Rajapandi vs The State

M. Chockalingam, J.—Challenge is made to a judgment of the Court of Sessions Division, Virudhunagar at Srivilliputhur made in S.C. No. 180 of 2007, dated 07.11.2008, whereby the appellant shown as A1 stood charged along with two others shown as A2 and A3 under Sections 394 r/w 397 and 302 I.P.C., tried and the appellant/A1 was found guilty u/s 302 I.P.C. and awarded life imprisonment along with fine and default sentence and also found guilty u/s 394 r/w 397 and awarded Rigourous Imprisonment for 10 years with fine and default sentence, but, A2 and A3 were acquitted of the charge under Sections 394 r/w 397 and 302 I.P.C.

The short facts necessary for the disposal of the prosecution case can be stated as follows:

a) The deceased Renganathan was a native of Vanaramutti Village within the jurisdiction of the respondent Police Station. P.W.2 is the brother of the said Renganathan i.e., the deceased. P.W.1 also belonged to the same place. The wife of P.W.1 was employed in the match factory run by the deceased and occasionally P.W.1 used to go there. On the date of occurrence i.e. on 28.02.2007, P.W.1 and the deceased proceeded in M.O.1, the TVS-XL motorcycle, belonging to the deceased, to the lands, which were to be plotted out by the deceased, it was situated nearby Sattur - Kovilpatti main road. While P.W.1 and the deceased were going around the lands, the accused/appellant came over there. A1 uttering words ''you have purchased lands for plotting out in our area'', took over M.O.2-Cellphone and money from the pocket of the deceased and he also attacked him with M.O.5, Aruval, on his neck and different parts of the body. In that process, P.W.1 interfered and he was also attacked by the accused and sustained severe injuries. Immediately, the accused fled away from the place of occurrence.

b) P.W.1 ran to the main road, took a bus and proceeded to the Government Hospital, Kovilpatti. The deceased Renganathan came to the main road and raised a distressing cry. A constable attached to the Sathur Taluk Police Station was proceeding on his way and on seeing the deceased, he took him to the Government Hospital, Kovilpatti. P.W.15, the doctor, attached to the Government Hospital, Kovilpatti medically examined both P.W.1 and the deceased. In so far as P.W.1 is concerned, the injuries found on him were noted in the accident register copy Ex.P.22. In so far as the deceased is concerned, the injuries found on him were noted in the accident register copy Ex.P.21 and they were advised to go to Tirunelveli Government Hospital. The brother-in-law of the deceased, instead of taking them to the Tirunelveli Government Hospital, took them to a private hospital by name Galaxy Hospital, Tirunelveli. P.W.11, the doctor attached to the private hospital examined both P.W.1 and the deceased. Ex.P6 and Ex.P7 are the copies of the accident register of the deceased and P.W.1 respectively.

c) On receipt of the information, P.W.17, the Sub Inspector attached to the Sattur Taluk Police Station, proceeded to the hospital at Sattur. On coming to know that they were taken to the Government Hospital, Tirunelveli, he proceed to the Government Hospital, Tirunelveli, where he was informed that both P.W.1 and the deceased were taken to a private hospital by name Galaxy Hospital. Then, P.W.17, the Sub Inspector of Police proceeded to the Galaxy Hospital and recorded the statement of P.W.1 which is Ex.P1. On the strength of Ex.P1, a case came to be registered in Crime No. 64 of 2007 u/s 397 IPC and the express First Information Report, Ex.P2 was despatched to the Court.

d) On receipt of the copy of the F.I.R., P.W.19, Inspector of Police of the Circle, took up the investigation, proceeded to the place of occurrence, made an inspection in the presence of two witnesses and prepared Ex.P.12, the observation mahazar and Ex.P.30, the rough sketch and also recovered M.Os.6 to 9 and 12 to 14 from the place of occurrence under a cover of Mahazar Ex.P.13. Thereafter, on coming to know that the said Renganathan is dead, the F.I.R. was altered into Sections 302 and 397 of the Indian Penal Code. Ex.P.29, the Alteration Report was also despatched to the Court. Then, he examined the witnesses and recorded their statements. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.31, the inquest report.

e) On 01.03.2007, the dead body of the deceased was sent to the hospital, for the purpose of autopsy. P.W.9, the Doctor, attached to Tirunelveli Medical College Hospital, on receipt of the requisition Ex.P.4, has conducted autopsy on the dead body of the deceased and issued Ex.P.5, the post-mortem certificate, wherein he has narrated the injuries and has opined that the deceased would appear to have died of heavy cut injury on the head and the neck region.

