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Madras High Court · body

2018 DIGILAW 2680 (MAD)

Dhanapal v. State

2018-08-29

M.M.SUNDRESH, N.SATHISH KUMAR

body2018
JUDGMENT : M.M. SUNDRESH, J. 1. This appeal has been filed by the appellant/sole accused as against the conviction and sentence dated 17.06.2008, made in S.C.No.160 of 2007, on the file of the learned Sessions Judge, Tiruchirapalli Division, Tiruchirapalli. 2. The appellant stood convicted and sentenced to undergo imprisonment as detailed hereunder: Conviction U/s. Sentence Fine amount 302 IPC To undergo imprisonment for life. To pay a fine of Rs. 1,000/-, in default, to undergo six months rigorous imprisonment. 506(ii) IPC To undergo rigorous imprisonment for five years. ----- 3. The brief facts of the prosecution are as follows: (i) The deceased Krishnan is the brother of P.W.1 (Vellaisamy) and a resident of Kulathukarai, Koppu Village. The deceased Krishnan, due to matrimonial discord with his wife, was residing with P.W.1. The accused and the deceased were friends for some time. Four months prior to the occurrence, the accused and the deceased went to Tiruchirappalli to attend a marriage and due to some misunderstanding arose between them, the deceased has allegedly caused a cut injury on the knee of the accused. Anticipating retaliation by the accused, the deceased was advised by P.W.1 to leave the Village and take out employment in some other place. Accordingly, the deceased was sent to Erode and he was engaged in the electricity work at Perundhurai. (ii) When the matter stood thus, the deceased came to the Village for the Temple festival three days before 15.04.2007. On 15.04.2007, the deceased, Vellaisamy (P.W.1), his wife-Jothi (P.W.2) and their minor son-Dinesh Kumar (P.W.3) visited the Village Temple around 11.00 p.m. While they were standing near the Temple, the accused came there with M.O.4-Aruval and chased the deceased. Above such chase was also witnessed by P.W.4. P.Ws.1 to 3 also followed the accused. However, the accused cut the deceased repeatedly in front of the house of one Dharmaraj. On seeing such incident, despite the plea of P.W.1 not to cut the deceased, the accused also threatened P.Ws.1 to 3. The deceased succumbed to the injuries there itself and P.W.1 went to the Police Station and lodged a complaint-Ex.P.1 with P.W.8-Balasubramaniyan, Inspector of Police. However, the accused cut the deceased repeatedly in front of the house of one Dharmaraj. On seeing such incident, despite the plea of P.W.1 not to cut the deceased, the accused also threatened P.Ws.1 to 3. The deceased succumbed to the injuries there itself and P.W.1 went to the Police Station and lodged a complaint-Ex.P.1 with P.W.8-Balasubramaniyan, Inspector of Police. (iii) P.W.8, on receipt of complaint, registered a case in Crime No.110 of 2007 under Section 302 of the Indian Penal Code under Ex.P.11-First Information Report and took up the case for investigation, went to the place of occurrence, prepared an Observation Mahazar (Ex.P.2) and rough sketch (Ex.P.12) in the presence of P.W.5 and another witness and also seized the bloodstained concrete mortar (M.O.1), sample concrete mortar (M.O.2) and also the chappals left by the accused in the place of occurrence (M.O.3) under Ex.P.3-Seizure Mahazar and conducted inquest over the dead body in the presence of witnesses and prepared inquest report Ex.P.13 and examined the witnesses, recorded their statements and sent the dead body for post-mortem with requisition (Ex.P.7). (iv) P.W.7, the Medical Officer, attached to the Government Medical College Hospital, conducted autopsy over the dead body and found the following injuries: "1. A transverse incised wound, 5 cm x 1 cm x muscle deep; on the front of right forearm. 2. An oblique stab wound, 4 cm x 1.5. cm, deep to cavity, on the front of chest, near the inner end of right collar bone. Edges are clear cut. The lower right end is obtuse. The upper left end is acute and with a tailing to a length of 6 cm, on the front of left side of neck. O/E The muscles, blood vessels and nerves are clean cut. Cut fracture of inner end of right collar bone and right first rib present. Pleura is torn. Pleural cavity contains fluid blood. 3. Dark brown colour abrasions, of varying dimensions, on the front of right side of chest, on an area of, 14 cm x 10 cm. 4. An oblique cut wound, 11 cm x 2 cm x bone deep, on the left side of neck, the inner end is 3 cm away from the midline and at the level of upper half of thyroid cartilage and with a tailing to a length of 3 cm from the upper left end. Edges are clean cut. 4. An oblique cut wound, 11 cm x 2 cm x bone deep, on the left side of neck, the inner end is 3 cm away from the midline and at the level of upper half of thyroid cartilage and with a tailing to a length of 3 cm from the upper left end. Edges are clean cut. The muscles, blood vessels and nerves are clean cut. 5. An oblique, slash cut wound, from above downwards, 18 cm x 5 cm, of varying depth, on the left side of head, pinna of left ear, left side of lower jaw, left side and front of neck crossing the midline above the thyroid cartilage, 2 cm above the wound No.4. Edges are clean cut. The pinna of left ear, muscles, blood vessels and nerves are clean cut. O/D Cut fracture of left side of lower jaw bone, C2 and C3 vertebrae present. The medulla oblongata and spinal cord present. 