IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.10.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MRS. JUSTICE M.JEYAPAUL Crl.A.No. 333 of 2009 Madhan @ Senthil Kumar .. Appellant/Accused Vs. State by the Inspector of Police, Ariyankuppam Police Station Ariyankuppam Puducherry State. .. Respondent/Complainant (Crime No.230/2006) Prayer : Appeal against the Judgment, dated 17.12.2008, passed in S.C.No. 38 of 2007 on the file of III Additional Sessions Judge Puducherry. For Appellant :: Mr. B. Rajamani For Respondent :: Mr. M.R.Thangavel, Govt. Advocate (Puducherry) J U D G M E N T (The Judgment of the Court was made by M. JEYAPAUL, J.) Appellant Madhan @ Senthil Kumar is the sole accused in Sessions Case No. 38 of 2007 on the file of III Additional Sessions Judge, Puducherry, and he has preferred this appeal challenging the conviction and sentence imposed on him by judgment dated 17.12.2008 in the case. 2. The learned Additional Sessions Judge found the accused guilty of the charge under Section 302 IPC and convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.1,000/- , in default, to undergo one year Simple Imprisonment consecutively. https://hcservices.ecourts.gov.in/hcservices/ 3. On the side of the prosecution, as many as 15 witnesses were examined and 21 documents and 11 material objects were marked. 4. The sum and substance of the case of the prosecution, as unfolded by the witnesses, reads as follows:- P.W.4 Anjana is the daughter and P.W.5 Angalamman is the wife of the deceased Kathavarayan. The deceased Kathavarayan was living along with his family members in Veerampattinam. The accused Madhan @ Senthil Kumar was a neighbour in the village. As P.W.4 Anjana, daughter of the deceased Kathavarayan, was afflicted with chikungunya. She was not in a position to walk properly. On 13.12.2006, at about 1.00 p.m., she went to the field of his father Kathavarayan to take a bath. When she was taking a bath, the accused Madhan @ Senthil Kumar made a hole in the thatched fence and he peeped through the hole. P.W.4 Anjana having noticed it, informed the mother of the accused that the accused clandestinely witnessed the bath taken by her. The deceased Kathavarayan, who was apprised of this incident, informed P.W.4 Anjana that the accused was like her brother and therefore, she need not make it a big issue. P.W.5 Angalamman, mother of P.W.4 Anjana, asked the accused why he had chosen to invade the privacy of her daughter. The accused tried to beat P.W.5 Angalamman. He also proclaimed to do away with the life of entire family members of Kathavarayan. P.W.6 Seran and P.W.7 Ganesan were working as cashiers in the arrack shop located at Veerampattinam.On 13.12.2006, at about 5.00 or 5.30 p.m., Kathavarayan came to the said arrack shop and was taking liquor. P.W.2 Arumugam was also taking liquor by the side of Kathavarayan. P.W.1 Viji @ Mahatma Gandhi was also present at the said arrack shop. The accused came to the arrack shop at that point of time, took out a soda bottle from the arrack shop, broke the same by hitting it on the head of Kathavarayan and stabbed him with the broken soda bottle on his back and neck. He took out two other bottles and having broken them, attacked Kathavarayan again asking about the whereabouts of his son. P.W.6 Seran and P.W.7 Ganesan, employees of the arrack shop, also witnessed the occurrence along with P.W.1 Viji @ Mahatma Gandhi and P.W.2 Arumugam. The accused having attacked Kathavarayan, sped away from the scene of occurrence. Kathavarayan having sustained injuries, collapsed in the arrack shop itself. P.W.2 Arumugam took the injured Kathavarayan to Government General Hospital, Puducherry. P.W.9 Dr. Srikanth declared that Kathavarayan was 'brought dead' to the casuality at about 6.20 p.m. https://hcservices.ecourts.gov.in/hcservices/ on 13.12.2006. However, he noted down the following incised wounds on Kathavarayan. "(1) 5 x 2 cm incised wound on chest over the lateral side, (2) 2 x 1 cm incised wound right infra scapular area, (3) 2 x 1 cm incised wound