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2008 DIGILAW 1105 (MAD)

Arumugam v. State rep. by the Inspector of Police

2008-03-28

P.D.DINAKARAN, R.REGUPATHI

body2008
Judgment : R. Regupathi, J. The case of the prosecution is that on 07.05.1998 at about 4.30 A.M. in Throwbathiamman Temple at Thenmambakkam Village, on account of prior enmity between the first accused and deceased Dharmalingam, A-1 to A-7, with an intention to cause the death of the deceased and to assault one Chinnayyan, formed an unlawful assembly and, in furtherance of such common intention, armed with weapons, went to the place where the deceased was sleeping and caused injuries on his body with knife and stick, resulting in his death. In the same course of transaction, they caused grievous injuries to the brother of the deceased by name Chinnayyan. The trial court framed charges against the accused for offences punishable under Sections 147, 148, 342, 307, 326, 323, 302 and 302 read with 149 IPC. On conclusion of the trial, while acquitting A-3 to A-7, the trial court convicted A-1 and A-2 for the offence punishable under Sections 302 read with 34 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.1,000/-. They were also convicted for the offence under Section-324 IPC. and imposed with a fine of Rs.500/-. The sentences were ordered to run concurrently. A-1 and A-2, who are brothers, have preferred the present Criminal Appeal aggrieved by the order of conviction and sentence passed against them by the trial court. 2. During the course of trial, the prosecution examined PWs-1 to 22, of whom, PWs-1 to 4 were cited as eye witnesses to the occurrence, PWs-11 and 12 were examined to speak about the attack on Chinnayyan and PWs-6 to 10 to substantiate the quarrel which ensued between A-1 and the deceased, and the panchayat conducted to pacify them. Further, the prosecution marked Exs.P-1 to P-26 and produced MOs-1 to 13. The learned trial Judge disbelieved the evidence of PWs-1 and 2, but, relying on the evidence of PWs-3 and 4, though they were partially treated as hostile witnesses, and also other materials/piece of evidence available on record, convicted A-1 and A-2 under Section 302 read with 34 IPC. Equally, the trial court convicted A-1 and A-2 under Section 324 IPC for causing grievous injuries on Chinnayyan by placing reliance on the evidence of PWs-11 and 12. Equally, the trial court convicted A-1 and A-2 under Section 324 IPC for causing grievous injuries on Chinnayyan by placing reliance on the evidence of PWs-11 and 12. The case of the prosecution, as unfurled by its witnesses, is narrated here-under in a compact manner, i) PW-1 is the sister of the deceased. She has stated that on the previous day, there was a quarrel between A-1 and the deceased at Panapakkam while they were having food in a Hotel and at that time, A-1 and the deceased beat each other. A-1 gave a complaint to the police in that regard and after coming to know about the same, PW-1 took the deceased to the Village Administrative Officer for lodging a complaint with him, however, he was not available and therefore, both of them returned back. In view of such quarrel, as it was night, PW-1 directed the deceased and another brother Chinnayyan to sleep at the Temple and returned back home. On the next day, at 4.30 A.M., when she went to the Temple to wake them up, she saw A-1 armed with knife and A-2 with stick assaulting the deceased. The other accused were holding the deceased to facilitate A-1 and A-2 attacking him. PW-1 raised noise and also informed the same to PW-2, who is residing very close to the place of occurrence. Thereafter, both the deceased and Chinnayyan were shifted to the Government Hospital, Arakkonam, through bullock-cart. PW-5, the father of the deceased, on coming to know about the occurrence, reached the scene place and he also accompanied PW1 in taking the deceased and Chinnayyan to the hospital. Though Chinnayyan was admitted in the Government Hospital at Arakkonam, the deceased was forwarded to the Government Hospital at Chennai. ii) PW-2 is the cousin of the deceased. She has corroborated the evidence of PW-1 and narrated about the assault on Chinnayyan. When she questioned the accused about their conduct, it is her evidence that they threatened her. She accompanied the deceased to the Hospital. iii) PWs-3 and 4 are husband and wife and they were also sleeping in the Temple at the time of occurrence. On hearing noise at 4.30 A.M., they found A-1 and A-2 assaulting the deceased. These witnesses have not spoken to about the overt-acts of the other accused, therefore, to that extent, they were treated as hostile. iii) PWs-3 and 4 are husband and wife and they were also sleeping in the Temple at the time of occurrence. On hearing noise at 4.30 A.M., they found A-1 and A-2 assaulting the deceased. These witnesses have not