IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:9.9.2009 CORAM: THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL Criminal Appeal No.28 of 2009 Balusamy .. Appellant/Accused Vs. State, by Inspector of Police, Moolanur Police Station Dharapuram Taluk. (Crime No.22/2008) .. Respondent/Complainant Prayer : Appeal against the Judgment, dated 12.12.2008, passed in S.C.No.173 of 2008 on the file of Additional District and Sessions Judge, Fast Track Court No.III, Dharapuram. For Appellant :: Mr.A.K.Kumaraswamy For Respondent :: Mr. Hassan Mohamed Jinnah Addl. Public Prosecutor J U D G M E N T ( Judgment of the Court was delivered by M.JEYAPAUL, J.) The Sole Accused/Appellant Balusamy was convicted for offence under Section 341 of Indian Penal Code and was sentenced to undergo one month Simple Imprisonment, convicted for offence under Section 302 IPC and was sentenced to undergo Imprisonment for Life and to pay a fine of Rs.50,000/-, in default, to undergo Rigorous Imprisonment for three years and convicted for offence under Section 506(ii) (3 counts) and was sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.5,000/-, in default, to undergo Rigorous Imprisonment for six months for each count. Challenging the judgment of conviction and sentence passed by the Trial Court, the appellant/accused has preferred the present appeal. 2. On the side of the prosecution, twelve witnesses were examined and nineteen documents and seventeen material objects were https://hcservices.ecourts.gov.in/hcservices/ marked. Neither oral nor documentary evidence was let in on the side of defence. 3. The sum and substance of the prosecution case, as unfolded by the witnesses, reads as follows:- PW.1 Karunanidhi is the yonger brother of deceased Rajamanickam and PW.4 Sathyabama is the wife of Rajamanickam. PW.1 Karunanidhi, PW.2 Manivel, PW.3 Tmt.Govindarajamani, PW.4 Sathyabama and the accused Balusamy belong to Mulayampoondi village. The accused purchased a property along with poramboke land. There was a civil dispute between PW.2 Manivel and the accused. The accused put up a stage in the said property and organised a political party meeting, but the said stage disappeared on the next morning. Therefore the accused lodged complaint against the deceased Rajamanickam, P.W.2 Manivel and others. The villagers took a decision to demolish the old Vinayagar Temple but the same was objected to by the accused. A 'Tiruppani Committee' headed by the deceased Rajamanickam was constituted by the villagers and the temple was also constructed. The accused filed a suit as against the villagers represented by Rajamanickam. On 22.1.2008 at about 6.30 am, PW.1 Karunanidhi was proceeding to Mulayampoondi Milk society to supply milk collected by him. The deceased Rajamanickam, who is his elder brother, came behind him by a bi-cycle taking milk in a can for supplying the same to the very same society. The deceased Rajamanickam asked PW.1 Karunanidhi to board the cycle but PW.1 informed him that he would come by walk. Rajamanickam proceeded about 20 feet. The accused Balusamy, who was sitting on the parapet wall of the culvert bridge, attacked Rajamanickam and delivered cuts on him with MO.1 Aruval (Billhook) saying that he had misdirected the entire villagers as against him. Rajamanickam fell down from the cycle unable to bear the attack launched by the accused. Left wrist of Rajamanickam was severed in the attack. The accused did not spare Rajamanickam even after he fell down from his cycle. He attacked him all over his body with M.O.1 Aruval. Rajamanickam managed to rise up and run for a distance but the accused attacked him from behind and finally he delivered a cut on his right leg. PW.1 Karunanidhi witnessed the occurrence. PW.2 Manivel is residing about 400 ft. away from the scene of occurrence. He came out from his house and proceeded about 200 ft. towards the scene of occurrence. PW.3 Tmt.Govindarajamani also proceeded to the Milk Society at Mulayampoondi as her husband https://hcservices.ecourts.gov.in/hcservices/ was otherwise engaged. P.Ws.2 and 3 also witnessed the occurrence. All the three joined together and made a hue and cry, but the accused threatened them with dire consequences and sped away from the scene of occurrence towards his house. PW.4 Sathiyabama, wife of the deceased, arrived on receiving telephonic message from PW.1 Karunanidhi and Rajamanickam informed her that it was Balusamy who delivered cuts on him and appealed to her to save his life. Rajamanickam was taken to the hospital but on the way to the hospital, he died. PW.1 Karunanidhi proceeded to Moolanur Police Station along with PW.2 Manivel. With the assistance of PW.2 Manivel, PW.1 Karunanidhi prepared the Complaint-Ex.P1 and submitted to PW.12 Mr.Alagumalai, Inspector of Police, attached to Moolanur Police Station at 11 am on 22.1.2008. PW.12 having received the complaint, registered a case in Crime No.22/2008 under Sections 341, 302, 506(ii) IPC. He prepared the printed First Information Report-Ex.P15 and despatched the original to the learned Judicial Magistrate, Dharapuram and copies thereof to the higher officials concerned. On 22.1.2008 at about 12 noon, PW.12 Inspector Alagumalai rushed to the scene of occurrence at about 8.30 am. He inspected the scene of occurrence and prepared Observation mahazar-Ex.P6 in the presence of PW.8 Venkatesan, Village Administrative Officer and another. He also drew Rough Sketch-Ex.P16 reflecting the scene of occurrence. He engaged PW.7 Karthikeyan, Photographer to take photographs. MO.11 (series) are the Compact Discs containing the photographs. MO.12 (series) are the photographs. At about 1 pm on 22.1.2008, PW.12 Inspector Alagumalai seized MO.2 Blood stained Milk Posi, MO.3 a pair of Chappals, MO.4 Spectacles, MO.5 Blood stained Lungi, MO.6 Blood stained Banian, M.Os.7 to 9 Blood stained Lungis, MO.10 Bicycle, MO.13 Black stone, MO.14 Blood stained Tar portion, MO.15 Sample Tar portion under Ex.P7 mahazar in the presence of said witnesses. He examined PW.9 Palanisamy and other witnesses who were present there and recorded their statements. He proceeded to the Government Hospital, Dharapuram at about 2 pm on 22.1.2008 and conducted inquest on the dead body of Rajamanickam in the presence of witnesses and panchayatars and prepared Inquest Report-Ex.P17. He examined PW.1 Karunanidhi, PW.2 Manivel, PW.4 Sathiyabama and some other witnesses present over there and recorded their statements. On the basis of Requisition-Ex.P3 received from PW.12 Inspector Alagumalai through PW.11 Prabhakaran Mani, Head Constable, PW.5 Dr.Sathiaraj commenced post-mortem examination on the dead body of Rajamanickam at 4.50 pm on 22.1.2008 and found the following. https://hcservices.ecourts.gov.in/hcservices/ "External Injuries: 1. Abrasion 5 x 2 cm – Right side face, between Right Angle of mouth and Right Ear. 2. Cut Laceration 2 x 0.5 cm Right Lateral aspect of neck. 3. Lacerated Cut Injury – 6 x 2 cm x 4 cm depth, Right upper arm outer aspect. 4. Deep Lacerated cut injury 25 cm length – 10 cm depth exposing Bone, muscle, Tendons, Blood vessel Right extending from lower 1/3 of arm to proximal 2/3 of forearm. 5. Abrasion 6 x 0.5 cm Right upper hip. 6. Abrasion 6 x 0.5 cm Left upper chest. 7. Deep cut Lacerated injury – involving left mid arm to proximal 1/3 of forearm involving elbow, irregular margin, size 27 cm length exposing bone, muscle, blood vessel. 8. Left wrist – completely amputated at the level of wrist proximal hand with adjoining just with skin. Both cut ends exposing all Muscles, blood vessels. 9. Deep cut injury – 25 x 18 cm x 10 cm depth involving Right upper posterior thigh, exposing Blood vessels, muscle. 10. Lacerated injury 4 x 4 cm. Irregular margins Right lateral thigh, below the Injury 9. 11. Abrasion – 6 x 4 cm Right knee. 12. Abrasion 4 x 4 Left knee. 13. Cut Injury – involving left forefoot completely involving 2/3 of width, both cut ends exposed. 14. Lacerated Injury 6 x 4 cm x 4 cm Left upper back. 15. 6 x 5 cm Lacerated Injury left upper back. On Internal Examination 1. Hyoid Intact. 