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Madras High Court · body

2008 DIGILAW 3966 (MAD)

Kunjammal v. State rep by Inspector of Police

2008-10-31

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This appeal has been preferred against the Judgment in S.C.No.34 of 2002 on the file of the Principal District and Sessions Judge, Perambalur. There are totally three accused in this case. A1 and A2 were charged under Section 302 IPC and A3 was charged under Section 302 IPC r/w 34 IPC and A1 and A3 have been charged under Section 323 IPC. 2. According to the prosecution, on 25. 1998 at about 10.30 a.m., due to previous enmity, at the time of occurrence, A1 and A3 have assaulted P.W.1 Perumal with a stick causing simple injuries and A1 has also assaulted P.W.1s wife Valli P.W.2 with the same stick causing simple injuries on the left forearm and at the same occurrence, A1 and A2 have assaulted the mother of P.W.1 viz., Chinnaponnu with the same stick on the head causing instantaneous death and A3 with a common intention to kill Chinnaponnu along with A1 and A2 was also present at the place of occurrence. Hence A1 (two counts) and A3 were charged under Section 323 IPC, A1 and A2 were charged under Section 302 IPC and A3 was charged under Section 302 IPC r/w 34 IPC. 3. On appearance of the accused, after furnishing copies to the accused under Section 207 Cr.P.C., the learned trial Judge has framed charges as narrated above against A1 to A3 and when questioned, the accused pleaded not guilty. 4. On the side of the prosecution, P.Ws 1 to 12 were examined and Exs A1 to A18 and M.Os 1 to 6 were marked. The learned trial Judge after scanning the evidence both oral and documentary has convicted A1 under Section 325 IPC and sentenced to undergo one year rigorous imprisonment and also convicted A2 and A3 under Section 323 IPC and sentenced to undergo one year and acquitted the accused in respect of other charges. Aggrieved by the findings of the learned trial Judge, A2 alone has preferred this appeal. 5. Heard the learned counsel appearing for the appellant as well as the learned Government Advocate(Criminal side) appearing for the respondent and considered their respective submissions. 6. P.W.1 to P.W.2 are the injured eye witnesses in this case. P.W.5 is the occurrence witness. Aggrieved by the findings of the learned trial Judge, A2 alone has preferred this appeal. 5. Heard the learned counsel appearing for the appellant as well as the learned Government Advocate(Criminal side) appearing for the respondent and considered their respective submissions. 6. P.W.1 to P.W.2 are the injured eye witnesses in this case. P.W.5 is the occurrence witness. Even though P.W.1 and P.W.2 in their chief examination would depose to the effect that at the time of the occurrence A1 had assaulted P.W.1 with stick and A2 & A3 have assaulted P.W.2 with stick causing simple injuries, in the cross-examination both P.W.1 & P.W.2 would depose that they are not aware who had assaulted them as well as the deceased. P.W.5 is the daughter of the deceased. In the cross-examination she (P.W.5) would depose that only after hearing the occurrence, she came to the place of occurrence and that she was not present at the time of occurrence at the place of occurrence. The other witnesses P.W.6 & P.W.7 have not supported the case of the prosecution. According to the prosecution, M.Os.1 to 3 said to have been used by the accused 1 & 2 for the commission of the offence recovered under Section 27 of the Indian Evidence Act. Ex.P.11 is the seizure mahazer for the M.O.1 to 3. As per Ex.P.11, M.O.1 to 3 were said to have been recovered on the basis of the confession statement of A1 in the presence of two independent witnesses by name Suyamprakasam and Arputha Sagaya Raj, who were not examined as prosecution witnesses. P.W.8 is the Doctor, who had treated P.W.1 & P.W.2 at 5.00 pm on the date of occurrence. According to the case of the prosecution, the occurrence took place at 10.30 am., on 24.05.1998. But the injured were produced before the Doctor only in the evening. Ex.P.2 & Ex.P.3 are the wound certificates issued to P.W.2 & P.W.3 respectively by P.W.8. P.W.8 in his evidence has deposed to the fact that at the time of the examination of P.W.1, he had informed that he was assaulted at 10.30 am on 24.05.1998 by three known persons with bamboo stick. But P.W.1 before the Court would depose that he was assaulted only by A1 and not by three persons. Further, P.W.8 has deposed to the fact that P.W.1 and P.W.2 were not produced with the police memo. But P.W.1 before the Court would depose that he was assaulted only by A1 and not by three persons. Further, P.W.8 has deposed to the fact that P.W.1 and P.W.2 were not produced with the police memo. In Ex.P.2 – wound certificate also P.W.8 has stated that at the time of treatment P.W.2 had informed him that she was assaulted by three known persons. But, while deposing before the Court P.W.2 has deposed that she was assaulted by two persons viz., A1 & A3 and not by three persons. Ex.P.1-complaint is said to have been preferred at 3.00 pm on 24.05.1998. But, there is no explanation forthcoming from the side of the prosecution why the injured witnesses have not been sent to the Government hospital along with a memo for treatment. No acceptable reasoning given in the FIR for the delay in preferring the complaint. The distance between the place of occurrence and the Keelapalur Police Station is 8 kms according to P.W.1. In the cross-examination P.W.1 would also admit that there are frequent bus services between the place of occurrence and the Keelapalur Police Station. P.W.1 would further admit that soon after the occurrence he rushed to the police station in a bus and that the distance between the police station and the place of occurrence ordinarily will be covered by a bus within 15 minutes and that he would further depose in the cross-examination that he reached the police station at about 12.30 pm on the same day. But, the FIR was registered only at 3.00 pm. But the injured witnesses were not sent to the government hospital with police memo. P.W.11 – Investigating Officer would admit that he had conducted inquest on 24.05.1998 at about 18.15 hours. Ex.P.9 is the inquest report. Out of five panchayatars viz., 1)Arogiyam, 2)Amaladas, 3)Seenivasan 4)Ponnusamy & 5)Mathiazhagan no one was examined on the side of the prosecution. Under such circumstance, the finding of the learned trial Judge that A2 is guilty under Section 323 IPC warrants interference from this Court. 7. In fine, the appeal is allowed and the conviction and sentence against A2 passed by the learned trial Judge in S.C.No.34 of 2002 on the file of the Principal District and Sessions Judge, Perambalur, is set aside and A2 is set at liberty. Bail bond shall stand cancelled. 7. In fine, the appeal is allowed and the conviction and sentence against A2 passed by the learned trial Judge in S.C.No.34 of 2002 on the file of the Principal District and Sessions Judge, Perambalur, is set aside and A2 is set at liberty. Bail bond shall stand cancelled. The finding in the Judgment is applicable also to A1 and A3 who have not preferred appeal. It is represented by the learned Government Advocate (Crl.side) that A1 and A3 have served out the sentence.