spoken to about the overt-acts of the other accused, therefore, to that extent, they were treated as hostile. iv) It is the evidence of PW-11 that he saw Chinnayyan running from the scene of occurrence and at that time, he was assaulted by two persons with weapons and 5 other persons were also running. He has further stated that he could see them with the help of a torch light and on that, he was threatened by the appellants herein. v) PW-12, while corroborating the evidence of PW-11, emphatically stated that A-1 and A-2 assaulted Chinnayyan. Both the witnesses viz., PWs-11 and 12, ascertained that the deceased died at the Hospital due to the attack on him by accused 1 and 2, the appellants herein. vi) PWs-6 to 10 were examined as motive witnesses. PW-6 has been treated as hostile however PW-10 has stated that he conducted panchayat between the families of the deceased and A1 and pacified them. PW-7 is the cousin of the deceased and his evidence is that he heard that A-1 and A-2 cut the deceased on the occurrence day. PW-8 is the wife of the deceased and PW-9 is another cousin of the deceased. They have stated that they heard about the occurrence and went to the hospital, where they found the deceased unconscious and that the deceased died subsequently. vii) On receipt of intimation from the Government Hospital, Arakkonam, on 07.05.1998 at about 8 A.M., PW-21/Head Constable, reached the Hospital and recorded the statement of Chinnayyan, who was taking treatment there. On the basis of the statement recorded, he registered a case in Crime No.193/98 for offences punishable under Sections 147, 148, 324, 325, 326 and 307 IPC. Ex.P22 is the F.I.R. He despatched the printed copy of the F.I.R. through PW-18 to the Judicial Magistrate and copy of the same was sent to the Inspector of Police at 7.10 P.M. On 14.05.1998, he received Ex.P23 intimation about the death of the deceased at 11.30 A.M. The statement of Chinnayyan has been marked as Ex.P24. Ex.P22 is the F.I.R. He despatched the printed copy of the F.I.R. through PW-18 to the Judicial Magistrate and copy of the same was sent to the Inspector of Police at 7.10 P.M. On 14.05.1998, he received Ex.P23 intimation about the death of the deceased at 11.30 A.M. The statement of Chinnayyan has been marked as Ex.P24. He prepared Express Report under Ex.P18 by modifying the provisions of offence as Sections 147, 148, 324, 325, 323, 307 and 302 IPC. and despatched copies thereof to the Judicial Magistrate and the Deputy Superintendent of Police, Arakkonam, though PW-17. Another copy was despatched to the Inspector of Police through PW-19. viii) PW-22 is the Inspector of Police, who, on receipt of the First Information Report from PW-21 on 07.05.1998, reached the scene of occurrence at 9 P.M. and prepared observation mahazar Ex.P1. At 9.30 P.M., he collected bloodstained cement flooring/MO-1 and sample cement flooring/MO2 under Ex.P2 mahazar in the presence of witnesses. Thereafter, bloodstained Mud/MO3 and sample mud/MO4 were recovered from the passage under Ex.P3 mahazar. Rough sketch was prepared as per Ex.P25. He examined the witnesses present at the scene of occurrence, reached the Government Hospital, Arakkonam, recorded the statement of Chinnayyan, who was getting treatment there as in-patient, recovered his bloodstained cloths viz., MO-7 towel and MO-8 Lungi, at 10.45 P.M. under Ex.P6 mahazar and recorded the statements of PW-1 and one Poomani. Thereafter, on 08.05.1998, he went to the Government General Hospital at Chennai, found the deceased unconscious and recorded the statement of PW-2. On production, MOs-9 to 12, the bloodstained cloths of the deceased, were recovered under Ex.P7 mahazar. On 10.05.1998 at about 7 A.M., on information about the whereabouts of the accused, he proceeded to Panappakkam and arrested the appellants and other accused. Statement of A1 was recorded under Ex.P4 and pursuant thereto, MO5-knife and MO6-stick were recovered under Ex.P5 mahazar. The recovered articles were forwarded to the court of Judicial Magistrate with a request to send the same for chemical examination. Thereafter, on coming to know about the death of the deceased, he reached the Government General Hospital, Chennai, and conducted inquest over the dead body on 15.05.1998 between 8.45 and 11.45 A.M. in the presence of Panchayatdars. Ex.P26 is the inquest report. The dead body of the deceased was sent through police constable with Ex.P-20 requisition for conducting autopsy. Thereafter, on coming to know about the death of the deceased, he reached the Government General Hospital, Chennai, and conducted inquest over the dead body on 15.05.1998 between 8.45 and 11.45 A.M. in the presence of Panchayatdars. Ex.P26 is the inquest report. The dead body of the deceased was sent through police constable with Ex.P-20 requisition for conducting autopsy. ix) PW-20 is the Medical