2. No Rib Fracture. 3. Right Lung – 540 gms pale. Left Lung – 500 pale. https://hcservices.ecourts.gov.in/hcservices/ 4. Heart 300 gms pale. 5. Stomach – 200 ml of clear fluid. 6. Intestine mild distention present. 7. Liver 1400 gms – pale. 8. Spleen – 110 gms – Shrunken pale. 9. Kidney – 150 gms each – pale. 10. Bladder – empty. 11. Skull - No Fracture. 12. Brain 1200 gms pale." He opined that the deceased would appear to have died of Hypovolemic Shock due to haemorrhage due to multiple injuries 8 to 12 hours prior to autopsy. On 24.1.2008 at about 5.30 am, PW.12 Inspector Alagumalai proceeded to Kasthuripalayam Bus Stop at Puduppai and arrested the accused Balusamy in the presence of PW.8 VAO Venkatesan and another witness by name Soundirarajan. On interrogation, the accused gave voluntarily a confession statement. On the basis of the admissible portion-Ex.P8, found in the confession statement of the accused, PW.12 went along with the witnesses to the field of the accused and recovered M.O.1-Blood stained Aruval from the bush near electric post in the field of the accused under Ex.P9 mahazar in the presence of same witnesses. He prepared a Rough Sketch-Ex.P18 reflecting the location from where the weapon MO.1 Aruval was recovered. He also seized a blood stained Lungi produced before him under Form 95-Ex.P19. PW.6 Dr.Karmegam examined the accused who was produced with Police memo and found the following injuries on his person. " 1) Abrasion 4 x 2 cm front of right knee. 2) Abrasion 5 x 6 cm Left knee. 3) Abrasion 2 cm dorsum of left foot with underlying swelling of 4 x 3 x 1 cm. Movements of left foot painful and range full. 4) Abrasion 2 x 2 cm anterior aspect of proximal left wrist. 5) Incised wound 1 cm length – obliquely placed, deep ends, proximally creating a proximal flap – on left thumb on index finger side. Size of wound 1 x 0.2 x 0.3 cm. 6) Abrasion 1 cm dorsum of distal Left fist." PW.6 Dr.Karmegam has recorded in the copy of the Accident Register-Ex.P5 that the accused Balusamy informed him that he sustained injuries due to fall while running with Billhook after a https://hcservices.ecourts.gov.in/hcservices/ quarrel with a known person near Alankattu Thottam on Puduppai– Saravanagounder Valasu tar road. The doctor opined that the injuries sustained by the accused were simple in nature. Thereafter the accused was sent for judicial remand and the Material Objects were also submitted to the Judicial Magistrate. PW.11 Prabhakaran Mani, Head Constable seized White colour shirt-MO.16 and Brown colour jatti-MO.17 from the dead body after the post-mortem examination was over and submitted the same to PW.12 Inspector Alagumalai under Special Report-Ex.P14. On the basis of the requisition-Ex.P10 submitted by PW.12 Inspector of Police, the learned Judicial Magistrate despatched the material objects for chemical examination under Ex.P11 covering letter. PW.10 Santhanagopalakrishnan, Head Clerk attached to the Judicial Magistrate Court, Dharapuram speaks about the receipt of Exs.P12 and P13 Chemical examiner reports. PW.12 Inspector Alagumalai, having completed the investigation, laid final report as against the accused on 27.2.2008 before the learned Judicial Magistrate. 4. The incriminating circumstances as spoken to by the witnesses examined on the side of prosecution were put to the accused in the form of questionnaire and the accused completely denied his role in the commission of murder of Rajamanickam. He filed written statement when he was questioned under Section 313 Cr.P.C and submitted that he filed a civil suit against P.W.2 Manivel in O.S.No.109/2002 on the file of District Munsif Court, Dharapuram and got a decree. PW.2 Manivel on his part filed a suit in the very same court in OS.No.208/2006 seeking for a declaration that the sale deed in the name of the accused was not valid, but the said suit was withdrawn by him on 25.8.2008. He also objected to the demolition of the old temple and constructing a new temple without the permission of the