State vs Moobarak, Sankar, Moorthi @ Sathiyamoorthi and Raju

R. Regupathi, J.—On 09.01.1999 at 8.00 p.m the respondents/accused in the case, due to previous enmity, with the common intention to finish off the deceased, indulged in wordy quarrel with him at the shop of P.W.1 and followed by that A-3 and A-4 caught hold of the deceased and A-1 and A-2 armed with Aruval and knife respectively, cut the deceased on the left hand and stabbed on the stomach, resulting in his death.

Learned I Additional Sessions Judge cum Chief Judicial Magistrate, Trichy framed three charges against the accused in S.C. No. 233/2000. As per the first charge, on 09.01.1999, at 08.00 p.m, all the accused indulged in a wordy quarrel with the deceased and when the deceased made an attempt to run away from the scene of occurrence, A-3 and A-4 caught hold of him and A-1 and A-2 attacked him with Aruval and knife, resulting in his death; thereby, A-1 and A-2 committed an offence punishable u/s 302 IPC. Secondly, during the course of the same transaction, A-3 and A-4 caught hold of the deceased and facilitated A-1 and A-2 to inflict injuries on the deceased thereby, they committed an offence punishable u/s 302 read with 114 IPC. Thirdly, A-1 to A-4 threatened the witnesses by showing weapons, thereby committed an offence punishable u/s 506(ii) IPC. When the accused were questioned initially by the trial Judge, they denied the commission of the offence and pleaded not guilty. Therefore, the trial against them case was taken up.

In order to substantiate its case, the prosecution examined P.Ws.1 to 20, marked Exs.P.1 to 23 and produced M.Os.1 to 5. On conclusion of the trial, by order dated 04.05.2001, the learned trial Judge, acquitted the accused from all the charges. Aggrieved against the said order of acquittal passed by the trial Court, the State has preferred the present appeal.

The case of the prosecution, as projected by its witnesses, is briefly narrated hereunder:

a) P.W.1 was running a tea shop near Mariamman temple, Sengulam colony. On 09.01.1999 at 10.00 AM, at the shop of P.W.1, there was quarrel between the deceased and the accused and they were pacified and separated. On the same day at 8.00 p.m., when P.W.1 was in the tea shop, there was a wordy quarrel between the deceased and the accused and, referring to the earlier quarrel took place in the morning, the accused pushed down the deceased and A-1 attacked the deceased with aruval and the cut fell on the left hand and A-2 stabbed him with knife repeatedly on the left flank and when the deceased made an attempt to escape, A-3 and A-4 prevented by catching hold of him. On noticing P.Ws.1, 4 and 5 and others gathered there, the accused ran away from the scene of occurrence after threatening them. P.W.1 took the deceased in an auto to the Government hospital and thereafter, went to the Police Station and lodged a complaint under Ex.P.1.

b) P.W.2, cited as an eye witness, did not support the case of the prosecution and therefore, he was treated as hostile.

c) P.W.4 the brother of P.W.1, was present at the time of the occurrence and he corroborated the evidence of P.W.1. He also accompanied the deceased to the Government hospital and he came to know about the death of the deceased on the next day.

d) P.W.5 stated that, he knew both the deceased and the accused and he has spoken to about the occurrence, corroborating the testimony of P.Ws.1 and 4.

e) P.W.6, stated that while he was at the ration shop, on noticing crowd in front of the tea shop of P.W.1, he went there and found the deceased lying on ground with injuries and at that time P.Ws.1,4 and 5 were present there.

f) P.W.7, the wife of the deceased, stated that there was enmity between the accused and the deceased with regard to sale of arrack and on, 09.01.1999, coming to know about the assault on the deceased, she rushed to the scene of occurrence where she found the deceased lying on ground with cut injuries and the accused fleeing that place.

g) P.W.9, who has been examined to speak about the occurrence which took place in the morning, did not support the case of the prosecution, therefore, he has been treated as hostile.

