BAIL SLIP The Appellant herein accused No.3, namely Chidambaram was directed to be released on bail as per order of the court dated 9.4.2008 and made in MP.No.1/08 in Crl A.218/08/ IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL Nos.65 and 218 of 2008 1. Manickam 2. Ananthan ..Appellants/Accused No.1 and 2 in Crl.A.No.65/2008 Chidambaram ..Appellant/Accused 3 in Crl.A.No.218/2008 ..vs.. State by Inspector of Police, Thoothur Police Station, Thoothur, Perambalur District. (Crime No.2 of 2006) ..Respondent/Complainant in both criminal appeals Criminal Appeals filed under Section 374(2) of Criminal Procedure Code against the judgment of the learned Principal District & Sessions Judge, Perambalur District, made in S.C.No.40 of 2006, dated 26.11.2007. For Appellants : Mr.S.Kalyanaraman (Crl.A.No.65/2008) Mr.S.Ananthanarayanan(Crl.A.218/2008) For Respondent : Mr.Babu Muthu Meeran, A.P.P., https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, namely, C.A.No.65 of 2008 by A-1 and A-2 and C.A.No.218 of 2008 by A-3. 2. Both the appeals challenge a judgment of the Principal District and Sessions Division, Perambalur, made in S.C.No.40 of 2006, whereby the appellants stood charged, tried and found guilty as follows: Accused Charges Findings Sentence A-1 to A3 S.449 IPC Guilty 10 Years R.I.each and to pay a fine of Rs.2,000/- each, i/d to undergo 3 months R.I. each. A-1 to A-3 S.302 r/w 34 IPC Guilty Life imprisonment each and to pay a fine of Rs.5,000/- each, i/d to undergo 3 months S.I.each. The sentences imposed on the respective accused were ordered to run concurrently. 3. Short facts for the disposal of both the appeals can be stated thus: (a) The appellants/accused and the deceased Govindasamy belonged to Koman village. P.W.1 is the wife, P.W.2 is the daughter and P.Ws.3 and 4 are the grandchildren of the deceased Govindasamy. Six years prior to the occurrence, Govindasamy lent Rs.5,000/- to A- 1, which was not returned despite many demands. A Panchayat was convened but to no avail and thus, the relationship of Govindasamy and A-1 was strained. A-2 is the son of A-1 and A-3 was their associate. On 16.01.2006, when Govindasamy was sleeping in his house along with P.Ws.1 to 4, A-1 to A-3 committed a criminal trespass by entering into the house of Govindasamy at about 3.30 AM. At that time, A-1 was having a torch in his hand. On hearing the noise, Govindasamy also took a torch. At that time, P.Ws.1 to 4 also woke up and they witnessed A-1 to A-3 armed with deadly weapons and A-1 by knife and A-2 and A-3 with 'Sulukki' attacked Govindasamy one after another. On hearing the distressing cry, A-1 to A-3 fled away from the scene of occurrence. https://hcservices.ecourts.gov.in/hcservices/ (b) Immediately, Govindasamy was taken to the Government Hospital, Thanjavur and at about 5.30 AM, P.W.10, who was on duty, gave the treatment and the accident register copy issued by him is marked as Ex.P-4. An intimation was given to the out-post in the hospital. (c) A Head Constable attached to the Thanjavur Medical College Hospital, rushed to the hospital and he recorded the statement of Govindasamy, which is marked as Ex.P-6 and an intimation was given to the respondent Police Station and on the strength of which, a case came to be registered by the respondent Sub-Inspector of Police, P.W.12, in Crime No.2 of 2006 under sections 452, 324 and 506(II) I.P.C. The first information report Ex.P-7 was despatched to the Court. He went over to the place of occurrence and prepared an observation mahazar Ex.P-1 and rough sketch Ex.P-8 and recovered M.Os.1 and 3 to 7 under the cover of mahazar Ex.P-2 in the presence of witnesses. (d) The further investigation was taken up by P.W.13, Inspector of Police and on receiving the intimation as to the death of Govindasamy on 24.01.2006, he altered the case into under section 302 I.P.C. The amended first information report Ex.P-9 was despatched to the Court. P.W.13 went over to the hospital and conducted an inquest on the dead body of Govindasamy in the mortuary in the presence of witnesses and the panchayatdars and the inquest report is marked as Ex.P-10 and following the inquest, a requisition was given to the Government Hospital, for the purpose of post-mortem. (e) On receipt of the said requisition, P.W.11, doctor attached to the Thanjavur Government Hospital, conducted autopsy on the dead body of Govindasamy and gave a post-mortem certificate, Ex.P-5, wherein he opined that the deceased would appear to have died of complication due to multiple injuries involving cut injury to intestine. (f) Pending investigation, the accused were arrested on 16.01.2006 and A-3 gave a confessional statement and the admissible portion is marked as Ex.P-12. Pursuant to which, he produced M.O.2 which was recovered under the cover of mahazar Ex.P-3 and all the accused were sent for judicial remand. On completion of investigation, P.W.13 filed the final report against the accused under section 302 I.P.C. (g) The case was committed to the Court of Session, Perambalur and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 12 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellants/accused guilty and https://hcservices.ecourts.gov.in/hcservices/ awarded the punishment of life imprisonment, which is the subject matter of challenge before this Court. 