Government. He had not put up a stage for organising a political party meeting, but the stage put up was vanished and therefore a complaint was given against PW.2 Manivel and others. But PW.2 Manivel and others who were interrogated by the police were under the impression that it was only the accused who had lodged the complaint. The accused has further stated that he had no enmity with the deceased Rajamanickam, but the accused had enmity with PW.2 Manivel. PW.2 Manivel expressed his desire to wreak vengeance as against him. He had been to Palani Temple on 21.1.2008. He came down after 'Thaipoosam Festival' only on 22.1.2008. When he was in his house on 23.1.2008, PW.2 Manivel and others attacked him and entrusted him to the Police Station. The deceased Rajamanickam had https://hcservices.ecourts.gov.in/hcservices/ an illicit intimacy with the wife of Dhandapani. Therefore the villagers had a grouse as against Rajamanickam and they also filed a case as against Rajamanickam as he had taken away sand from Amaravathi River. The father of Rajamanickam was convicted in a case of murder. Therefore Rajamanickam had many enemies in the village. As the culprit was not known to anybody, a false case was foisted against the accused by PW.1 Karunanidhi at the instigation of PW.2 Manivel. He has also stated in his statement under Section 313 Cr.P.C that P.Ws.1 to 3 were not eye-witnesses. The accused did not choose to examine any witness or mark any document on his side. 5. The Trial Court, having heavily relied upon the ocular testimony of P.Ws.1 to 3 and the dying declaration alleged to have been given by the deceased Rajamanickam to his wife PW.4 Sathiyabama and the proclamation already made by the accused to do away with the life of Rajamanickam to PW.9 Palanisamy and in the background of medical evidence available on record, returned a verdict of conviction as against the appellant. 6. PW.1 Karunanidhi, the younger brother of deceased Rajamanickam, has deposed that the accused Balusamy having proclaimed that Rajamanickam was the root cause for the hostility showed by the entire villagers against him, attacked Rajamanickam with MO.1 Aruval having emerged from the parapet wall of the culvert bridge and cut him indiscriminately with it. The left hand wrist portion of Rajamanickam was completely severed in the attack launched by the accused. The accused did not leave Rajamanickam even after he fell down from the cycle. The deceased was attacked on the right side neck, right shoulder, right hand and right leg when he fell down. Even when the deceased was running to escape from the attack, the accused delivered a cut on the back side of the deceased with MO.1 Aruval. Thereafter the deceased fell down and the accused gave a final cut on his right side foot with it. 7. PW.1 Karunanidhi speaks about the presence of PW.2 Manivel and PW.3 Tmt.Govindarajamani at the scene of occurrence. It is his evidence that all the three made a hue and cry, but the accused did not mind it. After delivering cuts on the deceased, the accused threatened P.Ws.1 to 3 to do away with their life and thereafter he took to heels with the weapon MO.1 Aruval. 8. PW.2 Manivel is the friend of the deceased Rajamanickam. He has testified that his house is located about 400 ft. away from the scene of occurrence. Having come out of the house, he reached the tar road and was proceeding towards the western side. The deceased Rajamanickam was proceeding towards the eastern side by cycle. His younger brother PW.1 Karunanidhi was going by walk a few feet away from Rajamanickam. The brothers chatted for a few minutes. Thereafter the accused who came out from the parapet wall of the https://hcservices.ecourts.gov.in/hcservices/ culvert bridge, attacked Rajamanickam with MO.1 Aruval saying that Rajamanickam turned the ire of entire villagers against him. He also spoke about the indiscriminate cuts delivered by the accused on Rajamanickam with M.O.1 even after Rajamanickam fell down from the cycle. It is his evidence that P.Ws.1 and 3 along with him warned the accused Balusamy not to launch attack on Rajamanickam but despite that the accused delivered cuts on the deceased and sped away towards his house. 