution is that P.W. 1 is the sister of

the deceased Mokkan @ Murugesan, who had stated that on 4.8.2009, at about 9.00 a.m., while the deceased was going to his uncle, viz.,

Nagaraj''s house in TVS victor motor cycle bearing Registration No. TN 38 K 8112, the accused 1 to 3 intercepted the deceased in a motor

cycle and on seeing them, the deceased started running leaving his motor cycle and the accused 1 to 3 chased him. Hearing the noise, P.W. 1,

another sister of the deceased (P.W. 4), his father (P.W. 2) and his mother (P.W. 3) also followed them. At that time, the first accused, viz.,

Murugesan, attacked the deceased on the back of his head with sickle (Aruval) and on receiving the cut injury on the back of the head, the

deceased fell on the road. Then, the second accused assaulted the deceased with a knife in his stomach. When P.W. 1''s father (P.W. 2) and

mother (P.W. 3) tried to prevent accused 1 and 2 from assaulting the deceased, the first accused assaulted P.W. 1''s mother (P.W. 3) with the

sickle on her left wrist and the second accused assaulted P.W. 1''s father (P.W. 2) with the knife in the fingers in both his hands. P.W. 1''s sister

(P.W.4) took their parents to the hospital. The deceased Mukkan @ Murugesan died on the spot. P.W. 1 had also stated that the third accused

also assaulted the deceased with sickle on his back. P.W. 1 and her cousin, viz., Arjunan, went to Eriyodu Police Station and lodged Ex. P1

complaint. The sickle (Aruval) used by the first accused was produced as MO 1. The sickle (Aruval) used by the third accused was produced as

MO 2 and the knife used by the second accused was produced as MO 3.

P.W. 1 and P.W. 4 are the sisters of the deceased. P.W. 2 is the father of the deceased and P.W. 3 is the mother of the deceased.

It is pertinent to note that the names of the deceased as well as the first accused is Murugesan. Accused 1 to 3 were charged under Sections

341, 302 read with 34, 201 and 326 IPC.

In order to prove its case, the prosecution examined P.W. 1 to P.W. 19 and marked Exs. P1 to P27 and produced Material Objects 1 to 12.

On completion of the evidence on the side of the prosecution, when the accused 1 to 3 were questioned u/s 313 Cr.P.C. on the incriminating

circumstances found in the evidence of the prosecution witnesses, they denied them as false. Neither any 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 as per charges in so far as accused are concerned and consequently, convicted the

accused 1 to 3 and awarded punishment as referred to above.

The Village Administrative Officer, was examined as P.W. 6. According to P.W. 6, on 4.8.2009 at about 9.00 a.m., the Inspector of Police of

Eriyodu Police Station called him to the police station and that he went to the police station along with his Assistant. On the same day, at about

5.00 p.m., P.W. 6 and his Assistant were taken near Maravapatti Railway Gate where the Inspector of Police enquired accused 1 to 3 in their

presence and that they confessed having committed murder of Mukkan @ Murugesan. The confession statement was recorded and the same was

attested by P.W. 6 and his Assistant. The admissible portion of the confession statement of the first accused was marked as Ex. P5 and that of the

accused 2 and 3 were marked as Ex. P6 and P7 respectively. The weapons used by the accused 1 to 3 for committing the murder were recovered

from Eriyodu Burial Ground based on the confession statement of the accused. The weapons were recovered under Ex. P8 Mahazar. The TVS

Victor motor cycle, which was used by the accused at the time of committing murder, was recovered under Ex. P9 Mahazar and the motor cycle

was produced as MO 4.

The Doctor, who conducted post mortem on the body of the deceased was examined as P.W. 7 and in his report, he had noticed the injuries

found in the deceased body and opined that the deceased would appeared to have died of shock and haemorrhage due to multiple injuries

sustained. The injuries noted in the post mortem certificate, which was marked as Ex. P. 11, are as follows:-

External Injuries:

Multiple serrated cut would extending from left mastoid region to right maxillary region with right pinna cut injury exposing cut paravertebral

muscles, fractured maxillary cut injury of nose present.

Cut lacerated wound of size 5 x 3 x 2 c.m., 8 x 3 x 2 c.m., 10 x 4 x 3 c.m. over left shoulder anterior aspect.

Cut lacerated wound of size 10 x 3 x 3 c.m. over right fore arm. Friction burns over left big toe, right big toe, right knee. Left shoulder and left

hand.

5 x 3 x 2 c.m. CLW over right paramedian lumbar spine region.

10 x 5 x 3 c.m. CLW over right scapular region.

CLW of size 2 x 2 x 2 c.m. over right shoulder posterior aspect.

CLW of size 5 x 3 x 2 c.m. over dorsal spine region.

CLW of size 8 x 4 x 2 c.m. over right scapular region.