Officer, who, on receipt of Ex.P20 requisition from the Inspector of Police, on 15.05.1998, conducted post-mortem over the dead body of the deceased and issued Ex.P-21 post-mortem certificate, wherein, the following injuries have been noticed:- " INJURIES: 1) a) Abrasions: on left shoulder 4x3cm; b)on back of left ear 2x1cm; c) over right chest 2x1 cm; d) over right shoulder 1x1 cm. 2) Sutured laceration in the left frontal and parietal region 7cms in length in the sagital plane An oblique laceration in the left occipital region 5cms in length. On reflection of scalp: Sub scalp haematoma on left tempero parietal and occipital region of vault of skull Bruising of sub scalp on the above mentioned region Fissured fracture of left temporal bone 10cms in length in the sagital plane Sub dural and sub arachnoid haemorrhage over left tempero parietal lobe and occipital areas Fracture of base of skull involving right anterior cranial fossa 6 cms in length" The doctor has opined that the deceased died due to complication of head injuries sustained. x) The Inspector of Police intimated the court about the modification of offence as one under Section 302 IPC. After receiving forensic and medical reports and examination of the witnesses, the Inspector concluded the investigation and filed final report on 24.07.1998 for offences under Sections 147, 148, 323, 341, 342, 307 and 302 IPC. 4. When the accused were questioned under Section 313 Cr.P.C. with reference to the incriminating materials put forth against them by the prosecution, they denied their complicity in the crime and pleaded innocence. A-1 alone has specifically stated that the deceased is an arrack seller and therefore, he had several enemies and that he does not know as to who has murdered him. Further, though A-1 stated that he has witnesses to be examined on his side, neither oral nor documentary evidence was adduced by the defence. 5. A-1 alone has specifically stated that the deceased is an arrack seller and therefore, he had several enemies and that he does not know as to who has murdered him. Further, though A-1 stated that he has witnesses to be examined on his side, neither oral nor documentary evidence was adduced by the defence. 5. Learned counsel for the petitioner, at the foremost, submits that PWs-1 and 2 are interested witnesses since they are closely related to the deceased and Chinnayyan and their evidence corrodes from contradictions, therefore, the same should be disbelieved. By pointing out that the occurrence having taken place at 4.30 am. and therefore, the presence of the PWs-1 and 2 at that time is doubtful and further, it might not have been possible for them to correctly identify the assailants, it is reiterated that the evidence of PWs-1 and 2 should not be relied on. Even insofar as PWs-3 and 4 are concerned, though they have been cited as eye witnesses for the occurrence, the weapons used by the accused have not been specifically stated by them and moreover, they did not say anything about the presence or overt-acts of the other accused, therefore, they have been treated hostile to that extent; that being so, the evidence of such hostile witnesses should not be acted upon to hold against the appellants/accused. Admittedly, the deceased is an arrack seller and might have had other enemies in the village; hence, attack by somebody else inimically disposed of towards him also cannot be easily ruled out. By pointing out that though the statement of Chinnayyan was recorded by the Constable at 10.30 A.M., F.I.R. was registered only at 6 P.M. and the same reached the court of the Magistrate belatedly, it is submitted that there were all possibilities of embellishment. There is no corresponding injury as put forth by PWs-1 and 2 on the deceased and Chinnayyan. According to the learned counsel, on an assessment of the evidence as a whole, it could be presumed that a false case has been foisted against the appellants/accused. Finally, by submitting that the learned trial judge while acquitting other accused on the basis of the same evidence, erroneously convicted the appellants alone, learned counsel pleads that benefit of doubt may be given in favour of the appellants/accused and they may be acquitted. 6. Finally, by submitting that the learned trial judge while acquitting other accused on the basis of the same evidence, erroneously convicted the appellants alone, learned counsel pleads that benefit of doubt may be given in favour of the appellants/accused and they may be acquitted. 