9. PW.3 Tmt.Govindarajamani is the agnate of both the accused Balusamy and deceased Rajamanickam. While she was proceeding at about 6.30 am on 22.1.2008 carrying milk for supplying to Milk Society at Mulayampoondi, she witnessed the accused having restrained the deceased Rajamanickam, attacked him with MO.1 Aruval all over his body. Even after Rajamanickam took to heels , unable to bear the attack launched by Balusamy, the accused attacked him with M.O.1. She also testifies that P.Ws.1, 2 and herself warned the accused not to launch attack as against Rajamanickam. 10. The learned counsel appearing for the appellant would submit that PW.1 Karunanidhi, being the younger brother of the deceased, is an interested witness and PW.2 Manivel being the friend of the deceased had got a strong enmity to implicate the accused in this case. Further, he would submit that there was pathway dispute between the accused and PW.2 Manivel and therefore PW.2 Manivel has come out with falsehood before the Court. 11. The learned Additional Public Prosecutor submits that though PW.1 Karunanidhi is the younger brother of the deceased and PW.2 Manivel had some litigation as against the accused, their testimony is quite natural and therefore there is no embargo to rely upon their evidence. It is his further submission that the evidence of PW.3 Tmt.Govindarajamani cannot be rejected, as she is an independent witness to the occurrence. 12. It is true that PW.1 Karunanidhi is the brother of the deceased. It is found that PW.1 was proceeding to Milk Society to sell milk collected by him. The deceased Rajamanickam also was proceeding by bi-cycle taking milk in a can for supplying to the said society. PW.1 Karunanidhi has deposed that his brother asked him to board the cycle but PW.1 had preferred to go by walk to the society and therefore the deceased went by bi-cycle. There is no suggestion from the defence that P.Ws.1 to 3 did not collect milk and supply to the Milk society at Mulayampoondi. Therefore the presence of PWs.1 and 3 at the scene of occurrence cannot be doubted. PW.3 Tmt.Govindarajamani has come out with a cogent explanation that she carried the milk on that fateful day as her husband was away from the village. It is found that PW.2 Manivel is residing in a house which is located at about 400 ft. away from the scene of occurrence. It https://hcservices.ecourts.gov.in/hcservices/ is quite natural for the villager to come out of the house at about 6 am or 6.30 am for various purposes. 13. True it is that the testimony of PW.1 Karunanidhi, brother of the deceased, and PW.2 Manivel, who had some civil litigation with the accused, will have to be evaluated cautiously. But their evidence cannot be rejected outright just because PW.1 Karunanidhi happened to be the brother of the deceased and PW.2 Manivel was an adverse party in civil litigation launched by the accused. 14. There is a vague suggestion put to PW.3 Tmt.Govindarajamani that she had some pipeline dispute with the accused and as a result of which she chose to depose as against the accused. The aforesaid suggestion was totally denied by her. PW.3 Tmt.Govindarajamani was found to be a relative not only to the deceased but also to the accused. In our considered opinion, PW.3 Tmt.Govindarajamani is found to be an independent witness and her testimony cannot be brushed aside on any account. In fact, her evidence lends corroboration to the testimony of P.Ws.1 and 2. 