IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.343 OF 2009 Ilaiyaraja .. Appellant/Accused-2 Vs. State rep. by Inspector of Police, Koradachery Police Station. .. Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Sessions Judge, Tiruvarur made in S.C.No.50 of 2008 dated 20.4.2009. For Appellant : Mr.N.Sankaravadivel For Respondent : Mr.Babu Muthu Meeran, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Sessions Division, Tiruvarur made in S.C.No.50 of 2008 where by the appellant shown as the second accused along with the first accused stood charged, tried and found guilty of Section 302 r/w 34 I.P.C. and awarded life imprisonment along with a fine of Rs.50,000/-, in default to undergo 5 years rigorous imprisonment. 2.The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is the brother of the deceased. P.W.2 is running a mutton stall. P.W.1 along with his brother and family members were residing at Kuzhikari Village within the jurisdiction of respondent Police Station, Koradachery. On the date of occurrence, that was on 18.5.2008, one Ramadoss, pursuant to the commitment, performed goat sacrificing pooja. P.W.2 was invited for the purpose of removing the skin of the goat after the sacrifice was over. When the pooja was over, the deceased, P.Ws.1 and 2 and others were standing in front of the temple. At that time, A1 and A2 who were doing the business of selling illicit arrack, came there and warned them that they were the https://hcservices.ecourts.gov.in/hcservices/ informants to the Police about them. Thereafter, they took food. At about 11.00 p.m., when the deceased was sleeping in a cot in front of his house and P.Ws. 1 and 2 and others were standing just about 30 to 40 feet away and were chatting with each other, A1 armed with wooden log and A2 armed with aruval came there and attacked the deceased. This was witnessed by all the four witnesses along with the wife of the deceased, Renuka. P.Ws. 1 and 2 went nearby to the rescue but they were intimidated by the accused/A1 and A2. After attacking Shankar to their satisfaction, they fled away from the place of occurrence. (b) P.Ws.1 and 2 went near the deceased and saw him with grievous injuries. Immediately, they took him in an auto to the Government Hospital at Tiruvarur, where the doctor examined and declared him dead. Thereafter, P.W.1 proceeded to Koradachery Police station and gave a complaint to P.W.8, Sub-Inspector of Police. On the strength of the complaint, a case came to be registered by P.W.8 in Crime No.187 of 2008 under sections 302 and 506(2) I.P.C. and the express F.I.R., Ex.P.11 was despatched to Court and a copy of the same was also sent to the Inspector of Police of that circle. (c) P.W.9, the Investigating Officer took up investigation. He proceeded to the spot, made an inspection and prepared the Observation Mahazar,Ex.P2 and also drew a sketch,Ex.P12. Further, he recovered the material objects from the place of occurrence including M.O.1 cot. He conducted inquest on the dead body of the deceased Shankar in the presence of witnesses and panchayatdars and prepared Ex.P13, Inquest Report. The dead body was subjected to post mortem. (d) On the request made by the Investigating Officer, P.W.4, doctor attached to the Government Hospital, Tiruvarur, conducted autopsy on the dead body of the deceased Shankar and gave the post mortem certificate Ex.P4 wherein he has opined that "the deceased would appear to have died of shock and haemorrhage following injury to vital organs namely, brain." (e) Pending investigation, both the accused were arrested on 22.5.2008. They gave confessional statement voluntarily and the same was recorded by the investigating officer in the presence of two witnesses. The admissible part of the confessional statement given by the first accused was marked as Ex.P6 and the confessional statement of the second accused was marked as Ex.P7. Pursuant to the confessional statement, the first accused produced M.O.2 wooden log and the second accused produced M.O.3 aruval which were recovered under independent mahazar. Thereafter, they were sent to judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the material objects recovered from the accused were subjected to chemical analysis by the Forensic Science Department. The chemical report, Ex.P14 was obtained and the same was placed before the Court. On https://hcservices.ecourts.gov.in/hcservices/ completion of the investigation, the Investigating Officer filed a final report. (f) The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 9 witnesses and relied on 14 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. D.W.1 and D.W.2 were examined on the side of the defence. The trial court, on hearing the arguments advanced on either side and on scrutinizing the materials available, took the view that pursuant to the common intention, the accused had committed the act of murder and they were liable to be punished under section 302 read with 34 I.P.C. and awarded life imprisonment along with fine. Aggrieved over the judgment, the second accused has brought forth this appeal. 