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2003 DIGILAW 677 (MAD)

Jagadeesan v. The Inspector of Police

2003-04-17

A.S.VENKATACHALA MOORTHY, C.NAGAPPAN

body2003
Judgment :- A.S.VENKATACHALAMOORTHY, J. The appellant/1st accused along with five others were tried in Sessions Case No.34 of 1997 on the file of the II Additional Sessions Judge, Coimbatore, for various charges in connection with the murder of one Raju on 4.6.1995 at about 7 p.m. in front of Elite wine shop in Perur Main Road, Selvapurm, Coimbatore. By Judgment dated 30th August, 1999, the trial Judge found the appellant alone guilty under Section 302 IPC. and sentenced him to undergo life imprisonment. 2. The case of the prosecution is as under:- A-1 to A-6 so also PWs-1 to 5 were living in the locality known as Selvapuram, Coimbatore. A-1 is the son of elder brother of A-5. A-5 and A-6 are husband and wife. A-6 is the aunt of A-1. The Municipal Authorities had put up a dust bin near the house of the deceased to enable the public to throw the waste into it. A dispute arose between the deceased and the family members of A-5 with regard to its user. In fact, there was a petty case registered by the police and some of the members of the accused party also had to pay fine before the Court of Judicial Magistrate, Coimbatore. On 4.6.1995, at about 7 p.m., PW-1 was returning after answering calls of nature via Perur Main Road. When he was nearing Elite wine shop, situated east of the bus-stop, he saw the deceased coming from the opposite direction. The accused were standing near the wine shop. At that time, A-1 suddenly caught hold of the shirt collar of the deceased and said . Saying so, he took out a knife from his waist and stabbed the deceased on the back, left side of the stomach and on the left thigh. Seeing this, PW-1 shouted "Iyyo, Iyyo". A-2 then got the knife from A-1 and stabbed the deceased on the stomach. Following this, A-1, after taking the knife from A-2, stabbed the deceased several times. PW-1 again shouted "Iyyo, Iyyo". Thereafter, all the accused ran away from the scene, taking the weapon with them. PW-2, who was coming behind PW-1, also shouted. At 7 p.m., PW-3 was standing in the bus stop and talking to his friends Ramesh and Jagannathan and he happened to see the occurrence. PW-1 again shouted "Iyyo, Iyyo". Thereafter, all the accused ran away from the scene, taking the weapon with them. PW-2, who was coming behind PW-1, also shouted. At 7 p.m., PW-3 was standing in the bus stop and talking to his friends Ramesh and Jagannathan and he happened to see the occurrence. PWs-4 and 5, again residents of Selvapuram, were passing by at the relevant time when the occurrence took place, and they also witnessed the occurrence. Pws-1 and 2 took the deceased to the Government Hospital, Coimbatore. PW-13 is the Doctor attached to Coimbatore Medical College and Hospital at the relevant time. On 4.6.1995, at about 7.40 P.M., when he was in the Emergency Ward, the deceased was brought by PW-2. At the time of examination, according to the Doctor, the deceased was fully conscious and he told the Doctor that he was stabbed by a known person. Ex.P-12 is the accident register issued by the Doctor. The deceased was admitted as an in-patient. PW-13 sent an intimation in this regard to the out-post police station in the Hospital, which is marked as Ex.P-13. PW-11 is the Doctor, who was also working in the Emergency Ward in the said Hospital at the relevant time. Since the deceased died at about 7.55 p.m., PW-11 sent death intimation under Ex.P-9 to the Police. PW-1, after the death of the deceased at the hospital, proceeded to Selvapuram Police Station, where he met the Sub Inspector of Police (PW-15) at about 8.30 p.m. and gave an oral complaint and the same was reduced to writing. On the basis of the said complaint Ex.P-1, the Sub Inspector registered Cr. No.693/95 under Section 302 IPC. and prepared Ex.P-19, the printed FIR. The Sub Inspector then took steps to send Ex.P-1 as well as Ex.P-19 to the Court of Judicial Magistrate No.5 and copies to his superiors. PW-17 is the Inspector of Police, in charge of Selvapuram Police Station, at the relevant time. After receiving copy of the printed FIR., he proceeded to the scene of occurrence and reached there at 9 p.m. After inspecting the scene of occurrence, he prepared observation mahazar Ex.P-6 and sketch Ex.P-21 in