(The judgment of the Court was made by M.VENUGOPAL, J.) This appeal challenges the Judgment from the Additional Sessions Division, Namakkal made in S.C.No.115 of 2005 dated 18.07.2006 whereby the appellant/second accused along with A1 Mariappan and another 2 accused viz., Cholan, Sivan @ Sivam stood charged under Section 302 read with 34 I.P.C. for having entered into the house of the complainant Kumarasamy, Son of Thirumalai Gounder with the knife and Koduval while he was sleeping with his family on 11/12.01.1992 at about 01.00 a.m. at Valkadu Pallipatti, 67, Goundanpalayam and dragged the complainant's father-in-law, Muthusamy outside and committed his murder by stabbing him with the said weapons and thereby committed the offence under Section 302 read with 34 I.P.C.
2. Further, in the course of the same transaction,the first accused Mariappan with a big stone broke open the complainant's door and entered into the house and stolen 22 = sovereigns of jewels and a sum of Rs.11,000/- in cash and also committed robbery of properties valued about Rs.80,000/- besides causing injury to the complainant's right eyebrow, near left eye and the complainant's daughter Kalaiselvi has also been inflicted with a stab injury on her right shoulder and thereby committed the offence under
Section 394 read with 397 I.P.C.
3. On trial, the appellant/second accused along with A1 Mariappan have been found guilty under
Section 302 read with 34 I.P.C. and have been sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in regard to the offence under
Section 394 read with 397 I.P.C. A1 Mariappan has been found guilty and sentenced to undergo Rigourous imprisonment of 7 years and to pay a fine of Rs.7,000/- in default to undergo simple imprisonment of one year.
4. The short facts of the prosecution case are as follows:-
P.W.1 Kumarasamy is the complainant who has given Ex.P1 the complaint. He is residing at Pallipatti Valkadu, 67, Goundan palayam. On 11/01/1992 after supper at about 10.00 p.m., he, his wife, his daughter P.W.3 Kalaiselvi, his father Tirumalai Gounder, his father-in-law Muthusamy, his mother-in-law and others have been sleeping inside the house. His father has been sleeping in the kitchen and his father-in-law has been sleeping outside the house. His farm servant Perumal staying with his family from a distance of 100 feet from his house have been sleeping in their house along with wife and children. At 01.00 a.m. during night his father and father-in-law after hearing the barking dog's noise after opening the door have come out. He has also gone outside and at that time, they have seen the accused present standing outside. When he has come outside, he has seen four persons with knife, aruval and iron rod and out of the said four persons, three have been present in court. They have attacked his father and locked him in the kitchen and further they have dragged his father-in-law outside. The four accused have threatened his father-in-law Muthusamy by asking him as to the place where he has kept the sandal wood and asked him to produce the same and after saying they can take the sandal wood if it is there he has gone to his house. One of the four accused has caused injuries on his right eyebrow and one the forehead with the knife and at that time, after pushing them, he has gone inside the house and locked the same from inside. It is the further evidence of P.W.1 that one out of the four accused at that time has broken open the door with the stone and A1 Mariappan and A3 Cholan have entered into the house and threatened them with knife. At that time, outside his house four lights have been burning and after hearing the dog's barking noise, they have also switched on the light of the house. The accused have snatched the gold chain, weighing approximately 6 or 7 sovereigns (having the letters KS) and also the two bangles with earrings from his daughter Kalaiselvi and when his daughter refused to hand over the same at first they stabbed on her right shoulder and after injuring her they removed her six sovereigns chain. Later, the third accused has also snatched his wife's Mangal Sutra Chain and also her gold bangles weighing three sovereigns. At that time, the accused who have been inside the house informed the other accused who have been outside the house 'to finish him off'. From the pooja room, the first accused Mariappan has broken open bureau and has taken a cash of Rs.11,000/-, gold chain, bangle, ring, two earrings, three watches (including male and female watches). By this time, one of the accused from outside entered into the house and informed that he has murdered a person outside and threatened the inmates 'if you do not part with all the gold jewels all of you will also be murdered' for which they have given a reply by stating that they have parted with everything. Thereafter, after locking the inmates of the house inside the room the accused have made their escape around 02.45 a.m. Only at about 5 'O clock in the morning, the inmates have broken open the door of the room by removing the nuts after coming out when they made a search for their father-in-law, they have found him dead on the backside of the house of his farm servant's residence with stab injury on back side of his head, etc.,
5. Added further, P.W.1 has lodged Ex.P1 the First Information Report on the morning at 08.30 a.m. before Tiruchengode Police Station. He has been sent to the hospital for the treatment through a medical memo. He has gone to Kodaikanal Police station and identified M.O.1 the watch, M.O.2 bangles, M.O.3 his daughter's ring and also M.Os.4 and 5, big and small gold rod. He has identified A1 Mariappan, A2 the present appellant in the identification parade conducted in Madurai Prison by the learned Judicial Magistrate, Nilakottai.
