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2003 DIGILAW 1119 (MAD)

Muthuswamy & Another v. Inspector of Police

2003-07-24

M.CHOCKALINGAM

body2003
Judgment :- The appellants who stood charged and tried for the offences under Ss 341, 302, 302 r/w 34 and 355 of I.P.C. respectively have brought forth this appeal challenging the conviction and sentence passed by the learned I Additional Sessions Judge, Tiruchirapalli, as detailed below. 2. The short facts barring the unnecessary details can be stated thus: (a) The deceased Palaniappan and the appellants were all doing cow brokerage business at Uppidamangalam Sandi, Karur District. On 8.5.94, there was a wordy quarrel between the deceased and the appellants in connection with their business. A-1 threatened the deceased that he will do away him. At about 11.00 P.M., when the deceased returned to his house after finishing his work at water tank near Uppidamangalam, both the accused waited there. On seeing the deceased, the first accused wrongfully restrained him and said that "eP vg;g ghh;j;jhYk; vdf;F bfLjy; gz;zpf;fpl;L ,Uf;nf ,j;njhL xHpe;J ngh". So saying, A-1 fisted on the chest of the deceased twice and with legs kicked on the stomach and chest of the deceased several times. A-2 attacked the deceased with chappal five times. P.W.1 Ramalingam and P.W.2 Bagulsamy @ Palanisamy witnessed the entire occurrence. The accused fled away from the scene of occurrence. After sometime, the deceased reached his house and informed his wife P.W.3 Kaliammal and his brother-in-law P.W.5 Palaniappan. On 9.5.94 P.W.5 came to the house of the deceased at about 5.00 P.M. and brought the deceased to the Government Hospital, Karur at 9.15 P.M. P.W.10 Dr.Rajamanickam examined the deceased, gave treatment and issued Ex.P6 accident register. P.W.13 Govindaraj, Head Constable, Karur Police Station received the intimation from the Government Hospital, Karur about the admission of the deceased, and in turn P.W.13 gave intimation to P.W.14 Paramasivam, Sub Inspector of Police, Vellianai Police Station, who received the intimation under Ex.P10 on 9.5.94. At about 10.00 P.M. P.W.14 proceeded to the Government Hospital, Karur, examined the deceased and recorded the statement under Ex.P11 from him and registered a case in Crime No.187/94 under Sec.307 of I.P.C. on the strength of Ex.P11. Ex.P12 express F.I.R. was despatched to the concerned Judicial Magistrate's Court, while the copies were sent to the higher officials. (b) P.W.14 Sub Inspector took up the investigation, proceeded to the occurrence spot. prepared Ex.P13 observation mahazar and Ex.P14 rough sketch in the presence of the witnesses. Ex.P12 express F.I.R. was despatched to the concerned Judicial Magistrate's Court, while the copies were sent to the higher officials. (b) P.W.14 Sub Inspector took up the investigation, proceeded to the occurrence spot. prepared Ex.P13 observation mahazar and Ex.P14 rough sketch in the presence of the witnesses. He examined P.Ws.1 and 2, recorded their statements and recovered M.O.1 a pair of chappals under Ex.P15 mahazar from the site of occurrence in front of P.W.7 Govindaraju and other witness. P.W.14 proceeded to the Government Hospital, Karur, examined P.W.3 and the deceased and recorded their statements. Ex.P16 is the statement given by the deceased. Thereafter, P.W.14 went to Uppidamangalam and examined P.Ws.6 and 7 and recorded their statements. P.W.10 Doctor made a request to the Judicial Magistrate, Karur under Ex.P3. P.W.9 John Peter Sukumar, Judicial Magistrate No.II, Karur on 10.5.94 at about 3.45 A.M. came to the Government Hospital and recorded the dying declaration of the deceased under Ex.P4. When he made the dying declaration to P.W.9, P.W.10 Doctor was also present and certified that the deceased was conscious. Thereafter, the deceased was referred to the Government Hospital, Tiruchy by P.W.10, where he was admitted. Ex.P8 was the accident register. P.W.11 Dr.Ramachandran gave intimation to the police about the death of the deceased through Ex.P7. (c) On 10.5.94 at about 12.30 P.M. the appellants/accused were arrested by P.W.14 Investigating Officer and they were sent for judicial custody. At 12.45 P.M. P.W.14 received the intimation regarding the death of the deceased, and the case was altered to Sec.302 of I.P.C. from Sec.307 of I.P.C. Ex.P17 express report was sent to the concerned Court. At 6.00 P.M. P.W.15 Venkitasamy, Inspector of Police, took up further investigation, proceeded to the Government Hospital, Tiruchy, conducted inquest on the dead body of Palaniappan in the presence of panchayatars and witnesses and