h) On the injured being brought to the Hospital at 9.50 PM., P.W.15, Medical Officer, Government Hospital, Trichy, found him semi-conscious with six injuries and admitted him as in-patient. The Accident Register issued is Ex.P.13 and the Doctor stated that the injuries sustained by the deceased would have been caused by weapons like M.Os.1 and 2 aruval and knife respectively.

i) P.W.19, Sub Inspector of Police on receipt of the complaint given at 10.00 P.M., by P.W.1 namely, Ex.P.1 registered a case in Crime No. 11 of 1999 for offences punishable under Sections 341, 307 and 506(ii) IPC and forwarded copies of the First Information Report/Ex.P.20 to the Judicial Magistrate concerned and superior officials in the department.

j) P.W.20, the Inspector of Police, on receipt of the copy of the First Information Report, on 09.01.1999 at 10.40 p.m, reached the scene of occurrence and prepared Observation Mahazar/Ex.P.2 and Rough Sketch/Ex.P.21 in the presence of P.W.3. P.W.3, in his evidence stated that he was present at the time when the Investigating Officer prepared Observation Mahazar and Rough Sketch and that he attested the Mahazar. The Investigating Officer, thereafter proceeded to the Government hospital and since the deceased was unconscious, returned back to the station. Again he went to the Hospital and recorded the statement of the injured.

k) P.W.13, Judicial Magistrate No. I, Trichy, on receipt of the requisition/Ex.P.11 from the Hospital for recording the dying declaration, proceeded to the Government Hospital on 10.01.1999 and, after observing all the formalities, in the presence of P.W.11, Medical Officer, Government Hospital, recorded the dying declaration Ex.P.12 at 3.40 a.m. It is his evidence that at the time when the dying declaration was recorded, the deceased was conscious and in a fit state of mind. P.W.11, Medical Officer, Government Hospital, Trichy, was present at the time when P.W.13, recorded the dying declaration and he endorsed in the dying declaration that the deceased was "conscious throughout the proceedings". Ex.P.8 is the endorsement made in Ex.P.12, the dying declaration.

l) P.W.10, Medical Officer, Government Hospital, Trichy found the deceased dead on 10.01.1999, at 07.45 a.m. and passed on intimation to the police.

m) P.W.20, Investigating Officer, on receipt of the death intimation at 9.15 A.M. on 10.01.1999, modified the offence as one under Sections 341, 302 and 506(ii) IPC and forwarded the express report/Ex.P.22 through P.W.14, who handed over the same to the Magistrate at 10.00 A.M. He held inquest over the dead of the deceased at 11.30 a.m. and thereafter, sent the dead body for conducting autopsy along with a requisition Ex.P.9 through P.W.16, Head Constable.

n) P.W.12, Medical Officer, Government Hospital, Trichy, conducted Post Mortem over the dead body of the deceased at 12.30 noon on 10.01.1999 and issued Ex.P.10, Post Mortem Certificate, wherein, she noted down the following:

External injuries: There is an abrasion over the scalp about 3cm in length just above the (lt) eyebrow. 2)There is a midline sutured wound about 7cm in the abdomen extending to the left in the substernal region about 2 cm in length. 3) There is a sutured wound about 4 cm in length in the left forearm present.

Internal injuries: On opening the Thorax - there was a contusion in the retrosternal area. No ribs. No injury to lungs & Heart. There was a sutured wound about 2" over the left dome of diaphragm. Abdomen; There was reperanize sunses in the left lobe of liver (liver tear stutured with the size of 2 squares. Stomach empty. Small intestine, large intestine normal. Bladder empty. Spine & Cramium normal.