6. P.W.2 the Village Administrative Officer has spoken about Ex.P4 observation mahazar prepared by the Investigating Officer and also he has been witnessed to the recovery of blood stained earth M.O.6, sample earth M.O.7 and other M.Os.8 to 22 as per Ex.P5 to Ex.P9 through the Investigating Officer. P.W.3 Kalaiselvi has stated that the first accused Mariappan has broken the door with the stone and the person stabbed her is not present in Court and that A2 Balu @ Balsamy (the appellant in C.A.No.527/08) along with A3 Cholan have threatened her with knife and rod and have snatched her gold long chain weighing six sovereigns, gold bangle weighing 3 sovereigns, earrings and her mother's Mangal Sutra, ring, bangle and earring.
7. P.W.4 in her evidence has stated that prior to 14 years and three months one day at about 9 p.m. in the night after supper she has been sleeping in the farm house of P.W.1 Kumarasamy along with her house, daughter and son-in-law at that time, during 1 'O clock in the night she heard the noise of a barking dog and when she has come out during the brightness of the light she has seen 7 or 8 persons standing with knife and aruvals and 2 persons have caught hold of Muthusamy Gounder and they dragged him to the south side of her house near Kadalaikadu and out of the said 7 or 8 persons, the three accused present in Court have been there and that she raised her voice at that time they threatened her that if she raises her voice at that time they threatened her that if she raises her voice they will be stabbed and upon hearing her noise her husband come out and that they have stabbed her husband on his neck with knife and both of them were pushed inside their house and locked by the three accused persons present in Court. It is the further evidence of P.W.4 that Muthusamy at the time of his dragging has shouted not to stab him by raising his voice and later she has heard the noise two or three times and thereafter no noise has been heard, etc., P.W.4 has also stated in her evidence that Muthusamy has been lying which with seven stab injuries on his body at Sudalaikadu.
8. P.W.5 has been a witness to the recovery of M.O.24 empty Naepolean Brandy Bottle, M.O.25 Empty Kalyani brandy bottle and M.O.29 Ever Silver Tumbler recovered under Ex.P10 mahazar ceased by the Okkalipatti, Sub Inspector of Police. P.W.6 Dr.Geetha has deposed that on 12.01.1992 at about 10.40 a.m. in the morning, P.W.1 Kumarasamy has come to the Tiruchengode Government Hospital with a police memo for treatment and that he informed that four known persons have injured him with knife on 11/12.01.1992 around 01.00 a.m. in the morning and that after examining him she has noted down the injuries and that the Wound Certificate issued by her is Ex.P11 and further that she has examined Kalaiselvi who has come with a police memo at 11.00 a.m. for treatment and that she informed her that one person has injured her with Suri knife on 11/12.01.1992 early morning at 01.00 a.m. and after noting down the injuries she has given the Wound Certificate Ex.P12 and likewise Tirumalai Gounder on the same day has come for treatment with a police memo stating that he has been attacked by two unknown persons with an iron rod in his house on 11/12.01.1992 early morning at 01.00 a.m. and after examining and noting down injuries she has given Ex.P13 the Wound Certificate and that Exs.P14 to Ex.P16 are the Accident Register copies in respect of witness Kumarasamy P.W.1, P.W.3 Kalaiselvi and one Tirumalai.
