Bail Slip The 1st Appellant Murali S/o Muthan, in Crl.Appeal No.208/02 and residing at Alamelmangapuram Colony,, Ponpady Village, Kancheepuram District, was ordered to be released on bail as per orders of this Court in CMP.No.1707/2002 dated 8.3.2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11 .2008 CORAM: THE HONOURABLE MR.JUSTICE C.NAGAPPAN Criminal Appeal No.208 of 2002 1. Murali (A1) S/o. Muthan 2.Chinnayan (A2) S/o.Govindan .. Appellants/ (Accused Nos.1 & 2) -Vs- State, represented by Inspector of Police, Tiruttani Police Station (Crime No.1974/1997) .. Respondent/Complainant Appeal under Section 374 Cr.P.C against the conviction and sentence imposed by the Additional Sessions Judge, Fast Track Court, Kancheepuram in the judgment dated 6.2.2002 made in S.C.No.108 of 1999. https://hcservices.ecourts.gov.in/hcservices/ For appellants : Mr.J.I.Rajkumar Roberts For respondent : Mr.I.Paul Nobel Devakumar Govt. Advocate (Crl. Side) JUDGMENT The appellants are accused Nos.1 and 2 in Sessions Case No.108 of 1999 on the file of Additional Sessions Judge, Fast Track Court, Kancheepuram and they have challenged the conviction and sentence imposed on them by the Trial Court for various offences. 2. The learned counsel for the appellants and the learned Government Advocate (Crl. Side) filed independent memos stating that the second appellant died on 24.12.2007 and they have also enclosed the original death certificate of the second appellant. The Memos are recorded. The Appeal insofar as second appellant is concerned abates. 3. For the sake of convenience, in this Judgment, the first appellant is referred to as Accused No.1. 4. The prosecution alleges that in furtherance of common intention to cause the murder of Alli, accused No.2-Chinnayan caught hold of her at the time of occurrence and accused No.1- Murali beat on her head with iron rod resulting in her death and during the occurrence, accused Nos.1 and 2 have independently attacked the witnesses causing injuries and the learned Additional Sessions Judge framed the following charges against them. https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Charges Accused 1 2 3 4 5 6 7 8 9 10 11 12 13 Under Section 307 I.P.C. Under Section 323 I.P.C. Under Section 506(ii)I.P.C. Under Section 323 I.P.C. Under Section 354 I.P.C. Under Section 323 I.P.C. Under Section 326 I.P.C. Under Section 326 I.P.C. r/w. S.34 I.P.C. Under Section 323 I.P.C (3 counts). Under Section 323 I.P.C. r/w. S.34 I.P.C. (3 counts). Under Section 324 I.P.C. (2 counts). Under Section 324 I.P.C. (2 counts) r/w S.34 I.P.C. Under Section 302 I.P.C. r/w S.34 I.P.C. A.1 and A.2 A.1 and A.2 A.1 A.1 and A.2 A.1 and A.2 A.1 and A.2 A.1 A.2 A.2 A.1 A.1 A.1 A.1 and A.2 5. The learned Additional Sessions Judge held that the charges framed against accused No.1-Murali under Sections 307, 323 (P.W.2), 323 (P.W.3) and 323 r/w 34 (2 counts) (P.Ws.5 and 6) are not proved and the charges framed against accused No.2 under Sections 307, 323 (P.W.3) and 323 (2 counts) (P.Ws.5, 6) are not proved and acquitted them of the said charges. The Trial Court also held that the charge under Section 302 r/w 34 IPC framed against accused Nos.1 and 2 is not proved and accused No.2- Chinnayan is not guilty of the charge and at the same time, the offence committed by accused No.1-Murali would fall under Section 304 (ii) IPC and he is guilty of the same and accused No.1-Murali https://hcservices.ecourts.gov.in/hcservices/ is also guilty of the charges under Sections 506(ii), 323 (P.W.4), 354 (P.W.4), 326 (P.W.5) and 323 r/w 34 IPC (P.W.1) and 324 (2 counts) (P.W.6 and P.W.1) and convicted him for the said offences and sentenced him to undergo seven years Rigorous Imprisonment for the offence under Section 304(ii) IPC and sentenced him to undergo two years Rigorous Imprisonment for the offence under Section 506 (ii) IPC and imposed a fine of Rs.500/-, in default, to undergo Rigorous Imprisonment for two months for the offence under Section 323 IPC and sentenced him to undergo two years Rigorous Imprisonment for the offence under Section 354 IPC and sentenced him to undergo three years Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default, to undergo 6 months Rigorous Imprisonment for the offence under Section 326 IPC and further sentenced him to pay a fine of Rs.500/-, in default, to undergo Rigorous Imprisonment for two months for the offence under Section 323 r/w 34 IPC and sentenced him to undergo one year Rigorous Imprisonment each for the offence under Section 324 IPC (2 counts) and ordered the sentences to run concurrently. There is no need to refer to the conviction and sentence imposed on accused No.2 since the appeal abates in so far as he is concerned. 