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2013 DIGILAW 2731 (MAD)

D. v. Kumaran VS Nagaraj @ Nagarajan

2013-07-29

C.S.KARNAN

body2013
Judgment : The brief facts of the case are as follows:- The defacto complainant / P.W.1 had lodged a complaint against the respondents herein / accused 1 to 5 stating that all the accused unlawfully assembled and attacked him and his father and as a result, his father was murdered.Hence, the respondent-Police had registered a criminal case in Crime No.80 of 2002, against the first and second accused for the offences under Sections 148, 324, 307 and 302 read with 149 IPC and Sections 147, 323, 307 & 302 read with 149 IPC against the third accused and Sections 148, 352, 307 r/w 149, 302 read with 149 IPC against the fourth accused and Sections 147, 302 and 307 read with 149 of IPC against the accused 5, 6 and 7. After investigation, the charge sheet has been filed. 27 witnesses had been listed and 35 documents were marked and 12 material objects were produced. The case has been referred to the District and Sessions Judge, Nagapattinam and the case has been taken on file as S.C.No.28 of 2004. 2. All the accused had pleaded not guilty after receiving charge sheet and hence, the Sessions case has been proceeded with before the trial Court. P.W.1-Kumanan had adduced evidence that he is residing at Perugavazhdan Lenin Street. He deposed that the deceased Durai Vaidhiyalingam who was his father, his mother Nagammal, brother Selvakumar Nanudaiyan and sister Shanthi were residing in the same village. P.W.1 further stated that he knew several of the accused who were involved in the murder case, viz., A-1-Nagaraj, A-2-Durairaj, A-3-Ashok Kumar, A-4-Vijayan, A-5-Chandran and late Nagendiran and the accused Mukkalagan, who had been split from the said proceedings. He deposed that on 29.07.2002, at around 09.30 a.m., when his brother Selvakumar was proceeding on a bicycle on the Madukkoor Road, the accused Nagendiran and one Shankar were standing on the middle of the road. When his brother Selvakumar questioned them as to why they were standing in the middle of the road, the accused Nagendran used abusive language and Shankar effected a compromise and sent him. Thereafter, the accused 1 and 2 came to his residence and shouted in front of his house. The very next day, i.e., 30.07.2002, at about 07.30 a.m., all the six accused came to his residence with aruval and shouted against them. Thereafter, the accused 1 and 2 came to his residence and shouted in front of his house. The very next day, i.e., 30.07.2002, at about 07.30 a.m., all the six accused came to his residence with aruval and shouted against them. At that time, the residents of the same street had requested the accused to avoid quarrelling and thereafter they left from his place. On the same day, his father made a complaint before the Perugavazhdan Police Station. After receipt of the said complaint by the Station Officer, the police personnel went to the place of the accused and asked them to appear before the police station for an enquiry on the said complaint, which they did not comply. 3. P.W.1 further stated that on 31.07.2002 at around 8 a.m., all the 7 accused assembled in front of the second accused 's residenceand used abusive language against P.W.1 and his family members, hence, his family members went to the police station and lodged a complaint. He took his father from the police station and dropped him at his residence. PW1 further stated that while he was proceeding to his land through the house of the accused at about 9 a.m., , the first accused Nagendiran inflicted a blow with the aruval on his head. The third accused Ashok Kumar also made an attempt with his aruval to strike a blow but somehow he escaped, but, the accused kicked him with his leg. The accused Mukkalagan, who had been split from the said proceedings attacked him on his head and right hand. The fourth accused Vijayan had attacked with a log wood on his hip and behind the shoulder. The second accused Durairaj attacked with a log wood on his thigh, the fifth accused Chandran also attacked with a log wood on his right ribs and hence, he cried out in pain. Immediately, his father Durai Vaithiyalingam rushed to the scene of occurrence and then all the 7 accused attacked his aged father. The accused Mukkalagan, who had been split from the said proceedings inflicted injuries on his father's forehead. The fourth accused Vijayan, using a log wood attacked him on his head. The fifth accused Chandran attacked on his right ribs and the second accused attacked on his right hand. The first accused Nagaraj inflicted a blow on his father's ribs. As a consequence, his father had fallen down unconscious. The fourth accused Vijayan, using a log wood attacked him on his head. The fifth accused Chandran attacked on his right ribs and the second accused attacked on his right hand. The first accused Nagaraj inflicted a blow on his father's ribs. As a consequence, his father had fallen down unconscious. The occurrence was witnessed by his brother Selvakumar, his mother Nagammal, his wife Chitra and another person Narayanaswamy. 