9. P.W.7 Dr.Chandrasekaran has stated that while he was on duty at Tiruchengode Government hospital on 12.01.1992, he has received a requisition letter Ex.P17 from Tiruchengode Rural Police the Inspector for the conduct of Police Mortem on the body of the deceased Muthusamy @ Muthu Gounder and that he conducted the post mortem and after noting down the external and internal injuries he has issued a Post Mortem Certificate Ex.P18 and that he has opined that the injury No.1 and 4 ordinarily will cause the death. P.W.8 the Constable (Rtd.,) has stated that on 12/01/1992 when he served as Constable attached to the Tiruchengode Police Station and that he has been nominated with police mortem work in respect of Crime No.15/1992 and that the Inspector of Police after the inquest enquiry has handed over the dead body with a requisition letter in regard to the conduct of the post mortem and after receiving the dead body he has gone to the Tiruchengode Government Hospital and after identifying the dead body and also after being present along with the doctor at the time of post mortem and after the conduct of post mortem has handed over the dead body of the deceased relatives and that he has recovered the white colour shirt M.O.26, Blue colour trouser M.O.27 and the torn cloth M.O.28 and handed over the same in the police station.
10. P.W.9 the Village Administrative Officer has deposed that A1 Mariappan and A2 Balusamy have been arrested on 27.08.1992 at 07.30 a.m. in Vathalakundu Dindugul main Road, Ayyampalayam Section by the Kodaikanal Inspector and at that time, A1 Kambam Mariappan on seeing the police party has shot for the first time with a revolver in his hand and that the police have escaped that shot and again when he attempted to shoot, the revolver has not fired and that the second accused/appellant herein has made a threat that if anyone nears him, he will stab him and that the police have encircled the two accused and that the police has hit A1 Mariappan in his leg with gunbut and caught him and that the gun and the knife have been ceased by the police and later A1 has given a confessional statement recorded by the Inspector and the admissible portion is marked as Ex.P19 in which he and his assistant Kumaresan has signed and that the police have recovered the gun and empty cartridges with knife through mahazar in which again he and his assistant has signed and subsequently A2/the appellant has given a confessional statement recorded by the Inspector of Police and the admissible portion is Ex.P20 and that the ring with dollar and that the cloth bag and the watch worn by him in his hand have been recovered through mahazar Ex.P21 in which he and his assistant have signed and later he has gone to Indirani's house where she handed over the earrings weighing 1 = sovereigns, earrings weighing = sovereigns and the chain which have been seized by the Inspector through mahazar and further the Inspector has also seized two gold bangles and a ring through mahazar in which he and his assistant have signed in Ex.P22 mahazar and later after reaching Madurai at 23 hours, the Inspector has recovered 6 sovereigns chain, 7 sovereigns Mangal Sutra which have been melted and kept in the form of gold bar 103.500 gms, MO.4 through mahazar Ex.P23 in which he and his assistant have signed.
11. P.W.10 the Scientific Officer (Rtd.,) has stated that he served as the Assistant Inspector in the forensic Department, Chennai during 1992 and he received Ex.P24 requisition letter from Tiruchengode Judicial Magistrate requesting for chemical analysis and report in respect of the articles seized in the case and that he has given his biological report Ex.P25 and the Serology report Ex.P26. P.W.11 (the finger print expert) has stated that he has gone to the scene of occurrence and examined the finger prints from the articles and compared with the said finger prints with that of the finger prints from the inmates of the house and has taken photos in respect of other finger prints with the help of photographer and after comparing the photo finger prints with that of single finger prints file he has come to know that the finger print of Mariappan, son of Chinnaiah Devar, Vadukupatti Kambam in Crime No.747/1990 has tallied and he submitted his report Ex.P27.