6. To prove its case, the prosecution has examined P.Ws.1 to 15 and marked Exs.P1 to P31 and M.Os.1 to 19. 7. The case of the prosecution is briefly stated as follows. The deceased Alli is the wife of P.W.1-Dharman. P.W.11-Govindan is their son-in-law. P.W.1-Dharman and P.W.5-Veerasamy are brothers. P.W.2-Umapathy and P.W.6-Srinivasan are the sons of P.W.5-Veerasamy. P.W.3-Neelan is the husband of P.W.4 Pappammal. Twenty days prior to the occurrence, the cattle of Shoba, daughter of accused No.2- Chinnayan graced in the field of P.W.2-Umapathy and P.W.2- Umapathy scolded Shoba and she informed the same in her house and the accused Nos.1 and 2 beat P.W.2-Umapathy. A panchayat was held and the matter was compromised. On the date of occurrence, viz., on 17.12.1997 at 6 pm, P.W.1-Dharman came to his house and at that time, both the accused beat Elumalai with their hands and P.W.2-Umapathy questioned the same and accused No.2-Chinnayan beat P.W.2-Umapathy on his chest and face and accused No.1-Murali threatened to kill him by hitting with iron rod. P.W.2-Umapathy moved out of fear and P.W.3-Neelan asked them as to why they beat P.W.2-Umapathy and accused No.1-Murali beat him with iron rod and on hearing the same, his wife P.W.4-Pappammal who was bathing, came out of bathroom by wrapping the clothes and asked the accused as to why they beat her husband and accused No.1-Murali removed her clothes and beat her and on seeing this, P.W.5-Veerasamy questioned the beating and accused https://hcservices.ecourts.gov.in/hcservices/ No.1 beat him with iron rod and the blow fell on his left hand causing fracture and at that time, Alli, the wife of P.W.1- Dharman, questioned the conduct of the accused and accused No.2- Chinnayan caught hold of Alli and accused No.1-Murali hit Alli on the head with M.O.1-iron rod and Alli fell down unconscious. P.W.1-Dharman tried to lift Alli and at that time, accused No.2- Chinnayan kicked him with leg and accused No.1-Murali hit him with iron rod on both his knees and at that time, P.W.6-Srinivasan tried to stop the beating of the accused and accused No.1-Murali beat him on his left wrist with the iron rod. P.W.11-Govindan and P.W.12-Subramani witnessed the occurrence. People gathered and both the accused ran away from the scene. 8. P.W.1-Dharman along with Elumalai brought Alli to Government General Hospital, Tiruttani at about 9 pm and P.W.7-Dr.Mathiyalagi examined Alli and found her dead and she sent the body to mortuary. Ex.P8 is the Accident Register extract issued by her. P.W.1-Dharman went to Tiruttani Police Station and gave Ex.P1-statement and P.W.14-Sub Inspector Balamurugan recorded the same and registered a case in Crime No.1974 of 1997 under Sections 341, 323, 324, 354, 307 and 302 IPC and prepared Ex.P18-First Information Report and despatched the same. 9. P.W.15-Inspector Karunanithi received the express report at 8.35 pm and took up investigation. He reached the occurrence place and prepared Ex.P20-Observation mahazar in the presence of P.W.10-Amavasai and Govindaraj and Ex.P19 is the Rough sketch prepared by him. He seized M.O.13-Blood-stained earth and M.O.14-sample earth from the occurrence place in the presence of the above witnesses under Ex.P21-mahazar. He went to Government Hospital, Tiruttani and conducted inquest on the body of Alli from 9.30 pm to 11 pm and prepared Ex.P22-Inquest report. At that time, he examined P.Ws.1 to 6 and recorded their statements. He also seized the blood-stained clothes of the witnesses under Ex.P23-mahazar. He gave Ex.P24-requisition through P.W.9-Constable Radhakrishnan for conducting post-mortem on the body. 10. P.W.7-Dr.Mathiyalagi examined P.W.5-Veerasamy at 9 pm on 17.12.1997 in Tiruttani Government Hospital and found three contusions in his body and on X-ray, noticed fracture of left ulna and radius lower 1/3. Ex.P2 is the Accident Register extract issued by her stating that injury No.1 is grievous and other two injuries are minor in nature. 