the presence of witnesses. At the scene of occurrence, he seized MO-3 bloodstained earth and ordinary earth MO-4 in the presence of witnesses and the mahazar in this regard is Ex.P-7. At the scene of occurrence, he seized MO-3 bloodstained earth and ordinary earth MO-4 in the presence of witnesses and the mahazar in this regard is Ex.P-7. On the same night, at about 11 p.m., along with witnesses, he went to Coimbatore Government Hospital, where the deceased's son by name Jeevanantham was there and he recorded his statement. The bloodstained dhoti and shirt of the deceased viz., MOs-5 and 6 respectively were seized under Ex.P-8 mahazar. Inquest over the body of the deceased was held between 6 a.m. and 10 a.m. on 5.6.1995. Ex.P-22 is the inquest report. During inquest, he examined PWs-1 to 3 and others. A requisition was sent by him to the Doctor to conduct post mortem. PW-16 is the Doctor at the Coimbatore Medical College and Hospital, who conducted post mortem at about 10.45 a.m. on 5.6.1995 on the basis of the requisition made by the Investigating Officer. Ex.P-20 is the post mortem certificate issued by him in this regard. The Doctor had made the following notings in the post mortem certificate:- " Moderately nourished body of a male. The following stab wounds seen:- 1. 2 x 1 cm. cavity deep on left epigastric region. 2. 1 x 1/2 cm. cavity deep on left epigastric region 3 cm. outer to the wound No.1. 3. 2 x 1 cm. cavity deep on left epigastric region 5 cm. below to wound No.1 4. 2 x 1 cm. cavity deep on right epigastric region. 5. 2 x 1 cm. cavity deep on right epigastric region 1/2 cm. outer to wound No.4 6. 2 x 1 cm. cavity deep on left Iliac fossa. 7. 2x 1 cm. muscle deep on right Iliac fossa. 8. 2 x 1 cm. cavity deep on right infra scapular region. 9. 1 x ½ cm. cavity deep on back at the level of T.11 right side. 10. Stab wound 2 x 1 cm. muscle deep left gluteal region. 11. 2 x 1 cm. muscle deep left back of upper thigh. 12. 4 x 1 cm. bone deep on left outer aspect of upper leg. The margins of the above wounds are regular wedge shaped and covered with blood clots. The following incised wounds are seen:- 13. 2 x 1/2 cm. muscle deep on back of left elbow. 14. 3 x 1 cm. Tendon deep on dorsal aspect of left wrist. 15. 2 x 1 cm. bone deep on left outer aspect of upper leg. The margins of the above wounds are regular wedge shaped and covered with blood clots. The following incised wounds are seen:- 13. 2 x 1/2 cm. muscle deep on back of left elbow. 14. 3 x 1 cm. Tendon deep on dorsal aspect of left wrist. 15. 2 x 1 cm. bone deep back of right elbow outer aspect. 16. 2 x 1 cm. bone deep back of right elbow inner aspect. Small irregular abrasion of varying size and shape seen front of left lower chest 5 No's, right lower upper abdomen 1 No. and epigastric region 1 No. INTERNAL:- A. On exploration of the external wounds 1 to 5 of the external, they have pierced into the liver. B. On exploration of the wounds 8 and 9 of the external they have pierced to right lung. Abdominal cavity contained 200 ml. of fluid blood. Thorasic cavity right side contains 700 ml. of fluid blood. Hyoid bone – Intact. Trachea contained froth. Heart – chambers empty. No lesion. Lungs, Spleen and Kidneys are pale. Stomach contained partially digested rice particles. No odour. Mucosa normal. Small Intestine Empty. No odour. Mucosa normal. Urinary bladder – empty. Genitals cut section – Nil injury. Skull – No fracture. Brain – Cut Section – Pale. Blood preserved for grouping and comparison. " In the said certificate, the Doctor had opined that the deceased would appear to have died of haemorrhage and shock as a result of cumulative effect of injuries 1 to 5 and 8 & 9 and their corresponding internal injuries A & B. The further opinion of the Doctor is that the deceased would have died about 12 to 24 hours prior to post mortem. The Investigating Officer proceeded with the investigation and examined witnesses on 6.6.1995 and 7.6.1995. In the afternoon of 7.6.1995 at about 3.30 p.m., on the basis of the information received, the Inspector of Police arrested A-1 near Echanari Railway-Gate in the presence of PW-7 and another. On arrest, A-1 gave a voluntary confession statement and the admissible portion of the same is Ex.P-2. A-1 then took the police party and the witnesses to the house bearing Door No.34, Vinayaga Koil Street in Ganesapuram and took the knife MO-1 