12. P.W.12 (now served as Ennore the Assistant Commissioner and earlier the Kodaikanal Inspector) has deposed that he has taken up the investigation of the Kodaikanal Police Station Crime No.253/1992 and when he has gone in Search of the accused connected with the case at Ayyam Section, Vathalakundu-Dindugul Road at Ayyampalayam Branch Road when he endeavoured to arrest A1 Mariappan and A2 Balusamy with the help of witnesses Bharathidasan, his assistant Kumaresan at that time the first accused Mariappan shot them with a revolver and they hid themselves and again when A1 attempted to shoot at that time the revolver has not fired and A2 /appellant standing nearby has attempted to attack them with knife and later they caught him by encircling and when A1 Mariappan again made an attack on them, the Head Constable attacked the first accused Mariappan on his leg with gunsbut and arrested him and recorded the confession statements (admissible portion) of A1 Mariappan and A2 Balusamy/appellant Ex.)19 and Ex.P20 separately in the presence of witnesses and also recovered the revolver and empty catridges in the presence of witnesses and also recovered one Sovereign gold ring, gold dollar with Saraswathy deity embedded thereto and the airtun 1, the cover for air gun 1, the Soori knife with cover 1, Seiko automatic wrist watch in the presence of witnesses and later recovered from Indirani wife of Thanga Perumal big ring weighing 1 = sovereigns, red and white colour one pair earring weighing = sovereign which have been melted as gold bar as 22 gms by Rajagopal Shankar Aachari in the presence of witnesses and also recovered M.O.5 gold bangle 1 (weighing 11 gm and 200 mgms), 1 colour bangle (weighing 11 gm and 200 mgms), 1 gold bangle weighing 11gm 800 mgms) and also the gold bangle weighing 12 gms viz., M.O.2 and other gold articles M.Os.3 and 4 in the presence of witnesses through mahazar Ex.P22 and also recovered the gold bar M.O.4 103 gm 500 gms in the presence of witnesses through mahazar Ex.P23 and also examined Vasanth and Indirani, Bharathidasan, Kumaresan and recorded their statements and sent the seized articles under form-95 to the Court along with the accused for their judicial custody.
13. P.W.14 in his evidence has stated that during 1992 he served as Tiruchengode Rural Sub Inspector of Police and that he is acquainted with the signature of Manickam, then Assistant Inspector of Police of the same station and that he has been affected with paralysis and bed ridden and that P.W.1 Kumarasamy has given Ex.P1 the written complaint on 12.01.1992 at about 08.30 p.m. and that in Crime No.15/92 a case has been registered under
Section 397 and
302 I.P.C. by (the Said Assistant Inspector of Police Manickam) and that the printed First Information Report is Ex.P28 and that the first Information Report has been sent to the higher officials and the injured Kumarasamy, Kalaiselvi and Tirumalai Gounder have been given the medical memo and sent to Tiruchengode Government Hospital and that he has seized M.Os.24, 25 and 29 through mahazar Ex.P10. P.W.15 during 1992 while serving as the Inspector of Police of Tiruchengode Rural circle has stated that on 12/01/1992 at about 09.00 a.m. he has received the copy of the First Information Report registered in Crime No.15/1992 under
Section 397 and
302 and after taking up the investigation has gone to the scene of occurrence, prepared the observation mahazar Ex.P4 and the rough plan Ex.P29 and given requisition through the Head Constable for the purpose of conducting post mortem on the body of the deceased Muthusamy and has brought the finger print Expert and examined the witnesses, recorded their statements and also submitted that Ex.P32 later through the Chief Judicial Magistrate praying for conduct of identification parade and also has given Ex.P33 later to the Judicial Magistrate, Nilakottai requesting for the conduct of identification parade and that the witnesses P.W.1 Kumarasamy, Kamalam, P.W.3 Kalaiselvi, Tirumalai and others have identified A1 Mariappan and A2 Balusamy/the appellant in the Madurai Central prison in the presence of the learned Judicial Magistrate, Nilakottai.
14. P.W.16 (now the Sub and Assistant Sessions Judge) during the year 1992 has served as the learned Judicial Magistrate, Nilakottai and has conducted the identification parade and has stated that A2/appellant and A1 Mariappan have been properly identified by the witnesses in the identification parade and his identification report is Ex.P34 and that Ex.P35 and Ex.P36 are the statements of the witnesses and accused respectively and that the spot identification report is Ex.P37. P.W.17 the Inspector of Police has taken up the further investigation after receiving the case file from then Inspector of Police and has examined the two doctors and after examining the witnesses Ramdoss,Radhamani, Selvam, Ponnusamy Constables recorded their statements and after completing the investigation has laid the charge sheet against A1 Mariappan and A2 Balusamy and two others under
Section 397 and
302 read with 34 of I.P.C.
15. The case has been committed to the Court of Session and necessary charges have been framed against A1 Mariappan and A2/the appellant Balusamy. To substantiate the charges, the prosecution has been examined P.Ws.1 to P.W.17 and relied on documents Exs.P1 to P38 and marked M.Os.1 to 29. On completion of the evidence on the side of the prosecution, the appellant/A2 has been questioned under
Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution, which the appellant has denied as false. On the side of the appellant/accused, no witnesses and documents have been examined and marked.