11. P.W.7-Dr.Mathiyalagi examined P.W.4-Pappammal at 10.20 pm on the same day and found a contusion on her body. Ex.P3 is the Accident Register extract issued by her stating the injury as simple. https://hcservices.ecourts.gov.in/hcservices/ 12. P.W.7-Dr.Mathiyalagi examined P.W.3-Neelan at 10.15 pm on the same day in the hospital and found two contusions on his body. Ex.P4 is the Accident Register extract issued by her stating that the injuries are simple. 13. P.W.7-Dr.Mathiyalagi examined P.W.1-Dharman at 10.05 pm on the same day in the hospital and found two contusions and two abrasions on his body. Ex.P5 is the Accident Register extract issued by her stating the injuries as simple. 14. P.W.7-Dr.Mathiyalagi examined P.W.6-Srinivasan at 10 pm on the occurrence day in the hospital and found an elliptical wound on the left forearm and a contusion on the left shoulder. Ex.P6 is the Accident Register extract issued by her stating that the injuries are simple. 15. P.W.7-Dr.Mathiyalagi examined P.W.2-Umapathy at 3.15 am on 18.12.1997 in the hospital and found a contusion on his body. Ex.P9 is the Accident Register extract issued by her stating that the injury is simple in nature. 16. P.W.8-Dr.Annamalai conducted post-mortem on the body of Alli at 2 pm on 18.12.1997 and found the following. "Appearances found at the post-ortem. The body of a female aged about 50 years lying on its back at the Govt. Hospital, Thiruthani with H/o. Assault with iron rod on 17.12.97 evening. R.M present in both upper limbs and both lower limbs. Eyes closed, mouth closed. The head is on a pool of blood. EXTERNAL INJURY. Lacerated injury extending from the left side of forehead towards right parietal side, length 12 cm x 3 cm x scalp depth. Left eyelids swollen. Both eyes are normal. Opening the scalp underlying the injury frontal bone fractured in 4 pieces. a) Fracture originated from the orbital margin left side towards vertex 12 cm long. (b) 6 cm x 1/2 cm (c) 9 cm x 1/2 cm piece (d) 3 x 2 cm. b, c, d are grouped. Abrasion right knee 2 x 2 cms. INTERNAL EXAMINATION. Stomach normal. Opening contains 300 ml of partially digested food. Mucosa pale. Small intestines normal. C/s.Mucosa pale. Spleen normal. C/s.pale. Liver normal in situ. C/s.pale. Both kidneys intact. C/s.pale. https://hcservices.ecourts.gov.in/hcservices/ Thorax: Bony case normal. Pleura and pleural space normal. Lungs both normal c/s.pale. Heart: Pericardium and Myocardium normal. Myocardium pale. Chambers empty. Skull: Skull frontal bone fracture as above. Meninges torn below the fracture site with subdural haematoma of 200 ml blood collected. Brain matter C/s. Pale. Spine normal." Ex.P10 is the Post-mortem Certificate issued by him, in which, he has opined that the deceased would appear to have died due to injury to vital organ (Brain) Subdural haematoma and Haemorrhage. 17. P.W.9-Constable Radhakrishnan seized M.Os.10 to 12- clothes from the dead body and produced them. 18. P.W.15-Inspector Karunanithi arrested both the accused near Ponpadi Kasi Hotel at 4.30 pm on 19.12.1997 and accused No.1- Murali gave confession and he recorded the same in the presence of P.W.13-Ragupathi and Nagabhushanam and Ex.P25 is admissible portion of the same. Accused No.1-Murali took and produced M.O.1-Iron Rod from the bush on the northern side adjoining the road in Alamelumangapuram village and he seized the same in the presence of above witnesses under Ex.P27-mahazar. He sent both the accused to judicial remand. 