3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that according to the prosecution, apart from P.Ws. 1 and 2, Renuka, wife of the deceased also witnessed the occurrence and the two other persons also witnessed the occurrence but except P.Ws.1 and 2, the other witnesses were not examined by the prosecution. Further, P.Ws. 1 and 2 could not have seen the occurrence at all. According to P.W.1, it was he who gave a oral complaint to P.W.8, Sub-Inspector of Police at the Police Station. P.W.8 would depose that P.W.1 gave a written complaint. According to P.W.1, when he gave information, P.W.9 Inspector was also present. According to P.W.8, Sub Inspector, after preparation of the F.I.R., a copy of the express F.I.R. was sent to the Inspector of Police through the Head Constable. Thus, they have given inconsistent evidence and the prosecution is unable to show how the F.I.R. came into existence which would clearly indicate that the F.I.R. could not have come into existence as putforth by the prosecution. 4. The learned counsel would further submit, according to P.W.9, Investigating Officer, he had seen the Accident Register of the deceased. But neither the Accident Register was produced nor the doctor who declared the deceased dead was examined before the Court. This would create suspicion over the prosecution case. Learned counsel would further submit that the evidence of P.W.1 should have been rejected by the trial Judge. P.W.1 has stated in Ex.P1 complaint that he along with his brother including the deceased Shankar were living in Keela Street in one house but at the time of evidence he had stated that he was living at Kuzhikarai in a different street. If to be so, he had no occasion to see the occurrence, that too, at 11.0o p.m. when the occurrence had taken place. The learned counsel would further submit, according to P.W.1, there were blood stains on the earth but the investigating officer did not recover the same and the explanation given by the investigating officer was that no blood https://hcservices.ecourts.gov.in/hcservices/ stains were found on the earth and blood stains found on the cot was recovered by him. Hence, P.W.1 could not have seen the occurrence at all. Further, P.W.2, at the time of chief examination has stated that he was actually residing at Kuzhikarai but at the time of cross examination he has stated that he belonged to Ammaiappan village. If to be so, they had no occasion to be in the place of occurrence and P.Ws. 1 and 2 could not have seen the occurrence at all. Added further learned counsel, in the instant case, the trial Judge, placed much reliance on the evidence of P.Ws.1 and 2, and the prosecution did not give explanation as to the non examination of the alleged other eye witnesses. All would go to show that the prosecution has miserably failed to prove its case. The learned trial Judge has taken an erroneous view as if the prosecution has proved the case beyond reasonable doubt. Hence, it is a fit case for acquittal. Therefore, the judgment of the trial Court has got to be set aside. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Shankar, brother of P.W.1 was done to death in an incident that had taken place at 11.00 a.m. on 18.5.2008 at Kuzhikarai Village. The case was registered at 12.30 a.m. by P.W.8 Sub-Inspector of Police, Koradachery Police Station under sections 302 and 506(ii) I.P.C. On receipt of the copy of the F.I.R., P.W.9 Inspector of Police took up investigation and conducted inquest on the dead body of Shankar in the presence of witnesses and panchayatdars and after preparation of the inquest report, he made requisition to the Government Hospital for conduct of autopsy. P.W.4, doctor attached to Government Hospital, Tiruvarur conducted autopsy on the dead body of Shankar and gave his categoric opinion that out of the four injuries, the first three injuries were fatal, which have actually caused the death of the deceased. The medical opinion canvassed by the prosecution through P.W.4 doctor was never questioned by the appellant before the trial Court. Hence, it could be safely recorded that Shankar died out of homicidal violence. 7. In order to substantiate that it was the appellant/A2 along with the other accused/A1 attacked Shankar at the time of occurrence, the prosecution marched two eye witnesses who were examined as P.Ws. 1 and 2. It is true P.W.1 is the brother of the deceased. It is settled principles of law that merely because the witness was related to the deceased, his evidence should not be discharged but it must be subjected to careful scrutiny test. Even after exercising the test, the Court is satisfied that the evidence of P.W.1 is trustworthy. In the instant case, P.Ws. 1 and 2 have spoken in one voice that one Ramadoss performed goat sacrificing pooja in Kaliamman temple, for which, both were invited. P.W.2 who was running a mutton stall was invited for the purpose of removing the https://hcservices.ecourts.gov.in/hcservices/ skin of the goat. After the pooja was over, they were actually standing outside the house and were chatting along with two other friends nearby the place of occurrence, i.e., just in front of the house of Shankar and Shankar was sleeping in a cot. At that time they found the first accused armed with wooden log and the second accused armed with aruval came over there and attacked Sankar. The entire narration of the incident putforth by P.Ws.1 and 2, despite cross examination in full, remains unshaky. Further, the medical opinion canvassed, as stated above, stood in full corroboration with the ocular testimony. 