4. P.W.1 further adduced evidence that a car was arranged to take his father to the Mannargudi Government Hospital, wherein, the victim had been admitted for medical treatment. The head constable who is attached to the Perugavazhdan Police Station, had collected statements from him. For further medical treatment, he and his father had rushed to the medical college hospital, Thanjavur. The very next day, i.e, on 01.08.2002, at about 7.30 p.m,. his father breathed his last. The Inspector of Police had collected material objects from him, viz., coffee seed coloured lunghi, sandal wood coloured shirt and cream towel. P.W.1 had been cross examined by the counsel on the defence side and he further stated in his cross-examination that there was no previous enmity between the accused family and himself and the only quarrel was that while he was proceeding on his bicycle, Nagendran had developed a quarrel. He further admitted that the first and second accused are blood brothers. The first accused Nagaraj and the deceased Nagendiran were brothers and are the sons of the second accused. He deposed that the second and third accused are brothers and the fourth and fifth accused, who are the sons of the third accused are not related to other accused as well as Mukkalagan, who had been split from the said proceedings. P.W.1 further admits that all the above mentioned accused live in the same village. He further adduced evidence that the distance between the occurrence place and the police station is about 1 kilometer. He deposed that the Police personnel came to the occurrence place and sent him along with his father in a car and that his brother Muruganandham, Ravi @ Narayanaswamy accompanied them. P.W.1 further stated that the head constable had collected statements from him at the Government Hospital, Mannargudi. His brother Selvakumar, one Narayanaswamy, Muruganandham and Karunanithi had signed in the statement report as witnesses. P.W.1 further stated that the head constable had collected statements from him at the Government Hospital, Mannargudi. His brother Selvakumar, one Narayanaswamy, Muruganandham and Karunanithi had signed in the statement report as witnesses. He further stated that at the time of occurrence, a group of people assembled but his relatives were not present. All the relatives came to the Government Hospital, Thanjavur. P.W.1 further stated that when he was in a conscious state of mind at the Government Hospital, Mannargudi as well as at the Thanjavur Hospital, he informed the doctor that he was beaten with an iron road and one person gave him a blow with a knife. He had further informed that two persons had inflicted injuries on him with an aruval. Totally 7 of the accused attacked him, out of which, three of them had attacked him with aruval and the other four had attacked him with log woods. The head constable read over his statement to him and he agreed to the same. P.W.1 further stated that the first accused Nagendiran inflicted injuries on him with an aruval and the accused Nagarajan also inflicted injuries on him with an aruval and Ashok Kumar had attempted to assault him with an aruval and Mukkalagan, who had been split from the said proceedingshad attacked him twice with log wood and the accused Chandiran had attacked him with an iron rod on his hip. The accused Durairaj and Vijayan had both attacked him with wood log and as a consequence, P.W.1 had fallen down.This attack had lasted for a period of 10 minutes. He deposed that his father came to the occurrence place after 15 minutes and all the seven accused attacked his father until he fell down. 5. P.W.2, the brother of P.W.1, Selvakumar had adduced evidence that as his father was unconscious, he was unable to give a statement to the police. The Head Constable had collected statements from his brother P.W.1. Initially his father was given medical treatment at Government Hospital, Mannargudi; thereafter, he was referred to Thanjavur Hospital, wherein he expired on 01.08.2002 at about 7.30 p.m. P.W.2 had further adduced evidence that as the occurrence had taken place around 1/2 an hour back and he was a witness of the same, he also cried out at the occurrence place and immediately his father came to the occurrence place. P.W.2 further adduced evidence that the accused Chandran, Mukkalagan, who had been split from the said proceedings andVijayan had only beaten his father and that the other accused had not beaten his father. The rest of the evidence of P.W.2 was on similar lines to the evidence of P.W.1. 