from the garret of the house which he had hidden there earlier and the same was recovered under Ex.P-5. A-1 then took the police party and the witnesses to the house bearing Door No.34, Vinayaga Koil Street in Ganesapuram and took the knife MO-1 from the garret of the house which he had hidden there earlier and the same was recovered under Ex.P-5. The bloodstained full shirt, MO-2 was also recovered from him under Ex.P-4 mahazar. We are not referring to the details with regard to the arrest of other accused in as much as they have already been acquitted. The Investigating Officer proceeded with the investigation and examined witnesses on various dates. Ex.P-16 is the chemical analysis report while Exs.P-17 and 18 are the reports of the Serologist. PW-18 is the Inspector of Police, who succeeded PW-17. After he assumed charge, he verified the investigation already done, and after completing the investigation, filed the final report. 3. When examined under Section-313 Cr.P.C., the appellant/1st accused took a firm stand that he is not Jagadeesan and that his name is Maria Soosai and that he has nothing to do with the murder of the deceased Raju. To substantiate his case, he let in oral and documentary evidence. He got examined himself as DW-6. He has deposed that his name is Maria Soosai and his father name is John, that he is residing at B1/131, South Housing Board Colony, Selvapuram, Coimbatore, and that he had studied up to +2. According to him, all the school records would show that his name is Maria Soosai and not Jagadeesan. The mark list issued to him Ex.D-1; Sports Certificate Exs.D-2 and D-3; Transfer Certificate Ex.D-4; Community Certificate Ex.D-5; Register issued by Coimbatore Annai Velankanni Church Ex.D-6 and Recommendation letter given to him Ex.D7, were filed by him. 4. The learned II Additional Sessions Judge, after elaborately considering the oral and documentary evidence came to the conclusion that the appellant/1st accused alone is guilty under Section 302 IPC. and acquitted all the other accused. 5. That the death of the deceased was due to homicidal violence is abundantly clear from the medical evidence placed before court by the prosecution. PW-13 is the Doctor attached to the Government Medical College Hospital, Coimbatore, who first saw the deceased at 7.40 P.M. on 4.6.1995, to whom the deceased told that he was attacked by a known person. The Doctor has categorically stated that at that time, the deceased was fully conscious. However, the deceased died shortly thereafter. PW-13 is the Doctor attached to the Government Medical College Hospital, Coimbatore, who first saw the deceased at 7.40 P.M. on 4.6.1995, to whom the deceased told that he was attacked by a known person. The Doctor has categorically stated that at that time, the deceased was fully conscious. However, the deceased died shortly thereafter. On the basis of the requisition made by the Inspector of Police, PW-16, the Doctor attached to Coimbatore Medical College Hospital, conducted post mortem on 5.6.1995 in the fore-noon. Ex.P-20 is the post mortem certificate issued by him. The Doctor noticed as many as 18 injuries and most of them are stab injuries. We have referred to all the injuries noted by the Doctor in the earlier part of this Judgment and hence, we are not referring to the same once again here. In the said Certificate, the Doctor had opined that the deceased would have died of haemorrhage and shock as a result of cumulative effect of injury Nos.1 to 5 and 8 & 9 and their corresponding internal injuries A & B, about 12 to 24 hours prior to autopsy. Before Court, the Doctor has categorically stated that the injuries could have been caused by a weapon like MO-1. We may straight away say that nothing has been elicited in the cross examination of the Doctor, which would persuade this Court to come to the conclusion that the prosecution has not proved that this is a case of homicidal death. 6. The question that arises for consideration is, whether the prosecution has proved its case beyond all reasonable doubts. 