f) Pending investigation, the Investigator arrested the Accused Nos. 1 and 2 on 06.03.2007 in the presence of the witnesses and both of them gave confessional statements voluntarily and the same was recorded. The admissible part of the confessional statement of A1 was marked as Ex.P.14. Thereafter, A1 produced M.O.3, blue colour full hand shirt and M.O.5, aruval and the same were recovered in the presence of the witnesses under a cover of mahazar Ex.P.16. The admissible part of the confessional statement of A2 was marked as Ex.P.15. Thereafter, A2 produced M.O.15, orange colour half hand shirt and M.O.10 series, 100 rupees notes 3 in number were recovered in the presence of the witnesses under a cover of mahazar Ex.P.18. Following the same, A1 identified P.W.6, from whom M.O.2, Cellphone, which belonged to the deceased, was recovered in the presence of the witnesses under a cover of Mahazar Ex.P.17. Then both the accused identified the third accused and he was arrested. At the time of arrest of A3, he also gave a confessional statement voluntarily. The admissible part of the confessional statement of A3 was marked as Ex.P.19 and he also produced M.O.1, T.V.S. Motorcycle belonging to the deceased and M.O.4, red colour full hand shirt. Then, all the accused were sent for judicial remand.

g) Then on a requisition, the District Munsif cum Judicial Magistrate No. 1, Sattur conducted identification parade and P.W.1 and also P.W.2 identified the accused. The identification parade report was marked as Ex.P.28. The material objects recovered from the place of occurrence, from the dead body of the deceased and from the accused were subjected to chemical analysis by the forensic department on a requisition made by the Investigating Officer through the concerned Judicial Magistrate. Following the same, the Chemical analyst''s report, Ex.P10 and Serologist''s report Ex.P11 were received by the Court.

h) On completion of the investigation, the Investigating Officer has filed the final report before the concerned court, which in turn has committed the case to the court of sessions and necessary charges were framed and the case was taken up for trial.

i) In order to substantiate the charges, at the time of trial, the prosecution examined 19 witnesses and relied on 31 exhibits and 15 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Code of Criminal Procedure as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. No defence witness was examined. However, Exs.D1 to D4 were marked.

j) After hearing the arguments of the learned Counsel and looking into the materials available, the trial Court took the view that the prosecution has proved the case of murder and robbery in so far as A1 is concerned and found him guilty and awarded sentence as referred to above, but acquitted the other accused against the charges of murder and robbery. Under these circumstances, this criminal appeal has arisen before this Court at the instance of the first accused/appellant.

Advancing arguments on behalf of the appellant, the learned Counsel inter-alia would submit that the prosecution has miserably failed to prove its case. The whole case rests on the evidence of P.Ws.1 and 2. P.W.2 is the brother of the deceased and P.W.1 is the close friend of the deceased. According to P.W.1, the occurrence has taken place at 7.00 P.M. on 28.02.2007, when he was in the company of the deceased and going around the lands which were to be plotted out by the deceased. According to P.W.1, only two persons came to the spot, when the occurrence has taken place, which is contrary to the earlier documents Exs.P.21 and 22, Accident Register copies, wherein it is mentioned as three unknown persons. Apart from that, though it is true that he has identified the appellant/A1 at the time of identification parade and also in the Court, he could not give proper evidence by whom the injuries were inflicted.

Added further the learned Counsel that both P.W.1 and the deceased were actually examined by the doctor attached to the Government Hospital, Kovilpatti at about 8.00 P.M. on the date of occurrence. Now, the prosecution was unable to show how they were actually brought to Government Hospital situated 20 Kms. away from the place of occurrence. The discrepancy also caused a doubt whether such an occurrence has taken place at all. Insofar as the recovery of M.O.2-Cellphone is concerned, though it is relied on by the prosecution, the name of the company and also the number did not tally and thus that evidence could not be useful to the prosecution.

Insofar as A2 is concerned, according to P.W.2, immediately after the occurrence, both A1 and A2 were travelling in the motorcycle which belonged to the deceased. It was highly artificial, because P.W.2, who is the brother of the deceased, is actually added as a witness in order to strengthen the case if possible and thus, in the instant case, the trial Judge was not ready to believe the very same evidence of P.Ws.1 and 2 in respect of A2 and A3 and recorded acquittal. Accordingly, the same parameters are equally applicable to A1 also. Hence, the trial Judge should have acquitted A1, but miserably failed. Even for invoking Section 394 r/w 397 of I.P.C, the prosecution has no evidence to offer. Under the said circumstances, A1 is entitled for acquittal, but the trial Judge has erroneously viewed and found the appellant/A1 guilty. Hence, the judgment of the trial has got to be set aside.

The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made, and also scrutinized the materials available.