6. P.W.3, Narayanaswamy, P.W.4-Muthulakshmi and P.W.5-Somu had turned hostile. P.W.6 and P.W.7 are eyewitnesses but their evidence had not been supportive to the prosecution case and therefore had turned hostile. The eighth prosecution witness, Soundarrajan who had witnessed the occurrence which took place on 29.07.2002 at 9.30 a.m., had subsequently disagreed with his earlier statement and turned hostile. P.W.9, Sankar had also turned hostile. 7. P.W.21-Head Constable had adduced evidence that he had received information that P.W.1 and his father were admitted at the Government Hospital, Mannargudi and that he had informed it to the Head Constable, Govindaraj, through telephone. P.W.23-doctor had adduced evidence that on 31.07.2002, at about 7.30 a.m., 7 accused persons had beaten him with aruval, knife log wood and crowbar and the same informed by PW1. He also certified that P.W.1 had sustained serious injuries on his head and behind his head, right shoulder and right thigh. Subsequently, P.W.1 was referred to Thanjavur Medical Hospital. P.W.22-Inspector of Police had adduced evidence that on 27.11.2001, the (deceased) Durai Vaidhiyalingam had lodged a complaint and the same had been registered as Crime No.112of 2001, for the offence under Sections 294(B) and 506(ii) of I.P.C. P.W.22 further adduced evidence that on the strength of the statement given by P.W.1, the case has been registered in Crime No.80 of 2002, for the offence under Sections 147, 148, 323 and 324 IPC. He deposed that on the date of occurrence, at about 4.00 p.m., he had inspected the occurrence place and prepared observation mahazar in the presence of one Subramaniam and Pandian and that the rough sketch was also prepared. He further deposed that he had been informed by the outpost police station of the Thanjavur Medical College that the deceased Durai Vaidiyalingam had expired on 01.08.2002, at about 7.30 p.m. 8. P.W.18, Head Constable had informed the death of Durai Vaidhiyalingam to head constable, Govindaraj; subsequently, the F.I.R. has been altered to a case of murder. He further deposed that he had been informed by the outpost police station of the Thanjavur Medical College that the deceased Durai Vaidiyalingam had expired on 01.08.2002, at about 7.30 p.m. 8. P.W.18, Head Constable had informed the death of Durai Vaidhiyalingam to head constable, Govindaraj; subsequently, the F.I.R. has been altered to a case of murder. On 02.08.2002, the first grade constable went to Thanjavur Medical College Hospital and arranged for postmortem and the same was done on 02.08.2002, between 10.30 a.m., to 11.30 a.m. On 03.08.2002 all the accused had surrendered before the Judicial Magistrate, Pattukottai. After the postmortem, the material objects were collected under Form 95. 9. The accused 1 to 5 had given confession statement and on the basis of confessional statement, the material objects viz., aruval, casuarina log woods were marked. Further, statements had been collected from the doctors and charge sheet has been filed. P.W.10 Inspector of Police and P.W.11-eyewitness, who had witnessed the preparation of the observation mahazar had also turned hostile. P.W.12-Karunanidhi had adduced evidence that her father-in-law deceased Durai Vaidhiyalingam had expired at the hospital due to the beatings by the accused. P.W.14 and P.W.15 who are the Village Administrative Officer and Village servant had turned hostile. P.W.24 doctor had adduced evidence that on 02.08.2002 she was requested to conduct postmortem and accordingly she had started the postmortem at 2.30 p.m., and she gave the opinion that the deceased had expired due to heavy hemorrhaging. 10. On the side of the prosecution, the below mentioned witnesses were listed viz., P.W.1, Kumanan, P.W.2-Selvakumar, P.W.3-Ravi, P.W.4-Muthulakshmi, P.W.5-Somu, P.W.6-Rajendran, P.W.7-Veeramani, P.W.8-Soundararajan, P.W.9-Shankar, P.W.10-Subbiyan, P.W.11-Pandian, P.W.12-Karunanidhi, P.W.13-Dr.Ananda Krishnan, P.W.14-Gunasekaran, P.W.15-Viswanathan, P.W.16-Marudhan, P.W.17-Govindaraj, P.W.18-Devadas, P.W.19-Sadhanandham, P.W.20-Selvaraj, P.W.21-Ramanathan, P.W.22-Vinayagam, P.W.23-Dr.Anandha Sekar, P.W.24-Dr.Vijayalakshmi, P.W.24-Mariappan, P.W.26-Manavalan, P.W.27-Swaminathan. The prosecution had exhibited 35 documents, viz., complainant's statement, observation mahazar, death report, first information report dated 31.07.2002, rough sketch, C.S.R. receipt, special report, accident report, first information report dated 27.11.2001, charge sheet, accident report of the deceased, accident report of P.W.1, requisition letter for postmortem, postmortem report, discharge certificate, special express report, postmortem report, confessional statement of the accused and mahazars. The prosecution had also produced 12 documents viz., coffee colour lunghi, sandalwood coloured shirt, towel, waist-rope, vettaruval, casuarina log woods and val aruval etc. On the side of the defence, no documentary evidence and no oral evidence. 