4. Advancing the arguments on behalf of the appellants in C.A.No.65 of 2008/A-1 and A-2, the learned counsel would submit that the prosecution rested its case on the evidence of P.Ws.1 to 4, who are the wife, daughter and minor grand children. Thus, they are all interested witnesses. Even according to the case of the prosecution, the relationship of the deceased and A-1 and A-2 was actually strained in the past and hence, P.Ws.1 to 4 are not only the interested witnesses but also they are all inimical to the accused. The case of the prosecution was that the occurrence took place at about 3.30 AM (night hours) and they were all sleeping. P.W.1 categorically stated that the doors were actually locked inside and they were sleeping, but how the accused got entered into the house was not explained by her; that in so far as the weapons of crime are concerned, the specific case of the prosecution was that A-1 was holding the knife and A-2 was holding the 'sulukki'; but the earliest statement given by Govindasamy to P.W.10 doctor shows that he was stabbed by two known persons with "<l;o@ but the injuries found on the deceased could not have been caused with a weapon like "<l;o@; ; that under such circumstances, it will be quite clear that the medical evidence adduced by P.W.10 did not corroborate the ocular testimony and the prosecution has much relied on the recovery of the weapons of crime and the confessional statement alleged to have been given by the accused; that apart from that, the evidence of P.W.6 shows that all the weapons were recovered on production by the daughter of the deceased from the house and thus, it is quite clear that the alleged recovery of M.O.2 pursuant to the confession statement is false; that in the instant case, it is further to be pointed out that P.W.12 categorically admitted that all the statement of the witnesses were sent to the Court after 35 days and there was undue and inordinate delay, which has not been explained by the prosecution and in the abovesaid circumstances, it cannot be said that the prosecution has proved the case beyond reasonable doubt and hence, they are entitled for acquittal. 5. Learned counsel for the appellant in C.A.No.218 of 2008/A-3 vehemently made his submission only on two points; firstly, it is the case of the prosecution that all the witnesses and Govindasamy knew all the three accused, belonged to the same place; but the earliest statement given by Govindasamy to P.W.10 doctor attached to the Government Hospital, clearly shows that only two persons had attacked him and even in the statement recorded by the Police Constable, which is marked as Ex.P-6, he has not whispered anything about A-3 or not even a third person was present along with A-1 and A-2; and secondly, it is not the case of the prosecution that he had any financial dealing or A-3 had any motive against the deceased. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, he had been dragged subsequently at the time of investigation without any basis or whatsoever; that the trial Court without considering the above aspects of the matter, has taken an erroneous view, and hence he is entitled for acquittal. 6. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that one Govindasamy, husband of P.W.1, following the incident that took place on 16.01.2006 at about 3.30 AM was taken to the Government Hospital and was attended by P.W.10 on the same day at 5.30 AM and despite treatment, he died and the case was originally registered under sections 452, 324 and 506 (II) IPC was subsequently altered to section 302 I.P.C. Pending investigation, the investigator had conducted the inquest on the dead body of Govindasamy and prepared the inquest report and following the same, the dead body was subjected to post-mortem by the doctor P.W.11, who has given a categorical opinion, as a witness before the Court and through the contents of the post-mortem certificate Ex.P-5 that he died of complication due to multiple injuries involving cut injury to intestine and the fact that Govindasamy died out of homicidal violence was never disputed by the appellants at any stage of the proceedings. Hence no impediment is felt in recording so. 8. In order to substantiate the charges levelled against the appellants, the prosecution has examined four witnesses as eye witnesses. It is true that they are the close relatives, namely, wife, daughter and minor grandchildren of the deceased Govindasamy. It is well settled position of law that merely because the eye witnesses happened to be the close relatives of the deceased, their evidence cannot be either eschewed or discarded, but before acceptance, the Court must apply the test of careful scrutiny. In the instant case, the occurrence had taken place at 3.30 AM on 16.01.2006 when the said Govindasamy was sleeping in his house along with his family members, which is found in the earliest statement given by him, marked as Ex.P-6 and one cannot expect any independent witness or bystander to witness the occurrence and hence, the available persons at that time naturally would be the wife and the family members, who were the witnesses before the trial court. It is also true that the occurrence had taken place at about 3.30 AM night hours and according to P.W.1, after hearing the noise, Govindasamy woke up and also took his torch light; but at the same time, A1 was also having a torch light and they were able to see the presence of the accused with weapons. P.Ws.1 and 2 spoken in one voice that