19. P.W.15-Inspector Karunanithi sent Ex.P28- requisition to the Court to send the Material Objects for chemical examination and they were sent by Ex.P29-letter of the Court. He examined P.Ws.7, 8, 11 and 12 and recorded their statements. Exs.P30 and P31 are Chemical Analyst report and Serologist report respectively. On completing the investigation, P.W.15-Inspector Karunanithi filed final report against the accused on 27.1.1998. 20. Both the accused were examined under Section 313 Cr.P.C and they denied complicity. No witnesses were examined on their side. 21. The learned Additional Sessions Judge found accused No.1-Murali guilty of some of the charges and sentenced him, the details of which are mentioned earlier. Challenging the conviction and sentence, accused No.1-Murali has preferred the appeal. 22. The learned counsel for the appellants submitted that all the prosecution witnesses are relatives of the deceased and even according to them, 50 to 100 people gathered at the time of occurrence and still no independent witness was examined by the prosecution and the investigation is tainted one. The counsel https://hcservices.ecourts.gov.in/hcservices/ further contended that the injured witnesses while examined by the Doctor in the hospital have stated that they were attacked by different weapons by known persons during the occurrence and whereas iron rod alone is recovered as the weapon of offence and the medical evidence is at variance with the ocular evidence and it is doubtful as to whether the occurrence took place in the manner as spoken to by the witnesses and one Elumalai who is said to have been injured during the occurrence, has not been examined by the prosecution and no explanation is offered for his non- examination and there was no enmity between the accused and the deceased and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and hence the conviction and sentence are liable to be set aside. In support of his submission, the learned counsel for the appellant relies on a decision of the Apex Court in STATE OF PUNJAB v. SUCHA SINGH AND OTHERS (2003 CRL. L.J. 1210)(SC) and a decision of a Division Bench of this Court in NATARAJAN v. THE STATE, REPRESENTED BY THE INSPECTOR OF POLICE, SALEM STEEL PLANT (2008 (I) C.L.T. 861). 23. Per contra, the learned Government Advocate (Crl. Side) submitted that the prosecution has examined eight witnesses as having witnessed the occurrence and six of them were injured during the occurrence and they have narrated the manner in which they sustained injuries caused by the accused at the time of occurrence and the medical evidence is not at variance with the ocular testimony and it only corroborates their version and the conviction and sentence imposed by the Trial Court are sustainable. 24. The prosecution case is that accused No.1-Murali hit Alli on her head with M.O.1-iron rod during the occurrence resulting in her death and he also attacked the other prosecution witnesses resulting in injuries. P.W.1-Dharman is the husband of the deceased Alli and P.W.5-Veerasamy is his brother. P.W.2- Umapathy and P.W.6-Srinivasan are the sons of P.W.5-Veerasamy. According to P.W.1-Dharman, twenty days prior to the occurrence, the cattle belonging to Shoba, daughter of accused No.2-Chinnayan graced in the field of P.W.2-Umapathy and he scolded Shoba and she informed the same in her house and both the accused beat P.W.2- Umapathy and a compromise was reached in the panchayat. P.W.1- Dharman has further stated that on the day of occurrence at 6 pm, when he came to his house, he saw both the accused beating his sister's son-in-law Elumalai with hands in front of the house and P.W.2-Umapathy intervened and accused No.2-Chinnayan beat him on his face and chest and accused No.1-Murali threatened to kill him by hitting with M.O.1-iron rod and when P.W.3-Neelan questioned the beating of the accused, the accused No.1-Murali beat him with iron rod and on hearing the same, his wife P.W.4-Pappammal rushed out of the bathroom by wrapping the clothes https://hcservices.ecourts.gov.in/hcservices/ and when questioned, accused No.1-Murali removed her clothes and beat her and P.W.5-Veerasamy questioned the conduct of the accused and accused No.1-Murali hit him with iron rod on his left hand resulting in