16. On an appreciation of respective arguments and on consideration of an oral and documentary evidence, the trial Court has come to the conclusion that the prosecution has proved the guilt of the appellant/second accused beyond all shadow of doubt and found him guilty under
Section 302 read with 34 I.P.C. and awarded him life imprisonment besides imposing a fine of Rs.10,000/-, in default to undergo simple imprisonment of two months. Hence, the appellant/second accused has projected this appeal before this Court.
17. According to the learned counsel for the appellant/second accused, the trial Court has not appreciated of the fact that there have been no eyewitnesses to the alleged commission of murder of the deceased Muthusamy and that the trial Court ought to have taken note of the fact that the appellant herein on the date of alleged commission of offence on 11/12.01.1992 has been in custody in respect of other cases and that the trial Court should have acquitted the appellant/accused instead of convicting him and therefore prays for allowing the appeal to promote the substantial cause of justice.
18. It is the further contention of the learned counsel for the appellant/second accused that the appellant herein has not taken part in the commission of the offence and that the identity of the appellant/second accused has been shown to the witnesses by the police through Photos prior to the conduct of the identification parade and that there has been a long gap of nine months in regard to the arrest of the appellant/second accused and that the police have shown the photos of the appellant/second accused to the witnesses and that in the complaint Ex.P1, there is no mention of 7 or 8 persons and that in regard to the occurrence of murder, there have been no eyewitnesses in the case.
19. Per contra, the learned Additional Public Prosecutor appearing for the State contends that the prosecution has produced eyewitnesses to the occurrence and their evidence have been trustworthy and duly corroborated on the basis of the circumstantial evidence in the case on hand and therefore, the prosecution has proved its case beyond all shadow of doubt in so far as the appellant/second accused is concerned and as such the judgment of the trial Court is legally valid and the same is sustainable in law and does not require any interference in the hands of this Court at this stage. Continuing further, it is brought to the notice of this Court that A1 and A3 have filed separate Crl.A.Nos.248 and 250 of 2007 and the same have been dismissed by this Court on 08.01.2008.
20. This Court has paid its anxious considerations to the arguments advanced on either side and noticed the same.
21. It is not in controversy that the deceased Muthu Gounder @ Muthusamy died in an occurrence that has taken place on 11/12.01.1992 at 01.00 a.m. due to homicidal violence. P.W.7 the doctor who has conducted the post mortem on the body of the deceased Muthusamy (after noting down the 5 external and 6 internal injuries) has issued Ex.P18 the Post Mortem Certificate and has opined that the deceased Muthusamy would have died of shock due to internal pleading (?) in the abdomen and in the skull due to multiple injuries and that he would have died 9 to 12 hours before post mortem.' It cannot be gain said that P.W.7 the doctor while seeing the dead body of the deceased at 03.30 p.m. on 12/01/1992 has noted down the following injuries:-
(A) External Injuries:-
a) A lacerated wound of 10 cm X 2 cm in the right parietal region of the skull. Brain matter exposed out.
b) An abrasion wound of 5 cm X 2 cm in left shoulder.
c) A punctured wound of 1 cm X 1 cm X 10 cm in the umbilicus area 3 cm above the umbilicus (n.c) passes by 10 cm.
d) A contusion of 5 cm X 5 cm in the left lower side jaw.
e) An abrasion 1cm X 1cm in the lower jaw in the mid line.
(B) Internal Injuries:-
Blood in the peritoneal cavity 200 ml frozen.
1) Stomach: Empty. 2) Kidney: 200gms each pale. 3) Lungs: right lung 300 gms. Left lung 250 gms. Pale 4)Heart: empty 240 gms. 5) Liver:1100 gms. Pale 6)Spleen:130 gms.pale. 7)(n.c) wound of 1cm X 1 cm in the small intestine, No fluid in pleura or pericordial(?) cavity. Brain: Fracture right parietal bone present. Three memberance were (n.c) and (n.c) with clotted blood in the right parietal region."
22. P.W.6 the doctor has examined P.W.1 Kumarasamy, P.W.3 Kalaiselvi, Tirumalai Gounder and after giving treatment has issued Exs.P11 to P13 the Wound Certificates and also given A.R. Copies Exs.P14 to P16. In Ex.P11 the Wound Certificate in respect of P.W.1, P.W.6 the doctor has noted the following injuries :-
'a) Contusion about 4 X 2 cm over left upper eyelid with swelling of the upper eyelid. Abrasion over the right medial end of the left cornea which require opthahic (?)opinion.
b) Abrasion < X < over right upperlid for below right eyebrow.' and is of the opinion that the injuries are simple in nature.
