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2003 DIGILAW 2030 (MAD)

Kannan v. State through Inspector of Police

2003-12-10

R.BANUMATHI

body2003
Judgment :- M.Karpagavinayagam, J. The Appellants are A1 to A4. A1 has filed Appeal in C.A.No.406 of 2001 and A2 to A4 have filed separate appeal in C.A.No.128 of 2001. A1 to A4 were convicted for the offences under Sections 302 read with 34 and 307 read with 34 IPC and for the offence under Section 302 read with 34 IPC. They were sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/= each for the offence under Section 302 read with 34 IPC and for the offence under Section 307 read with 34 IPC, they were sentenced to undergo five years R.I.and to pay a fine of Rs.1,000/= each. 2. The factual matrix in brief is as follows:- "(a) The deceased Ganesan is the elder brother of P.W.1 Kulasekara Pandian. Accused 1 to 4 are brothers. Both parties were residing in the same village by name Anumanthapatti. There was a longstanding dispute between the accused party and the deceased party regarding the pathway which is situate in front of the house of P.W.1. From the year 1979, there were frequent quarrels between them. Resultantly, the criminal cases were filed against each party and the same were pending in the Judicial Magistrate Court, Uthamapalayam. P.W.3 Aruna is the wife of the deceased. (b) The fateful occurrence took place on 18.08.1999. At about 11.30 am, the deceased Ganesan and P.W.2 Ondi purchased fertilizer for the sugarcane field of Ganesan, the deceased. P.W.1 also accompanied them. They came back to Anumanthapatti village and after parking their cycles near the field, the deceased Ganesan and P.W.1 took the fertilizer bags to the field. When they were nearing the field, A1 to A4, who were waiting in the corner of the field, suddenly appeared in the scene. A1 Baskaran stabbed with the spear, M.O.1 below the left chest of Ganesan, the deceased. A2 Kannan with the knife, M.O.2 stabbed on the left abdomen of Ganesan. On receipt of these injuries, Ganesan fell down and fainted. On seeing P.W.1 standing nearby shouted at the deceased, A3 Nagaraj asked other accused to kill P.W.1 also. So saying, A3 with the patta knife, M.O.3 gave a cut on the head of P.W.1. When it was warded off, he sustained injuries on his right fore arm. A4 Kamaraj also gave a cut with the patta knife M.O.4 on the right index finger. So saying, A3 with the patta knife, M.O.3 gave a cut on the head of P.W.1. When it was warded off, he sustained injuries on his right fore arm. A4 Kamaraj also gave a cut with the patta knife M.O.4 on the right index finger. Thereupon, A3 and A4 gave indiscriminate cuts on the head of P.W.1. P.W.2 Ondi, who accompanied them, on seeing the ghastly strike, shouted. The accused ran away from the scene and escaped with the weapons. P.W.1 went near the deceased and found him dead. This occurrence was witnessed by P.W.3, the wife of the deceased. After informing her that he would go to police station to give complaint, P.W.1 went to Uthamapalayam Police Station and lodged the complaint, Ex.P-1 to the Sub Inspector of Police, P.W.9. P.W.9 Sub Inspector of Police received the complaint at about 12.30 pm. He registered the case on the basis of Ex.P-1 and prepared the first information report Ex.P-19. The case was registered under Sections 307 and 302 IPC. P.W.9 sent P.W.1 with a medical memo to the Government Hospital for treatment. He also sent message to the senior officials. (d) On 18.08.1999 at 12.45 pm, Dr.Premakumari, P.W.5 examined P.W.1 and found nine injuries. She issued wound certificate Ex.P-12. She admitted him as inpatient. Ultimately, he was discharged on 21.09.1999. (e) In the meantime, P.W.10 - Inspector of Police, on receipt of the message, took up investigation and went to the scene of occurrence. He prepared observation mahazar Ex.P-2 and rough sketch Ex.P-20. He conducted inquest over the dead body of Ganesan. The Inquest Report is Ex.P-21. He examined P.Ws.2 and 3 and others. Then, he sent the body for post mortem with a requisition. (f) On 18.08.1999, P.W.6 Dr.Subburaj, on receipt of the requisition, conducted post mortem. He found two external injuries, one is on the left side chest and another is on the left side lower costal margin. On internal examination, he found a probe introduces in injury No.1, which passes through an injury with 4th intercostal space about 1.5cm x 0.5 cm.through window in the pleura, through an injury about 1.5 cm x 0.5 cm.the anterior aspect of middle lobe of left lung through an injury of same size in the right atrium. On internal examination, he found a probe introduces in injury No.1, which passes through