fracture of bone and his son P.W.6- Srinivasan intervened and accused No.1-Murali beat him with iron rod on his left wrist and at that time, Alli intervened and questioned the conduct of the accused and accused No.1-Murali hit Alli on the head with M.O.1-iron rod and she fell unconscious and her husband P.W.1-Dharman tried to lift Alli and accused No.1- Murali hit him with M.O.1-iron rod on both the knees and P.W.11- Govindan and P.W.12-Subramani witnessed the occurrence and people gathered and both the accused ran away from the scene and P.W.1- Dharman took Alli to Government Hospital, Tiruttani where she was pronounced already dead and he went to Tiruttani Police Station and gave an oral complaint which was reduced into writing as Ex.P1. 25. P.W.2-Umapathy, P.W.3-Neelan, P.W.4-Pappammal, P.W.5-Veerasamy and P.W.6-Subramani have sustained injuries at the hands of the accused during the occurrence and they have narrated the entire occurrence. P.W.11-Govindan and P.W.12-Subramani have also testified about the occurrence. No doubt it is true that the above witnesses are related to the deceased. The law is well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible and the Supreme Court has reiterated the same in recent decisions. (STATE OF U.P. v. KISHANPAL & ORS. (2008 (11) SCALE 233). Moreover, in this case, all are injured witnesses. 26. The occurrence took place at about 6 pm in front of P.W.1-Dharman's house and both the accused went on a attacking spree hitting persons one after another resulting in injuries. After the hit by M.O.1-iron rod on the head, inflicted by accused No.1-Murali, Alli fell down unconscious and on being taken to Government Hospital, Tiruttani she was pronounced already dead. P.W.8-Dr.Annamalai conducted post-mortem on the body of Alli and according to him, there was a lacerated injury extending from the left side forehead towards right parietal side and on opening the scalp, underlying the injury, he found frontal bone fractured in four pieces with subdural haematoma of 200 ml blood collected. He opined in Ex.P10-Post-mortem certificate that the deceased would appear to have died of injury to vital organ (Brain) Subdural haematoma and Haemorrhage. He has also stated that the above injury could have happened by a hit with M.O.1-iron rod on the head. Accepting his testimony, it can be concluded that Alli died of head injury sustained during the occurrence. 27. Immediately after the occurrence, on the same night, the injured witnesses had gone for treatment to Government General https://hcservices.ecourts.gov.in/hcservices/ Hospital, Tiruttani and at that time, they have informed about the assault made on them by the accused to P.W.7-Dr.Mathiyalagi and in this context, it has to be borne in mind that they are rustic witnesses and in agitated mind they have stated in their own way as to how they sustained the injuries by the weapons. Merely based on the description of the weapons stated by them, it cannot be concluded that they have not sustained the injuries as spoken to by them. Moreover, the medical evidence also corroborates their ocular testimony. 28. P.W.7-Dr.Mathiyalagi has examined P.W.5-Veerasamy at 9 pm on the occurrence day in Tiruttani Government Hospital and found three contusions on his body and after taking X-ray, she noticed fracture of left ulna and radius lower 1/3 and has expressed opinion that injury No.1 is grievous in nature and has given Ex.P2-Accident Register extract. During oral testimony, she has stated that the injuries found on P.W.5-Veerasamy could have occurred due to hit by iron rod. P.W.7-Dr.Mathiyalagi has examined P.W.4-Pappammal at 10.20 pm on the occurrence day in the hospital and found a contusion on her right back and she has opined it as a simple injury in Ex.P3-Accident Register extract and during testimony, P.W.7-Dr.Mathiyalagi has stated that the above injury could have occurred due to beating by hands. P.W.7-Dr.Mathiyalagi has examined P.W.1-Dharman at 10.05 pm on the occurrence day in the hospital and found two contusions and two abrasions in both the knees and she has opined that the injuries