right upper scapular area, and (4) 2 x 1 cm over 11th and 12th ribs." P.W.9 Dr. Srikanth issued Ex.P7 Accident Register. He sent a copy of the Accident Register containing information as to the death of Kathavarayan to the police. P.W.1 Viji @ Mahatma Gandhi proceeded to Ariyankuppam Police Station at about 7.00 p.m. on 13.12.2006 and gave oral statement to P.W.14 Sub Inspector N.Arumugam. P.W.14 Sub Inspector N.Arumugam having recorded Ex.P1 Statement, registered a case in Crime No.230/06 under Section 302 IPC. He prepared Ex.P17 First Information Report and despatched the original to the learned Judicial Magistrate concerned and the copies thereof to the higher officials. P.W.15 Inspector Ranganathan having received a copy of the First Information Report at 8.05 a.m. on 13.12.2006, reached the scene of occurrence. He inspected the scene of occurrence and prepared Ex.P2 Observation Mahazar in the presence of P.W.3 Baskaran and another witness. He also prepared Ex.P18 Rough sketch which contains crime particulars. At 9.30 p.m, on the very same day, he seized M.O.1-series broken soda bottle pieces, M.O.2-series soda bottle particles, M.O.3 Blood stained earth and M.O.4 Sample earth under Ex.P3 Seizure Mahazar in the presence of P.W.3 Baskaran and another witness. P.W.9 Dr. Srikanth also gave treatment to P.W.2 Arumugam. He found laceration on his leg meauring 2 x 0.2 cm. P.W.2 Arumugam informed P.W.9 Dr. Srikanth that he sustained injuries on his leg by the scattered glass pieces when the occurrence took place in the arrack shop. Ex.P8 is the Wound Certificate issued by P.W.9 Dr. Srikanth. P.W.15 Inspector Ranganathan examined P.W.1 Viji @ Mahatma Gandhi, P.W.2 Arumugam and P.W.3 Baskaran and recorded their statements. He sent Ex.P19-series summons to the witnesses and panchayatars directing them to be present in the mortuary of Government General Hospital, Puducherry, on 14.12.2006. At about https://hcservices.ecourts.gov.in/hcservices/ 3.00 a.m. on 14.12.2006, P.W.15 Inspector Ranganathan arrested the accused Madhan @ Senthil Kumar from Veerampattinam funeral ground and brought him to the Police Station. In the presence of P.W.8 V.A.O. Senthilkumar and another witness by name Mannangatty, the accused gave confession statement containing Ex.P4 Admissible portion. M.O.6 Blood stained Pants and M.O.7 Blood stained Shirt were seized under Ex.P6 Seizure Mahazar. On the basis of Ex.P4 Admissible portion in the confession statement given by the accused, M.O.5 broken soda bottle was recovered under Ex.P5 Mahazar in the presence of the aforesaid witnesses. He proceeded to Government General Hospital, Puducherry, and held inquest in the presence of panchayatars and witnesses and prepared Ex.P20 Inquest Report. He examined witnesses and recorded their statements. P.W.10 Dr. R.Balaraman received the requisition from P.W.15 Inspector Ranganathan to conduct the post-mortem examination on the dead body of Kathavarayan. He commenced the post-mortem examination at 1.35 p.m. and concluded the same at 2.30 p.m. on 14.2.2006. He found the following external injuries and the corresponding internal injuries on the dead body of Kathavarayan - "EXTERNAL INJURIES: 1. Obliquely placed irregular penetrating wound 7 x 2 cm present on left side of chest entering on thoracic cavity. 2. Irregular incised wounds 3 x 1 x 0.5 cm & 3 x 1 x 0.5 cm present over back of chest right side. 3. Irregular incised wound 2 x 1 x 0.5 cm over right side of the chest. 4. Irregular incised wound 2 x 0.5 x 0.5 cm, 2 x 0.5 x 0.5 cm and 1 x 0.5 x 0.5 cm over the back of left forearm. 