11. The prosecution had also produced 12 documents viz., coffee colour lunghi, sandalwood coloured shirt, towel, waist-rope, vettaruval, casuarina log woods and val aruval etc. On the side of the defence, no documentary evidence and no oral evidence. 11. On recording the evidence of the witnesses and on perusing the material evidence and on hearing the arguments of the learned counsels on either side, the learned judge dismissed the prosecution case in S.C.No.28 of 2004 on 22.02.2005. Consequently, all the accused were acquitted. 12. Aggrieved by the said acquittalorder, the defacto complainant/P.W.1 had preferred the above revision. 13. The learned counsel for the revision petitioner argued that P.W.1 is the injured eyewitness who also accompanied his father in a car to the Government Hospital Mannargudi, wherein both had undergone treatment. Subsequently, they had been taken to the Government Hospital, Thanjavur, wherein the (deceased) Durai Vaidhiyalingam had expired. P.W.1 is the main witness who narrated the entire occurrence before the trial Court. P.W.1's evidence which had been recorded by the trial Court is crystal clear for punishing the accused. The learned counsel further stated that the deceased Durai Vaidhiyalingam was killed by others which amounts to homicide and the the occurrence had taken place in the same village, wherein the deceased's family and accused families were living. Therefore, P.W.1 had rightly identified the accused and also their involvement in the said occurrence. Further, on 29.07.2002, there was a wordy quarrel which led to subsequent quarrel on 30.07.2002; thereafter, it ended in the instance of murder on 30.07.2002. Therefore, it had been clearly proved that there was enmity between the accused and the deceased's family. The learned counsel further submitted that some witnesses have turned hostile, but they had already given statement regarding the occurrence prior to their turning hostile. However, P.W.1's witness is the crucial one and on the basis of his evidence, the accused should be punished. Further, the murder had happened in day light and public also witnessed the same and therefore, the accused should be punished in the interest of justice and maintaining public confidence. 14. The learned counsel for the revision petitioner further contended that all the accused had surrendered before the Judicial Magistrate, Pattukottai and they have given confessional statement to the investigation officer about the murder of Durai Vaidhiyalingam. On the confessional statement of the accused, the weapons wereseizedin the presence of witnesses. 14. The learned counsel for the revision petitioner further contended that all the accused had surrendered before the Judicial Magistrate, Pattukottai and they have given confessional statement to the investigation officer about the murder of Durai Vaidhiyalingam. On the confessional statement of the accused, the weapons wereseizedin the presence of witnesses. All the weapons were marked as material objects and therefore, the accused shall be punished since the entire prosecution case has been established by the defacto complainant. 15. The learned counsel for the accused contended that the prosecution had listed 27 witnesses and most of the witnesses have turned hostile. P.W.1, P.W.2 and P.W.12 are interested witnesses viz., sons and son-in-laws respectively of the deceased. The material objects, viz., M.O.7 to M.O.12 are artificial ones. The confessional statements given by the accused are not sustainable under law. As per the prosecution case, it has been alleged that on 29.07.2002, at about 09.30 a.m., there was a quarrel between the first accused and the brother of P.W.1 and the same was witnessed by one Shankar, who was P.W.9. But, however, P.W.9 had turned hostile and stated that there was no quarrel and therefore, the initial enmity between both parties had not been established and as such, the prosecution has lost its foundation. The competent counsel stated that it was alleged that all the accused had used aruval and casuarina log woods for attacking P.W.1 and his father. Subsequently, P.W.1 had informed the doctor at the Government Hospital at Mannargudi