CLW of size 3 x 2 x 2 c.m. over lower dorsal spine region.

Deep CLW of size 43 x 3 c.m. over right region posterior lower rib cage region about 5 cm below scapula.

CLW of size 4 x 3 x 3 c.m. over medial aspect of right scapular region. Internal examination:-

Scull: Intact brain - Intact, hyoid bone intact. Air passages: Normal, Heart - pale, chambers - empty Right lung - collapsed, 750 ml. of clotted

blood in thoracic cavity. Two laceration 2 x 2 x 2 c.m. over posterior aspect of right lung Left lung - congested, liver-pale, spleen-pale, intact

kidney.

Stomach - contains 500 ml. of undigested food particles. Further, P.W. 7 has deposed that the injuries noted by him in the post-mortem certificate

can be caused by using MO 1 to MO 3 weapons on the deceased.

P.W. 8 is the Head Constable, who handed over the Express First Information Report to the Judicial Magistrate Court, Vedachandur at 11.45

a.m.

P.W. 9 is the Sub Inspector of Police attached to Eriyodu Police Station, who took the body with a requisition letter from the Inspector of

Police to Vedachandur Government Hospital for post-mortem and after post-mortem, he handed over the body to the relatives of the deceased.

He also recovered MO 5 to MO 8 from the body of the deceased and handed over the same to the Inspector of Police.

P.W. 10 is the Doctor, who treated P.W. 2 and P.W. 3. According to him, he was on duty in casualty Department in Dindigul Government

Hospital. According to the Doctor, on 04.08.2009, at about 10.50 a.m., P.W. 3 was brought to the hospital by her daughter Vasantha and at the

time of examination, P.W. 3 had informed him that a known person had assaulted her at about 10 a.m. P.W. 3 sustained cut injuries in the left fore

arm and suffered fracture in the left hand. As per Ex. P. 12 wound certificate, P.W. 3 sustained grievous injuries. P.W. 3 was treated as inpatient

and was discharged on 6.8.2009. Further, according to P.W. 10, on the same day, at about 11.00 a.m., P.W. 2 came to the hospital and at the

time of examination he informed him that at about 10.00 a.m., four known persons assaulted him and he sustained cut injuries on the left palm and

also sustained cut injuries in the fingers in both the hands. As per Ex. P13, wound certificate, the injuries sustained by P.W. 2, is grievous in nature.

P.W. 2 was treated as inpatient and was discharged on 7.8.2009.

P.W. 11, Sub Inspector of Police registered Ex. P1 complaint as Crime No. 330 of 2009 and submitted Ex. P14, First Information Report to

the Judicial Magistrate Court, Vedachandur and also to his higher officials.

The Assistant Director of Forensic Department was examined as P.W. 17 and his report was marked as Ex. P20. P.W. 17 also opined that

the blood stains found in MOs. 3, 5, 6, 7 and 8 are human blood.

The Inspector of Police was examined as P.W. 18. According to him, after receiving the First Information Report, he started investigation and

prepared plan and observation mahazer in the presence of witnesses. He also conducted inquest between 11.45 a.m. to 1.00 p.m.

The Investigating Officer was examined as P.W. 19. P.W. 19 received the wound certificate of P.W. 2 and P.W. 3 and also enquired P.W.

10, Dr. Mahalakshmi. He also enquired P.W. 7, the Doctor, who conducted Post-mortem on the body of the deceased and got his report. After

completing the investigation, he filed charge sheet against accused 1 to 3 under sections 341, 326, 302 read with 34 and 201 IPC.

According to the prosecution, the accused 1 to 3 assaulted the deceased Mukkan @ Murugesan on the back of his head and on the back by

using sickle and knife. P.W. 2 and P.W. 3 also suffered injuries, when they tried to prevent the accused from assaulting the deceased. The accused

dragged the body for about 60 feet from the scene of occurrence to the road. P.W. 1 to P.W. 4 are the eye witnesses, who saw the commission

of murder. P.W. 2 and P.W. 3 are the injured witnesses.

According to the learned counsel for the appellants, P.W. 1 to P.W. 4 are interested witnesses, therefore, their evidences should not be taken

into consideration; the seizure of weapons based on the confession statement of the accused were also not proved by P.W. 6 and P.W. 12; the

seizure of material objects and observation mahazar was not supported by any evidence; and there are contradictions in the evidences of P.W. 1

and P.W. 4 in respect of the injuries sustained by P.W. 2 and P.W. 3, therefore, the evidences of P.W. 1 to P.W. 4 are liable to be rejected.

