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2020 DIGILAW 587 (MAD)

Thanga v. Inspector of Police

2020-03-10

R.PONGIAPPAN, R.SUBBIAH

body2020
JUDGMENT : R. SUBBIAH, J. 1. The appellants in this appeal are A1 and A2 in S.C. No. 185 of 2012 on the file of IV Additional District and Sessions Judge, Coimbatore, in and by which: (i) A1 was convicted for the offence under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- in default, to undergo simple imprisonment for a period of two months. (ii) A2 was convicted for the offence under Section 307 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- in default, to undergo simple imprisonment for a period of two months. (iii) Al to A5 were acquitted of the offence under Section 147 IPC. (iv) Al and A2 were acquitted of the offence under Section 148 IPC. (v) Al to A5 were also acquitted of the offence under Section 323 IPC (2 counts) read with Section 149 IPC. (vi) Al and A3 to A5 were acquitted of the offence under Section 307 read with 149 IPC. (vii) A2 to A5 were also acquitted for the offence under Section 302 read with 109 IPC. 2. The case of the prosecution as culled out from the evidence, in a nut-shell, is as follows: (a) The deceased in this case is one Karthikeyan. PW-1 Bhuavaneswaran is the injured witness. He is the brother of the deceased Karthikeyan. They were rearing cocks in their house to engage them in cockfight. The accused in this case are also residents of the same Street. There was previous enmity between the accused persons and the deceased in respect of conducting cock fight. (b) PW-2 Devi is a close relative of the deceased and she is residing in the next house of PW-1 and the deceased. PW-10 Sakthivel very often used to go to PW-2's house. Since the visit of PW-10 to the house of PW-2 was not to the liking of the accused persons, they indulged in quarrel with PW-2. PW-2 often complained about the accused persons to the deceased and PW-1. (c) While so, on 08.04.2012 at about 4.30 p.m. when PW-1, the deceased and his family members namely the wife of PW-1 Nathiya, Narayanasamy, father of PW-1 and mother Amsaveni, were in their house, at 4.30 pm PW-1 heard a commotion and saw the accused quarrelling with PW-2-Devi. PW-2 often complained about the accused persons to the deceased and PW-1. (c) While so, on 08.04.2012 at about 4.30 p.m. when PW-1, the deceased and his family members namely the wife of PW-1 Nathiya, Narayanasamy, father of PW-1 and mother Amsaveni, were in their house, at 4.30 pm PW-1 heard a commotion and saw the accused quarrelling with PW-2-Devi. PW-1 therefore intervened and asked the accused not to engage in any quarrel with PW-2 and that the dispute could be amicably settled. At that time, the accused, 5 in number, have assembled in front of the house of PW-2 with deadly weapons in their possession and the accused Krishnamoorthy/A-2 caused a stab injury on the left side upper portion of the hip of PW-1. Unable to bear the pain, PW-1 fell down. At that time, Bala/A3 picked up a stone and hurled it towards the left leg of PW-1. On hearing the noise of PW-1, the deceased came out of the house and questioned the accused as to why they are assaulting PW-1. While so, the accused Thanga/A-1 caused a stab injury with a knife on the left side upper portion of the hip of the deceased and he fell down on the ground and died instantaneously. This occurrence was witnessed by PW-3 Yesumani, Savithri, PW-2 Devi, PW-5 Murali, Kalidas, Dinesh and PW-4 Jayaram and the accused fled away from the occurrence spot. Immediately, PW-1 was taken to N.G. Hospital in an auto by the wife and his mother-in-law's sister. (d) On intimation, PW-12 Sub-Inspector of Police proceeded to the hospital at about 7 p.m. and recorded the statement of PW-1. and registered a case under Sections 323, 307 and 302 IPC on 08.04.2012 at 7.30 p.m. Ex. P-1 is the complaint and Ex. P11 is the FIR, which was forwarded to the Judicial Magistrate Court and the copies of the same to the higher officials. (e) On receipt of the FIR, PW-15 Inspector of Police took up the investigation and proceeded to the place of occurrence and prepared Ex. P-2 observation mahazar and Ex. P-17 sketch. Thereafter, PW-15 conducted inquest over the body of the deceased in the presence of Panchayatdars from 9.30 p.m. to 11 p.m. Ex. P-18 is the inquest report. On completion of the inquest, he forwarded the dead body of the deceased through PW-11 Head Constable to Coimbatore CMC for conducting post-mortem. P-2 observation mahazar and Ex. P-17 sketch. Thereafter, PW-15 conducted inquest over the body of the deceased in the presence of Panchayatdars from 9.30 p.m. to 11 p.m. Ex. P-18 is the inquest report. On completion of the inquest, he forwarded the dead body of the deceased through PW-11 Head Constable to Coimbatore CMC for conducting post-mortem. (f) Thereafter, PW-15 collected the blood stained soil and sample soil from the place of occurrence under seizure mahazar in the presence of witnesses. Subsequently, he recorded the statement of PW-1 from N.G. Hospital, where he was taking treatment in the casualty ward. (g) On 09.04.2012, PW-15 made a request to the Doctor through Head Constable to conduct post-mortem on the body of the deceased, and the same was conducted by