5. Irregular incised wound 1 x 0.5 x 0.5 cm over right little finger. On internal examination: It was contusion over occipital region of scalp. Skull found normal, Brain was found pale. On dissection of injury No.1 the wound has fractured 3rd to 5th rib with fluid blood with pleural cavity. Lungs were pale, left lung showed cut injury 3 x 1 x 1 cm on the left upper lobe. Stomach contained brownish fluid about 200 ml with the smell of arrack. The other organs were pale. Viscera was sent to chemical analysis and it contained 0.028% alcohol." https://hcservices.ecourts.gov.in/hcservices/ He opined in Ex.P10 Post-mortem certificate that Kathavarayan died due to shock and haemorrhage on account of the injury he sustained in the chest about 12 – 24 hrs prior to the post-mortem examination. M.O.9 Blood stained shirt, M.O.10 Blood stained Dhoti and M.O.11 Blood stained Trousers were seized from the dead body of Kathavarayan after post-mortem examination was over, for the purpose of investigation in this case by P.W.15 Inspector Ranganathan, under Ex.P14. On 14.12.2006, when P.W.9 Dr. Srikanth was on duty as a Casuality Medical Officer, he received Police Memo along with the accused Madhan @ Senthil Kumar for giving treatment to him. It was reported to him by the accused that he sustained self-inflicted injuries. He found an incised wound measuring 2 x 0.3 cm with no active bleeding on the left forearm. Another incised wound over the very same situs of injury measuring 1 x 0.2 cm. In Ex.P9 Wound Certificate issued to the accused, he opined that the injuries sustained by the accused were simple in nature. The accused was remanded to judicial custody. The Material Objects also were sent to the custody of the Court. On the basis of the requisition emanated from P.W.15 Inspector Ranganathan, the material objects, sent for examination, were examined by the Central Forensic Science Laboratory. The Report issued by Scientific Officer, Biology Division, CFSL, Hyderabad, was marked as Ex.P21. P.W.11 Kannan is the Police Photographer who took photographs of the scene of occurrence and the dead body of Kathavarayan and those photographs were marked as Ex.P15-series and Ex.P16-series respectively. P.W.15 Inspector Ranganathan having examined all the witnesses in the case, completed the investigation and filed the Final Report as against the accused. 5. The incriminating circumstances spoken to by the witnesses examined on the side of the prosecution were put to the accused. Responding to the questionnaire under Section 313 CrPC, the accused came out with total denial of the incriminating circumstances deposed to by the witnesses. Neither oral nor documentary evidence was let in on the side of defence. 6. The trial Court having relied upon the ocular testimonies of P.W.1 Viji @ Mahatma Gandhi, P.W.2 Arumugam, P.W.6 https://hcservices.ecourts.gov.in/hcservices/ Seran and P.W.7 Ganesan and the evidence of P.W.4 Anjana and P.W.5 Angalamman, who speak about the motive part of the case of the prosecution, chose to convict the accused for offence under Section 302 IPC. 7. That on 13.12.2006 at about 5.15 p.m., the accused attacked Kathavarayan in the arrack shop at Veerampattinam with broken soda bottle due to previous enmity and caused the death of Kathavarayan and thereby he committed the offence punishable under Section 302 IPC, is the case of the prosecution. 8. Let us first take up the evidence of P.W.10 Dr. R.Balaraman to analyse whether the death was due to homicidal violence. P.W.9 Dr. Srikanth, Casuality Medical Officer, attached to Government General Hospital, Puducherry, had received Kathavarayan with bleeding injuries. He has found as many as four incised wounds on the chest, right infra scapular area, upper scapular area and over 11th and 12th ribs of Kathavarayan. It is found that it was he who certified that Kathavarayan was 'brought dead' in Ex.P7 copy of the Accident Register issued by him. P.W.10 Dr. R.Balaraman, Head of Department, Forensic Medicine, Government General Hospital, Puducherry, conducted post-mortem examination on the dead body of Kathavarayan. He has found one irregular penetrating wound on the left side chest and four other incised wounds on back side of the chest, right side of the chest, back side of the left fore-arm and right little finger. In his deposition he has stated that the external injury No.1, namely, irregular penetrating wound measuring 7 x 2 cm found on the left side of the chest entering the thoracic cavity, corresponded to the internal injury found on dissection. It is his opinion that the aforesaid injury would have caused instantaneous death. In view of the above unassailable medical evidence found on record, we come to a finding that Kathavarayan had died on account of homicidal violence. 