P.W.16, Head Constable, on conclusion of the Post Mortem received the bloodstained shirt (M.O.5) of the deceased and handed over the same to the Investigating Officer.

o) The Investigating Officer arrested A-1 on 10.01.1999 in the presence of P.W.8, Village Administrative Officer. A-1 gave a confession statement and the admissible portion thereof is Ex.P.4. Pursuant to the confession, M.O.1 aruval was recovered under Ex.P.5 Mahazar. A-2 and A-4 were arrested on 11.06.1999 and A-2 gave a voluntary confession statement and the admissible portion of the same is Ex.P.6. Pursuant to the confession statement given by A-2, M.O.2 (knife) was recovered under Ex.P.7. P.W.8, Village Administrative Officer attested the Mahazars for arrest and recovery. The Investigating Officer examined P.W.18, Sub Inspector of Police, Palakkarai Police Station and through him, the First Information Report registered in Crime No. 6 of 1998, on the complaint given by the deceased against the second accused and others, for offences punishable under Sections 341, 324 and 506(ii) IPC, came to be marked as Ex.P.19. The Investigating Officer forwarded and the recovered material objects to the Court for obtaining opinions from the Forensic Lab and P.W.17, the Court Clerk received chemical analysis and serological reports as Exs.P.17 & 18 on 24.01.1999. On conclusion of the investigation, final report was laid on 21.01.1999.

p) When questioned u/s 313 Cr.P.C. with reference to the incriminating materials adduced by the prosecution, the accused denied their complicity in the crime and pleaded innocence. No oral or documentary evidence was let in by the defence. Learned trial Judge, on conclusion of the trial, disbelieved the prosecution case and acquitted the accused, hence, the present appeal by the State.

Heard the learned Additional Public Prosecutor and the learned Counsel for the respondents.

Learned Additional Public Prosecutor for the State submitted that the occurrence part of the prosecution case has been spoken to by P.W.1, 4 and 5, who are independent eye witnesses. The occurrence had taken place in front of the shop of P.W.1. On 09.01.1999 at 10.00 a.m., the deceased and the accused indulged in quarrel and they were separated by the persons present at the tea shop of P.W.1. On the same day at 8.00 p.m, it is the evidence of P.W.1 that while the deceased was already present in the tea shop, all the four accused came there, picked up quarrel with the deceased and pushed him down and when he was about to stand up, A-3 and A-4 catch hold of him and A-1 and A-2 attacked him with Aruval and knife. The evidence of P.W.1 is corroborated by P.Ws.4 and 5. Since the deceased sustained severe injuries, he was taken to the Government Hospital, at the first instance. P.W.15, the Medical officer, examined the deceased at 9.50 p.m. and issued Ex.P.13, Accident Register, in which it is noted that the occurrence took place at 8.00 p.m. and that the deceased was attacked by two known persons. Name of P.W.4 is mentioned as the person who brought the deceased and Six injuries sustained by the deceased have been listed in Ex.P.13. In the mean time, P.W.1 rushed to the police station and lodged a complaint under Ex.P.1 with P.W.19, Sub Inspector of Police at 10.00 p.m. It is submitted that the occurrence took place at 8.00 p.m., the deceased was brought to the hospital by 9.55 p.m., the report was given at 10.00 p.m. and the First Information Report reached the Court by 11.00 p.m; therefore, the First Information Report came into existence in natural course and there was no scope for embellishment or concoction even at the preliminary stage. Both in the First Information Report as well as in the evidence of P.W.1, the motive as well as the occurrence part of the prosecution case have been graphically described. Further, the evidence of P.W.1 stands corroborated by P.Ws.4 and 5. Soon after the incident, P.W.6 came to the occurrence place where he found the deceased lying on ground with injuries and he also speaks about the presence of P.Ws.1, 4 and 5. P.W.7, the wife of the deceased on reaching the occurrence place, saw the accused running away with weapons. The motive part of the prosecution case has been spoken to by P.W.9. Though he did not support the case of the prosecution, such aspect has been substantiated through the evidence of P.Ws.1, 7 and 18. P.W.18, speaks about the complaint given by the deceased against A-2 and others. In the dying declaration/Ex.P.12 the presence of A-1 to A-4 and in particular the over acts of A-1 and A-2 have been clearly mentioned. Learned Judicial Magistrate recorded the dying declaration after observing all the formalities in the presence of Medical Officer who had endorsed in Ex.P.12 that the patient (deceased) was conscious throughout the proceedings. Though the dying declaration given by the deceased can be accepted without seeking any corroboration, in the case on hand, the same has been corroborated through the evidence of eyewitnesses P.Ws.1, 4 and 5 and, being independent witnesses and not related to the deceased, they have no axe to grind against the accused. The accused were arrested on 10.01.1999 and 11.01.1999 and the weapons of offence namely, M.Os.1 and 2, were recovered pursuant to the voluntary confession statement given by them. Though the prosecution case has been well substantiated through the oral and documentary evidence, the learned trial Judge, without properly appreciating the materials, proceeded on a wrong footing to disbelieve the prosecution case erroneously acquitted the accused. Learned Additional Public Prosecutor, referring to the following aspects taken into consideration by the learned trial Judge while acquitting the accused, made his submissions in an endeavour to convince this Court that the conclusion arrived at by the trial Court is erroneous and the ultimate order is liable to be interfered with.