an injury with 4th intercostal space about 1.5cm x 0.5 cm.through window in the pleura, through an injury about 1.5 cm x 0.5 cm.the anterior aspect of middle lobe of left lung through an injury of same size in the right atrium. Finally, he gave opinion in the post mortem certificate Ex.P-14 that the deceased would appear to have died of shock and haemorrhage as a result of injuries. (g) While continuing the investigation, P.W.10 examined other witnesses and took steps to arrest the accused. He was informed that all the accused surrendered before the court. On 02.09.1999, he obtained police custody from the Court. On the confession of A1, M.O.1 spear was recovered and in pursuance of the confession of A2, M.O.2 knife was recovered. Similarly, on the confession of A3, M.O.3 patta knife was recovered and on the confession of A4, M.O.4 another patta knife was recovered. Since blood stain was found in M.Os.1 and 2, they were sent for chemical examination through the court. (h) After completing the investigation, P.W.10 laid the charge sheet against all the accused for the offences under Sections 307 read with 34 and 302 read with 34 IPC". 3. During the course of trial, P.Ws.1 to 10 were examined; Exs.P-1 to P-21 were filed and M.Os.1 to 7 were marked. 4. After conclusion of trial, A1 to A4 were questioned under Section 313 Cr.P.C. They simply denied their complicity in the crime. On the side of defence, Ex.D-1 was marked. 5. On analysis of the evidence on record, the trial Court found all the accused guilty for the offences under Sections 302 read with 34 and 307 read with 34 IPC and sentenced them thereunder. Hence, these two separate appeals filed by A1 and A2 to A4. 6. Mr.R.Regupathi, counsel appearing for A1 and Mr.K.Mohanram, counsel appearing for A2 to A4 would make the following contentions; (i) Admittedly, the names of P.Ws.2 and 3 have not been mentioned in the complaint Ex.P-1 given by P.W.1. P.W.1 himself would admit that he did not tell the police that he mentioned about the presence of P.W.3 during the course of occurrence when he was examined in the course of investigation. P.W.1 himself would admit that he did not tell the police that he mentioned about the presence of P.W.3 during the course of occurrence when he was examined in the course of investigation. (ii) According to P.Ws.2 and 3, the deceased and P.W.2 came and took food in the house and then went to field. But, it is quite contrary to the evidence of P.W.1, who stated that they went to Chinnamanur and purchased the fertilizer and came back to the field directly. Though P.Ws.1 and 2 would state that they came in a cycle and brought the fertilizer to the field, the cycle and fertilizer were not recovered. (iii) Though P.W.10 would state that P.W.2 was available at the scene and was examined during the course of inquest on the same day i.e.on 18.08.1999, P.W.2 would admit that he ran away from the scene out of fear for his life and went to his house at Chinnamanur and he was brought by the police only on the next day. (iv) Even though cases were pending against both the parties from 1979 to 1999, with reference to the incident took place between these years, admittedly, there is no similar occurrence subsequent to that. Therefore, there is no immediate motive that these people to give a design to attack the deceased and P.W.1 and to wait in the place of occurrence expecting the arrival of the deceased and P.W.1. (v) P.W.2 would state that after seeing the occurrence, he ran away from the scene and on that time, he saw P.W.3, who was coming towards the scene of occurrence, and P.W.2 did not inform about the occurrence to P.W.3. As such, the evidence of P.W.2 would show that P.W.3 is not the eye witness. On the other hand, P.W.3 would state that she came to the scene and stood there itself and saw the occurrence. Further, P.W.2 would state that he saw all the accused on 19.09.1999 in the police station. But, it is the case of the prosecution through P.W.10 that the accused surrendered before the court and on police custody, they were examined and M.Os.1 to 4 were recovered. As such, P.W.2's version with regard to the identification of all the accused at the police station on 19.08.1999 must be false. So, P.W.2 is not a true witness. But, it is the case of the prosecution through P.W.10 that the accused surrendered before the court and on police custody, they were examined and M.Os.1 to 4 were recovered. As such, P.W.2's version with regard to the identification of all the accused at the police station on 19.08.1999 must be false. So, P.W.2 is not a true witness. (vi) The evidence of P.W.3 is so artificial, since she admits that she did not