15. The learned counsel appearing for the appellant would attack the evidence of P.Ws.1 and 2 on the ground that blood-stained clothes of P.Ws.1 and 2 were not recovered by the Investigation Agency though it is alleged that they were actually present at the time of occurrence or immediately after the occurrence took place. We find that the non-seizure of the apparels of P.Ws.1 and 2 would not shake the case of the prosecution, as the evidence of P.Ws.1 and 2 is corroborated by the evidence of PW.3 Tmt.Govindarajamani. At any rate, the lapse on the part of the Investigation Agency in not seizing the blood-stained clothes of P.Ws.1 and 2 would not go to the root of the case. 16. It is contended that there was a strong motive for foisting the case as against the accused for the murder of Rajamanickam. It has been established by the defence that the accused purchased a site adjacent to the site of PW.2 Manivel. PW.2 Manivel claimed that the accused had purchased a portion of poramboke land. The aforesaid dispute had culminated in filing of a suit by the accused as against PW.2 Manivel and in passing a decree of declaration in his favour. The defence has also established that in the very same site purchased by the accused he had put up 'pandhal' with stage for organising a political party meeting, but the said 'pandhal' with stage vanished the next day morning which prompted the accused to lodge a complaint as against the deceased, PW.2 Manivel and others. It is also established that there was an ancient temple in Mulayampoondi village. The villagers took a decision to demolish it and put up a new construction over there. The accused opposed for such a proposal, but ultimately the decision of the villagers https://hcservices.ecourts.gov.in/hcservices/ prevailed and they had put up a temple demolishing the old structure. The deceased was the head of the six member committee constituted by the villagers for performing 'Tiruppani work'. 17. In the background of aforesaid circumstances, the learned counsel appearing for the appellant would submit that a false case was foisted on the accused by the villagers after beating the accused and producing him before the police. 18. It is true that there had been some dispute between PW.2 Manivel and the accused Balusamy. The accused also gave a complaint as the 'pandhal' put up by him vanished as against the deceased Rajamanickam, P.W.2 Manivel and others. The deceased also was heading the 'Tiruppani Committee' constituted by the temple. The motive established is found to be a double-edged weapon. The motive also can be the reason for the accused to attack the deceased. Considering the testimony of P.Ws.1 to 3, we find that the case of murder was not foisted on the accused on account of the aforesaid dispute between the accused and PW.2 Manivel. The aforesaid motive is found to be the reason for the murder of the deceased by the accused. 19. Of course, the Investigating Agency failed to explain about the five abrasions and an incised injury found on the left thumb measuring 1 x 0.2 x 0.3 cm on the person of the accused at the time when he was arrested by PW.12 Inspector Alagumalai. The learned counsel appearing for the appellant would submit that the non-explanation of the injuries found on the person of the accused would go to the root of the case. Per contra, the learned Additional Public Prosecutor would submit that all the injuries were found to be simple in nature. When ocular testimonies were available on record, the non-explanation of the injuries sustained by the accused would not tilt the case of the prosecution, he would contend. 20. It is a settled position of law that where there is consistent evidence from ocular witnesses that it was only the accused who perpetrated the crime of murder, the non-explanation of minor and simple injuries found on the person of the accused cannot at all be a ground to reject the testimony of ocular witnesses. In the instant case, we find that all the injuries were found to be superficial, simple and minor and therefore the non-explanation of such injuries does not cast a doubt on the genesis of the case of the prosecution. 21. The learned counsel for appearing for the appellant would refer to the evidence of P.Ws.2 and 12 and would submit that there is some contradiction as to the preparation of the complaint-Ex.P1 by https://hcservices.ecourts.gov.in/hcservices/ PW.1 Karunanidhi at the instance of PW.2 Manivel.