6. Per contra, learned Additional Public Prosecutor submits that the motive has been well established through the evidence of PW-10, who is an independent witness. The occurrence took place only on account of the quarrel between A-1 and the deceased in the Hotel in which both of them assaulted each other and they were pacified at the mediation held by PW-10 between the families of the deceased and A-1. It is the evidence of PW-1 that, in spite of the same, the accused had given a complaint to the police, whereupon, apprehending danger to the life of the deceased, she advised him and Chinnayyan to stay in the temple during night time. Fearing any untoward incident, PW-1 went to the scene of occurrence for waking them up and at that time, she has witnessed the occurrence. PW-2 is residing nearby the scene place and though PWs-1 and 2 have been categorised as interested witnesses, they are the natural witnesses, who have actually witnessed the occurrence. Insofar as the assault by A-1 and A-2 is concerned, the over-act attributed to them is spoken to in a clear and cogent manner. Similarly, the assault on Chinnayyan has also been spoken to by PWs-11 and 12 rather in clear terms. The independent eye witnesses PWs-3 and 4 also speak about the assault on the deceased by the appellants/accused. At the first instance, the deceased as well as Chinnayyan received injuries and attempts were made by the eye witnesses to save their lives. Since the presence of other accused was not mentioned by PWs-3 and 4, by granting benefit of doubt, those accused were acquitted. On a careful scrutiny of the evidence of the eye witnesses PWs-1 to 4, it could be seen that the presence of the appellants and their overt-acts against the deceased and Chinnayyan have been spoken to in a clear and cogent manner, thereby leading to a conclusion that the case of the prosecution as against the appellants is proved beyond reasonable doubt. He further submitted that merely because the trial court treated the witnesses partially hostile, on that ground, it cannot be said that the testimonies of such witnesses should be discarded in toto. In that regard, he referred to the observation made by the Apex Court in the decision reported in 2006 (1) SCC (Cri) 661 (Radha Mohan Singh v. State of U.P) which runs as follows:- "It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof." Chinnayyan was admitted in the Government Hospital, Arakkonam, and in view of the serious nature of injuries, the deceased was shifted to the Government Hospital, Chennai. In such circumstances, after the deceased and Chinnayyan were admitted in the Hospital, initially, case was registered under Section 307 IPC., however, subsequent to the death of the deceased, the provision of offence was altered as one under Section 302 IPC. That being the factual aspects, the delay in recording the F.I.R. and the same reaching the court cannot be taken serious note of. The occurrence took place at 4.30 A.M. and since the accused were known persons to the eye witnesses, they could easily identify them and further, absence of light was not so seriously put to the witnesses during the course of cross examination. The overt-acts attributed to the accused/appellants having been substantiated beyond reasonable doubts, it is submitted that they have been rightly convicted by the trial court. 7. We have carefully carefully perused the materials available on record having regard to the rival submissions advanced on either side. Chinnayyan, brother of the deceased, died before commencement of the trial. In the light of the medical evidence, there is no doubt that the deceased died due to homicidal violence. The point for consideration is, as to whether the trial court is justified in holding against the appellants herein while acquitting the other accused. Chinnayyan, brother of the deceased, died before commencement of the trial. In the light of the medical evidence, there is no doubt that the deceased died due to homicidal violence. The point for consideration is, as to whether the trial court is justified in holding against the appellants herein while acquitting the other accused. 7-A. At the first instance, it would be of much relevance to record our reasoning as to the acceptability of the evidence of PWs-1 and 2 since the trial court declined to accept their testimonies, however, based conviction as against the appellants/accused placing reliance on other piece of evidence and materials available on record. The trial court, by stating that PW-1’s version is that she went to PW-2’s residence and informed her about the incident while according to PW-2, she alone witnessed the occurrence, held that their testimonies have to be disbelieved on the sole ground that they do not speak about the presence of each other. The trial court isolated their testimonies from other materials and, by a shallow study of their evidence, jumped to such a conclusion. On an assiduous consideration, we find that their evidence appears to be natural, having a ring of truth. It is the emphatic evidence of PW-1 that PW-2 was informed by her about the attempt being made on the life of the deceased, her brother, by the accused. PW-2 also gave a clear account of the sequence of events without any deviation in material particulars. They might have witnessed the occurrence from two different directions and observed the incident at different stages though in quick succession; thus, naturally, they might not have noticed the presence of each other. Therefore, they have deposed before court as to what exactly they have witnessed. Their deposition is natural and consistent with the case of the prosecution and we find no reason why they should be disbelieved. We fail to appreciate the reasoning of the trial court in that regard, and to say the least, it is perverse. 