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2003 DIGILAW 716 (MAD)

Jainlabdin v. The State

2003-04-24

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2003
Judgment :- M.KARPAGAVINAYAGAM, J. A1 Jainlabdin, A2 Radha Krishnan and A3 Abdul Ajeez @ Siraj were convicted for the offences under Sections 449. 506(ii), 352 and 302 IPC and 302 read with 34 I.P.C. and sentenced them thereunder. Challenging the same, this appeal has been filed. 2. The facts leading to conviction are as follows:- a) Deceased Mohammed Ismail married the sister of the first accused Jainlabdin. Out of their wedlock, two children were born. Seven months prior to the date of occurrence, the deceased Mohammed Ismail murdered his wife and two children. On the complaint of A1, a murder case was registered against the deceased Mohammed Ismail and he was arrested. P.W.1 Ramasamy is the counsel engaged by the Legal-Aid Committee to appear on behalf of the deceased Mohammed Ismail. He filed bail application and obtained bail for the deceased. The condition imposed on the deceased Mohammed Ismail was that he must report before the Sessions Court daily at 11 am. b) On 14.8.1996, the deceased Mohammed Ismail went and reported to the Court as per the condition and then came to the office of his counsel P.W.1 Ramasamy, which is situated near the Court premises. While the deceased was sitting inside the office, A2 Radha Krishnan came to the advocate's office and asked the deceased to come out from the office of P.W.1. When P.W.1 asked the deceased as to who called him, the deceased told him that the said person is an associate of A1, who is his brother-in-law. Then, P.W.1 asked A2 to go away. Within a few minutes thereafter, A1 Jainlabdin, the brother-in-law of the deceased and his associates, A2 Radha Krishnan and A.3 Abdul Ajeez alias Siraj, came to the office and after entering into the office, locked the office from inside. c) When P.W.1 asked the accused to go out, they took out aruval from their back and threatened P.W.1 that he would be done away with. At that time, P.W.3 Typist Sakthi was also present. Then, the accused dragged the deceased from the wooden bench and the accused No.1, with aruval, severed his right hand. Other two accused gave indiscriminate cuts on the right and left side of the body of the deceased. Thereafter, all the three accused went outside and took the scooter and sped away. d) P.W.3 Typist Sakthi was able to note down the scooter number. Other two accused gave indiscriminate cuts on the right and left side of the body of the deceased. Thereafter, all the three accused went outside and took the scooter and sped away. d) P.W.3 Typist Sakthi was able to note down the scooter number. While the accused ran away, one of the accused threw his aruval on the roof of another lawyer's office, which is situated just opposite to the office of P.W.1. At that time, the deceased, who was lying down with injuries in a pool of blood, was gasping for breath and therefore, P.W.1 rushed to Kottar Police Station, which is situated nearby and informed about the occurrence at 1.55 pm. e) P.W.17 Inspector of Police made entry in Ex.P21 General Diary and proceeded to the scene of occurrence and found the deceased with injuries struggling for life. Then, he immediately made arrangements for sending the victim-deceased to the Government Hospital, Kottar. PW.7 Dr.Rajkumar admitted him and issued Ex.P11 Copy of accident register and sent Ex.P10 intimation report. In the meantime, P.W.1 gave Ex.P1 complaint to P.W.12 Head Constable of Kottar Police Station and on that basis, a case was registered under Sections 307 and 506(ii) IPC. Ex.P21 is the FIR. f) P.W.10, the Inspector of police, attached to Susindram Police Station, who came out of the Court after finishing the work, happened to see A1 driving the scooter with blood-stained aruval and severed hand. He was stopped and interrogated. In the meantime, on receipt of the message, P.W.17 came to the place and arrested A1 at about 2.30 pm near the Court building and recovered M.O.1 aruval and M.O.4 scooter from him. He also recovered M.Os.11 and 12 blood-stained clothes of A.1 from him. g) In the meantime, the severed hand was sent to P.W.7 Dr.Rajkumar. P.W.17 received Ex.P12 death intimation at about 4 pm and thereafter, the case was altered into one under Sections 302 and 506(ii) IPC. Then, he went to the scene of occurrence and prepared Ex.P6 observation mahazar and Ex.P25 rough sketch and he also recovered M.O.2 aruval from the roof of neighbouring advocate office, M.O.5 blood-stained earth and M.O.6 sample earth. h) Inquest was conducted on the next day morning and P.W.17 examined P.Ws.1 to 12 and others. Ex.P22 is the requisition which was sent for post-mortem. h) Inquest was conducted on the next day morning and P.W.17 examined P.Ws.1 to 12 and others. Ex.P22 is the requisition which was sent for post-mortem. P.W.16 Dr.Suresh conducted post-mortem and found six injuries on the body of the deceased and opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. Ex.P23 is the post-mortem certificate. i) P.W.17 arranged for sending the material objects for chemical examination. After his retirement, his successor P.W.18, another Inspector of Police, took up the case for further investigation on 16.6.1997, he arrested A2 Radha Krishnan and on 18.6.1997, arrested A3 Abdul Ajeez alias Siraj. On the confession of A3, he recovered M.O.3 blood-stained aruval. Thereafter, he sent Ex.P2 requisition to the Court to conduct identification parade for A.2 and A3. Accordingly, P.W.2 Judicial Magistrate, Nagercoil conducted identification parade on 9.7.1997, in which, A2 was correctly