In Ex.P12, the Wound Certificate in respect of P.W.3 Kalaiselvi, P.W.6 the doctor has found the following injury:-
'a. Lacerated wound 1/2 X 1/4 cm over right upper arm middle' and has opined that the injury is simple.
In Ex.P13, the Wound Certificate in respect of Tirumalai, P.W.6 the doctor has found the following injuries:-
'a) Lacerated wound 4 X 3 X 1 cm over Right knee.
b) Lacerated wound 2 X 2 X 1 /2 cm over left lower leg.
c) Abrasion 1 /2 X = cm over left shoulder.
d) Lacerated wound 5 X 4 X 3 cm right forehead extending up to right frontal bone.' and has stated that the patient has been treated as O.P. (since not willing for advised admission) and the injuries are simple in nature.
23. A perusal of the evidence of P.W.1 and P.W.3 go to show that even in regard to the murder of Muthusamy, (father in law of P.W.1) by breaking open P.W.1's residence front door thereby resulting in injuries to P.Ws.2 and 3 and further P.W.3 and her mother have been robbed of their jewels and also the sum of Rs.11,000/- cash kept in the bureau and subsequently the family members have been confined in the kitchen inside, etc., The specific evidence of P.W.1 is to the effect that he has identified the appellant/A2 along with A1 in the identification parade conducted at Madurai prison. Moreover, P.W.3 (the daughter of P.W.1) in her evidence has stated that the appellant/A2 and A3 have threatened the inmates of house with knife and thin rod. In a murder case the value of injured witnesses have been kept on a high pedal and it is an axiomatic fact that the injured witnesses will not substitute a wrong person for his/her real assailant.
24. One cannot brush aside an important fact that in the second identification parade conducted by P.W.16 the learned Judicial Magistrate on 23.10.1992 the witnesses P.W.1, P.W.3, P.W.4 and some others have taken part. Suffice it to point out that the evidence of P.W.16 the learned Judicial Magistrate is to the effect that the appellant/A2 and A1 Mariappan have been identified by the witnesses in the Test Identification Parade conducted by him. As a matter of fact, P.Ws.1 and 3 have identified the appellant/A2 and A1 Mariappan which clinchingly point out that the appellant/A2 has taken part in the commission of offence on the day of occurrence on 11/12/01/1992.
25. In the instant case, P.W.12 the Inspector of Police has arrested the appellant/A2 on 27.08.1992 and recorded his confessional statement, the admissible portion which is marked as Ex.P20 and has seized one sovereign gold ring with R.N.letters, one gold dollar embedding Saraswathi deity, one air gun, one cover for keeping the air gun, one soori knife with cover, one Seiko automatic wrist watch in the presence of witnesses and obtained their signatures etc. The evidence of P.W.9 the Village Administrative Officer in a clear cut way goes to point out that the appellant/A2 has given a confessional statement (admissible part is marked as Ex.P20) and that the Inspector of Police has seized the ring with a dollar, cloth bag, watch as per Ex.P21 mahazar in which he and his Assistant have signed and also that the Inspector has seized from one Indrani two gold bangles, ring through mahazar Ex.P22 in which he and his assistant have signed and also recovered melted gold bar weighing 103.500gms from Vasanth Sait, Madurai through M.O.4 as per Ex.P23 mahazar in which he and his assistant have signed. Indeed P.W.1 has identified M.O.1 Seiko automatic wrist watch, M.O.2 bangle (four in number), M.O.3 the ring and the gold articles of his daughter P.W.3. He has also identified M.Os.1 to 5. Moreover, P.W.3, the daughter of P.W.1 (the complainant) along with P.W.1 have seen the appellant/A2 along with other accused in the occurrence place and that P.Ws.1 and 3 have also sustained injuries on the day of occurrence, which has been spoken to in lucid terms by P.W.6 the doctor. Added further, P.W.7 the doctor has clearly stated that the injury No.1 and the injury No.4 viz., a) a lacerated wound of 10 Cm X 2 cm in the right parietal region of skull brain matter exposed out. b) A contusion of 5 cm X 5 cm in the left lower side jaw in Ex.P18 Post Mortem Certificate ordinarily will cause death. At this stage, it is pertinent to point out that P.W.1 in his evidence has stated that out of four persons who have been armed with knife, aruval, iron rod etc., three have been present in Court and that they have attacked his father on his head, leg, pushed and bolted him inside the kitchen and they dragged his father-in-law Muthusamy on a different direction and therefore the presence of the appellant/A2 on the day of occurrence has been proved beyond all shadow of doubt on the side of the prosecution. It is the evidence of P.W.4 that two persons caught hold of Muthusamy and they dragged him to the South of Kadalaikadu and that the three accused present in Court have come on the day of occurrence that the three accused person in Court have pushed them in the room and that Muthusamy shouted that 'don't stab him' and after hearing his noise for two or three times later his noise has not been heard and that Muthusamy has been found dead with seven stab injuries on his body.