are simple in nature in Ex.P5-Accident Register extract. P.W.7-Dr.Mathiyalagi has examined P.W.6-Srinivasan at 10 pm on the occurrence day in the hospital and has found an elliptical wound on the left forearm and a contusion on the left shoulder and she has opined that the injuries are simple in nature in Ex.P6-Accident Register extract. P.W.7-Dr.Mathiyalagi has examined P.W.2-Umapathy at 3.15 am on 18.12.1997 in the hospital and found a contusion on his left shoulder and has opined that it is a simple injury in Ex.P9-Accident Register extract. Thus, there is no variance between the medical evidence and ocular testimony with regard to the injuries on the witnesses and the contention of the learned counsel for the appellant is devoid of merit. 29. Another contention was raised by the learned counsel for the appellant that there was a dispute with regard to burial ground between the family of P.W.2-Umapathy and villagers and there was altercation and melee between them prior to the occurrence. Except a suggestion to P.W.2-Umapathy, there is no other evidence in this regard. P.W.2-Umapathy, in his cross- examination, has categorically stated that the body of Gopal was attempted to be buried in the land owned by his father and they objected to it and that took place prior to the occurrence and that has nothing to do with the present occurrence. In view of https://hcservices.ecourts.gov.in/hcservices/ the above, the contention of the learned counsel for the appellant is liable to be rejected. 30. M.O.1-iron rod was recovered pursuant to the information given by accused No.1-Murali. According to P.W.15-Inspector Karunanithi, he arrested both the accused near Ponpadi Kasi Hotel and accused No.1-Murali gave a confession statement containing Ex.P25-admissible portion and he recorded the same in the presence of witnesses and accused No.1-Murali took him and the witnesses to Alamelumangapuram and took and produced M.O.1-iron rod from the bush on the northern side adjoining the road and he seized the same under Ex.P27-mahazar in the presence of witnesses. P.W.13-Ragupathi is one of the witnesses for the confession and recovery and he has stated in his chief- examination that accused No.1-Murali gave the confession containing the admissible portion in their presence and also took them to the place and took and produced M.O.1-iron rod from the bush on the northern side adjoining the road and they put their signatures in the mahazar. 31. P.Ws.1 to 6 have witnessed the occurrence and they also sustained the injuries at the hands of the accused during the occurrence and their testimony are cogent, credible and trustworthy. The Trial Court has elaborately considered the oral and documentary evidence and has rightly concluded that accused No.1-Murali is guilty of the offence under Section 304(ii) IPC insofar as the death of Alli is concerned and also guilty of the other charges as referred above. In the facts and circumstances of the case, the sentence imposed on accused No.1-Murali for the convicted offences, is also proper. There are no merits in the appeal. 32. In the result - (i) The appeal abates insofar as Accused No.2/Second appellant is concerned. (ii) The appeal is dismissed insofar as the accused No.1-Murali is concerned. It is reported that the accused No.1-Murali is on bail. The Additional Sessions Judge shall take steps to secure and commit him to undergo the remaining period of sentence. Vks Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Copy to: 1. The Additional Sessions Judge, Fast Track Court, Kancheepuram. 2. -Do- through the Principal Sessions Judge, Chengalpattu. 3.The Judicial Magistrate No.II, Tiruttani. 4. -Do- through the Chief Judicial Magistrate, Tiruvallur. 5.The Inspector of Police, Tiruttani Police Station, Tiruttani. 6. The Superintendent, Central Prison, Vellore. 7. The Public Prosecutor, High Court, Madras-104. Copy to:- The Section Officer, Criminal Section, High Court, Madras. + 2 ccs to Mr. J. I. Rajkumar Roberts, Advocate SR No. 62652 VS(CO) SR/14.11.2008 Criminal Appeal No.208 of 2002. https://hcservices.ecourts.gov.in/hcservices/