6. A slash incised wound, 6 cm x 2.5 cm x skin deep, on the left maxilla region present. The blood is diffused into the wound track of all the wounds and are ante-mortem in nature. No other external, internal or bony wound present. Other findings: Peritoneum-intact, cavity-empty; Pleura-thickened and adherent to thoracic wall; Pericardium-intact, cavity-straw colour fluid; Heart-normal in size, Myocardium-normal, chambers-fluid blood, Valves-normal, Coronary Vessels-patent, Great Vessels-normal; Lungs -C/s pale; Hyoid bone, Larynx and trachea-intact; mucosa-pale; Stomach- light yellow colour partially digested food material, alcohol smell present, mucosa-pale; Oesophagus-intact, mucosa-pale; Pancreas-pale; Gall bladder-full, no stones; Omentum and Mesentery-intact, normal; Liver, Spleen and Kidneys-c/s pale; Small intestine-yellowish chyme, alcohol smell present, mucosa-pale; Appendix-intact, normal; Large intestine-filled with fecal material; Urinary bladder-intact and empty; Pelvis-intact; Opening of the Head-alcohol smell present; Scalp, Skull Bones and Membranes-intact, Brain Vessels and Sinuses-empty; Brain-petechiae present ; CSF- clear; Vertebral column and cord-vide wound column; All other internal organs on c/s pale." and issued Post-mortem Certificate-Ex.P.8 and after obtaining viscera report- Ex.P.9 and serological report-Ex.P.10, opined that the deceased would appear to have died due to hypoxia and hemorrhage due to cut wounds of the neck. (v) P.W.8, in continuation of the investigation, recorded the statements of witnesses and thereafter, arrested the accused at 04.00 p.m., in the presence of Village Administrative Officer (P.W.5) and others and recorded his confession. (v) P.W.8, in continuation of the investigation, recorded the statements of witnesses and thereafter, arrested the accused at 04.00 p.m., in the presence of Village Administrative Officer (P.W.5) and others and recorded his confession. Pursuant to the admissible portion of his confession, which is marked as Ex.P.4, he seized M.O.4-Aruval under Ex.P.5- Mahazar and also seized the dresses from the dead body under Ex.P.14-Special report from one Thangaraj, Head Constable. After examining the Medical Officer, he also gave a requisition to the Court to send the Material Objects to Forensic Lab. The reports are Exs.P.18 and P.19 and finally, he laid final report as against the accused for the offences under Sections 302 and 506(ii) of the Indian Penal Code. (vi) Based on the above materials and evidence, the trial Court framed as many as two charges under Sections 302 and 506(ii) IPC against the accused. The accused denied the same. In order to prove the charges, on the side of the prosecution, P.W.1 to P.W.8 were examined and Exs.P.1 to P.19 and MOs.1 to 8 were marked. (vii) When the accused was questioned under Section 313 of Cr.P.C. with reference to the incriminating materials adduced by the prosecution, the accused denied his complicity in the crime and pleaded innocence. However, he neither choose to examine any witness nor to mark any document. (viii) The trial Court, after considering the oral and documentary evidence, has found the accused guilty and accordingly, convicted and sentenced the accused, as stated supra. Aggrieved over the said conviction and sentence, the appellant/sole accused has come up with this appeal. 4. The main contention of the learned counsel appearing for the appellant is that the genesis of the prosecution has been suppressed in this case. On the date of occurrence, there was a function in the Temple and the Police Personnel were also present in the Village. This fact has been admitted by P.W.5. Further, the earlier complaint given by P.W.1 to the police has been suppressed in this case. 5. It is the further contention of the learned counsel that the First Information Report has been despatched to the Court with an inordinate delay, which remains unexplained, coupled with the suppression of the fact, the delay assumes significance in this case, the evidence of P.W.4 does not prove the presence of P.Ws.1 to 3 in the place of occurrence. 