9. Here is a case where the prosecution has come out with as many as four ocular witnesses to the occurrence to establish its case. P.W.1 Viji @ Mahatma Gandhi has deposed before the Court that at about 5.30 p.m. on 13.12.2006 when he proceeded to Veerampattinam arrack shop, he found P.W.2 Arumugam chatting with some other person in the said shop. Kathavarayan also was taking liquor in the very same shop. At that point of time, the accused Madhan @ Senthil Kumar having taken a soda bottle, broke it by hitting the same on the head of Kathavarayan and stabbed him on his back and neck. He took out two other bottles and having broken them, attacked Kathavarayan again asking the whereabouts of his son. Thereafter, the injured Kathavarayan collapsed. https://hcservices.ecourts.gov.in/hcservices/ 10. P.W.2 Arumugam having materially corroborated the version of P.W.1 Viji @ Mahatma Gandhi, would speak to the fact that when he was taking liquor in the arrack shop at Veerampattinam, the accused having hit Kathavarayan on his head with soda bottle, stabbed him on his scapular region. It was he who took the injured Kathavarayan to Government General Hospital, Puducherry for treatment. These two witnesses hail from the very same village. There is no reason to speak ill of the accused by P.W.1 Viji @ Mahatma Gandhi and P.W.2 Arumugam. Further it is found that P.W.2 Arumugam also sustained injury in the occurrence. It is his version that when the accused hit the soda bottle on the head of the deceased, the broken particles caused injury to his left leg. The injury sustained by P.W.2 Arumugam was spoken to by P.W.9 Dr. Srikanth who gave treatment to him for such injury and issued Ex.P8 Wound Certificate. The presence of the injured witness at the scene of occurrence cannot at all be doubted. 11. P.W.6 Seran and P.W.7 Ganesan had served in the very same arrack shop as cashiers. P.W.6 Seran has deposed that the accused having enquired the whereabouts of the son of Kathavarayan, attacked him on his head with soda bottle. Thereafter, he went away from the shop and returned after ten minutes to find Kathavarayan lying dead. P.W.7 Ganesan has categorically deposed that the accused retrieved two bottles from the shop, attacked Kathavarayan on his head and thereafter, having retrieved yet another two bottles, stabbed him on his scapular region and back side. 12. It is on record that P.W.6 Seran and P.W.7 Ganesan served as cashiers in the arrack shop at the time of occurrence. Their presence is found to be quite natural. Therefore, there is no reason to disbelieve the ocular testimonies of P.W.6 Seran and P.W.7 Ganesan, which materially lend corroboration to the evidence of P.W.1 Viji @ Mahatma Gandhi and P.W.2 Arumugam. 13. Coming to the motive part of the case of the prosecution, P.W.4 Anjana, the very daughter of the deceased Kathavarayan, has deposed that when she was taking a bath in the field of Kathavarayan, the accused made a hole in the thatched fence and peeped through it. She immediately informed the said occurrence to the mother of the accused. P.W.5 Angalamman, mother of P.W.4 Anjana, has spoken to the fact that immediately on coming to know about the mischievous act of the accused from the mouth of P.W.4 Anjana, she enquired about it with the accused, who attempted to attack her. He also proclaimed to do away with the life of entire family members of Kathavarayan. P.W.4 Anjana and P.W.5 Angalamman, the prosecution witnesses, have convincingly spoken to the motive harboured by the accused to attack Kathavarayan, who was one of the https://hcservices.ecourts.gov.in/hcservices/ family members, in the evening. There is no reason to disbelieve the evidence of P.W.4 Anjana and P.W.5 Angalamman, which is found to be quite natural. 