touch the dead body of the deceased, her husband even though she happens to be the wife of the deceased. P.W.3 would state that P.W.2 and the deceased took food at 10.0' clock and went to the field. She immediately left the house within five minutes with a tiffin carrier containing food for her husband working in the field. It is quite artificial. (vii) P.W.1's evidence also cannot be relied upon for the reasons that he sustained injuries on the tongue and as such he could not have given statement. Further more, he sustained 9 bleeding injuries. Under those circumstances, he could not have crossed 4 kms.to reach the police station to give complaint in a cycle. No blood stain was recovered from the scene. The fertilizer bags, the tiffin carrier and the cycle were not recovered. In the light of the above contentions, both the counsel would submit that the entire case would suffer from severe infirmities and as such, all the accused are entitled to the order of acquittal. 3. At the end, the counsel for the Appellant / A2 to A4 would submit that even assuming that the entire case is true, it could not be inferred that there was a common intention on the part of all the accused to cause injuries on the deceased and on P.W.1. 4. We have heard the Additional Public Prosecutor on these aspects. We have also gone through the entire records. 5. At the outset, we shall state that the evidence of P.Ws.2 and 3 does not inspire confidence, in view of so many infirmities found available on record. As correctly pointed out by the counsel for the appellants, the names of P.Ws.2 and 3 were not mentioned in Ex.P-1. Though it is submitted that P.W.2 has been mentioned as cooly, there is no reason as to why his name has not been mentioned. As correctly pointed out by the counsel for the appellants, the names of P.Ws.2 and 3 were not mentioned in Ex.P-1. Though it is submitted that P.W.2 has been mentioned as cooly, there is no reason as to why his name has not been mentioned. Even P.W.1 admitted in the cross examination that he knew the name of P.W.2 when the first information report was given. 6. According to P.W.2, immediately after the occurrence, he ran away from the scene and went to his house and only on the next day morning, he was brought by the police and then he was examined. On the other hand, it is the evidence of P.W.10 that P.W.2 was examined in the course of inquest on 18.08.1999 itself. If P.W.10's evidence is believed, naturally the evidence of P.W.2 that he went to the house immediately after the occurrence and he was taken to the police station on the next day cannot be true. 7. Further, P.W.2 would state that he along with the deceased came to the house of the deceased and took food and from there, they went to the field. But, this is not the case of P.W.1. P.W.1 would state that they came from Chinnamanur after purchasing fertilizer and then, they went the field. Further, P.W.2's conduct is so artificial, since he admits that even though he happened to see P.W.3 when he was running away from the scene, he did not choose to inform P.W.3 about the attack made on her husband, the deceased. Similarly, P.W.3 supplied food to the deceased, her husband and P.W.2 in the morning at 10.00 am. Then, they left for the field. 8. It is quite artificial to note that P.W.3 could have left the place within five minutes by taking the tiffin carrier to give lunch to the husband. P.W.1 would admit that he did not mention the presence of P.W.3 either in Ex.P-1 or in the statement. As indicated above, though P.W.3 would state that she saw the occurrence, in view of P.Ws.2's evidence, P.W.3 could not be the eye witness. Further more, if P.W.3 would have been available at the scene at that time, she would have wept and touched the body, in which process, the clothes of P.W.3 would have been blood stained. As indicated above, though P.W.3 would state that she saw the occurrence, in view of P.Ws.2's evidence, P.W.3 could not be the eye witness. Further more, if P.W.3 would have been available at the scene at that time, she would have wept and touched the body, in which process, the clothes of P.W.3 would have been blood stained. Under those circumstances, in the light of the fact that their names have not been mentioned in the complaint, we are unable to place any reliance on the evidence of P.Ws.2 and 3. 