8. Yet another circumstances which stood against the appellant was the recovery of the aruval, consequent upon the confession statement given by him to the investigating officer. In order to prove the factum of arrest, confessional statement and the recovery of M.O.3 aruval, the witnesses examined, were rightly accepted by the trial court. Thus, the recovery of the weapon of crime from A2, the appellant herein, pursuant to the confession statement is pointing to the nexus between the accused/appellant and the crime. All put together clearly indicate that the fatal injuries caused by the appellant/A2 on the skull actually brought forth the death of the deceased. Now, the contentions putforth by the learned counsel for the appellant, in the considered opinion of the Court, do not carry any merits whatsoever. 9. The contentions putforth by the learned counsel that P.W.1 and 2 could not have seen the occurrence at all, cannot be accepted by this Court. P.W.1 has categorically deposed that at 8.00 p.m. when he was standing with his brother A1 and A2 who came there and warned them stating that they were the informants to the police and they would see to them and within a short span of time, the occurrence had taken place. As far as P.W.2 who was running a mutton stall is concerned, he has categorically deposed that on that day Ramadoss did goat sacrificing pooja in Kaliamman temple and he was invited to remove the skin of the goat. After the pooja was over, he along with P.W.1 and others were chatting near the place where the deceased Shankar was sleeping in a cot. It is true certain discrepancies are noticed in the evidence of P.Ws.1 and 2. P.W.1 has stated that he gave a complaint Ex.P1 and he has written the same. It is not in controversy that Ex.P1 was given by P.W.1. Learned counsel brought to the notice of the Court that according to P.W.1 he has given an oral complaint and it was written by the Sub Inspector but according to the Sub-Inspector it was a written complaint. However, this minor discrepancy will not go into the root of the matter. As found in Ex.P1, the complaint was given by P.W.1 which was actually signed by him. The occurrence has taken place at 11.00 p.m. and the complaint was given at 12.30 at night. The Police Station is situated 7 kilometers from the place of occurrence. Pursuant to the complaint given, a case came to be registered directly for the offence under section 302 I.P.C. which reached the learned Magistrate at 2.30 a.m. https://hcservices.ecourts.gov.in/hcservices/ itself. All would speak about the truth of the prosecution case. 10. Further, the contention putforth by the learned counsel for the appellant that the blood stained earth was not recovered, cannot be a matter at all, since at the time of occurrence, Shankar was sleeping on the cot and the said cot was recovered and was marked as M.O.1. Hence, this contention do not carry any merit. Apart from that, the non-examination of the doctor who declared Shankar dead or the non-production of the accident register from the hospital, will in no way take away the truth of the prosecution case. Therefore, the contention putforth by the learned counsel for the appellant in that regard has got to be rejected, accordingly rejected. 11. The trial Judge has marshalled the evidence proper and has found the appellant guilty of Section 302 read with 34 I.P.C. for having caused fatal injuries. This Court is unable to notice any reason to interfere either in the conviction or in the sentence imposed by the trial court. 12. In the result, the criminal appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court. vsi Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Sessions Judge, Tiruvarur Inspector of Police, Koradachery Police Station. 2. -do- Through the Principal Sessions Judge, Thiruvarur. 3. The Judicial Magistrate, Thiruvarur. 4. -do- Through the Chief Judicial Magistrate, Thiruvarur. 5. The Superintendent, central Prison, Trichy. 6. The Inspector of Police, Koradachery Police Station, Thiruvarur. 7. The Public Prosecutor, HighCourt, Chennai. 8. The Section Officer, Criminal Section, High Court, Madras. +1 cc to Mr. N. Sankaravadivel,Advocate, SR.No.55571. Crl.A.No.343 of 2009 gv(co) ar/27.10.2009. https://hcservices.ecourts.gov.in/hcservices/