identified by P.W.1. j) On 10.7.1997, another identification parade was conducted and in that, A3 was correctly identified by P.W.1. Then, P.W.18 continued the investigation. After completing the same, he filed charge sheet against all the accused under Sections 449, 352, 302 read with 34 and 506(ii) I.P.C.. k) During the course of trial, the trial Court examined P.Ws.1 to 18, filed Exs.P1 to P27 and marked M.Os.1 to 13. l) While the accused were questioned under Section 313 Cr.P.C. they simply denied their complicity in the crime. A2 and A3 would further state that even before the identification parade, they were shown to P.W.1 and as such, identification parade has not been properly conducted. No witness was examined on the side of defence. However, Exs. D.1 to D.4 were marked on their side. m) The trial Court, after considering the materials available on record, concluded that the prosecution has established the guilt of the accused beyond all reasonable doubts and convicted and sentenced them thereunder. Hence, the appeal. 3. No witness was examined on the side of defence. However, Exs. D.1 to D.4 were marked on their side. m) The trial Court, after considering the materials available on record, concluded that the prosecution has established the guilt of the accused beyond all reasonable doubts and convicted and sentenced them thereunder. Hence, the appeal. 3. Mr.P.Suresh, learned counsel for A1 and A2, would take us through the entire evidence and contend that P.W.1 would not have been present in the place of occurrence, as in the memo Ex.D1 filed by him before the Court on 16.8.1996, he stated that the occurrence had taken place in some other place and further, the evidence of P.Ws.2 and 3 would make it clear that there are various contradictions and a perusal of evidence of P.W.12 Head Constable and P.W.17 Inspector of Police would indicate that the complaint would not have been registered at the time as alleged by the prosecution. He would further contend that there are various infirmities in the evidence adduced by the prosecution. It is also contended that P.W.3 has neither identified the accused in the parade nor in the Court and as such, in the absence of any acceptable evidence, the accused cannot be convicted for the offences referred to above. 4. Mr.D.Veerasekaran, learned counsel appearing for A3, would submit that though the occurrence had taken place on 14.8.1996, A3 was arrested only on 18.6.1997 i.e., one year later and blood-stained weapon was recovered on his confession and in the light of A3's statement made before the Judicial Magistrate, Nagercoil that he was shown to P.W.1 even before the identification parade, the evidence of P.W.1 as against A.3 is unreliable particularly when there are number of variations between Ex.P1 complaint and P.W.1's evidence. 5. On the above aspects, we have heard Mr.E.Raja, Additional Public Prosecutor. 6. We have given our thoughtful consideration to the rival contentions urged by the counsel for the parties and also gone through the entire records. 7. According to the prosecution, the deceased Mohammed Ismail murdered his own wife and two children, seven months prior to the date of occurrence. In the said case, he was released on bail and was asked to report before the Court daily. 7. According to the prosecution, the deceased Mohammed Ismail murdered his own wife and two children, seven months prior to the date of occurrence. In the said case, he was released on bail and was asked to report before the Court daily. To take revenge upon the deceased, the first accused, who is the brother of the wife of the deceased, along with A2 and A3, came to the office of P.W.1, the advocate, who is appearing for the deceased Mohammed Ismail in the murder case, and attacked the deceased, while he was in the office of P.W.1 iin the very presence of P.W.1 advocate and P.W.3 Typist. 8. Immediately after the occurrence, P.W.1 rushed to the Police Station and gave the intimation to P.W.17, the Inspector of Police. Even without registration of any case, P.W.17, on coming to know that the deceased was lying down with injuries in the office premises of P.W.1 in a pool of blood, made an entry in Ex.P2 General Diary and rushed to the scene of occurrence. On noticing that the deceased was gasping for breath with injuries all over the body, he made arrangements for sending him to hospital. P.W.7 Dr.Rajkumar admitted him in the hospital and gave treatment. He found that a hand was severed and there were six injuries on various parts of the body. 9. Exs.P10 and P11 are the documents, which would refer to the admission of the deceased at about 2.10 pm. Admittedly, a memo was not sent with the victim/deceased to the hospital. In Ex.P11, there is no reference about the memo and it is merely stated that the victim/deceased was accompanied by a Police Constable. Only at 2.30 p.m., P.W.12 Head Constable received the complaint from P.W.1 and registered the case under Sections 307 and 506(ii) IPC. Ex.P12 death intimation was sent by P.W.8 Dr.Sarithakumari after the death of deceased at 4 pm. Thereafter, the case was altered into Section 302 IPC by P.W.17. 