5. It is the further contention of the learned counsel that the First Information Report has been despatched to the Court with an inordinate delay, which remains unexplained, coupled with the suppression of the fact, the delay assumes significance in this case, the evidence of P.W.4 does not prove the presence of P.Ws.1 to 3 in the place of occurrence. Therefore, the presence of P.Ws.1 to 3 is highly doubtful and the evidence of P.W.4 is also unreliable and he did not witness the occurrence. He saw the dead body in the darkness. Therefore, his evidence is also not helpful to the prosecution. The evidence of P.W.4 is also against normal human conduct and the source of light is also doubtful. There was no light at the place of occurrence. Hence, it is the contention of the learned counsel that in this case, the accused has been unnecessarily roped in. Therefore, the learned counsel prayed for allowing of the appeal 6. Whereas, it is the contention of the learned Additional Public Prosecutor that P.Ws.1 to 3, who are all family members of the deceased, have clearly spoken about the role played by the accused in chasing the deceased and cutting indiscriminately. P.W.3 is a minor. His evidence also clinchingly established the fact that the accused has cut the deceased indiscriminately. P.W.4, independent witness, has also seen the accused chasing the deceased with aruval. Immediately, he saw the dead body near the house of Dharmaraj. There was no motive for P.W.4 to falsely implicate the accused in this case. Admittedly, there was a temple festival in the Village. The lights were burning. Therefore, merely because lights were not burning in the place where the dead body was found, it cannot be stated that eye witnesses would not have witnessed the occurrence. 7. It is the further contention of the learned Additional Public Prosecutor that previous motive between the accused and the deceased has not even denied by the accused. The First Information Report has been reached to the Court promptly. There was no delay, as contended by the learned counsel for the appellant. 8. Adding further, the learned Additional Public Prosecutor contended that merely because some admission of P.W.5 in the cross-examination that in the Village festival, police were also deputed at the relevant point of time, it cannot presume that there was an earlier version to the Bundobust Constables. There was no delay, as contended by the learned counsel for the appellant. 8. Adding further, the learned Additional Public Prosecutor contended that merely because some admission of P.W.5 in the cross-examination that in the Village festival, police were also deputed at the relevant point of time, it cannot presume that there was an earlier version to the Bundobust Constables. Hence, it is submitted that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, he prayed for dismissal of the appeal. 9. In the light of the above submissions, now, it has to be analyzed as to whether the prosecution has proved the guilt of the accused beyond all reasonable doubt. 10. It is not in dispute that the accused and the deceased were residents of same Village. The motive projected by the prosecution is that the accused and the deceased were friends for some time. When they went to Trichirappalli to attend a marriage, there arose dispute between them, which resulted in causing injury to the accused by the deceased. Apprehending danger of retaliation, P.W.1 advised the deceased to stay away from the Village for some time. Accordingly, the deceased was staying at Perundhurai by working therein. However, during the Temple festival in the Village, the deceased came to the house of P.W.1 three days prior to the occurrence. The motive as projected by the prosecution that earlier the deceased caused injury on the accused is not denied in the entire cross-examination of the witnesses. 11. It is the case of the prosecution that on 15.04.2007, P.Ws.1 to 3 along with the deceased went to the Temple festival. When they were standing near the Temple at 11.00 p.m., the accused came with M.O.4-Aruval and chased the deceased and P.Ws.1 to 3 also followed them. However, the accused cut him indiscriminately. P.W.1 is the brother of the deceased. P.W.2 is the wife of P.W.1. P.W.3 is the minor son of P.W.1 and P.W.2. Their evidence show that the accused chased the deceased and caused cut injury in front of one Dharmaraj's house. 12. P.W.4, one of the independent witnesses, was examined. However, the accused cut him indiscriminately. P.W.1 is the brother of the deceased. P.W.2 is the wife of P.W.1. P.W.3 is the minor son of P.W.1 and P.W.2. Their evidence show that the accused chased the deceased and caused cut injury in front of one Dharmaraj's house. 12. P.W.4, one of the independent witnesses, was examined. In his evidence, he has also stated that on the night hours of 15.04.2007, he saw the accused standing in front of the Temple and he has also seen the accused chasing the deceased with Aruval and thereafter, heard the death of the deceased and has also found the dead body in front of one Dharmaraj's house. Though P.W.4, in his evidence, has not spoken about the presence of P.Ws.1 to 3 in the place of occurrence at the relevant point of time, the evidence of P.Ws.1 to 3 cannot be disbelieved merely on the ground that P.W.4 did not notice P.Ws.1 to 3 at the relevant point of time. 13. It is to be noted that admittedly, there was a festival in the Village. There were more gatherings during such festivities in the Village. Therefore, every person meticulously remembering who are all present at the relevant point of time is humanly impossible. Therefore, merely because P.W.4, in his evidence, has not stated about the presence of P.Ws.1 to 3 at the relevant point of time, we are not in a position to disbelieve the evidence of P.Ws.1 to 3. P.Ws.1 and 2 have clearly spoken in their evidence that after taking food in the house, all of them left to the Temple in the night. They have also stated that there were lights burning in the place of occurrence when they saw the accused chasing the deceased. P.W.3, minor son of P.W.1, in his evidence, has also stated that the accused only chased the deceased and cut him indiscriminately. 