i) The occurrence had taken place during night time at 8.00 p.m. and the presence of light at the time of occurrence has not been established by the prosecution. Therefore, the trial Court held that non-mentioning of the source of light is of great significance and it is fatal to the case of the prosecution.

Learned Additional Public Prosecutor, by pointing out that the presence of light has been mentioned in the dying declaration which came into existence at 03.40 a.m. on 10.01.1999 and P.Ws.1 and 4 have also mentioned about the presence of light in their evidence and such aspect is also reflected in Exs.P.2 and 21 prepared at 11.00 p.m., would submit that when there are abundant materials produced by the prosecution, the learned trial Judge, overlooking the same, erroneously concluded that presence of light has not been established.

ii) It was contended by the learned defence Counsel that the accused did not belong to that area viz., Sengulam Colony, and they are unknown persons, under such circumstances, identification parade should have been conducted. Since the eye witnesses identified the accused only in the Court for the first time, their evidence must be disbelieved.

Learned Additional Public Prosecutor submits that P.W.1, in his evidence, stated that the accused are known to him and even in Ex.P.1, it has been categorically stated that the accused are known persons since they reside in the same street. Moreover, on the same day, at 10.00 a.m., the deceased and the accused indulged in quarrel in front of the shop of P.W.1 and they were pacified then, thereby, the identity of the accused is well known to P.W.1. The accused are also known to P.Ws.4 and 5 and it is also reflected in their evidence. That being so, there is no necessity for conducting the identification parade.

iii) Learned trial Judge observed that the complaint under Ex.P.1 would not have come into existence in the manner and time as put forth by the prosecution. It is the evidence of P.W.7, wife of the deceased, that her aunt, after coming to know about the occurrence, went to the police station and brought them to the scene of occurrence, under such circumstances, even before P.W.1 could lodge the complaint under Ex.P.1 with the police, a complaint was given by P.W.7 which has been suppressed.

Learned Additional Public Prosecutor states that P.W.7 is not an eye witness in the case and she came to the scene of occurrence only after hearing about the occurence. P.W.4 had taken the deceased to the hospital while P.W.1 went to the police station for giving complaint about the occurrence that had taken place at 8.00 p.m and the deceased was admitted by 9.55 p.m and the complaint/Ex.P.1 came into existence by 10.00 p.m. and, in the meantime, there was no scope or possibility for the police to visit the scene of occurrence, since it is the positive evidence of P.W.19, Sub Inspector of Police that, on the complaint lodged, a case was registered and, on receipt of the copy of the First Information Report, the Investigating Officer, reached the scene of occurrence without any lapse of time. Under such circumstances, the positive evidence of P.W.1 corroborated by P.W.19 cannot be disbelieved. During cross-examination, P.W.19 emphatically denied that a complaint was lodged by the aunt of P.W.7 and that he suppressed the same.