8. Now let us delve into the motive part of the prosecution case. PW-10 has stated that subsequent to the quarrel between the deceased and A-1, he conducted panchayat between the families of A1 and the deceased and that during the panchayat, the deceased told that he never beat A-1 or his family members. The other witness to speak about the motive is PW-1. PW-10 has stated that subsequent to the quarrel between the deceased and A-1, he conducted panchayat between the families of A1 and the deceased and that during the panchayat, the deceased told that he never beat A-1 or his family members. The other witness to speak about the motive is PW-1. Pausing here, we deem it necessary to add that relationship of a witness to the deceased is not a factor to affect the credibility or trustworthiness of his/her testimony. No hard-and-fast rule can be laid down as to how evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence. As regards motive, considering the evidence of PW-1 with the touchstone of reasonableness and credibility, we find no reason to disbelieve her version. Her testimony gives a clear picture about the clash between A-1 and the deceased on the previous day while they were having food in a Hotel at Panapakkam. Further, such quarrel resulted in a panchayat in the village, wherein, as pointed out above, PW-10 pacified the families. We are of the view that the motive part of the prosecution case has been amply established as against the appellants herein, through the evidence of PWs-1 and 10. 9. Coming to the overt-acts attributed to the appellants herein, the said aspect has been spoken to by PWs-1 to 4. PWs-3 and 4 are independent eye witnesses, having their residence adjacent to the scene place. They have clearly spoken to about the overt-acts of the appellants/accused as against the deceased. As regards the attack on Chinnayyan, the same has been spoken to by PWs-11 and 12 to the effect that he was chased and attacked by the appellants/accused. PW-11 specifically stated that he could see the attack on Chinnayyan with the help of a torch-light and on that, he was threatened by A-1. The medical evidence also amply shows that the death of the deceased was due to homicidal violence and during the course of cross examination, the Doctor specifically stated that the injuries found on the deceased would have been caused by the weapons identified by PW-1. Though there are some minor and venial discrepancies in narrating the sequence of events, we again reiterate that it cannot be lost sight of that PWs-1 to 4 are rustic villagers deposing before court after a long gap of about 5 years. Though there are some minor and venial discrepancies in narrating the sequence of events, we again reiterate that it cannot be lost sight of that PWs-1 to 4 are rustic villagers deposing before court after a long gap of about 5 years. Their evidence being quite natural, cogent and convincing, the argument advanced on behalf of the appellants/accused to impeach their testimonies cannot be accepted and we are of the view that the overt-acts attributed to the appellants/accused have been substantiated well through their evidence. 10. Immediately after the occurrence, the deceased and Chinnayyan were taken to the Hospital for the purpose of saving their lives. Chinnayyan was admitted in the Government Hospital, Arakkonam, and since the condition of the deceased was serious, he alone was shifted to the Government General Hospital at Chennai. In that background, we have to consider the aspect of delay occurred in registering the F.I.R. and forwarding it to the court. It is pertinent to point out that, of course, Section 157 Cr.P.C. stipulates forwarding of an FIR to the court of the Magistrate forthwith so that it reaches the court promptly and without any undue delay and the reason behind the same is to avoid any possibility of improvement in the prosecution story and to enable the Magistrate to have a watch over the progress of the investigation. But invariably, such lacuna on the side of the prosecution would not serve as the sole basis for rejecting the prosecution case particularly where the prosecution produced reliable evidence to prove the guilt of the accused persons. The Apex Court in umpteen cases has