26. Though a plea has been raised on behalf of the appellant/accused that he has been in custody on the day of occurrence 11/12.01.1992 it is to be pointed out that the prosecution has informed this Court that the appellant/A2 has been arrested on 19.10.1990 by Annamalai Police in Annamalai Police Station in Crime No.245/90 under
Section 457,395,397 of I.P.C. and remanded to the Judicial Custody and has been lodged in Central prison, Coimbatore and further that the appellant/A2 has escaped from the judicial custody during police escort after assaulting the police escort party while returning from the Assistant Sessions Court, Udumalpet to Central Prison, Coimbatore near Gomangalam on 05.09.1991 etc., and that after his escape on 05.09.1991, has been re-arrested by Kodaikanal police on 27.08.1992 in Kodaikanal Police station in Cr.No.253/92 under
Sections 394,397 I.P.C. read with 25(1)(a) of the Indian Arms Act, etc., and since he has been absconding from 05.09.1991 during 27.08.1992, during that interregnum the appellant/A2 has been involved in Crime No.15/92 of Tiruchengode Police Station on 12.01.1992 at 01.00 hours and has produced the records viz., the Register of TAPA, Prisoners in Coimbatore, Central prison and the Escape Register 91, 92, 93 from the I.G. Of Prison, Chennai and this Court has perused the same and as such the stand of the appellants that he has been in custody on 11/12/1/92 falls to the ground.
27. On the side of the appellant/A2, a contention is raised in Ex.P1 the complaint given by P.W.1, he has stated that his father has been attacked on the head, leg and body by 7 or 8 persons armed with knife, koduval, deadly weapons, etc., but in the cross-examination, P.W.1 has stated that in his statement he has mentioned only about four persons he has seen on the day of occurrence and therefore one cannot attach importance to Ex.P1 the complaint. It is true that in Ex.P1 the complaint, P.W.1 has mentioned about 7 or 8 persons but in his deposition, he has stated that four persons have come with knife, aruval, iron rod, etc., but this minor contradiction will not affect the case of the prosecution in our view because P.W.1 has clearly stated in his evidence that on the day of occurrence, he has seen four persons out of whom three have been present in Court. Further P.Ws.1 and 3 have identified the appellant/A2 along with the other accused and therefore, the plea of the appellant that A2 has been standing outside and has not taken part in the commission of offence is not accepted by this Court.
28. In the upshot of detailed discussions and on appreciation of the direct dependable evidence of the witnesses especially the injured witnesses and based on circumstantial conclusive evidence coupled with Ex.P20 the admissible part of confession of the appellant/A2 in the presence of the witnesses and the recovery of material objects are all quite sufficient to bring home the guilt of the appellant/A2 beyond all reasonable doubt under Section 302 read with 34 I.P.C. and that the prosecution has proved the guilt of the appellant/A2 beyond all shadow of doubt and accordingly, the Judgment of the conviction and sentence passed by the trial Court in respect of the appellant/A2 in S.C.No.115 of 2005 is affirmed by this Court in furtherance of the substantial cause of justice and consequently, the appeal fails and the same is dismissed.
(M.C., J.) (M.V., J.) 22.01.2009 Index : Yes Internet : Yes vri M.CHOCKALINGAM, J.
AND M.VENUGOPAL, J.
vri To
1.The Inspector of Police, Tiruchengode Police Station, Namakkal District, Crime No.15 of 1992
2.The Additional District and Sessions Judge, Fast Track Court, Namakkal.
3.The Additional Public Prosecutor, High Court, Madras.
CRL.A.NO.527 of 2008 22.01.2009