prepared Ex.P19 inquest report. He examined the witnesses and recorded their statements. A request was made to the Government Hospital, Tiruchy for conducting the postmortem on the dead body of Palaniappan. Accordingly, the postmortem was conducted by P.W.12 Dr.Raja Manoharan, who gave a certificate under Ex.P9. The Doctor has found no external injuries, but has noticed the heart punctured and a perforation about 3 x 3 cm on the small intestine with blood coming out. Accordingly, the postmortem was conducted by P.W.12 Dr.Raja Manoharan, who gave a certificate under Ex.P9. The Doctor has found no external injuries, but has noticed the heart punctured and a perforation about 3 x 3 cm on the small intestine with blood coming out. P.W.12 has given opinion that the deceased would have died of shock and haemorrhage due to injury to heart and small intestine. P.W.15 examined P.Ws.10 to 12 Doctors and Dr.Chandrakala and recorded their statements. On completion of the investigation, a charge sheet was filed against the accused on 9.12.1994. 3. In order to prove the charges levelled against the appellants/accused, the prosecution examined 15 witnesses and marked 19 exhibits and 2 material objects. On completion of the evidence of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, and the appellants/accused denied them as false. No defence witness was examined. The trial Court on consideration of the rival submissions and scrutiny of the materials, found A-1 guilty under Ss 341 and 325 of I.P.C. and A-2 under Ss 325 r/w 34 and 355 of I.P.C. and awarded the punishment as referred to above which is under challenge before this Court. 4. The learned Counsel appearing for the appellants interalia raised the following points for consideration by this Court: The trial Court has not properly considered the evidence adduced by the prosecution in the proper perspective. The trial Court has ignored the fact that there was a huge and inordinate delay in filing the F.I.R., and thus a considerable doubt was cast on the prosecution case. The trial Court has based its conviction solely on the dying declaration, which was not free from taint. The trial Court ought to have rejected the dying declaration, since there was no vital contradictions between the allegations made in the F.I.R. by the deceased and the subsequent declaration given to the Magistrate. It is pertinent to note that the alleged eyewitnesses have turned hostile. The father and mother examined as witnesses, even according to the prosecution, have not witnessed the occurrence. It is also pertinent to point out that the name of the first accused was stated by the deceased without any particulars, and thus, the first appellant/A-1 was not the person who attacked the deceased. The father and mother examined as witnesses, even according to the prosecution, have not witnessed the occurrence. It is also pertinent to point out that the name of the first accused was stated by the deceased without any particulars, and thus, the first appellant/A-1 was not the person who attacked the deceased. Even if the prosecution case is believed as true, the appellants are liable to be punished under Sec.323 of I.P.C. simplicitor. Hence, the judgment of the lower Court has got to be set aside, and the appellants be acquitted of the charges against them. 5. Strongly opposing the above contentions of the appellants' side, the learned Government Advocate (Criminal Side) would submit that the lower Court has relied on the dying declaration which was recorded by the Judicial Magistrate No.II, Karur only after the certificate made by the Medical Officer; and that in the said dying declaration, the deceased has given the thorough narration of the entire occurrence. Added further the learned Government Advocate that what was available for the prosecution was the statement given by the deceased himself to the police, which was also acted upon by the lower Court; that the evidence of the Doctor who gave initial treatment to the deceased and who issued certificate and the postmortem certificate issued by P.W.12 Doctor who conducted the autopsy thoroughly corroborated the case of the prosecution, and under such circumstances, the contentions put forth by the appellants' side do not carry any merit, and hence, the judgment of the lower Court has got to be sustained. 