7. According to the prosecution, because of some enmity between the deceased on the one hand and some of the members of the accused party on the other, the deceased was attacked on 4.6.1995 at about 7.30 P.M. in front of Elite wine shop in Perur Main Road in Selvapuram. According to PW-1, he was on the way back to his house after answering calls of nature and when he was nearing Elite wine shop, he saw the deceased coming from the opposite direction and at that time, the appellant and other accused, who were already there, attacked the deceased and this was witnessed by PW-2, who was also coming behind him. The attack by A-1 and A-2 was by the same weapon. The attack by A-1 and A-2 was by the same weapon. After the attack, PWs-1 and 2 took the deceased to the Hospital, where he died within half an hour in spite of the treatment given. The occurrence was also witnessed by PWs-3 to 5, who happened to be there at the relevant time. 8. Learned counsel for the appellant would put forth various submissions in his endeavour to persuade this Court to reject the case of the prosecution. Firstly, he contended that the names of PWs-3 to 5 do not find a place in the FIR. and that they are in the nature of chance witnesses and hence, it would not be safe to accept their testimonies. Secondly, it is submitted that all the witnesses have uniformly and clearly given an exaggerated version, which would definitely raise a serious doubt in the minds of the Court as to whether it would be safe to accept their testimonies, particularly when all of them can be characterised as chance witnesses. Thirdly, the learned counsel would contend that the documentary evidence Exs.D-1 to D-7 would clinchingly show that A-1 is one Maria Soosai, S/o. John and residing at B1/131, South Housing Board Colony, Selvapuram and that he is not the person whom the police is searching for. Yet another submission has been made to the effect that non-examination of the Echanari Railway Gate-man, who witnessed the arrest of A-1 so also the non-examination of the auto-driver in whose auto, according to the prosecution, the deceased was taken to the Hospital, would belie the case of the prosecution. According to the learned counsel, it would be totally unsafe to convict the accused on the untrustworthy testimonies of the witnesses and in the face of the overwhelming documents Exs.D-1 to D-7 produced by the appellant/1st accused. 9. The occurrence took place in a public street at about 7 p.m. in Perur Main Road in front of Elite wine shop. True, broadly speaking, all the eye witnesses PWs-1 to 5 can be described as chance witnesses. But merely on that ground, their testimonies need not be rejected. We may straight away say that we do see that the names of PWs-4 and 5 do not find a place in the FIR and that they were not in fact examined during inquest also. But merely on that ground, their testimonies need not be rejected. We may straight away say that we do see that the names of PWs-4 and 5 do not find a place in the FIR and that they were not in fact examined during inquest also. Giving benefit of doubt, we eschew from consideration the testimonies of these two witnesses. 10. Of course, the name of PW-3 does not find a place in the FIR. But however, he was examined at the inquest by the Investigating Officer. In the absence of any motive for PW-3 to depose falsely against the appellant/accused, we are inclined to treat the testimonies of PWs-1 to 3 on par and proceed to consider whether their testimonies are worthy of acceptance. 11. The main attack, as far as the testimonies of these witnesses are concerned, is that they have come forward with what is called a highly exaggerated version before court when compared to what is stated in the complaint. True, in the complaint, what all PW-1 has stated is that A-1 took out the knife which he was having in his waist and stabbed the deceased on the stomach and back so also on the leg indiscriminately and that on seeing PWs-1 and 2 shouting, the appellant/1st accused ran away. But before court PWs-1 to 3 have uniformly stated that the 1st accused stabbed the deceased twice or thrice and that thereafter, A-2 took the knife from A-1 and he also stabbed. Again, A-1 got back the knife from A-2 and stabbed further. Thus, there is an exaggeration on two aspects viz., (i) the presence of A-2 to A-5; and (ii) the stabbing of the deceased by A-2. 