Govindasamy was attacked with deadly weapons. The strong circumstance in favour of the prosecution and against the appellants was that the earliest statement given by Govindasamy to P.W.10 doctor and the same was recorded in Ex.P-4 accident register copy, wherein https://hcservices.ecourts.gov.in/hcservices/ the time, date, place of occurrence and the attack by two known persons with "<l;o@ were all mentioned by the deceased. The next document was Ex.P-6, which was a statement given by Govindasamy to the Head Constable attached to the out-post of the Thanjavur Medical College Hospital, which contains complete narration of the entire incident and the motive for the crime also. It is pertinent to point out that the deceased Govindasamy had categorically averred that the occurrence had taken place at 3.30 AM when he was sleeping with his family members and the accused persons got entered into his house by way of criminal trespass and they were having "<l;o@ in their hands, with which he was stabbed. 9. Now at this juncture, the evidence of P.Ws.1 and 2 was in one voice that Govindasamy was attacked with deadly weapons. Now, the contention put forth by the learned counsel for the appellants that the weapons of crime mentioned as "<l;o@ at one place and knife at another place, does not carry any merit in the considered opinion of the Court since the occurrence had taken place at 3.30 AM and the witnesses were able to see the accused only with the aid of the torch light in the hands of A-1 and also the deceased Govindasamy and in such situation, one cannot expect the witnesses to speak about the weapons of the crime. It is further pertinent to point out that in the instant case, the accused had entered into the house at 3.30 AM when Govindasamy was sleeping along with his family members and had committed the crime. 10. The Court is able to see some force in the contention put forth by the learned counsel for the appellants/A-1 and A-2 so far as the recovery of the weapons of crime is concerned. Though the case of the prosecution was that the weapons were recovered pursuant to the confession statement, it is belied by P.W.6, who has given a categorical admission to the effect that the weapons of crime were produced by the daughter of the deceased from the house and hence, that part of the prosecution case has got to be rejected. Even after rejecting that part of the case of the prosecution, in the considered opinion of the Court, there is sufficient evidence to point out the guilt of A-1 and A-2. In so far as A-3 is concerned, the case of the prosecution in that regard has got to be rejected. 11. It is the admitted position that A-3 belonged to the same place and also living all along in the same area and was already known to the deceased Govindasamy and also his family members. Had it been true that A-3 had also accompanied by A-1 and A-2, there was no impediment for Govindasamy to mention his name in the earliest document i.e.Ex.P-4. It is pertinent to point out that in the earliest document Ex.P-4, he had categorically stated "two known persons" and equally, in Ex.P-6 statement recorded by the Head Constable, which was given by the deceased Govindasamy, he had mentioned only two names of A-1 and A-2 and he has not even whispered https://hcservices.ecourts.gov.in/hcservices/ about the third person also along with A-1 and A-2 and he should have been brought in only by way of an afterthought. The prosecution has miserably failed to prove any involvement or the presence of A-3. Hence, it is a case where A-1 and A-2, who are the father and son armed with deadly weapons, made a criminal trespass into the house of the deceased at about 3.30 AM and when he was sleeping with his family members caused the fatal injuries, as a direct consequence and thus, all would go to show that it was not only the criminal trespass but also the murderous act intentionally done. Hence, in the considered opinion of the Court, the trial court was perfect in recording the finding that A-1 and A-2 were dealt with sections 449 and 302 read with 34 IPC and awarding of life imprisonment there is no reason to interfere with the same. Hence, the appeal filed by A-1 and A-2 has got to be dismissed. In so far as the A-3 is concerned, the order of the trial court has got to be set aside. For the reasons stated above, (i) Crl.A.No.65 of 2008 fails and is dismissed. (ii) Crl.A.No.218 Of 2008 is allowed and the conviction and sentence imposed by the trial court are set aside and the appellant/A-3 is acquitted of the charges against him. The appellant is directed to be released forthwith unless his presence is required in connection with any other case. The fine amount, if any, paid by him will be refunded to him. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To 1.The Principal District & Sessions Judge Perambalur. 2.The Inspector of Police, Thoothur Police Station, Thoothur, Perambalur District. 3.The Judicial Magistrate, Perambalur 4.The Chief Judicial Magaistrate, Perambalur, (For Internation) https://hcservices.ecourts.gov.in/hcservices/ 5. The Superintendent, Central Prison, Trichy. 6. The District Collector, Perambalur, 7. The Director General of Police, Chennai 8.The Public Prosecutor High Court, Madras. + One cc to Mr.S.Kalyanaraman, Advocate, SR 56002 Common Judgment in Crl.A. Nos.65 and 218 of 2008 PUR (CO) RH (6.11.09) https://hcservices.ecourts.gov.in/hcservices/