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2003 DIGILAW 819 (MAD)

Venkataraman v. State by Inspector of Police

2003-06-17

A.S.VENKATACHALA MOORTHY, S.SARDAR ZACKRIA HUSSAIN

body2003
Judgment :- A.S.VENKATACHALAMOORTHY, J. Learned Additional Sessions Judge, Vellore, convicted appellants-1 and 2 under Section 302 IPC and 341 IPC. and sentenced them to undergo life imprisonment and rigorous imprisonment for one month respectively; and convicted A-3 and A-4 under Section 302 read with 34, Section 323 and Section 341 IPC. and sentenced them to undergo life imprisonment, 6 months R.I. and one month R.I. respectively, by his judgment dated 30th May, 2000 in Sessions Case No.170 of 1998. Questioning the correctness of the same, the above appeal has been filed. 2. The case of the prosecution can be briefly stated as under:- One Varadhan and the deceased are neighbouring land owners. A-1 is the son of Varadhan while A-4 is his son-in-law. A-3 is the brother-in-law of A-2. PWs-1 and 2 are brothers. There was a ridge dispute between the deceased and Varadhan, they being the adjoining land owners. PW-3 is a resident of the same village. On 20.2.1998 at about 9 A.M., he was taking a cup of tea near Kesavapuram Check Post, when PW-2 was also there. At that time, A-1 to A-4 came near that shop and A-1 told PW-3 that the deceased had beaten his father and that he would deal with him suitably. PW-3 then persuaded them not to be enraged and that the matter can be talked over. Saying that he would not listen to PW-3 and that he was going to finish off the deceased Murugan, A-1 left with the other accused. In the evening, at about 5 P.M., PWs-1 and 2, who are cultivating the lands of deceased Murugan, were irrigating the crops. The deceased was also there, standing at a distance of about 50 ft. PW-1 saw A-1 coming on the ridge. A-1 asked the deceased to wait. Thereafter, all the accused picked up quarrel with the deceased orally. Thinking that some oral altercation is going on, PW-1 was attending to his work. But, very shortly thereafter, he turned again and saw the place where the accused and the deceased were standing. Then, he saw A-1 hitting the deceased on the right side of the head with a wooden log. Similarly, A-2 also attacked the deceased on the left side of the head while A-3 attacked the deceased on his hand. A-4 beat the deceased on his wrist with a wood. As a result of the injuries, there was bleeding. Then, he saw A-1 hitting the deceased on the right side of the head with a wooden log. Similarly, A-2 also attacked the deceased on the left side of the head while A-3 attacked the deceased on his hand. A-4 beat the deceased on his wrist with a wood. As a result of the injuries, there was bleeding. When PWs-1 and 2 ran towards the deceased, all the accused ran away. PW-1 asked PW-2 to go and inform the family of the deceased. Thereafter, PW-1 took the deceased by bus to the Arakkonam Government Hospital. As suggested by PW-1, PW-2 proceeded to the house of the deceased to inform his family members. PW-1 and the deceased reached the Government Hospital, Arakkonam at about 7.15 P.M. on 20.2.1998. PW-6, the Civil Surgeon attached to the said Hospital treated the deceased. The Doctor found the deceased to be conscious, alert and well oriented. From the Hospital, an intimation was sent to the Arakkonam Police Station. PW-5 is the son of the deceased, who, on receiving the information about the attack on the deceased by the accused, went to Arakkonam Government Hospital and saw his father. PWs-1 and 2 were also present. PW-9 is the Head Constable attached to Thakkolam Police Station. At about 8 A.M. on 21.2.1998, when PW-9 was in the station, he received a telephonic message from Arakkonam Town Police Station about the incident. Thereafter, he proceeded to Arakkonam Police Station and after getting the medical memo, proceeded to the Government Hospital. He saw the deceased and obtained a statement from him under Ex.P-9 and came back to the police station at about 10 A.M. and registered Cr. No.38/98 under Sections 341, 324 and 323 IPC., prepared F.I.R. Ex.P-10 and despatched the same to the Court. Thereafter, he proceeded to the scene of occurrence and prepared observation mahazar Ex.P-1 in the presence of PW-4 and others. Ex.P.11 sketch was also prepared by him. On 21.2.1998 at about 4 P.M., A-2 Gopal was arrested near Pudupalayam Check Post and he was sent for judicial custody. The Material Objects MOs-1 and 2 as well as MO-3 were seized from the scene of occurrence. On 23rd, as the condition of the deceased became serious, he was sent to the Government Hospital, Chennai. Along with the deceased, PW.5, his mother and sister also went. The Material Objects MOs-1 and 2 as well as MO-3 were seized from the scene of occurrence. On 