According to P.W. 1, herself and P.W. 2 to P.W. 4 were doing coolie work in Kerala and for the purpose of celebrating the 18th day of

Tamil month ''Audi''(Audi 18), they came to Kondampatti, Anna Nagar. First accused, viz., Murugesan is the paternal uncle''s son of the deceased

Mukkan @ Murugesan. First accused''s wife is Muthulakshmi. In other words, deceased Mukkan @ Murugesan is the cousin brother of first

accused Murugesan. According to P.W. 1, deceased Mukkan @ Murugesan and the first accused''s wife, viz., Muthulakshmi. developed illicit

intimacy and therefore, the said Muthulakshmi was living separately at Kulathur. Therefore, according to P.W. 1, there was some misunderstanding

between their family and their paternal uncle Palanisamy''s family. In these circumstances, the first accused planned to murder the deceased. In

order to execute his plan, to eliminate the deceased, he took the assistance of accused 2 and 3 on 4.8.2009. When the deceased went to see his

uncle Nagaraj on 4.8.2009 in his TVS victor motor cycle, accused 1 to 3 intercepted the deceased''s motor cycle in their motor cycle.

Immediately, the deceased stopped his motor cycle and started running. However, accused 1 to 3 chased the deceased and assaulted him with

sickle and knife. On hearing the noise, P.W. 1 to P.W. 4 also followed the accused and saw them assaulting the deceased with sickle and knife.

When P.W. 2 and P.W. 3, viz., parents of the deceased tried to prevent the accused from assaulting the deceased, the accused also caused

injuries to P.W. 2 and P.W. 3 with sickle and knife.

It is seen from the evidence of P.W. 1 that she has specifically stated that the first accused and the second accused assaulted the deceased

with sickle and knife respectively. She has also specifically deposed that P.W. 2 and P.W. 3 were assaulted by accused 1 and 2. In the second

part of her chief examination, she has deposed that the 3rd accused, viz., Sakthivel, assaulted the deceased with sickle on the back of the

deceased.

On a reading of the chief examination of P.W. 1, it is clear that the second part of the evidence in the chief examination does not go with the

first part of the chief examination. In the first part, she has deposed that the deceased was assaulted by accused 1 and 2 and the deceased had

died on the spot. After that, she deposed that the 3rd accused assaulted the deceased with sickle on the back. Therefore, the participation of 3rd

accused in the commission of murder was not spoken clearly by P.W. 1

P.W. 2 is the father of the deceased and P.W. 1 and P.W. 4. In his evidence, he has deposed that the accused had assaulted and murdered

the deceased suspecting that the deceased was having intimacy with first accused''s wife Muthulakshmi. He also specifically deposed that accused

1 and 2 assaulted him and P.W. 3.

P.W. 3 is the mother of the deceased and P.W. 1 and P.W. 4. In her evidence, she has stated that all the three accused assaulted the

deceased with MO 1 to MO 3 weapons. She has also stated that accused 1 and 2 assaulted her and P.W. 2. Further, in her evidence, she has

deposed that second accused is her son-in-law (husband of P.W. 4). It was suggested to her that since second accused had left P.W. 4, she was

giving evidence against the second accused. However, P.W. 3 denied the said suggestion. Further, P.W. 3 had stated that there is no enmity

between accused 2 and 3 and the deceased.

P.W. 4 is the daughter of P.W. 2 and P.W. 3 and the sister of P.W. 1. In her evidence, she has deposed that she had divorced the 2nd

accused, viz., Raman, and he also married another girl. Further, in her evidence, she has stated that her brother deceased Mukkan @ Murugesan

was not having any intimacy with first accused''s wife Muthulakshmi. According to her, first accused suspecting the intimacy, had murdered the

deceased. P.W. 4 also deposed that all the three accused assaulted the deceased.

On a reading and on close scrutiny of the evidences of P.W. 1 to P.W. 4, its clear that they were very categorical in stating that accused 1 and

2 had assaulted the deceased thereby, caused his death. They were also very categorical that accused 1 and 2 inflicted injuries on P.W. 2 and

P.W. 3. There is no specific overt act attributed to the 3rd accused except stating that all the three accused had assaulted the deceased. The

witnesses were not specific about the injuries inflicted by the 3rd accused. The evidence of P.W. 1 with regard to 3rd accused does not go with

the overt act attributed to the accused 1 and 2. When P.W. 1 to P.W. 4, who were the eye witnesses to the occurrence, were specific about the

injuries inflicted by the accused 1 and 2 for murdering the deceased, but they were not specific about the 3rd accused. The evidence of P.W. 1

with regard to 3rd accused does not go with the overt act attributed to the accused 1 and 2. When P.W. 1 says that accused 1 and 2 assaulted the

deceased by using sickle and knife on the back of the head and on the back of the deceased, according to him, the deceased had died on the spot

after sustaining the injuries caused by accused 1 and 2. P.W. 1 also deposed that accused 1 and 2 also assaulted P.W. 2 and P.W. 3. After that

she had stated that accused 2 and 3 assaulted the deceased with a sickle on the back of the deceased. When the deceased had died on the spot

due to the injuries inflicted by the accused 1 and 2, the question of attacking the person with sickle after he had died is unbelievable.