14. P.W.10 Dr. R.Balaraman, who conducted the post- mortem examination on the dead body of Kathavarayan, has found as many as four incised wounds and one penetrating wound. The injuries caused by the accused on the person of Kathavarayan spoken to by the ocular witnesses are found to have been materially corroborated by the medical evidence. 15. The learned counsel appearing for the appellant would submit that there is a material variation in the ocular account spoken to by P.W.1 Viji @ Mahatma Gandhi from that of Ex.P1 Complaint given by him. The learned Government Advocate (Puducherry) would argue that there is no material variation between Ex.P1 Complaint and the evidence of P.W.1 Viji @ Mahatma Gandhi. Referring to Ex.P1 Complaint, we find that there is no reference as to the enquiry made by the accused regarding the whereabouts of the son of the deceased Kathavarayan at the time of launching the attack. But, in the evidence of P.W.1 Viji @ Mahatma Gandhi, P.W.2 Arumugam, P.W.6 Seran and P.W.7 Ganesan they have stated that an enqury was made by the accused as to the whereabouts of the son of the deceased Kathavarayan at the time of occurrence. Ex.P1 Complaint is not an encyclopaedia which should contain all the particulars. The omission as to the enquiry made by the accused about the son of the deceased Kathavarayan in Ex.P1 Complaint is found not so material to affect the case of the prosecution. Our decision is fortified by the evidence of P.W.4 Anjana and P.W.5 Angalamman, who have cogently spoken to the motive harboured by the accused to do away with the life of entire family members of Kathavarayan due to an obnoxious occurrence which took place at 1.00 a.m. on the very same day. At any rate, we are not inclined to reject the ocular testimonies of P.W.1 Viji @ Mahatma Gandhi, P.W.2 Arumugam P.W.6 Seran and P.W.7 Ganesan as there is a slight variation from that of Ex.P1 Complaint lodged by P.W.1 Viji @ Mahatma Gandhi. 16. The learned counsel appearing for the appellant would submit that P.W.1 Viji @ Mahatma Gandhi is not the author of Ex.P1 Complaint. In all probabilities, the case would have been registered based on Ex.P7 Death intimation issued by P.W.9 Dr. Srikanth. The learned Government Advocate (Puducherry) would submit that the death intimation reached the portals of Police Station only on 14.12.2006, whereas the case was registered by P.W.14 Sub Inspector N.Arumugam at about 7.00 p.m. on 13.12.2006 itself. https://hcservices.ecourts.gov.in/hcservices/ 17. As rightly pointed by the learned Government Advocate (Puducherry), P.W.15 Inspector Ranganathan has categorically deposed that he did receive Ex.P7 Death Intimation only on 14.12.2006 and not on 13.12.2006. In view of the above, there would have been no occasion for P.W.14 Sub Inspector N.Arumugam to register a case based on any intimation from the hospital. 18. The learned counsel appearing for the appellant drawing the attention of this Court to the evidence of P.W.1 Viji @ Mahatma Gandhi would submit that P.W.1 Viji @ Mahatma Gandhi has categorically deposed before the Court that he gave Ex.P1 Complaint only from the hospital. P.W.14 Sub Inspector N.Arumugam has deposed that P.W.1 Viji @ Mahatma Gandhi came down to Police Station at about 7.00 p.m. on the very same day of occurrence and gave statement, which was reduced into writing and a case was thereafter registered. On scrutinising the evidence of P.W.1 Viji @ Mahatma Gandhi, we find that first he has stated that Ex.P1 Complaint was given at the Police Station. But the evidence with respect to the aforesaid averment was struck off and thereafter it was recorded as though he gave Ex.P1 Complaint in the hospital. If at all P.W.1 Viji @ Mahatma Gandhi had sustained injury and had been hospitalised, there is some scope for P.W.1 Viji @ Mahatma Gandhi to give statement at the hospital. The inadvertent reference made by P.W.1 Viji @ Mahatma Gandhi as though he gave the statement at the hospital when the other material evidence would unerringly indicate that Ex.P1 Complaint was given by P.W.1 Viji @ Mahatma Gandhi only in the Police Station and not at the hospital, in the face of telling ocular evidence available on record, does not go to tilt the case of the prosecution. 