Relying on the evidence of P.W.19, Sub Inspector of Police, to the effect that P.W.1 came to the police station and gave a "written complaint" at 10.00 p.m, it is submitted that such verision is contrary to the evidence of P.W.1, for, according to P.W.1, he had gone to the police station and narrated the incident and it was reduced to writing. Learned Additional Public prosecutor, referring to the endorsement at the bottom of Ex.P.1 to the effect "on receipt of the complaint", a case has been registered, would submit that perhaps, the version of P.W.19 is based on such endorsement and therefore, looked in that perspective, there is no contradiction between the evidence of P.W.1 and P.W.19.

iv) It was contended that the injuries sustained by the deceased had not been properly explained by the prosecution, in particular injury No. 3, which could not have been caused by Aruval.

Learned Additional Public Prosecutor submits that it is the evidence of P.W.12, Post Mortem Doctor, that such injury is also possible due to cut with Aruval. Moreover, the deceased, on being taken to the hospital, was examined at 9.50 P.M. by P.W.15, Medical Officer, who noted down 6 injuries in the Accident Register/Ex.P.13 and also deposed before Court that those injuries would have been caused with weapons like M.os.1 and 2 namely aruval and knife and such version has been corroborated by P.W.12, the Doctor who conducted post mortem. The testimony of the eye witnesses having been substantiated well by the medical evidence, there is no scope at all for disbelieving their evidence.

v) There are materials to substantiate that the deceased was unconscious. Though the doctor was present at the time of recording of the dying declaration, the vital aspect viz., as to whether the deceased was conscious and in a fit state of mind to give dying declaration, has not been properly reflected and therefore, it was held that the dying declaration is unreliable.

Learned Additional Public Prosecutor states that the recording of dying declaration by a Judicial Officer/P.W.13 cannot be doubted. At any rate, it was done only in the presence of P.W.11, Medical officer, who has also endorsed as per Ex.P.8 in the dying declaration itself to the effect that the "patient was conscious throughout the proceedings".

vi) Learned trial Judge held that M.Os.1 and 2 were planted by the prosecution and the prosecution witnesses are not definite about the identity of the weapons of offence. Further, the properties alleged to have been recovered on the next day of the offence, reached the court only on 22.07.1999 and it has created considerable doubt with regard to the genuineness of the recovered material objects.

According to the learned Additional Public Prosecutor, though the material objects recovered were sent to the Court after a delay of about six months, the Doctor who examined the deceased within two hours expressed his opinion that injuries Nos. 1 and 2 would have been caused with weapons like M.Os.1 and 2. Such opinion has been corroborated by the Post Mortem Doctor also. The weapons of offence have been correctly identified by the witnesses. Under such circumstances, the delay in despatching the material objects is of no consequence.

Ultimately, it is submitted by the learned Additional Public Prosecutor that the reasons given by the learned trial Judge for acquitting the accused are unsustainable and the order of acquittal is liable to be set aside.

Per contra, learned Counsel for the accused submitted that the conclusion arrived at by the learned trial Judge is based on sound reasonings; that the evidence of the eye witnesses is not consistent with reference to the over acts attributed to A-3 and A-4; and that the prosecution has not proved its case beyond all reasonable doubts. An over all assessment of the materials would suggest that the occurrence would not have taken place in the manner as put forth by the prosecution.

We have given our thoughtful consideration to the arguments of the Counsel appearing on either side and meticulously considered the materials available. The only point for consideration in this Appeal is as to whether the order passed by the trial Court is sustainable in the light of the evidence adduced by the prosecution against the accused.

In a case of this nature, we are well aware that the appellate Court/High Court should be slow in disturbing a finding of fact arrived at by the trial Judge, however, if, during such slow process, on a thorough analysis of the materials available, it is found that the findings of the lower Court are wholly unreasonable or perverse and not based on the evidence on record, or suffer from serious illegality including ignorance or misreading of evidence on record, then, there would be no impediment for this Court to set aside the order of acquittal. In that perspective, let us examine whether there exist substantial and compelling reasons to disturb the order of the trial Court.