categorically held that when the prosecution has led reliable and acceptable evidence, the veracity of the same is not dislodged by the delay in recording of the FIR and the delay in sending the same to the court. In this case, only on the intimation from the Hospital, PW-21 went to the Hospital and recorded the statement of Chinnayyan who was taking treatment there as inpatient on 07.05.1998. The Police had to deal with the investigation at two places viz., at Arakkonam, where Chinnayyan was admitted in the Government Hospital, and at Chennai, where the deceased was admitted in the Government General Hospital. Therefore, the delay in registration of the F.I.R. at 6 P.M. cannot be taken seriously since at the first instance, the offence has been registered under Section 307 IPC. Therefore, the delay in registration of the F.I.R. at 6 P.M. cannot be taken seriously since at the first instance, the offence has been registered under Section 307 IPC. On receipt of the F.I.R., the Investigating Officer immediately took up the investigation, reached the scene of occurrence, examined the witnesses and prepared the mahazars. Further, the deceased who was admitted on 07.05.1998 remained unconscious and died on 14.05.1998 and therefore, the course of investigation in the case did not run in the usual track as in other cases. After receiving the information about the death of the deceased, the offence was altered as one under Section 302 IPC., however, in the meantime, material witnesses have been examined by the Investigating Officer. In view of the above aspects, the delay in recording the F.I.R. and lodging the same before court would in no way serve as a ground for the benefit of the defence. 11. The other limb of argument is that the witnesses might not have identified the assailants as the occurrence took place in the early morning at about 4.30 A.M. From the rough sketch Ex.P25, it is seen that the occurrence had taken place probably in the roofless part of a village temple where PWs-3 and 4 were also sleeping along with the deceased and Chinnayyan. While gauging the situation carefully with reference to the argument advanced, the relevant factors viz., the proximity at which the assailants would have confronted with the deceased, the possibility of some light reaching there from the glow of stars even assuming that there was no moonlight then and the fact that the murder was committed in a village temple, probably a roofless place, etc. have to be borne in mind. Apart from those factors, we must also bear in mind the further fact that A-1 and A-2 were not strangers as the eye witnesses are well acquainted with their names and physiognomy. Therefore, we are not persuaded to assume that it would not have been possible for the witnesses to see the assailants or that there was possibility for making a wrong identification of them. We also keep in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping inside the temple. We also keep in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping inside the temple. When the light, though meagre, was enough for the assailants to identify the victims, the same light was equally enough for the witnesses who would certainly have pointedly focussed their eyes on the face and structure of the intruders present in front of them. Therefore, the argument advanced in that regard is of no use. 12. The other argument advanced on behalf of the appellants is that, in view of the acquittal of the remaining accused, there was in fact no reliable material on record on the basis of which the appellants could be convicted. We hasten to comment that such argument does not merit acceptance inasmuch as the evidence as against the appellants herein is quite different from the evidence as against the other accused. Even barring the testimonies of PWs-1 and 2, the independent eye witnesses viz., PWs-3 and 4 clearly states that they were also sleeping in the Temple where the deceased and Chinnayyan were sleeping and on hearing noise, they found A-1 and A-2 attacking the deceased. They have specifically named them both and stated about their overt-acts against the deceased. These witnesses have no axe to grind against the accused and further, to that extent, their testimonies have been accepted by the trial court. The trial court treated them hostile witnesses only insofar as they do not speak about the presence and overt acts of the other accused. That being so, the yardstick adopted by the trial court in rejecting their evidence with reference to the case of other accused cannot be applied to the appellants case. 13. In the light of our foregoing discussion, we are of the view that the conclusion arrived at by the trial court in holding against the appellants herein is well founded and we find no valid ground for interference. Net result, Criminal Appeal fails and the same is dismissed.