19. The learned counsel appearing for the appellant would submit that P.W.11 Photographer Kannan has come out with a revelation that the occurrence took place not at Veerampattinam but at Chinna Veerampattinam. Therefore, the place of occurrence has been completely shifted by the investigating agency, he would submit. Referring to the other materials available on record, the learned Government Advocate (Puducherry) would submit that the prosecution has come out with a consistent version that the occurrence took place at Veerampattinam and not at Chinna Veerampattinam. 20. At this juncture, it is very much relevant to refer to Ex.P2 Observation Mahazar prepared by P.W.15 Inspector Ranganathan. With respect to the occurrence proper, he has described in the Observation Mahazar that the occurrence place, namely, A3 Arrack shop owned by Gopalsamy Naicker, is located on the south of the Main Road leading to Veerampattinam and on the east of the road leading to Chinna Veerampattinam. All the witnesses hailing from Veerampattinam have spoken to the fact that the occurrence place, namely A3 Arrack https://hcservices.ecourts.gov.in/hcservices/ shop, is located at Veerampattinam. But, P.W.1 Viji @ Mahatma Gandhi, a stranger to the scene of occurrence, having come down to the scene of occurrence to perform his duty as a photographer would state that the occurrence place is only Chinna Veerampattinam. At any rate the description found in the Observation Mahazar also does not materially contradict either the evidence of the ocular witnesses or the evidence of P.W.11 Photographer Kannan in the case. In a way, the evidence of both the witnesses to the effect that the occurrence took place in the arrack shop at Veerampattinam and the occurrence took place in the arrack shop at Chinna Veerampattinam, is correct as the arrack shop is located in between Chinna Veerampattinam and Veerampattinam. The minor discrepancy, if any, in the evidence of P.W.11 Photographer Kannan does not cut the root of the case of the prosecution. 21. The learned counsel appearing for the appellant would rightly submit that P.W.3 Baskaran was not at all an ocular witness to the occurrence. But, he has come out with a version that he actually witnessed the occurrence. The learned Government Advocate (Puducherry) would also submit that P.W.3 Baskaran was not at all an ocular witness. He was a witness to the preparation of Mahazar and seizure of the Material Objects at the scene of occurrence. It is true that P.W.3 Baskaran has deposed before the Court as against the statement given by him under Section 161 CrPC before the investigating Official as though he actually witnessed the occurrence. The fact remains that he was cited as a witness only to speak about the preparation of Mahazar and the seizure of the Material Objects from the scene of occurrence. The ocular version spoken to by P.W.3 Baskaran, as rightly pointed out by the learned counsel appearing for the appellant, cannot at all be relied upon by the Court. At any rate, we find that there is voluminous evidence to speak about the motive part of the case of the prosecution and the occurrence wherein the deceased was done to death. 22. The learned counsel appearing for the appellant would submit that P.W.1 Viji @ Mahatma Gandhi has given an indication that the accused at the time of occurrence disclosed that he had been tied by the deceased. It is found that except the aforesaid stray reference made by P.W.1 Viji @ Mahatma Gandhi, none of the witnesses has spoken to the fact that the accused was tied for his misconduct by someone prior to the occurrence. Ex.P1 Complaint also is quite silent about such an incident. Therefore, much credence cannot be given to the aforesaid stray reference made by P.W.1 Viji @ Mahatma Gandhi for the first time before the Court. 23. It is true that the accused was found with