that he was beaten by iron rod. As such, P.W.1 has given inconsistent statement. P.W.1 further stated that his father came to the occurrence place only after 10 minutes after the occurrence of the incident.P.W.2 had adduced evidence that all the accused had beaten his father and brother and that he was simply watching which is highly unbelievable. The Village Administrative Officer and the Village servant who were listed as P.W.14 and P.W.15 had also turned hostile and both are competent persons to disclose the facts of the incident since they are permanently staying in the village. As such, there is a serious lacuna on the side of the prosecution to prove their case against the accused who are innocent persons and not involved in the said occurrence. 16. As such, there is a serious lacuna on the side of the prosecution to prove their case against the accused who are innocent persons and not involved in the said occurrence. 16. The highly competent counsel for the State vehemently argued that the Station House Officer had received information and immediately rushed to the occurrence place and made necessary arrangements for medical treatment of P.W.1 and his father and both were sent to the Government Hospital, Mannargudi, wherein the Head Constable had recorded a statement from P.W.1 and registered a criminal case for the offence in Crime No.81 of 2002 for the offence under Sections 147, 342, 355, 323 and 506(ii) IPC. Subsequently, the deceased Durai Vaidhiyalingam had expired on 01.08.2002, therefore, the F.I.R. has been altered under Section 302 IPC and the prosecution case had been proceeded with. The prosecution had proved the case beyond reasonable doubt. P.W.1 is the injured eyewitness and also the prime witness in the prosecution case. Further, occurrence had taken place on 31.07.2002 at about 7.30 a.m. i.e, in broad day light. All theaccused belong to the same village. Initially, there was a quarrel between the first accused and P.W.2 on the public road and the same was compromised by P.W.9 one Shankar who was an eyewitness. The very next day again there was a quarrel picked by the accused, hence, the deceased had lodged a complaint before the Perugavazhdan Police Station, and a criminal case has been registered in crime No.112 of 2001 for the offence under Section 294(B) and 506(ii) IPC. Therefore, it is clear there was enmity between the accused and the deceased family. Finally all the accused had assembled unlawfully and murdered the deceased. Hence, the prosecution case has been proved crystal clear on the strength of P.W.1's evidence and material objects, also including documentary evidence. The medical opinion clearly stated that the deceased had expired due to heavy haemorrage i.e,. his blood vessels were cut and he had profuse bleeding. Therefore, it clearly amounts to homicide i.e, killing by others who are the accused herein and hence, the very competent counsel for the State entreats the court to set-aside the trial Court order and punish the accused. 17. his blood vessels were cut and he had profuse bleeding. Therefore, it clearly amounts to homicide i.e, killing by others who are the accused herein and hence, the very competent counsel for the State entreats the court to set-aside the trial Court order and punish the accused. 17. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on all sides and on perusing the trial Court judgment, this Court does not find any shortcomings in the conclusions arrived at regarding acquittal of the accused. This Court's further view is that P.W.1 had adduced evidence that the fifth accused Chandran had attacked him with iron rod but the same had not been produced as material evidence. Further, P.W.2 had adduced evidence that his brother P.W.1 was beaten by all the accused for about half an hour and he also witnessed the same from near the occurrence. Further, after half an hour, he had cried aloudand on hearing the voice, his father came from his house. This Court is of the further view that P.W.2, who is the son of the deceased further stated that the accused Chandran, Mukkalagan and Vijayan had beaten his father and other accused including A-1 had not attacked his father. Further, all the prosecution witnesses had not spoken on the same line and some of the main witnesses have turned hostile especially, P.W.14 and P.W.15 and 9, 3, 4, 5, 6 7 etc. Therefore, the prosecution case had not been proved beyond doubt. Hence, this Court is not inclined to entertain the above revision. 18. In the result, the above revision is dismissed. Consequently, the judgment passed in S.C.No.28 of 2004, on the file of District and Sessions Judge, Nagapattinam, dated 22.02.2005 is confirmed. Accordingly ordered.