23rd, as the condition of the deceased became serious, he was sent to the Government Hospital, Chennai. Along with the deceased, PW.5, his mother and sister also went. The deceased was treated for a couple of days in the Government Hospital, Chennai and thereafter, he died on 25.02.1998. On 25.2.1998 at about 11.45 p.m., PW-9 received the death intimation Ex.P.12. Thereafter, he altered the crime as one under Section 302 IPC, prepared Express F.I.R and despatched the same to the Judicial Magistrate-2, Arakkonam and to his superiors. PW-10 is the Inspector of Police, who received the copy of the Express Report at 5.30 A.M. on 26.2.1998 in Cr. No.38/1998 on the file of Thakkolam Police Station. PW-10 then proceeded to the General Hospital, Chennai and conducted inquest over the body of the deceased. Ex.P-14 is the inquest report. A requisition was sent by him to the Doctor to conduct post mortem. PW-7 is the Doctor attached to Kilpauk Medical College Hospital, Chennai, who, on receipt of the requisition from the Inspector of Police, commenced the post mortem on 26.2.1998 at 1.30 P.M. Ex.P-5 is the post mortem certificate issued by him, wherein he has noted the following:- "Injuries:- 1. Abrasions:- a) On left forehead on its outer aspect 6 x 2 cm; b) on front and middle of right hand thumb 3x2 cm. 2. Two vertical surgical sutured wounds on left parietal and right tempero parietal regions of vault of skull 8 cms. and 12 cms. in length on dissection: On removal of sutures the edges were regular, sharp and clean cut. 3. Sub scalp haematoma on right and left frontal and mid parietal regions of vault of skull. Bruising of sub scalp on the above mentioned regions. 4. Fissured fracture on left side frontal bone 6 cms. in length. 5. Sub dural and sub arachnoid haemorrhage seen on both frontal and left temporal lobes of brain. 6. Comminuted fracture of base of skull involving left side anterior cranial fossa 9 cms. in length. The Doctor had opined therein that the deceased would have died of shock and haemorrhage due to head injuries. PW-10, the Inspector of Police arrested accused Venkataraman at about 4 P.M. on 28.2.1998 and he was sent for judicial custody. 6. Comminuted fracture of base of skull involving left side anterior cranial fossa 9 cms. in length. The Doctor had opined therein that the deceased would have died of shock and haemorrhage due to head injuries. PW-10, the Inspector of Police arrested accused Venkataraman at about 4 P.M. on 28.2.1998 and he was sent for judicial custody. Subsequently, on 4.3.1998 at about 4 P.M., near Kumbinipettai Bus stand, PW-10 arrested accused Loganathan. The Inspector of Police proceeded with further investigation, examined witnesses on various dates including Doctors and filed his final report. 3. When questioned under Section 313 Cr.P.C., the accused pleaded innocence. 4. The question that arises for consideration is as to whether the prosecution has established its case beyond all reasonable doubts. 5. PW-7 is the Doctor, who conducted post mortem on the body of the deceased at about 1.30 P.M. on 26.2.1998. Ex.P.5 is the post mortem certificate. As to the injuries noted by the Doctor on the deceased, we have already extracted the same in the earlier part of this Judgment and hence, it is unnecessary to repeat the same over again. The Doctor has clearly opined that the deceased died of shock and haemorrhage due to the head injuries sustained. Even before Court, the Doctor has reiterated the same. The Doctor has further deposed that injury Nos.4,5 and 6 are fatal in nature. The Doctor has been cross examined only to the limited extent that as to whether injury No.1 could have been caused by a person falling on a rough surface. The Doctor has deposed that injury No.2 could have been caused by a knife. Thus, the medical evidence available on record would clearly show that the deceased died only of homicidal violence. 6. The occurrence was at 5 P.M. on 20.2.1998 in the field of deceased Murugan which was under cultivation by PWs-1 and 2. PWs-1 and 2 have deposed that at the said hour on that day, while they were irrigating the crops, the deceased was standing about 50 ft. away, when the accused came and attacked the deceased. The evidence of PWs-1 and 2 is to the effect that A-1, A-2 were armed with wooden logs (Uruttukattai) and A-4 armed with a wood (Marakombu). The attack by the accused on the deceased has been spoken to by PWs-1 and 2. away, when the accused came and attacked the deceased. The evidence of PWs-1 and 2 is to the effect that A-1, A-2 were armed with wooden logs (Uruttukattai) and A-4 armed with a wood (Marakombu). The attack by the accused on the deceased has been spoken to by PWs-1 and 2. The deceased was taken immediately by PW-1 by bus to the Arakkonam Government Hospital and there, he was treated by the Doctor PW-6. On the same day, at about 7.15 p.m., from the Arakkonam Government Hospital, intimation was sent to Arakkonam Town Police Station. Again, from Arakkonam Town Police Station, information was sent to Thakkolam Police Station. PW-9 is the Head Constable, who came to Arrakkonam Government Hospital and recorded the statement Ex.P.9 from the deceased. In Ex.P.9, the deceased has given all the details with regard to the occurrence, implicating all the accused. The deceased subsequently was transferred to Government General Hospital, Chennai, where he died on 25.2.1998 in spite of the treatment given. 