6. On careful analysis of the entire materials available and consideration of the rival submissions, the Court is unable to appreciate or agree with all or any one of the contentions put forth by the appellants' side. 7. The gist of the prosecution case was that on 8.5.94 due to a wordy quarrel connecting to the cow brokerage business, A-1 and A-2, the appellants herein waylaid the deceased and wrongfully restrained him, and uttering the words "eP vg;g ghh;j;jhYk; vdf;F bfLjy; gz;zpf;fpl;L ,Uf;nf ,j;njhL xHpe;J ngh" A-1 fisted him on his chest twice and kicked on his stomach and chest several times, while A-2 attacked him with chappals number of times. At the outset it has to be pointed out that the case came to be registered on the statement given by the deceased to P.W.14 Sub Inspector of Police, who registered the case on the strength of the same. It was P.W.5, the brother-in-law of the deceased, who took him to the Government Hospital, Karur on 9.5.94. At about 9.15 P.M., P.W.10 Doctor medically examined the deceased and treated him and issued Ex.P6 accident register. A perusal of Ex.P6 accident register would reveal that it was the deceased who made a statement before P.W.10 Doctor and the same has also been recorded. On seeing the condition of the deceased, P.W.10 Doctor immediately made a request to the Judicial Magistrate, Karur under Ex.P3 for recording the dying declaration. The Judicial Magistrate No.II, Karur, who was examined as P.W.9, has categorically deposed that he recorded the dying declaration of the deceased, after due certification by P.W.10 Doctor. The dying declaration is marked as Ex.P4. A very reading of Ex.P4 dying declaration would clearly reveal that it was the deceased, who gave a thorough graphic narration of the entire incident. As rightly pointed out by the lower Court, this is a strong piece of evidence in support of the prosecution and would clinchingly prove the criminal acts committed by both the accused. It cannot be disputed that the deceased, who was admitted in the Government Hospital, Karur, was subsequently taken to the Government Hospital, Tiruchy, where he died despite treatment. Subsequently, the case was converted to Sec.302 of I.P.C., and investigation was taken up by P.W.14 Investigating Officer. The inquest was conducted by the Investigating Officer. P.W.12 Doctor conducted the autopsy on the requisition by the Investigating Officer, and a certificate has also been given by the Doctor. It is pertinent to point out that no external injuries were found on the deceased. According to P.W.10 Doctor, who gave treatment initially to the deceased, profused swelling was present. The lower Court in such circumstances and taking into consideration the nature of the acts committed by both the appellants/accused at the time of occurrence has found that they could not be found guilty under Sec.302 of I.P.C., but they were liable to be convicted namely A-1 under Sec.325 of IPC and A-2 under Sec.325 read with 34 of IPC. 8. 8. The contention of the appellants that there was enormous delay in lodging the complaint cannot be countenanced, in view of the fact that the deceased belonged to a remote village, and during night hours they had no transport facilities, and hence, he was taken to the Hospital by P.W.5 the next day, and the deceased made a statement to P.W.10 Doctor immediately, which was recorded, and apart from that on intimation, the Judicial Magistrate No.II, Karur has also reached the Hospital and has recorded the dying declaration given by him. It is true that the eyewitnesses to the case have turned hostile. In view of the evidence as narrated above, it has no way affected the prosecution case. The Court is unable to notice any merit or substance in the contentions put forth by the appellants' side. Therefore, the conviction recorded by the Court below has got to be necessarily sustained. 9. Coming to the question of punishment, the lower Court has awarded 3 years R.I. to the appellants/A-1 and A-2 under Ss 325 and 325 read with 34 of I.P.C. respectively. Taking into consideration the facts and circumstances of the case, the Court is of the view that ends of justice would be met, if the sentence of 3 years R.I. is reduced to 18 months R.I. 10. In the result, the sentence of 3 years R.I. imposed by the lower Court on A-1 under Sec.325 of I.P.C. and on A-2 under Sec.325 read with 34 of I.P.C. alone is modified, and A-1 shall undergo 18 (eighteen) months R.I. under Sec.325 of IPC, and A-2 shall undergo 18 (eighteen) months R.I. under Sec.325 read with 34 of IPC. In other respects, the judgment of the lower Court is confirmed. The Sessions Judge shall take steps to commit the appellants/A-1 and A-2 to prison, if they are on bail, to undergo the remaining period of sentence. The sentence already undergone by the appellants shall be set off. With the above modification, this criminal appeal is dismissed.