PW-13 Doctor. Ex. P-13 is the post-mortem certificate. (h) Thereafter, PW-15 sent the blood stained T-shirt, lunghi, etc. under Form 95 to the Court. Subsequently, he recorded the statement of the further witnesses. (i) On information, on 09.04.2012 at about 2 p.m., PW-15 arrested A1 to A3 near Petrol Bunk at Vellalur Bus Stop. On arrest, A1 gave a confession statement and the admitted portion of his confession statement is Ex. P-4. Pursuant to the abovesaid statement, PW-15 recovered knives, stone etc. under seizure mahazar signed by the witnesses. Based on the confession statement of A1, PW-15 arrested A4 and A5 in the house of Velusamy. Thereafter, PW-15 recorded the statement of the other witnesses. (j) On 20.04.2012, PW-15 sent the Material Objects to Forensic Laboratory for examination. On 23.04.2012, PW-15 recorded the statement of PW-9 Doctor who treated PW-1. (k) On completion of investigation, he filed charge-sheet against the accused persons. 3. Based on the materials available on record, the trial Court framed charges against the accused persons and proceeded for trial. During the course of trial, on the side of prosecution, PWs. 1 to 15 were examined, Exs.P-1 to P-20 were marked and M.Os. 1 to 8 were produced. When the accused persons were questioned under Section 313 Cr.P.C. they denied their complicity in the crime. On the side of the accused, no witness was examined and no document was marked. On the basis of the oral and documentary evidence adduced, the trial Court convicted and sentenced the accused as stated above. Challenging the same, A1 and A2 have preferred the present appeal. 4. On the side of the accused, no witness was examined and no document was marked. On the basis of the oral and documentary evidence adduced, the trial Court convicted and sentenced the accused as stated above. Challenging the same, A1 and A2 have preferred the present appeal. 4. The learned counsel for the appellants/A1 and A2 submitted that there are contradictions in the evidence of the prosecution witnesses and those contradictions would prove that the occurrence could not have happened in the manner as put forth by the prosecution. In support of the said submission, the learned counsel for the appellants/A1 and A2 took this Court to the evidence of the prosecution witnesses. According to the learned counsel for the appellants, all the eye-witnesses stated that the stabbing incident had taken place on 08.04.2012 at about 4.30 p.m. PW-1, the injured victim was brought to N.G. Hospital in an auto and he was admitted in the hospital at about 6.10 p.m. as per Ex. P-7 Accident Register. As per Ex. P-7, PW-1 was treated by one Dr. Kannammal, who was not examined by the prosecution. No statement had been obtained from her. Hence, the time of admission of PW-1 in the hospital has not been proved and it creates a doubt in the case of prosecution. 5. The learned counsel for the appellants/A1 and A2 further submitted that PW-14/ Photographer, in his evidence has stated that he was present in the place of occurrence at about 4.45 p.m. and took photographs, whereas the complaint was registered only at about 7.30 p.m. According to the learned counsel for the appellants, these factual aspects would show that even before the registration of the FIR, the investigation has commenced. According to the learned counsel for the appellants, there should have been earlier compliant given in connection with this occurrence, based on which no action was taken and therefore, the origin and genesis of the case had been suppressed. 6. The learned counsel for the appellants further submitted that PW-15 Investigating Officer had stated in his evidence that while lodging the complaint, PW-1/injured witness had stated that he was stabbed by sharp edged iron rod, but in his evidence before the Court, he has stated that he was stabbed using a knife. 6. The learned counsel for the appellants further submitted that PW-15 Investigating Officer had stated in his evidence that while lodging the complaint, PW-1/injured witness had stated that he was stabbed by sharp edged iron rod, but in his evidence before the Court, he has stated that he was stabbed using a knife. The learned counsel for the appellants further contended that though two knives have been used at the time of occurrence, but only one knife was identified by the Doctors and one knife alone was sent for expert opinion. 7. Therefore, according to the learned counsel for the appellants, a cumulative effect of the basic contradictions found with regard to the nature of the weapon used, the commencement of the time of investigation even before the registration of the FIR, non-examination of the duty Doctor Kannammal, who saw the patient PW-1 at the first instance and who recorded Ex. P-7 Accident Register, the then prevailing physical and mental condition of PW-1, his ability to speak or understand things at or during his intensive treatment, non-examination of one Savithri, who was instrumental in dictating the complaint on behalf of the injured PW-1 and non-examination of the experts, all would totally throw away the case of the prosecution as unbelievable. 