7. Learned counsel appearing for the appellants/accused would make the following submissions:- (i) PWs-1 and 2, who are brothers, are admittedly closely related to the deceased and that being so, in the absence of any independent evidence, it may not be safe to rely on their testimonies. (ii)PW-1 has admitted that he was working as a Cooli in Koyambedu market and that normally, the work would start by 2 P.M. That being so, PW-1 could not have been present at the scene of occurrence in Pitchavalkam Village at about 5 P.M. on 20.2.1998. Hence, his presence at that time at the scene of occurrence has not been satisfactorily explained. (iii) Ex.P-9 complaint was given by the deceased on the next day, that was on 21.2.1998 at about 9 A.M., to the Head Constable PW-9 at the Government Hospital, Arakkonam and even in that complaint, he has not mentioned anything about the presence of PW-2 at the scene of occurrence. That being so, it would not be safe to give any credence to the testimony of PW-2 and his testimony has to be totally eschewed from consideration. (iv) Even according to PWs-1 and 2, both of them would admit before Court that the deceased gave a complaint to the police and in the said complaint, PW-1 also signed. That being so, it would not be safe to give any credence to the testimony of PW-2 and his testimony has to be totally eschewed from consideration. (iv) Even according to PWs-1 and 2, both of them would admit before Court that the deceased gave a complaint to the police and in the said complaint, PW-1 also signed. But however, Ex.P.9 appears to be a different complaint since the signature of PW-1 does not find a place therein. (v) PW-6 is the Doctor, who examined the deceased first at about 7.15 P.M. on 20.2.1998 at the Government Hospital, Arakkonam, to whom, the deceased told that he was attacked by four known persons and two unknown persons, but whereas, in the complaint Ex.P-9, the deceased had mentioned that he was attacked only by four known persons. (vi) That there was common intention among the accused to do away with the deceased has not been established, since while PW-3 speaks about the morning incident, PW-2, in his evidence, has not whispered anything in this regard. (vii) As far as A-3 and A-4 are concerned, it cannot be said that they shared the common intention to do away with the deceased. (vii) As far as A-1 and A-2 are concerned, admittedly, just prior to the occurrence, there was a wordy quarrel and obviously A-1 and A-2 lost the balance and attacked the deceased, making use of wooden logs that were available at the scene of occurrence. Since it is not the case of the prosecution that A-1 and A-2 carried the wooden logs (Uruttukattai) when they came to the field, in such an event, the offence would fall only under Section 304 Part I IPC. 8. Let us proceed to consider the various submissions made by the learned counsel for the appellants. 9. True, PWs-1 and 2 are brothers and sons of the deceased's brother. There is no dispute that they have taken the land in which the occurrence took place on lease from the deceased. The settled legal position is that the testimony of a witness cannot be eschewed totally from consideration on the ground that he is related to the deceased. While examining the testimony of an interested or a related witness, the court must be on the guard. The settled legal position is that the testimony of a witness cannot be eschewed totally from consideration on the ground that he is related to the deceased. While examining the testimony of an interested or a related witness, the court must be on the guard. In the event of the Court coming to the conclusion that the testimonies of related witnesses are worthy of acceptance, then, nothing can stand in the way and the Court can proceed to act on that and punish the guilty. This Court has to straight way reject the first submission as devoid of merits. 