14. The medical evidence, when carefully seen, the Medical Officer has also noted partially digested food materials in the stomach of the deceased. The medical evidence clearly corroborate the evidence of P.Ws.1 and 2 that the deceased, in fact, had food with them in the house and thereafter, left to the Temple. 15. The evidence of P.Ws.1 to 3, when carefully seen, when they were all witnessing the temple festival at the relevant point of time, the accused chased the deceased suddenly. The medical evidence clearly corroborate the evidence of P.Ws.1 and 2 that the deceased, in fact, had food with them in the house and thereafter, left to the Temple. 15. The evidence of P.Ws.1 to 3, when carefully seen, when they were all witnessing the temple festival at the relevant point of time, the accused chased the deceased suddenly. They have also followed and witnessed the occurrence. P.W.4, independent witness, has also seen the accused chasing the deceased to some distance and found the dead body immediately in front of one Dharmaraj's house. The evidence of P.W.4 that he saw the accused chasing the deceased with Aruval was not even denied in the cross-examination. Though, in the Temple festival, there were many gatherings, merely because the independent witnesses other than P.W.4 were not examined by the prosecution, the entire prosecution cannot be disbelieved, for the simple reason that nowadays, a trend has been set in mind of the people to refrain themselves from taking any risk in the Court proceedings, that too, in the nature of criminal offence. Witnessing the occurrence by many people is one thing, and volunteering themselves as witnesses and give statements before the Police is also another aspect, which is always depend upon the will of the witnesses. Therefore, merely because the independent witnesses have not come forward to give evidence, that itself is not a ground to conclude that the entire prosecution is doubtful. 16. Though the evidence of relative witnesses requires careful scrutiny, on careful scrutiny of their evidence, we are unable to disbelieve their version merely because of some minor contradictions between the evidence of P.Ws.1 to 3. Such minor contradictions will naturally occur. The version of each witness would be different based on his individual observation and reaction on seeing the incident, like a murder. Therefore, we are of the view that minor contradictions projected by the appellant will not destroy the prosecution case. What is to be seen is whether substratum of the prosecution is intact or not. Further, there was no motive whatever suggested against P.W.4 or other witnesses for false implication of the accused in this case. 17. P.W.8 has received Ex.P.1 from P.W.1 at 01.00 a.m., on 16.04.2007 and registered the crime and proceeded with the investigation. What is to be seen is whether substratum of the prosecution is intact or not. Further, there was no motive whatever suggested against P.W.4 or other witnesses for false implication of the accused in this case. 17. P.W.8 has received Ex.P.1 from P.W.1 at 01.00 a.m., on 16.04.2007 and registered the crime and proceeded with the investigation. The First Information Report has been received in the Police Station at 01.00 a.m., and reached to the Court at 03.00 a.m. on the same day without any delay and two hours in despatching the First Information Report in the night hours cannot be a fatal. 18. It is further to be noted that though P.W.5, in his cross- examination, has admitted that on the date of occurrence, in the festival, there were 10 to 15 police also in the village. The police were sleeping in the stage at the relevant point of time. Merely because some Bundobust Constables were posted at the relevant point of time in the Village, where many people were gathered in the festival, it cannot be stated that there was a first information to the Constables posted at the Bundobust duty. The evidence of P.W.5 clearly indicates that only after the occurrence, they all woke up. Probably, only after such occurrence, they would have immediately realized that such occurrence took place. Therefore, merely because some Constables were assigned Bundobust duty in the Temple festival, it cannot be said that there was an earlier version given by P.W.1 to them. It is common knowledge that normally Constables are deputed from the Armed Reserve Police Force for such festivals. Even their presence and even any information came to their knowledge, it cannot be construed as a First Information Report at all. The First Information Report should normally be given either orally or in writing to the officer in-charge of the Police Station and not to the Constables, who have posted in the Bundobust duty. Therefore, we are of the view that mere presence of such Constables as per the version of P.W.5, we cannot conclude that the earlier version has been suppressed in this matter. 