The occurrence had taken place at 8.00 p.m. in front of the tea shop run by P.W.1. P.W.4 is the brother of P.W.1. The quarrel took place in the presence of eye witnesses P.Ws.1, 4 and 5 and it was witnessed by them with the help of the light available in front of the tea shop. The presence of light has been mentioned in the dying declaration, Rough Sketch, and Observation Mahazar in addition to the evidence of eye witnesses. The deceased was taken to the hospital in an auto and P.W.15 gave admission to the deceased at 9.50 p.m and issued the Accident Register/Ex.P.13 wherein the name of P.W.4, who brought the deceased, is mentioned and Six injuries are noted down and it is further mentioned that those injuries were caused by two known persons. P.W.1 went to the police station and a complaint was given at 10.00 p.m. and the First Information Report was reached the Court at 11.00 p.m. under such circumstances, the existence of the complaint, in the time and manner as put forth by the prosecution cannot be disputed. P.W.1, an independent eye witness, did not have any axe to grind against the accused. As pointed out earlier, P.Ws.4 and 5 corroborated the testimony of P.W.1. The evidence of the eye witnesses is corroborated by P.W.15, Medical Officer who initially admitted the deceased and P.W.12, who conducted the Post Mortem. Apart from that, on receipt of intimation from the Hospital, P.W.17, the Judicial Magistrate reached the Government Hospital and recorded the dying declaration from the deceased at 3.40 a.m in the presence of P.W.11 Medical Officer. Both the Judicial Magistrate and the Medical Officer have categorically stated that the injured was conscious at the time of recording the dying declaration. The presence of the accused and their over acts have been clearly mentioned in the dying declaration. The occurrence took place on 09.01.1991 and the arrest of the accused was effected on 10.01.1999 and 11.01.1999 and the weapons of offence were recovered in pursuance of the confession statements given by the accused. The prosecution case with reference to the over acts attributed to A-1 and A-2 is substantiated beyond reasonable doubt.

With regard to the over acts against A-3, in the dying declaration, it has been stated that he switched off the light and the overtact attributed by P.W.1 has not been mentioned in the dying declaration. Similarly, though it has been stated that A-1 and A-2 assaulted the deceased on the instruction of A-4, no overtact has been attributed to him in the dying declaration. On a perusal of the dying declaration, the presence of A-4 itself is doubtful. Therefore, we hold that A-3 and A-4 are falsely implicated in the case since they participated in the earlier occurrence that had taken place on the same day at 10.00 a.m. Though P.W.1, in his evidence and Ex.P.1 complaint, has stated that A-3 and A-4 caught hold of the deceased, since such aspect is not mentioned in the dying declaration, we are of the considered view that benefit of doubt be given to them because of the reason that they were not in possession of any weapon and they did not utter any word of instigation. Moreover, even before lodging of the complaint at 10.00 P.M. Ex.P.13, Accident Register, had come into existence at 9.50 p.m. wherein, it has been mentioned that the deceased was assaulted by two known persons at 8.00 p.m. on 09.01.1999 at Sengulam colony. Under such circumstances, by giving benefit of doubt, A-3 and A-4 were rightly acquitted.

Insofar as A-1 & A-2 are concerned, we are of the considered view that when there are abundant materials available on the side of the prosecution to substantiate that A-1 and A-2 have committed the offence of murder, the trial Court failed to consider the same in a proper perspective and the findings arrived at are not based on the evidence on record and suffer form serious illegality; hence, the order of the trial Court is liable to be interfered with.

Consequently, the order of the trial Court, acquitting A-1 and A-2, is set aside. We hold that the first charge alone is made out, accordingly, A-1 and A-2 are convicted u/s 302 IPC and sentenced to undergo life imprisonment.

The Criminal Appeal is allowed in part. Learned trial Judge is directed to take steps to secure the presence of A-1 and A-2 and commit them to Prison to undergo the sentence imposed by this Court.