8. The learned counsel for the appellants further submitted that the trial Court has not properly appreciated the evidence, as there are contradictions in the case of the prosecution. Further, the trial Court failed to note that the eye-witnesses to the occurrence, are close relatives. Moreover, though the occurrence had taken place in a public place during day time, the Police had not chosen to examine any independent witness. Hence, for the above reasons, the learned counsel for the appellants/A1 and A2 prayed to allow the appeal. 9. Alternatively, it is submitted by the learned counsel for the appellants that even according to the prosecution, the occurrence took place out of sudden quarrel and A1 and A2 had caused single stab injury with the knife. Therefore, the act of the appellants/Al and A2 would not fall within the purview of Section 302 IPC and at the most, it would fall within the ambit of exception to Section 300 IPC. Under such circumstances, the appellants/A1 and A2 are liable to be punished only under that exception. Therefore, the act of the appellants/Al and A2 would not fall within the purview of Section 302 IPC and at the most, it would fall within the ambit of exception to Section 300 IPC. Under such circumstances, the appellants/A1 and A2 are liable to be punished only under that exception. Hence, the learned counsel for the appellants prayed that this Court may modify the sentence recorded against the appellants under Section 302 IPC and impose lesser sentence by showing leniency. 10. Countering the above submissions, the learned Additional Public Prosecutor appearing for the respondent submitted that the prosecution has proved its case beyond reasonable doubt and therefore, the conviction and sentence recorded by the trial Court need not be interfered with. PWs. 1 to 5, 7 and 10 are all eye-witnesses, who have clearly spoken about the overt acts attributed to the accused persons. Their evidence corroborates with each other. Further, the contradictions pointed out by the learned counsel for the appellants are minor in nature and hence, no significance could be attached to it. Thus, the learned Additional Public Prosecutor prayed for dismissal of the appeal. 11. We have given our anxious consideration to the submissions made by the learned counsel on either side and perused the materials available on record. 12. It is the main submission of the learned counsel for the appellants/A1 and A2 that PW-12 Sub-Inspector of Police, on 08.04.2012, on receipt of the information from N.G. Hospital, recorded the statement of PW-1 at about 7 p.m. and registered a case, whereas, according to PW-14 photographer, on the request made by the Police, he went to the place of occurrence at about 4 p.m. itself and took photographs at about 4.45 p.m. Thus, it is the submission of the learned counsel for the appellants/A1 and A2 that the investigation in this case commenced even before registration of the FIR. According to the learned counsel for the appellants, there should have been earlier complaint, which might have been suppressed and not produced before Court. Therefore, there is every possibility of registration of a false case as against the appellants. 13. It is to be seen that the occurrence had taken place in a public place in broad day light in front of the house of the deceased. Totally, there are seven eye-witnesses in this case. Therefore, there is every possibility of registration of a false case as against the appellants. 13. It is to be seen that the occurrence had taken place in a public place in broad day light in front of the house of the deceased. Totally, there are seven eye-witnesses in this case. Thus, there is every possibility of the news reaching the Police over telephone. The news could have been only cryptic and the object and purpose of giving such cryptic news (like telephonic message) is not to lodge the FIR, but to request the officer-in-charge of the Police Station to reach the place of occurrence. There is absolutely no material to come to the conclusion that the information given to the Police is not cryptic. Therefore, the presence of PW-14 photographer in the place of occurrence, who took photograph at 4.45 p.m. itself, would not in any way vitiate the case of the prosecution. 14. Further, it has to be borne in mind that in the place of occurrence, one person (PW-1) was grievously injured and he was rushed to the hospital and the other person (deceased) was brutally murdered and the deceased died on the spot. In such a situation, in this case, even though the news received by the Police is cryptic, PW-14 photographer reaching the place of occurrence before registration of the FIR, will not vitiate the case of the prosecution and it is only natural. Therefore, we are not inclined to accept the submission made by the learned counsel for the appellants that there should have been an earlier complaint, which might have been suppressed. 15. It is yet another submission of the learned counsel for the appellants that the weapon used in commission of the offence, was not properly described. In the FIR, it has been stated as iron rod and in Ex.P-7 Accident Register, it is stated as sharp iron rod. In the statement recorded from PW-1 by PW-15, it is stated as knife and in the confession statement of the accused, it is also stated as knife. 