10. Thus, it is clear that even before the registration of the case on the complaint of P.W.1, at about 2.30 pm, P.W.17, after making an entry in the General Diary at about 1.55 pm, made arrangements to send the deceased to the hospital to save his life. Ex.P27 is the entry in General Diary which is the earliest document in this case. 11. Ex.P27 is the entry in General Diary which is the earliest document in this case. 11. As indicated above, Ex.P27 was prepared by P.W.17 at about 1.55 pm. Similarly, Ex.P10 admission of the deceased by P.W.17 and Ex.P11 accident register with reference to the injuries found on the body of the victim/deceased were prepared at 2.10 pm. Thus, it is clear that the documents such as Ex.P27, Ex.P10 and Ex.P11 were prepared even before the registration of the case as per the complaint given by P.W.1, viz., Ex.P1 at 2.30 pm. 12. A perusal of Ex.P27 would clearly indicate that P.W.1 rushed to Police Station immediately after the occurrence to make arrangements for sending the victim/deceased to the hospital without wasting even a minute for preparing the complaint and bringing the same to Inspector of Police. In the same way, P.W.17 Inspector of Police did not insist for complaint and on the other hand, he made an entry in the General Diary and came to the scene of occurrence and sent the victim to the hospital without any delay. 13. In view of these, it cannot be stated that P.W.1 would not have been present in his office when the occurrence had taken place at 1.45 pm. Within ten minutes, P.W.1 rushed to the police station and gave intimation to P.W.17, which was recorded in Ex.P27 at about 1.55 pm. This would indicate that P.W.1 was present at the time of occurrence and he was also threatened by all the accused before the deceased was attacked. These things have been clearly mentioned in Ex.P1 complaint, which has been registered by P.W.12 Head Constable at about 2.30 pm. 14. A reading of the evidence of P.W.1, as a whole, in our view, would show that it is trustworthy and his deposition made before the Court, cannot at all be doubted, especially, when the crux of his deposition is in consonance with the contents in Ex.P1 complaint. There is no necessity for P.W.1, who is a practising lawyer, aged about 60 years, to falsely implicate A.1 to A3 in a murder case. 15. It may be true that there are no materials to show that A.2 and A3 have no direct motive to cause the death of the deceased. But, we should not forget that it is a clear case that A2 and A3 are close associates of A1. 15. It may be true that there are no materials to show that A.2 and A3 have no direct motive to cause the death of the deceased. But, we should not forget that it is a clear case that A2 and A3 are close associates of A1. P.W.1 would specifically state that when A.2 came and asked the deceased to come out of his office, P.W.1 asked the deceased as to who was he and for that, the deceased replied that A2 was the associate of A1. According to P.W.1, he asked him to go out of the office as he thought that he had come to cause some harm to the deceased. 16. As a matter of fact, P.W.1 would state in cross-examination that he made preparation for drafting a complaint seeking protection for the deceased at the hands of A1 and his associates on the instructions of the deceased. The occurrence had taken place in a day- light. Even though P.W.1 had sufficient time to identify the face of A2 and 3, who are not earlier known to him, the investigation officer thought it fit to conduct identification parade after the arrest of A2 and A3. Accordingly, identification parades were conducted on 9.7.1997 and 10.7.1997 in which P.W.1 correctly identified both of them. 17. Though it was complained to P.W.2 Judicial Magistrate by accused Nos.2 and 3 that they were earlier shown to the witness, no material has been placed by them to show that such a complaint is true. On the other hand, the evidence of P.Ws.1 and 2 would clearly indicate that P.W.1 identified accused Nos.2 and 3 correctly in the identification parade. 18. Much was said about the contradiction between the contents in Ex.P1 and deposition of P.Ws.1 to 4. Siimilarly, it was pointed out that there are variations with reference to evidence of PW.1 and Ex.P1 complaint given to P.W.12. We do not think that those variations would be so important so as to affect the case of the prosecution. 19. It may be true that P.W.3 did not participate in the parade. Further, as correctly pointed out by the learned counsel for the appellants that P.W.3 did not clearly identify the accused in the Court also. We do not think that those variations would be so important so as to affect the case of the prosecution. 19. It may be true that P.W.3 did not participate in the parade. Further, as correctly pointed out by the learned counsel for the appellants that P.W.3 did not clearly identify the accused in the Court also. However, the fact that three persons entered into the Advocate's office with aruvals and attacked the deceased and sped away in the scooter had been clearly spoken to by P.W.3. Furthermore, P.W.3 was able to note down the scooter number and the same had been given to Inspector of Police. Within a few minutes, accused No.1 with the very same scooter, was intercepted by P.W.10 Inspector of Police of Susindram Police Station and while the accused No.1 was interrogated, he came to know that he had involved in the murder incident and consequently, a message was given to P.W.17, who in turn, came to the place and arrested the accused No.1 with M.O.4 scooter. 20. It is also noticed that the evidence of P.W.1 has been clearly corroborated by medical testimony of P.W.7, the Doctor who found six injuries on the body of the victim/deceased and P.W.16, the Doctor who conducted postmortem and gave an opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. 21. Under those circumstances, we are of the view that the prosecution has proved its case beyond reasonable doubt and the conviction and sentence imposed on the accused cannot be said to be illegal and consequently, the appeal is dismissed, confirming the conviction and sentence imposed on the appellants by the trial Court.