10. PW-1 has, in his evidence, stated that he is working as a Cooli in Koyambedu market and that the normal time of work will be only 2 P.M. in the afternoon. Placing reliance on that, it is contended that PW-1 could not have been present at the scene of occurrence. Admittedly, PWs-1 and 2 are brothers and had taken the land of the deceased on lease. It has to be remembered that PW-1 is not a regular and permanent employee in any particular shop. As could be seen from the evidence available on record, he was working only as a "Cooli". That being so, it is quite natural that whenever there is any work in the filed, he would remain in the field to carry out the agricultural operations. Hence, the contention of the learned counsel for the appellants that he is only a chance witness cannot be accepted. 11. The complaint was given none else than by the deceased himself at about 9 A.M. on 21.2.1998 to PW-9 at Arakkonam Government Hospital. In the complaint, he has stated about the manner of attack by the four accused and also the presence of PW-1. However, he has not stated about the presence of PW-2. Admittedly, the deceased was quite conscious and well oriented on 21st and 22nd of February, 1998. That being so, it is not known as to how it so happened that the deceased failed to mention the name of PW.2. One can understand if there are a number of eye witnesses, say 5 or 6, and the possibility of missing one or two names in the F.I.R. can be well accepted. That being so, it is not known as to how it so happened that the deceased failed to mention the name of PW.2. One can understand if there are a number of eye witnesses, say 5 or 6, and the possibility of missing one or two names in the F.I.R. can be well accepted. But in a case like this, where there are only two eye witness, it would be rather difficult to accept that only by oversight the deceased failed to mention the name of PW-2. Failure on the part of the deceased to mention the name of PW-2 would create a serious doubt in our minds and that being so, it would not be safe to act on the testimony of PW-2, more so when he is an interested witness. However, we are of the view that the testimony of PW-1 infuses confidence in the minds of this Court. We carefully perused the cross examination and we find, nothing has been elicited by the defence, which would persuade this Court to discredit the testimony of PW-1. The only suggestion that has been put forward is that because he is related and is cultivating the land of deceased Murugan, he has deposed falsely. The suggestion that he has deposed falsely, has been emphatically denied by PW-1. We are inclined to accept the testimony of PW-1. 12. The next submission is that the prosecution has suppressed an earlier complaint given by the deceased in which PW-1 has also signed. It is true that both PWs-1 and 2 have deposed before Court that in the complaint given by the deceased, PW-1 also signed. True, in the complaint that is now available ie., Ex.P9, the signature of PW-1 does not find place. Court has to bear in mind that the parties involved are villagers, who would not have remembered all the details correctly as to what happened on that day. It has to be noted that they were examined two full years after the occurrence. Hence, no serious view need be taken on this statement made by PWs-1 and 2. 13. The next submission that has been made is about the discrepancy with regard to the number of persons, who attacked the deceased. It has to be noted that they were examined two full years after the occurrence. Hence, no serious view need be taken on this statement made by PWs-1 and 2. 13. The next submission that has been made is about the discrepancy with regard to the number of persons, who attacked the deceased. PW-6, the Doctor has deposed before Court that when he examined the deceased Murugan at about 7.15 P.M. on 20.2.1998, he told him that he was attacked by four known persons and two unknown persons. However, in the complaint Ex.P-9 given to PW-9, he has stated that he was attacked by the four accused, who are the appellants herein. Of course, there is a discrepancy with regard to the number of persons. Admittedly, the deceased was attacked by A-1 and A-2 on the head and by A-4 on the left hand. In fact, there was bleeding and he fainted after the incident. It was PW.1, who took him to the Hospital by bus and they reached the Hospital at about 7.15 P.M. Even though the deceased was conscious and well oriented, he should have been under severe pain and shock. That being so, even assuming he had stated to the Doctor that he was attacked by four persons and two unknown persons, that would not affect the prosecution case since in the statement given to PW-9, the deceased had stated about the four known persons viz., the accused. It has to be pointed out that it is not as if that at the first instance, he told less number of persons as assailants and thereafter he increased the number. For the above reasons, we are not inclined to take anything serious of this minor discrepancy. 