The prosecution in order to substantiate that one Renganathan, brother of P.W.2, was done to death in an incident that took place at 7.00 P.M. on 28.02.2007, has relied on the evidence of postmortem doctor examined as P.W.9 and also the contents of the postmortem certificate marked as Ex.P5 issued by P.W.9. Following the inquest made by the investigating officer, the dead body was subjected to postmortem by P.W.9, who has deposed before the Court and the contents of the postmortem certificate issued by him were also proved. The fact that the deceased Renganathan died out of homicidal violence was never disputed by the appellant/accused before the trial Court. Hence the trial Court was perfectly correct in recording so.

In order to substantiate that the accused/appellant inflicted injuries on the deceased at the time of occurrence i.e. at 7.00 p.m. on 28.02.2007, the prosecution has marched P.W.1 as sole eyewitness and also relied upon other circumstances. According to P.W.1, he accompanied Renganathan to the site which was to be plotted out and when they were going around, at that time the accused persons came over there and it was A1 who took the money from the pocket of the deceased and also the cell phone marked as MO2, and A1 attacked him with aruval on the neck and also on different parts of the body. Though much comment was made on the evidence of P.W.1, the evidence of P.W.1 has got to be accepted by the Court since it inspires the confidence of the Court.

It is pertinent to point out that P.W.1 is not only an eyewitness, but also an injured witness. When he went to the rescue of the deceased, the first accused attacked him and caused severe injuries and immediately after the occurrence P.W.1 and the deceased were taken to Government Hospital, Kovilpatti and they were examined by P.W.15, the doctor, at 8.00 p.m. and 8.15 p.m. respectively and Ex.P21 and Ex.P22 are the accident register copies in that regard. A perusal of Exs.P21 and 22 would clearly indicate the place of occurrence and also the time. Thus, this documentary evidence adduced by the prosecution through Exs.P21 and 22 and also the evidence of medical person who examined the deceased and P.W.1, would clearly corroborate the evidence of P.W.1.

It is settled principle of law, in a given case like this, the evidence of eyewitness, who happened to be an injured, should not be discarded unless strong circumstance is noticed or reason is brought about. In the instant case neither such circumstances are noticed by the Court nor reasons are also brought to the notice of the Court by the appellant/accused. Thus, the evidence of P.W.1 has to be accepted.

Added circumstance was the recovery of cell phone which belonged to the deceased. The said cell phone was recovered from P.W.6 to whom the same was sold by the appellant/A1 and P.W.6 has been examined to that effect. It is not the case of the appellant that the cell phone belonged to him. But, it actually belonged to the deceased. The accused has no explanation to offer as to how it came to his custody and he sold to P.W.6 and thus, the recovery of the cell phone would also clearly indicate the nexus of the crime with the accused.

Apart from this, the accused/appellant has given a confessional statement and the same was recorded in the presence of witnesses, pursuant to which the weapon of crime and also the cell phone which belonged to the deceased were recovered. In the considered opinion of the Court, this is a strong piece of evidence as against the appellant/accused. Added circumstance is that within a reasonable time of arrest, the identification parade was conducted, P.W.1 has clearly identified the appellant/A1 and thus all these would clearly go to show that the prosecution has got necessary evidence to bring home the guilt of the accused. The contention of the learned Counsel for the appellant in this regard, in the considered opinion of the Court, did not carry any merit whatsoever.

In the instant case, what ever comments made against the evidence of P.W.1 cannot be accepted since he was not only an eyewitness, but also an injured witness. Apart from that, in so far as the recovery of the cell phone which belonged to the deceased is concerned, now certain discrepancies were brought to the notice of the Court. Such discrepancies, in the considered opinion of the Court, cannot be given much weight to shake the evidence of P.W.1 or the circumstances noticed by the Court. Thus, in the instant case the ocular testimony put-forth by P.W.1 coupled with the recovery of the belongings of the deceased and also the medical opinion canvassed through P.W.9, would suffice in the considered opinion of the Court, to point the guilt of the accused.

The trial Court has rightly rejected the case of the prosecution in so far as A2 and A3 were concerned, because the evidence was actually lacking. But the prosecution has sufficient evidence in so far as A1 is concerned. It was actually A1 who has attacked the deceased and caused injury and taken the cell phone and money belonging to the deceased and thus, the act of the appellant/accused would attract the penal provision of Section 394 r/w 397 IPC and the trial Judge was perfectly correct in taking a correct decision and found the appellant guilty under Sections 302 and 394 r/w 397 IPC and awarded the punishment referred to above which, in the considered opinion of the Court, is reasonable, and it does not require interference either legally or factually.

In the result, the appeal is dismissed and the conviction and sentence imposed on the appellant by the trial Court are confirmed.