9. It is true that P.W.1 is the younger brother of the deceased. It is also true that there was enmity between the accused family and the deceased family. During the course of cross examination, P.W.1 admitted that from 1979, there were cases pending against each of the parties. In the year 1995, P.W.1 and the deceased gave complaint against A1 and A2 and A1 and A2 gave a counter complaint against the deceased and P.W.1 and the said complaints were pending. In some cases, the accused party was fined and the fine has been paid. So, there is no dispute that they were inimical towards each other for a long time. As indicated above, P.W.1 is an interested witness and a close relative of the deceased. In that context, we have to scrutinize the evidence of P.W.1 with care and caution. 10. It is settled law that merely because the eye witness happens to be an interested witness, we cannot, on that reason, reject his evidence. On going through the entire evidence of P.W.1, we are unable to see any infirmity in view of the fact that his evidence is quite natural, consistent and also corroborated by the other materials inclusive of the medical evidence. The clinching evidence, which is available in this case, is that when P.W.1 was examined by P.W.5 Doctor, P.W.1 would state that on 18.08.1999 at about 11.30 am, 4 known persons have attacked. It is also noticed that P.W.1 went to the police station at about 12.30 pm and gave a complaint, which has been registered immediately, and the copy of the first information report has reached the court on the very same day at 3.00 pm. P.W.10, Inspector of Police came to the spot and conducted the inquest and inquest report reached the court on the next day. P.W.10, Inspector of Police came to the spot and conducted the inquest and inquest report reached the court on the next day. P.W.5 would find nine injuries on P.W.1. Similarly, P.W.6, the post mortem Doctor would give the details about the injuries sustained by the deceased. 11. It is also vehemently contended that a person who sustained serious bleeding injuries on the head could not go to the police station covering about 4 kms.in a cycle and give a complaint. Though the Doctor P.W.5 would admit that it would have been difficult for P.W.1, who sustained serious injuries, to go to the police station to give a complaint, he would admit in the cross examination that it is all depending upon the physical capacity of the witness, who bear those injuries, and if he is physically strong, it would be possible for the person concerned to go to the police station in a cycle. So, on that reason, we are not able to reject the evidence of P.W.1. 12. Much was said about the non-recovery of fertilizer bags and blood stained earth. The failure to recover the fertilizer bags or blood stained earth on the part of the police cannot be a ground to reject P.W.1, whose evidence is consistent and cogent. The occurrence took place at 12'0 clock and the police came to the scene at 3.00 pm. So, in the meantime, what happened to the fertilizer bags? Nobody was able to say anything. But, it is the consistent version of P.W.1 in the complaint, in the statement during the course of investigation and in the deposition that he came along with the deceased with the gunny bags containing fertilizer and when they were proceeding towards the field, all the accused surrounded and attacked them. 13. It is true that both observation mahazar and rough sketch would show that fertilizer bags were not available. But, the said fact cannot be a ground to reject the evidence of P.W.1, whose statement is consistent from the beginning. The earliest document, viz., the complaint, which was registered at 12.30 pm, and Ex.P-12 wound certificate issued by P.W.5 would clearly show that totally four persons have involved. 14. It is contended by the counsel for the appellants that since two weapons M.Os.1 and 2 contained blood, two persons alone would have involved and not four. The earliest document, viz., the complaint, which was registered at 12.30 pm, and Ex.P-12 wound certificate issued by P.W.5 would clearly show that totally four persons have involved. 14. It is contended by the counsel for the appellants that since two weapons M.Os.1 and 2 contained blood, two persons alone would have involved and not four. But, it is the case of prosecution that when M.Os.3 and 4 were recovered by the police from A3 and A4, they did not find blood in M.Os.3 and 4 and therefore, those weapons have not been sent for chemical analysis. So, mere failure of police to find any blood in M.Os.3 and 4 would not be a ground to hold that only two persons must have been involved. 15. Of course, it is true that there was enmity between both the families for a long time. P.W.1 in the cross examination, would specifically state that the deceased already gave a complaint against A1 and A2 for the occurrence took place in the year 1995 and in that occurrence, both P.W.1 and deceased sustained injuries at the hands of A1 and A2. Similarly, A1 and A2 also gave a counter complaint, for which separate case had been registered. In such circumstance, there is no necessity for P.W.1 to implicate A3 and A4 also with reference to the occurrence, which took place in the year 1999. 