12. The occurrence in this case took place on 19.15 Hours on 4.6.1995 and the complaint Ex.P-1 was lodged before the Police at 20.30 Hours. on the same day and the police station was about 1 km. away from the scene of occurrence. So within an hour and quarter, the complaint was given. In view of the fact that PWs-1 to 3 are not in any way connected with the deceased, either related or interested in him, certainly, there would have been no scope for their coming forward with a false case and giving an incorrect report. away from the scene of occurrence. So within an hour and quarter, the complaint was given. In view of the fact that PWs-1 to 3 are not in any way connected with the deceased, either related or interested in him, certainly, there would have been no scope for their coming forward with a false case and giving an incorrect report. The learned counsel took us through the cross examination of these witnesses but however has not succeeded in persuading this Court to reject them in toto. The Supreme Court has repeatedly held that the duty of the Court is to sift chaff from the grain and find out the truth in the prosecution case. Again, it has pointed out that there is always a tendency for the witnesses to give an exaggerated version and that simply because such version is given, and that a portion of the testimonies of witnesses are not worthy of acceptance, that would not mean, the entire deposition of witnesses have to be eschewed from consideration. [Refer:- 2000 SCC (Crl) 222 Leela Ram vs. State of Haryana). Applying the principle laid down by the Supreme Court, this Court is inclined to accept the testimonies of PWs-1 to 3 and this Court does not find any reason whatsoever to eschew the entire evidence of these witnesses from consideration. 13. Learned counsel appearing for the appellant strenuously contended that the prosecution has committed a blunder in proceeding against the appellant/accused, who is Maria Soosai and not Jagadeesan . According to the learned counsel, the Investigating Agency instead of taking pains to trace out the alleged real assailant Jagadeesan, has been torturing the appellant by proceeding against him. 14. The accused/appellant has filed as many as 7 documents to substantiate his case, apart from examining himself as DW-6. Ex.D-1 is a mark list issued by the Department of Government Examinations with reference to the Higher Secondary examination conducted in March, 1990. The said document mentions the name of J. Maria Soosai. Ex.D-2 is a Sports Certificate issued in the name of Maria Soosai, dated 8.3.1988. Similarly, Ex.D-3 is a Certificate issued by the Sports Authority of India which also mentions the name of Maria Soosai for participating in Sports held in Coimbatore in December, 1986. The said document mentions the name of J. Maria Soosai. Ex.D-2 is a Sports Certificate issued in the name of Maria Soosai, dated 8.3.1988. Similarly, Ex.D-3 is a Certificate issued by the Sports Authority of India which also mentions the name of Maria Soosai for participating in Sports held in Coimbatore in December, 1986. Ex.D-4 is a Transfer Certificate issued by the Corporation Higher Secondary School, Selvapuram to one J.Maria Soosai, in May 1990, which mentions the name of the father as John. Ex.D-5 is a Community Certificate issued to one Maria Soosai, S/o. John of Komarapalayam village and that is dated 1.3.1994. Ex.D-6 is a family registration card issued by Annai Velankanni Church and Ex.D-7 is a recommendation letter issued in March, 1994 by the then M.L.A., which mentions the name of Maria Soosai. Basing on these documents, the appellant/1st accused would contend that he is only Maria Soosai and not Jagadeesan as claimed by the prosecution. True, all these documents pertain to one individual by name Maria Soosai, S/o. John. But a question would still remain as to whether the appellant is Maria Soosai. Had the appellant produced any identity card containing his photograph and duly certified by the competent authority, then that would have created a serious doubt and would have been very much in favour of the appellant. For instance, if the appellant had produced his pass-port or a bus-pass issued by the transport authority or a train pass issued by the Railway Authorities or a Pass-Book issued by a Bank containing his photograph (obtained prior to the date of occurrence), then, the position might be different. 