14. The next question is, as to whether there was a common intention among the accused to do away with the deceased. It is not the case of the prosecution that at the time of attack, any one of the accused shouted that the deceased should be done to death. But however, the prosecution would put forth a case to the effect that on 20.2.1998 at about 9 A.M., while PW-3 was taking tea in a shop near the check post, accused-1 to 4 came there and the 1st accused told PW.3 that his father was beaten by the deceased and hence, they are going to deal with the deceased suitably. The further case is that for the pacification made by PW-3, A-1 said that he would finish off the deceased and thereafter, all the four accused left. PW-3, in his evidence, has stated that PW-2 was present at that time. But however, if we see the evidence of PW-2, we find that he has not spoken to that effect. In view of this, it would not be safe to rely on the testimony of PW-3 for the purpose of coming to the conclusion that all the accused came to the spot with a common intention to finish off the deceased. In this view of the matter, we hold that there was no common intention among the accused to do away with the deceased. 15. Ex.P-9 is the complaint given by the deceased to PW-9 on 21.2.1998 at about 9 A.M. In the said complaint, he has stated that when A-3 attempted to attack him with a stone, he warded it off with his right hand and he sustained an injury on the thumb of the right hand. As far as A-4 is concerned, he beat the deceased on the left wrist. Of course, A-3 and A-4 attacked the deceased after the attack by A-1 and A-2. When A-1 and A-2 attacked the deceased, A-3 and A-4 would not have expected that deceased Murugan would die. They would have been only under the impression that the deceased had been attacked by A-1 and A-2 with wooden log with an intention to cause simple injuries. In that event, it can be only said that they shared the common intention to attack the deceased with a deadly weapon to cause simple injuries. Conviction in such an event can only be under Section 324 read with Section 34 IPC. so far as A-3 and A-4 are concerned. They are also liable to be convicted under Section 341 IPC. 16. The next question is as to what is the offence A-1 and A-2 have committed. True, there was enmity between the deceased and the father of A-1 and there was no direct enmity against them. It is not as if, prior to the occurrence, as such, there was any quarrel between the deceased on the one hand and A-1 and A-2 on the other. At the time of occurrence, for the first time, there was a wordy quarrel between them. It is not as if, prior to the occurrence, as such, there was any quarrel between the deceased on the one hand and A-1 and A-2 on the other. At the time of occurrence, for the first time, there was a wordy quarrel between them. PW-1, an eye witness to the occurrence, whom we have accepted, has stated that he cannot say as to whether the accused brought the wooden logs with them or they just made use of the wooden logs that were available at that place and initially there was a wordy altercation. Of course, both the accused attacked the deceased on the head of the deceased. The question would be whether they would have had the knowledge and intention to do away with the deceased. The occurrence was on 20.02.1998 and the deceased died only on 25.2.1998. The Doctor has stated that injury Nos.4, 5 and 6 are fatal in nature. In the circumstances of the case viz., that there was a sudden quarrel and that the accused acted in a heat of passion without any intention to do away with the deceased, we are of the view that the offence would fall under section 304 Part I IPC. and not under Section 302 IPC. They are also liable to be convicted under Section 341 IPC. 17. Coming to the sentence, we are of the view that A-3 and A-4 are liable to be convicted under Section 324 read with 34 IPC as well as under Section 323 IPC and to undergo rigorous imprisonment for three years and one year respectively. The sentence of one month R.I. under Section 341 IPC. is proper. The sentences are to run concurrently. As far as A-1 and A-2 are concerned, they are convicted under Section 304 Part-I IPC. and sentenced to undergo rigorous imprisonment for seven years. The conviction under Section 341 IPC. and sentence of one month R.I. shall stand confirmed. The sentences are to run concurrently. 18. It is stated that A-3 and A-4 (Appellants 3 and 4) have been in custody from 30.05.2000 and if that is so, by now, they should have undergone the imprisonment of three years. Hence, accused-3 and 4/appellants-3 and 4 shall be released forthwith unless they are required in connection with any other case. 19. Appeal is allowed in part to the extent indicated above.