19. P.W.1'S evidence shows that immediately after the occurrence, he went to the Police Station and lodged a complaint, which has also been spoken to by the Investigating Officer (P.W.8). 19. P.W.1'S evidence shows that immediately after the occurrence, he went to the Police Station and lodged a complaint, which has also been spoken to by the Investigating Officer (P.W.8). The Medical Officer evidence clearly established the nature of cut injuries inflicted on the deceased body. The evidence of P.W.5 and the Investigating Officer (P.W.8) clearly show that immediately after the occurrence, P.W.8- the Investigating Officer rushed to the place of occurrence and collected bloodstained concrete mortar and sample concrete mortar, besides the chappals left by the accused in the place of occurrence. The evidence of P.W.8 and P.W.5 also clearly show that there were tube lights burning in the place where the dead body was found and since there was no sufficient light, P.W.8 used the petromax light to prepare the Observation Mahazar and rough sketch. The evidence of P.W.8 that he seized the accused chappal from the place of occurrence is not disputed by the accused in the entire cross-examination. Nor any explanation offered with regard to the same in the 313 Cr.P.C., questioning. The accused was arrested on the next day as per the version of the Investigating Officer. Whereas P.W.4 in his evidence has stated that the Villagers chased the accused and caught him. Though there is some discrepancy with regard to the arrest, the Investigating Officer, in his evidence, has clearly stated that the accused while chased by the Villagers sustained abrasion and, therefore, he was sent to the Hospital. But the fact remains that the accused was arrested on the next day as per the evidence of P.W.4 and the Investigating Officer. Even assuming that the accused was chased on the next day by the Villagers, he was brought into the custody of the Investigating Officer on the same day at 04.00 p.m. The evidence of the Investigating Officer and P.W.5 also proved the factum of recovery of M.O.4 from the bushes. 20. Ex.P.18-Biological report and Ex.P.19-Serological Report show that human blood was detected on the Material Objects including the shirt of the deceased and the chappals of the accused, which contained human 'A' blood group. The blood group of the deceased was 'A' which is also established by the prosecution by Ex.P.19-Serological report. Chappals worn by the accused also contained the same blood group. There was no explanation from the accused in this regard. The blood group of the deceased was 'A' which is also established by the prosecution by Ex.P.19-Serological report. Chappals worn by the accused also contained the same blood group. There was no explanation from the accused in this regard. The viscera report shows that the viscera did not contain any alcohol. P.Ws.1 and 2 in their evidence have stated that the deceased did not consume any alcohol at the relevant point of time. The scientific evidence corroborate their evidence. Though P.W.3, the minor son of P.W.1 and P.W.2, admitted in his evidence that the deceased consumed alcohol at the relevant point of time, the scientific evidence ruled out the consumption of alcohol. Therefore, just because there were inconsistencies in the evidence of P.W.3 with regard to the consumption of alcohol, we are of the view, the same is not fatal to the prosecution. 21. Considering the entire gamut of evidence and the incriminating materials produced against the accused, particularly, shirt, chappals and weapon seized from the accused contained the blood group of the deceased and the evidence of P.Ws.1 to 3 also clearly proved the specific overt act of the accused chasing the deceased and cutting him severely and P.W.4-independent witness has also seen the accused chasing the deceased and the evidence of the eye witnesses also clearly proved that they have been threatened by the accused with deadly weapon, we are of the view that the prosecution has established the complicity of the accused with the crime. Hence, we do not find any infirmities in the conviction and sentence imposed by the Trial Court finding the accused guilty for the offences punishable under Sections 302 and 506(ii) of the Indian Penal Code. 22. In fine, the Criminal Appeal is dismissed and the conviction and sentence passed by the learned Sessions Judge, Tiruchirapalli Division, Tiruchirapalli, dated 17.06.2008, made in S.C.No.160 of 2007, against the appellant/sole accused are confirmed.