16. It has to be visualised that PW-1, who was in a traumatic state at the time of occurrence and the one who has received stab injury, cannot be expected to precisely say the weapon used for causing the injury on his body. 16. It has to be visualised that PW-1, who was in a traumatic state at the time of occurrence and the one who has received stab injury, cannot be expected to precisely say the weapon used for causing the injury on his body. PW-1 was taken to hospital for treating the injuries sustained by him and at that time, his statement was recorded. Hence, there is every possibility that he could have stated the weapon used as knife to PW-15. Contrarily, in Ex. P-7 Accident Register, the Doctor has recorded the statement from PW-1 to the effect that he sustained injury by using a sharp iron rod. In the evidence recorded from the prosecution witnesses who witnessed the occurrence, it is stated that the weapon used for commission of the offence was knife. This ocular testimony totally throws away the doubt created with regard to the nature of weapon used. 17. It is yet another submission of the learned counsel for the appellants that though two knives are said to have been used and recovered, only one knife was sent to Forensic Laboratory. Even though two knives were produced as Material Objects before the Court, only one knife alone (M.O.1) was shown to PW-13 Doctor who conducted postmortem and PW-13 Doctor stated in his evidence that by using M.O.1 knife, the injuries could have been caused. Now, it is the contention of the learned counsel for the appellants that the same M.O.1 was shown to PW-9 Doctor who treated PW-1 and the other knife was not shown to both the Doctors and this creates a doubt in the case of the prosecution. Absolutely, we do not find any suspicion in this case, because, admittedly, by using M.O.1 knife, the death was caused and the said M.O.1 was also sent to Forensic Laboratory. So far as PW-1 is concerned, he is an injured witness who had clearly spoken about the occurrence, by stating that he was stabbed by A2 with the knife. Thus, there is no confusion in the case projected by the prosecution with regard to the weapon used. Above all, we are of the view that the murder had occurred in broad day-light and the occurrence was witnessed by seven eye-witnesses. On perusal of their evidence, we are of the view that their evidence corroborates with each other, which is in favour of the prosecution. Above all, we are of the view that the murder had occurred in broad day-light and the occurrence was witnessed by seven eye-witnesses. On perusal of their evidence, we are of the view that their evidence corroborates with each other, which is in favour of the prosecution. In this case, PW-1 is the injured witness. As held by the Supreme Court in the decision reported in Smt. Shamim vs. NCT of Delhi, (2018) 10 SCC 509 , the evidence of an injured witness carries great weight, as it is presumed that having been a victim of the same occurrence, the witness was speaking truth. 18. Further, apart from PW-1, the injured witness, PWs. 2 and 10 are also the eyewitnesses, who have spoken about the nature of injuries caused to PW-1 and the deceased. Nothing in favour of the defence/accused was brought out from their evidence, during the cross-examination. Therefore, when there is clear evidence of the eye-witnesses, we do no find any inconsistency in their version. Ever though there are minor contradictions in then evidence, in our opinion, such minor inconsistencies do not affect the credibility of their evidence or dislodge the case of the prosecution. 19. Further, this is a case where, by examining the eye-witnesses, the prosecution had proved its case beyond reasonable doubt. Hence, we do not find any ground to reduce the sentence imposed on the appellants/A1 and A2 by trial Court. On the date of occurrence, the accused persons voluntarily went to the house of the deceased, created a flutter by quarrelling with PW-2 Devi. When this was questioned, A2 stabbed PW-1. Further, when the deceased intervened, the accused caused his death. The fact remains that the accused persons are not in a position to show that the murder had taken place out of sudden provocation, but the offence was committed by the accused due to a previous enmity. Even before the date of occurrence, there was continuous fight between the parties with regard to the conduct of cock-fight. 20. Thus, we do not find any merits in the submissions made by the learned counsel for the appellants/A1 and A2. The prosecution has strongly cemented their case against the accused and established their guilt beyond reasonable doubt. Hence, the Criminal Appeal is liable to be dismissed. 21. 20. Thus, we do not find any merits in the submissions made by the learned counsel for the appellants/A1 and A2. The prosecution has strongly cemented their case against the accused and established their guilt beyond reasonable doubt. Hence, the Criminal Appeal is liable to be dismissed. 21. In the result, the Criminal Appeal is dismissed, confirming the conviction and sentence imposed on the appellants/A1 and A2 by the trial Court. Since the appellants are on bail pending appeal, the trial Court is directed to take steps to secure their custody to undergo the remaining period of sentence, if any.