15. The learned Additional Public Prosecutor, defending the State, would meet this point of the learned counsel for the appellant by submitting that this claim of the appellant is purely an after-though. Elaborating his submission, the learned Prosecutor would contend that this objection was not taken before the learned Magistrate. That apart, the learned Prosecutor would draw the attention of this Court to page 96 of Part-II of the Committal Court Records. It is the remand report submitted by the Investigating Officer, requesting the Magistrate to extend the remand of A-1 and A-2 since the remaining four accused are yet to be secured. In the said document, A-1 has signed as Jagadeesan. It is the remand report submitted by the Investigating Officer, requesting the Magistrate to extend the remand of A-1 and A-2 since the remaining four accused are yet to be secured. In the said document, A-1 has signed as Jagadeesan. That apart, the learned Judicial Magistrate No.IV, Coimbatore, served the copies such as FIR etc., totally 19 in number, on 21.12.1996. After furnishing copies to the appellant, three questions were put to him viz., (i) Whether he is aware that his case is committed to Sessions?; (ii) Whether he has got means to engage a counsel?; and (iii) Whether he has received a copy of the order? For all these questions, he answered in the affirmative. The questions and answers were recorded by the Magistrate and after each question, the appellant has signed his name as Jagadeesan. Apart from this, we also find that the appellant/accused did not complain anything before the Magistrate. In these circumstances, this Court has absolutely no hesitation whatsoever to come to the conclusion that the claim of the appellant that he is Maria Soosai and not Jagadeesan is purely an after though and that it is only to escape from the clutches of law. 16. Then, we have the recovery made by the prosecution. PW-17 is the Investigating Officer, who has categorically deposed that on 7.6.1995, at about 3.30 P.M., on the basis of the information received by him, he proceeded to Echanari Railway Gate, where he arrested the appellant in the presence of PW-7 and another. On arrest, the appellant/accused gave a voluntary confession statement and the admissible portion of the same is Ex.P-2. He has also testified that the appellant took the police party and the witnesses to a house bearing Door No.34, Vinayagar Koil Street, Ganesapupram and that he produced a bloodstained knife from the garret of the house, which he had hidden there earlier. The Investigating Agency also recovered a bloodstained full shirt from A-1. PW-7 is the mahazar witness, who was also present at the time of arrest of the appellant and while he was giving confession statement. Though he was subjected to a lengthy cross examination, we do not find anything which would persuade this Court to disbelieve his testimony. The material objects viz., the knife as well as the shirt of the first accused were sent for chemical analysis. Ex.P-17 is the report of the Serologist. Though he was subjected to a lengthy cross examination, we do not find anything which would persuade this Court to disbelieve his testimony. The material objects viz., the knife as well as the shirt of the first accused were sent for chemical analysis. Ex.P-17 is the report of the Serologist. It is seen from the said report that both the knife and the shirt of the appellant were found stained with human blood. The materials placed before Court by the prosecution would amply show that MO-1 was recovered pursuant to the confession statement made by the appellant which was found to contain human blood. Thus, the prosecution has established the recovery also and the same would help the prosecution to some extent. 17. This Court does not really find any substance in the submission that the prosecution case has to fail for the reason that the gate man of the Echanari Railway gate, who should have been present according to the accused, has not been examined so also the driver of the auto-rickshaw in which the deceased was taken to the hospital. The ocular evidence of PWs-1 to 3, the medical evidence of PWs-11, 13 and 16 and the recovery of the Material Objects are sufficient enough for this Court to come to a definite conclusion that it was the appellant/1st accused, who committed the murder of the deceased. This Court does not find any merit in the appeal. The Judgment of the learned II Additional Sessions Judge, Coimbatore is just and proper and does not call for any interference. 18. In the result, the Criminal Appeal stands dismissed. The conviction and sentence imposed by the trial court on the appellant/first accused are confirmed.