The prosecution had clearly established the motive for the first accused to commit murder of the deceased. P.W. 1 to P.W. 4, who were the

eye witnesses to the occurrence, are very specific and categorical in stating that accused 1 and 2 assaulted and committed murder of the deceased.

So far as 3rd accused is concerned, the prosecution failed to prove the case beyond reasonable doubt. In these circumstances, the trial court

should not have convicted the 3rd accused.

The learned counsel for the appellants submitted that since P.W. 1 to P.W. 4 are sisters and parents of the deceased, they are interested

witnesses, therefore, the trial court should not have relied upon their evidences while convicting the accused 1 to 3.

It is well settled that in a criminal trial, merely because a witness is interested, his evidence cannot be discarded if the same is otherwise found

to be credible. It is true that the entire prosecution case rests on the evidences of P.W. 1 to P.W. 4. It is equally true that P.W. 1 and P.W. 4 are

the sisters of the deceased and P.W. 2 and P.W. 3 are the parents of the deceased. Only the testimonies of the evidences of P.W. 1 to P.W. 4

have to be scrutinized carefully and if there is no infirmity, there is nothing wrong in accepting their statement.

It is seen from the evidence of P.W. 1 to P.W. 4 that they not only witnessed the occurrence but also specified the overt acts of each accused

particularly, A1 and A2. Among these four persons, P.W. 2 and P.W. 3 sustained injuries. In such circumstances, on a perusal of their entire

testimonies, we are of the view that there is no reason to reject the evidences of P.W. 1 to P.W. 4. On the other hand, the trial court has rightly

accepted their testimonies. The Hon''ble Supreme Court also held that the evidence of an interested witness cannot be discarded, if the same is

otherwise found to be consistent and corroborated by medical evidence and that their testimonies have to be scrutinized carefully and if there is no

infirmity, there is nothing wrong in accepting their statement. This proposition has been laid down by the Hon''ble Supreme Court in the following

Judgments:-

(i) Laxman Vs. The State of Maharashtra,

(ii) Abdul Rashid Abdul Rahiman Patel and Others Vs. State of Maharashtra,

So far as accused 1 and 2 are concerned, though P.W. 1 to P.W. 4 are related to the deceased, they saw the accused assaulting the deceased

and murdering him. Just because they are the relatives of the deceased, their evidence cannot be rejected. When P.W. 1 to P.W. 4 had

categorically stated about the occurrence, we find no reason to disbelieve their evidence.

Learned counsel appearing for the appellants submitted that the existence of Ex. P1 complaint itself is doubtful for the reason that the person

who accompanied P.W. 1 was not examined.

It is seen from the evidence of P.W. 1 that she had deposed categorically about the occurrence and also spoken about Ex. P1 complaint. It is

pertinent to note that one Arjunan, the uncle''s son of P.W. 1 accompanied her to the police station for giving Ex. P1 complaint. When P.W. 1

herself is very categorical and specific about the occurrence and also about the lodging of Ex. P1 complaint with the Police, the non examination of

the person who accompanied P.W. 1 is not material to the facts and circumstances of the case. Therefore, the contention raised by the learned

counsel for the appellants is rejected.

The Accident Register, viz., Exs. P. 12 and P13 also support the evidence of P.W. 2 and P.W. 3.

MO 1 to MO 3 were recovered only based on the confession statement of accused 1 to 3. Section 27 of the Evidence Act provides that a

confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the

discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is that police may procure a confession by coercion or

threat. The exception postulated u/s 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new

facts. The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the

same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement and since it is truth that a court

must endeavor to search, Section 27 of the Evidence Act has been incorporated as an exception to the mandate contained in Sections 25 and 26

of the Evidence Act. If the exception postulated u/s 27 of the Evidence Act is applied to the present case, it would be clear that MO 1 to MO 3

were recovered from the confession statement made by accused 1 to 3.

As already stated, the evidence of P.W. 1 to P.W. 4 clearly proved the case of the prosecution as against accused 1 and 2. Since the

prosecution failed to establish and prove the case as against 3rd accused, the trial court should not have convicted him.

In these circumstances, so far as accused 1 and 2 are concerned, we do not find any ground to interfere with the judgment and conviction and

sentence dated 22.11.2011 made in S.C. No. 85 of 2011 on the file of Additional and Sessions Judge, Fast Track Court, Dindigul. So far as 3rd

accused is concerned, we have no hesitation in holding that the prosecution failed to prove its case against the 3rd accused/3rd appellant beyond

reasonable doubt and thus, the conviction and sentence imposed on him are set aside and the 3rd accused is acquitted of all the charges. The

appeal is partly allowed.