16. There is no dispute in the fact that P.W.1 himself admitted that there was no quarrel between the parties from 1995 to 1999. It is also noticed that the prosecution has not placed any material to show that there was an immediate motive to attack the deceased. It may be a failure on the part of the police to collect the particulars about the immediate motive. If those particulars had been collected during the course of investigation with reference to the immediate motive, it could be an additional factor to strengthen the prosecution case. But, it does not mean that the evidence of P.W.1 on that reason has to be held unreliable. 17. According to P.W.1, A1 and A2 attacked the deceased and A3 and A4 attacked P.W.1. There were three injuries found on the body of deceased. If P.W.1 wanted to implicate all the accused, he would have said that three persons attacked the deceased and all the four persons attacked P.W.1, who sustained 9 injuries. 17. According to P.W.1, A1 and A2 attacked the deceased and A3 and A4 attacked P.W.1. There were three injuries found on the body of deceased. If P.W.1 wanted to implicate all the accused, he would have said that three persons attacked the deceased and all the four persons attacked P.W.1, who sustained 9 injuries. But, that is not the case here. The clear and consistent case throughout of P.W.1 is that A1 and A2 attacked the deceased and A3 and A4 attacked him. Under those circumstances, we are constrained to hold that the evidence of P.W.1 is the evidence of truth and he is a reliable witness and as such, his evidence can be acted upon. 18. Lastly, it is contended by the counsel for the appellants / accused 2 to 4 that since A3 and A4 attacked P.W.1 only, there cannot be any common intention with reference to the attack on the deceased. But, refuting the said contention, the learned Additional Public Prosecutor by citing the decision in Parasa Raja Manikyala Rao and another ..vs.. State of Andhra Pradesh ( 2003(7) Supreme 509 ) would contend that common intention could be inferred from the facts and circumstances of each case. 19. As per the above decision, the common intention implies pre-arranged plan and acting in concert to pre-arranged plan. Under this Section, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. The totallity of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit the offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. 20. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. 20. These principles have been laid down not only in the decision cited by the Additional Public Prosecutor, but also in the decision cited by the counsel for the appellants / A2 to A4 in Bhaba Nanda ..vs.. State of Assam ( AIR 1977 SC 2252 ). So, in the light of the above principles, if we look into the facts, we have no reason to hold that the common intention could not be inferred. 21. According to the prosecution, all the four were waiting for the arrival of the deceased and P.W.1 at that place. A1 with spear M.O.1 stabbed below the left chest and A2 with knife - M.O.2 stabbed on the lower abdomen of the deceased. When P.W.1 tried to come near, A3 shouted at P.W.1 and asked others to kill him also and so saying both A3 and A4 attacked P.W.1 and inflicted injuries indiscriminately causing 9 injuries. Most of the injuries were found on the skull. So, the fact that all the accused were waiting at a particular place expecting the arrival of the deceased and P.W.1 and all the accused were carrying the dangerous weapons like M.Os.1 to 4 and A1 and A2 attacked the deceased and A3 and A4 attacked P.W.1 at the same time would clearly indicate that there was a common intention to make attack both on the deceased and P.W.1. 22. In the light of the above referred to facts, we are to conclude that the attack made both on the deceased and on P.W.1 was only in furtherance of the common intention to cause injuries. Therefore, the conviction and sentence imposed upon the appellants for the offences under Sections 302 read with 34 and 307 read with 34 IPC are perfectly justified. Consequently, we are constrained to hold that there is no merit in the Appeals. 23. In the result, both the Appeals are dismissed confirming the conviction and sentence imposed on the Appellants (A1 to A4). Since A2 to A4 are on bail, the trial court is directed to take steps to secure the custody of A2 to A4 for serving the remaining period of sentence.